The Parliament will consider the Abortion Services (Safe Access Zones) (Scotland) Bill (“the Bill”) at Stage 3 on 12 June 2024. This blog summarises Parliamentary scrutiny of the Bill prior to Stage 3. The blog does not offer a comprehensive review of all proposed amendments to the Bill; rather, it explores some of the key issues emerging during consideration of the Bill so far.
Summary of the Bill as introduced
The Bill was introduced by Gillian Mackay MSP as a Member’s Bill on 5 October 2023. Although it was introduced as a Member’s Bill, the Bill and accompanying documents were drafted by Scottish Government officials on behalf of Ms Mackay. The Scottish Government stated its support for Ms Mackay’s Bill in its 2023-24 Programme for Government, as part of a broader commitment to exploring abortion law reform.
The Bill creates the status of “protected premises” for places where abortion services are provided, and establishes safe access zones around these premises. Ordinarily, a safe access zone will consist of the protected premises, its public grounds, and any other public land within 200 metres of the protected premises. However, the Bill includes provisions to extend or reduce the 200-metre radius of a safe access zone if necessary.
Two new criminal offences would be introduced by the Bill, covering behaviour prohibited in a safe access zone. Section 4 of the Bill would make it a criminal offence to behave in certain ways in a safe access zone. Section 5 of the Bill would make it a criminal offence to behave in certain ways from premises located within but not covered by a safe access zone, where that behaviour can be seen or heard from a safe access zone.
Behaviour would be prohibited where a person engages in it with the intention to, or is reckless as to whether the effect is to:
- influence the decision of another person to access, provide or facilitate the provision of abortion services
- prevent or impede another person from accessing, providing or facilitating the provision of abortion services
- cause harassment, alarm or distress to another person in relation to that person’s decision to access, provide or facilitate the provision of abortion
A person convicted of an offence in relation to this Bill would be subject to a fine.
Neither the Bill nor its accompanying documents detail specific behaviours that would be prohibited within a safe access zone. The Policy Memorandum explains:
“Such flexibility reflects the reality that it is not practicable to define all potential kinds of anti-abortion activity that could be carried out within a zone, and also allows enforcement agencies to account for the nuances of particular situations.”
Similar legislation already exists in England and Wales, Northern Ireland, and the Republic of Ireland. In early 2024, SPICe commissioned a literature review examining comparable legislation in other jurisdictions, to better understand international precedent and inform Stage 1 scrutiny of the Bill.
SPICe also produced a briefing summarising the Bill as introduced, and exploring some of the key issues surrounding the introduction of safe access zones around abortion clinics.
Consideration of the Bill at Stage 1
The Health, Social Care, and Sport Committee was designated as the lead Committee for scrutiny of the Bill at Stage 1 and 2. The Finance and Public Administration Committee and the Delegated Powers and Law Reform Committee also undertook scrutiny of the Bill at Stage 1.
The Committee took evidence from a range of stakeholders, including healthcare providers, people with lived experience of accessing abortion services, people with lived experience of participating in anti-abortion vigils, anti-abortion groups, church representatives, and organisations that would be responsible for enforcement of safe access zones. The key issues explored during Stage 1 scrutiny included:
- the impact of anti-abortion demonstrations on people accessing and providing abortion services
- the potential impact of the Bill on those who take part in anti-abortion demonstrations in the vicinity of clinics, including consideration of silent prayer
- balancing the human rights implications of the Bill for those accessing and providing abortion services with those of anti-abortion demonstrators
- the operational management of safe access zones
- potential unintended consequences of the Bill.
The Committee published its Stage 1 report on 22 April 2024. The Committee recommended that the general principles of the Bill be agreed to and made a series of recommendations to the Scottish Government. Responses to the Committee’s recommendations from both the Member in charge of the Bill, Gillian Mackay MSP, and the Minister for Public Health and Women’s Health, Jenni Minto MSP, can be found on the webpage for the Bill.
The Stage 1 debate was held on 30 April 2024, and the Parliament voted to agree the general principles of the Bill by 123 votes to 1.
Consideration of the Bill at Stage 2
The Health, Social Care, and Sport Committee considered amendments to the Bill at Stage 2 on 28 May 2024. The marshalled list of Stage 2 amendments can be found on the Bill’s webpage. A number of technical amendments were lodged by the Minister for Public Health and Women’s Health, and the Member in charge of the Bill, and were agreed by the Committee. Many of these amendments replaced the term “protected premises” with “protected site”, a new defined term intended to clarify that a protected site is made up of a protected premises, together with its grounds.
The more substantive amendments lodged by Members, which are explored in more depth below, reflected some of the issues emerging during Stage 1 scrutiny of the Bill.
The definition of “protected premises”
A series of amendments were lodged regarding the Bill’s definition of “protected premises”. Amendments 6, 7, 15, and 16 were clarifying amendments lodged by the Minister to explain that “protected premises” may refer to a building that contains or forms part of a hospital.
Amendment 36, also lodged by the Minister, addressed concerns raised by Members and witnesses during Stage 1 scrutiny about the Bill’s “future-proofing” provisions. These would, hypothetically, enable safe access zones to be introduced around pharmacies, GP practices, and any other premises that could undertake provision of abortion services in the future.
Jeremy Balfour MSP reflected some of these concerns in defence of his amendments 35 and 37. He argued that pharmacies and GP practices should not be covered by the Bill as the provision of abortion services is not their primary function. Additionally, Mr Balfour highlighted that a 200-metre safe access zone around all these premises in Scotland would have significant implications for the human rights of those who wish to hold anti-abortion demonstrations on high streets and in other public spaces. Sandesh Gulhane MSP, speaking to Amendment 38, argued that the Bill as introduced did not allow for sufficient scrutiny of the potentially wide-ranging consequences of expanding the definition of “protected premises”.
In response to concerns raised by Dr Gulhane during Stage 1 scrutiny, the Minister lodged Amendment 36, which creates the provision for Ministers to extend the definition of “protected premises” to include individual premises within a class of place approved under the Abortion Act 1967. In practice, this means that if pharmacies began providing abortion care, but not all pharmacies chose to do so, a safe access zone could be introduced around individual pharmacies as needed. This would avoid the need to introduce blanket safe access zones around all pharmacies in Scotland.
Following these reassurances, Mr Balfour did not move Amendments 35 and 37, and the Minister’s Amendment 36 was agreed to. Dr Gulhane moved Amendment 38, which was disagreed to (For 2, Against 7, Abstentions 0).
Radius of safe access zones
During Stage 1 scrutiny, Members heard that initial scoping work on the size of safe access zones had been conducted by the British Pregnancy Advisory Service and Back Off Scotland. This work concluded that a safe access zone of 150 metres would be sufficient for most premises where abortion services are currently provided in Scotland. However, the Queen Elizabeth University Hospital in Glasgow would require a 200-metre zone to provide appropriate protection.
Consequently, the Committee’s Stage 1 report recommended a default radius of 150 metres for safe access zones in Scotland. The Committee suggested that the provisions in Section 7 of the Bill could then be used to extend the radius around the Queen Elizabeth University Hospital to 200 metres. Amendment 43, lodged by Rachael Hamilton MSP, reflected this recommendation, seeking to reduce the default radius of safe access zones from 200 metres to 150 metres.
In response to Amendment 43, Ms Mackay informed Members that subsequent scoping work had determined that 150 metres could be insufficient for more than a third of sites where abortion services are currently provided. Ms Mackay therefore maintained that a default radius of 200 metres is necessary to ensure adequate protection for people accessing and providing abortion services. Amendment 43 was withdrawn, so the default radius remains at 200 metres.
Signage
Amendment 51, lodged by Meghan Gallacher MSP, inserted a clause requiring signage to be displayed to demarcate a safe access zone, and summarise the restrictions that apply within the zone. Ms Gallacher acknowledged concerns raised during Stage 1 scrutiny that signage could draw attention to premises where abortion services are provided. However, she argued that signage could aid understanding of the restrictions in the Bill. Tess White MSP added that without proper signage, safe access zones may be difficult to enforce.
In response, Ms Mackay argued that installing signage could be impracticable, as it would not be possible to guarantee that signs would be visible at every point where protesters could choose to gather. Additionally, Ms Mackay noted that installing signs could carry the unintended consequence of creating a gathering point, where anti-abortion demonstrators could safely gather at the boundary of a zone.
The Minister noted that the Scottish Government was committed to additional publicity activity. This would include a targeted publicity campaign, as well as publishing lists and maps of safe access zones as required by the Bill. The Minister also highlighted that health boards can opt to install signage to mark safe access zones if they consider it appropriate, and safe for the people accessing their services, to do so. Amendment 51 was withdrawn.
Silent prayer and private conversations
The issue of silent prayer was raised throughout the Committee’s Stage 1 scrutiny of the Bill, and during the Stage 1 debate. Some Members and witnesses felt that the potential criminalisation of silent prayer could amount to policing thoughts, contrary to the absolute protection of the freedom to hold religious beliefs provided by Article 9 of the European Convention on Human Rights (ECHR). Others argued that creating an exemption for silent prayer risked undermining the purpose of the Bill.
Gillian Mackay MSP argued during the Stage 1 debate that the Bill does not criminalise silent prayer, because it does not explicitly criminalise any behaviour. Instead, the Bill focuses on the intentions and consequences of behaviours within a safe access zone. Therefore, if an individual prayed silently in the vicinity of an abortion clinic with the intention of impeding access to the clinic, or influencing someone’s decision to access abortion services, they would potentially be committing an offence under the Bill.
Concerns around silent prayer have also been raised in relation to safe access zones legislation elsewhere in the United Kingdom. The Abortion Services (Safe Access Zones) (Northern Ireland) Bill was challenged in the UK Supreme Court in relation to the compatibility of the criminal offence in the legislation with the ECHR. This is worded in a very similar way to the offences in the current Bill. The judges commented on the issue of silent prayer when coming to their decision that the Northern Ireland legislation was compatible with the ECHR.
In England and Wales, Andrew Lewer MP lodged an amendment to the Public Order Bill to “exempt consensual communication, silent prayer, and peaceful presence from criminalisation” within safe access zones. The amendment was rejected by 116 votes to 299. However, an exemption for silent and entirely unobtrusive prayer was later included in the UK Government’s draft non-statutory guidance on abortion clinic safe access zones.
Amendment 24, lodged by Jeremy Balfour MSP, sought to capture concerns raised about silent prayer by adding a clause stating that:
“A person does not commit an offence under section 4(1) or 5(1) where the act is—
(a) engaging in silent prayer, and (b) not undertaken as part of a group or organised event.”
Mr Balfour contended that this amendment could not be used to facilitate organised group activity or rolling vigils, and solely aimed to protect individual prayer and meditation. However, Ms Mackay argued that the amendment could have the unintended consequence of creating loopholes for other conduct. Ms Mackay also highlighted evidence heard by the Committee during Stage 1 scrutiny, when individuals with lived experience of encountering silent prayer outside abortion clinics shared testimonies of the emotional harm caused by these encounters.
Mr Balfour also lodged Amendment 21, which sought to remove Section 5 (dealing with behaviour from premises in a safe access zone area) from the Bill. Mr Balfour cited concerns that discussions about abortion within churches, schools, hotels, and other premises located within safe access zones could be considered offences under the Bill. Ms Mackay gave assurances that private conversations within such premises, which could not be heard or seen from a safe access zone or were not intended to impact on those accessing or providing abortion services, would not be captured by the Bill. Ms Mackay offered to discuss the concerns of faith communities further with Mr Balfour. Amendments 21 and 24 were not moved.
Chaplaincy services
Amendment 22, lodged by Jeremy Balfour MSP, would create an exemption for people providing hospital chaplaincy services. This amendment reflected a concern raised during Stage 1 scrutiny that the Bill’s provisions could, in some circumstances, unintentionally catch the activities of hospital chaplains. Ms Mackay acknowledged the importance of ensuring that women were not dissuaded from seeking chaplaincy or spiritual support as an unintended consequence of the Bill. Following an invitation to work with Ms Mackay to explore lodging an amendment at Stage 3, Mr Balfour chose not to move this amendment.
Filming and recording
Rachael Hamilton MSP and Meghan Gallacher MSP lodged similar amendments (56 and 57) concerning filming and recording of people accessing abortion services. These amendments reflect provisions in the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023, which created specific offences related to filming and photography within safe access zones.
The Minister noted that this issue had been considered during the drafting of the Bill, and it was concluded that the offences as drafted would be sufficient to capture filming and photography. Ms Mackay added that the Bill as introduced deliberately avoids listing individual behaviours, and that including specific references to filming and recording would therefore contradict the rest of the Bill. Amendments 56 and 57 were not moved.
Changes to safe access zones
Gillian Mackay MSP lodged several amendments related to the extension and reduction of safe access zones. Amendments 31 and 33 introduced a requirement for Ministers to consult with relevant stakeholders before extending or reducing the radius of a safe access zone, reflecting commitments made by Ms Mackay during the Stage 1 debate. Amendment 34 requires Ministers to lay a report before the Parliament within seven days of publicising a change to the size of a safe access zone, detailing the reasons behind their decision.
This amendment may allay concerns voiced by several witnesses and respondents to the Committee’s call for views who called for greater clarity regarding the decision-making process followed by Ministers when extending or reducing a safe access zone. It was suggested that introducing clear procedures to guide such decisions could help to ensure that the Bill’s restrictions on the rights in Articles 9, 10, and 11 of the ECHR remain proportionate to its aims. However, although Amendment 34 creates a requirement for Ministers to report on their decision-making rationale, it does not introduce a clear decision-making process. Amendments 31, 33, and 34 were agreed.
Amendments 1-5, lodged by Alex Cole-Hamilton MSP, also suggested amendments to the Bill’s provisions around extension and reduction of safe access zones. Amendments 1 and 3 would require the regulations introduced in Sections 7 and 8 of the Bill to be subject to affirmative procedure. Similarly, Amendment 5 sought to introduce a new subsection to establish limits on the distance by which a safe access zone could be amended or reduced, and to make regulations under this subsection subject to affirmative procedure. Mr Cole-Hamilton explained that he lodged these amendments to create additional Parliamentary oversight of decisions to extend or reduce safe access zones, to future-proof the Bill against “less progressive” administrations that may choose to reduce or remove safe access zones with no recourse to Parliament.
In response to these amendments, Ms Mackay raised concerns that the requirement for affirmative regulations could significantly delay any decision to extend or reduce a safe access zone. Additionally, Ms Mackay noted that establishing an upper limit for the extension of safe access zones could limit the future effectiveness of the Bill, as it is not possible to predict whether larger zones will be necessary in the future. Amendments 1-5 were not moved.
Reporting and review
Gillian Mackay MSP, Rachael Hamilton MSP and Tess White MSP each lodged amendments (39, 50, and 58, respectively) introducing a reporting requirement to review the ongoing effectiveness of safe access zones. The amendments differed regarding their proposed timescales and the level of detail required in the reports. Ms Mackay’s amendment proposed an initial report two years after the Bill comes into force, then a report after each subsequent period of five years. Ms Hamilton and Ms White’s amendments each included a requirement for annual reporting, mirroring the provisions of the Abortion Services (Safe Access Zones) Act (Northern Ireland) 2023.
Both Ms White and Ms Hamilton included reporting criteria against which the effectiveness of safe access zones should be reviewed. Amendment 58 in the name of Ms White made specific reference to reviewing the ongoing compliance of safe access zones with the Human Rights Act 1998. Though Ms Mackay expressed reservations about making the reporting requirement too prescriptive, she offered to work with Ms Hamilton and Ms White to explore this issue. Amendment 39 was agreed to, and Amendments 50 and 58 were not moved.
A version of the Abortion Services (Safe Access Zones) (Scotland) Bill as amended at Stage 2, and the list of amendments submitted prior to the Stage 3 debate, can be found on the webpage for the Bill.
SPICe Research