Finance Committee,

Meeting date: Tuesday, May 11, 2004

Official Report 250KB pdf

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Emergency Workers (Scotland) Bill: Financial Memorandum

Item 4 on the agenda is consideration of the financial memorandum to the Emergency Workers (Scotland) Bill, which was introduced on 22 March 2004 by Andy Kerr. We have with us officials from the Scottish Executive: Richard Scott is head of the criminal justice division and Gery McLaughlin is the bill team leader. Welcome, gentlemen.

Members will have a copy of the bill, the policy memorandum and the explanatory notes. We also have copies of correspondence from the Scottish Court Service and the Crown Office and Procurator Fiscal Service. I ask the witnesses whether they want to make a brief opening statement or to go straight to questions.

We are quite happy to move straight to questions.

Our job is to consider the financial implications and costs—to the Executive, in particular—of any piece of legislation. I notice that, in paragraph 22 in the financial memorandum, you state:

"It is not anticipated that there will be any significant additional on-going costs".

You later argue that it is

"anticipated that savings arising from the deterrent effect of the legislation is likely to outweigh the costs of any additional prosecutions for the new offences",

but you do not give us an estimate of the bill's costs. Can you do that now?

We cannot really give you any detailed costs. As the memorandum makes clear, to a large extent the bill replicates the existing law—in the case of assaults on any workers, the common law or, in the case of assaults on emergency workers such as the police and fire personnel, the provisions of statutory law. Therefore, we do not envisage—nor does the Crown Office, as the committee will have seen from its submission—any significant increase in the number of prosecutions as a result of the bill.

The bill's main thrust is to highlight the fact that attacks on emergency workers are unacceptable; it is hoped that the bill will have a deterrent effect. It is difficult to project precisely what that deterrent effect might be. However, we hope that the bill will deter people from attacking emergency workers, which will mean fewer court cases, fewer people sent to prison, savings on manpower and loss of days' work, savings on damaged equipment and, generally, a more effective response to emergency situations. You will appreciate that it is difficult to put costs on that.

I appreciate that it is not easy. However, although we all wish those benefits to arise, they seem to be speculative. Indeed, paragraph 16 of the policy memorandum seems to acknowledge that by saying that such things "might" happen.

I have a specific question to which I do not know the answer, although I am sure that you do. At present, assaulting an emergency worker is not a statutory offence, although it will be if the bill is passed. Looking at the matter from the point of view of someone who used to undertake defence work, I think that, as with any statutory offence, lawyers will seek to pick holes in the bill to find technical defences. I am thinking in particular about subsections (4) and (5) of section 1 and section 2(6). The state needs to prove that there has been an emergency. All sorts of technical arguments could be advanced to show that an ambulanceman may not be attending an emergency because the person may not be likely to suffer serious injury.

Given that there is always the danger of technical defences, whatever they may be, is it not likely that procurators fiscal will often hedge their bets by pursuing both the common-law offence and the statutory offence in respect of one accused? Is that likely to happen? If it does, will it not mean a duplication of effort and more work required of the police in providing separate precognitions and reports in relation to each offence? Will there not be a doubling of the paperwork and bureaucracy connected with such cases? Have you thought through whether that practice is likely to develop to ensure that a fiscal does not end up with egg on his face because of some unanticipated technical defence to the new statutory offence?

Yes, we have considered that issue. We have had detailed discussions with the Crown Office on the framing of the offences in the bill. The Crown Office would be better placed than I am to answer detailed questions on that. The bill provides that an emergency situation is one in which

"a reasonable person would have grounds for believing that the emergency worker is or might be responding to emergency circumstances."

We feel that the matter is fairly clear cut in most cases. However, you are right that there will, inevitably, be borderline cases. In each individual case, it will be for the PF to decide whether to prosecute under the bill—the act, as it will then be—or under the common law. It is important to retain that flexibility to ensure that no assaults slip through any kind of legal net.

Under section 2(6), would there not be a requirement for an additional witness at each trial in which the statutory offence was pursued? Somebody would have to be able to certify that the person was an emergency worker.

A person would not necessarily be required. For example, all that might be required would be a copy of the note from the medical register saying that the person was a doctor. It need not be someone testifying in person; it could be written evidence that the person was a doctor, police officer or fire officer.

Fair enough. That is a minor point. A more substantive point is that the whole basis of the bill is that it will have a deterrent effect, which will produce welcome savings—although a reduction in the number of people being assaulted would be the most welcome outcome. Do you have any comparative data from any other jurisdiction to show that the creation of a specific statutory offence of assault of an emergency worker will have a deterrent effect?

No, we do not.

So that is purely a theory that you have come up with.

You are straying into policy areas rather than financial areas, Fergus.

I thought that, if we could point to such a provision being adopted in another country, we would be on more robust ground to consider the thesis that there will be savings because the deterrent effect will arise merely from the fact that legislation has been passed.

In paragraph 4 of the policy memorandum, you state that there may be

"a public awareness campaign, measures to improve training of managers and staff and increased education of children and young people".

Are not all those items—especially the public awareness campaign—that will have cost implications? If so, why are those costs not estimated in the financial memorandum?

Ministers are of a mind to put together a wider package of measures separate from the bill although, to an extent, they will be complementary to it. They are currently in discussions with the Scottish Trades Union Congress, various trade unions and employer organisations about putting together that package. As the policy memorandum suggests, the package may well comprise advertising, publicity and an awareness-raising campaign. Other elements within it—particularly educational elements—will be directed at young people. However, none of those measures has been costed in detail, nor have any financial resources been allocated to them, as ministers have not yet decided what the package will contain.

I appreciate that you cannot deliver policy statements for ministers; I would not ask you to do that. However, we are being asked to look at the bill on the basis that it will have a deterrent effect. Will that be the case if there is not some sort of promotion of awareness? Should we not, therefore, have an allocation for the cost of any public awareness campaign that may be designed to promote the bill? I think that we should know the cost, as the measures in the policy memorandum might be expensive to implement. Moreover, there is a basic question to be answered if we are going to spend money and are being asked to hand over a chequebook, if not sign a blank cheque. There is now considerable doubt whether public awareness campaigns—whether directed towards health or towards stopping criminal behaviour—actually work. Can you point us to any data that show that a public awareness campaign would work?

No, I do not have such data with me today. I do not have command of that. As I have tried to make clear, we do not envisage that the bill will create any particular cost. When ministers have decided exactly what measures they want to include in the wider package, they will be more than happy to discuss with the committee what the costs and the cost-effectiveness of the package are likely to be.

Thank you very much. I have a few more questions, but I do not want to hog the floor.

A technical issue has arisen in the context not just of this bill, but of other bills. It is a moot point whether we can confine the costs of a bill purely to the costs of implementing the detailed items in that bill. If this bill is part of a package of measures, it would help the committee if we had some indication of the parameters of that package. However, we should perhaps take up that issue more generally than just in the context of this bill.

Have any new offences been introduced in Scotland, since the establishment of the Parliament, on which data have been captured showing a deterrent effect?

I am sorry, but I am not quite sure what you mean.

Have any new criminal offences been established in law in Scotland, since the establishment of the Parliament, on which the Executive has captured data to determine whether the relevant legislation has had a deterrent effect?

Not that I am aware of, but I am not responsible for the entire parliamentary legislative programme. I could make inquiries about that, but I am not aware of any such offences.

My point leads directly from Fergus Ewing's question. Paragraph 24 in the financial memorandum states:

"It is however anticipated that savings arising from the deterrent effect of the legislation is likely to outweigh the costs of any additional prosecutions for the new offences created by the Bill's provisions."

There must be a reason why you put that in writing.

Given the provisions in the bill, we—and indeed the Crown Office—do not expect there to be many additional prosecutions, so the cost of prosecuting offences should not rise significantly, if at all.

You said that savings are anticipated.

For the reasons that I gave to Mr Ewing, we think that the deterrent effect of the bill may lead to savings. I accept that that is purely speculative. However, if there are savings, we think that they will outweigh the small costs—if there are any—of additional prosecutions.

Is it acceptable to speculate in a financial memorandum on proposed legislation?

We were trying to be as helpful as possible and to explain our thinking, in particular in the absence of any firm, detailed costs, which we are unable to provide.

Paragraph 25 in the financial memorandum says:

"The Scottish Executive believe that the introduction of the new offence will not result in any significant change in sentencing pattern".

Tougher penalties would not therefore be imposed in those cases. Moreover, as you have no evidence that the measures would have a deterrent effect, you cannot prove that public confidence will increase. On what exactly will you spend the money for a public awareness campaign?

If ministers take forward such a campaign, I understand that the money will be spent on getting across the overarching message that attacks on public service workers in general—including bus drivers, train drivers and social workers—are totally unacceptable. The point of the package is to consider not just emergency workers, but all workers who provide a public service. The campaign will try to change attitudes.

We do not need a bill to do that.

The bill focuses specifically on emergency workers in emergency situations. Ministers made a conscious decision to limit the provisions of the bill to those workers.

You have already said that there are no data that show that the bill would have a deterrent effect, so it is pure speculation to suggest that that will be the case. Your financial memorandum says that you do not expect sentencing patterns to change. You also recognise that people such as my dad, who is an ambulance technician—I suppose that I should have declared an interest—are already protected under existing legislation. The bill will have a cost in legislative and civil service time and a public awareness campaign will have a cost. The bill will generate a lot of additional costs, when the heart of the matter might be dealt with through a public awareness campaign to make it clear that it is absolutely unacceptable to assault or impede an emergency worker.

Ministers' intentions are that the bill—and indeed the wider package, to the extent that it is taken forward—will achieve a reduction in attacks on emergency workers and on public service workers in general. Over time, that reduction in attacks will reduce costs in the justice system and more widely.

You said that currently you do not capture the number of offences that are committed against emergency workers. I assume that those data are available in the sheriff courts. An incident in which such an attack clearly took place was dealt with in my local sheriff court two weeks ago and received quite a high profile in the local papers, so that incident was publicly reported. I do not understand why you do not have the data.

Statistics detailing the victims of assault or other crimes are not kept centrally. Records are kept by individual courts, but research would have to be undertaken into those records to gather a sample and that has not been done. One of the advantages that will flow from the bill, if the Parliament decides to enact it, is that specific offences will be recorded and statistics on attacks on emergency workers will be kept.

We are considering the financial aspects of the bill. Would it not have been better to do the research before bringing the bill to the committee? You would then have had better data so that, instead of speculating, you could have answered our questions.

Research on the number of attacks would answer your specific question, but I am not sure whether it would necessarily help in predicting the effectiveness of the legislation as a deterrent.

Can you name an offence that is not covered by Scottish law and is not on the statute book but that an offender could be charged with under the bill? Give me one offence that could be committed that is not already covered.

I could ask Gery McLaughlin to go into the question in more detail, but it is possible that giving a fireman false information or refusing to give him information—for example, about where the keys to a building are kept—might not be prosecutable under the common law. The bill makes it certain that such non-physical obstruction or hindrance of emergency workers will be an offence. That area is not clear at the moment.

So we are going through all this—I hesitate to call it a charade—paraphernalia to ensure that someone will tell someone where the keys are. Come on. It seems a terrible waste of time, money and everything else, unless we are achieving positive objectives.

No. You asked me specifically what the bill does that the common law does not do.

And that is the only thing?

Ministers have stressed that the bill will have a wider deterrent effect by making it clear in statute that attacks on emergency workers are unacceptable.

We are in danger of getting into the business of the subject committee.

I am keen to build on the points that Jeremy Purvis and John Swinburne have made. It strikes me that it would not be too onerous a task to survey and analyse the current cost of impeding or assaulting emergency workers—for example, the police, fire service personnel, hospital staff, general practitioners and people who work in surgeries—and thereby to set a target for savings. On the cost implications, it is clear to me that the money that is going out is negligible, non-existent or maybe even negative. You should identify the possible savings and have a mechanism by which you could revisit the penalties if the savings were not achieved. That would substantially bolster the bill. Do you have any thoughts on that?

We can certainly examine particular cases. The consultation paper that went out last year cites a number of instances in which emergency workers were attacked. I am sure that we could revisit some of those cases and work out the costs that were incurred, both in the justice system and more widely as a result of people being off work, equipment being vandalised and so on. We could try to project that forward to see what savings are achievable. However, I return to the point that the extent to which the bill will have a deterrent effect is speculative and that it is therefore difficult to set targets for savings. At one extreme, if the bill was super-effective, there would be no more attacks on emergency workers.

That is a worthy objective. However, if the bill has to justify itself as an additional piece of legislation over and above what exists at the moment in order to earn its keep, it will have to prove that it is driving down compensation payments, lost days at work, insurance premiums and so forth. It strikes me that some speculation on that could be entirely useful and that you would be better off with that fig leaf than you are without it.

Certainly, if the bill is enacted, monitoring will be put in place to see what kind of savings are being achieved in relation to the number of prosecutions, for example. Short of working through statistics on a case-by-case basis, it is difficult to give global figures in this kind of area. Each attack, although it is one incident—and one serious incident at that—will have different cost implications from other attacks.

I accept that point in the context that it is made from your point of view at the hub. If, however, you were to go to the end of individual spokes—into the office of a chief constable or the chief executive of a hospital trust, for example—you would find that people would be stepping up to tell you about the impact on their budgets and you might secure some co-operation that would add passion to the implementation of the bill.

Paragraph 5 of the policy memorandum states:

"This Bill provides specific protection for emergency workers similar to that provided for police officers in the Police (Scotland) Act 1967."

I imagine that you have some idea whether the Police (Scotland) Act 1967—given that it was enacted 37 years ago—has helped to prevent attacks on police officers. Indeed, you should have some idea whether it has provided a deterrent effect and whether savings have been made.

I do not think that we have firm information on that.

Surely there must be some reason for the Executive thinking that the Police (Scotland) Act 1967 was an appropriate template for the bill.

The reason for that was to extend the protection that is currently given to the police—and, to some extent, to fire personnel under the Fire Services Act 1947—to other emergency workers. The legal view was that, instead of tearing up the relevant provisions of the Police (Scotland) Act 1967, a bill based on that model should be introduced.

I do not want to get into a discussion on the policy issues, although I am surprised that people could be opposed to the extension of extra protection to emergency workers, which is an extremely laudable aim. I will return to the financial side and the question whether costs or savings could result from the bill. Given that similar legislation has been in place for 37 years, I would have thought that the Executive would have some idea whether a cost could be attached to the bill over the piece.

I do not have the answer to that question, which members might like to put to the Association of Chief Police Officers in Scotland—I think that ACPOS is to give evidence to the committee. Ministers feel that the provisions in the Police (Scotland) Act 1967 have been successful, although, as I said, I do not have any cost details of how successful they have been.

We are not having ACPOS in to give evidence. It is difficult to measure the deterrent effect of the Police (Scotland) Act 1967, but it should be possible to measure the number of prosecutions under the act in relation to such offences.

Yes. You could certainly find that information.

I presume that the Crown Office and Procurator Fiscal Service will have some idea whether, under the bill, it will be able to pursue cases involving attacks on emergency workers other than the police that it was unable to pursue under existing legal procedures. That would give a quantifiable estimate of the additional prosecutions that might be brought as a result of the bill.

As is suggested in the financial memorandum, the Crown Office believes that it is unlikely that the bill will result in many more prosecutions. Most offences can be pursued under existing legislation—apart, that is, from the fairly narrow point about non-physical obstruction that I mentioned in response to a question from Mr Swinburne.

I have one other question, which is probably not on a financial issue but on a policy issue. I seek clarification on the penalties that are mentioned in the bill—I think that the upper limit is nine months' imprisonment. I presume that, if the assault was a serious one, the offence would not be prosecuted under the bill and that another piece of legislation would apply.

A case involving a serious assault would probably be pursued under common law on indictment.

In the mid-1980s I was in a mountain rescue team and in order to get a first aid certificate we went along one night to Glasgow royal infirmary to assist and observe. What we observed was that most of the customers were out of their minds on drink. I remember one unfortunate chap who had managed to embed a broken pint glass in his bahookie, as they would say in Glasgow. His state of intoxication was so advanced that not only was he unaware of the glass, but he did not know where he was.

I mention that because it illustrates a problem for a public awareness campaign—the sorts of people whose behaviour we wish to have an impact on are the people who are least likely to pay attention to a public awareness campaign and whose behaviour will not be affected. Do you accept that that is a basic flaw in a piece of legislation, whether or not it is accompanied by a public awareness campaign?

No, I do not accept that. One important provision in the bill that we have not discussed so far is section 3, which deals with assaults on emergency workers in accident and emergency departments. In many instances, the kind of case that you describe would end up in an accident and emergency department. Often, the patient would be accompanied by his friends, who would probably be equally intoxicated. Those are the people who often cause the problem, because they are worried about what is happening to their injured companion and so start assaulting nurses. Ministers believe that section 3 will send out a clear message that attacks in accident and emergency departments are not acceptable.

I understand the point—you have simply reasserted the thesis—but the friends are likely to be as non-responsive to appeals to their good nature as their injured pal is. That is the flaw in the bill.

I have one final point. Dr Elaine Murray said that nobody could be against providing extra protection to public service workers. Everybody would agree with that but, with respect, I argue that the bill will not provide extra physical protection; it will simply create a new statutory offence in the hope that it might impact on behaviour. Some might say that to provide extra protection one could use the money that the bill may cost to put another policeman in a busy accident and emergency department on Friday and Saturday nights. That would have an identifiable cost, but it might be more effective in providing real protection than the proposals in the bill.

That is a policy question rather than a finance issue and ultimately it will need to be resolved by the lead committee on the bill. We have exhausted the questions on the financial memorandum. We will make our report to the lead committee, which I presume will be one of the justice committees. I thank our witnesses for coming along and giving evidence.