The decision to permit buffer zones outside abortion clinics to protect women from harassment is not down to local councils, a QC has ruled.
The Scottish Government previously said local authorities would be best placed to bring in measures to prevent anti-abortion campaigners gathering outside clinics.
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 existing law.
Pressure from pro-choice activists and politicians to protect women has been mounting over concerns anti-abortion campaigners are intimidating and threatening those who are seeking to terminate a pregnancy.
In Parliament last week, Scottish Green MSP Gillian Mackay called for a change in the law so women can end a pregnancy “without fear of harassment”.
She told MSPs a national approach is necessary, claiming that leaving it to local authorities would risk creating a “postcode lottery, whereby some women are able to access abortion services without fear of harassment, but others are not”.
Women’s health minister Maree Todd however said the Scottish Government does not consider that imposing blanket buffer zones around all abortion clinics “would be appropriate”.
She said local by-laws would be “the most appropriate way to tackle this issue”.
Glasgow City Council and the City of Edinburgh Council sought a written opinion of Moynihan on behalf of local authority lawyers’ association Solar on whether councils can permit buffer zones at NHS facilities.
In response, a report from Cosla, which oversees local authorities in Scotland, 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.”
The document also said a by-law would breach section 201(3) of the 1973 Act.
The report added: “Solar has shared the opinion with both Scottish Government and Police Scotland. To date, we understand Scottish Government lawyers are still to respond to this legal opinion provided by counsel.”
Back Off Scotland has an ongoing campaign to petition the Scottish Government to introduce the 150m protest-free zones around clinics that provide abortion services in Scotland.