Public Petitions Committee

Meeting date: Tuesday, October 30, 2012

Official Report 474KB pdf

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Current Petition

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Mosquito Devices (PE1367)

The next item of business is oral evidence on PE1367, on banning Mosquito devices. Members have note by the clerk—paper 1. I welcome our witnesses, Roseanna Cunningham, who is the Minister for Community Safety and Legal Affairs, and John Brownlie, who is a policy manager at the Scottish Government’s community safety unit.

I invite the minister to make a short opening statement; my colleagues and I will follow it with questions. We are very grateful to you for giving up your time to address the committee today.

I thank you for the invitation, convener.

I commend the committee for its significant work in drawing out views on the issue. The committee has been dealing with the petition for more than two years, although I appreciate that personnel have probably changed during that period.

I am impressed by the way in which the petitioner has expressed his argument; he has been constructive and intelligent. The petition is called “Ban Mosquito devices now”. In the circumstances it might be useful for me to give, on the record, a little explanation of what is involved in the legislative process, including what could be required to regulate or ban the use of the device.

As members know, legislation is not a quick and easy option for addressing any problem, and should be used only as a last resort. Any decision to legislate should follow the principles of better regulation and should be a proportionate response to the extent of any perceived problem. We should also always look to see whether the same outcome could be achieved through means other than legislation.

There needs to be policy justification, based on good evidence, which would be scrutinised during Parliamentary processes. That justification might also need to stand up to scrutiny from the courts and others, should any challenge be made. In short, the evidence as to the extent of the problem helps us to judge whether or not a particular course of action might be appropriate.

Fergus Ewing was clear when he appeared before the committee in March 2011 that the Scottish Government does not support, and has never supported, use of the devices. Our 2009 framework for tackling antisocial behaviour—“Promoting Positive Outcomes: Working Together to Prevent Antisocial Behaviour in Scotland”—recognised that prevention and early and effective intervention and diversion should be at the heart of dealing with the problem. That is not just the Scottish Government's approach; it is shared by all those who have a role to play in tackling antisocial behaviour. It is supported by local authorities, police, YouthLink Scotland, Action for Children Scotland and others. The approach is supported by those who are tasked with tackling antisocial behaviour.

Following the committee’s considerable efforts, it is clear that there are a number of very strong opinions. I suggest, however, that there remains little indication that there is a widespread problem with use of the device, nor is there evidence of the device being used inappropriately. Such things would, I suggest, be crucial for concrete proposals to be formulated. Irrespective of how any ban was to be implemented, evidence as to the extent of its use would be necessary to satisfy Parliament, and perhaps the courts and others, that action of that nature was appropriate, proportionate and targeted. Fergus Ewing previously outlined to the committee the limited evidence on the extent of use of the device across Scotland. It seems that it might be difficult to achieve any response that could be considered proportionate, given that limited information.

It is worth highlighting a notable success that the committee has realised in considering the petition. On 21 February 2012, the inventor of the device advised that he is happy to include a warning sign for devices that are sold to organisations in Scotland, and that displaying the sign would be included in the instructions for using the device. I see that the manufacturer’s website now makes it clear that devices that are being shipped to Scotland will come with such a warning sign. That is a significant achievement and I congratulate the committee and petitioner on it.

As I said, prevention and diversion are at the heart of our approach to tackling antisocial behaviour. I am sure that the committee will be well aware of a number of initiatives that the Government is undertaking, so I will not go through a long list of them. If there was a widespread problem with use of the Mosquito device I would expect to be approached through my constituency office, ministerial office or other avenues by people bringing examples to my attention. That simply has not happened. Equally, if there was a widespread problem, the sustained high profile that the committee has given to the issue would have resulted in complaints being raised as awareness of the petition grew. Again, that does not appear to have happened. Given the lack of evidence on the extent of any perceived problem, I cannot justify further work on the issue, which would divert us from current priority work.

Thank you for that very full statement, minister. As you said, this issue has been of great interest to the committee. Once again, thank you for coming along.

I also thank the Scottish Youth Parliament, which has taken a tremendous initiative in this area. It was highly concerned about the issue and colleagues may pick up on some of the points that it has raised.

I will touch on a couple of points, so that we are absolutely clear on the Scottish Government’s role. First, do you have the power to ban Mosquito devices, if you so wished?

10:45

There seems to be a bit of a question about Parliament’s competence in this area. I have not been able to establish to my satisfaction that we would definitely have the power to ban them. That would require to be tested. It is a complex issue and, in the circumstances, I cannot give you a definite yes or no answer. Competence would have to be the first thing that we established if a decision were made that, in principle, that was the way we wished to go but, as I have indicated, we are not of that view at the moment.

Thank you, minister. Following on from that answer, have you sought specific legal advice to determine whether you have the power to ban the devices?

No. I think that we have not formally requested a decision on that basis because, at the moment, we are putting forward no concrete proposal for advice. We would be asking for advice only in extraordinarily general terms.

Given the interest that the committee and the Scottish Youth Parliament have shown in the issue, could you ask for specific legal advice on whether the Scottish Government has the power to ban Mosquito devices?

We can ask a general question, but the danger is that we will just get a very general answer that says that it would depend on what we proposed. I can ask the question but, without a detailed proposal, I am not sure what the answer would be worth. I appreciate that it is a bit of a chicken-and-egg scenario. If I am right, it would be a case of asking the Scottish Parliament’s legal advisers rather than the Scottish Government’s legal advisers about the vires of such a ban, but I will need to clarify that.

You have been very honest about the complexity of the issue and the vagueness of the legal position, but we would certainly appreciate a specific response as regards legal advice.

I should have said that Mr Brownlie should feel free to intervene at any time if he has any comments to add.

Do not worry—I will call on him if I need to.

I see that he is not reluctant to comment. That is fine—I will move on.

Have you met Home Office ministers to discuss a ban or any crossover issues?

No.

As you know, we have received a letter back from the UK minister, Jeremy Browne, which is in fairly general terms. I just wanted to clarify whether you had had specific discussions.

We have not had specific discussions. That goes back to the issue of committing resources to the proposal, which we have not seen as being necessary. There is no bar on my having such a conversation, but it would be in such general terms that it is difficult to see how it would be useful. My guess is that the response would be—as it would be if things were the other way round—“You’ll need to show me the specific thing you’re proposing to do.” We are not minded to ban the devices, which is why we are in a bit of a chicken-and-egg situation.

Do you have regular meetings with your equivalents at the Home Office?

No.

Do you attend any joint ministerial committees at which there is a crossover with Home Office, community safety or legal affairs officials?

No. We correspond on specific issues as and when they arise, but we do not have a general clearing-house conversation. I go to Brussels, but I do not go to London.

Oh, right.

That is partly because justice is—as you would expect—pretty much all devolved. There are only a few occasions on which it is necessary to correspond with Ministry of Justice officials, and those occasions are driven by specifics rather than generalities.

I understand that point. You have been very honest.

However, why would a discussion with the Home Office have to be in general terms? Why could it not be about the fact that concerns had been raised with you by a parliamentary committee, so you wished to see whether you could ban Mosquito devices? Why could you not be specific?

That is because we do not believe that banning Mosquito devices is the way forward.

Oh, right.

We look at all the evidence that comes in, and it simply does not stack up enough for us as a Government to go down the legislative route of banning the devices. Parliament has been here before—banning things when there was not much in the way of evidence or in the way of practical examples that we could point to as requiring that ban. It would mean committing resources right from the get-go to something that is not, in my frank view, evidenced sufficiently to justify a legislative course of action.

I know that it is always dangerous to bring in someone’s predecessor, but Fergus Ewing gave fairly blunt evidence about the Scottish Government’s unhappiness about Mosquito devices. I certainly inferred from that that there was a move towards looking at banning them.

That is equating unhappiness with the use of the devices to going all the way through to legislating against them. The fact of the matter is that the evidence that we have simply does not stack up sufficiently for us to be able to say that this is a problem that requires the big guns of legislative change. If the evidence changes, that may result in a change of view on the part of Government, but at present and as currently evidenced, it would be difficult to justify a legislative solution. That is not to say that we think that using the device is the right thing to do. There are a great many things that I do not think are the right things to do but we cannot legislate to ban every single one of them unless there is evidence that that is the way forward.

The convener has already referred to the evidence session that we had with Fergus Ewing when he was the minister dealing with this issue. I am one of the members of this committee who has straddled the previous session and this session; I have had continuous membership of this committee for almost five years. My understanding of the commitment that we got from the previous minister was that he would certainly enter into dialogue, potentially with the United Kingdom Government, to look at how we can act in a UK-wide initiative on use of the Mosquito devices.

Although the petition came in from Andrew Deans on behalf of the Scottish Youth Parliament, we have heard evidence from various organisations, including the National Autistic Society, which clearly claimed that this a discriminatory use of a device against certain sections of the community. As I understand it, the current legislation that could be used to ban the use of the devices is the Environmental Protection Act 1990, which is UK legislation. Is that legislation still in place?

That was certainly part of the discussion when Fergus Ewing was in front of the committee in a previous evidence session—Cathie Craigie asked a question about noise nuisance provisions. Our understanding is that using those provisions would not result in a nationwide ban. As far as I am aware, they are still in place and can still be used, but are very much dependent on circumstances. For example, if somebody was to investigate a complaint under the provisions, they would measure how loud the noise was, how long it went on for, where it was located, where it was being heard and so on.

To answer your first point, in terms of dialogue with the UK Government, Fergus Ewing gave a commitment that if any meeting came up between him and our colleagues down south, the Mosquito would be put on the agenda. What happened later that year—as I have outlined in previous letters to the committee—was that a number of my colleagues and I went down to London to discuss anti-social behaviour measures with colleagues from the Home Office. That was fed back to the committee and is also reflected in the letter from Jeremy Browne MP.

Is the Scottish Government prepared to issue clear guidance to local authorities about the use of Mosquito devices? The Convention of Scottish Local Authorities’ latest response to the committee was to refer us back to the Scottish Government. Has there been any discussion with COSLA or local authorities about the use of Mosquito devices or what action they can take to prohibit them?

As a minister, I have not been personally involved in any such discussions, although that does not necessarily mean that there have not been such conversations.

I understand that practitioner guidance is available to local authorities, but I cannot speak to the extent to which that covers your concerns. As far as I am aware, local authorities are capable of doing something—I think that John Brownlie suggested that the UK legislation that dates from 1990 allows local authority action if a specific complaint is raised. That would be dealt with under what are generically known as the noise nuisance laws, which are entirely a matter for individual local authorities. Local authority practice is not uniform; it will change from area to area, in response to whatever is flagged up as a serious issue.

I have some figures in my briefing pack—which I will look for—but the number of local authorities that have registered any such issue is very small. That takes us back to there not being a body of evidence that suggests that Mosquito devices are a significant problem. That lack of evidence calls into question whether moves towards clearing the way for legislation on them would be an appropriate use of Government resources.

I have now found the figures—I am not sure whether the committee has this information. Out of 32 local authorities, 20 responded that they are aware of the existence of Mosquito devices, of which six indicated that they are aware of the devices being used in their areas, although in three cases it was historical, rather than current use. Ten authorities indicated that they were not aware of the devices being used, and four did not answer. Three local authorities have expressed a public view about Mosquito devices, which means that although 20 local authorities are aware of the existence of the device, only three felt that issuing a public view was appropriate. Seven said that they had not expressed a public view and 10 authorities did not answer. Only one local authority said that concerns had been expressed to it. That again suggests that there simply does not appear to be the groundswell of evidence that would be needed for such legislation to be considered.

When was that consultation carried out?

John Brownlie has advised me that it was carried out in March 2011.

I asked that question because, in your opening statement, you quite rightly identified that the manufacturer of the Mosquito device, when he gave evidence earlier this year, indicated that he would send a cautionary note with the device for anyone who decides to install it. Up until that point, it was difficult to determine whether or not the devices were being used by shopkeepers and others. In the evidence that we heard, there was suspicion that even private residents were using the device to deter young people from hanging about outside their houses, including in nearby lanes. With the cautionary note, and if the purchasers decide to put up the warning poster, it will become more evident that the device is being used.

I think that your consultation responses indicated that it is difficult for local authorities to know who uses the device, because there is no need for any shopkeeper or individual citizen to register its use. How do we therefore identify where the devices are being used and the nuisance that they cause? We heard evidence not only from the National Autistic Society but from individuals with young children under the age of three or four, who could be affected by the use of Mosquito devices in shopping malls and other areas. How can we get to a position whereby we know who uses the devices?

11:00

Some people may use the device without its being widely known. I can speak on the issue only from personal experience as a member of the Scottish Parliament, because I get many complaints about groups of young people hanging around. The general suspicion is that they are up to no good, but in fact most of them are not doing anything at all. I have never had a complaint from a young person that somebody was using the Mosquito device to prevent young people from hanging about.

I appreciate what John Wilson said about small children probably not being able to articulate their concerns, but the devices are audible to people until they are in their late teens or early 20s. I am simply not aware of any complaints or evidence that they are widely used. The few occasions when one might assume that there is evidence that they may be being used still do not amount, for me, to a case for legislating against their use. There is no evidence at all that they are being used to anything like the extent about which concerns have been expressed.

Can you send us the survey that you mentioned earlier, minister?

Absolutely.

Why were the views of local authorities sought? You indicated that you do not wish to ban the devices, so why was the survey carried out?

I think that it was just an attempt to gather useful evidence for the on-going conversation about the device, particularly with the Public Petitions Committee, because we needed to get some sense of whether there might be evidence out there of widespread use of the device. The first port of call for such evidence would be the local authorities, because they are responsible for noise nuisance issues.

I understand that. On evidence of whether local authorities are aware of the devices being used, we would need to overlay the sales figures for Mosquito devices. Some local authorities will not have any such devices in their areas. However, the Scottish Youth Parliament is in no doubt that the use of Mosquito devices is a problem. For us, that is evidence of concern from a democratic, Scotland-wide body.

I understand that, but it comes down to whether we have sufficient evidence to mandate the use of Government and parliamentary resources to introduce legislation on the issue, which is the nuclear option, if you like, in terms of any activity in which we might wish to see change.

Good morning, minister. Given that young people in our constituencies generally do not complain about what is happening in their areas and taking on board the Scottish Youth Parliament’s evidence, do you think that the Scottish Government would do anything differently if the devices affected elderly people?

I would still look for evidence that there was a significant problem. If occasional random reporting was to mandate legislation in every case on every issue, we would be constantly introducing legislation. That cannot be the way forward for the Parliament. I refer the committee to occasions when the Parliament has legislated in that way; I can tell you that it has attracted massive opprobrium. After all, you are effectively legislating against something that either does not exist or exists in such tiny numbers that using legislation to deal with it looks like using a nuclear bomb to crack a nut.

I come back to the point that this is all about evidence. If any group of people is being seriously impacted on by any activity, it can bring it to Government and Parliament. We will always look carefully at the evidence and consider whether legislation is appropriate. However, given the information that we have on this issue, our view is that legislation is not justified.

Is the minister willing to meet the Scottish Youth Parliament to discuss the issue further, given its grave concerns and the fact that it has submitted this petition?

I am always available to meet people and organisations that want to raise issues within my portfolio remit and will be very happy to meet the Scottish Youth Parliament, if it wishes to speak to me.

The convener mentioned the response from the Minister for Crime Prevention, Jeremy Browne, which suggests that the Home Office in London has little appetite for prohibiting the Mosquito device. However, he notes “public concerns” and states that

“the legal position is kept under review.”

You said earlier that the Scottish Government consulted local authorities last year. Has the Scottish Government sought advice on European convention on human rights implications?

Obviously, we have to consider ECHR implications in whatever we do and irrespective of how we want to proceed. ECHR regulates interference by the state and state authorities with regard to individuals’ rights and the Human Rights Act 1998, and public authorities cannot act incompatibly with the convention. However, as I understand it, use of this device is not in breach of ECHR and there does not appear to be sufficient evidence of harm to justify our intervention. In any case, we would equally have to justify that intervention under ECHR, which in a sense covers both sides of the equation.

Further to my earlier points, have you sought specific legal advice to confirm whether Mosquito devices are or are not a breach of ECHR?

Our information is that the use of devices by private individuals or companies is not a breach of ECHR. As every member will know, trying to prejudge what specifically might be considered a breach is probably beyond every single one of us, but our best advice says that use of the devices is not a breach of human rights.

My point is that there is another side to this—ECHR regulates not just one side of an issue but all of it. I expect that if we tried to interfere there might well be an argument from the other side. Our advice at the moment is that using the devices is not an ECHR breach, but that would need to be tested in court to find out whether the position is true. There has been no such test at UK level.

I am sorry to make heavy weather of this, minister, but just to ensure that the committee is absolutely clear can you tell us whether you have sought specific legal advice on the ECHR issues in relation to Mosquito devices, or have you simply received informal advice from your officials? If the latter, are those officials qualified in European law?

It all comes back to the extent to which the Government will expend resources on the issue. The Equality and Human Rights Commission stated that it had no fully defined position on the issue. I am going on the best advice that we have in general terms. We have not formulated a specific question to the lawyers about ECHR any more than we have about the other issues that we discussed previously, but that is because we have no specific intention to legislate. We are going round in circles slightly, because without a specific intention to legislate there is no specific question to put to lawyers about either competency or ECHR.

That is very clear. Before we took evidence today, we wished to get to the bottom of a number of issues. You have made it clear that the Government does not wish to ban the devices and you have given a general account of the advice that you have been given. That is what the committee wanted to clarify, so thank you for providing clarification.

Can the minister confirm that irresponsible use of the Mosquito device—however that is defined—is covered by an appropriate regulatory regime?

Anything that involves noise, however it is constituted, could be covered by local authorities through their noise nuisance and environmental health department. The point is that that power is not being used.

If local authorities felt that that was not a functioning way to move forward, I presume that they would ask us to reconsider the position, but we are nowhere near that stage. I am not even aware that any local authority has attempted to progress, or has been required to progress, anything through its noise nuisance department. Most incidents that are addressed by those departments are dealt with in an informal way that just involves getting people to behave.

Have you not received any complaints, or any volume of complaints?

There has been nothing.

Have local authorities flagged up a problem?

No. There has been nothing. That may be because local authorities have had nothing flagged up to them and they do not require to use the noise nuisance department, but those departments are the first stop for handling such issues and there is no indication that that has been necessary.

If the problem is hidden to some extent, there might be an issue that has not been identified and reported. Is the regulatory regime in a shape that could deal with the irresponsible use of the Mosquito device?

I am sure that committee members remember that when Fergus Ewing attended the committee there was discussion of the noise nuisance provisions. One question that was asked was whether a form of test purchasing, as it was described, would be a way forward. As I understand it, if a young person were to make a complaint, such an approach would involve the noise team taking along another young person to verify that there is a sound.

I discussed the matter with a noise nuisance team leader, who said that nothing would prevent that from happening but, equally, he was keen to point out that a properly calibrated sound meter may in fact pick up the sound anyway, even if the person who is using the meter and measuring the sound cannot hear it. The problem may not necessarily be completely hidden, as there are ways in which the noise team could identify it.

You are confident that the current regulatory regime would be able to deal with any issues that arise from use of the Mosquito device.

The matter would fall under the general terms of noise nuisance regulations. It would not sit separately or apart from those, so the current regulations could be used if there was evidence that there was an issue.

I guess that what John Brownlie is saying is that it is open to any local authority to take its testing machine into any premises, mall, shopping centre or whatever and establish whether the devices are being used. To be honest, the evidence of our eyes when we go around suggests that they are not.

For the sake of completeness, I should mention that I understand that the issue was also raised in the European Parliament and that there was some discussion about the use of Mosquito devices in a wider European context. I understand that the children’s commissioner has also been involved and, as I am sure that you are aware, the members of the Scottish Youth Parliament believe that the devices discriminate against a particular group in society; they have concerns about how the use of the devices might breach the ECHR, which we touched on earlier. That is the sort of evidence base that we have been focusing on.

I am not aware of anything that might be happening at the European Parliament level, so I cannot comment on that.

I thank the minister and Mr Brownlie for coming along and being clear about what the Government will do. Clearly, this is an issue that has been exercising the committee for some time. We have agreed to discuss our next steps in private.

I suspend the meeting to allow our witnesses to leave.

11:16 Meeting suspended.

11:17 On resuming—