THERE was a first-rate debate at Holyrood last week courtesy of Gillian Mackay, the Green MSP for Central Scotland.

The subject was buffer zones around abortion clinics. Although an issue guaranteed to stir strong feelings, the debate was measured and respectful, fierce and passionate without descending into the dim argy-bargy too frequently seen in the parliament.

Like most of the MSPs who spoke, Ms Mackay wants something down about the pro-life protests held outside clinics which can intimidate the women who go there for health care.

Some MSPs considered the gatherings to be ‘vigils’, but many see them as thinly-disguised efforts to upset and deter women seeking help.

Many contributors mentioned the need to preserve the protesters’ freedom of speech, but also wanted to limit it so that it did not interfere with the women going to the clinics.

“There is a difference between deciding abortion is not for you and rocking up to a clinic to harass and judge those who chose differently,” as the SNP’s Emma Roddick put it.

Ms Mackay’s preferred option, as advocated by the Back Off Scotland campaign, is for every abortion clinic in Scotland to be surrounded by a 150m protest-free buffer zone.

Those opposed to abortion could still gather and object, but not where they might harass others.

To that end, Ms Mackay now intends to bring forward a member’s Bill for consultation. Judging by the speeches in the chamber last Thursday, it will command wide cross-bench support. MSPs of every party spoke in favour.

But to become law it would be best to have Scottish Government backing - for the parliamentary arithmetic and also to help iron out drafting issues.

Yet despite many SNP and Green MSPs being in favour, the Government as an entity is against the plan.

The Government’s position was articulated by the women’s health minister Maree Todd, who stuck rigidly to the line that councils were best placed to deal with the issue.

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This is a hangover from the SNP’s Holyrood manifesto, which pledged to “support any local authority who wishes to use their powers to establish byelaws to create protest-free buffer zones outside clinics that provide abortion services”, wording repeated in the Programme for Government.

“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,” Ms Todd told MSPs.

“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.”

It didn’t go down well, with MSPs calling for a uniform system not a council-by-council “postcode lottery”.

But Ms Todd was emphatic.

“Although we believe that buffer zones can be justified in certain circumstances, the Scottish Government does not consider that imposing blanket buffer zones around all abortion clinics would be appropriate,” she said.

“The Scottish Government does not feel that a national ban is an option.”

The insistence on byelaws looks less reasonable, even sleekit, in light of a paper being discussed by the council umbrella group Cosla tomorrow.

This reveals council lawyers have been warning the Government for months that byelaws are a non-starter.

They even obtained an opinion from Gerry Moynihan QC over the summer and shared it with the Government before last week's debate.

The paper for tomorrow’s meeting says this opinion is “unequivocal and confirms that local authorities cannot use byelaws to implement buffer zones at NHS reproductive health facilities”.

A basic point is that councils can only make byelaws to prevent a public nuisance if there is a gap in the law. However here is an existing law that could apply to the clinic protests.

A 2004 Act gives police the power to disperse groups of two or more people involved in “anti-social behaviour” which could cause alarm or distress.

But this power is “contingent upon the level of misconduct” and so far the clinic protests have been “generally passive”, with no arrests or fines.

So the protests aren’t triggering the dispersal power, but because the power exists it is a bar to creating bye-laws.

You might think this strengthens the case for national buffer zones, but no.

Ms Todd also told MSPs the European Convention on Human Rights (ECHR) was a factor, and that the rights of peaceful protest and expression had to be considered as well as the rights of people to access healthcare. On this point, the QC’s opinion emphatically agrees.

The ECHR freedoms of speech and assembly can only be limited if there is “a certain level of abuse” to justify it, and only with “minimal” interference.

Blanket restrictions in other areas have been ruled “disproportionate and hence unlawful” in the past.

So an attempt to create buffer zones nationwide - even where there has been peaceful or no protest - won’t fly.

Anything that curbs the rights of protesters has to be “fact specific”, and based on the circumstances of each individual case, to prove it is truly “necessary in a democratic society”.

In June, the UK Supreme Court made clear even disruptive protests have to be tolerated when it quashed the convictions of campaigners who blocked the access road to an arms fair in 2017 by locking themselves together.

Although the group fully intended to obstruct others, their actions were protected by the ECHR rights on freedom of expression and assembly, with the sincerity of their beliefs and the demo being “targeted at the object of the protest” considered relevant.

That suggests the closer pro-life protesters get to clinics, the greater the protection they have under ECHR.

The council QC’s opinion suggested that 24-hour police dispersal orders for pro-life protests that got ugly might be a “proportionate alternative to an inflexible buffer zone”. But that’s unlikely to be acceptable politically.

To break the impasse, Cosla wants councils, Government and the police to get together and discuss what to do next, including “legislative options”.

Last week’s debate, although largely painted in black and white, remains an impressive moment for Holyrood.

But it is clear the legal situation is far greyer and knottier than at first glance.

Ms Todd also looks disingenuous, at best, for sticking to her ‘byelaws are better’ mantra. The only way through this thicket is new legislation. The Government cannot sit this one out.