Councils can’t implement ‘buffer zone’ to protect women, legal experts rule

Council can’t use bye laws to implement “buffer zones” outside abortion clinics to protect women from harassment, legal experts have ruled.

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The Scottish Government previously said councils would be best placed to being in measures to prevent anti-abortion campaigners gathering outside clinics.

Edinburgh has pledged its support for a motion from campaigners Back Off Scotland to bring in 150m buffer zones, after women were targeted by by protesers outside the city’s Chalmers sexual health clinic.

Lucy Grieve co-founder and director of Back Off Scotland

But in a legal opinion released on Friday, QC Gerry Moynihan ruled councils using by-laws to create buffer zones – protest-free areas – would be a breach of human rights laws.

It follows growing pressure from politicians and pro-choice campaigners to protect women accessing services at clinics from intimidation.

Last week, Green MSP Gillian Mackay called for a change in the law so women can end a pregnancy “without fear of harassment”. Her proposals won cross party support.

She told MSPs a national approach is necessary, claiming that leaving it to councils would risk creating a “postcode lottery, whereby some women are able to access abortion services without fear of harassment, but others are not”.

But Women’s health minister Maree Todd refused to back the proposals saying the Scottish Government considers that imposing blanket buffer zones around all abortion clinics “would be disproportionate”.

She said local by-laws would be “the most appropriate way to tackle this issue” and the rights of protesters had to be balanced with those of women attending clinics.

Edinburgh and Glasgow both sought a written opinion on behalf of local authority lawyers’ association Solar on whether councils can permit buffer zones at NHS facilities.

In response, a report from Cosla, the umbrella body for Scottish councils, read: “The opinion that Solar obtained from counsel is unequivocal and confirms that local

authorities cannot use by-laws to implement buffer zones at NHS reproductive health facilities.”

It said this leaves Scottish and Local Government at an ‘impasse’.

Back Off Scotland has led the fight to petition the Scottish Government to introduce the 150m protest-free zones around clinics since it started as Back Off Chalmers by Edinburgh university students a year ago.

The group says that although the SNP made buffer zone commitments in a 2021 manifesto, Women’s Health Minister, Maree Todd MSP, has continually passed her responsibility on to local councils.

Back Off Scotland Co-Founder and Director, Lucy Grieve, said:

“Women’s Health Minister, Maree Todd MSP, has paid lip service to the buffer zone issue since her appointment earlier this year. It is very disingenuous.

“This new legal advice clearly shows that it is the responsibility of the Scottish Government to protect those accessing healthcare from intimidation and harassment.

“Any attempts to shy away from this new information makes the Scottish Government’s abdication of duty all the more shameful.”

Labour MSP Monica Lennon said the issue was being ‘kicked around like a political football’. In a tweet she said:

Abortion healthcare in Scotland is being kicked around like a political football. Nicola Sturgeon and Maree Todd are letting women down by failing to introduce national legislation

on abortion clinic buffer zones. Political will and action can solve this. Do your jobs.”

A Scottish Government spokesperson said: “We do not share Cosla’s view that by-laws cannot be used to establish buffer zones.

“We will discuss the issue further with them and the affected local authorities to explore every avenue that is available to us to ensure that women can access abortion services without feeling harassed or intimidated.”

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