Emergency Workers (Scotland) Bill: Stage 1
The next item of business is a debate on motion S2M-1079, in the name of Andy Kerr, on the general principles of the Emergency Workers (Scotland) Bill.
As members will be aware, in our partnership agreement, the Executive undertook to
"protect emergency workers from assault and obstruction"
as part of our broader strategy for tackling antisocial behaviour and, clearly, our commitment to delivering a safer Scotland.
Emergency workers provide an invaluable service to society. We depend on them to save and protect our health, well-being, possessions and environment and they do so in difficult and often dangerous circumstances.
It is absolutely unacceptable that such dedicated and courageous workers should face the threat of abuse, assault or obstruction when responding to emergency situations. Such assaults endanger the lives of not just emergency workers and those assisting such workers, but those they are trying to help. That cannot be tolerated, which is why the Executive is taking action to ensure that all emergency workers receive the statutory protection that they deserve.
At present only the police have specific statutory protection from assault and obstruction. Firefighters have statutory protection, but only when they are fighting fires. The Emergency Workers (Scotland) Bill will protect all emergency workers from assault, obstruction and hindrance whenever they are responding to an emergency. It will also protect those assisting emergency workers, whether as part of their job or simply as individuals. That means, for instance, that auxiliaries or porters who are helping doctors or nurses while responding to an emergency will also be protected by the bill's provisions.
Is the minister willing to consider whether the nature of the work rather than the incident should provide the statutory cover? If the porter or auxiliary is assaulted in a hospital ward in a non-emergency situation, they will not be covered by the bill. Is there any way that the bill could be more flexible?
I will cover that point in more detail later. Common law protects any individual from any assault and the measures that the Lord Advocate has put in place have ensured that those who are handing down sentences and fines in our courts are doing so much more rigorously. The bill is about ensuring that that specialist set of workers who are responding to emergencies, protecting life and limb or the environment, are protected in a greater way. By providing protection for emergency workers and those assisting them, we are covering a wide range of workers.
Is the main thrust of the bill about protecting emergency workers per se or is it about the consequences of attacks on emergency workers?
I am not sure that I follow that point. The intention of the bill is to ensure the protection of emergency workers and those assisting them, including the public—which could mean you or me if we were providing assistance. By increasing the penalties and fines relating to attacks on that specialist set of workers—who are doing something different from other workers in the public sector—we are ensuring that they are properly protected.
On the point that Tommy Sheridan made earlier, to go further would risk diluting the effect of the bill. In effect, we would risk simply replicating the current common law protection from assault, which applies to everyone in all circumstances. Our purpose is much more specific; it is to protect emergency workers in emergency circumstances.
Creating the specific offence of assaulting, obstructing or hindering an emergency worker who is responding to emergency circumstances says that such behaviour is not only antisocial but criminal and will be dealt with appropriately. The bill will enable us to categorise that misconduct more clearly than we can now. It will enable us to label that behaviour and stigmatise the perpetrators accordingly and it will add to the armoury of the police and the prosecution.
As both the Association of Chief Police Officers in Scotland and the Chief and Assistant Chief Fire Officers Association testified, the bill will give emergency workers greater confidence to report any incidents. It will also give emergency workers greater confidence that action will be taken against those whose offensive behaviour plagues their working lives. Surely our emergency workers deserve that confidence.
Of course, there is more to it than that. We believe that by sending out the message that abusive or obstructive behaviour is unacceptable, the bill will have a deterrent effect and will ultimately decrease the number of offences and prosecutions in this area.
The Justice 1 Committee has been scrutinising the bill and I welcome its support for the general principles. I note, however, that the committee has raised several concerns in its comprehensive report. I am grateful for the work that the committee has done and will give the issues that are raised in its report the full consideration that they deserve.
Although we will return to the detail at stage 2, there are a number of comments that I would like to make at this point. First, I note that the committee recommends changes to the list of workers who are identified in the bill.
On that point, I welcome the inclusion of the Coast Guard and the Royal National Lifeboat Institution in the list of emergency workers. Does the minister agree with the committee that inland rescue boat services such as the Loch Lomond Rescue Boat are also of value?
I am well aware of the member's interest and the work that she has been doing in regard to that point in the bill. The Executive is in touch with the Loch Lomond rescue team. The bill contains an order-making power that will enable us to add groups of workers who deal with emergencies to the list. From my examination of the evidence that has been given, and from the points that the member has raised with me, it appears that the Loch Lomond Rescue Boat would be covered by that power. We are, therefore, exploring whether it would be appropriate to include it in the bill. We will look to do that, and our discussions point in that direction.
I have paid close attention to the evidence that has been submitted by and on behalf of social workers—another category of workers that has been talked about during the work of the committee. I have a great deal of respect for the enormously valuable and challenging role that is performed by mental health officers and child protection workers, and I am sympathetic to their case for inclusion in the bill. I am, therefore, happy to accept the committee's recommendation to reconsider the issue at stage 2.
I also note that the committee questions the need for prison officers to be protected by the bill. It is clear, however, that the prison officers' representatives who gave evidence to the committee on the matter did not share that view. It is the Executive's belief that prison officers are the emergency services in our prisons. I therefore remain convinced that prison officers are entitled to the bill's protection.
Will the minister give me an assurance that that includes prison officers who are working in the private sector, especially at HMP Kilmarnock?
Yes, indeed that is the case. Those workers will be similarly protected by the bill.
The committee's report raises some issues about the definition of emergency circumstances that is used in the bill and notes that those will be considered further at stage 2, when I will be happy to discuss those points. It might be helpful, however, if I comment now on the suggestion that the bill should be revised to refer to "serious health risk." Having looked at this, I am happy to confirm that "serious illness", as currently mentioned in the bill, will encompass serious mental illness as well as serious health risks. We therefore believe that the definition of emergency circumstances as it stands already satisfies that point. Nevertheless, I am more than happy to listen to the committee's views on the matter when we consider the bill at stage 2.
I sympathise with the concern that was raised with the committee that the bill should apply to all parts of hospitals where emergencies may occur, not just to accident and emergency departments. However, let me make it quite clear that any medical practitioners or nurses and any staff who are assisting them in responding to emergency circumstances anywhere in a hospital or elsewhere are already protected by the provisions of section 1. There was some suggestion in the evidence that was heard by the committee that amendments would need to be made to section 3 to achieve that aim, but that is not the case. Section 3 already applies to any part of a hospital that
"is used wholly or mainly for … the reception and treatment of persons needing medical attention as a result of an accident or otherwise as a matter of emergency."
That clearly applies more widely than just to accident and emergency departments, and I believe that it addresses the concerns of members and those who gave evidence to the committee.
Will the minister give way?
I will make some progress and try to come back to that point. I have a fair bit still to cover.
The committee has also identified a number of issues surrounding the evidential requirements of the bill. I share the committee's desire for clarity in what is a complex area of law. The same issues were raised by the Law Society of Scotland in a letter that was sent yesterday to all MSPs. I accept that there might be ways in which the bill can be amended to clarify the evidential requirements that will need to be satisfied. Officials will meet the Law Society of Scotland to explore the points that it has raised, and I am confident that those discussions will help us to resolve the difficulties. I will ensure that the committee is kept fully informed of progress on the issue in advance of stage 2.
Finally, I note the committee's recommendation that the order-making power to modify the categories of worker that are covered by the bill's protection should be subject to affirmative resolution. I am happy to agree that point, and the Executive will lodge an amendment to that effect at stage 2.
Legislation alone will not solve the problem. That is why the bill is just one crucial part of a range of actions the Executive is taking. I therefore welcome the committee's full support for our wider package of non-legislative measures to tackle the problem of verbal and physical abuse of any worker who serves the public. That programme of actions is set out in a document entitled "When the customer isn't right". That Executive-commissioned report was published earlier this month. It commits the Executive to developing a package of measures aimed at preventing work-related violence and protecting all public service workers. Measures will include training in the prevention and handling of aggression; a model system for recording incidents of violence and abuse; and means of helping employers to meet their legal responsibilities to minimise the risks of verbal or physical violence towards staff.
Partnership working is vital to the success of those measures. We are working closely with the Scottish Trades Union Congress, employers and professional bodies to implement them. I am delighted that the STUC has been so supportive of this work, because no one party can solve the problem of work-related violence. When the Executive, trade unions, employers and others come together, we can make real progress and deliver real differences to those on the front line.
Our recently launched media campaign "Abusing workers is bang out of order" is one such achievement. Developed in consultation with our partners, the campaign will raise awareness of this problem; show the personal impact of violent and non-violent situations; and hit home the message that verbal and physical abuse of public service workers should not and will not be tolerated.
Of course, the assault of any person is unacceptable and should be punished. However, assaulting or obstructing an emergency worker can have especially serious consequences for that worker and for those whom he or she is trying to help.
I am conscious that Margaret Mitchell had a point to raise and I am happy to take it now.
On the point about emergency circumstances, does the debate around whether accident and emergency extends to the rest of the hospital not show distinctly the confusion in second-guessing or boxing into legislation a specific set of circumstances as emergencies? Is that not why the flexibility of the common law should be used and would be more effective in those circumstances?
I clearly disagree with the member and we had some interesting exchanges about the subject in committee. I expect that that will continue with amendments that I am sure the member will lodge at stage 2. Section 1 of the bill will allow us to separate out those in our society who would seek to assault a firefighter, a member of the police force or someone who works in a hospital, such as a nurse, doctor or otherwise. The bill will impose heavy penalties on that individual and indicate that we are not prepared to accept such a heinous crime as the norm. We believe that specific legislation is the best way to tackle the particular problems faced by emergency workers responding to emergency circumstances.
The bill might be short, but let me make it clear that its policy objective is crucial. In supporting the bill, members will be showing that they believe emergency workers are entitled not only to our respect and appreciation, which they clearly have, but to statutory protection that will enable them to carry out their jobs free from additional and unnecessary risk.
Criminal sanctions alone will not deter people from offending behaviour. However, together with our other measures, I believe that the bill will make the difference for our emergency service workers. I commend the bill to Parliament.
I move,
That the Parliament agrees to the general principles of the Emergency Workers (Scotland) Bill.
I welcome the minister's comments and the bill. I also pay tribute to his willingness to take on board the committee's comments. The committee is to be commended for its work and I am grateful that the minister has taken cognisance of many of its points.
It is clear that we face two problems in addressing the issue, one legal and the other social, as the minister said. The number of people involved is not necessarily huge, but the consequences of their actions are substantial. Anecdotal evidence appears to show that there is an increase in the problem. Such behaviour is a danger to those who are trying to do their job, it is a threat to those who are being attended to or assisted, and it is simply unacceptable.
The issue is not simply legislative, but cultural. The bill will not be a panacea, but it does two things. First, it gives additional protection to those who are entitled to it. It is fundamental that we give such people the fullest protection that we can so that they can do their jobs properly. Secondly, the bill gives a clear message that this legislature, on behalf of the society that it represents, views such antisocial behaviour as intolerable and unacceptable and affirms that those who carry it out will be dealt with severely.
Emergency workers have a difficult enough task without their work being interfered with by loutish behaviour. They do their jobs to assist members of the public or to follow the policy directions that we make. They are entitled to the full protection that we can give them.
The debate on whether the problem is a legislative or a social one was touched on in committee; it is clearly both. A variety of organisations, such as the Law Society of Scotland and the Faculty of Advocates, have commented that we already have sufficient powers. That is true. We have common law powers and can create aggravated offences that can be referred to in the libel. All that is clear and we sympathise with that position. We are creating more and more law, and the more complex it is, the greater the likelihood of calamity. We must be clear that the law requires to be understood by all and not simply by the few. If we continue producing legislation ad infinitum, codification is ultimately essential. However, I do not think that we have reached that stage yet.
We must make it clear that there are two main reasons for the bill. First, attacks on emergency workers are symptomatic of a social malaise. Secondly, in enacting the bill, we will make it clear from the top down that such behaviour is unacceptable and that change must come from the bottom up. We have seen that before, to some extent, in the Police (Scotland) Act 1967, which the bill is partly attempting to replicate. We made it clear when we brought in that act that it was unacceptable to assault or impede a police officer in the exercise of his duty. The offence was not regarded as an aggravation of an assault or a breach of the peace, but as a specific offence that society viewed as intolerable. That has resulted in plea bargaining in an attempt to avoid conviction, which is not necessarily to be denigrated. It is part of the system in which we operate. However, the 1967 act made it clear that impeding or assaulting an officer is unacceptable. To some extent, the comments made to the committee by the Prison Officers Association Scotland touched on that.
There is no easy way; no legislative silver bullet. The minister commented correctly on that. The bill is part a multifaceted attack that we must make on unacceptable behaviour, if we are to ensure that it does not continue to fester. Sadly, there are people in our society who view uniforms as an incitement, service vehicles as legitimate targets and badges as a provocation. They are simply anti-authority, or against those whom they perceive as representing authority. Such people are nihilistic and antisocial and it is our duty as a legislature to send out the message that their behaviour is simply intolerable, that they must desist from it and that we are determined to act against it.
As I said earlier, I think that the committee has done a vital job. The bill is well intentioned, even if aspects of it are flawed and require to be addressed. Our bill process has three stages and we are only at stage 1. However, it is to be appreciated that the minister has accepted many of the points made in the report, because it is important in a unicameral parliament that we get matters right.
My colleagues will touch on some other matters, but there are specific issues that I wish to make clear. Paragraph 118 of the committee's report refers to mens rea and it is important that we clear that up and simplify it. It is absurd if we are required to have an element of corroboration that an officer or paramedic was assaulted in the course of their duty. We must create a circumstance in which it is sufficient that a letter or form of authority from a chief constable or the director or chief executive of a health board confirms that emergency workers are members of their staff and, therefore, were acting in the course of their duty. There is no requirement for two people to be cited to speak to that. A certificate must be available to avoid that circumstance and we must take that on board.
On the Prison Officers Association's position, we are open to persuasion. I can see an argument both ways, because a prison officer is simply doing his duty, but he is doing a duty with which we entrust him and he is entitled to be protected whether he is in the private sector or in the public sector. If need be, we must ensure that that protection is given.
I also welcome the minister's comments on social workers. I was contacted by the chief executive of the social work department in the City of Edinburgh Council, who informed me that, from January to September this year, 222 incidents of assault on social work staff have been recorded: 95 reports of injury, from minor bruising through to general pain and soreness; and 127 reports of no physical injury. A total of 53 incidents were reported to the police, which is unacceptable.
There are circumstances—such as dealing with mental health issues or enforcing place-of-safety orders—in which we put the social work staff in the line of fire, whether or not they are accompanied by police officers. If we entrust them with that responsibility, it is our duty to ensure that we give them the maximum protection, and that is why I welcome the minister's comments that he will take on board the points that the committee raised.
The SNP hopes that the minister will learn from, and reflect on, the points that my colleagues and the committee have made, but we welcome the bill as a step towards ending antisocial behaviour towards those who carry out difficult and dangerous jobs.
When we discussed the protection of emergency workers in January, I said—and I maintain today—that it is a core principle of any civilised society that emergency workers, to whom we all owe so much, should have the confidence and assurance that, in the course of carrying out their frequently dangerous duties, they will be protected by the full force of the law. The Executive then introduced a bill, the purpose of which was to address the problem of attacks on emergency workers and those assisting them in responding to emergencies. Like everyone else at the time, I signed up to that general principle in good faith—who would not? However, having looked closely at the detail of the bill and having examined and heard evidence from a variety of witnesses, I have been obliged to take a different view for the following reasons.
In the first place, the bill's policy intent, which at first glance appears simple, shows itself on closer examination to be confused in that it is not clear whether the main thrust is to prevent attacks on emergency workers or to prevent the consequences of such attacks, which could, at worst, mean a loss of life. It is little wonder that the committee criticised the policy memorandum to the bill for being
"generally lacking in detail and seriously deficient with regard to clearly establishing the policy intentions behind the Bill."
As a result the committee has had to spend valuable legislative time working out the general principles of the bill.
The Executive claims that it wants to do more for emergency workers by extending to them the kind of protection that is currently afforded to the police, but it has failed to consider the differences between the police and other workers. The police are always clearly identifiable as upholders of the law and, therefore, questions of proof that an accused person knew that someone was a policeman or policewoman do not arise. That is not the case with, for example, doctors or nurses out in the community.
The Police (Scotland) Act 1967 applies to anything that the police do while they are on duty, without differentiating the circumstances. The bill, on the other hand, seeks to cover only emergency circumstances, and defining those has proved extremely difficult. The Law Society of Scotland, among others, has also rightly expressed concerns at the possible effect on prosecutions of legislation that tries to limit the law to workers responding only to such circumstances. That is the crux of the matter.
The Scottish Executive has set itself and, by extension, the committee an impossible task in trying to second-guess every conceivable circumstance that the bill could cover. Common law has the flexibility to ensure that assaults on emergency workers and the consequences of such assaults are treated with the appropriate gravity according to the individual circumstances of each case. The Executive itself has stated in its policy memorandum that that flexibility provides
"the best protection for public service workers as a whole, as it is reinforced by the Lord Advocate's guidelines to procurators fiscal emphasising that an attack on any worker delivering a public service is an aggravated offence."
There is more confused thinking from the Scottish Executive. Despite stating that the bill would raise awareness of the problem and act as a deterrent, the Executive says in its policy memorandum:
"It is unlikely that the Bill will lead to a significant increase in the number of prosecutions for attacks on emergency workers."
The deterrence and raising of awareness that the Executive seeks to achieve by introducing the bill can be attained through better application of existing law and higher penalties, together with a range of supporting measures, including a carefully targeted campaign to raise awareness of emergency workers' work and of the consequences of preventing them from doing it.
Furthermore, having conducted a consultation, the Executive failed to publish a detailed analysis of the responses. Had it done so, it might have realised that respondents to the consultation also raised important issues, including the Royal College of Nursing's concern, which others share, that the bill will create a two-tier system.
No reasonable person would sign up to the deeply flawed and confused principles in the bill. I therefore believe that this fledgling Parliament has reached a defining moment at which it can show that it has the maturity to reject a bill that I concede is well intentioned, but is also seriously deficient and unnecessary. In so doing, the Parliament would take the first steps to becoming the responsible institution that Scotland craves.
The Justice 1 Committee has made a valiant attempt to carry out the Executive's will. The committee has been critical, but I urge members of that committee and other MSPs to go further in the pursuit of good government and to take no part in conducting what is clearly a face-saving exercise for the Executive. To do otherwise would be to abuse how the committee system was intended to operate.
When we debated protecting emergency workers some months ago, I enthusiastically supported the need for legislation to deal with what I believed was the growing incidence of attacks on emergency workers. I was not alone. Most of the members who have spoken today spoke then and we were united in our support for the tremendous work of our emergency workers and for the need to protect them not only for their own sake, but for the sake of those whom they assist. We must send a clear message from the Parliament that assaults on emergency workers are utterly unacceptable to us all.
Unfortunately, the Executive's proposals to turn that support and concern into legislation are proving difficult and complex. The Justice 1 Committee has received a considerable quantity of evidence in support of the bill's general principles, but much of that evidence has been conflicting and confusing. As our report says, as a result, it has been difficult to reach a conclusion on the bill's general principles.
We have a very small bill—it is only a few pages long—yet the Justice 1 Committee had to ask for extra time to investigate it and has produced a stage 1 report that runs to more than 240 paragraphs. One reason for that is that in producing a bill that picks out workers for extra legal protection, the Executive has in effect opened a can of worms. The bill defines emergency workers as police constables, members of fire brigades, ambulance workers, coastguards, general practitioners, nurses, Royal National Lifeboat Institution crews and prison officers, and covers them only in emergencies. It is interesting that that list is different from the list of public sector workers to whom the Lord Advocate gave extra protection in his guidance to fiscals last year about aggravation of assault. Therefore, the list that the Executive has prepared lacks logic and consistency.
The committee expressed concerns about inclusions on and exclusions from the list. I would welcome its extension to include inland lifeboat crews, which Jackie Baillie mentioned. I highlight the case of social workers, as I have done ad infinitum at committee meetings. I welcome Andy Kerr's comments on such workers, whose position was raised in committee by social work organisations. As the minister said, he has agreed to consider the case for including mental health officers and child protection social workers, both of whom find themselves regularly in emergencies, certainly as defined in the bill.
Does the member agree that it would be worth while to consider the possibility of equipping social workers with alarms, which could help them if they were to find themselves in such circumstances?
I do not disagree. I echo the point that Margaret Mitchell has made on many occasions, which is that anything that goes into the legislation should be only part of a wider package of protection for emergency workers, or, indeed, workers more generally. In particular, I would include national health service workers and care workers who go into people's homes on their own, who are distinctly vulnerable. We heard compelling evidence on that, particularly when we were told that such workers often undertake such duties without police cover.
The committee thought that the case had not been made for the inclusion of prison officers, partly because there was no evidence of need. One of the general problems that the committee had in scrutinising the legislation was that, although there was a certain amount of anecdotal evidence of an increasing incidence of assaults on workers, it was impossible, despite fervent attempts by the committee, to get much evidence of assaults against emergency workers in emergency situations. For that reason, we have noted that we have concerns about the reliability of some of the evidence that we have been given. There are certainly no sound statistical data on which to base the legislation.
Unison, the Scottish Trades Union Congress and others have lobbied hard on who should be included in the legislation. It is understandable that they think that either public sector workers or all workers should be included, which is a seductive argument, but we must consider what the legislation is trying to achieve. It tries to protect people whose job is to protect the rest of society from injury, and the impact of the legislation would be lost if it was significantly widened.
Rather unusually, the Justice 1 Committee has said that it wants to take further evidence at stage 2. We want to consider who is covered and whether it is right to go down the route of protecting only emergency workers in emergency situations. We share the concerns of many people, including people in the Law Society of Scotland and Unison, that that approach is too restrictive. In fact, Unison has gone as far as to say that it is concerned that the restriction could make a successful prosecution virtually impossible.
Crucially, a successful prosecution would rest on the prosecution being able to prove that the accused knew that the person whom he was assaulting or obstructing was an emergency worker, or someone assisting an emergency worker, in an emergency situation, which is even more difficult. At the committee, I used the example of a chain of support in a hospital for an emergency that involved not only front-line clinical or medical staff, but pharmacists, people working in labs, blood technicians and so on. How would we prove that someone who was taking an organ to the scene of an emergency could be identified as an emergency worker in an emergency situation, or somebody assisting such a person?
The Executive thinks that it has covered some of those issues in section 3 by specifically mentioning hospital accident and emergency departments. However, evidence from the British Medical Association, the Royal College of Nursing and others shows that assaults on NHS staff happen beyond the confines of accident and emergency departments—they happen in psychiatric wards, general practitioners' consulting rooms and hospital waiting areas, for example. It is possible that we need greater clarity than is given in section 3. We ask the minister to reconsider whether including not only accident and emergency departments, but wider NHS premises would be clearer. We must ensure that no loopholes are left for people who wish to assault our NHS workers. We should protect those workers and accordingly we should consider whether we must extend the premises that are covered.
What difference would the bill make? I cannot cover all the issues that are raised in the committee's report, but I draw the attention of colleagues to pages 17 to 21 of it, which highlight the fact that the bill would deliver some differences at the margins. The majority of committee members thought that the bill had the potential to add value at the margins for certain groups of workers—particularly for those other than the police—and should be generally supported, with the caveat that all of us need to do further work at stage 2 to make it effective. That will include work on the definition of "emergency circumstances" and of those who are covered by the bill, as well as reconsideration of section 3.
As I said, it is crucial that the legislation should be seen as part of a wider package of measures that highlight the issue. I welcome the recent media and information campaigns to which the minister referred. If we pass tokenistic legislation, we will not support such things or put out the clear message that such behaviour is abhorrent to us all and we will do all that we can to prevent or punish it. We should pass legislation that is effective in delivering greater punishment for such acts, greater protection for emergency workers and greater deterrence. We have some way to go before the bill matches those requirements, but the seriousness of the matter warrants our continued attention.
With those caveats, I say on behalf of the Liberal Democrats that we support the bill.
This is one of those occasions when there is a general consensus in the Parliament that something must be done, but we need to work out whether we are doing the right thing. Unlike Margaret Mitchell, I think that we need to ensure that, as the old saying goes, we do not throw out the baby with the bath water. The bill needs some serious changes at stage 2, but the idea that the entire bill should be opposed is unacceptable.
As members will recall, we began this attempt in the first parliamentary session, when we set out to secure a high-profile public statement from the Scottish Parliament that it would no longer be acceptable for workers who are employed to try to save the lives of others to find themselves under attack in any way, shape or form. At the time, firefighters in particular were on the front line, because a new, unfortunate and unacceptable sport had developed whereby fire service workers in various parts of Scotland were called out on false alarms only to be attacked by youngsters. That was utterly unacceptable, but it became a spur for this type of legislation.
Is the member familiar with the Law Society of Scotland's view that, in some circumstances, it might be more difficult to secure a conviction under the bill than it would be under common law? In other words, the bill could be counterproductive. Will the member reflect on that in his comments?
I am aware of the views of the Law Society and of other organisations, but I think that the thrust behind the bill is an attempt to achieve fewer convictions overall by influencing behaviour. We want to send out the message that anyone who in any way, shape or form assaults an emergency worker will receive much harsher treatment.
I appeal for more listening at stage 2 to the arguments for extending the definition of an emergency worker to include all public service workers. Like many members, I served as a local authority councillor for a number of years. During my 11 years as a councillor, the workers who were most commonly assaulted were housing officers who had bad news for tenants. When housing officers visited a tenant to deal with a garden that had not been tidied or repairs that had not been done or to say that action would be taken on arrears, they were often verbally or physically assaulted. Citizens in this country need to know that a public service worker who visits their home has extra protection. That should make people think twice before assaulting them verbally or physically.
A similar requirement exists for health visitors. The Royal College of Nursing and others have given evidence at seminars about the situation that health visitors face when they visit people in their homes, especially when they have to deal with people with mental health difficulties. As the minister is aware, health visitors are also vulnerable when they are not in an emergency situation.
What constitutes an emergency situation? Bus drivers, who unfortunately face an increasing occurrence of assault, are not in an emergency situation. They are public service workers, but they will not be covered under the bill. Yes, we know that such assaults are covered by common law, but if we want to effect a change in behaviour patterns across Scotland, our whole thrust should be to send out a stronger message. The bill is almost a symbolic piece of legislation. It should say that public service workers across Scotland have not just normal protection but extra protection.
The bill's general principles deserve support at stage 1, but I hope that, at stage 2, the minister and the Executive will be willing to accept that the definition of workers who require extra protection should be widened to include public service workers and that the legislation should not be restricted simply to emergency situations. The bill should be much more relevant to an individual worker's role in society and the assailant's behaviour.
I appeal to the minister for fewer restrictions in the legislation. Its thrust is right and should be welcomed; it is about the Parliament sending out a message about emergency workers. However, as I have said, the definition should be widened to include public service workers, who also require extra protection.
I begin by paying tribute to my committee members for their hard work in scrutinising the bill. I should also acknowledge the work of Stewart Maxwell and Michael Matheson, who are, sadly, moving on. Perhaps they do not find the prospect so sad, because now they do not have to deal with stage 2. Lucky them.
As Margaret Smith pointed out, although this is a short piece of legislation, it is not so simple. If we had known that the matter would be so complex, we might have considered not so much running away as appointing an adviser. Our stage 1 report is a careful critique of the policy and the bill's construction. We have examined in detail the evidential tests; the bill's scope and effectiveness; and its ability to secure convictions, which after all is what it is intended to do.
I acknowledge the commitment of the Executive and, in particular, the minister Andy Kerr to protect public sector workers from general violence, as well as the minister's work with the trade unions on this matter. It is important to understand that although the bill's scope is currently very narrow, it can only work—however it is amended—as part of a wider campaign. In response to Tommy Sheridan, who gave a good speech, I should say that, as far as the committee can see, the Lord Advocate's guidelines on public sector workers are now operating effectively. If any public service worker—and I emphasise the word "service"—is attacked or assaulted in the line of duty, the courts will take the matter very seriously.
The committee supports the bill's principles because it believes that, at the margins, the legislation could add something to our criminal law. As far as the policy intention is concerned, those who have read the report will not have missed our remark that we felt that we lacked information about why the Executive supported the bill in this particular form. It would have been useful to understand why it proceeded with this particular bill instead of considering alternative approaches, such as the creation of an aggravated offence.
I seriously object to Margaret Mitchell's suggestion that the bill is a face-saving exercise and that the committee has been somewhat complicit in the process. However, I agree that the explanatory notes were not very helpful. For example, they say that the bill is modelled on the Police (Scotland) Act 1967, whose provisions are completely opposite to the approach that the bill takes.
It is important to understand that the bill proposes a summary offence that comes with a maximum sentence of nine months and a £5,000 fine. After all, we have to distinguish these offences from other cases that involve more serious violence and which should still be dealt with under solemn procedure and before a jury. There has been some confusion on that point. The committee is clear that the offence should be used only where appropriate and that we do not want other offences to be downgraded as a result of the legislation. We find it difficult to understand the Executive's view that the number of prosecutions would not increase if the new offence were introduced. We accept that the legislation could potentially have a deterrent effect; however, that has not yet been proven.
I must say that we found it difficult to take evidence because very few witnesses spoke to the bill itself. As Michael Matheson pointed out at the time, they were speaking to a virtual bill instead of the bill we had to scrutinise. The witnesses were all talking about different aspects of the issue, which made it difficult for the committee. The trade union groups wanted to lengthen the list of workers and to widen the circumstances covered by the bill.
We are grateful to Anne Keenan and Gerry Brown of the Law Society of Scotland for their work, and to Morag Jack of the Faculty of Advocates. It is worth mentioning that Anne Keenan did a lot of work in presenting to the committee the case for looking further at evidential tests.
Who should be covered by the bill? The committee agrees that the key test should be whether groups of workers are routinely responding to emergency circumstances, because the consequences of their failure to act would be serious. We suggest that the Executive has to reconsider a few areas and I welcome what the minister said in his speech.
The committee whole-heartedly accepts that prison officers play a vital role in our prisons. In their work, they are exposed to violence and difficult situations. However, we are not convinced that, in legal terms, they will be covered by the bill's definition of emergency circumstances. If there were a prison riot or something more serious, we would use solemn procedure anyway and not the procedure in this bill. It is not that we do not think that prison officers should be covered, but we do not think that they are really responding to emergencies. At stage 2, we will have to explore that point further with the Executive. We are concerned about under-reporting and have heard that management discourages prison officers from reporting incidents of violence. We take that issue very seriously.
The evidential tests are complex and I do not intend to go through them all. However, work is clearly required. As I have said, the bill proposes an extremely narrow offence. It should be absolutely clear what the Crown is expected to prove in court in order to obtain a conviction. The Law Society of Scotland has suggested that that should be in the bill.
The committee asked this question: will the bill actually make any difference, or is the common law sufficient to protect our public sector and emergency workers? If members have read the committee's report, they will know that we believe that the bill can make a difference at the margins, because greater sentences and penalties will apply.
The committee has said that, unusually at stage 2, it wishes to take further evidence on who and what circumstances should be covered. We want the Executive to consider widening the definition of emergency circumstances, because we are concerned that the present definition is so narrow that it will exclude a lot of cases. I am also concerned that, if the bill does not make it clear, an expert witness might be required in court to define an emergency circumstance.
We want to ensure that this is workable law. It is only a small piece of legislation but it could be crucial. It could add benefit as part of a wider package of measures. We need to look more closely at who should be covered and at what parts of a hospital should come under the bill's definitions. If the Executive gives us a bit of time to enter into dialogue, I am sure that we can come up with a piece of legislation that is worth while, useful and important in a package of wider measures to protect our public sector workers.
I have been on justice committees for five years and, of all the legislation that has come through, this bill is probably the smallest that I have had to deal with. That said, the drafting of the stage 1 report for this bill has probably been the most difficult. That was not because of the complexity of the bill, because the bill is relatively straightforward and simple. However, the consequences of the bill made it difficult to deal with, as did the failure of the Executive to prepare the arguments explaining why the legislation is necessary. Some members have already mentioned that issue, and I will return to it.
Although we are talking about the Emergency Workers (Scotland) Bill, it is important that the message that the Parliament sends out is that, regardless of whether someone is an emergency worker or a worker who is responding to emergency circumstances, they have a right to go about their daily work without hindrance or abuse—physical or verbal—and such hindrance or abuse will be not be tolerated. It is important that we do not focus simply on emergency workers.
When I first considered the bill, my view was that we should think about a bill that was about the protection of all workers rather than just emergency workers. I have a lot of sympathy with some of the issues that Tommy Sheridan raised, but it is important that we do not start to distinguish between someone who is employed by the public sector and someone who is providing a public service. Although someone who works for FirstBus is working for a private company, they are providing a public service. We must not go down the route of making such a distinction.
I have a small point of clarification. When I spoke about people who provide a public service, I meant people who provide a public service rather than public workers. As we know, most bus drivers are not public workers even though they perform a public service.
I take on board what Tommy Sheridan says, but I reiterate that it is important that we do not send out the message that we are talking only about workers who are employed by the public sector.
When I considered the evidence that had been submitted to the committee, I began to support the need to address the situation of emergency workers in particular because, if they are hindered or obstructed in carrying out their work, that could have an impact on other individuals. Although most of the written evidence that the committee received was generally supportive of the bill, as Pauline McNeill mentioned, most of the oral evidence that we took was about a virtual bill—witnesses spoke about the bill that they would like to be drafted instead of focusing their comments on what was in the bill under consideration. We had to go over many matters repeatedly to tease out the issues that some of the witnesses had not been able to address in their evidence to the committee.
As members have already highlighted, the bill contains a number of limitations which, as paragraphs 21 to 25 of the committee's report show, the unions have serious concerns about. The STUC would like the bill to go as far as to widen its definition to cover workers in general. There might be a need to provide greater protection to all workers at a future date and, if necessary, that should be given serious consideration.
Some members have picked up on the lack of detail that the Executive and the minister have provided. I have serious concerns about the quality of the bill's policy memorandum. For example, paragraph 5 states:
"This Bill provides specific protection for emergency workers similar to that provided for police officers in the Police (Scotland) Act 1967."
That is factually incorrect—the bill does not do that. It provides protection only to emergency workers who are responding to emergency circumstances. The Police (Scotland) Act 1967 provides protection to police officers when they are on duty, regardless of whether they are responding to emergency circumstances. It is important that such issues are highlighted and addressed, because people set their expectations on the basis of the arguments that the Executive puts forward.
The Executive suggests that one of the key reasons for introducing the bill is so that it will act as a deterrent. I think that it will act as a deterrent to some degree, but the Executive presents no evidence to support the claim that that is what will happen. We have a huge amount of legislation on a range of issues relating to criminal behaviour. One could say that if we were to keep legislating, we would do away with criminality, but the reality is that legislation by itself will not do that. That is why it is important that the Executive regards the bill as only one element of a programme that will be rolled out to deal with violence against workers and sends out a much wider message.
Paragraph 7 of the policy memorandum says:
"Over the summer of 2003 the Minister for Finance and Public Services held an extensive series of consultations with trade unions and professional bodies"
and so on. We then get only two paragraphs detailing exactly what came from that consultation exercise. In the policy memorandum for the Gaelic Language (Scotland) Bill, which was published this week, more than three pages are devoted to what came out in the consultation exercise.
It is important for the Minister for Finance and Public Services to take on board the deficiencies that the committee's report highlights in how the Executive has handled the bill. I would go so far as to say that the way in which the Executive has presented the bill is disrespectful not only to members of the Justice 1 Committee but to the parliamentary process. If he is serious about legislation, the minister should at the very least marshal the proper arguments to justify the policy objectives in the bill. I hope that the minister will take those points on board and will deal with the civil servants who might be responsible for issues relating to the policy memorandum, because it is simply unacceptable to receive information in that fashion. It is precisely because of that lack of information that the legislation has been delayed so long in the committee.
I hope that the minister will go further and will rectify a number of the areas that the committee has highlighted as needing to be addressed at stage 2. The Justice 1 Committee's stage 1 report is far from a ringing endorsement of the legislation. A lot of work needs to be done, which the minister should have done at an earlier stage, but I hope that members will give the bill a fair wind at this point and support its general principles.
To echo Michael Matheson, when I first saw the slim, four-page Emergency Workers (Scotland) Bill, I did not suspect what lay in store for him, me and other committee colleagues. I suppose that we judged that such a bill's policy intention would meet with universal support and that its passage would present few difficulties. Given that a four-page bill has given birth to a stage 1 report that stretches to 48 pages and contains 217 paragraphs, perhaps the latter part of the committee's judgment has been proved to be overly optimistic.
I still believe—I am sure that all members of the committee concur—that the bill's objective of creating a specific offence of attacking an emergency worker who is responding to an emergency, as part of a wider drive against antisocial behaviour and as part of a wider package to protect public service workers, is laudable and praiseworthy; it is a good thing. I suspect that everyone in the chamber would agree with the minister, who said in his foreword to a recent document that was published in conjunction with the Scottish Trades Union Congress, employers and professional bodies:
"No one should ever have to face violence and abuse as part of their job."
The bill is clearly intended as part of the Executive's and Parliament's drive to create a society in which workers can go about their business without fear of assault, obstruction or hindrance. However, as the committee's lengthy report suggests, there is still much work to be done to turn those worthy aspirations into good and effective legislation.
I will concentrate on a number of aspects of the bill that have given the Justice 1 Committee great difficulty and which have resulted in many hours of rather tortured, and certainly tortuous, discussion before it was able to reach a majority conclusion. One area where the committee faced difficulty was the nature of the information that was made available to it—other members have referred to that. The information was of an especially limited and inconsistent nature with regard to whether the nine groups of emergency workers that are mentioned in the bill have suffered a significant increase in attacks when dealing with emergency circumstances in recent years.
I stress that the committee, on the initiative of its convener, Pauline McNeill, made a real effort to find reliable and consistent evidence of trends in respect of such violence against emergency workers. However, because of significant inconsistencies in the evidence that was supplied by the Executive and by other organisations, members were left, as the report states,
"seriously concerned about its reliability."
The inconclusive nature of the information that was provided did not assist—to say the least—the policy intentions behind the bill. I hope that the Executive will in the future acknowledge the need to provide scientifically significant and reliable data in support of its policy intentions. To allow a committee to search around for such evidence to supplement the admittedly considerable amount of anecdotal evidence that was presented to it is, I respectfully suggest, not the most efficient way to proceed.
Another example of when the committee had to make considerable efforts to elicit information was on the vexed question whether existing provisions were sufficient to protect emergency workers from attack and obstruction, as some witnesses argued, or whether the bill had the potential to provide emergency workers with additional protection from assault and obstruction and to make a genuine difference to the level of attacks on such workers.
On pages 19 to 23 of the committee's report, a helpful assessment is provided in tabular form of the added value that the bill would provide for most, if not all, the nine groups of emergency workers. I think, as did the majority of committee members, that the bill will provide additional protection for such workers, especially in relation to increased summary sentencing powers of up to nine months' imprisonment or, alternatively, a £5,000 fine.
Enough evidence was heard by the committee to suggest that such legislation has the potential, if enacted properly as part of a wider package of measures, to have a deterrent effect. We received evidence in support of that view from Unison, the Fire Brigades Union and CACFOA, as is evinced in paragraphs 89 to 91 of the report.
Above all, the elements of added legal protection and the potential to deter were enough to sway the majority of committee members to support the general principles of the Emergency Workers (Scotland) Bill. I hope that the minister, who has promised to give full consideration to the many points that were raised by the committee, takes seriously the many extant weaknesses in the bill and does all that is in his and the Executive's power to work with the committee to rectify those deficiencies at stage 2. The committee is at one when it states in its report's conclusion that it expects
"significant changes to be made at Stage 2",
especially in relation to specifying groups of emergency workers on the face of the bill and with regard to the section that defines emergency circumstances.
If we can work in such a co-operative manner, effective and strong legislation can be fashioned. As it stands, I will vote at decision time for the bill to proceed because its general principles are worthy of support. I regret the fact that the Conservatives will not vote for the bill this evening; I believe that that is a mistake.
Workers in Scotland require strong legislation to support them. By working together, let us ensure that the next two stages of the bill deliver a resilient act that is fit for purpose.
I am absolutely certain that everyone in the chamber is united in condemning the quite unacceptable behaviour of people who attack our public sector workers when they are doing the jobs that we entrust to them. That behaviour is unacceptable and must be the subject of criminal proceedings if the culprits are to be identified, detected, charged and then—it is to be hoped—convicted.
The dilemma for us is to take that worthy aspiration, which is shared by numerous contributors to the debate this afternoon, and to be absolutely objective and honest about whether we are turning that into the criminal legal framework that the bill aspires to. As has been suggested by my colleague Margaret Mitchell, it is the Conservatives' opinion that that objective is not being achieved. That is not to impugn what I know is the united endeavour and will of members to create an acceptable environment for workers in our public services.
I come at the matter from two angles. I read with interest the Justice 1 Committee's report, because there is an issue about the integrity of our committee system. Many of the committee's members have been frank in their comments about the task that confronted them; clearly, it was challenging. The conclusion at paragraph 28 of the report refers to the committee trying to come to a view on the general principles of the bill. It states:
"Much of this evidence has been conflicting, firstly with regard to the need for the legislation and secondly with respect to proposed amendments to it. It has, therefore, been exceptionally difficult for the Committee to reach a conclusion on the general principles of the Bill."
The question that I must pose is this: how can there be unqualified support for the general principles if the committee has clearly been lukewarm during its consideration of those principles?
Will the member accept that what she has heard so far in the chamber is not unqualified support for the general principles, but qualified support? We are looking for amendments at stage 2.
Yes, and I say to Mr Sheridan that that goes to the nub of the issue. I started my remarks by saying that there has to be an honest appraisal of any legislative proposal. I submit that my colleague Margaret Mitchell, who is on the Justice 1 Committee, discharged that objectivity and honesty by stating candidly in the report that there are concerns that preclude the Conservatives from supporting the bill as it is drafted.
Paragraph 54 of the committee's report, for example, refers to what is supposed to be the raison d'être of the bill:
"Given the limited and inconsistent information made available to the Committee it has been unable to reach any firm conclusion on whether the nine groups of emergency workers on the face of the Bill have suffered a significant increase in attacks on them when dealing with emergency circumstances in recent years."
The committee is candid, because it
"considers that the absence of such information seriously undermines the policy intentions behind the Emergency Workers (Scotland) Bill."
In fairness, Bill Butler alluded to that deficiency, but it begs the following question. If those are the genuine concerns of the committee, what are we legislating for? What is the underlying purpose of the bill that will be achieved by the way in which it is drafted?
Will the member give way?
I would like to make progress with my line of argument.
Pauline McNeill, the convener of the Justice 1 Committee, repeated one of the most telling phrases in the committee report, which comes in paragraph 110. Members should remember that this is a committee stage 1 report on legislation to be enacted by this Parliament. The committee concluded
"that the Bill will add, at the margins".
The question that must then be asked is this: are we as a Parliament doing our best by the very workers whom we all aspire to protect? Are we creating an environment that is safer and, in terms of criminal law, better regulated to deal with the offenders who offend against them? As an onlooker—I am not a member of the Justice 1 Committee—I have profound questions about the workability of the bill.
If I may, I will address the more technical aspect, to which my colleague Margaret Mitchell referred, which is the concept of common criminal law and statutory criminal law. My greatest fear is that there is a genuine misconception on the part of the Executive as to the value of Scottish criminal common law. That law is flexible and we have the capacity to introduce aggravated offences—we can do that now. The Lord Advocate has issued guidelines. We can increase the penalties that are available to our courts that find offenders before them and which have, on conviction, to determine appropriate sentences.
Looking at the bill as it is currently structured, and having regard to the Justice 1 Committee report—which, in my judgment, my colleague Margaret Mitchell was absolutely right to dissent from—I believe that a paradise will be created by the bill. The perversity is that it will not be a paradise for emergency workers, but a paradise for criminal defence solicitors, who will have a field day when the legislation reaches the statute book. That is a cruel disservice to bring upon emergency workers, whom all members value and seek to serve responsibly. That is why the Conservatives have grave reservations about the bill.
The bill will not do what we need to do. The minister said that by supporting the bill we will be showing our wish to protect emergency workers—I apologise if I have paraphrased his words incorrectly. In fact, by supporting the bill we might show our wish to augment the earnings of criminal defence solicitors and lawyers and we might do very little for emergency workers. That concern must be articulated, which is why my party is unable to agree to the general principles of the bill at stage 1.
In recent weeks, members have been accused of a tendency to say, "It wisnae me." However, I confirm that it was me—I raised the issue of protection for emergency workers in the previous session of Parliament, during the passage of the Criminal Justice (Scotland) Bill, when I lodged amendment 75 at stage 3 in response to concerns about attacks on firefighters in my constituency. I remember receiving widespread support from members and I am delighted that the Lord Advocate's guidance on the matter has been well received in courts throughout Scotland.
Experience has taught many of us that if we become complacent about how we implement guidelines, things fall by the wayside. The Executive should be commended for not being complacent on the issue. I appreciate a number of the points that Margaret Mitchell, Pauline McNeill and others raised about the complexity of the issue, but the fact that complex issues present us with serious challenges should not prevent Parliament from raising its game and ensuring that it takes on the serious issue of public sector and emergency workers being attacked in their communities. It is unacceptable and repugnant that people who work in emergency services, particularly firefighters and paramedics, should be attacked. I welcome the Executive's approach.
The detail of stage 2 should be left to the Justice 1 Committee. I will raise a number of important issues that should complement the bill. First, we must consider how we educate young people about the importance of public services that are delivered in communities. All too often, the curriculum in educational establishments does not cover the importance of public sector workers, but the bill presents an opportunity to inform young people about the important role that firefighters, police officers, paramedics and other emergency workers play. The Minister for Education and Young People and the Minister for Finance and Public Services could work in partnership to consider complementing the legislation with measures to tackle unacceptable behaviour in communities. It is not just young people who become involved in attacks on firefighters and paramedics; people who belong to various age profiles give our public sector workers a hard time.
I agree with Tommy Sheridan that housing officers have a difficult time of it out there and I would not oppose attempts to explore the possibility of extending the bill to cover such workers and others who are affected in their daily lives. Traffic wardens were mentioned. They are perhaps not the most popular individuals but they, too, serve communities in one way or another.
The member is taking things too far.
Tommy Sheridan has a sense of humour—that is welcome news.
There is a serious issue about how we ensure that organisations put in place procedures for staff to report attacks. I have met staff from a number of organisations—particularly health organisations—and it is evident that staff are not confident that their reporting of attacks will be taken seriously.
I welcome the Executive's proposed requirement—as stated in the explanatory notes to the bill—that organisations set in place a method to ensure that members of staff are taken seriously when they report concerns or attacks at their places of work and that such incidents are recorded properly. That deals with some of the issues that were raised by the Justice 1 Committee at stage 1.
In debates on this subject, we often miss out consideration of how we can prevent the attacks from happening in the first place, and of the design of the areas or environments where they occur. I have seen examples of health boards examining the design of accident and emergency departments to ensure that attacks become much more difficult. Let us consider how we can prevent attacks from happening in the first place. Let us ensure that the public are informed of the importance of public services. I want the Executive to add to the existing legislation, which will send a clear message that attacks on our public sector workers are absolutely unacceptable and will not be tolerated in a modern democracy.
Bruce McFee and I are very much looking forward to serving on the Justice 1 Committee during stage 2 of the bill. I have been allowed a bit over a year of time off from the committee for good behaviour; Bruce McFee, being the novice that he is, is a first offender. Please be gentle with him during stage 2.
From my reading of the bill—I have, of course, not had the opportunity of studying it to the same depth as other Justice 1 Committee members—the question that goes to the heart of the matter is this: why do we wish to protect emergency workers? The question why is key to understanding whether we should do something, and what it is that we should do. The answer in this case is straightforward: it is because emergency workers protect those whom they assist. The existence of emergency workers, and the work that they do, serves a broader public purpose, which is of broader benefit.
The bill seeks to protect a relatively small number of people for the benefit of a very large number of people—the public as a whole. That goes to the nub of the matter, in that we are seeking to deliver a benefit to a large number of people. We are seeking to help the general population—all of us—when we are in extremis. The aim is to save life and to mitigate the effects of emergencies.
The partnership agreement says:
"We will protect emergency workers from assault and obstruction."
I contend that achieving that, and serving the purpose that we all share in this respect, does not require us to define who emergency workers are, but rather to define what an emergency situation is and what an individual, whatever their qualification, rank or employment—indeed, it could be a volunteer—is doing. If the bill were to be amended at stage 2 so as to delete subsections (1), (2) and (3) of section 1, which deal with the definition of "emergency worker" and so as to open with what is currently subsection (5), which defines emergency circumstances—that is the nub of the bill, as nothing matters unless emergency circumstances exist—we could move on to identifying whether a person is responding to an emergency, but without having to specify that person.
Does the member appreciate that that is the nub of the problem? Just as it is difficult to define, by second-guessing any situation, who could potentially be an emergency worker, it is even more difficult to define and second-guess what circumstances could arise to constitute an emergency. That is why we must consider the individual circumstances of each case and use the common law, with all the increased powers of the Lord Advocate under the aggravated—
I think that we have got it. Curiously enough, I do not necessarily disagree with Margaret Mitchell's analysis, but I disagree with her conclusion.
There is scope for improving the law in this regard. After all, we are talking about relatively low-end offences. However, before talking about the law—I do not have much time—there are practical things that we should consider doing. For example, how much would it contribute to the safe operation of accident and emergency departments if we excluded non-patients where drink had been taken? Should we breathalyse people as they come into the department on a Friday or Saturday night? Funnily enough, that might deliver a huge benefit.
The minister responded to a question about the Loch Lomond Rescue Boat—a voluntary organisation, of which there are many. I am concerned that if we keep focusing on defining the people, we will exclude many of those whom we would wish to include.
Tommy Sheridan led us into slightly murky waters by talking about public service workers. I argue that that would include us—at least that is the way in which I seek to discharge my duties—so there would be difficulties with that.
The present definitions create problems. Let us envisage a situation in which somebody comes into an accident and emergency department with a double-barrelled shotgun and a doctor and his secretary are at reception, standing back to back. The secretary is there from another department to talk about the Christmas party with some of the people in the department. The double-barrelled shotgun injures both the doctor and the secretary, but one of them comes under the bill's remit and the other does not. If, on the other hand, they were standing face to face discussing an issue relating to the work of the department, the bill would apply to both. That is because at present the bill defines the people rather than the actions to which it applies.
There has been discussion about solemn procedure versus summary procedure.
Will the member take an intervention?
I am in my last minute. I am summing up.
You can take an intervention if you wish.
In that case, I will.
It will be short. Surely the example that Stewart Stevenson gave is not that helpful, because in the circumstances that he described, the person would be charged with attempted murder. We are talking about extra protection, so I am not sure that the example was illuminating.
Let us suppose, instead, that the person in the example throws paint over the doctor and secretary. The general point is illustrated in broad terms—the bill makes distinctions between people that are not related to their actions in emergency situations, which I think is unhelpful.
I say to Annabel Goldie that in considering the bill we are not, as she appeared to suggest, required to agree with it as it is presently framed.
That is the difficulty. The question is whether the bill is in a form in which it can be made good. Our submission is that it cannot be made good; it is fundamentally flawed.
It will be for the convener of the Justice 1 Committee at stage 2 and the Presiding Officer at stage 3 to determine whether amendments will enable us to maintain and sustain the general principles of the bill. The long title of the bill allows us to see what they are likely to conclude. It is:
"An Act of the Scottish Parliament to make it an offence to assault or impede persons who are providing emergency services; and for connected purposes."
That does not require us to define those people as medically qualified, nurses or doctors.
All sorts of issues of definition might cause us real difficulties. One of the curious issues relates to my personal life. Paragraph 165 of the Justice 1 Committee's stage 1 report suggests that only police constables have powers of arrest. That of course is not true. Nearly 40 years ago, I spent an enjoyable summer with a warrant card in my pocket when I was a water bailiff under the salmon fisheries acts. I do not imagine that we would want to respond to that fact by extending the definitions to cover my summer job as a water bailiff. By the way, I admit that purely on the basis that it will be excluded from the Official Report, in case people get to know about it.
We are, I hope, all seeking to solve a problem of which we have a common understanding. I suspect that that is the case. The bill—imperfect as it is—is our best opportunity to do so. I hope that all members will find it possible to accept the general principles so that we can move forward to an improved act derived from the bill at stage 2.
I register my interest as a member of Unison and as the wife of a psychiatric nurse.
In September 2002, I was fortunate to secure a debate in the Parliament on emergency services staff. The debate was held at a time when the number of vicious, sustained attacks on emergency services staff was increasing and causing considerable concern in communities. In that debate, members asked for consideration to be given to the provision to other emergency services staff of the level of protection that is given to the police in responding to emergencies. I am pleased that the bill will go some way towards doing that.
The bill gives protection in certain, limited situations. Surely, if someone is caught in a fire, is a victim of a road accident or needs treatment at an accident and emergency unit, the staff who provide them with a quality service deserve better protection under the law. However, we must be careful to ensure that, when offences are committed, they are not downgraded and prosecuted under the new legislation instead of being prosecuted under more serious legislation. Let us imagine a situation in which a brick is thrown through the window of a fire engine, which is then unable to make its way to a fire with the result that the fire causes much greater damage to humans or property. That offence is not adequately covered by the current law. For that reason, the bill will provide much greater protection.
However, one of the examples in the Executive's guidance—the case of an ambulance worker being stabbed—is not an especially helpful illustration of the bill's effect, as such an offence should be prosecuted under the law on assault or attempted murder. There are situations in which both types of legislation can apply. The Parliament has to acknowledge that our emergency staff need extra protection in responding to emergencies, as they still receive those attacks and people still require to be prosecuted.
I thought that the bill was quite simple until I came into the chamber today and listened to other members' speeches. Clearly, a lot of work remains to be done at stage 2. We need to define much better the section on emergency situations so that there is absolutely no room for dubiety in the law regarding what is and is not an emergency situation. The groups of workers that are named in the bill need to be looked at in more detail.
I welcome the minister's commitment to reconsider the position of social workers who operate in emergency situations. Nevertheless, he needs to look slightly further and wider. First, in relation to nursing staff in psychiatric admissions wards, it is not clear why the bill makes no mention of mental health staff. Emergency situations will exist in those wards. Although I appreciate the fact that it is a complex legal issue, it seems bizarre that there is no specific section relating to mental health staff.
Secondly, there is the position of staff in the state hospital in my constituency. The state hospital provides a unique service that we require and the staff who work there may well find themselves responding to an emergency situation, yet there is no specific reference to them in the bill. Prison officers are included, and the minister said that it is the view of the Executive that prison officers should be included because they provide emergency services in our prisons. I know that there is some argument about whether prison officers should be included; however, if that is the rationale that is being put forward by the Executive, I argue that the staff at the state hospital should similarly be included, as they provide the emergency service within the state hospital. I therefore urge the minister to reconsider that staff group, and I hope that when the committee is taking further evidence for stage 2, it will examine specifically the position of the staff at the state hospital.
The bill considers a specific set of situations, but there is little that I could disagree with in Tommy Sheridan's speech. It is clear that there is significant concern about attacks on public service workers and workers in general, be they hospital porters, bus drivers, call centre staff, the local village shopkeeper, health visitors, Benefits Agency staff or, dare I say it, traffic wardens. There is clearly a desire, particularly from our colleagues in the trade union movement, to expand the focus of the bill. My union, Unison, has called for a much wider definition to be included in the bill.
Although I am sympathetic to that point of view, that is not the focus of this bill. If there is a need to legislate to provide greater protection to public service workers, we should do so, but a separate bill would be required. I would like the Executive to evaluate the effectiveness of the Lord Advocate's guidance; to consider how it has been implemented during the period for which it has been in place; and to examine what other measures, whether through legislation or by other means, are needed to provide much greater protection to our public service workers.
Society must begin to acknowledge and accept that attacks on any worker who is going about their job are unacceptable. Workers deserve to be able to do their jobs without fear of verbal abuse or physical attack. I welcome the current publicity campaign that shows how verbal abuse can lead to someone spitting on someone, and then to someone being physically assaulted. We must stop that chain of events at its earliest stage so that it is not allowed to escalate. The publicity campaign goes a long way towards that.
My colleague Paul Martin made several valuable comments about the role of education and how we can begin to educate children and their parents to the effect that it is totally unacceptable to attack any worker who is going about their job, whether that attack is physical or takes the form of shouting down the phone.
I will support the bill, although changes will be required at stage 2. The bill will enhance our criminal justice system in a specific set of circumstances for those emergency workers who provide support to us when we need it in an emergency situation. I hope that the chamber will support the bill.
I do not have the pleasure of serving on the Justice 1 Committee. I came to the issue thinking—as I am sure that most people do—that it seemed to be a good idea to protect emergency workers in such situations. However, having toiled through the report carefully during the past day or two, I think that it is quite the most critical committee report on a bill that I have ever read. The next bill that we will need will be one to protect ministers and departments from savage attacks by committees.
I suggest that the minister should take longer than usual before stage 2 so that he and his colleagues can work out how to meet the report's many criticisms. Like Edward II, he should go home and think again about some of the aspects of the bill.
A lot of people have made very good points criticising the bill. I will run through a few of them. There is the question whether going for aggravation of existing offences would work better than inventing new offences. I am not a lawyer and my only experience is of introducing a bill section about offences that are motivated by religious hatred. That use of aggravation seems to have worked well and, so far, 110 people have been found guilty of the offence and of the aggravation. Therefore, it is worth considering the approach of aggravation.
The Executive must be clear whether the bill seeks to help the emergency workers or the people who should be receiving the emergency services and are not. The purpose of the bill must be clear.
I agree with the member. Does he agree that the meals-on-wheels service arriving at an old person's house and finding that vandals have set a fire at the front would constitute an emergency service?
That is probably right.
The bill involves defining an emergency worker, what an emergency is and where it is. Personally, with a reasonably fresh view of the issue, I find it a ludicrous concept that it is a bigger crime to thump a nurse in one part of a hospital than it is to do so in another part. In fact, thumping auxiliary workers does not seem to be an offence at all under the bill, although it is an offence under other legislation. The bill does not seem to protect doctors in surgeries, although other laws protect them. The bill is very specific and involves unnecessary identification and categorisation. As has been said, the bill's provisions mean that it must be proved that an offender had reasonable grounds for knowing that the person whom they assaulted was an emergency operative and that the situation was an emergency. As Annabel Goldie said, that will be a lawyer's charter.
Parts of the bill are seriously unnecessary. I would like to explore further ideas that have been suggested by some unions. Unison in particular thought that the bill's distinction between an emergency worker and a non-emergency worker was illusory. The STUC proposed a protection of workers bill. Other people mentioned most other categories of workers. We had a welcome assurance from the minister that social workers would be included in the bill, but they should be included whether or not they are involved in an emergency.
Housing staff also get assaulted frequently, as Tommy Sheridan said. Benefit staff get assaulted. Bus drivers get assaulted. Ticket collectors on trains, who do not have a very romantic job, have serious trouble with difficult people. Hospital workers other than doctors and nurses, people who are involved in mental health services and traffic wardens all get assaulted. Shop staff also get assaulted. A shop assistant who refuses to serve an under-age person with booze is performing a useful public service, yet is liable to be thumped. They all deserve some protection. Even MPs are vulnerable. One of my political colleagues was injured and his assistant was killed when the MP was doing his public duty.
Many people who work for the benefit of the public should get protection. That may mean that it will be necessary to have another bill. I personally think that the bill's focus on emergencies is wrong. However, we have the bill and it is important to send out a clear message to the public that assaults of all sorts are not acceptable at all. Firemen and so on, in particular, need to be protected much better than they seem to be at the moment.
We will not send out a good message if we have a bill that does not work. To change attitudes, the minister and the committee have a lot of work ahead of them to produce a bill that works. The committee deserves great credit for its report and I look forward to its producing, along with the minister, a bill at stage 2 that we can genuinely vote for at stage 3; otherwise, I will not vote for it.
I have not previously been involved in this matter but, as I have listened to the debate unfold, I have become more and more alarmed. That is a commentary on the bill rather than on members' speeches, which I thought were sound and made well-argued points.
Let us start from the basis on which we all agree, which is that there is a problem of unacceptable behaviour by those who should know better but clearly do not in respect of attacking firefighters when they are attempting to rescue people in emergency situations, and assaulting and interfering with hospital workers and others who are endeavouring to contribute to society. It is not surprising that the Executive should represent the views of the Parliament as a whole in wanting to do something about the problem. The good intentions that lie behind the bill are not doubted for one moment. However, I take issue with the idea that legislation is the best way of solving the difficulty, because there are a number of ways in which it could have been solved.
First, the difficulty could have been resolved by examining the Police (Scotland) Act 1967, which has not been without its interpretive difficulties. In a group disorder that is attended by plainclothes police officers who grab hold of somebody who then assaults one of the police officers, the question of identification arises: how did that accused person know that the individuals were police officers? That is one example of the difficulties that occur, and Mr MacAskill will agree that it is not an infrequent one. We are asked to approve a bill that makes the difficulties of definition and of establishing mens rea much more complicated. That is not how we should be proceeding, because there are so many more sensible approaches.
We should rely on the common law. Time and again when the Executive frames criminal justice legislation, it diverges from the basic sound principles of common law. The common law has been established over centuries. It has been made through judicial decisions that have, frequently, been subject to appeal and it not only reflects, but frequently changes in accordance with, the way in which society is moving. Therefore, why is the Executive reluctant to rely on the common law and why is it almost obsessed with legislating and tying things down in a manner in which they do not need to be tied down? That is unnecessarily restrictive.
There are other ways in which the Executive could have used existing legislation. Why did it not increase the sentencing powers that are available to summary courts by implementing section 13 of the Crime and Punishment (Scotland) Act 1997, which could in turn have been used to adjust the summary procedures legislation? Why did it not implement the recommendations of the McInnes report? That report seems, strangely enough, to have been kicked into the long grass at the moment, so we will have to await developments on that. Why did it not accept the stage 3 amendment to the Criminal Justice (Scotland) Bill that was lodged by Paul Martin, who was exceptionally active on the protection of emergency workers? That would have dealt with the matter. Why did the Executive not accept the amendment in my name to increase to 12 months the sentencing powers of the summary courts? That would have dealt with all the specific difficulties much more efficiently than the bill. Frankly, I think that what is likely to end up on the statute book will have so many complications that it will be a lawyer's paradise, and heaven knows what the legal aid bill will be.
I have some sympathy with the points that Bill Aitken makes on the bill being a lawyer's paradise, but even the common law is subject to that criticism and we sometimes simply have to rectify law that we created as a reaction to a specific issue. For example, legislation was brought in to deal with the possession of weapons, which was viewed as a significant problem, because we wished to highlight the fact that the common law was dealing with it inadequately. It became a beanfeast for lawyers debating what length a knife had to be before it fitted the definition, but we closed down the loopholes through legislation. There will be problems with the definition of emergencies, but if we create the legislation, we can deal with the problems that will arise anyway.
I do not disagree profoundly, but the firearms legislation was more specific than what is proposed in the bill. That is the basic issue. When I look through my notes on the speeches in the debate, I see that every member has expressed serious concerns about whether the bill will be able to work. Pauline McNeill used the phrase "workable law", but the fact of the matter is that the bill is not workable law.
I suggest to the Executive—and I think that it would agree—that in extreme cases, in which the assault is serious, the accused should be prosecuted on indictment, which is a straightforward solution. Of course, in February 2003, the Lord Advocate issued a guidance note to procurators fiscal that highlighted the extent of the Parliament's concerns and advised fiscals that the matter should be taken much more seriously and that they should consider very carefully in which court such incidents should be prosecuted.
There is not all that much more that the Executive needs to do, but what it is doing in the bill will create a legal quagmire that will result in hundreds of appeals. At the end of the day, the section of society that we are all anxious to protect will be no better off. I say in all seriousness to the minister—I am not making a political point—that he must re-examine the bill. If he allows this mishmash to be passed, it will have consequences, which will include bringing the law into disrepute, to the point of being a laughing stock.
I welcome the intention behind the bill. I hope that we all support the idea that we should protect our emergency workers in all circumstances and not just in emergency circumstances. Many members who have spoken today also spoke in the debate back in January, when we all welcomed the intention to protect emergency workers.
I commend my colleagues on the Justice 1 Committee. They must have thought that they had it easy when they received a small four-page bill, but it ended up as a wrestling match. I am glad that the wrestling match was not with one another but with the bill, the explanatory notes and the policy memorandum, which were not up to the job and left the committee in great difficulty throughout the process.
Many members have talked about protecting emergency workers. That is all well and good, but I clarify that the bill is not intended to protect emergency workers in all circumstances; it protects them in emergency circumstances. Understanding that is crucial. Many of the witnesses and the people who gave written evidence failed to understand that fundamental point.
The bill is narrowly drawn. I have great concern that it will not protect emergency workers in the way that we want to and in the way that they believe that it will protect them. The bill is also a bit of a missed opportunity, as the committee believes that it helps only at the margins. The Executive should re-examine the bill and think hard about the comments that we have heard today and which are in the committee's report.
I echo the comments that many members of different parties, including Michael Matheson and Bill Butler, have made about statistics. The committee wrote to the Executive and to the minister several times. I and others, I am sure, also asked the minister in his evidence session about the lack of information on the number of attacks on emergency workers in emergency circumstances and the trend in the statistics. I am afraid to say that we never received those figures. We received some information, which was about the number of attacks on various groups of workers, such as doctors and firefighters, but it was incomplete and did not concern attacks on emergency workers in emergency circumstances. The lack of statistical information to back up the bill's policy intention is a serious flaw.
That is indicative of the Executive's poor thinking and lack of logic about, and sloppy attitude to, the bill. The committee was provided with no statistical evidence to support the bill's rationale. I agree that many attacks are occurring and that even the evidence that we received seems to show that the number of attacks on emergency workers is rising, but we do not know whether those attacks are on emergency workers in emergency circumstances.
The policy memorandum did not deal properly with the alternatives, several of which Bill Aitken mentioned a moment ago. One is the common law. The Lord Advocate issued strengthened guidance only a few months ago and we have not seen whether that will deal with the problem. Several witnesses talked about plea bargaining in such aggravated cases. Implementing section 13 of the Crime and Punishment (Scotland) Act 1997 is a possibility, as is implementing the summary justice review recommendation that sentencing powers should be increased to 12 months and a £20,000 fine. Many of the arguments for those proposals are valid and the Executive did not explain properly the reasons why it rejected them and decided to go down the legislative route.
The committee was far from convinced by the arguments of the Executive and the minister about the bill. That is clear from the debate, and that nearly led us to reject the bill at stage 1, not because we do not want to support emergency workers, but because the bill's ineptitude and the lack of background information, statistical evidence and a rationale were unacceptable.
I will not go through all the different categories in the bill. We have heard many arguments about who should and should not be included, but I want to highlight a couple of groups of people. I agree with what Jackie Baillie said about the Loch Lomond Rescue Boat and other inland or estuary rescue boats that basically do the same job. I think that there is a rescue boat on the Black Isle at the northern edge of the Kessock bridge.
Prison officers are mentioned in paragraph 145 of the committee's report. I certainly agreed with the committee's recommendation that prison officers do not meet the criteria that are laid down in the report, but I have changed my mind on the matter. I have done so because I accept the minister's argument and in particular what was said in discussions with representatives of prison officers. I think that there is a mistake in the paragraph, which states that prison staff call the police when they lose control. Prison officers say that they call the police, but the police do no more than patrol the prison's perimeter. It is the prison officers who deal with situations inside the prison, which puts a different light on such situations. Perhaps the committee was not fully aware of that when the paragraph was written.
Does the member recall that when we were taking evidence, we heard that one of the prison officers' grievances was that existing law was not being used? There was existing law to protect them, but charges were being dropped or plea bargained away. If existing law were used, perhaps we would not need such legislation.
A number of witnesses said that, and I questioned a number of them about it. I accept much of the logic of the member's argument, but there is much more that we can do with the legislation. As it stands, the bill does not do the job.
The other point that I want to make is that special constables are included, but community wardens are not, which is perhaps a flaw in the bill.
When emergency workers and emergency circumstances are put together, things will be difficult to prove in many different areas. I do not understand the difference between attacks on emergency workers in emergency circumstances and attacks on them in non-emergency circumstances. For example, will the minister explain whether a false alarm or a malicious call will be covered by the bill? Such things do not seem to be covered in sections 1(4) and 1(5), as they are not emergency circumstances. Perhaps the minister could explain further.
A possible solution to the problems is to simplify the whole process and the bill. One of the greatest fundamental difficulties with the bill lies in the bringing together of emergency workers and emergency circumstances. Emergency workers can be called on to deal with emergency circumstances at any time. Therefore, it would be much more sensible to concentrate on on-duty situations, as the Police (Scotland) Act 1967 does, so that if doctors, nurses, paramedics, firefighters and others are on duty, they will receive protection for being emergency workers at all times and not only in emergency circumstances. It does not seem right that if a brick goes through the front window of a fire engine when firefighters are on call to an emergency circumstance, the firefighters will be protected by the legislation, but if a brick goes through that window when they happen to be out checking hydrants, for example, they will not be protected by it.
Will the member take an intervention?
No—I am in my final minute.
You must finish now, Mr Maxwell.
What I suggest would be much simpler to prove and for everybody to understand.
In conclusion, I think that it is right to support the general principles of the bill, but only so that it can be seriously amended at stage 2.
There is quite a lot of noise in the chamber. Andy Kerr has six minutes.
Six minutes is a short period in which to address the substantial issues that have been raised this afternoon. I thank all members for their contributions.
I add my name to the list of people who said, "Here's a short bill that looks simple." I thought that I would be happy to take the committee, deal with the whole parliamentary process and not even use my deputy for the bill. However, the bill has proved somewhat more interesting than I expected it to be.
The afternoon has been interesting. Mr Sheridan made a joke—which was groundbreaking in many ways—and Mr Stevenson added another job to that long list of jobs that he had in the past that are relevant to our discussions in the Parliament. Paul Martin brought us back to the origins of our work, and I want to talk about that.
As I said at the start of today's debate, extending the definition would risk diluting the effects of the bill. Our clear intention is that the purpose of the bill should be very specific, in that it should protect emergency workers in emergency situations. Members have rightly raised some important issues to do with mental health officers and those who deal with child protection, and I have agreed to reflect on those matters at later stages. Mr Maxwell has dealt with the point about whether prison officers are included, although we can further discuss the committee's view at later stages.
On whether workers such as the inland water rescue teams that Jackie Baillie mentioned should be included within the bill, I think that we should not forget that we are not cutting off the avenues that exist under common law. The common law will continue to protect workers and it will continue to be upheld in the work that the Lord Advocate does and will continue to do. The bill is about specific situations for which we seek to move our statute law forward by providing additional cover.
I think that the point about Reliance officers has already been clarified.
Karen Gillon mentioned the state hospital at Carstairs. I understand that doctors, nurses and security staff who are called to respond to emergency circumstances there will be protected by the bill. Doctors and nurses will be covered under section 1 and security staff who act under the direction of doctors will be assisting persons, so they will be covered by the bill. I am happy to address those matters at stage 2, but that is my indicative response to Karen Gillon's point.
Some speakers throughout the afternoon talked about a lack of evidence, but everybody else has acknowledged that attacks on emergency workers are happening more and more in our society and that we need to deal with them. The Executive is trying to deal with the situation that we all know is out there. Clear action is required. In every discussion that I have had with trade unions and professional bodies, I have been told that the problem is bigger than people would think. It happens all over Scotland and we need to deal with it. However, despite the fact that we all agree on that, we have been criticised for lacking evidence on the problem. Arguably, the anecdotal evidence is clear, but the bill will ensure that we get further evidence. We need to encourage people to come forward by using the bill in a positive way. That will ensure that we develop our evidence base.
Members have made some useful contributions, but we must now seek to ensure that the bill makes a difference. People have said that we are showboating and that the bill is not worth having, but I argue that the job now—at stage 2—is to make the bill work. Members can rest assured that, as the Executive minister responsible, I want to make the bill work and I will work with the committee to ensure that we get this right.
Just because we disagree, that does not mean to say that the Executive is not right on these matters. I am not a barrack-room lawyer—or any sort of lawyer—but I take advice from Scotland's most senior law officer. On occasions, that should count.
On the financial memorandum, members said that it cannot be right that the bill will not create more costs. Actually, the bill will add to the suite of legislation that is available. On occasions, the common law and the bill will replace each other, so additional costs are not an issue—[Interruption.]
Order. There is far too much buzz. Members must keep their conversations down.
The point that Paul Martin raised was absolutely right. I know that my daughters' school has received visits from police and has made trips to the local fire station to learn more about the respect that is owed to emergency service workers, but we need more of that. Our wider package of such measures was welcomed by many members.
I welcome what Mr MacAskill said in his intervention on Mr Aitken. He is absolutely right that we should let the lawyers sort it out and let the justice system resolve the doubts that have been expressed. That is exactly what the law does. That will lead to increased definition and a further refining of the bill as it is rolled out. He asked me to learn from and reflect on the issues at stage 2, and I assure him that I will do that.
I would rather not finish on this point, but the one note of discord in the whole afternoon came not from the Tories, who took a principled position against the bill, but from Mr Matheson, who accused me of being disrespectful to the Parliament and to its committees for trying to do what we think is right to protect emergency service workers. We are doing our best to make this legislation work. Indeed, that is what I will continue to do. As a result, I think that Mr Matheson's comments were out of order in this debate.
I wanted to respond to many other points, and I will try and do so at stage 2. I will happily spend more time with Conservative members to explain more fully our intentions behind the bill. I think that it is right and worth fighting for, because it will make a difference.