Row over outlawing of prayer outside Scots abortion clinics in new law

A memo over the practicalities of planned laws to create buffer zones around the clinics has confirmed all three 'religious' acts would be outlawed.

It takes a more hardline approach than that the UK Government where parallel guidance for England and Wales on safe access zones states that police should not target those they believe to have pro-life views, saying it may amount to "unlawful discrimination on the basis of religion".

The Bishops' Conference of Scotland (BCS), the forum in which the Roman Catholic Bishops in Scotland work together to undertake nationwide initiatives, has told Scots ministers that the criminalisation of prayer associated with the laws is "an affront to democratic values".

The Scottish Government deny that the prayer ban would affect people's human rights set down in law of freedom of expression, thought, conscience and religion.

A policy memorandum for the bill states that the Scottish Government "recognises" that the moves to provide safe access zones would impact on rights enshrined under the European Convention on Human Rights (ECHR) but insist there are exceptions where it is "proportionate in the achievement of a legitimate aim".

"It is the Scottish Government's view that protecting the rights and freedoms of others and protecting health represents such an aim, and that the measures taken to achieve it are proportionate," it says.

Last month campaigners called for the "unacceptable" act of silent prayer outside abortion clinics to be banned under Scottish legislation as warnings were issued about how the UK Government had dealt with the issue.

The bill is seeking to implement default 200m safe access zones around all premises that provide abortion services in Scotland. These would prohibit various forms of anti-abortion protest taking place within that area.

Supporters of the Abortion Services Safe Access Zones (Scotland) Bill have insisted that the legislation must prohibit silent prayer.

The Herald can reveal that the bill's policy memorandum explicitly states that ‘praying audibly’ and ‘silent vigils’ will be criminalised under the Bill along with "religious preaching".

The memo prepared by the Scottish Government on behalf of Scottish Green Party MSP Gillian Mackay who introduced the bill, states that the acts seen as part of religious worship would be considered as anti-abortion activity under the proposed law.

"The extraordinary and unprecedented move to criminalise peaceful prayer in parts of Scotland is completely unjust and an affront to democratic values, said the BCS.

It comes as UK ministers were accused of watering down guidance around new buffer zones outside abortion clinics in England and Wales, after it emerged campaigners could still be allowed to conduct silent prayers and approach women attending clinics to discuss the issue.

Draft guidance published by the Home Office caused alarm among people who campaigned for what are 150-metre safe zones, due to be introduced in the spring.

It states: "Motionless, unintrusive conduct should not, on its own, be treated as an offence. The mere presence of someone in a Safe Access Zone with no indication they are going to engage with anyone accessing, providing or facilitating abortion services should never attract police action."

Around 16,001 abortions take place in Scotland each year, the majority of which occur before nine weeks’ gestation.

They are regulated under the framework provided by the Abortion Act 1967.

The memo says that those who choose to terminate their pregnancies under that framework are accessing a healthcare service to which they are "legally entitled".

"The Bill does not seek to prohibit the exercise of certain rights, such as the right to express opposition to abortion, but instead limits the exercise of rights in certain places and in certain circumstances," it says. "The bill targets behaviour that impacts individuals’ choices to access abortion services (which are of course healthcare services), and only in the specific locations where those choices are acted upon."

But it argues that interference of Article 9 human rights covering freedom of thought, conscience and relgious can be permitted.

"An interference with Article 9 rights is permissible where the action is in pursuit of a legitimate aim and the degree of interference is proportionate to the effect on the achievement of that aim," it said. "The aim of the policy is the protection of the rights and freedoms of others and the protection of health and it is the Scottish Government’s view that the measures in the Bill can be justified as proportionate to those aims," says the memo.

The Scottish Government accepted that for many the behaviour does "not obviously appear to cause a level of harm that should result in a criminal offence".

But it said that set against consultation responses, testimonies received as well as available research into the impacts of anti-abortion activity carried ut in the vicinity of abortion services, it concluded that the bill "strikes the right balance in the activity it captures".

It would also be for enforcement agencies to "reach their own decisions on the behaviours that do and do not give rise to offences" .

The memo goes on: "The drafting is intended to ensure only that certain behaviours can be caught; the facts and circumstances of individual cases will be critical in reaching these decisions, and nothing in this document is intended to pre-empt those judgments."

The BCS has raised concerns about the memo and has told ministers: "The right to freedom of expression and freedom of assembly and association will be seriously impacted by the proposals, as it will criminalise people for expressing certain views and occupying certain spaces."

They say the "extraordinary step of criminalising prayer contrary to the right to freedom of thought, conscience and religion and will disproportionately affect people of faith".

"The extraordinary and unprecedented move to criminalise peaceful prayer in parts of Scotland is completely unjust and an affront to democratic values," the BCS said.

"Existing law is adequate to deal with any serious problems which arise at pro-life vigils, and it is significant that Police Scotland have not called for more powers."

The proposed law would also outlaw the "influencing of the decision of another person to access, provide or facilitate the provision of abortion services at the protected premises".

The BCS added: "We are also concerned about the proposal to include an offence of 'influencing'. We fear that a dangerous precedent will be set by criminalising an individual who tries to 'influence' another person to change their mind, an innocent and harmless practice that is commonplace throughout society.

Whilst legalised abortion has always provoked strong and often polarised debate, in recent years, there has been an increase in activity occurring directly outside premises at which abortions services are provided.

In the last five years, documented anti-abortion activity has occurred outside Queen Elizabeth University Hospital (QEUH), Aberdeen Maternity Hospital, Sandyford Clinic, Chalmers Clinic, Royal Infirmary of Edinburgh and Glasgow Royal Infirmary.

The memo points out that this activity has included "silent vigils, displays of images of foetuses, signs with language such as 'murderer', and displays of religious iconography".

During a parliamentary evidence session Alice Murray, a co-founder of campaign group Back Off Scotland, experienced having to walk past protesters engaging in silent prayer when she went to have an abortion in 2019 in Edinburgh.

She said while no one directly approached her, she felt “emotionally drained” by the experience and insisted legislation must prohibit silent prayer.

She told the committee: “Sometimes it’s silent, but sometimes they sing hymns and they also have signs.

“I know it was all the same [no matter what style of protest it was], and it was all the more traumatising to walk into a clinic and have people outside question your decision. It’s horrible and emotionally draining.

“We need to encompass a variety of actions. What one person’s idea of silent prayer is can look very different to the person on the other side who is accessing healthcare.”

MPs last year voted in an amendment to the Public Order Act to introduce buffer zones to stop women being harassed with leaflets, shown pictures of foetuses, or having to pass by vigils as they enter abortion clinics on England and Wales.

But the draft guidance has raised concerns that it still left room for some approaches to be made within the safe zones to women attending clinics and takes a less hardline approach to prayer.

It says: “The term ‘influence’ is not defined in the statute and therefore takes its ordinary dictionary meaning. The government would expect ‘influence’ to require more than mere mention of abortion or the provision of information. As such, informing, discussing, or offering help, does not necessarily amount to ‘influence’.

The guidance adds: “Prayer within a safe access zone should not automatically be seen as unlawful. Prayer has long received legal protection in the United Kingdom and these protections have not changed....

“Silent prayer, being the engagement of the mind and thought in prayer towards God, is protected as an absolute right under the Human Rights Act 1998 and should not, on its own, be considered to be an offence under any circumstances. However, where an individual is praying, but their conduct is also intrusive, this is likely to be an offence under [the amendment].

"It would not normally be in the public interest for police to take action unless they reasonably believe that the acts/behaviour in question would have a direct link to any person’s decision to access abortion services, or would obstruct or impede such access. Nor would it generally be in the public interest for officers to pursue criminal proceedings where there is no evidence that anyone was in fact influenced, obstructed, harassed, alarmed or distressed."

Women’s health minister Jenni Minto said: “It is completely unacceptable for women to face harassment, intimidation or unwanted influence when accessing essential healthcare services – and the same goes for healthcare staff doing their job.

“That is why we are working hard to support Gillian Mackay MSP with her Member’s Bill, which seeks to deliver national legislation on Safe Access Zones. I am pleased that this legislation is moving forward at pace.

“People must continue to have a right to protest and to free speech, and this bill will not change that. However, no one has the right to harass women, or to try to influence without consent their decision to access healthcare, or to impede that access in any way.

“The bill has been carefully drafted to capture only intentional or reckless behaviour that could achieve those goals, and only within the vicinity of a small number of premises providing abortion services.”