Gillian Mackay: Being behind rest of UK with buffer zones is no bad thing

Gillian Mackay – whose Abortion Services Safe Access Zones (Scotland) Bill is on the verge of being introduced to the Scottish Parliament – said the fact England, Wales and Northern Ireland had passed laws ahead of Scotland could be advantageous in terms of ensuring the bill can stand up to a legal challenge.

Following a vote on an amendment to the Public Order Bill in the UK Parliament, buffer zones – which would stop anti-choice protesters demonstrating in the immediate vicinity of an abortion clinic – are set to become law in England and Wales.

Meanwhile, a Supreme Court ruling in December also means they can now be implemented in Northern Ireland after former Green MLA Clare Bailey had her bill passed by Stormont in March last year.

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Mackay added her team are not “sitting on their hands” and are looking at ways to speed the legislation process up, insisting it was not “fair” to compare how the law has been implemented south of the Border with how it is being done in Scotland.

The proposed bill received more than 12,000 consultation responses – about three times what was anticipated – and Mackay’s team have been trawling through them for several months.

After more than 100 anti-abortion protesters lined up outside the Queen Elizabeth University Hospital in Glasgow at the weekend, there were calls for the legislation to be fast-tracked through Parliament while many expressed frustration Scotland was “lagging behind” the rest of the UK.

But Mackay said seeing the way in which laws have been implemented elsewhere will help the Scottish bill to be made “impenetrable”.

Mackay told The National: “I understand why people feel this is taking so long but we are working as quickly as we can while making sure things are robust because we know someone is going to challenge this.

Paediatric radiologist Dr Greg Irwin asks anti-abortion protesters to move along (Image: NQ)

“England were quite lucky in that they had a bill they could amend. That is a lot less work than [introducing] an entire bill.

“Drafting a bill with 12,000 consultation responses takes a lot longer than drafting an amendment and that’s not doing down the work they did in England because they did a huge amount.

“They really evolved what Clare did in Northern Ireland into the amendment that they brought forward. It’s a phenomenal effort they managed to get that over the line but I don’t think it’s a fair comparison.”

Mackay explained how instead of the legislation in England and Wales listing specific prohibited behaviours in buffer zones – as is the case in Northern Ireland – it focuses on blocking, impeding or influencing someone’s choice about their healthcare, which gives police more scope to ban acts like silent praying.

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She added: “You can list all the behaviours you want to prohibit, which can create loopholes, but what they did with the amendment in England was around the influence on people.

“Again, the fact that that made it through [Parliament] threw up another set of possibilities for us so I don’t think,  necessarily, being behind the amendment in England is a bad thing.

“I get why we don’t want to be last. If we’d had a bill we’d been able to amend we would’ve done that rather than this but we are working our butts off.”

In contrast to England, Wales and Northern Ireland, abortion clinics are mostly on multi-use sites in Scotland and so this will need to be considered in the wording of the bill, with Mackay insisting she would not want to stop trade unions from picketing in the zones.

Mackay had 12,000 responses to her consultation

Mackay explained how the volume of consultation responses had been the main reason why it was taking a while for the bill to be formally introduced at Holyrood.

But she said once these responses are published – which it is hoped will be in the next couple of weeks – the parliamentary process can start and she would be having conversations with ministers about how to make that move as quickly as possible.

She said she would even consider seeing if another committee other than health could scrutinise it if there was too much on the agenda.

The health committee is already set to look at Douglas Ross’s Right to Addiction Recovery Bill and Liam McArthur’s Assisted Dying for Terminally Ill Adults Bill.

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Mackay said: “We never anticipated the number of consultation responses we were going to get and that’s partly what has elongated this process.

“They all need [to be] individually redacted, there’s been people accidentally ticking the box to say they are under 12 so we need to get in contact with them to either get parental permission or to check that it’s a mistake.

“They then all need to get published as well as them all being analysed. You can only redact about 200 or 300 a day, so with 12,000 responses you can see why that’s taken so long.

“I don’t think we tell the public often enough how long these things take and the scale of the work involved."

Mackay said once the consultation process was "out the road" then the team could focus on parliamentary business. 

“It may be we need to explore what other committees have time to be able to take it. I am keen this is a health issue but if that committee timetable was to unnecessarily delay it, I would be speaking to other people [other committee conveners].”

It is hoped a final proposal can be lodged shortly after the consultation responses have been published. The bill has to lie in parliament for 30 days after it is introduced and will go through three stages of scrutiny before a final vote.

"We’re not sitting on our hands," Mackay added.

“I know people say we shouldn’t be taking more time because we’re frightened of challenge but the time it could cost us at the other end and the trauma for people if we do not do this properly now could be massive, if it was to be struck down.”