Abortion Services (Safe Access Zones) (Scotland) Bill: business and regulatory impact assessment

Benefits and costs

Option 1: use of local authority byelaws

Benefits

Under this option, local authorities could use byelaws to create zones around premises providing abortion services where anti-abortion activity takes place and is considered to be harmful. This would have the benefit of allowing local solutions, and only establishing protections around premises where harm actually occurs. Local authorities must consult on proposals and to publish the proposals before making byelaws. They can only become law once they are confirmed by the Scottish Ministers. The public may write to Ministers with any objections which will be considered. There is therefore a requirement for publication and the opportunity for the public to make known their views.

Costs

Byelaws would impose additional costs on local authorities. They involve a considerable degree of work to implement, and their use would therefore require multiple, potentially burdensome assessments every time a byelaw was enacted or reviewed, which must be done every ten years. In England, where Public Spaces Protection Orders operate in a similar way to byelaws, significant costs have also been incurred by local authorities defending legal challenges to the establishment of safe access zones. Officials from Ealing council have confirmed to the Scottish Government that these costs amounted to an estimated £144,000. The total costs of maintaining the order were put considerably higher.

Options 2: Rely on existing powers

Benefits

A number of existing powers were identified which might be capable of meeting the policy aim of protecting access to abortion services. These included the Antisocial Behaviour etc. (Scotland) Act 2004; the Criminal Justice and Licensing (Scotland) Act 2010; and the common law offence of Breach of the Peace.

The benefit of option 1 is that it would avoid creating any new interference with any of the rights under articles 9, 10 or 11 of the European Convention on Human Rights (ECHR)^[9]. It would also remove the need to create any new offences or add to the burden of work on the justice system.

However, as set out in the Policy Memorandum, it is considered that relying on existing powers presents a number of significant drawbacks, and would not meet the policy aims as a result. These include:

• Each requires evidence of harm before it can be used; this is inconsistent with the need to prevent harm and not only react once it has happened.
• Each requires the making of a police report; as noted in evidence gathered for the Bill many patients are unwilling to speak about their experiences. Requiring this therefore has potential both to be ineffective, and to subject women to undergo further distress by recounting deeply personal and sometimes traumatising experiences.
• Certain anti-abortion activities, such as handing out leaflets, do not breach existing law despite evidence, as set out above, that they can have harmful impacts and represent an invasion of patient privacy.
• The existence of these powers has not prevented groups from engaging in behaviour aimed at abortion service users, thus strongly indicating it is an ineffective deterrent.

Costs

Given that this option would not require the creation of any new legislation or offences, no additional costs would be incurred.

Option 3: mediation and guidance

Benefits

This approach would have the advantage that it would not create any additional interference with any of the rights under articles 9, 10 or 11 of the ECHR^[10] . It would also remove the need to create any new offences, or add to the burden of work on the justice system. As Byelaws would not be required, Local Authorities would have no additional role to play.

However, mediation work was undertaken to explore non-formal measures to help address the issues of anti-abortion activity. After a three-month scoping exercise, civic mediation experts were unable to gain any traction with anti-abortion campaigners, pro-choice campaigners or those providing abortion services as noted in their statement:

“Our findings indicate that the issues and relationships are complex and there are diverse perspectives across multiple stakeholders...No mediation has been undertaken and we are not proposing mediation is an appropriate way forward in the current circumstances.”^[11]

Additionally, stakeholder engagement, as well as public statements made by those conducting anti-abortion activity, clearly indicates that this is an issue involving strongly held convictions. Those taking part in anti-abortion activity have expressed that they believe their presence can support women, and that it is an important method of making them aware of abortion alternatives. Organisations such as 40 Days for Life have noted that they would continue to protest even if legislation were in place, thereby strongly suggesting guidance would also not be a deterrent. There have also been cases where safe access zones in England have been intentionally breached.

This, combined with the unsuccessful attempts at mediation documented above, underlines the difficulty of using guidance to bring lasting change. As the activity in question has already been demonstrated to cause harm to service users, it would be inappropriate to proceed with this option, knowing its impact may be minimal and would be insufficient to meet the policy aims.

Costs

As this would involve no new legislation or offences, any costs are expected to be minimal. Some costs are likely to fall to the Scottish Government to create guidance, though these would likely be absorbed within existing resource. If mediation work were to be explored fully, further costs would be incurred by the Scottish Government. Although it is not possible to definitively say how much mediation would cost due to the complex nature of the subject matter and those involved, it is estimated this work could cost between £20,000 - £50,000.

Option 4: use of legislation to create safe access zones on a case-by-case basis

Benefits

Option 4A would require operators of protected premises to apply to Scottish Ministers to establish a zone, evidencing the reasons that one is needed. 4B would enable the operators of protected premises to establish a zone by giving notice to Scottish Ministers without evidence of need and without Ministers having any decision-making function.

The benefit of option 4A is that prohibitive measures would only be implemented where there is clear evidence of anti-abortion activity. This could limit the extent to which ECHR^[12] rights are interfered with, and where interference did occur, there would be a direct link to evidence of harm.

Moreover, it would ensure local decision-making that takes account of specific circumstances, and allow some flexibility for providers or Health Boards on whether to have a safe access zone or not. However, it is considered it does not meet the policy intent for the following reasons:

• As noted above, the evidence-based application used for Public Space Protection Orders^[13] have proven to be burdensome on the applying organisation, which must gather and assess a weight of evidence ahead of applying, and on individuals affected by anti-abortion activity, who must be willing and able to recount often distressing experiences.
• The decision to grant an application would be subject to challenge, thus providing avenues for anti-abortion groups to seek to prevent a safe access zone in every location in which an application is granted. This may act as a deterrent for applying organisations and represent duplicated costs to the public purse.
• Protection might not be consistent - particularly given the drawbacks above, it is possible that organisations would be deterred from applying, particularly where protests are sporadic. This could lead to zones around some premises but not others, failing to effectively achieve the policy aim of protecting access to (and provision of) abortion services across the country.
• It has only limited preventative impact - as evidence of anti-abortion activity would be required, it by default requires at least some level of harm to occur before such an application could be made and upheld.
• Furthermore, should protest groups change location in response to a limited number of zones being imposed, then the policy will have failed to achieve its aim of protecting access to abortion (and provision of) services across Scotland, regardless of location.

Like option 4A, option 4B would have the advantage of allowing for local decision making and flexibility for local providers and Health Boards.

In comparison to option 4A, option 4B comprises a less burdensome process for those seeking to create a zone around premises, which may encourage providers to notify. However, the similar concerns remain that protection might not be consistent across Scotland, and that organisations would only give notice that a safe access zone was needed once harm had occurred.

Costs

The estimated costs for option 4A and 4B are based on a series of assumptions as they both rely on operators applying or giving notice to Scottish Government before safe access zones can be established. It is acknowledged that costs for completing the application process may be incurred; however, as this would depend on variable factors from operator to operator, such as availability of evidence and time taken to gather it, these costs have not been included. It is not anticipated that there would be any meaningful costs required for the process of giving notice, as it would by design be light touch.

Costs therefore cover only those needed to operate zones. For the purposes of estimating these, we have assumed that the operators of all six sites which have been subject to anti-abortion activities in the last five years would request safe access zones. However, it is recognised that in reality, this number could be greater or fewer, depending on circumstances when the policy is implemented.

It is anticipated that associated costs will cover enforcement (Police Scotland, COPFS & Scottish Tribunal Services (SCTS)) and public awareness raising. The estimated annual costs are set out in the below table. The table sets out low, medium, and high costs which are extrapolated from the number of incidents reported to Police Scotland in 2022. No costs are anticipated for other bodies and organisations for implementation.

* Note, work is on-going to establish whether signage will be required. The figures in this table do not therefore account for signage costs. However, should it be required, the majority of costs will only be incurred in the first year with the possibility of small additional costs for signage as and when new premises providing abortion services come online. The current estimate for year 1 is £13,100. To avoid increasing barriers to Boards implementing safe access zones, it is assumed these costs would be borne by Scottish Government, who would also have an outlay of around £5,000 for awareness raising in the first year of implementation.

Option 5

Benefits

This option would use legislation to automatically create safe access zones around premises in Scotland which provide abortion services, without any requirement for Boards to apply or give notice that one is needed. It would therefore address many of the deficiencies identified in previous options.

In particular, it would create a consistent national approach that would secure preventative protection. Service users and providers can be certain that they will be protected from anti-abortion activity that could be captured by the offences created in the Bill no matter where they are in the country. This will accordingly provide the highest level of protection for providers and users from the harmful impacts of anti-abortion activity. This will secure access to essential healthcare and ensure that personal decisions about medical care are not subject to unwanted interference at the point where services are accessed. No further action would be required by Health Boards or local authorities to receive a minimum level of protection, thus ensuring creation of zones does not create additional burdens.

As a result, it best meets the policy aims.

Costs

It is estimated that the introductory costs to the Scottish Government for the implementation of this legislation will be a maximum of £5,000. This includes costs associated with the publication of maps and minor costs associated with awareness raising about the Bill.

As for option 4, it is anticipated that associated costs will cover enforcement (Police Scotland, COPFS & Scottish Tribunal Services (SCTS)) and public awareness raising. More detailed breakdowns of potential annual costs of the provisions of the Bill are set in the financial memorandum – a table has been provided below with a range of estimates of annual costs incurred from 2024-2025 onwards. As above, the table sets out low, medium, and high costs which are extrapolated from the number of incidents reported to Police Scotland in 2022.

No costs are anticipated for other bodies and organisations for the implementation of the Bill. In particular, in contrast to option 4A, no costs will fall on operators, who will not need to apply for safe access zones.

It is not possible to estimate annual costs to the Scottish Government from 2024 onwards, as the only anticipated costs are those associated with additional protected premises or amended zones requiring updating of the published list and maps in the event that a zone is added, removed, increased or decreased (expected to cost around £500 per change). Whilst the number of annual occurrences of this are not possible to determine, these costs are not expected to be significant.

* Note, work is on-going to establish whether signage will be required. The figures in this table do not therefore account for signage costs. However, should it be required, the majority of costs will only be incurred in the first year with the possibility of small additional costs for signage as and when new premises providing abortion services come online. The current maximum estimate for year 1 is £63,365