A QC has rejected the SNP Government claim that councils can use their powers to create buffer zones around abortion clinics to protect women from harassment.
The legal opinion by Gerry Moynihan found that local authorities using byelaws to clamp down on pro-life protestors would be a breach of existing law.
Concern is rising that anti-abortion activists are intimidating pregnant women as they try to enter hospitals and clinics for a termination.
Green MSP Gillian Mackay recently announced plans for a bill which would create buffer zones at a national level.
But Women’s Health Minister Maree Todd responded by saying zones around all abortion clinics would not be appropriate.
She instead put the onus onto councils: "Our view is that byelaws are the most appropriate way to tackle the issue, when making of a byelaw can be justified in the specific circumstances of a particular case.
“That is because byelaws can be tailored to local circumstances. It is also the fastest way of dealing with such issues, because pursuing primary legislation takes time.”
Glasgow and Edinburgh councils, on behalf of local authority lawyers’ association SOLAR, sought an opinion by Moynihan on whether byelaws could be used to create buffer zones.
A summary document by council umbrella group COSLA states: “The Opinion that SOLAR obtained from Counsel is unequivocal and confirms that local authorities cannot use byelaws to implement buffer zones at NHS reproductive health facilities.”
It explained by claiming police powers on anti-social behaviour to issue dispersal orders meant that buffers are “outwith” the power of councils.
The council document also stated that a byelaw would breach the legislation from 1973.
The COSLA document added: “SOLAR has shared the Opinion with both Scottish Govt and Police Scotland. To date, we understand Scottish Govt lawyers are still to respond to this legal opinion provided by Counsel.”
Lucy Grieve, Co-Founder and Director of Back Off Scotland , which supports buffer zones, 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.”
Mackay said: “This helpful COSLA papers backs up the position set out to me by local authority colleagues that local councils don’t currently have the power to introduce buffer zones. This is why I plan to consult on and bring forward legislation to introduce these zones on a national basis.
“Nobody should face abuse or intimidation when accessing healthcare and by introducing a national scheme of 150 metre buffer zones around abortion clinics we can ensure that all those accessing such services are afforded the same protections.
“I am grateful to colleagues from all political parties who have indicated their support for my proposal and look forward to working collegiately to introduce this legislation as soon as practicable.”
Scottish Labour Deputy Leader Jackie Baillie said: “Women have the right to access abortion free from harassment and intimidation, and the SNP have a responsibility to make this a reality.
“This legal advice is another blow to their hands-off approach, which was already at risk of creating a postcode lottery.
“The SNP need to show some real leadership on this issue and find a workable way to deliver buffer zones across Scotland.”
A Scottish Government spokesperson said: “Our Programme for Government includes a commitment to support any local authority who wishes to use by-laws to establish buffer zones.
“We do not share CoSLA’s view that bye-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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