Item 4 is the Breastfeeding etc (Scotland) Bill. I ask members to turn to briefing papers HC/S2/04/13/2 to HC/S2/04/13/5, which have been circulated.
That is fine.
I was close.
I am not aware of any research. Only a minority of women are asked to leave or receive adverse comments, but those bad experiences impact greatly on their breastfeeding experience, their relationship with their children and other areas of their lives.
I work at the National Childbirth Trust office for the UK—I receive phone calls from women who have heard of the trust and who know that we are interested in breastfeeding. I deal with a slow but steady stream of concerned women who have been asked to leave premises. For example, they have been told that they cannot breastfeed in various restaurants and shops. Last week, women were told in a law court and in a job centre that they were not allowed to breastfeed.
I have been involved in setting up the breastfeeding welcome award in the Maryhill area of Glasgow. It was a pilot study that set out to achieve on a voluntary basis what the Breastfeeding etc (Scotland) Bill aims to do in a legally enforceable way. The management of various public places committed themselves to supporting breastfeeding women on their premises and to allowing breastfeeding to take place. Volunteers then went out to check the places. They went in the guise of ordinary customers visiting the premises, breastfed their children as appropriate and reported their findings. Even in public places where the management had committed themselves to supporting breastfeeding, four mothers experienced a bad time and were told by members of staff, "You can't breastfeed here," or, "If you want to do that you'll have to go off to the toilet." The breastfeeding welcome award has submitted that evidence to the committee.
Have things improved or got worse in recent years? When I was a child, it was quite common to see people breastfeeding babies but, when I had my own daughter, I was once asked to leave a well known up-market Edinburgh store because I was breastfeeding. At the same time, an assistant in the powder room was giving somebody a bowl of water for their dog. That was 24 years ago.
Things are not getting any better, which is disappointing. The statistics on breastfeeding have been pretty level since about the 1970s. In Scotland, the last national survey showed only a slight increase.
The statistics are affected by the gap in the encouragement of breastfeeding. For many years, up to the beginning of the previous century, breastfeeding was the way that babies were fed. Then, as infant feeding became more medicalised and as infant formula became more common, people lost the experience of seeing babies being breastfed. Several generations now have not had that experience. Mothers today face a public who are not used to seeing babies being breastfed and who do not realise that breastfed babies are not fed every four hours for 10 or 20 minutes. People have not grown up from childhood knowing that breastfed babies do not feed to a routine. The mother might be in the supermarket and then go down the road to the library and the baby might need to be fed in both places, but then not again for a few hours.
Several people on the committee know that from personal experience, so you are speaking to the converted.
Yes, it has been answered in part. You said that the current culture influences whether a woman chooses to breastfeed or not, and that that is a problem. Those who heard Lesley Riddoch's programme yesterday will be under no illusion. Entrenched attitudes exist, although when I breastfed last year, I was quite fortunate not to have any negative experiences. Would the witnesses like to add anything on the culture and its influence on breastfeeding?
If you walk into any newsagent or supermarket and look at the wrapping paper for gifts for new babies, or the cards for new babies, you will find that very few do not have an image of a baby's bottle. That is an indication of how much this society associates babies with bottles. Breastfeeding mothers are bombarded—by television and newspapers and other media—with images of bottle-feeding. In the supermarket, there are rows and rows of shelves of infant formula, often with reduced prices, which is not permitted under United Kingdom law.
We will come on to that. You have plenty of time.
You obviously accept that there is a need to legislate to enable people to breastfeed in public if they want to. However, I remember many people being dissuaded from breastfeeding by the hospitals. Because nurses were so busy, it was much easier to give the babies bottles. I wonder whether you are absolutely sure that there has been an improvement in the hospital side of things, with people being 100 per cent encouraged to breastfeed, and that the problem is totally with people accepting breastfeeding outside hospital.
There has been a huge improvement in the support for breastfeeding in hospitals. The way in which the Scottish Executive and the chief nurse have supported the baby-friendly initiative has been influential in improving the support and information that mothers get in the early days. However, I would not say that the problem has been solved. There probably needs to be a lot more training and debriefing of health professionals so that they can leave their own experiences behind.
Where do you see the best help coming from in the education process? I am thinking about primary care, which is very important in the first few weeks after a woman has had her baby, when she has finished dealing with the hospital nurses and has to deal with the health visitors. I know that some practices have, over the years, been running classes for first-time mums and single-parent mums, to give them encouragement. Do you think that that is still a good way of beginning to change the culture? Do you think that you would stand a better chance of doing so if primary care was behind you? Are there other ways forward that you can see?
Consistency of information is important. If the midwives in hospital are supportive but the general practitioners and the health visitors are not—or vice versa—parents get confused. Women say that they are always receiving contradictory information and conflicting advice, which is not helpful. That is why the multidisciplinary training is so important. Everybody receives the same information and has the opportunity to discuss it with their colleagues. They then present that good-quality, up-to-date, evidence-based information to the parents.
The infant feeding survey that was carried out in 2000 showed that half the women who breastfed in public stated that they would prefer to feed in private mother-and-baby facilities. Some lobbyists argue that, as opposed to focusing on breastfeeding in public, it would be preferable to encourage businesses to provide private facilities for breastfeeding mothers. How do you feel about that suggestion?
It is significant that half the mothers who were questioned said that they would prefer to breastfeed in private facilities. The research that has been done in that area seems to show an even split. Half the mothers would prefer a pleasant, private area in which to sit and breastfeed their babies; the other half of breastfeeding women would prefer just to be able to get on with it where they are—sitting in the cafe with their cup of tea or coffee, sitting in the library, perching on a chair in the supermarket, or wherever they feel comfortable doing it. Both groups of women need to be adequately provided for.
So you think that the main aspect of the bill is the provision of choice: it would give mothers a choice about where to feed rather than encourage businesses to provide private facilities. You say that it is more important that people have choice.
It is important that people have choice and therefore that private facilities are available for women who want them. It is equally important that women who are happier staying in a public area do not feel that they will be shunted off to a private room somewhere, even if it is a pleasant room. Nowadays, such rooms are often not pleasant—women are sent to the toilets to breastfeed.
The bill is important because it does not hide breastfeeding in the corner. If we are going to change attitudes, it is important that young people become more accustomed to seeing breastfeeding as a normal part of everyday life. Half of women may say that they prefer to breastfeed in a private place and, indeed, some babies may prefer to breastfeed in private because otherwise they look around and wonder what is going on. However, that figure might change if the bill becomes law. The measures in the bill are more important than a legislative requirement to provide breastfeeding facilities would be. Providing comfortable private facilities should be an optional extra or good practice, but the most important thing is to give women the right not to be asked to leave just because they are feeding their baby in the most natural way possible.
As the long title shows, the bill is not just about providing facilities or allowing breastfeeding in public places; it also aims to promote breastfeeding. In considering the bill, we tend to forget that it is two pronged in that sense, which is the point that you are making.
I am a former community pharmacist and in my chain of pharmacies we had waiting areas, which had chairs for the elderly and disabled, for example. However, not every small business can provide such facilities. I want to clear up the issue of the statutory provision of facilities. The provision of facilities is one thing in a shopping centre where there is a lot of space and the cost can be shared among the businesses, but it is another thing for most of the small businesses in Scotland. I do not think that small businesses are complaining, but I would be worried about a compulsion to provide choice. I do not read the bill as saying that choice must be provided, but will you clarify your organisation's view on that issue?
We must recognise that breastfeeding does not need equipment or space, other than where the mother is with her baby, nor does it need any input of money or building work to provide extra rooms. As I understand it, under the bill, a women who is walking round a supermarket and who has not asked for extra facilities would be able to breastfeed her baby, if she was comfortable, either at the side of one of the aisles or, as some women can do, as she continued shopping—I have done that myself. There does not need to be provision of material facilities, but a strong input is necessary to provide a pleasant and supportive attitude from staff, which will encourage the same attitude in people who are visiting the premises. If the staff are supportive of breastfeeding mothers, that will become the ethos of the business, whether it is large or small.
The bill is called the Breastfeeding etc (Scotland) Bill, but the definition of milk includes
Yes, because, as Rosemary Dodds mentioned, some mothers choose to express milk and give it to a baby in a bottle or a cup. Other mothers may breastfeed for part of the day and bottle feed for the rest. I would feel comfortable with a culture in which a mother can go out with her baby and feel supported in the way in which she mothers. As you said, convener, the bill includes provisions on the promotion of breastfeeding, which I strongly endorse, but if a mother gives her baby milk of any kind in a bottle, she should be able to do that in a public place.
I second that and add that it is important that we do not move from discriminating against one group to discriminating against another, which would be the danger if the bill did not cover other types of milk.
The definition of a child in the bill is
Absolutely not. The National Childbirth Trust feels strongly that it would set a dangerous precedent if the Parliament supported that provision. The World Health Organisation has stated that children should be breastfed up to two years and beyond—it was careful not to state an upper limit when breastfeeding should stop. Although it may not be common for us to see women breastfeeding babies of two and over at present, that does not mean that it does not happen. We know that many women who breastfeed older toddlers do so at home because they do not feel that it is acceptable when they are out. Again, that is hiding breastfeeding away. There is no scientific or medical reason to doubt the benefits of continuing to breastfeed. In fact, the anti-infective properties of breast milk increase as a baby gets older and takes less breast milk.
But we would have to define "child" in some way.
Why do we have to define "child" in some way?
Elsewhere in the law, there are definitions of what a child is and is not. If we are going to introduce a criminal offence of preventing or stopping a child being fed milk, there must be some definition of where childhood ends. If we take it to an extreme, a disturbance might be caused if—not to be too rude about it—a very old child was being breastfed in a public place. We surely must have some kind of definition.
I am not convinced of that. I am not a lawyer, but I have not seen another definition of a child as a person up to the age of two; when we talk of a child in terms of legal competency, ages of eight or 16 are given. It is highly unlikely that a child of school age will be breastfed in public, although I would not object to that.
What happens in other countries that have similar legislation? Do other European nations have age limits?
I am not aware of any upper age limits.
We have to remember that breastfeeding is a self-limiting experience. Adolescents have been mentioned, but I do not think that there are any breastfeeding adolescents.
I would not have thought so.
The length of a breastfeeding experience varies from one mother and baby to the next. Even within a family, a mother may breastfeed different children for different lengths of time, but at some point the mother and the child will end that part of the relationship of their own accord. I suggest that it would be enough for the bill to accept the definition as "a child who is still breastfeeding" and leave the limits of each breastfeeding relationship to the mother and her child—that is, her child, not her baby.
I know mothers who have breastfed children up to school age, but it is not necessarily the best thing for a four or five-year-old to be breastfed in front of his or her peers, because of the attitudes of other children or, possibly, other adults. Babies need to be fed and they need to be fed when they need to be fed. At that point, all the food that they have is milk, whether breast milk or bottle milk. By the time they get to the age of two or three, they can drink fruit juice and eat food, so I would not have thought that it was imperative for them to be able to be breastfed in any public place. No babies should be denied the right to be fed whenever they need to be fed wherever their mothers are, but the difference between a baby and a child of two, three, four or five is that the child can be fed food.
There is something important in what you say. Many children who are still breastfed at that age will not ask to be breastfed in front of their peers—that is partly the child's choice. When the child is old enough to reason with, many mothers will say, "Not now, but when we get home," or, "Not now, but a bit later," if the child asks for a breastfeed at an inconvenient time. However, it would be a retrograde step to close the door. I ask you to consider a situation in which a child—perhaps a four-year-old or an older child who is still breastfed—trips and falls while they are out in the park playing. Often, babies and children breastfeed for comfort and security as well as for nutrients. If there were an upper limit of two years, the mother would be outside the security and protection of the bill if an older child, having fallen and hurt themselves, turned to her for a breastfeed.
You are talking about something entirely different. The bill is about feeding children in public places, not about comforting them in public places. I am not saying that there should be an upper age limit in the bill, but I feel a bit uncomfortable about what we are trying to do.
The bill is called the Breastfeeding etc (Scotland) Bill. Everyone needs to recognise that breastfeeding is absolutely the best way of nourishing a baby, but breastfeeding goes beyond nutrition. It involves a relationship that encompasses feeding, as in giving nutrition, but it also involves a bonding relationship; it is a way of caring and a way of comforting. It is impossible to split one aspect of breastfeeding from another.
The problem is that the bill creates an open-ended criminal offence. It says:
Is there any difference between breastfeeding a baby and breastfeeding a young child? We are talking about a change of culture and the issue is to do with the extent of that change.
Given the fact that too few women breastfeed in Scotland because we have a culture that does not encourage breastfeeding, we have to accept the baseline that we are starting from and try to take as many people as possible with us. Although I respect the views that our witnesses have just aired, I suggest that that discussion will not help in changing the attitudes of the majority of those who remain to be persuaded about breastfeeding. We do not want the vision of an older child breastfeeding in public to be associated with the bill. The bill centres on the breastfeeding of babies and I suggest that focusing on breastfeeding older children probably undermines that cause.
You are right in saying that a big cultural change is necessary. However, the danger of setting an upper age limit of two is that you would perpetuate the idea that breastfeeding older babies is not acceptable. Including that age limit in the legislation would reinforce the idea that people should stop breastfeeding when their child reaches the age of two. Having no age limit in the bill would mean that, because people understand that breastfeeding is something that happens in the early years, their perception of the bill would be that it protects the right of women to breastfeed babies and young toddlers. If an age limit is included, there will be too much focus on issues relating to age. That is why I argue that there should be no age limit in the bill.
I think that we might have to accept the suggestion that there be no age limit in the bill. I doubt whether even doctors would know exactly the age of a baby simply by looking at it. Some babies are born looking like they have been in the world for nine months already. It might be better simply to leave out any reference to age and let things take their course. I accept everything that Kate Maclean and Shona Robison have said, but, given that we are talking about creating an offence, such practical difficulties are important.
While we have these witnesses before us, we have to deal with the impact that the bill would have if it were passed. Is the bill absolutely clear about which actions will be deemed to be offences? What do you think constitutes the prevention of someone breastfeeding in public?
I would say that preventing or stopping somebody feeding a child in public is a subjective notion. What will prevent or stop one woman might not hinder another woman. We are talking about not approaching a woman and saying, "You can't do that here," and not doing anything unpleasant or harmful to that woman and her baby. Some women have had unpleasant experiences. At the extreme end of the scale, I remember a case from a few years back when a shopkeeper poured a bucket of dirty water over a woman who was sitting breastfeeding her baby.
The physical intervention is already covered in law, because it will be some form of assault. What we want from you is your definition of "prevent or stop". Did that notion come from a simple agreement, when the bill was being written, about what constitutes an action to prevent breastfeeding? Are we talking about a sign on a shopfront that says, "Breastfeeding mothers not welcome"? Are we talking about someone challenging a woman—however discreetly and politely—or suggesting to her that there is a lovely baby-feeding facility and saying, "Would you care to do it there, please, as that's why we've provided it"? Would that be an offence? You have talked about choice and about whether mothers should go to a private place. Where should the line be drawn?
The line should be the point at which the mother is made to feel uncomfortable. There might be a choice of using a mother-and-baby room—a private facility where the mother could breastfeed her baby if she chose to do so. Perhaps people who work in public places could think about making mothers aware of such facilities by putting stickers on the door, rather than having a member of staff approach the mother. Mothers have said to me that, when somebody came up to them, while they were sitting and feeding their baby, to ask, "Do you know there's a mother-and-baby room?" they felt as though they were being told that they had to go there. I would say that that makes a woman feel that she cannot breastfeed in that public place. There should be indications of any available facilities for women who wish to feed in private. Stickers or signs would be perfectly adequate for that.
Before we move on, could I just correct you? The bill does not say "a mother". It says:
I apologise—you are quite right. That is an important aspect of the bill. It concerns not just mothers.
I agree with Leah Granat. I would not interpret the bill as covering asking a woman to move to a private place. I understand that one of the respondents to the consultation thought that asking a woman to move was an acceptable thing to do. However, it is not on to expect a woman with older children, perhaps with a buggy or a double buggy with twins, to fit into a broom cupboard, which is often all that is provided. A woman might be there for an hour by the time she has breastfed the baby and changed their nappy, especially if the baby is very new. I do not think that asking a woman to move under those circumstances constitutes a welcoming attitude towards breastfeeding, which I hoped the bill would support.
If you are starting to talk about nappy changing in the same context, I would make the point that a totally different set of circumstances apply. Perhaps you would like to revise what you just said.
No—I am talking about the whole episode of breastfeeding. If a woman is being asked to go into a private room with a very new baby, breastfeeding can sometimes take a long while. Entertaining older children at the same time is difficult for a woman if they are asked to breastfeed in a closed space with nothing else going on. That is what I was trying to explain.
Thank you both very much for your evidence. We will now move to the next set of witnesses.
If a criminal offence has been created, it is the duty of the police to enforce the law. If, under the bill, we received a complaint from a person who was in charge of a child whom they had been prevented from breastfeeding, we would have a duty to act. My best guess at how we would deal with such a complaint is that it would probably not be a priority. Given the range of calls that we receive, including emergency calls, although a call of that nature would be treated entirely seriously, it probably would not be a priority. We probably could not guarantee a quick response unless there was some aggravating factor such as assault or threats, which would probably take the matter into other areas of criminal law anyway.
You would not prosecute under the bill; you would prosecute under the common law.
In those circumstances—yes.
I endorse Deputy Chief Constable Mellor's comments. Police officers will attend to complaints under the bill from members of the public and, if appropriate, we will report to the procurator fiscal, although I think that the circumstances would have to be extreme before the procurator fiscal would deal with such a matter. Operational police officers try to conciliate at every opportunity and that is how we would start off.
We will develop that in other questions. I welcome Elaine Smith, whose member's bill it is, to the committee. If you want to ask questions, Elaine, please bid like every other member.
You said that you do not envisage many prosecutions taking place. Is not that the whole point of the bill? In your written evidence, you say:
I accept that if we are trying to change culture and attitudes, we need to consider a range of approaches, and I accept that the creation of a series of criminal offences has proved in the past to be effective in changing attitudes. The seat-belt law is a classic example: there were concerns about civil liberties before that legislation was enacted, but the overwhelming view now is that the law saves lives and is unequivocally a good thing. It is perfectly legitimate to create a criminal offence as part of a strategy to change attitudes.
Perhaps an analogy can be made with disability legislation—Elaine Smith has made that analogy. Although there might not be many prosecutions of people who fail to provide disabled access to their premises, it is important that the message has gone out that disabled access is a requirement. In the context of the bill, the standard that will be required from those who provide public places will be that breastfeeding mothers should be allowed to feed their babies in such places. Do you accept that comparison?
Yes—that is a perfectly satisfactory comparison and I accept fully the points that you make. My comments were made in response to the convener's question about the extent to which the police service would be likely to report offences to the procurator fiscal.
You said that it was likely that there would be a low level of police involvement and an even lower level of procurator fiscal involvement. Your written submission says:
There was divergence among my ACPOS colleagues' views. They supported unequivocally the bill's objectives, but some supported the creation of a criminal offence and others did not. An alternative to going down the criminal-law route might be to go down the licensing route—powers of enforcement can be attached to licences, but that is a potential way forward that has not been explored in the bill. On my reading of the bill, the approach seems to be either civil—that would require the person in charge of the child to initiate proceedings, which would be quite hard to have to do—or criminal. There might be a middle way, so the suggestion in our submission was intended to be a helpful contribution to the debate.
Will you clarify what percentage of your members supported that notion?
Every chief officer to whom I wrote supported the principle of the bill. Of the eight of us—there are eight forces in Scotland—I recall that two or three supported the proposal that there should be a specific offence in criminal law.
Were the rest supportive of taking the local authority route?
No. They advanced arguments against the use of criminal law. It was one of my correspondents who made that suggestion, which we thought merited inclusion in our evidence.
There are some good examples that are comparable with making prevention of breastfeeding in public a criminal offence in order to change our culture. We did not introduce fines for not wearing seat belts; I remember the strapline of that advertising campaign, which was "Clunk-click, every trip"—we need to raise awareness in such ways. Despite the fact that there were laws in place to prevent one person from assaulting another, we had to raise awareness of violence against women. In that way, we won public support and condemnation of such violence.
I do not disagree; it is true that there is no short cut to changing attitudes and the culture of a country. When I referred to the seat-belt law, I meant that it is possible to change attitudes. That was an example in which the creation of a specific offence was one of many measures that changed attitudes. The advertising campaign to which Duncan McNeil referred worked well—you can still remember its strapline—and is an example of advertising's being particularly useful. The domestic abuse example was also a good one; we have had a very lengthy campaign to change attitudes to domestic violence. We still have some way to go, despite the facts that we have a perfectly adequate legal system to tackle domestic violence and have had good publicity over a number of years. Creation of a criminal offence is only one aspect of changing attitudes and behaviour.
What would have to happen before you could get the majority of those eight very important chief police officers to give their support to creating a criminal offence?
The police enforce the law; if prevention of breastfeeding in public becomes an offence under criminal law, the police will have a responsibility to enforce it. We will do that diligently—that is one of the roles that we play in society.
With respect, we all appreciate that. We are asking whether the bill will be good law. Law is only proper and enforceable if it has the consent of the public. One does not want bad laws. I think that that is what Duncan McNeil is asking. Would such a law go with the grain of society?
My view is that it would be good law in that it would be symbolic, it would reinforce the aims of the bill and it would exist as a threat. Sometimes people need a threat so that they change their attitudes and behaviour. In support of the bill, I say simply—this echoes the financial memorandum—that I anticipate that prosecutions would be few in number.
I will pick up where I left off on the difficulties that will be faced by our members, especially at the front end. As I read it, the bill applies to any public place, which might mean a seat on the Royal Mile or in a public park. The definition is so wide that it causes us concern. Would it be a crime to watch a lady breastfeed?
I apologise for my absence—I had to speak to amendments at the Local Government and Transport Committee.
Yes. I declare a personal interest—my daughter is a National Childbirth Trust breastfeeding counsellor.
That should have been declared at the outset. Never mind—no charges will follow.
Thank you. My daughter was denied access to her local council offices to breastfeed my youngest granddaughter. Because she is an assertive and confident person, she thought that the best way in which to deal with the matter was to go to the local press. She did so and an article was published, which did the trick: the council changed its attitude. In fact, the council had facilities for breastfeeding, but the staff were not properly briefed about that, as is often the case.
Public education campaigns have been tried for many years, but there is still intolerance, even though the bill has been in the public domain for some time. I return to the point that Shona Robison made about the Disability Discrimination Act 1995. You say that you are concerned that the introduction of a statutory offence may be seen as punitive and may create a negative attitude to breastfeeding. Do you think that the Disability Discrimination Act 1995 has created a negative attitude to disabled people? How many charges have been brought as a result of that act? If the number is small, what is your view on that? I do not think that offences that were introduced by the DDA, especially under part 5 of the act, have created a negative attitude. The rationale of the legislation is deterrence—it is about disabled persons' rights in public places. Do you agree that the Breastfeeding (Scotland) Bill is about children's rights to feed in public places?
Is the question directed at me?
Yes. In your submission, you refer to negative conditioning. Has the DDA, especially part 5 of the act, resulted in negative conditioning?
No.
The Breastfeeding (Scotland) Bill is about protecting children's rights to feed in public places. Why might it create a negative attitude?
I suggested only that that was a possible adverse outcome. I have no evidence that the Disability Discrimination Act 1995 has resulted in negative conditioning. We raised the issue in our written evidence merely as a possible undesirable effect. After all, we might have to deal with certain conflict situations. As we obviously have no control over how the media would report such matters, any adverse reports could trivialise the issue and have a negative impact. That said, I do not think that the risk is a major one.
On the definitions that are used in the bill, the committee had quite a long discussion about the word "child", which is defined as
That issue also highlights a difficulty in enforcing the legislation. It has already been pointed out that all children look different at different stages of their lives. We would have to prove the child's age, which would mean our producing documentary evidence to the court. That in itself would not be difficult, as we have to do the same in other circumstances; however, it is another route that we would have to take. Age limits are extremely difficult and problematic. Indeed, when I walk into licensed premises, I find it difficult to tell who is under 18 and who is over 18.
Are you suggesting that there should be no upper age limit?
I am not suggesting anything one way or the other.
But we are seeking your guidance as police officers who will have to enforce the law.
Age limits can be difficult to enforce.
We know that, but it still does not help us with this issue. Should there be no age limit or is it better to put a figure on such things?
My view is that there should be no age limit.
Although I know that the issue provoked considerable debate earlier, I do not think that it poses a major problem. I presume that the phrase "two years" would mean two years and 364 days, which I would have thought would be enough time. I do not think that an age limit would make much difference to enforcement; after all, the major issue is the denying of the person in charge of the baby the opportunity to breastfeed. I would have thought that, in 99 per cent of cases, we would be talking about a mother and her baby.
Of course, a problem is that the bill does not say that. It simply mentions "person in charge". Perhaps we can discuss that later.
Right. I am glad that you clarified that.
David, do you have a question on specifics?
For a moment, I thought that we were about to discuss introducing identity cards for babies.
I expect the costs would be minimal. I accept your point that it would be possible for interested parties to make greater use of the legislation than we might have expected. However, I would not have thought that the amount of police resources involved would be a major issue.
Are the bill's definitions specific enough about the offence of preventing the person in charge from feeding milk to a child? Are more definitions needed and, if so, what would you like to be included in the bill?
The definition is important, but I do not have any particularly strong views on it. If there was behaviour that took the case into the criminal law arena, we would be clear about our responsibilities under the criminal law. Creating a criminal offence in the bill is catering for those cases that would not involve an offence under the current criminal law. It would be undesirable if there were no criminal offence and police officers were expected to make use of the criminal law by, for example, using breach of the peace as a mechanism for giving enforcement teeth to the bill. That would put police officers in an unfair position. In a number of areas, we are required to use breach of the peace a little too elastically at times. It would not be fair for that to be expected of us in these circumstances. I know that that was not your question.
Convener, I wonder whether you might suggest to our witnesses, on behalf of the committee, that they should feel free to send in further thinking on that. I get the impression that there is discomfort about what the final wording will be. Their organisations may wish to take legal advice about the definition. It is important that this committee especially gets good support and opinion, as the bill will go to one of the justice committees after we have finished with it. As has been stated already, the Parliament will need clarity on the definition.
David, there is no secondary committee for the bill. The justice committees will not consider the bill's enforcement—that will be for us.
Thank you for correcting me. I did not know that.
No. The setting of fine scales is not really the police's territory. I have no opinion to offer on that.
I have a small question that relates to what I am going to ask the Scottish Licensed Trade Association. In its written evidence, the association states:
You make a fair point. The licensed trade has perhaps expressed its point in rather too general terms. The holder of a liquor licence has a number of responsibilities under liquor licensing laws and other laws on discrimination, for example. Although I do not wish to criticise fellow consultees, that seems to be a rather broad statement.
If the bill became legislation, licensees would have some responsibility to ensure that it was adhered to.
I cannot recall what the legislation says about vicarious liability, but it contains some comments about that.
I have concerns about the evidential requirements of the bill. I take it that the evidence has to be corroborated, as is usual under criminal law. The bill may get tightened up at stages 2 and 3, but as it is drafted, do you see it posing problems for police in the gathering of evidence to present to the procurator fiscal?
Yes. I imagine that there would be some difficulties because, in many cases, we would be dealing with the matter after the event. In those circumstances, if we were preparing a report for the procurator fiscal, we would need to take statements from the persons who were involved. It might not be easy in all cases to gain the necessary corroboration under Scots law if we were investigating matters after the event. As I said, in such cases we would probably find ourselves looking to conciliate as a first step—if we were attending the scene—albeit that we would always be mindful of our requirement to enforce the law of the land.
Operational police officers would have a certain amount of difficulty obtaining the necessary evidence, even down to people's interpretation of "act", into which a certain amount of subjectivity enters. There could be difficulties, although they may not be insurmountable.
Thank you. That completes this part of the evidence session.
We have had very few complaints from our members, who represent about a quarter of the public houses in Scotland. It is not something that has come up in our many regular meetings. Licensees who cater for children have certain conditions to follow that have been attached by licensing boards and they try to cater as best as they can for children.
I appreciate that there are certain licence regulations for children: do those apply to a mother and baby?
Yes.
So the existing legislation already applies to them.
A licensee would have to have a children's certificate no matter what age the child is; it must be for the purpose of consuming a meal.
How would complaints from customers about a mother breastfeeding usually be dealt with in licensed premises?
The association has not had any complaints from individuals who have visited licensed premises. Our membership is individual licensees who operate their own businesses independent of the association. We are there to promote best practice and so on.
Have you been an owner of licensed premises?
No.
How would you envisage that the situation would be dealt with by one of your members? What do you envisage that they would do in such a situation?
A situation could arise in which a complaint is made against a member because they stop someone from breastfeeding on licensed premises. Very few premises cater for children, so the issue will not arise often. Overall, our members who cater for children would have to take the issue into consideration. The association would ask them to consider all the issues. That is all that I can say. It is not a situation that we have come across before in the licensed trade, so it is difficult to answer that question.
Okay. That is fair enough.
I will ask a supplementary question because I think that I have misunderstood. If I were a mother with a four-week-old child in a wee carrier and I wanted to have a half pint in the afternoon and not to buy any food, the existing legislation would not allow me into licensed premises with the baby. Is that correct?
That is correct.
Fine.
I have noted the comments in your submission. Did you canvass opinion from your members on your submission? If so, were the responses for or against the bill?
We have regular meetings of representatives who cover the whole of Scotland, so we had a good poll from which to gather opinion. Their experience of catering for somebody who wants to feed a child is that they are asked for privacy, if they have facilities for that. As I said, our members have not reported complaints about that. If members catered for children, they would make every effort to provide the facilities that were requested. As for facilities in public, most of our members were of the opinion that as mothers had asked for private facilities in the past, that is what they would cater for.
What does catering for requests mean? Your submission says that most of your members would accommodate people who sought private facilities in which to breastfeed. What does that mean? Part of the problem is that such facilities are often a broom cupboard, as has been said, or somewhere that is unsatisfactory and is not a suitable environment. How accommodating would your members be?
Obviously, our members must comply with the local conditions that licensing boards set on the facilities that they must provide to obtain a children's certificate. It is not a case of having a broom cupboard. Various amenities must be provided. Our members say that if they have the facilities for mothers to feed privately, they would be happy to accommodate mothers.
I take it that you mean something like a changing facility, which is often a toilet. Do you consider that satisfactory?
I cannot comment on whether a toilet is satisfactory. Personally, I have two daughters and I would not feed them in a toilet, but premises must provide more than just changing facilities. It is difficult to say what level the facility should be at. I cannot comment more. What premises provide would be up to individuals.
You said that in your members' experience, most women ask for somewhere private to breastfeed. I take it that we are talking about restaurants. In your members' experience, would a woman who is out with friends and family having a meal at a table want to leave that social situation to go away and hide to breastfeed? I ask that because that is not my experience of breastfeeding in such circumstances, or that of the people who speak to me. Some people would want to do what is described. The bill places no onus on premises to provide private facilities. I also wonder how children's certificates would be affected.
Most of our members are public houses and hotels. It is far easier for hoteliers to provide separate facilities, if they are requested. I described the comments and experiences of our members from all areas of Scotland.
Do you agree that the bill could benefit the licensed trade, as it would encourage more young families to frequent premises that hold children's certificates? I have seen a culture change. More families eat out nowadays. Many establishments now are not just straight square restaurants and would allow women to breastfeed at a table.
When children's certificates were created, we thought that they would encourage more premises to make provision. Edinburgh has 1,300 licensed premises and only 75 children's certificates, simply because of the conditions that were attached to the certificates, which put many licensees off providing catering facilities for children. The bill would create another condition that will not encourage licensees to cater for children.
Do you think so?
Yes.
Have licensees expressed an opinion?
They expressed it when children's certificates were first introduced: there was very little uptake of them.
That is interesting.
I think that you said that the bill would be compliant with existing licensing legislation concerning children. Am I correct?
Yes.
If only 75 licensed premises in Edinburgh have children's certificates, only 75 could comply with the bill, so what will we do about all the others?
That is the present situation under the current legislation, but you will be aware of the Nicholson report, which recommends that we should no longer have separate licences for certain types of operation, but one licence. We are concerned that, under that regime, more licensees will decide to opt out of providing facilities for children. That is coupled with other proposed changes.
But licensees could not opt out if the bill were to become law, could they?
Yes, they could, because they would not renew their children's certificates and children would not be allowed on the premises.
Thank you for clarifying that.
I think that you have probably heard my question. In your written submission, you say that licensees have to
The reason that I included that comment in the submission—I accept that it might be an open comment—is that a lot of people comment not only to the licensee, but to other customers in the premises. We are concerned that an individual in licensed premises could make a comment without the licensee knowing about it and concerned about what could happen to such customers. I stand to be corrected if I am wrong, but if customers made comments or tried to stop a woman from breastfeeding, would they be prosecuted?
I presume that it is up to the licensee to ensure that he is able to act lawfully and, if a customer is preventing that, to deal with that customer in the same way as he would deal with a customer who was trying to buy an under-age person a drink, selling drugs or breaking any other laws on his premises. To keep his licence, the licensee would not want any reports of problems with the law being upheld in his pub to be made to the licensing board.
I do not wish to digress, but in the Dundee case, the licensees were not permitted to allow smoking on the premises at any time, even if children were not allowed in the premises, for example, in the evening. Our members in the area considered that to be a totally ridiculous situation. The action that they took was simply to cease their children's certificates. There is a concern that if the bill is seen as another condition that is attached to licences, businesses may well take that action again.
There is a difference between smoking and breastfeeding.
Yes, but the surrounding issue is about children's certificates.
There is an issue about politicians wishing those in the licensed trade to get into the trenches to change Scottish culture. It would be a difficult message to communicate at that level if there is resistance. That is why we are discussing the proposed legislation. For instance, we would be replacing smoking areas with breastfeeding areas in pubs in Scotland. Do you think that that would confuse the message?
Yes, it certainly would.
I am sorry to labour the point, but I return to my earlier question. The long title states that the bill is
Yes.
So we would have to keep our eye on other legislation.
Yes.
My second point is about vicarious liability when somebody else is on the premises. In fairness, the bill makes it plain that the licensee would be liable only in certain circumstances, for example, if the person was an agent or employee. Obviously, a person cannot be liable for everybody who is on the premises.
We have no views on that.
Do you want more licensed premises to cater for families?
Yes, definitely. I said that in our written submission.
But you are concerned that an unintended consequence of all these changes could be a significant reduction in the number of licensed premises that cater for families.
Yes—that and other things that are going ahead at present.
What would be the way forward to try to overcome that, given the fact that there are health issues that have to be dealt with when children are on any premises? What do you suggest as a way forward?
As was stated by the previous witnesses, there needs to be a culture change. It took the licensed trade a great deal of time to change from what were probably classified as drinking dens to what we have now. We feel that that is a far better way to go.
There has been some emphasis in the press on licensed premises, although the bill covers all public areas, and public services are extremely important. The convener mentioned that the bill is to cover premises on which children are permitted—so, we are talking about premises with children's certificates. You said earlier that the bill would impose another condition. Are you saying that licensees are unlikely to apply for children's certificates because they might have to allow and tolerate breastfeeding mothers and their babies?
I am not saying that; I am saying that certain conditions already exist and that that would be seen as another requirement that licensees would have to comply with. It would be up to them to decide whether they wanted to continue to provide that facility.
I am a bit puzzled about what conditions licensees would need to comply with. What kind of red tape is there? Duncan McNeil has suggested the creation of breastfeeding areas. However, that would be counterproductive, as we are trying to change attitudes and make people see breastfeeding as the norm. Are you of the opinion that the bill would mean that you would have to provide special areas, which might be considered to represent a further cost to licensees?
No. I do not see it as requiring an area to be provided for that. However, on top of what licensees have to comply with at present, licensees may see this as an additional requirement that might put them off applying for children's certificates. We have experienced that in the past.
Would the same be said of bottle feeding, or is it just breastfeeding? The bill provides for both.
Yes. That could be an issue for some, but I cannot answer without consulting. I do not see that being an issue.
Elaine Smith was attending another committee when we heard in previous evidence that it is important that a choice is available to women. The people who support the bill believe that there should be special areas for those women who want them as well as the ability to breastfeed in general. I was just pursuing that point.
Thank you for that clarification.
Meeting suspended until 16:08 and thereafter continued in private until 17:03.
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