THERE are several legal issues surrounding the implementation of buffer zones outside of abortion clinics at local government level.
Scottish councils and the Scottish Government have been engaged in discussions for months over the possibility of bylaws to establish 150-meter protest-free zones around certain health care providers which have been targeted by anti-abortion protestors.
The Scottish Government say the solution lies with councils bringing in bylaws, while Cosla, the local authority umbrella body, say that this isn’t within their remit.
Following a mini-summit chaired by the First Minister last week featuring the most affected councils – Glasgow, Edinburgh and Aberdeen – the three city authorities agreed to investigate how feasible bringing in bylaws are.
What is a bylaw?
It is a piece of legislation which can be brought in at local level under powers granted to councils.
There are a number which already exist across various Scottish authorities which prevent drinking in public spaces.
Bylaws also have to be created “for the good rule and government” and to prevent or suppress “nuisances”, however the authority must provide evidence of this.
The laws cannot also be created if there are any other existing laws which could be used instead.
Councils have argued that as Police Scotland can issue dispersal orders to move protestors on under the Antisocial Behaviour etc. (Scotland) Act 2004 that “it is outwith the power of Local Authorities to use a bylaw to implement a buffer zone”.
Why haven’t police used these powers?
There are several reasons. First, Police Scotland “need to be impartial and apolitical on the matter of ‘Buffer Zones’”, a report put together by Cosla’s legal representatives says.
Anti-abortion protestors have also reportedly been “passive” which means officers do not have grounds to move them on.
SOLAR (Society of Local Authority Lawyers & Administrators in Scotland) also said that police need to “balance the right to protest with the impact of such a presence on individuals”.
It added: “The police recognise that there may have been some underreporting by women accessing reproductive clinics. Nonetheless, evidence would be needed to cover off the proportionality concerns.”
What are local governments saying about the possibility of bylaws?
Only three city authorities are investigating the feasibility of the local laws – Edinburgh, Glasgow and Aberdeen. The rest of the councils either ruled out establishing bylaws or said they did not have abortion clinics within their boundaries.
In a committee report, Aberdeen councillors were warned that implementing a buffer zone bylaw could lead to a costly legal challenge.
Councillors estimated the two advertisements required to be placed in the local press as notice of the legislation would cost £1000, adding that a “source of funding would need to be identified”.
And if the council had to instruct an advocate or QC to defend itself if the bylaw was challenged – they could be facing a six-figure sum.
Local authorities also must consider European Human Rights legislation including Article 11 which protects the right to freedom of assembly and association SOLAR sought a written opinion from Gerry Moynihan QC on the matter. The local authority legal departments said Moynihan’s findings were “unequivocal” and confirmed councils cannot bring in buffer zones.
A SOLAR report stated: “It also went further stating that where powers exist to deal with a matter then Local Authorities cannot implement bylaws. The police have powers in this area including the use of group dispersal orders.”
What about the Scottish Government?
First Minister Nicola Sturgeon has chair two summits on the issue with local authorities and campaigners to try and find a solution.
Currently, Scottish Greens MSP Gillian Mackay is progressing a member’s bill through the Scottish Parliament which could allow for buffer zones to be implement through national legislation. Mackay’s consultation on the bill received over 12,000 responses.
However, similar legislation around buffer zones which was passed by Northern Ireland’s devolved government is currently being scrutinised by the Supreme Court to establish whether the law is within Stormont’s powers.
Ministers and councils have previously said that they are awaiting the decision of the UK’s highest court before pushing forward with legislation in Scotland.
After the “mini-summit” on August 29, a Scottish Government spokesperson said: “The Scottish Government and Local Authorities are in agreement that action is needed, as quickly as is practicable, to prevent the harassment and intimidation of women trying to access abortion services.
“We have been clear that we remain committed to national level legislation on this issue, but we know that this will take time. There are complex legal issues to resolve, but by-laws have not been ruled out and are very much an option on the table.”
