Abortion buffer zone legislation not enforceable when clinics closed, police say

Abortion buffer zones cannot be enforced when clinics are closed, police have said in an email seen by the PA news agency.

The legislation – which started as a member’s Bill proposed by Green MSP Gillian Mackay – enforced 200-metre exclusion zones around 30 sites in Scotland in an attempt to limit protests held outside of clinics.

But in an email between a police inspector in Glasgow and an MSP – passed to PA by a third party – the officer says legal advice from Police Scotland lawyers and the Crown Office concluded the legislation cannot be enforced when clinics are not operating.

The exchange was sparked after the MSP sought clarity about a protest held outside the Sandyford Clinic in Glasgow by the Scottish Family Party on April 12, which was closed due to it being a Saturday, telling police constituents had been “understandably distressed” by the protest.

Responding, the inspector referenced a similar incident in March at a clinic in Edinburgh, where advice had been sought and officers told the ban could not be enforced and the Crown would not prosecute if the facility was not open.

“The advice given from a Police Scotland Senior Solicitor (who also consulted with colleagues), and a Principal PF (procurator fiscal) Depute was that if the premises are closed then the threshold for a breach of the legislation was not met,” the email said.

“The PF also advised they would not prosecute any breach of legislation when the premises were closed.

“This is based on when the protected premises are closed and if there is no prospect of service users/ providers being influenced/alarmed and/or harassed/prevented from accessing services by any protesters’ action, then enforcement would have no lawful basis.

“I fully suspect that The Scottish Family Party has also taken legal advice themselves and been advised in a similar fashion to above, hence their choice to hold the event on a Saturday.”

Responding to the email, Ms Mackay said she would be seeking a meeting with Police Scotland and the Scottish Government on the issue.

“This is a very surprising and disappointing intervention from Police Scotland,” she said.

“The intention of my Act has always been for buffer zones to apply all day, every day, like most laws. This was made very clear during the passing of the Act.

“The committee scrutinising the Act discussed proposals that would have limited the operating hours of buffer zones but did not support them and they were not moved or included in the legislation.

“I will be writing to Police Scotland and will seek an urgent meeting with them and the Scottish Government to ensure that the law is being enforced and that there are consequences for people who breach it.

“Abortion rights are human rights, and both patients and staff should be able to access healthcare without having to pass protesters and banners.”

A spokeswoman for the Scottish Government said: “Safe access zones are designed to safeguard a woman’s right to access healthcare and to dignity and respect when they need it most.

“For any particular activity to be an offence, it must, for example, be capable of influencing someone’s decision to access or provide abortion services or impede someone’s access to such services.

“An act carried out which has an impact within the zone when a clinic is closed, but which could continue to have that impact once services are open, could give rise to an offence.

“However, this will always be a matter for enforcement agencies and will depend on all the facts and circumstances of the case.”

A spokeswoman for the Crown Office said: ““We have been working closely with Police Scotland to ensure the new legislation is applied appropriately to every unique incident. The approach to enforcement is a decision for Police Scotland.

“(The Crown Office) takes seriously, and carefully considers, all reported breaches of Safe Access Zone legislation to ensure that people accessing healthcare can do so free of harassment and intimidation.”