Chamber and committees

I will address amendments 6, 7, 15 and 16 quickly. The amendments are drafting improvements. Amendment 6 clarifies that “protected premises” may refer to a building

“that is, contains or forms part of a hospital”

and that the building must provide abortion services.

Amendment 15 reflects that change, and amendments 7 and 16 improve the wording of those provisions.

I will address the amendments to section 10—amendments 35 to 38—together. First, my amendment 36 provides flexibility in how the definition of “protected premises” may be modified. As introduced, section 10 allows the definition to be extended to cover places approved as

“a class of place mentioned in section 1(3A) ... of the Abortion Act 1967”.

For example, if general practices were approved as abortion providers, they could all be covered by a zone.

Section 10 also allows the definition to be extended to places providing

“treatments or services relating to abortion services”.

For example, a zone could be established around a building where counselling related to abortion treatment is provided.

Under those provisions, if a class of place were approved under the 1967 act, ministers could not extend the definition of “protected premises” in the bill to include only individual premises that were part of a class of place.

To continue my example, if general practices were approved as abortion providers, but not all practices offered the service, ministers could not establish a zone solely around those practices that needed it. Instead, they would have to extend the definition to include all general practices. That would cover more providers than necessary. I am grateful to Dr Gulhane for drawing attention to the issue. My amendment 36 responds directly to points that he made at the evidence session on 19 March. The amendment provides that ministers can now extend the definition to cover individual premises within a class of place approved under the 1967 act. That provides greater flexibility and is proportionate. If required, however, the whole class of place can be added.

As ministers must always act proportionately, they will be bound to use the less restrictive option, where the evidence supports the aim of protecting women and staff. I hope that members agree that that is a positive step that ensures that the bill is future-proofed, while also reflecting the Government’s obligation to always act proportionately.

I now turn to Dr Gulhane’s and Mr Balfour’s amendments. Given what I have set out, I hope that you will not be surprised to hear that I am resisting both.

With amendment 38, Dr Gulhane seeks to entirely remove the potential to extend the definition of protected premises. As I set out to the committee during my evidence, by including that section we will ensure that we pass legislation that is capable of protecting women, not just this year or next, but in years and maybe even decades to come. It means that women and staff will be able to access and provide services, even if treatments or delivery models change, and it provides scope to respond if the behaviour of groups that oppose abortion and the venues that they target change.

If anyone doubts that that is necessary, I would ask them to reflect on the history of abortion care since the Abortion Act 1967 was passed. When the 1967 act came into force, having an abortion meant undergoing a surgical procedure. Now, for many women, having an abortion involves visiting a clinic to collect tablets that they can take at home. We have no idea what care will look like in the future, but it would certainly be unwise to assume that it will remain as it is now.

Likewise, although I hope that it does not happen, we cannot rule out that the ways in which anti-abortion groups will seek to target those who are having abortions will continue to evolve. A decade ago, we did not see the kinds of activity in Scotland that we do now, and, although I will not labour the point, we have seen how anti-abortion groups have mobilised to strike at abortion provision in the United States in ways that we would not have imagined possible.

We must make sure that we are able to respond if we need to, although, of course, always ensuring that we act compatibly with the European convention on human rights. Section 10 does not threaten any broader rights to protest. It could only ever be used to protect women and staff at the point where they are accessing or providing services. Of course, I understand that the prospect of covering all GP practices or pharmacies could be significant, and committee members may have concerns about that. I do not want to dismiss that, but I will provide reassurance.

First, the examples that I have given are purely illustrative. There are no plans to approve pharmacies or GP practices as classes of place under the Abortion Act 1967. As I said earlier, we have no idea what the future might bring. A class of place approval may never be granted, or it may be granted for a very small set of premises. Section 10 ensures that we can act if we need to, and the Government amendment has ensured that the protection can be extended only to those premises where it is needed.

Secondly, any decision to extend the definition will be evidence based, and the Scottish ministers must always act compatibly with the European convention on human rights. Because of that, no additional protected premises can be added unless ministers are satisfied that it would be proportionate. They would have to balance protecting the article 8 rights of women and staff with any interference to articles 9, 10 and 11 rights. Again, that underlines the significance of the Government amendment. If protecting only individual premises, rather than an entire class of premises, would achieve the bill’s aims, ministers would be duty bound to do only that.

Thirdly, ministers cannot act unilaterally. Any change to the definition of “protected premises” using section 10 will require affirmative regulations. The Scottish Parliament will therefore be able to scrutinise the necessity and proportionality of the designation of any new protected premises. If the Parliament is not satisfied that ministers have met their obligations, or that the evidence to modify the definition is sufficient, the regulations could be voted down.

My reasons for not supporting Mr Balfour’s amendments 35 and 37 are very similar. In the event that GP practices or pharmacies are approved as a class of place, we must be able to extend protection to them if that is needed. As I have said, there are no plans to do that. Nevertheless, it is illogical to exclude them when there is a possibility that they could be approved as a class of place for the provision of abortion services and then targeted in the future.

I recognise the concern that underpins those amendments and I hope that the Government’s amendment 36 will provide reassurance that we, too, have considered the matter and have taken steps to ensure that the least restrictive approach will be taken.

I move amendment 6.

I am aware that Ms Mackay intends to provide a full and detailed response, so I will simply affirm that the Scottish Government’s position aligns entirely with hers. In-depth work has been undertaken to ensure that the bill sets a zone size that takes into account the specific circumstances of individual premises and, thereby, provides adequate protection while remaining proportionate.

To accept amendment 43 would be to strike at the bill’s heart without reasonable justification. It would represent bad lawmaking, as the legislation would not be fit for purpose because the zones would not be of the necessary size.

Thank you, convener. I apologise. I will just get the right page in my file—my tome.

The Scottish Government has lodged amendments 8 to 14, 26 to 30, 32, 40 and 41, which would amend sections 2, 7, 8 and 13. The bill establishes safe access zones around premises in Scotland that provide abortion services. Therefore, it is important that the way in which safe access zones are described is accurate and easy to understand.

It is proposed that a safe access zone will exist around premises that provide abortion services, which are to be called the “protected premises”. The zone will, therefore, consist of the protected premises, the public area of the grounds of the protected premises and the public area of land that lies within a boundary measured from those grounds.

The ability for legislation to be understood by the reader is key to good law. In between the bill’s being published and stage 2, I took the opportunity to review the wording of the bill and I identified some areas where there is unnecessary duplication of words, or areas that could be simplified. Overall, the amendments in the group are designed to make it easier to understand how a safe access zone is defined and measured.

Amendments 8, 10, 28 and 29 will remove unnecessary repetitive wording. Amendments 12 and 40 will remove the term “edge of the protected premises”. That term will be replaced through amendments 14 and 41, which will introduce a new defined term—“protected site”. The reason for that is to improve clarity and avoid repetition of words. There has been no change in policy; rather, the changes help to explain that the protected site is made up of the protected premises together with its grounds.

Amendment 13 will clarify the definition of “grounds”. As a consequence of the change of the wording to “protected site”, amendments 9, 11, 26, 27, 30 and 32 will replace the phrase “edge of the protected premises” with “boundary of the protected site” throughout the bill.

I understand that Ms Harper will speak to the amendments in her name, and I will address those when I wind up the group.

I move amendment 8.

I have just laid out what Police Scotland would do in such situations. My hesitancy is related to what health boards and health providers feel is the appropriate level of information to give people to inform them of where the zones begin.

As I have pointed out, the Scottish Government is working towards there being very good information to ensure that people are informed. I recognise that we must do everything that is practical to make the law clear to those whom it might impact. I would welcome the opportunity to undertake further exploration of the issue with Ms Gallacher and Ms White, if they are willing. I hope that Ms Gallacher will not press her amendment 51, in order to allow that work to happen. However, if it is pressed, I hope that the committee will vote against it.

I hope that members agree that an element of future proofing is needed, as Carol Mochan said, to allow the bill to continue to achieve its aims even if abortion treatments or the way in which services are provided change. As I have explained, should the powers be used, they will always be subject to parliamentary oversight, as Gillian Mackay has emphasised.

I thank Mr Balfour for his contribution and tone. If I heard him correctly, he does not intend to move his amendments 35 and 37. I thank him for that and am happy to have further conversations with him prior to stage 3.

I hope that the arguments that I have just laid out, combined with the improvement to be made by amendment 36, is sufficient to convince Dr Gulhane and Mr Balfour not to move their amendments. I thank Mr Balfour for noting that he will not do so. However, if Dr Gulhane moves amendment 38, I urge members not to vote for it. That will preserve the ability for the legislation to be relevant and fit for purpose in years to come.

Amendment 6 agreed to.

Amendment 7 moved—[Jenni Minto]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Establishment of safe access zones

I believe that we are right to have the 200m limit. When I gave evidence to the committee in stage 1, I said that that limit gives consistency, so that people will understand, when the legislation is enacted, what it is that they are looking at. I do not want to undermine the tremendous work that the committee has done on the issue so far.

I will be brief. I echo what Ms Mackay has said. I believe that amendment 39 responds to the stage 1 recommendations by providing for a robust and comprehensive review that will give Parliament its place and make its findings public.

I will address the point that Rachael Hamilton and Tess White made about the two-year reporting period. The two-year reporting period would not prevent action from being taken in the meantime to extend or reduce zones, as needed. In addition, I gently point out that ministers always keep legislation under review. That is an on-going process.

I urge members to support amendment 39 by voting for it, and I extend an offer to discuss the matter further with Ms Hamilton and Ms White if they feel that their intentions are not met by Ms Mackay’s amendment.

I will finish there before my voice disappears.

Thank you, committee members, for your stage 1 consideration. This is a complex subject area and I am grateful for the sensitive and thoughtful way that you have all approached your consideration. I look forward to a similar discussion this morning.

I will turn directly to amendment 42. My reasons for asking the committee to vote against the amendment are largely practical. Purpose clauses in Scottish legislation have historically been used only in exceptional circumstances and there must be compelling reasons for their inclusion. I note that Carol Mochan raised that matter.

Although I am grateful to Ms Hamilton for setting out her reasons for seeking to do that in the bill, I am concerned that the inclusion of such a section might have consequences that would go beyond what she has set out this morning. The purpose of any bill, no matter the complexity of the subject matter or the rights that are impacted, is to change the law, and every section should further that aim. That is not simply a semantic argument about good drafting; it goes to the heart of how bills are applied in the real world.

All sections should have clear legal effect and be capable of interpretation by a court. That being the case, a section that is not intended to have legal effect should not be included. Bills are not the place to set out policy intent or ambition; there are other opportunities for that, such as policy or strategy documents. Conversely, including a section means that we must accept that it might, in the future, be expected to have legal effect. Therefore, a purpose clause must be the subject of the most careful drafting to ensure that it does not conflict with the other sections of the bill.

Without doing so, there is a risk that its legal effect might conflict with the powers and duties in the bill or be read as serving as an additional legal test for the exercise of duties. For example, in this instance, the purpose refers to “fear of intimidation”, which differs from the offences that are set out in sections 4 and 5 and the tests in sections 7 and 8, which set out when it is appropriate for ministers to extend or reduce a zone. Its inclusion could therefore introduce uncertainty around how ministerial powers to reduce or extend a zone could be exercised or with regard to how the courts interpret the offence provisions. Those are significant uncertainties to introduce. Therefore, if the purpose is not intended to have legal effect, it should not be included, and I urge Ms Hamilton not to press the amendment.

If the purpose is intended to have legal effect, I must urge the committee to vote against it on the grounds that it may, at best, create uncertainty with regard to how the law is to work in practice and, at worst, be interpreted in ways that result in the law being implemented in a manner that was never intended.

I welcome Emma Harper’s amendments, which are clearly aimed at ensuring that this important legislation can be understood by everyone who might be subject to its provisions. As members have heard, none of the amendments in the group is contentious. They all have the same aim, which is to provide clarity. Therefore, I ask members to support all the amendments in the group.

Amendment 8 agreed to.

I am happy to take it now.