Chamber and committees

I think that a priest visiting a parishioner for the purposes of providing pastoral support would be the opposite of reckless.

I will drill down into this point, particularly regarding silent prayer. We can all understand the intent element of the provision, where the intent is very deliberately to influence people who are having an abortion. However, you mentioned that the second element is about recklessly having that effect. How exactly is “reckless” defined? You mentioned that that term is present in other areas of law. As I asked the minister earlier—which you might have caught—is that covered by the reasonable person test, or is recklessness defined separately?

Given your point that people might not know what that flag is, I will pick a more recognisable Christian symbol, such as the cross or the fish. Such symbols are associated with a faith whose church teachings are very clear on abortion. I am not referring to all Christians or all Catholics, but the Catholic Church has every right to be clear about its position on abortion. If a symbol that is clearly associated with a particular organisation—in this case, a church that takes an anti-abortion position—were to be displayed in the window of a home or from a flagpole in the garden, would that, in and of itself, be a breach of the bill’s provisions, or would it have to be something more than that?

I will now go back to basics. I said a minute ago that the broad principles are well covered, but there is an important matter to mention, particularly because you brought up the evidence given by Police Scotland, and you made a reasonable point about the potential tension between the written and oral evidence that was given. Will you address the point that some people have put to us in evidence that the police have sufficient powers as things stand to deal with people who are behaving in an intimidating manner, regardless of their proximity to a hospital or other such premises?

Minister, you said that the bill does not specify that silent prayer would be an offence. An offence is about behaviour that either has the intent of, or that recklessly causes the effect of, distress and so on to women who are seeking abortion. I will play that out with some examples. Say an individual is a patient who is accessing a hospital for whatever reason or they are a visitor. If, on their way into the hospital and within the 200m zone, they stop and pray, would that be an offence under the bill?

Finally, I have a general principle question. What makes you confident that the bill would survive the probably inevitable legal challenge? It is about a balance of rights—the right to freedom of religion and expression of that, the right to freedom of protest and assembly, and the right to access healthcare. Your bill is broadly similar to the Northern Irish and English equivalents, but there are some specific differences. The Northern Irish legislation in particular has survived a Supreme Court challenge, but your bill is not like for like compared with it—it is broadly similar, but it is not like for like. What makes you confident that, given the differences in your bill, you are maintaining a balance that the courts would support and that is in keeping with the ECHR?

I would like to go back to Ivan McKee’s line of questioning with regard to private property. Article 1, protocol 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms concerns property rights. It is not an absolute right but, for a conditional right, it is really quite strong, because it was written from an anti-Soviet perspective and represents a really important liberal defence of property rights.

I accept that we do not have the right to do anything that we want in our private property, regardless of whether that property is within 200m of a hospital. That said, this is an area in which the balance of rights is really important, so I will pose another example, the context of which is similar to that of the previous example.

You have already explained that, if somebody purchases a private property facing a hospital for the purpose of putting up a big sign that says “Abortion is murder”, it is simple to see the intent. However, I have Catholic friends who are very passionate about their faith; they have a flagpole in their garden and literally fly the flag of the Holy See, because, for them, that is an important expression of faith. I presume that that sort of thing would not be covered by the bill, but I am just asking the question to give you the chance to put that on the record.

I will finish with a general question that is similar to the one that I posed before. What, specifically, makes you confident that the bill would survive a legal challenge on the basis of article 1, protocol 1 property rights? Rather than a balance between the right to access healthcare and the right to freedom of religion, we are talking about a balance between the right to access healthcare and the right to private property.

I have a follow-up question to Ivan McKee’s question about church premises and signage. A church within 200m might have a sign outside with a message about all life being precious, and the church might intend that to be a message about peace in relation to the conflict in Gaza or something like that. If a person going by that church to enter the hospital for the purpose of seeking an abortion sees that it is a Catholic church and knows what the Catholic Church’s position is on abortion, that could cause them fear and alarm. They could find that intimidating.

Am I understanding the provisions in the bill correctly? That would not be that church’s intent, so that part of the provision would not come into effect, but the other part says that even if there is not intent, it could recklessly have that effect. Would that example be an offence under the bill? Under the reasonable person test, nobody would say that the church was behaving recklessly by having such a message on a sign.

I will continue with examples, because the committee is really interested in how the bill would operate in practice. The principles behind it are well understood and, I think, well supported.

For example, if a priest goes to a hospital to visit a parishioner, that is totally normal and is an important part of their role. Let us say, though, that the priest stops outside the hospital to pray. I have prayed outside hospitals, on my way in, for a variety of reasons. If a woman who is accessing the hospital for the purposes of an abortion sees the priest and is familiar with the Catholic Church’s position on abortion, she could be alarmed and feel intimidated by that. The offence of causing alarm or distress could be made out. Would the priest’s behaviour constitute an offence? Even if he were not there for the purpose of influencing a woman who is seeking an abortion, alarm or distress could still be created. I presume that such behaviour would not be an offence, because, at that point, we would be criminalising priests for dressing as priests in hospitals.

It was essentially about that. I will paraphrase your position, but correct me if I am getting it wrong. As it stands, the police might well have the power to act in response to the distress that is happening and to the intimidation felt by women, but current provisions do not provide a deterrent effect. You are seeking deterrence but acknowledging that existing law would allow for action where behaviour crosses the line, whatever the line is.