Campaigners 'concerned' by Scottish buffer zones 'weakness'
Mackay has repeatedly insisted the legislation is in place 24 hours a day, with the law stating that if an offending act has a 'continuing effect', it 'does not matter' whether any patient is attempting to access services in the zone at the time.
But in an email between a police inspector in Glasgow and an MSP, the officer said legal advice from Police Scotland lawyers and the Crown Office concluded the legislation cannot be enforced when clinics are not operating.
READ MORE: More than 100 anti-abortion protesters target Glasgow hospital
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.
Lucy Grieve, who started the campaign group Back Off Scotland that pressed for the introduction of buffer zones for several years with co-founder Alice Murray, said she feels frustrated a 'point of weakness' has emerged in the law given they had been reassured throughout the passage of the legislation that it was 'the strongest bill in the land'.
'I think a lot of the groups that are protesting when the clinic is closed are just screaming into the void essentially, but I would say it's very frustrating when so many times we heard this bill was so robust, and that's why it was taking so long, that this has been left as a point of weakness,' she told The National.
(Image: NQ) 'I'd say it's a lesson for drafting stuff in the future. Certainly the Government and Gillian really reassured us it was going to be the strongest bill in the land so the fact this has been a slip-up is concerning and frustrating.'
Grieve (above, left) said given Back Off Scotland had heard a lot of testimony on staff coming across protesters after opening hours when they leave work, she hoped Police Scotland would take this into consideration.
Murray (above, right) added: 'I think the worry is they [protesters] see this as a loophole and this spirals into a bigger issue.'
READ MORE: Police decline to intervene as anti-abortion group ignores buffer zone
Murray also suggested that because the Scottish bill focuses on punishing people based on the impact their actions have on a patient or staff member rather than the specific behaviours of protesters, the law could be 'up for interpretation'.
She said: 'If you're seen to be doing behaviour that could intimidate or harass etc, and because it is written in that way, that does leave room for interpretation because if you're saying it's illegal to intimidate or harass, and a protester then says that's impossible when there's no one inside, then that is up for interpretation.'
Grieve said despite the concern, complaints to Back Off Scotland had dropped since the law came in and the law has been shown to be effective with it resulting an arrest earlier this year.
The law clearly states that a person in a safe access zone is committing an offence if they act with the intention of or are reckless as to whether the act has the effect of:
Influencing the decision of another person to access, provide or facilitate the provision of abortion services
Preventing or impeding another person from accessing, providing or facilitating the provision of abortion services
Causing harassment, alarm or distress to another person in connection with the other person's decision to access, provide or facilitate the provision of abortion services
It goes on to say that if the offending act has a 'continuing effect', it 'does not matter' whether any patient is attempting to access services in the zone at the time.
Mackay said earlier this week she would be seeking a meeting with Police Scotland and the Scottish Government on the issue following the 'surprising and disappointing' intervention from police.
The Green MSP said the Holyrood committee scrutinising the law 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.
The Scottish Government has said 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 spokesperson went on.
There are calls for a buffer zone at the Queen Elizabeth University Hospital to be extended beyond 200m after more than 100 protesters gathered just outside the zone earlier this month.
Mackay said: "Like most laws, buffer zones were designed to apply all day every day and should be enforced that way.
"The committee scrutinising the act took time to consider proposals that would have limited the operating hours of buffer zones but did not support them. These proposals were not moved or included in the legislation.
"I am very concerned by Police Scotland's comments on this and am even more concerned that their policy will serve as an invitation for more protesters to target health facilities.
"Abortion rights are human rights. I have written to Police Scotland to seek an urgent meeting to discuss the situation and their approach to enforcement."
The Scottish Government and Police Scotland have been contacted for further comment.
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