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Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill

Overview

This Member’s Bill was introduced by Daniel Johnson MSP. It aims to give greater protection in law to retail workers, particularly where they are providing goods and services that are age restricted. This is where the law says you can’t sell them to someone who is under a particular age. The Bill applies to retail workers while they are doing their jobs (for example, in shops, bars and restaurants). It makes it a specific, new criminal offence to:

  • assault them
  • threaten or abuse them
  • obstruct or hinder them

If the offence was committed because the worker was applying an age-restriction (for example, asking for proof of age from someone trying to buy alcohol), this would count as an “aggravation”. This could potentially make the offence more serious. 

You can find out more in the document prepared on behalf of Daniel Johnson MSP that explains the Bill.

Why the Bill was created

Retail workers often face violence and threats while doing their jobs. Daniel Johnson believes this is wrong and that a new law could help to tackle this problem. He thinks the Bill will make it more likely that workers will report problems to the police and that offenders will be punished. 

You can find out more in the document prepared on behalf of Daniel Johnson MSP that explains the Bill.

Where do laws come from?

The Scottish Parliament can make decisions about many things like:

  • agriculture and fisheries
  • education and training
  • environment
  • health and social services
  • housing
  • justice and policing
  • local government
  • some aspects of tax and social security

These are 'devolved matters'.

Laws that are decided by the Scottish Parliament come from:

Bill stage timeline

The Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill is currently at Stage 1

Introduced

The Member in charge of this Bill, Daniel Johnson MSP, sends the Bill and related documents to the Parliament.

Stage 1 - General principles

Committees examine the Bill. Then MSPs vote on whether it should continue to Stage 2.

The Parliament agrees that consideration of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill at stage 1 be extended to 25 September 2020.

Have your say

The deadline for sharing your views on this Bill has passed. Read the views that were given.

Committees involved in this Bill

Who examined the Bill

Each Bill is examined by a 'lead committee'. This is the committee that has the subject of the Bill in its remit.

It looks at everything to do with the Bill.

Other committees may look at certain parts of the Bill if it covers subjects they deal with.

Who spoke to the lead committee about the Bill

Video Thumbnail Preview PNG

First meeting transcript

The Convener

Under agenda item 4, we will take evidence at stage 1 of the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill, which is a member’s bill. We have three panels of witnesses today, so we will be tight for time. I ask all members and witnesses to try to keep their questions and answers tight, so that we can get through everything efficiently.

I welcome Gillian Mawdsley, who is a policy executive from the Law Society of Scotland, and Superintendent Ian Thomson, who is with safer communities at Police Scotland. Members will ask questions, and we will start with Richard Lyle.

Richard Lyle (Uddingston and Bellshill) (SNP)

I remind everybody that I am a member of the cross-party group on independent convenience stores.

The committee is aware of concerns about high levels of violence and abuse that are directed at retail workers and that the situation might be worsening. What is the scale of the problem? Is it getting worse? I direct that to Superintendent Thomson, because I want to know the police’s experience.

Superintendent Ian Thomson (Police Scotland)

Is the situation getting worse? It is difficult to say on the basis of what is reported. One issue that we have in understanding the extent of the problem is that our processes for recording crime do not facilitate an intuitive way of breaking down the information to identify the specifics in relation to crime against retail workers.

From a general point of view, we have seen a decrease in violent crime over a number years. There is evidence that it has flatlined over the past year or so. The police recognise the significant impact of violent crime—it affects every community in Scotland—and we see tackling it as a priority. We continue to work not just in the legislative framework but, more importantly, with our partners, with a view to preventing violent crime and finding a sustainable solution in that regard.

Richard Lyle

There is a perception that the justice system does not always take abuse of retail workers seriously—the point that you have just made, I think—and that reporting of incidents will not lead to prompt or rigorous police action. It is perceived that cases will not be prosecuted and that, if they are, they result in light sentences. Would you like to comment? The question is perhaps directed to Gillian Mawdsley.

Gillian Mawdsley (Law Society of Scotland)

That is quite a general statement, so perhaps we can break it down. It is important to look at the criminal justice system as a whole. As you know, there are different stages in the process. It would be useful to ascertain at exactly what stage of the process there is a failure to address violence towards workers, which is clearly unacceptable and a problem.

In my written evidence, I refer to the different stages. I am aware of the committee’s time constraints, but I am happy to go through that. You mentioned light sentences, which is, if you like, the conclusion of the process. I did not find in my work any suggestion that, where such offences are being convicted, there is light sentencing. That particular aspect could be addressed if it were a problem, because clearly there are rights of appeal with regard to sentencing. There is also the Scottish Sentencing Council, which has a role in guidelines, if that were felt to be appropriate. That is only one stage.

I would pick up one point from what Superintendent Thomson said. The Government keeps official statistics on crime, and the difficulty here is that there is a generality of offences that occur in retail environments or towards retail workers. Better specification or availability of information would inform us whether there has been failure to report, failure by the police, failure by the Crown Office and Procurator Fiscal Service or failure by the courts. Does that help?

Richard Lyle

Yes.

Jackie Baillie (Dumbarton) (Lab)

My question is for Ian Thomson. I am curious to know what factors the police take into account when deciding what action to take when there is an incident of abuse against a retail worker.

Superintendent Thomson

That will depend on the circumstances. We treat violent crime, antisocial behaviour and disorder as priorities across Scotland, whether they involve a retail worker or any other member of the public. We recognise the important role that retail workers play in the community.

When we receive a call to say that somebody has been physically assaulted or abused, we ensure that the police attend. We have a process of assessing the risk to the individual, based on the circumstances. Police officers will attend and carry out the appropriate investigation, which primarily involves speaking to the victim, getting a note of the circumstances, identifying whether a crime has been committed and, even if a crime has not been committed, considering whether other action needs to be taken. If there is sufficient evidence to arrest, which can come from many places, such as closed-circuit television, witness interviews or police officers’ observations, the individual will be arrested and subsequently charged. The investigation carries all the way through to a report to the procurator fiscal.

Jackie Baillie

My experience locally, though, is that the violence stops after the police have attended and no further action is taken. Is that common, or is it peculiar to my area?

Ian Thomson

It is difficult to comment without knowing the circumstances. No police officer will have a policy of saying, “We will not take further action on this.” The decision will be based on the individual circumstances, and if there is evidence to suggest further criminal activity, that will be taken into account. We have a duty to keep people safe to report evidence of a crime having been committed, including recording it.

Jackie Baillie

My next question is for Gillian Mawdsley. Do you anticipate any practical or legal difficulties with enforcement, based on the way in which the proposed offence and aggravation are framed?

Gillian Mawdsley

The aggravation element raises an interesting question about the bill, which contains an offence and an aggravation. The problem with an aggravation is that one can argue that one source of evidence might not be sufficient if the aggravation is a fundamental part of the crime, so there might be a need for corroboration. That is a potential difficulty in relation to how an incident sparked off.

The other issue is that we are used to dealing with aggravations in relation to protected characteristics. In a matter of weeks, Parliament will be considering the hate crime bill—we expect it imminently—and that might provide some guidance on how we deal with aggravations. That might provide an opportunity to consider the type of aggravation that is being framed in this bill. Depending on how that bill is set out—I have no idea about that—it might provide the opportunity to highlight the issue. That is my suggestion, which I hope is helpful.

Jackie Baillie

It is. Thank you.

The Convener

I have a question for clarification from Mr Thomson. You have said that the decision would be based on what has occurred, and Gillian Mawdsley commented on corroboration being an issue, but in your experience does lack of corroboration cause cases not to be taken forward?

Superintendent Thomson

If we do not have corroboration, it can be difficult to substantiate the crime. Corroboration can come from different places and depends on the individual circumstances—for example, CCTV can be valuable. I do not want to speak on behalf of the lawyers, but it is important to understand that the sufficiency of evidence to charge does not need to be at the same level as is needed to get a conviction. That means that the corroboration can give us sufficient evidence and confirmation of the crime and indicate that the accused person was identified. I hope that that answers your question.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

Police Scotland’s written submission suggests that non-punitive measures might be appropriate when dealing with young people who have engaged in abusive behaviour. Will you expand a wee bit on that and say when it might be considered appropriate?

Superintendent Thomson

That is important. There is a challenge in striking a balance between how we prevent crime and the potential impact on the people who are affected by the crime or on those who commit it. From my experience, and from the work over the past few years on violence reduction, it is evident that enforcement activity alone is not a successful approach to preventing crime. Enforcement is an important element, but it must be part of a wider plan. That wider plan involves understanding the causes of crime and of people acting in certain ways in order to build on that primary prevention element and try to intervene before crime takes place.

As we have seen in other areas, criminalisation of children is not always the best outcome in relation to the life chances of an individual and their ability to carry on their life without going back to offending. I believe that there is more value in providing an opportunity for a child to do something else. That could be through a referral to an appropriate third sector organisation or other organisation that can assist with the child’s offending behaviour, with a view to changing the behaviour, rather than putting the child in front of the court and imposing a punitive measure.

Colin Beattie

I am thinking about the evidence that you gave to Jackie Baillie about deciding what action to take in relation to a specific incident. You were clear that you respond to calls from retailers that have a problem and that you intervene and try to take evidence, but that sometimes you have problems with corroboration. How would all that change if the bill were to be enacted?

10:00  



Superintendent Thomson

In relation to the incident itself, there would be no significant change in how we go about our business. However, the bill adds a bit about “hinder and obstruct”, which is not covered by other legislation, so that would change our response because there would be an additional offence. However, if the circumstances are such that there is legislation for a crime or offence and that crime or offence takes place, our approach would in effect be the same.

Colin Beattie

So you would follow the same police procedure to try to determine whether an offence had taken place and whether action needed to be taken. Would that change at all?

Superintendent Thomson

No, it would not.

Colin Beattie

You mentioned the offence of obstruction or hindrance, which is a big issue in the bill. Currently, that is not a criminal offence. Can you give an example of an incident involving obstruction or hindrance? How would you define that? It is a slightly unfair question, but I am asking it just the same.

Superintendent Thomson

If the bill is enacted, we need to be clear about that definition. From the point of view of an operational police officer, a lack of clarity is not good when you are going to attend an incident. From training all the way through to practical operational application, it needs to be made clear exactly what would constitute an offence.

Colin Beattie

If the new offence of obstruction and hindrance is to be introduced, should it be subject to criminal sanctions?

Superintendent Thomson

I have concerns about the end-to-end process and the outcomes, given what the bill is trying to achieve. The ultimate aim is to make a safer environment for retail workers and to prevent crime from happening in the first place. From what I have read, it would appear that the bill is lowering the threshold of criminality. From my experience, if it involves age-restricted products, that introduces the possibility of involving offenders who are children and young people, and—

Colin Beattie

Are you thinking about the sale of cigarettes and alcohol?

Superintendent Thomson

Absolutely. There is a risk that the end does not justify the means. The outcome might not be achieved and it would criminalise children and young people, which would have an adverse impact on their life choices. That is not to say that one person is more important than another, but I go back to the outcome that we want to achieve. It is deplorable if anyone working in the retail trade feels that they are likely to be a victim and is afraid. That is not acceptable and that abusive situation must be eradicated and prevented. We will do everything in our power to do that. However, we need to think about the outcome. I am not sure that going through a criminal process and going to court will necessarily prevent such crimes from taking place.

Dean Lockhart (Mid Scotland and Fife) (Con)

I have a follow-up question for Superintendent Thomson. It would be helpful for the committee to understand what the police see in practice when they get a call in relation to retail sector workers who are being abused. Are there typical circumstances or one or two scenarios that the police see commonly when they are called out, perhaps involving drugs or alcohol? Can you paint us a picture of what you see in practice?

Superintendent Thomson

Members will understand that, as a superintendent, I no longer turn up at shops and deal with such incidents. However, I am aware of what happens through my experience and through speaking to officers. There is no typical example—it is dependent on the individual circumstances and the behaviour of the individual who is causing the alarm or committing the violent crime. It is evident that a range of things can happen, from people standing there and being abusive—a hate crime element can sometimes come into that—to people being physically assaulted. From a policing point of view, the important thing is to understand what powers are available to us to deal with those circumstances. Ultimately, that protects everybody concerned at the point of risk of harm to the individual.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

My question is for Gillian Mawdsley. The submission from the COPFS argues that current laws allow it to respond appropriately to reports of abusive behaviour against retail workers. What is your view on that issue in general? Do we need the bill?

Gillian Mawdsley

The bill has an excellent motivation. We are aware that there is a problem, because it has been reported and there is lots of evidence. The problem is that a number of offences can already be used for prosecution. I agree with the Crown Office submission that there is a range of offences that can be used.

As we identified in our submission, it would be useful if various offences that are currently not being prosecuted were identified. They could then be analysed so that it could be considered whether there are gaps in the current legislation. If gaps can be demonstrated, there might well be a need for legislation, whether through this bill, the hate crime bill that is to be introduced, or other legislation. I am having difficulty identifying gaps.

An example was given to me this morning of a retail worker being spat at. That is totally unacceptable and would be prosecuted as an assault under current legislation. The problem is that somebody has to report it to Ian Thomson in order for him—with sufficient admissible corroborated evidence—to take it to the Crown Office to be prosecuted in the public interest. It might be that a gap in corroboration or in awareness is causing the problem. I am open to scenarios being presented and to being asked whether something can be prosecuted under current legislation.

Willie Coffey

Thank you.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

I declare that I am the convener of the cross-party group on independent convenience stores.

Carrying on the conversation about whether there is a gap in the legislation, I have a couple of points to raise. The British Retail Consortium’s survey suggests that there has been a 100 per cent increase in incidents of violence involving retail workers. The Union of Shop, Distributive and Allied Workers has suggested that 70 per cent of shop workers in Scotland have experienced verbal abuse, 42 per cent have been threatened by customers and 18 workers are assaulted every day.

If there is no gap in the legislation, why are we seeing an increase in attacks on shop workers? What is the problem? Is it underreporting? What is causing the situation in which we see crime generally in Scotland dropping, yet an increase in retail workers facing problems, whether it be harassment, obstruction or physical abuse? What is the real issue that we need to tackle?

Gillian Mawdsley

For the criminal justice system to be engaged, an incident needs to be reported. I do not doubt that the figures that you have quoted clearly show a rise in incidents.

The first thing that we need is better specification of exactly what is meant by those figures. Violence is obviously unacceptable—Mr Thomson has referred to that and we totally agree—so the question really is, what sort of conduct do those figures represent? Once you have identified what sort of conduct it is, you can ascertain whether it is criminal.

We talked about hindering, and I completely echo what Mr Thomson said in relation to it. Clarity of the law is needed—is the law clear? I would have thought that the law has a range of offences that can be used for the majority of incidents, but as I keep saying, I am more than open to being presented with a scenario and someone saying “No, there is a gap—that is not prosecutable”.

There probably is underreporting, although that is speculation by me. There may be a lack of understanding—

Gordon MacDonald

On that point about underreporting, do you have figures to suggest how many cases are reported, in how many cases it is decided that a crime has occurred, and how many cases arrive in court?

Gillian Mawdsley

Those are the figures that I alluded to earlier. It would be useful to have them. The official statistics come from different organisations. Some come from Police Scotland, and some come from the Crown Office or the Scottish Courts and Tribunals Service. They all treat things differently, as I know from my previous professional experience.

We do not have information that says, “This violent incident occurred in the retail sector.” What is recorded is an assault and a conviction. It may occur in a shop, and many convictions may relate to shops or to the premises that you are concerned with. We need a better evidence base. I do not doubt the information that the retail organisations are giving about a rise in criminal problems for their staff. There is a better evidence base across the whole Scottish criminal justice system, which I alluded to when we talked about question 8. If we could get that clearer, we might have a better understanding of the point in the system at which the failure arises.

There may be underreporting, and Ian Thomson gave some potential reasons for that. People might not think that anything will happen if they report, so they do not do it. They might not realise something is a crime; they might think it is the norm for the job. We are aware of all those underlying issues, not just in relation to this type of offending but to offending in general.

People need to have confidence. Employers must support them, rather than saying, “You don’t want to report that; I don’t want to lose you when you go to court as a witness.” Some people look at the justice system and think that it will take forever to get a result, or that the results will not be fed back to the staff, or that the staff will still have to deal with the same people coming into the same shops and doing the same thing. How are you going to stop them? A fine will not stop them. Community payback may or may not stop them. That all illustrates why people underreport. There are problems at the source and there are things that we could do to understand that better.

Gordon MacDonald

You are suggesting that there must be a culture change. Do you agree that introducing the bill would send a clear message that society should not tolerate abusive behaviour? Would that not improve retail workers’ fear of going to work to face daily abuse?

Gillian Mawdsley

I would agree with you if the legislation addresses gaps. My concern is that legislation, or criminal prosecution as Ian Thomson has said, tends to be a last resort. People need to be empowered to know that what they are suffering is criminal, and that it should be prosecuted. They need better awareness of the raft of measures and they need better information, better support from employers and perhaps some kind of directed campaign.

We talked about what has been done for the national health service in England. That could be the model for better joint working among all the criminal justice partners and the retail sector to try to start a campaign here. There have been some successful public awareness campaigns for issues such as speeding. If the Government was really behind it, something like the English NHS campaign might be a first step.

That runs in parallel with what we spoke about earlier: the need for a better understanding of underreporting and of which part of the system is failing to support retail workers.

Superintendent Thomson

It is important to have clarity about the information that is available and the events that take place. You asked about the causes of behaviour. That is the crux of the matter. If we understand that, we have an opportunity to build in preventative measures that will divert people away from that behaviour. The offences would not happen, and that would be a success.

There are lessons to be learned from some of the work that we have done recently. Relying on just the police data is a point of failure. There is underreporting, so we do not get the full picture from the police data; we get the full picture from the partnership data. The surveys on how people are feeling are a rich source of information that helps our understanding. We work with partners in an effort to understand the issues and identify the earliest opportunity to intervene and be proactive to stop the person offending in the first place.

10:15  



We are absolutely committed to working with the retail trade. We do that across Scotland at local level and at national level, through the Scottish Business Resilience Centre. We do a lot of engagement on education and understanding the rights of the individual at work, how people can keep themselves safe, the encouragement of management, and the layout of shops. We do a lot of proactive work in that area, because it is valuable in reducing the impact of poor behaviour.

The Convener

A few years ago, the early and effective intervention to divert 16 and 17-year-olds from prosecution was introduced. It has been suggested that if the bill was enacted, it would make people feel safe, and shop workers would feel better because there would be prosecutions. However, in many cases, diversion from prosecution would cut right across that. Would that be an issue?

Superintendent Thomson

No. Diversion from prosecution is about the outcome. It is there for a reason—it represents an attempt to prevent criminalisation of people and to give them the best life chances by setting them on a path that will avoid their becoming criminals who cause harm in the community.

The legislation that is in place that allows interventions to be made in relation to individuals’ offending behaviour is extremely important in helping people to recognise that it is unacceptable to put up with that behaviour but, ultimately, we want the people who commit such offences not to commit them again.

The Convener

If the bill was enacted, it would allow the police to be called and the person to be charged, but there could then be a diversion from prosecution on the basis of a “Two or three strikes and you’re out” approach.

Superintendent Thomson

That would be further down the line. There is already legislation in place that allows the police to be called, and they will deal with that.

The Convener

You do not feel that it is necessarily the case that diversion from prosecution would cut across the bill.

Andy Wightman (Lothian) (Green)

I want to pick up on some of the points that Gordon MacDonald raised. The Law Society’s submission talks about the need for research on whether cases are being reported and not progressed and on whether, when cases are reported, issues have arisen to do with the need for corroboration. Is it the Law Society’s position that you do not believe that the bill is necessary until research shows that there is a need for it?

Gillian Mawdsley

There is a difficulty with the bill. It is well motivated, but the difficulty lies in identifying where there are gaps at the moment. If the gaps exist, the scenarios would demonstrate where there is a failure. There are lots of things happening here, and it is a complicated landscape. If we could find the gaps—the absence of criminal offences or behaviour that is not being prosecuted that should be criminal—the bill would be necessary, but there is an absence of such data, and that comes back to some of the points that I made earlier.

Andy Wightman

Although most of the offences that the bill would create are already covered by existing legislation, it has been suggested that, if it were to become law, it would send a message to retail workers in particular that would show that we care about them and about the fact that they are suffering abuse. As a matter of public policy, is the law there to send messages?

Gillian Mawdsley

The law is very useful for sending messages. That is why we have legislation that criminalises or decriminalises offences. The law is important in that respect.

As Mr Thomson said, other things can happen before we get ultimately to legislation. We are all aware of campaigns, to which I have already referred, that talk about the existing law. We are not talking about a lacuna here; as far as I am aware, law is available to prosecute most of the offences that are being referred to and I am not aware of any gaps. There is a need for more awareness, and encouragement and support need to be given. A lot can be done without necessarily making new legislation.

As to whether I think that a specific campaign is needed, I would certainly encourage something being done. We should not sit here and say that the position that is being reported by the retail organisations and all the figures are okay. Something is not working; however, there are solutions we could use before we get to new legislation.

Proposed bills, such as the hate crime bill, that are coming through will be major pieces of legislation for the Scottish Parliament. They might provide other opportunities that we do not know about at the moment. Something should happen, but I am not sure that it should be legislation.

Andy Wightman

I will move on to the proposal to create a new criminal offence of obstructing or hindering retail workers. Comparisons have been made with existing legislation on emergency workers that makes it a criminal offence. What are your views on that comparison? Is it a valid one?

Superintendent Thomson

Again, I recognise the importance of what retail workers do.

The legislation that exists around restricting access to goods such as age-restricted products, that can cause harm in the community, is an important part of keeping people safe; there is no getting away from it. The community works together and with the police to do that.

I am a wee bit uncomfortable with the direct comparison with emergency workers. My powers and duties as a police constable are enshrined in law, and are primarily for prevention of crime and protection of life. I understand why there is an offence of obstructing police officers or other emergency workers, because the consequences could be—I am not saying that they are all the time—life-threatening. Equally important is the fact that the powers that have been conferred on me as a police constable are very different in relation to shop workers.

It is about what we are trying to achieve. If such an offence were to exist, what would its value be to prevention of crime? It will not come with the additional power for an individual member of the retail trade to act in a particular way. If somebody obstructs or hinders me while I am at the locus, I can arrest them. I have a power that supports that.

Turning obstruction or hindrance into a criminal act that means that offences would go through the criminal justice system. If ultimately the person is not going to be prosecuted in court or be given a custodial sentence—I understand that there is a presumption against custodial sentences of less than 12 months—it loads the activity at the point when the call is made and the police get involved. If the Government and the legislators decide that that that is the right thing to do, we will fully support that, and we will attend and carry out the law; that is what we are there to do. However, we need to look at the potential outcome and what we are trying to achieve, to see whether that is the best way to do it.

Andy Wightman

Do you have anything to add, Ms Mawdsley?

Gillian Mawdsley

I support much of what Ian Thomson says. Retail workers who carry out those assessments are, in effect, complying with legal requirements, so there is a similarity. However, the police have certain powers that retail workers do not have. There is a similarity with organisations such as the Health and Safety Executive and trading standards departments, which have similar powers of inspection and whose staff would not have the type of protections that are being envisaged for retail workers.

There is a difficulty with using words such as “obstructing” and “hindering”. Although you and I might have concepts in mind if we were to define them, they almost leave what might be unclear concepts to be defined by case law or reported decisions in due course. That would mean that there was no clarity in the law at the outset. If you are considering creating criminal offences, the one thing that we support is absolute clarity, so that people know that if they take action X, it is criminal, which is the ultimate sanction. That is the difficulty with using the words “obstructing” and “hindering”.

Andy Wightman

I might be wrong, but my understanding is that “obstructing” and “hindering” are not defined in the Emergency Workers (Scotland) Act 2005. Is it your position that those words are more easily discernible in that act because police constables, firefighters and ambulance workers are clearly on a mission, as it were?

Gillian Mawdsley

I have probably been a little bit broad in what I said, because “obstruction” is definitely used in legislation and we have a common understanding about it.

It is perhaps “hinder” that is the issue. If I hinder you, I can do so in lots of ways, such as by not answering your questions. There is also the point that you are making about the fact that if, for example, the police were to arrive on a scene and I refused to give information, that would be an offence, because the police have certain powers. This is not quite the same situation, which is one of the difficulties in widening the offence to include the word “hinder”, because it could just be me being a bit stroppy.

We should not criminalise conduct that should not be considered criminal and perhaps we should not leave it to case law and the courts to clarify whether something is criminal. I have concerns about that particular aspect.

Andy Wightman

I presume that there are statistics on the use of the powers under the Emergency Workers (Scotland) Act 2005.

Gillian Mawdsley

There should be statistics on the number of convictions and prosecutions.

Andy Wightman

We can follow that up.

I want to talk about the proposed statutory aggravation that has already been referred to.

The Convener

Mr Wightman, before you continue, I think that Mr Thomson wants to come in.

Superintendent Thomson

I want to make a further point on “obstructing” and “hindering”.

In some of the written submissions, a concern was expressed around the age restriction for the sale of alcohol, which is particularly challenging for some retail workers. I want to highlight and make people aware of the powers that sit under the Licensing (Scotland) Act 2005. If somebody was to refuse to leave premises where alcohol is sold, there is a power for a police officer or other appropriate person who has been empowered to come along and ask the person to leave. If they did not leave, they would be committing an offence and could be removed by force. That legislation means that, although a police officer needs to turn up and deal with the situation, if the person refuses to leave and prevents the retail worker going about their business and serving other people, there is an opportunity for something to happen.

Andy Wightman

Okay. Thank you.

Let us move on to the statutory aggravation. Do you agree that, given that statutory age restrictions on products are designed in the public interest, retail workers carry out a duty that advances the public interest?

Gillian Mawdsley

Yes.

Superintendent Thomson

Yes.

Andy Wightman

Do you see merit in the proposed statutory aggravation? I ask because the Crown Office and Procurator Fiscal Service tells us that, in the prosecution guidance, there is already a ground for aggravation if an offence is committed against someone

“in the course of their employment”.

Is more research on that needed? Is the prosecution guidance sufficient or would a statutory aggravation in primary law help?

10:30  



Gillian Mawdsley

I said that aggravation is interesting because I equated it with the proposed hate crime bill. As far as prosecution is concerned, the circumstances of the incident will be taken into account, exactly as the Crown Office has said, to decide whether it prosecutes in the public interest. Arguably, aggravation is not required. Similarly, any sheriff would take into account exactly how something arose.

The point that we were making was that we see the fact that an employee has a duty to ask for something, if you like, as a trigger. The circumstances are probably already taken account of and I was concerned about the need for corroboration of how the incident started. I could see that as a difficulty, whereas the incident itself—the broad picture of the abuse, no matter how it occurred—might well be prosecuted anyway. As the circumstances come out in court, one source of evidence might be, “This started when I asked for identification,” then the sheriff would be able to say, “I’m sentencing here and I note that this incident arose out of the retail worker exercising their absolute right to ask for proof of age.” That point could be emphasised in sentencing without the need for aggravation.

Andy Wightman

The problem is that you are relying on the discretion of individual sheriffs to think about that, whereas if there were a statutory aggravation, the prosecution could clearly draw attention to it and ask for it to be considered, and it would have to be considered. The question could not be avoided.

Gillian Mawdsley

That is probably a fair comment. If we want to be sure, the fact that the incident occurred because somebody was doing their job and asking for identification needs to come through from the police report into the Crown Office report, then into the court for it to take account of it. I would like to think that that happens; I am not saying that it does.

Richard Lyle

Mr Thomson, various changes have been made to the Licensing (Scotland) Act 2005 in the past few years. We cannot buy alcohol before 10 am and we certainly cannot buy it after 10 pm. Has the 10 am change made any difference to the number of assaults on shop workers?

Superintendent Thomson

The easy—or difficult—answer is that I do not know.

Richard Lyle

It is amazing the amount of people who go into my local shop at 9 o’clock in the morning wanting to buy a can of beer. They have to be told that they cannot, and they do not want to wait about for an hour. It would be interesting to know whether there is any information about that.

Superintendent Thomson

I do not have that information.

Richard Lyle

I will certainly ask the next panel of witnesses the same question.

Superintendent Thomson

No bother. It makes sense that if the period in which you cannot buy alcohol—

Richard Lyle

As a policeman, do you think that we should relax the licensing laws?

The Convener

I think that we are straying from the issue and should move on.

Alison Harris

The written submission from the Law Society says that

“the problem of violence against retail workers requires a multifaceted approach.”

What does that involve? Could you expand on that, please?

Gillian Mawdsley

I think that I expanded on it at the beginning. There is clearly a problem—that has been outlined. Whatever the solution is, it is not working.

By “multifaceted”, we mean that it starts with the person who is receiving the abuse. They have to be empowered to be able to report it. They need the support of their employer—there needs to be that complete engagement. There is also a role for the police in the community with regard to the person who is perpetrating or the people who are offending. Is that role in the local schools? Are there particular targets? That is about local policing.

Assuming that an incident has been reported, we move on to the need for a better understanding. The general role of the legal profession is to make sure that people understand the law and the reasons for either prosecution or failure to prosecute because of insufficient evidence.

The Crown Office is the prosecution side and it proceeds in the same way as it does in any other criminal case, but it has a role in communicating public interest prosecutions.

When the cases go through court, sheriffs should be encouraged to give reasons for sentencing. There is a role in looking at sentencing in the way that Superintendent Thomson has talked about. We are talking about low-level offending. I am not suggesting that it is not serious, but it is unlikely, given the presumption against short sentences, to result in a custodial sentence, so offenders are not being taken out of the picture. It comes back to some of the alternatives to prosecution—not quite mediation, but some of the other alternatives—and a community approach.

By “multifaceted”, I meant looking as a community at the problem—at whether, in your local constituency, there are particular hot spots—and looking at the bigger picture for Scotland, which is your duty here at this committee. That is what I meant by “multifaceted”.

Alison Harris

Thank you. Do you want to add anything, Superintendent Thomson?

Superintendent Thomson

No—I agree with everything that Gillian Mawdsley said.

Alison Harris

That is helpful—thank you.

Dean Lockhart

I appreciate that Superintendent Thomson will not have the precise numbers, but roughly what percentage of reports of abuse of retail workers end up being prosecuted?

Superintendent Thomson

I do not have that information, which is one of the challenges. Although the offences are within that bigger umbrella, as has been said, and we have processes in place for dealing with them, we do not currently have the reporting facilities to extract that information intuitively, so it is difficult to access.

Dean Lockhart

I appreciate that. Thank you.

The Convener

Before we close this evidence session, I will introduce Daniel Johnson, whose member’s bill this is, and give him the opportunity to ask questions.

Daniel Johnson (Edinburgh Southern) (Lab)

I remind the committee that I am a member of USDAW, the shopworkers union, and I am a director of a business that has retail interests.

Can Superintendent Thomson explain the utility of section 90 of the Police and Fire Reform (Scotland) Act 2012?

Superintendent Thomson

You will need to remind me of section 90.

Daniel Johnson

Section 90 describes it as being

“an offence for a person to assault”

a person acting in the capacity of a police officer and it creates an offence of obstructing or hindering a police officer.

Superintendent Thomson

I am sorry—what is your question in relation to that, again?

Daniel Johnson

Is that bit of legislation, which was passed a mere few years ago, useful?

Superintendent Thomson

Yes, absolutely; it is a useful bit of legislation—

Daniel Johnson

If there was already a common law offence of assault, why was it necessary to rearticulate that in the 2012 act?

Superintendent Thomson

I understand, from the information that I have to hand, that it was about recognising the potential threat to life to emergency workers, in particular police officers and fire officers, and the consequences and impact that could result from an individual’s action. However, I was not involved in that conversation.

Daniel Johnson

I am sure that the panel recognises that legal requirements are placed on retail workers to ensure, through challenge 25 and other measures, that people who buy age-restricted items are old enough to do so. Is it fair to say that retail workers, when they are conducting those age checks, are upholding the law and, in that regard, are acting as agents of the law?

Superintendent Thomson

It is about definitions, I suppose.

Daniel Johnson

Are they upholding the law or not?

Superintendent Thomson

They definitely play an important part in relation to upholding the law—absolutely. It is a key element of keeping people safe. The law is there primarily to prevent harmful products and items going into communities in the hands of people who are not seen to be fit to be in possession of those things. Shopworkers who prevent such items getting into communities make a really valuable contribution to the wider safety of those communities.

Daniel Johnson

When people uphold the law, which retail workers do—there is a sanction of up to a year in prison for failing to do so—it is only right that they have the specific protection of the law, such as police officers have under section 90 of the 2012 act. What are the panellists’ reflections on that?

Gillian Mawdsley

We have answered that question in the sense that we have alluded to differences between the police position and the position of retail workers. I totally accept that those positions interact, because retail workers uphold the law. That is a precursor of the criminal prosecution that might follow, and it is important that that is part of the circumstances of the offence. The circumstance initiates what happens afterwards.

I suggest that offences already take account of that factor. If the punishment is not specific enough, that is a different matter, which I referred to in a previous answer.

Daniel Johnson

I have a final comment. The Emergency Workers (Scotland) Act 2005 has been used 8,251 times since it was passed. Almost 100 offences were convicted under that legislation last year.

The Convener

I would like clarification on that point. Somebody who is selling an age-restricted product is required to comply with the law, and to uphold the law as they know it. If there is any breach of that law, it is the police who are called to deal with that, not the shopworker. The protection for police officers in the 2005 act is to prevent somebody from hindering a police officer who is trying to arrest or get to an offender, and to prevent people from stopping the police dealing with an incident. Is that correct?

Superintendent Thomson

Absolutely.

The Convener

Thank you for the helpful evidence that you have given. We will suspend for a couple of minutes while we change panels.

10:41 Meeting suspended.  



10:43 On resuming—  



The Convener

We will recommence. We are quite short of time, as we have three panels today.

I welcome our witnesses—and please excuse my pronunciation; this is a challenge for me today. Dr Pete Cheema is chief executive of the Scottish Grocers Federation; Ewan MacDonald-Russell is head of policy and external affairs from the Scottish Retail Consortium; Paul Togneri is senior policy manager for Scotland at the Scottish Beer and Pub Association; and Paul Gerrard is campaigns and public affairs director of the Co-operative Group.

We have a series of questions from the members. You can decide who wants to answer, though we will be short of time for all four of you to answer. We will keep it quite tight.

Richard Lyle

I know that USDAW will be represented on the next panel, but I am going to quote from a page on its website, which says “Customer under the influence” was

“refused alcohol and became abusive and threatened staff.”

This is from Bellshill, in my constituency:

“Because Scottish licensing laws are not clear to customers, I receive abuse on a regular occurrence.”

This is from Irvine:

““Daily abuse from customers under the influence of drugs and alcohol.”

This is from Glasgow:

“Couldn’t sell alcohol before 10 am got an earful and told I’d ruined her life.”

The committee is aware of the concerns that exist about the high levels of violence and abuse that are directed at retail workers, and the situation might be getting worse. How would you describe the current state of affairs? What are the causes? Is some of the abuse a result of the changes in the licensing law, which mean, for example, that alcohol cannot be sold before 10 am? What would you do to remedy the situation?

10:45  



Paul Gerrard (Co-operative Group)

You asked what the scale of the problem is. The latest data that we have for the Co-op Group, which has 350 stores in Scotland, shows that there was a 1,800 per cent rise in abuse between the end of quarter 3 in 2017 and the end of quarter 3 in 2019—a two-year period—and the number of cases of violence increased by 650 per cent over the same period.

It is true that that is partly a result of better reporting. It is also partly a result of a broader phenomenon that is evident in the USDAW and British Retail Consortium data, which shows that violence against shopworkers is getting worse. It is getting worse from the point of view of not just the incidence of such cases but the level of violence and abuse. It is at levels that my colleagues in the Co-op have never seen.

I would like to give a voice to one of my colleagues by recounting an incident that illustrates the point about alcohol. A customer was refused a bottle of wine, and she took exception to that. That resulted in the customer assaulting three members of the team, as well as another customer. The police were called, and she was eventually arrested, charged and released. My 67-year-old colleague on the till was left shaken and confused about why she should put up with that level of abuse. Every week in Scotland—this is just in the Co-op stores, although others on the panel will say the same—nearly 100 colleagues are abused or attacked.

Richard Lyle

Are those assaults committed during the day? Are there assaults between 9 and 10 am in the morning, or are they committed later in the evening? Some Co-op stores are open until 11 o’clock at night, and some are open 24 hours a day.

Paul Gerrard

The most common time for assaults is between 12 and 6. However, a significant number of assaults—probably about a quarter of all incidents—happen before 12. I do not have the data on the number of incidents that occur before 10 am, but I can find that out and send the information to the committee, if that would be helpful.

Richard Lyle

That would be interesting to know.

Dr Pete Cheema (Scottish Grocers Federation)

I will not give the committee any statistics because, for the past five years in my role as chief executive of the Scottish Grocers Federation, I have done just that. Every year we provide members with statistics. We have said the same thing at a parliamentary reception and we have run campaigns. We have done everything that the previous panel talked about and we have had enough.

When I came to Scotland in 1988, I was shocked by the torrent of abuse that I received. We have 248 age-restricted products to deal with. The Parliament legislates and we have to deal with all that legislation every day. I have been spat at, called names, threatened, attacked and had my tyres slashed and my windows broken, and not just in one store—I have had stores right across Scotland. That is current.

Legislation changes from time to time. When I came here in 1988, the amount of racial abuse that I used to suffer was incredible, and it was not until the Race Relations (Amendment) Act 2000 that people stopped calling me “Paki” or “Black bastard”. That act changed the culture and the attitude. What needs to happen now is that the bill needs to go through so that retail workers can do their jobs properly and in a safe environment.

I was told that abuse of a retail worker is a low-level crime. Is it really? Let us say that a retailer breaks the law by giving out an age-restricted product to someone when they should not. A low-level worker on the national minimum wage who earns between £8 and £9 an hour will be fined £5,000, yet abusing a retail worker is a low-level crime. Is it really? The police do not come out because it is perceived to be a low-level crime.

People talk about underreporting. Really? What do they expect people to do when they have no faith in the police or the procurator fiscal? It is time that that changed.

The Convener

That silenced everybody.

Ewan MacDonald-Russell (Scottish Retail Consortium)

It is statistically probable that, during the course of this morning’s evidence, a retail worker will be abused. There are nine incidents a day and thousands of incidents a year. The updated BRC crime survey will come out later this week and we will send that to the committee when it is published.

On Mr Lyle’s question, the Scottish Retail Consortium has been supportive of measures to tackle alcohol. We have supported the processes that have been introduced. We implemented minimum unit pricing two weeks after the price was set by the Scottish Parliament. However, our workers and colleagues are having to deal with the consequences of implementing public policy. They are happy to do that. It is our duty and we work on behalf of society. As we see society changing, we see more duties being placed on retail workers. We accept that we can do those things and we play our role in the community. However, we are talking about finding a mechanism and a way to do that.

The status quo is not acceptable. Every way we look at it, from the experiences of our members, the national statistics and the experience of the members of the Scottish Grocers Federation, we can see that something has to be done. We think that aggravation is the right way forward and we are very supportive of Daniel Johnson’s bill. Our main point is that the status quo is not acceptable and we are asking for help for our workers.

Paul Togneri (Scottish Beer and Pub Association)

I concur with the messages that have been conveyed by my colleagues on the panel. Since 2005, when we introduced the “Challenge 25” process on a voluntary basis, we have seen an increase in the number of incidents in which there is a challenge or an altercation—that is when most of the abuse happens. In 2010, it became a statutory requirement that everyone under the age of 25 be asked for identification and that has increased the number of instances that have the potential to lead to abuse.

Specifically on Mr Lyle’s point on changes to the Licensing (Scotland) Act 2005, currently the provisions regarding licensing are covered by five different acts. We have called for a consolidated act, as have colleagues on the panel. That would be helpful. Separately, the member’s bill would specifically address the issue of abuse, which is a problem that our staff face on a daily basis, and which is increasing.

Richard Lyle

Would the bill also cover people who work in pubs?

Paul Togneri

Yes, it would.

Richard Lyle

Dr Cheema, I stand with you on your comment that racial abuse—and any kind of abuse—should be opposed. I can understand why you are really—actually there are no words that I can say. There is a perception that the abuse of retail workers is not always taken seriously enough. Do you agree that that is a problem and, if so, what impact does it have?

Dr Cheema

The impact is huge. People who work in retail are usually family members or people who know one another—they are people who work in the community, and the knock-on effect is huge. Often, people do not want to work at the counter because they know that they will get abuse, so they would rather do something else. We are the biggest private sector employer. We need this protection.

The committee asked the previous panel about sales between 9 o’clock and 10 o’clock in the morning. We have had scenarios where someone wants to buy alcohol before the permitted time, the sale is refused—the retailer cannot do anything else; all that he can do is refuse—and the person decides to take the product and throw the money down. That person has decided that he has purchased the product. I ask the committee: what would you do? If you phoned the police, would they come out? Has an incident actually taken place? I will tell you what would happen. The police would ask, “Did you get paid for it?” You would say, “Yes” and they would say, “So, what’s your problem?” That is just one scenario in which the new offence would kick in.

Richard Lyle

I am certainly not advocating that anybody do that.

Dr Cheema

I understand that, but it happens. We have 248 age-restricted products to deal with. The “Challenge 25” process was introduced by the Scottish Grocers Federation many years ago, even before it was legislated for. We are responsible retailers; all that we ask is that the legislation that you pass on to us will help us to deliver that.

Paul Gerrard

Just to build on that, we have done a freedom of information request across all 43 constabularies in the United Kingdom on police response rates to issues that we report in our stores. That gives some evidence relating to what Dr Cheema said. A number of police forces, one of which is Police Scotland, have not responded, but if we get that data, I will provide it. However, I can give you an idea of the figures. We should bear it in mind that only the most serious offences are reported to the police, because there is little confidence in their response, so it is a bit of a vicious circle. Across the UK, two thirds of issues that are reported to the police result in no police attendance. Those will be cases involving the kind of incident that Dr Cheema has described—and I could describe more. In those cases, two thirds of the time, the police do not attend.

A second point is that the impact on colleagues is not just immediate; it lasts a long time. Last year, we published research by Dr Emmeline Taylor. Her report was called, “‘It’s not part of the job’: Violence and verbal abuse towards shopworkers—A review of evidence and policy”, and I will happily provide it to the committee. Dr Taylor said that the consequences of some of the abuse and attacks that shopworkers face are akin to post-traumatic stress disorder. As Dr Cheema said, many of our colleagues need to work in a certain shop, as it might be the only shop that they can work in. If such a person has been attacked in that shop, they will need to return to the place of their trauma. We never normally ask anyone who has suffered such trauma to go back to the place where they suffered it.

Honestly, I think that we all agree that retail workers do not believe that the police care or that the criminal justice system cares, and they are not sure whether elected representatives care about them, because so little is being done.

Dr Cheema

The Co-op and Scotmid Co-operative have put in place processes with local police stations whereby the retailer fills out forms and delivers the audio and video evidence to the police station, to speed up the process. However, even though that work has already been done, it sometimes takes the police four to six weeks to respond.

Paul Togneri

What Mr Gerrard said about shopworkers’ perceptions is certainly the case with bar workers. Their perception is that the law is not on their side and, in fact, that it is up to them to uphold the law. Bar workers are told a lot about the restrictions on them relating to who they can sell to and what state the person can be in, and they face a £5,000 penalty should they fail to uphold some of those restrictions.

Anything that sends the message to retail workers that the law is on their side and that Parliament supports them would therefore be a welcome addition. In the previous five to 10 years, there has not been much that has sent a clear message of support, and I believe that the bill would do that, which is one of the reasons why we welcome it.

We believe that the bill would also highlight certain incidents and lead to an increase in reporting of incidents. As has been said, many retail workers think that not much action will be taken, as it is a low-level crime. Some people say that dealing with such issues is part of the job and is to be expected in that line of work. We do not think that that is true; that is not a reasonable excuse. The bill would help to end that view.

11:00  



The Convener

I think that Jackie Baillie wants to explore those issues a bit more.

Jackie Baillie

Some of the issues have already been explored by the panel. As you might have heard from the previous panel, the police said that all reports of intimidation, threats and violence towards retail workers are taken seriously and all are investigated. I have to say that that is not my experience, and it does not sound as if it is the experience of your members. Mr Gerrard, is the two thirds figure that you gave typical? Does it apply across the board or does it relate just to your stores? I am curious to know.

Paul Gerrard

The two thirds figure is from a freedom of information request covering all 43 constabularies in the UK. Not all constabularies have responded, and not all constabularies hold that data. That figure does not include Police Scotland, because, as you heard earlier, Police Scotland does not hold that data.

I would be surprised if the situation differed much among constabularies—that is point 1. Point 2 is that it is not our experience that the police always come out when an incident is reported. I am a former law enforcement officer, I worked for Her Majesty’s Customs and Excise for 20 years and I feel nothing but support and sympathy for police officers. However, the truth is that they are very stretched and they do not consider the matter to be a priority. If you asked my 5,000 colleagues in the Co-op stores in Scotland, they would agree that the police very rarely come out to incidents.

Jackie Baillie

Do you think that passing the bill would make the police change their minds about how they behave?

Paul Gerrard

I think that that would do a number of things. It would send an important message; sometimes legislation is about the message that it sends. Dr Cheema’s experience of the Race Relations (Amendment) Act 2000 is a really good example of that—I think that the impact was in the message.

When I was in HM Customs and Excise, I was afforded protection under section 16 of the Customs and Excise Management Act 1979, because I was carrying out public duties. For those who now work in HM Revenue and Customs, section 31 of the Commissioners for Revenue and Customs Act 2005 does the same thing.

What my colleagues do for those 240-odd age-restricted items is what I used to do in customs. I was abused and I was threatened there, but I had protection, and that made me feel that I was not on my own. I think that, too often, shop colleagues—as Dr Cheema just described in relation to the gentleman who refused to sell alcohol at 9 in the morning—feel that they are on their own. I would not underestimate the importance of that messaging to hundreds of thousands of retail staff.

Jackie Baillie

I assume that everyone on the panel agrees with that, so I will move on to the next question—forgive me. Let us assume that you get past the barrier that is the police. What happens with prosecution in the courts? Are you confident about prosecution and sentencing?

Dr Cheema

Nobody ever comes back. The process is there, but it does not happen. That is the reality.

In response to the earlier point about data recording, we know that the police do not record. Nor does the Scottish Government.

At the time when the Race Relations (Amendment) Act 2000 came in, race crimes were not recorded; it was not until after that that race crime started to be recorded. We cannot wait another five or 10 years for this bill to be passed while we carry on in the same vein. We just cannot. We need this now. We need it not only to give retail workers confidence but to send out a message, from you, that there is zero tolerance of crime.

Jackie Baillie

Mr Togneri, is the experience different in the pub sector, or is it the same?

Paul Togneri

It differs. It differs by area, and within an area it differs from pub to pub, depending on the situation, I think. However, we definitely share the view that Dr Cheema is conveying about the message that such incidents are entirely unacceptable. We entirely back that.

Colin Beattie

The police have said that it is sometimes appropriate, when dealing with young people who are being abusive, to use measures other than prosecution. The main reason is to avoid the negative impact of a criminal record on their future; a criminal record builds problems for times to come. What are your views on that?

Dr Cheema

I will turn that around. What is your view about a retail worker breaking the law in order to protect a young person?

Colin Beattie

That is an impossible question to answer.

Dr Cheema

Is yours not also an impossible question for us to answer? As far as I am concerned, there should be zero tolerance. If the young person is breaking the law, they are breaking the law, but we are unable to deal with it because there is nothing in place, yet there is something in place for the retail worker who breaks the law.

Colin Beattie

Let us look at this logically. Might we be in danger of unnecessarily criminalising a whole group of young people? Is that necessary? Is that what we should be doing? I am thinking of situations in which there is obstruction and hindrance, which is an uncertain offence.

Dr Cheema

What, in that case, is the difference between a young person slapping somebody or putting a knife into somebody and them threatening a shop worker to make them sell an age-restricted product?

Colin Beattie

I did say that, as yet, we have no definitions of “obstruction” or “hindrance”.

Ewan MacDonald-Russell

There are a couple of points to make to address the question. On the point about young people, one of the aims of putting in legislation retail workers’ right to be protected is deterrence. We want to acknowledge that shop workers deserve not to be abused or hindered. To an extent, we do not want prosecutions because they would in some ways represent a failure of the legislation because they would imply that the behaviour that we are trying to stop is continuing.

How “hindrance” is defined will be important. I am not nearly knowledgeable enough about criminal law to have the details, but we note in our written evidence that, particularly in relation to intentionality in hindrance, we must be cautious to ensure that what happens is appropriate. If there were other ways to deal with the issue, it would not be a primary issue for us. The point is about whether we are making an offence to change how retail workers are looked at and protected.

Paul Gerrard

I absolutely agree. I am here to defend and speak up for the safety of my colleagues.

A difference can be made, however, in terms of what happens next. Superintendent Thomson said this extremely well—ultimately, there is the outcome to consider. A prosecution might lead to a custodial sentence or a fine, but many cases, particularly those involving young people, might require different kinds of interventions. I have an example that is not from Scotland, so I apologise for that, although it is applicable.

An offender in the Midlands had a £1,000-a-week crack and heroin habit, so she was having to steal £160,000 a year from stores. She did that for 20 years, from the age 14 to age 34. She stopped when she was eventually put on a rehabilitation course and she got treatment. She has now not offended in three years. Moreover, she is counselling young people about not getting into that kind of situation.

I agree that it is never, for any reason, acceptable to attack a shop worker, but what happens to an offender is important. They might need a custodial sentence, but let us not lose sight of the ability to change people’s lives. That does and must exist.

Colin Beattie

We can all quote extremes of what might happen with retail workers. I could use Dr Cheema’s example of a knife being pulled, or whatever. That is already a criminal offence that would be dealt with fairly seriously.

I am trying to understand where the offence of obstruction or hindrance would apply? What are its extremes? How do we determine what is criminal and what is not? It seems to be difficult. Should we consider a more general offence that applies not just to retail workers but to other people who are going about their business? Should not they be protected in the same way? I am thinking of people in utilities services and so on, who are also subjected to abuse from time to time.

What examples can you give of obstruction or hindrance that would crystallise them in our minds?

Ewan MacDonald-Russell

The situation is slightly different for retail workers, although if there are analogous examples, we would support protection for them.

Retail is unlike any other profession. You cannot control the space, and you cannot control people coming in and doing things in your physical premises. That is why shop work is distinct from other roles. We must remember that retail is not just about stores; it also includes online shopping and hospitality. There might be two people in the environment, but people often work alone. There are lots of scenarios in which we are trying to find the right mechanism for protection.

On defining hindrance and obstruction, that is about how we find the right way to prevent somebody holding a worker, or blocking them from getting out of a flat, or blockading them in a store. At the moment, nothing can be done about those things, beyond involving the police if the situation gets serious. That is what we are grasping at; we recognise that it is a difficult area.

Colin Beattie

I still have not heard a definition that clarifies what would constitute obstruction and hindrance and at what point that would become criminality.

Dr Cheema

You are asking for a scenario. Let us work on one. Somebody comes in before the permitted time and requests an age-restricted product, but the retailer says, “I’m sorry, but you can’t have that. It’s not the right time, so you’ve got to come back after 10 o’clock.” The customer then insists on getting the product, although it has been explained to him that the shop is not allowed to sell it, and that there will be a £5,000 fine if it is sold to him. That is when such behaviour is triggered and the person becomes abusive.

Colin Beattie

Age-restricted products are a specific area of concern. To my mind, that is a different argument. What would count as obstruction and hindrance in a general retail situation, outside sale of age-restricted products?

Dr Cheema

Age-restricted products are the main issue.

Colin Beattie

They are the main issue?

Dr Cheema

They are the main issue. We are also being hindered in carrying out our duties. Those duties are the legal obligations that the Scottish Parliament and the UK Parliament have given to retail workers.

Colin Beattie

What examples do we have of that? I understand the issue of age-restricted products. I have a lot of sympathy, but it is a separate issue.

Dr Cheema

When you say it is a separate issue, what do you mean?

Colin Beattie

It is a separate issue in so far as it is a definable issue, where there is already a considerable concern. It is separate from the generality of the retail trade.

Dr Cheema

If workers are being stopped from carrying out their duty, they are also hindered. Let us say that a queue forms, and the second and third people have to get to work but the shop worker cannot carry on with their duties. Surely that is a hindrance?

The Convener

I think you should wind up. We are going around in circles.

Colin Beattie

We are not getting anywhere, but it seems that age-restricted products—which are the main examples that you are giving, and the only examples so far—should be looked at separately. I will leave it at that.

The Convener

You are saying that there are jobs that staff need to get on with, and that they can be hindered from getting on with those if somebody is kicking up a fuss about an age-restricted product.

Dr Cheema

The average number of staff in a convenience store in the retail sector is two to three at any time.

The Convener

We will move on, as we are short of time. I can give time at the end if you want to pick up on anything.

Alison Harris

I will not ask my question, having heard previous evidence.

The Convener

Do you have any other questions?

Alison Harris

I will come in later.

Dean Lockhart

We are looking at the Scottish position, for obvious reasons, but can any of the panel indicate whether there are more effective powers elsewhere in the UK to deal with the concerns that are being raised?

Ewan MacDonald-Russell

My British Retail Consortium colleagues are campaigning on the issue across the four UK nations. We want to see action. Scotland is a little ahead at the moment: we would like the Scottish Parliament to lead on this. We are looking for more powers and protections across the board.

In response to the issue that was raised earlier about data, to substantiate Mr Gerrard’s point I note that we collect data from across our whole membership, in Scotland and UK. We do not see a huge change in the trend, but there is an increase in the problem.

11:15  



Paul Gerrard

The Co-op has for the past 18 months been running a campaign called “Safer colleagues, safer communities”.

Ewan MacDonald-Russell is right that Scotland is ahead on the issue. Debates at Westminster—at Prime Minister’s questions last week, and at Westminster hall two weeks ago and before the UK general election—are at nowhere near the same point. There is a private member’s bill from Alex Norris, who is the Labour and Co-operative Party MP for Nottingham North, which is similar to Daniel Johnson’s. However, at the minute, although there is recognition of the seriousness of the issue, the rest of the UK is not nearly as advanced as Scotland. I have seen no conversation in Westminster of such detail and clarity.

Dean Lockhart

Thank you.

Just so that I understand the nature of the problem, are the abuse and concerns the same across the UK, or do you face particular issues in Scotland?

Paul Gerrard

I can speak for the Co-operative Group. We have 2,500 stores across the UK. The issues are similar in Glasgow and Gillingham: challenging shoplifters causing violence and abuse, age-restricted product sales and general abusive behaviour in stores.

Ewan MacDonald-Russell

The only differentiation that we see is between types of store. Larger stores that tend to have more colleagues are better for members of staff to support each other. It is harder for convenience stores, although our members from that sector put in a huge amount of security, including CCTV. The fewer people there are, the harder it is. Overall, it is a huge challenge.

Dean Lockhart

That is helpful. Thank you.

Andy Wightman

Dr Cheema and Mr Gerrard both said that there is little faith in the police and in the Crown Office and Procurator Fiscal Service in relation to prosecution of people who assault, threaten or abuse retail workers. Would the bill change that? Legislation, in and of itself, will not change anything if the problem is that the law enforcement and prosecution services are not following up as they should.

Dr Cheema

You heard the previous panel say that it is “low-level” crime. Low-level crime does not get picked up by the police; they just do not deal with it. There have been instances in the past—

Andy Wightman

We must not take those comments out of context; I do not think that Gillian Mawdsley from the Law Society was saying that assault was “low-level”.

Dr Cheema

If you look back, you will see that what she said was that those types of crime are—I quote—“low-level”.

Andy Wightman

Is it your position that the crimes that are specified in section 1 of the bill are not low level? They vary from assault to hindering.

Dr Cheema

As I said earlier, no type of crime should be tolerated.

Andy Wightman

I understand that. What I am trying to find out is what difference will legislation that, in effect, restates law that already exists make, if your members and retail workers do not have confidence in the police and the Crown Office?

Dr Cheema

Legislation will give them a bit of faith that somebody out there is listening to them. It will enforce—

Andy Wightman

But will it make any difference? If Parliament were to pass the bill, or something that is broadly its shape, that would provide a lot of reassurance and all the rest of it, but if it is not followed through with enforcement, we are just gesticulating.

Paul Gerrard

I would not underestimate the power of a sovereign Parliament “gesticulating”, because that can be really powerful. It would also be powerful for law enforcement, because the truth is that the issue is not prioritised. An aggravated offence that carries a higher tariff very often prompts a better police response.

As I said, I speak as a former law enforcement officer. There is the issue of resources being needed in order to be able to respond. It is not out of badness or wickedness that police are not responding; it is because they do not have the resources. The proposed legislation would increase the importance of the issue—the Scottish Parliament will have passed an act. What needs to follow is for the police to have the resources.

I apologise for speaking more from a UK perspective than from a Scottish perspective, but I point out that cuts across the police services have hit neighbourhood policing; neighbourhood police were often the people who would respond to problems in stores.

Andy Wightman

I understand the issue of resources, but if we elevate the offences in one element of the criminal justice system without changing the resources, the deficit will simply fall elsewhere.

Paul Gerrard

Policing is all about prioritisation.

Andy Wightman

I understand that, but the committee is not involved in scrutiny of policing budgets.

I will ask about the proposed age-related products statutory aggravation. Colin Beattie indicated that he is quite sympathetic to doing something in that area, as am I. I cannot speak for other members of the committee. As has been said, the people who work in retail provide a public service that we have asked them to provide.

However, the problem with the bill is that the aggravation would apply only to section 1 offences. Parliament might not approve some or all of the section 1 offences, in which case the aggravation would fall. I am just speculating on what Parliament might do. We do not know what it will do, but it might take the view that the offences are already covered elsewhere and are therefore not needed. As a consequence of that, the bill’s aggravation provisions would also fall.

Should the aggravation apply not only to the section 1 offences but to any offence against a shop worker that is prosecuted, whether under the common law or the Criminal Justice and Licensing (Scotland) Act 2010? At the moment, it does not apply to those offences.

Ewan MacDonald-Russell

I think—after a quick read-through to make sure that I cover this—that the SRC’s answer would be yes. We think that it is easier to take a broader aggravation approach. It is not that we are not supportive of what the bill proposes; we simply support the easiest way of ensuring that we catch such offences properly.

There are temporal elements to consider—for example, when a shop worker refuses an age-related product sale and somebody gets them later in the car park. There is a question about how we amend or develop legislation to capture those sorts of things. We are not precious about how we get to that outcome.

I apologise for not giving a very specific answer, but I do not want to get it wrong.

Andy Wightman

Let us take the hypothetical situation in which section 1—or part of it—falls. Let us say that the obstruction and hindrance provision falls. Is it the case that you would like the aggravation to apply in respect of any prosecution of someone who assaults or threatens a retail worker, regardless of whether that prosecution is pursued in relation to the offences in the bill?

Ewan MacDonald-Russell

Yes.

Andy Wightman

Do the other witnesses agree with that?

Paul Togneri

That would be helpful and would go a long way towards starting the cultural shift that is required. It would send the message that we have all highlighted needs to be sent.

Andy Wightman

What is your response to the evidence from the Law Society of Scotland, the Crown Office and Procurator Fiscal Service, and the Scottish Government that all the offences in section 1 are already covered? Assault is covered by the common law, threatening and abusing is covered by the Criminal Justice and Licensing (Scotland) Act 2010 and, according to the COPFS, obstruction and hindrance could be prosecuted under breach of the peace. The aggravation of committing an offence against someone while they are in the course of their employment is already covered by the prosecution guidance. What is your response to that?

I understand that action is not being taken—that the police are not investigating such offences and that people are not being prosecuted—but the argument is that laws exist that can deal with the situation as it stands.

Ewan MacDonald-Russell

I will be very brief so that I do not repeat myself. It is a question of recognising that retail workers and retail places are different. The aggravation would be to ensure that the penalties are sufficient and are more of a deterrent.

I have another small point to make, which might sound inconsequential but is not. Much of the behaviour that we are talking about is behaviour that will always be hard to identify in law. I am thinking of instances of micro-aggression and behaviour that might constitute abuse for which there will not be corroboration, because it involves a single person speaking at a checkout where there is no audio recording or other evidence from colleagues. By creating an offence that makes it clear that retail workers are different and deserve protection, we can change the people’s calculus on that circumstance. We will make workers feel more confident that they will not be subjected to such behaviour, and make customers think differently and recognise the need for respect. That is a minor thing that involves a cultural shift.

That is partly why I think that we must not underestimate the value of a legislative approach that seeks to change the culture for ordinary people who might be frustrated, such that they do not take that frustration out on retail workers. That is what we are reaching for in a very general way.

Andy Wightman

Okay. Finally, I want to pick up on your earlier point about the retail environment being different because members of the public have unhindered access to it. That is unlike a solicitor’s office or the Parliament, for example, where who gets access is, or can be, controlled at the door. Is that difference an important factor in your support for the bill? How significant is it?

Ewan MacDonald-Russell

How retail works and the responsibility to engage with everyone are quite important. There are lots of reasons why the bill is not analogous to the Emergency Workers (Scotland) Act 2005, but the original justification for that act was about how emergency workers will always be vulnerable because they have to go to places and cannot control their circumstances. That element is becoming more and more true of retail workers. Obviously, the other parts of the 2005 act about life-saving are not analogous to the bill. The point about not controlling the environment is a relevant criterion, which is why we draw on it.

Dr Cheema

In retail, there are circumstances in which there are lone workers. The difference for the retailers is about ensuring that they can carry out their legal duties in a safe and proper environment without being hindered and aggravated.

Andy Wightman

Okay. Thank you.

Alison Harris

Would you like any changes to be made to the bill?

Paul Togneri

A lot of age-verification checks take place at the doors of premises by door staff. We would like the bill to branch out to include protections for those staff, who will be on the front line of age-verification checks in many cases.

Dr Cheema

I think that the bill will carry out everything that we require.

Paul Gerrard

We work very closely with USDAW, and it will be interesting to hear what it says in the next evidence session. It is not usual for all the major trade bodies, employers and unions to speak with one voice on an issue, but it has been very noticeable from debates across the United Kingdom that the major retailers and USDAW are absolutely at one on the matter.

Gordon MacDonald

Because of our time constraints, I will ask a couple of brief questions. Will you confirm the number of workers whom the bill would protect, whether they work in the convenience store sector or in the bar and club sector?

Dr Cheema

There are 44,000 workers in our retail members. That does not include the beer and pub and hospitality sectors.

Paul Togneri

There are 45,000 workers across pubs in Scotland.

Ewan MacDonald-Russell

The most recent Scottish annual business survey says that there are about 240,000 retail workers.

Gordon MacDonald

Thank you very much. That helps to paint the picture of what the bill could do.

We have talked a lot about needing a culture change, possibly similar to the change that was needed in relation to the legislation on seat belts and the laws on drink-driving, for example. We need to send the message that the abuse of retail workers is not acceptable. The bill is not a panacea for all the ills that the convenience store and pub and club sectors face. What other action that is not included in the bill does the sector want in order to help to protect retail workers?

Paul Gerrard

As I said before, I think that Scotland is ahead of the rest of the UK on the issue in general. Last year, one thing that the UK Home Office did was a public awareness campaign, which focused more on shopworkers and getting them to be comfortable and confident about reporting abuse. The #AlwaysReportAbuse campaign was run by the Association of Convenience Stores in England and Wales and was really helpful. It did two things: it encouraged colleagues to report and it encouraged businesses to ensure that they do the right thing.

I do not agree with what the Law Society of Scotland has said about businesses possibly preventing or discouraging colleagues from reporting abuse, because I have never seen that—certainly not through the Co-operative Group. I would be very surprised if that were true of many businesses. However, the need to have a public awareness campaign or a sector awareness campaign on the importance and unacceptability of abuse says something.

11:30  



Ewan MacDonald-Russell

From our point of view, there are three points around coherency. First, we speak to our members a lot and, to echo Mr Gerrard’s point, we know that a huge amount of effort is put into protecting workers. Across the UK, our members spend more than £1 billion a year on protecting workers and on crime prevention, and that will continue.

Secondly, we want to work in partnership with the police. The Scottish Business Resilience Centre is a good example of that joint working.

The third point, which concerns what goes on in this building, is about the coherency of public policy. Many of the triggers for the behaviour that we see are consequence of public policies. Some of those policies are good decisions, and we support them, but there must be coherency and clarity, people’s voices must be heard and there must be a strategic approach.

Obviously, we are working with Government on a retail strategy. That kind of wider and more sectoral work on understanding the impacts of policy is essential. That is one thing that is often not thought about when we talk about public policy measures that retail workers enact.

Gordon MacDonald

You mentioned that your members spend £1 billion on protecting workers and so on. Can you give us a flavour of the nature of that spend? Obviously, employers have a duty of care for their employees. Furthermore, there are a lot of family-owned businesses in the convenience store sector, and the employers want to protect their family members. The same thing goes for bars and pubs. What are the various sectors doing to protect employees and family members?

Paul Gerrard

I can speak only for the Co-op. Although we are a relatively big business, we are a small-format business, which is a slightly different thing. Also, we do wholesale to lots of family-owned independent stores and independent co-operative societies, such as Scotmid.

In the past three years, we have spent about £140 million UK-wide, and we will do that in the coming three years, too. About £20 million of that was spent in our Scottish stores. That spending is on a few things: physical stuff, guards and the design of stores, which involves issues such as where you put stuff.

One of the most important things that we have done concerns the use of technology to connect colleagues on the shop floor. Sometimes, there will be three or four colleagues in the store—one in the back, one on the till and one on the floor, and so on. All our colleagues have headsets, which means that they can speak to each other at any point, which is important. We have also connected our colleagues to a central control room, which is provided by a private supplier. That enables them to be connected to the outside world. If there is an incident and they press the alarm button, that store is taken over by the central control function, and the control room gathers the evidence to send to the police, instructs the colleagues what to do and sends out announcements.

You need to spend money. A big business such as the Co-op can afford to spend the equivalent of £8,000 a year, on average, on security measures in a store, but my worry is that many of the most at-risk stores—the small, family-run independents—do not have that resource. We are at risk because of our format: our stores are small, local and community based. The equivalent family-run businesses might not have the same kind of money to spend, which means that they will be most at risk.

Ewan MacDonald-Russell

That is a far better explanation than I could give. The only thing that I would add is that, now, we often see retailers acting almost as quasi-judicial bodies whereby, if someone is acting in a way that is bad but their behaviour is not at the level at which the police will or can take action, a retailer will ban that customer and start other internal processes. In those situations, there is a lot of support for workers. That might not count towards the spend that we are talking about, but it involves recognising that there might be a degree of post-traumatic stress, which will require mental health support and so on. A lot of that sort of thing goes on, too.

Paul Togneri

On our part, there is the promotion of best practice via the Scottish Business Resilience Centre, and there is the Best Bar None Scotland’s accreditation scheme, which all pubs in Scotland are eligible to join. Our approach also involves partnership working. Pubs that might have a problem with violence, abuse or other such issues will usually work at having the best relationship possible with licensing standards officers and local police. Ensuring that those connections exist is an important part of our work.

Dr Cheema

One factor that has been missed so far is the amount of community work that retailers carry out to ensure that they know everybody and that, ultimately, they are safe. They try to get on with everybody in order to eradicate the kind of thing that we are talking about. Yes, we invest in CCTV and so on, but it is important to note that more and more people are becoming stressed in their work because of the situations that we have been discussing today. That is why we have employed the Retail Trust and are using its retail hub: we are trying to eradicate some of that stress by putting services behind our efforts. However, the situation is difficult, and it is getting worse.

Daniel Johnson

May I make a point, convener?

The Convener

We are short of time, so only if it is really important.

Daniel Johnson

The previous panel was questioned about legal protection and the idea of employers of other categories of worker being obliged to protect the life and limb of their employees. Retail workers are upholding the law by restricting access to age-restricted items such as alcohol, tobacco, battery acid and offensive weapons—items in relation to which there could be real consequences to life and limb if they are sold inappropriately. Is that a fair reflection of the situation, Mr Gerrard?

Paul Gerrard

I think that it is. Certainly, however, there are some differences. For example, we do not sell knives in our stores now because of the risk that poses, but we sell things such as acid and so on. If such items get into the wrong hands, there can be devastating consequences. That also goes for other age-related items such as alcohol and so on. I am not sure that the impact of those sales would be exactly the same, but I would not underestimate the implications of those products being sold in an unrestricted way. That is why Parliament brought in the safeguards.

The Convener

I thank the witnesses for what has been an interesting session. If anyone thinks of something that has not been covered today, they can write to us to let us know.

We will suspend the committee for a minute while we change witnesses.

11:36 Meeting suspended.  



11:37 On resuming—  



The Convener

I welcome Stewart Forrest, who is the Scottish divisional officer for the Union of Shop, Distributive and Allied Workers, and Robert Deavy, who is an organiser at GMB Scotland.

Gentlemen, you have just heard the previous evidence session. We are looking to build on that and will be asking you about broadly the same issues.

Richard Lyle

USDAW has collected examples of abusive behaviour, which I will quote. On age-restricted sales, we see this example:

“Broxburn—‘Customers very aggressive when refused sale of age restricted products, particularly alcohol.’”

On the throwing of goods:

“Inverurie—‘Customer threw items of their shopping at me as they were unhappy about the price’”.

On shoplifters:

“Fife—‘Shoplifter tried to head-butt me’”.

On belittling behaviour:

“Wick—‘Asked if I was stupid, spoken to like a child.’”

On assault:

“Dingwall—‘One customer elbowed me on purpose when I went past’”.

On verbal abuse:

“Dundee—‘I have had customers shout at me if something doesn’t go right and called many names’”.

and

“Inverness—‘A Woman was very upset about our lack of 10p bags and got verbally abusive.’”

Finally, on what can happen after work:

“Edinburgh—‘I have been stopped in the street going home and verbally abused by a family member of a shoplifter that I had caught previously that day. I feel very uncomfortable being put in that situation as these people know where I live and are known to be violent!’”

Are you saying that this is regularly happening all over Scotland?

Stewart Forrest (Union of Shop, Distributive and Allied Workers)

Yes. I want to start by stating that a job in retail is a real job, just the same as being a police officer, an emergency service worker or a firefighter is a real job. A lot of people spend their whole career in retail.

USDAW represents 30,000 members in retail in Scotland. The survey that you quoted from was part of our freedom from fear campaign. We have been running the campaign throughout the UK since 2003. A Scotland-specific survey is part of that campaign, and we have noticed that, since 2015, assaults and abuse of our members in Scotland are increasing significantly. You quoted our 2019 survey, which we would be happy to share with the committee on request.

Richard Lyle

Many committee members know that I was a grocery manager in a Co-operative for 14 years in the early part of my career. For my last question, I will again quote USDAW, which says that life on the front line of retail can be pretty tough for many shopworkers, that there is still a lot to do to help protect them, and that USDAW’s message is clear: abuse is not part of the job. Do you agree with that?

Stewart Forrest

Yes, absolutely.

Richard Lyle

Thank you.

Jackie Baillie

You may have heard the police say in their evidence that reports of threats, intimidation or violence against retail workers are all taken seriously and thoroughly investigated. Is that your members’ experience?

Stewart Forrest

It certainly is not the experience of USDAW members. Through their participation in our surveys, people are telling us that that is not the case. Such reports are not taken seriously. They see that, when people have been abusive, if they spend a lot of money in the store, they might be excluded from the store for that one shopping visit, but then they are back in. The majority of our members live in the community that they work in, and that can cause problems outside work.

Robert Deavy (GMB Scotland)

I had to deal with an incident in Blantyre about a year and a half or two years ago. A gang of youths was consistently robbing the store in Blantyre, threatening the security guard with a knife and baseball bats, telling him that they were going to stab him and attack any staff who got in their way. The store would call the police, who would not turn up, although they knew who those youths were. It took a critical article in a national newspaper for the police to act and to go to the store and deal with the incident. I will happily send that article; it is easy to find.

The experience of GMB members is that the police do not appear. There is no point in reporting crimes such as shoplifting; the police do not have the resources to deal with them. The bill, if it becomes law, would empower shopworkers to feel more confident in reporting.

Everyone who spoke in the earlier evidence sessions, from the Law Society to retail representatives, admits that this is a growing problem. Is that not enough to tell you that the current law is not doing enough to stop it? We need to try something different.

Jackie Baillie

Assuming that people get through the stage of police involvement, do you have confidence in prosecutions and sentencing? Have you any examples?

Robert Deavy

People do not have the confidence to report an incident in the first instance. First and foremost, they do not feel that they get support from the management in the store. In the stores that I deal with, when I raise with the manager what a member has said, the overriding response is that the store is too busy. They want to deal with that customer and get them out as quickly as possible, rather than report an incident. I believe that the bill will help to give retail workers the confidence to say to their manager, “I need to report this—it is a crime.”

We all know that we cannot assault people. We all know that we cannot verbally abuse people for their ethnicity, or for being pregnant. However, in retail there is an acceptance, and certainly we hear this from our members, that verbal abuse—although not so much assault—is just part of the day-to-day job.

We keep mentioning the sale of age-restricted products—alcohol, tobacco and so on. That is just one part of it. These things happen all over stores, whether in the front, when someone is selling alcohol, or up the back, when someone is getting goods for a customer. The problem is that, as we all know, the retail market is volatile. Retailers are struggling to keep pace with one another. Reductions in staff are leaving a lot of our members as lone workers in parts of the store. The problem is not just to do with age-restricted goods: it is happening in stores all over Scotland. It does not matter where someone works.

Does that answer your question, Ms Baillie?

11:45  



Jackie Baillie

It does. Thank you.

Stewart Forrest

It is USDAW’s opinion that some employers are more reluctant to push for a prosecution than others.

If the bill became law, knowing that there is a stronger law that would be more enforceable would be of comfort to our members.

11:45  



Willie Coffey

The experience in Blantyre that Robert Deavy described sounds as if it was criminal behaviour in any case. Mr Deavy, if the police fail to turn up to such incidents, would the bill solve the problem?

Robert Deavy

It might, because, as the previous panel mentioned, these incidents would become a priority and the police might react to them as a priority.

The problem that our members faced in Blantyre was that the police knew who the individuals were—they were young boys who were well known for their behaviour. The police decided that they would let them do what they were doing and pick them up later. The police did not go to the scene of the crime where our members were being threatened—they might have picked them up later in the local park, for instance.

Willie Coffey

But you think that the bill would help to overcome that issue.

Robert Deavy

I do not know; it is about giving retail workers more empowerment in their job by knowing that someone has their back.

If any committee members were to go into a store now and ask retail workers whether they believe that the Government supports them and the law protects them, I think that most of them would say no. That is very sad.

The Convener

Is it not an education and training issue? There are laws, but if retail workers do not feel that those laws are there for their protection, does that mean that there is a disconnect in terms of their understanding of the existing laws?

Stewart Forrest

There is training on the implementation of some laws and the consequences that our members would face if they do not adhere to them.

I do not think that a lot of employers encourage our members to report verbal abuse to the police. Having a stronger law and a campaign to advertise it would be better for our members. They would feel more comfortable knowing that better protection would be in place. At the moment, they do not believe that there is protection.

The Convener

Is a stronger law required, or just a law with a specific name? Are you saying that the current laws are not strong?

Stewart Forrest

It is our opinion that the current laws are not being enforced. Based on what the previous panel said, we all have a joined-up approach to this: us, the trade representatives who gave evidence earlier and the Co-op, which does a lot of work with us in the UK. We support the bill for the benefit of our members.

The results of USDAW’s UK survey—which has been going for a number of years—are bad, but the Scottish results, when they are separated out, are even worse. There is a major problem here, and it is growing. Colleagues on the previous panels have said that they recognise that the problem is growing.

The problem is not only with age-restricted sales; it is with drunk people who go into shops with alcohol and try to buy more but are refused it, or with people who are refused alcohol when they try to buy it for minors. There are a lot of trigger points, and it falls on retail workers to police them. If they do not, they get disciplined and potentially fined and taken to court.

Robert Deavy

Willie Coffey asked whether the bill would help to overcome the problems. Laws were already in place to protect emergency services workers in the police, fire and ambulance services before the Emergency Workers (Scotland) Act 2005 was brought in. It is reasonable to say that that act has helped those workers to do their jobs. Although the laws were already there, tightening them up and making them more specific has helped those workers.

Bringing in a law that is specifically for retail workers would tighten up laws that are already there and give retail workers a bit of support and encouragement to report crimes. I believe that it would help.

Colin Beattie

Stewart Forrest said that the current laws are not being enforced. If more new laws were brought in, would those be enforced?

Stewart Forrest

We would hope so. As someone on one of the previous panels said, if a stronger law was in place, there would be more chance of the police attending an incident and enforcing that law. At the moment, our members are telling us that they feel that the issues that are happening in retail are not being taken seriously, and they have to live with that. We do not want them to be scared to go into their work. There might be various reasons why they work in their own community—childcare, for example—so they cannot just move stores if they have a bad experience. They go into work every day, so they need to know that a strong law is in place for their protection.

Colin Beattie

If current laws were properly enforced, would that do the job?

Stewart Forrest

I cannot answer that question, because they are not being enforced.

Colin Beattie

Okay.

Robert Deavy talked about the focus on age-restricted products. When I asked the previous panel about alterative scenarios involving the obstruction and hindrance of retail workers, they could not come up with any examples. Are you able to give me an example that does not relate to an age-restricted product, which, to me, is a different scenario?

Robert Deavy

I do not know whether members have seen the video that was taken in a store in Toryglen, which went viral. One of our members was given an instruction by their management to place reduced items—stuff that was going out of date—on the shelf so that it could be sold that day. A crowd of customers was already there waiting, and when our member went to put out the items, he never got close to the shelf. He was basically set upon, as if by a pack of wolves, and received an injury in the line of work. Would that not be classed as hindrance? He was doing his job, but people could not wait five minutes while he put stuff on a shelf to get a 10p lettuce, a chicken, or whatever it might have been. The video is out there—I believe that another colleague filmed it because the situation was so vicious. Our member received an injury in the line of work that day.

I think that the previous panel touched on what happens if someone refuses to leave the store. What are our members supposed to do? If they call the police, the police will not turn up. Are they supposed to just stand there all day? They cannot do that as they have a job to do, so that is hindrance. Would a manager accept a member of staff standing there all day with an abusive customer because they refuse to leave the store?

There is a policy in place that, if a customer gets abusive or violent towards one of our members, the member is supposed to remove themselves from the situation. However, that is not always possible because the abusive person might physically stop them.

Colin Beattie

There is a concern that, if young people are being abusive, we will criminalise them by prosecuting them for causing hindrance and obstruction. I have heard one or two examples of hindrance and obstruction, but I do not really understand what the limits are. What behaviour would be considered hindrance and obstruction? You have given an example of an extreme case, but which lesser cases would trigger criminality? I am concerned about young people being unnecessarily criminalised at an early age, which would affect their entire future.

Stewart Forrest

In the convenience sector, groups of youths sometimes stand outside stores, or come in and out of the store and annoy or are abusive to the retail staff, which can be viewed as hindrance. Some of our members have been abused and followed home after they have tried to put people out of the store. That behaviour is hindrance and is not related to age-restricted products. A law to support workers must be put in place as the current law is not working. Although I agree that we might not want to see youngsters with a criminal record, what else should we do?

Colin Beattie

So you believe that, if the bill became law, it should be vigorously applied to young people causing problems in shops.

Stewart Forrest

If they were causing problems with the police, would the law be vigorously pursued? I am sure that it would be.

Robert Deavy

None of us wants to criminalise every young person in Scotland. We were all young at one point, although it was a long time ago for me. The bill is about sending a message. We are talking about people who are doing their jobs and, as the first panel mentioned, they are low-paid jobs. The people doing those jobs are predominantly females and they deserve protection at their work.

I am sorry but, whether someone is young, middle-aged or old, if they go into a store with the deliberate intention of abusing a shopworker, yes, they should be criminalised—I stand by that. If someone is willing to learn from their actions and if that criminalisation makes them see the error of their ways and prevents it from happening again, that is a good thing. We go on about people carrying a record for the rest of their lives, but that is a bit of an exaggeration—it does not really work like that, because there are spent criminal records and so on, so we need to be careful about that.

We need to protect people at their work. A specific law protecting retail workers might encourage employers to give more importance to protecting their workers and their duty of care. Simply putting up a poster at the front of the store that says that people will be prosecuted for certain actions might make people think twice. It has certainly worked on public transport. For example, there are posters on trains saying that abuse of staff will not be tolerated but, at the moment, we do not see such posters in many stores. Those might prevent people from being abusive.

The Convener

I will move on to Andy Wightman, because he wants to pick up on some of those issues.

Andy Wightman

On that last point, such posters could be put up now, because assault, abuse and threatening behaviour are crimes.

Mr Forrest mentioned the issue of somebody not leaving a store and that being a hindrance. If the bill became law, in that sort of situation, you would still rely on the police turning up, which you say they are not doing at present.

Stewart Forrest

In the first instance, the retail worker would try to get the person to leave the store. In an extreme case, the worker would maybe end up having to get the police. A lot of times, people leave reluctantly after abusing our members but before it becomes a police matter.

Andy Wightman

You said that, since 2015, there has been an increase in incidents, although I cannot remember exactly what the increase was. The USDAW survey shows that there was an increase after 2015, but that followed a decline. There was a spike in verbal abuse in 2017. There is a graph showing physical violence, which had declined to quite a low level in 2015 and was down further in 2016, but there was a spike in 2017. What is the cause of that spike to pre-2015 levels? Do you attribute it to anything in particular?

Stewart Forrest

Austerity is part of it. A lot of people have had more difficult times. The number of retail staff is shrinking, which perhaps means that there is more opportunity for theft and so on. It seems to be a sign of the times. As I mentioned, particularly in Scotland, the survey is telling us that the situation is getting worse. Our survey found that six in 10 retail workers suffer abuse on an almost daily basis.

Andy Wightman

I just wondered whether you were alluding to any particular piece of legislation or anything like that.

Stewart Forrest

No, I was not.

Andy Wightman

I will return to the question that I asked the previous panel on the section on aggravated offences relating to age-related products. That aggravated offence would apply only if any of the offences in section 1 were to become law. Given the strong evidence that we have heard about the public duty that retail workers are fulfilling in upholding those age-related restrictions and the penalties that they face, do you believe that the aggravated offence should be available for any crime that is being prosecuted, regardless of whether it is a section 1 offence under the bill? Ultimately, it is up to the prosecution authorities to decide whether to prosecute under the common law and breach of the peace or some other approach. The authorities can decide which approach has the best chance of success in the courts. If they were not prosecuting a section 1 offence, they could not have the aggravation.

Stewart Forrest

We would welcome it if the measures were to be extended to other groups, but we believe that Mr Johnson’s bill should be progressed in the form that it has been put before the committee.

12:00  



Andy Wightman

Okay. Just to be clear—we have rehearsed this—you are saying that, at the moment, the police and prosecution authorities are not doing enough to protect retail workers. I do not doubt that that is the case and I do not doubt the evidence that you have brought about the level of abuse and the need for something to be done.

The question for this committee is whether the bill is the right way to do what is needed. Is it your view that the bill is mainly—although not exclusively—about sending a clear message that reassures retail workers?

Robert Deavy

I want to be absolutely clear: it is not me but our members who say that the system is not working and that they are facing abuse every day of their working lives. We can only take their word for it; they are in the firing line and they are telling me, as their trade union representative, that they get no protection at work either from their employer or from the police and the courts, who are meant to uphold the law.

Andy Wightman

Do you agree that, if the bill passes as it stands, it will be deemed pretty ineffective if the police and prosecuting officers do not enforce it?

Robert Deavy

Yes, that will be the case if they do not enforce it. That is the same for any law, is it not?

Andy Wightman

Absolutely. That is what I am suggesting.

The Convener

Does Alison Harris want to come back in at this point?

Alison Harris

No, thank you. I have heard a lot of evidence.

Gordon MacDonald

I have a question that is similar to the one that I put to the previous panel. We have talked about the culture change that is needed and the message that we need to send about protecting workers. We have heard about the number of workers who could be protected by the bill, and, thanks to the evidence that we have heard from you guys on the panel, we understand the problem, to an extent.

The bill is not a panacea that will deal with all the ills that are faced by retail workers and people who work in pubs and clubs. What other action, which is not covered in the bill, should be taken to protect retail workers?

Robert Deavy

I would like more duty to be placed on employers than is currently the case. I can give you a good example. One of my members was assaulted after a situation escalated from verbal abuse to physical abuse. We took the case through the company’s procedures to try to get the customer banned. The case went all the way to a senior director of the company, and the end result was that the company would not ban the customer. The company’s answer to our member was, “If that customer enters the store, leave the floor.” Now, there are 75 other workers in that store. Are they all meant to leave the floor, or is it just that member who is supposed to do that?

I think that the bill will put greater emphasis on the employer’s role, but there needs to be a greater duty of care. There is a duty of care, and there are health and safety rules and so on, at the end of the day, but due to the cuts that we see happening all over the retail sector, I think that there is less and less emphasis on the issue, every day.

Gordon MacDonald

Store owners and retail sector representatives told us that they are spending, on average, £8,000 per store—I think that that was the number—to try to protect workers. Are employers doing enough? Apart from the example that you have just given, what other issues would you like to be dealt with?

Robert Deavy

The sector representatives mentioned guards in stores, but there are numerous examples of guards being removed and made to stack shelves, simply because there are not enough staff. I accept that companies are spending a lot of money on CCTV and so on, but guards have a pivotal role. They are there as a deterrent. If someone walks in and sees a guard, they might think twice, but if the guard is not on the podium at the front of the store because they have had to go and put bread or tins of beans away, it is a bit easier to shoplift—as Stewart Forrest said, shoplifting has become much easier because of the lack of staff.

Stewart Forrest

Security has certainly been cut back, as part of the cutbacks that we have seen in stores. A member of the previous panel said that there is more emphasis on CCTV and verbal communications, but the deterrent is the store security guard, and guards are being moved about at certain times or taken away altogether.

It is not just the employer. USDAW has said that the public also needs to be educated, and we do that through the freedom from fear campaign and the respect for shopworkers events. We go out to supermarkets, large stores and small stores, and try to educate the public by saying, “Look, the people working here are not here to be abused.” A good strapline that we use every November is “Keep your cool at Christmas”. That time is a flashpoint, because stores are busier. Two or three years ago in Dundee, a large retailer had to close a store because of people fighting over stuff on black Friday. Our members are in that melee, getting injured and abused because they are doing their job.

The public needs to be educated, but Mr Johnson’s bill also has to send a message to workers that they will be treated seriously. We also have to get the police and the Crown Office to treat abuse of shopworkers seriously.

The Convener

From what you have said so far, the gaps seem to be in police attendance and prosecution when there is an incident. You have also talked quite a bit about employers’ responsibilities and what they need to do.

I am taking a wild guess that the people who abuse shopworkers are not going to pay much heed to new laws that are passed or to what the laws say. How will the message of a new law get to the people who commit those offences in the first place? How will it make a difference to them? Do we need some high-profile prosecutions to get the message out? Is that not the real disconnect?

Stewart Forrest

No—education is the disconnect when it comes to how people behave when they deal with retail workers, although it might take some high profile prosecutions to get the message home.

Again, the police are an issue. They have had cuts, but they also do not take this offence as seriously as some other offences. If there were a stronger piece of legislation that said that such behaviour was breaking the law, maybe they would.

The Convener

Having listened to the evidence today, I note that Gillian Mawdsley said in the first session that it was about understanding where the gaps in the legislation are that need to be filled in order to prevent this problem. There clearly is an issue—I do not think that anybody disputes that—but the panel in the earlier session today said that the laws are there, and nobody seems to have disputed that. You are saying that stronger law is needed, but when I asked the direct question “Is it about stronger law?”, you said no.

It seems that the main issues that we have heard about are police response times or their not attending at all, shopworkers’ understanding of their rights not to be abused, and the fact that the offenders who are doing it, for whatever reason, do not much care what the law is anyway, given that the law to prevent them from doing it is already there. I am trying to understand how you feel the bill would change those factors. What is the gap that the bill would fill?

Robert Deavy

If someone goes into a store with the intention of abusing or physically assaulting a shop worker, no law that you could produce would stop them. If that is their mindset, you will not stop it.

However, if a law specifically targeted people who believe that the customer is always right—we have all heard that phrase—and so it is their right to abuse a shopworker, it might make them think twice. It might stop them.

I do not think that there is a quick fix. You will never get it down to zero, as much as we all want a situation in which everybody goes to work with absolutely no chance of being assaulted or verbally abused and so on. Realistically, that is never going to happen, but you could do something that puts a greater emphasis on retail workers. A specific law that empowers them by giving them the confidence that they are being protected and that lawmakers and those who are employed to uphold the law—the police—will give them more protection should they face abuse is more important.

Yes, we all know that the law is that you cannot assault people. Most people know how to behave, but that is not to say that there are not some who believe that it is acceptable to assault someone because they are “only a shopworker”. I think that that is what has happened. It now seems to be the case, certainly among my members, that retail workers believe that being abused is part of their job. The proposed law would change that mindset and give people a bit of confidence to report abuse.

The Convener

Are you saying that shopworkers are different to other workers who also deal with the public, or should there be such a law for every category of worker that deals with the public, in order to protect them from abuse from the public?

Robert Deavy

I would welcome anyone being protected at their work. Bear it in mind that we already have a law that protects police officers, firefighters and so on. Are we saying that they are in a higher class of worker than a retail worker? I think that we need to be very careful. In my eyes, a worker is someone who is trying to earn a living to provide for their family. In my opinion, people should return home from their work in exactly the same condition in which they went to their work, although perhaps a little more tired.

The Convener

Should we therefore not ensure that the laws that we already have apply to all workers, rather than create new layers of law for each specified type of worker?

Robert Deavy

Sometimes you need to create a new layer to make sure that the previous laws are enforced, such as the law relating to emergency workers.

Stewart Forrest

Which is another layer of law.

The Convener

I will leave it there. Mr Johnson, do you want to add anything?

Daniel Johnson

I will follow on from Colin Beattie’s and the convener’s questions regarding the types of people who cause issues. There seems to be a characterisation that the people who fail to comply with requirements around age-restricted products, either because they are under age themselves or are with someone who is under age, are typically under age or are people who generally do not comply with the law. Is there is a typical type of person who causes difficulty for and abuses shopworkers?

Stewart Forrest

Often the behaviour occurs across the board. It was mentioned that there are 200-plus age-restricted products in stores. People might have to be challenged when they buy them, so the behaviour applies across the board.

Robert Deavy

I also think that it goes across the board. The example that I used about escalation involved a 62-year-old woman. I do not think that you would normally associate a 62-year-old woman with that level of abuse. It is not specifically young people or old people—there is a broad spectrum.

Daniel Johnson

On the point about the customer “always being right”, will you reflect on some of the behaviours that might typically be found in a store, such as customers not moving away from the counter and holding up the people in the queue behind them because the retail worker has not done what they asked, whether that is to sell them an age-restricted item or go and check the stockroom? Are people encountering that behaviour and can it escalate?

Robert Deavy

It is certainly more common in the case of sales of age-restricted alcohol or tobacco that, if our members refuse to serve a customer, they will not move. Our member will then call for their manager, who will, in my experience, sometimes override our member’s decision and serve the customer just to get rid of them. That seems to be the only way to remove such people from the store.

The issue does not exclusively relate to age-restricted products. I am aware of an incident in a store relating to the self-service facility. Self-service is becoming a large part of retail as stores do away with manned checkouts. I have not used one, but if you have, you will be aware that there are often problems with the bagging area. There is usually only one member of staff to deal with 14 or 16 self-service checkouts, and if they do not get there quick enough, the customer can, for want of a better phrase, throw a strop. We had an incident in which a customer threatened to slash our member’s throat, and the manager’s way of dealing with that was to take the customer to another till to serve them, rather than remove them from the store. It is quite common for customers to stand there and refuse to move.

The Convener

Thank you. As there are no other questions, I thank the panel for coming to give evidence. If there is anything else that you wish to add, please feel free to write to us.

12:14 Meeting continued in private until 13:02.  



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Second meeting transcript

The Convener

Agenda item 2 is our main item of business, and is a continuation of our evidence taking on the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill. We previously took evidence on the bill on 3 March. I am pleased to welcome our witnesses, Ash Denham, the Minister for Community Safety, and her adviser, Philip Lamont, head of the criminal law, practice and licensing unit in the Scottish Government’s criminal justice division. I invite the minister to make a short opening statement.

The Minister for Community Safety (Ash Denham)

Good morning.

I start by recognising the key role that retail workers play in local communities and in the Scottish economy. During the coronavirus outbreak, the contribution that they are making has only been emphasised to us all as the retail trade helps communities across Scotland to get through these challenging times. It is right that retail workers should be protected by our criminal laws.

The committee has heard evidence on a range of criminal conduct that retail workers can be exposed to, which can involve verbal abuse, threatening and abusive behaviour and physical attacks, including spitting. Clearly, such conduct is completely unacceptable, and perpetrators should be held to account.

A wide range of existing criminal laws is in place. Examples include the offence of threatening or abusive behaviour and the offence of assault. Those existing laws give courts discretion to impose maximum penalties far in excess of those that are proposed in the bill.

Of course, legislation needs to have a practical effect. Daniel Johnson’s bill is very well intentioned. However, the new offence contained in the bill largely restates existing, more general offences, but with lower penalties. The Scottish Government’s view is that, where the new offence seeks to extend the law, it does so in a way that sets too low a threshold for criminality in respect of the new hindering and obstructing offences.

Obviously, enforcement of the law is for Police Scotland, the Crown Office and, ultimately, the criminal courts. As Police Scotland said in its evidence on 3 March, the bill would not change the enforcement of the law in respect of threats against and abuse of retail workers, as Police Scotland already takes those issues seriously.

More can always be done to ensure that measures are in place to encourage the reporting of violence against and abuse of retail workers so that a clear message is sent to perpetrators that such conduct is wrong. However, creating new laws that replicate existing laws, or extending the law in a way that lowers the threshold for criminality to hindering or obstructing a retail worker, does not seem to be the answer to helping to keep retail workers safe.

However, I will follow all the evidence to the committee with interest, and I will, of course, reflect carefully on the committee’s report when it is produced.

The Convener

Thank you, minister.

I move on to questions from members. I will invite each member to ask their question and then I will go to the minister. I will come back to each member for follow-up questions or points of clarification. Once each member has asked all their questions, I will move on to the next member, until every member has had the opportunity to speak. I will take supplementary questions from any member if they are points of clarification or if they drill down on a specific point. We have gone over how to do that.

I ask everyone to keep questions and answers succinct and to give broadcasting staff a few seconds to operate your microphone before you begin to ask a question or provide an answer.

We will start with Alison Harris.

Alison Harris (Central Scotland) (Con)

Good morning, minister. Representatives of retail workers and businesses have presented evidence that points to a serious problem of abuse. Does the Scottish Government agree with that evidence?

Ash Denham

Clearly, there are instances of abuse, and any attack on a retail worker is unacceptable, as are threats of abuse towards retail workers. Members will be aware that there are no official national statistics on offences against retail workers. The victim’s occupation is not recorded in offences of assault or of threatening or abusive behaviour.

I am sure that the committee is aware of surveys that have been carried out by trade unions that give a sense of the scale of incidents in the retail trade. A detailed survey completed by the Union of Shop, Distributive and Allied Workers—USDAW—of those in retail who have suffered violence and threats paints a picture of trends that have, I would say, fluctuated over recent years. There does not seem to be a clear overall trend.

We would all recognise that Scotland is a much safer place than it was about a decade ago. The Scottish Government is committed to investing in funding for violence-prevention initiatives. However, we are not at all complacent, even though some of those initiatives have been very successful—I am sure that the committee is aware of initiatives such as the Scottish Violence Reduction Unit and others. We are carrying on with investments in such projects. Other initiatives that the committee may be aware of include No Knives, Better Lives, Mentors in Violence Prevention and the navigators programme. Those programmes are extremely important, and the Government will continue to invest in them.

We are all clear that retail workers are entitled to be able to carry out their work free from any type of abuse. When they experience abuse, they should report that to the police; there is protection available to them under existing laws.

09:45  



Alison Harris

I have a question on the enforcement of existing offences. There is a perception that the justice system does not take the abuse of retail workers seriously, that the reporting of incidents does not lead to prompt police action and that cases are not prosecuted or, if they are prosecuted, they result in light sentences. We have received conflicting evidence on that subject. Will you comment on that, please?

Ash Denham

I would concur that this is a serious matter, and I think that all the justice partners would agree that they take it seriously. The committee will understand that these are operational matters that are clearly for Police Scotland, the Crown Office and the judiciary, and I will not pass specific comment on how those organisations use their independent powers. However, I listened carefully to the evidence that was given to the committee on the subject, and I think that it is fair to say that there was a difference between the views that were expressed by Police Scotland on the one hand and those expressed by the representatives of the retail trade on the other. I reiterate that Police Scotland said in its evidence—I am paraphrasing—that it treats the matter as a priority.

With all crimes, there are often different perceptions of the response of different organisations in the justice system. Of course, there will always be individual incidents where the expressed policy of Police Scotland is, unfortunately, not delivered. However, the police were clear that they prioritise violent incidents and antisocial behaviour, and that certainly includes incidents where retail workers are the victims.

The Crown Office, which is responsible for prosecuting cases, said in its evidence that, when cases are reported to it that are criminal, it takes them “very seriously”. Once cases reach court, sentencing is a matter for the independent court. I am not aware of any specific evidence that shows that sentencing is not operating effectively, but I am sure that the Scottish Sentencing Council would be happy to consider any further evidence that the committee has in that area.

Alison Harris

Thank you, minister.

The Deputy Convener (Willie Coffey)

I think that we may have lost the connection with the convener for a moment. I invite Richard Lyle, who is next on our list, to ask his questions.

Richard Lyle (Uddingston and Bellshill) (SNP)

I begin by declaring that I am a member of the cross-party group on independent convenience stores and that one of my first jobs was as a grocery manager.

Is it reasonable to argue that passing the bill would help to send a clear message that the abusive behaviour that it deals with will not be tolerated?

Ash Denham

The challenge for the committee is to consider whether the sending of a message is an appropriate primary function of changes to the criminal law. In assessing that, I invite the committee to recall the evidence that Police Scotland gave to the committee in March. The witness from Police Scotland said that, if the bill was passed,

“there would be no significant change in how we go about our business.”—[Official Report, Economy, Energy and Fair Work Committee, 3 March 2020; c 7.]

The Scottish Government’s view is that, obviously, legislation needs to have practical effect for it to be progressed, and, if that practical effect is accompanied by the sending of a message, that is a secondary benefit. I am sure that the committee will look in detail at all the proposals in the bill and assess whether they would add value to the operation of the criminal law.

The policy memorandum says that the benefits of the bill would include

“increased awareness of the issues”

and an increase in reporting to police. Both those things would be extremely beneficial, but it is for the committee to reflect on whether the right way to achieve those benefits is to change the law. That is the question that you need to grapple with.

Richard Lyle

Grocery workers, like national health service workers, are on the front line. Having been a grocery manager, I pay tribute to them for what they are doing. During the current coronavirus pandemic, many retail workers are doing vital work in difficult—sometimes very difficult—circumstances. Given their front-line role, will the Scottish Government reconsider its position on the bill? If not, what does the Government propose?

Ash Denham

That is a really good point. Retail workers are carrying out an important service for us all at this time, and they are key workers—I am acutely aware of that. Every time that I venture out to the supermarket, I see people sitting cheerfully on the checkout who know that they are probably putting themselves at risk to make sure that we all have the services that we need.

The Scottish Government is clear that the full force of the law can be used against anybody who assaults, threatens or abuses a retail worker. That is true today during the coronavirus outbreak, and it was true last week, in January and last year as well.

The outbreak has emphasised the valuable role that retail workers play and the fact that they are key workers. They are helping communities right across Scotland as we all try to get through this difficult time. My view is that the existing criminal law can and should be used to deal with attacks on retail workers. Our justice partners, such as Police Scotland, have confirmed that they treat such attacks as a priority.

Andy Wightman (Lothian) (Green)

If you had drafted the Government’s memorandum on the bill this week rather than a month ago, would you have made any changes to it?

Ash Denham

No. As I said in my answer to Richard Lyle, we are all realising—if we did not already realise it—how important retail workers are. They are key workers and they are helping us by going to work and keeping going to get us all through this difficult time.

Andy Wightman

Paragraph 20 in your memorandum on the bill talks about situations involving a customer reacting in a threatening or abusive way in response to being required to provide age verification. It goes on to talk about food standards and situations in which an authorised officer is obstructed from doing their important regulatory work. The memorandum says that it is important that those officers have protections, because they need to keep the public safe. Do you accept that one thing that the past eight weeks has shown us is that retail workers are responsible for keeping the public safe, too, and, indeed, are expected to police regulations that are made by your Government and passed by the Parliament in relation to things such as physical distancing?

Ash Denham

Yes. Clearly, when retail workers are checking people’s ages in relation to the sale of age-restricted products, that can be a trigger for abuse—we all agree that that is the case. Therefore, such workers require the protection of the law, and that is provided under the existing law. Offences concerning assault, threatening or abusive behaviour and breach of the peace provide that protection.

I refer the committee to the evidence that was given by Police Scotland. One of the key age-restricted products is alcohol, in relation to which powers exist under the Licensing (Scotland) Act 2005. If somebody refuses to leave premises where alcohol is sold, a police officer has the power to ask the person to leave. If they do not leave, they are committing an offence and can be removed by force. Obviously, a police officer has to turn up in order for that type of enforcement to be carried out, but there is protection in the law to deal with such a situation.

From the evidence, I can say that there is an issue with the culture that exists. As we have just discussed, the work of retail workers is important during this time of crisis, as well as in normal times, with regard to public health and the sale of age-restricted products and so on. We need to get across the message that abusive behaviour that is directed at retail workers when they are carrying out their work is completely unacceptable and should be reported so that our justice partners can take action.

Andy Wightman

I was talking specifically about the obstructing and hindering issue and the comparison that your memorandum makes with public hygiene officers. I wanted to know whether you think that the act of obstructing and hindering—not the act of assault or abuse—is just as relevant to retail workers enforcing the law in relation to physical distancing as it is to such officers. However, given the pressures of time, I will leave that line of questioning there, although you can come back to it if you like.

Is the Scottish Government’s objection to the bill fundamental, or can you see any scope for the bill to be amended at stage 2 in a way that results in a bill that provides additional useful and proportionate changes in the law to protect retail workers?

Ash Denham

It is interesting that you used the word “proportionate”.

On your point about obstructing and hindering, there is a question for the committee about whether including an offence of obstructing and hindering places the criminal bar too low given the type of activity that would be captured by the provision. That is something for the committee to reflect on.

The Government cannot support the bill in its current format. I would be happy to work with Daniel Johnson and to have conversations about what could be done about it. I think that he will give evidence to the committee next week, and I will watch that session with great interest to hear the evidence that he puts forward and to learn what he has to say about the shape that the bill is in now.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

From your opening remarks, it was clear that you feel that the proposals in the bill duplicate, or in some cases reduce, the impact of existing legislation. We all accept that retail workers face problematic behaviour. Based on the evidence that has been given so far, do you think there is any aspect of that behaviour that is not covered by current criminal laws?

10:00  



Ash Denham

That is a key question. Some of the evidence that the committee took points to the view that there is not necessarily a gap in the legislation. Rather, the committee heard issues about raising awareness, the reluctance to report issues to the police and enforcement. In strict legal terms, I do not think that there is a gap in the law, and the proposals in the bill largely replicate existing criminal provision, except for, as the committee is aware, the hindering and obstruction part, which we have discussed in answering a previous question.

Colin Beattie

Within that, an area that I have a lot of sympathy for is that of retail workers enforcing the laws on sales of age-restricted goods. Those workers are seeking to uphold the law in the wider public interest. Do they deserve additional protection for that? From the evidence that has been given, that seems like a key area where problems arise—not uniquely, but mostly. Can something perhaps be done to strengthen the powers there?

Ash Denham

Currently, when a case progresses to court in which someone has been a victim of criminality as a result of going about their work, the judge will take that into account. However, it might be worth considering the idea of some type of aggravator that would capture the behaviour that you are talking about. That would send a message about the kind of criminality that takes place when retail workers check age in order to ensure that they sell products only to people who are entitled to buy them. I would be interested to hear the committee’s views on that. I wonder whether that could be considered.

Colin Beattie

Would you consider dealing with that through the bill?

Ash Denham

That is a good question. I would not want to commit right now to saying exactly how that could be progressed. As I said, I will listen to what Daniel Johnson says when he gives evidence next week, and I will certainly be open to working with him on the issue. If the committee thinks that it is important for us to consider the issue, I put on record that the Government would be open to looking at the suggestion.

Colin Beattie

That is helpful.

My final question concerns the issue of obstructing and hindering. Obviously, there have been concerns about the interpretation of that provision. From the evidence that I have heard, I have gained the impression that many of the issues in that regard concern sales of age-restricted goods—perhaps not uniquely, but a lot of them. How practical would it be to incorporate into the discussions on age-related restrictions on sales some sort of provision that covers obstruction and hindrance? I am using the words that are used in the bill, although perhaps they are not the right terms. I am talking about situations in which a worker is prevented from doing their duty as a result of trying to enforce the law.

Ash Denham

There are a couple of issues there. Clearly, different types of conduct are involved. For example, currently, if someone is standing in the door of a shop, shouting abuse at a shop worker, preventing them from coming in or out of the shop and being threatening or abusive, that—not the obstructing part, but the threatening and abusive part—is already covered under the offence of threatening and abusive behaviour. Criminal protections are already in place to cover that type of conduct. However, if someone is standing in the doorway and is, in a non-aggressive way, obstructing or hindering the work of a retail worker and their comings and goings, the law does not currently cover that. It is up to the committee to decide whether that should merit a criminal sanction.

Other examples that would come under the banner of hindering or obstructing could be someone switching off an electronic till, or someone debating extensively with a retail worker—maybe about a refund—and refusing to move to allow the worker to get on with serving the next customer. Those examples are not currently covered by criminal law, and it is up to the committee to consider whether they should be.

It seems to me that criminalising such behaviour would be a low bar to set. If we are talking about age-restricted products in particular, we might capture more children by reducing the threshold to hindering and obstructing. It is up to the committee to think about whether that is appropriate, but I think that capturing children in the criminal justice system might not be appropriate.

The Convener

My apologies, committee—there were a few technical difficulties and I lost you all for a while. We will move on to Rhoda Grant.

Rhoda Grant (Highlands and Islands) (Lab)

I cannot help but wonder whether, had this law been in place, the abuse that retail workers have been getting when they are putting in place Covid-19-related restrictions would not have happened, because we would all know that it was unacceptable to do that. If the Scottish Government cannot support the bill, what will it do to protect retail workers when they are carrying out duties that it has imposed?

Ash Denham

We need to get out the message that it is not acceptable to abuse retail workers when they are carrying out their job—if anything, the current situation underlines that.

Over the past few weeks, I have spoken to a couple of retail workers. When I thanked one of them for what they are doing, she said, “Oh, it’s so nice to be thanked. A lot of the other customers are being really quite unpleasant.” I think that that is a reflection of how stressed people are—and they are taking it out on completely the wrong people. We need to get out the message that such behaviour is not acceptable.

I return to my earlier point that, although legislation can change perceptions and the culture, if we are trying to raise awareness about the complete unacceptability of that behaviour, is legislation the best way to do that, or is there another way? Maybe there could be a public awareness campaign on a zero-tolerance approach to abusing retail workers, which could utilise the existing criminal provision. Perhaps that would be a way to progress the matter.

Rhoda Grant

I believe that retail workers need enhanced protection. We have seen them take abuse as they work on the front line during the epidemic. They are putting their own health in danger to serve the public. We need to protect them properly and not just through the normal criminal law.

Police Scotland’s written evidence states:

“Having an improved understanding of the extent and the circumstances in which these crimes or offences have been committed will better facilitate the monitoring of trends and allow the identification of emerging threats to ensure early intervention and effective harm prevention activity can be undertaken across the retail arena.”

Is the Scottish Government looking at ways to collect data? To return to the current situation, one could have foreseen that retail workers, when they were stopping panic buying and enforcing distancing measures, would get a fair amount of abuse, because they are not subject to any enhanced protection under the law.

Ash Denham

Yes, we have seen that. That is quite right. I explained in a previous answer that we do not have the data. We do not currently have that disaggregated data by occupation. We would always be interested in considering whether there is other data that we could collect or that we should be collecting that would be helpful. I would certainly be open to the committee’s views on that. If the committee thinks that the Government should be looking at that, I would certainly give an undertaking that we will look at that.

Philip Lamont might be able to give members a little more detail about the types of data that we collect. That might be helpful.

Philip Lamont (Scottish Government)

As the minister has explained, if someone has committed an assault or their behaviour has been threatening or abusive, the victim’s occupation is not currently recorded in the general criminal justice data. That could be considered. It would be for the justice agencies—all those involved in the collection of data across the criminal justice system—to decide how best that could be progressed. The Scottish Government would certainly be happy to consider that.

To pick up on what the minister said earlier about potentially considering a more general statutory aggravation in relation to offences that have been committed against retail workers, one of the benefits of that would be the improvement of record keeping. One of the reasons—it is not the only reason—why we have statutory aggravations across the criminal justice system is to improve the recording of data in certain areas. That is why we have a statutory aggravation in relation to domestic abuse, for example; it allows better data to be recorded and kept. There might therefore be lessons to be learned from other areas on the recording of data if the committee and Daniel Johnson wanted to consider further a more general aggravation.

Rhoda Grant

So you are saying that none of the abuse towards retail workers, especially in the current crisis, is currently being monitored or collected in any way.

Philip Lamont

It is being monitored in the sense that, whenever an offence has been committed, the police are called out. If the incident was in a retail premises, the police will deal with it and do what they need to do to gather evidence. However, because an assault of a retail worker or a threat made against them is, as with any other occupation, dealt with under the general criminal law, the victim’s occupation is not recorded under the current recording standards that are used.

Rhoda Grant

I think that the bill would be one way of protecting retail workers now and going forward as they carry out the work that is imposed on them by the Government, and I hope that the Government will take that on board.

The Convener

Thank you, Rhoda. I hope that the Scottish Government is listening to what is being said today.

We will now move to Willie Coffey. I thank him for stepping in every time I disappear.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

It is a pleasure, convener.

I want to tease out a little more the issue of obstructing and hindering, which seems to be at the core of the Government’s concerns about the bill. Paragraph 29 of the Scottish Government’s memorandum to the committee states:

“if the obstruction or hindering was carried out in a threatening or abusive way or ... amounted to an assault or breach of the peace, then the existing criminal law already criminalises such conduct.”

Is that a correct interpretation of what the Government is saying?

Ash Denham

Yes—that is right. I gave examples earlier. If the obstruction, hindering, getting in a person’s way or refusing to move has a threatening or abusive element, that is already covered under the existing criminal provisions.

Willie Coffey

Penalties for such offences are already allowed in the criminal law; in fact, those penalties are in excess of the penalties that are proposed in the bill. Does that mean that, if we passed the bill unaltered, we would impose lighter sentences than we already can?

10:15  



Ash Denham

The proposals in the bill for sentencing are less stringent than the existing legislation, but existing provisions would still remain and the prosecution would be able to use those. If the offence was very serious, I am sure that the prosecution would continue to use those provisions in the event that the bill was passed. I will ask Philip Lamont to give you an overview of how the existing provisions work and how the provisions in the bill differ from them.

Philip Lamont

If the bill was passed, in the case of an incident such as an assault on a retail worker, the Crown Office, which decides whether to take forward a prosecution, would have to decide which offence to libel in the prosecution. It would look at what the eventual sentence might be. If there is an incident of threatening or abusive behaviour against a retail worker that the Crown Office thinks is particularly serious, it will most likely libel the general threatening or abusive behaviour offence that exists already, because that carries a maximum sentence of up to five years. The offence in this bill has a maximum penalty of 12 months. In essence, even if the bill was passed in its current form, more serious incidents of assault, threats or abuse would still be prosecuted under existing laws.

Willie Coffey

Minister, in your opening remarks, you mentioned that there might be a case for encouraging more reporting. You also talked about potential aggravation. Might that be a way forward for Daniel Johnson to improve his bill at stage 2 and beyond?

Ash Denham

I am sorry Willie, but could you repeat the question? You were breaking up there and I could not quite hear what you were saying.

Willie Coffey

I was just asking for the Government’s view on how we can better protect workers and retail workers, especially when there are so many respondents who seem to be supportive of the principles of the bill. You mentioned encouraging the reporting of this type of offence and you also talked about having an aggravation. Would that be the way forward at stage 2 and beyond?

Ash Denham

Yes. More can always be done and retail workers clearly face problematic behaviour, some of which is covered by existing criminal provisions and some of which is not. A lot of it is undoubtedly very irritating and makes it frustrating when people who are just trying to do their work are facing this type of behaviour.

Awareness raising is key, but I have covered that in detail already. I also believe that employers have a role to play. When staff are being obstructed or hindered and, in the worst cases, attacked or abused, employers have a role to play in keeping their personnel safe and in encouraging reporting. That is really important. They need to encourage reporting so that cases can be passed on to the justice agencies and progressed from there. That, in itself, sends a message. If behaviour escalates and becomes aggressive, the existing laws should be used.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

I just want to pick up on some of the points that you raised about a public awareness campaign. The Law Society told us in evidence that people need to be empowered to know that what they are suffering is criminal, and the Union of Shop, Distributive and Allied Workers said that the public also needs to be educated. If a public awareness campaign is the way forward, who would it be aimed at?

Ash Denham

You have raised some really good points. It came out loud and clear to me during evidence that retail workers need to know whether something that is happening to them is problematic and may even be criminal. The level of understanding is probably not what it should be. A campaign to raise the level of awareness would be useful. Members of the public need to know very clearly that threatening or abusing retail staff is a criminal offence and that they will be held to account for it—you have touched on that point. Raising awareness in this area would also be useful and I think that the Government would definitely consider it.

Gordon MacDonald

There are two aspects to food retailing: the small, independent family-run businesses and the chains—I will not mention names, but we know that large supermarket operators are moving into the convenience store market. How can we differentiate between the two? The first group needs protection; the second is large organisations, whose local management, as you have rightly said, might not want to deal with a problem in a store. They want to get the customer out of the door as quickly as possible rather than cause a fuss. We are dealing with two clear groups, so how would we focus on getting the information across to staff and customers in two entirely different settings?

Ash Denham

You are right to point out that there are different settings, which have different opportunities and challenges. We need to make sure that larger stores have a culture of reporting. It is important that incidents do not go unreported because such an approach is quicker or easier. That message needs to be got out there.

It is too early for me to say exactly how the Government would do an awareness campaign. The strands would all need to go together, and we would need to discuss them with stakeholders and the public to make sure that we develop something that would be as useful and impactful as possible. I will certainly reflect on the issue.

Gordon MacDonald

Thank you, minister. I probably should have mentioned that I am the convener of the cross-party group on independent convenience stores.

Dean Lockhart (Mid Scotland and Fife) (Con)

Good morning, minister. I will go back to the issue of data and reporting. The committee heard evidence from the Scottish Grocers Federation that the reported number of assaults and attacks on retail workers is just a fraction of what actually happens. Many workers are subject to abuse and attack almost daily. Is that a situation that the minister recognises? Does it increase the need for specific laws and protections in this area?

Ash Denham

There is undoubtedly underreporting in this area. As I have said, once something is reported and progressed into the criminal justice system, we are not able to disaggregate by occupation. The point about the absence of data on which to base policy is coming across strongly from the committee, and I will take that issue away and reflect on it further.

Dean Lockhart

Thank you very much. I will also go back to the legal analysis. I think that the committee recognises that, from a strict legal perspective, the concerns that are covered by the bill might be largely covered by existing laws. As we considered earlier, legislation often sends a message about the priority of public policy and can change culture.

You mentioned earlier that you think that there will have to be a culture change in this area. Given the role of retail workers on the front line of the Covid-19 crisis, the committee’s view is that, although existing legislation might cover the issue from a legal perspective, there is value from a public policy perspective in sending a message to the public that the issue is a policy priority. That might bring about the culture change that you mentioned. Do you see the merits of that secondary aspect of the legislation?

Ash Denham

I see that, and I take it on board. There are definitely instances in which legislation has completely turned our culture around. I am sure that members have their own memories of specific laws. As I remember it, the legislation on seat belts and on smoking changed the way we did things. In those areas, the culture was completely changed by introducing legislation.

Perhaps the committee would agree, however, that we are not in exactly the same situation with this bill. In the examples that I mentioned, there was a gap between the law and the policy intention, and the law was changed in order to match that intention. Many of the proposed elements of this bill are already covered by provisions in existing criminal legislation, so there is not a gap in the law per se. However, I very much take on board the committee’s interest in doing something about the issue.

I said this earlier, but it bears repeating. The primary benefit that we are looking to get from the bill is a raised awareness that it is unacceptable to attack shop workers, and that there is zero tolerance for such incidents and they should be reported and taken forward. However, is that the primary function of legislation? I will leave the committee with that thought.

As I mentioned earlier, some type of aggravator could potentially be a way forward—it would send a message, but it would not replicate existing provisions. I would be very interested to hear the committee’s views on that.

Dean Lockhart

That is very helpful, minister.

The Convener

Before we move to the next committee member, I want to ask the minister a couple of questions.

First, you have indicated throughout the meeting that you acknowledge that threats against shop workers are an issue. Throughout our evidence sessions, we have been made aware that the issue is particularly acute in small shops. Women often work in them on their own, for example, and assault might not necessarily be physical, but can involve threatening behaviour, which can cause considerable distress and fear to people who work in small shops. That is particularly the case because the individuals who cause such fear might frequently return to the shop. Given that we are aware of all that, why has the Government not already moved to have some sort of public campaign? Why do we have to have a bill to move the discussion forward?

My second question concerns the police response. The committee heard evidence to suggest that, although the law exists, a shop worker who calls the police about an incident does not get priority under the priority response system that the police operate. How might that be overcome if we do not pursue the bill or if you reject it?

Ash Denham

I acknowledge those issues. We can all see that there is a big difference between a lone worker in a small convenience store and 40, 50 or 60 staff working in a large supermarket where there is a security guard. There are instances of threatening behaviour by perpetrators who keep returning to a store, which can be very distressing. I reiterate that threatening behaviour is covered by an offence and should be reported to the police.

On enforcement, the committee heard evidence from Police Scotland in March; it said that it takes such incidents seriously. It is probably fair to say that that is Police Scotland’s policy, and that that is what it is striving to do. Police Scotland is doing an incredible job in response to the Covid-19 crisis, and it prioritises those types of incidents. Clearly, however, there will always be individual instances in which the police do not respond in that way.

10:30  



I will reflect on what more could be done. I am interested to hear where the committee thinks there could be most impact in how we go forward. It is coming across loud and clear that we need to increase awareness among retail workers and members of the public and, perhaps, among repeat perpetrators who cause so much trouble.

The Convener

A lot of that is about messaging and being clear with the public and shopkeepers that there is a zero tolerance policy for such behaviour when they are providing that service. We have heard repeatedly that the behaviour is often linked to licensed products—predominantly alcohol, but also tobacco. That is where there is a problem. Retailers pay a licence fee in order to be able to stock such products and are expected to uphold the law, as is required under, for example, the Air Weapons and Licensing (Scotland) Act 2015. Since the introduction of the 2015 act, those costs have gone up quite considerably, and the requirements on shops to invest and to do other things in order that they can stock such products have increased. Many retailers feel that they are doing their bit, but are not receiving in return protection for doing the job that the Government has asked them to do. How do you respond to that?

Ash Denham

I hear that point. Clearly, retail workers have an extremely important role in verifying the age of people who buy age-restricted products. We rely on them to do that for wider societal benefit. You make the point that shopkeepers feel that they are not getting the response that they should. I will reflect on that.

The Convener

Thank you. I will go to Daniel Johnson, who is the member who introduced the bill.

Daniel Johnson (Edinburgh Southern) (Lab)

I begin by thanking the committee for its on-going work on the bill, and by paying tribute to retail workers who are doing a fantastic job right now to keep us safe in ways that I do not think many of us would have anticipated just a few weeks ago. I thank the minister for her constructive approach. I would be more than happy to work with her on the possibility of taking forward the point about aggravators.

What are your reflections on the usefulness of the Emergency Workers (Scotland) Act 2005? About 250 convictions are made each year using that legislation, but according to many accounts, the section 1 offence replicates existing or other offences including common law assault. Given that, is it useful legislation?

Ash Denham

Of course it is useful legislation. If the committee will bear with me for a second, I have some notes specifically on that, which I cannot see. Philip Lamont will come in with some detail on that point, then I will follow up in a moment, when I find my piece of paper.

Philip Lamont

It is perhaps worth reminding the committee that when Parliament passed the Emergency Workers (Scotland) Act in 2005—I am sure that some members here were in Parliament at the time—there was a lot of debate about whether the bill, which applied only to emergency workers, should be extended to other categories of workers, which Mr Johnson’s bill seeks. There was extensive debate. Parliament reflected on the matter and ultimately decided, because of the nature of the work emergency workers do—being asked day in and day out to risk their lives to save others and protect communities—to legislate for emergency workers and to draw a distinction between them and other categories of workers, including retail and other public-facing workers. That was 15 years ago. There are other types of workers in relation to which we could have a similar debate.

Ash Denham

I can come in now—I have found my information.

The Emergency Workers (Scotland) Act 2005 brought in the offence of hindering or obstructing emergency workers because they risk their lives to help others. That means that, if they are hindered or obstructed, it is not only their lives that are put at risk, but those of the people whom they are working to save. At the time, Parliament felt that emergency workers were in a unique position, which is why their position is reflected in law as it is.

Daniel Johnson

On public protection, I am sure that people would agree that, even outwith the current circumstances, retail workers perform a critical public safety function through restricting the sale of alcohol and similar products. Along with the 2005 act, section 90 of the Police and Fire Reform (Scotland) Act 2012, section 22 of the UK Borders Act 2007 and section 32 of the Commissioners for Revenue and Customs Act 2005 all provide protection against abuse, assault and hindrance or obstruction in ways that could be said to replicate the common law. The basis of those provisions is the principle that people who are asked to uphold the law should have specific protections in law. Given the important functions that they perform, it is important that such protection is extended to them.

I invite the minister to reflect on that principle. Does she agree that people who uphold the law and provide public protection should receive specific protection in law?

Ash Denham

That is a good point, which I take on board. Retail workers perform a very important function on behalf of all members of society in restricting the sale of products such as those that Daniel Johnson mentioned. However, I would not say that what they do falls into the same category as enforcement or emergency work; I can see a difference.

The role of our emergency services workers is unique, so I ask the committee to reflect on that: do members think that there is a difference in what our emergency service workers do to protect us that explains why they have protection under the law? That is not to take away from the fact that retail workers perform an important role, as we all recognise at this time.

Daniel Johnson

My final question extends from Colin Beattie’s question about compliance. From challenge 25 through to the plastic bag levy, we have in recent years expected retail workers and staff to implement a number of public policies, as part of their job. Do you agree that when, in the future, we introduce new legislation or policy, we should be careful to ensure that there are legal protections related to the duties that we place on retail workers to administer, over the shop counter, obligations on the public to comply?

Ash Denham

I very much take that on board. Daniel Johnson and other members of the committee have made important points about that. I will take them away and reflect on them.

The Convener

We have some time in hand, and I know that Andy Wightman is keen to ask a few more questions. If anybody else wishes to ask more questions, let me know.

Andy Wightman

I want to follow up on a question that the convener asked about public awareness. The stage 1 report of the Protection of Workers (Scotland) Bill from 2010, which Parliament did not pass, said that the Economy, Energy and Tourism Committee was

“of the view that the introduction and application of both sentencing and prosecution guidelines ... would be beneficial in tackling the perception that aggravating circumstances are not taken seriously. Any such introduction should be linked to a high-profile publicity campaign.”

So, back in 2010 there was awareness that we needed to do more in terms of public awareness. Can you clarify or confirm, as a matter of fact, whether any work on that has been undertaken in the past 10 years? If so, when did it take place and what was the impact?

Ash Denham

I have seen the information that you have relayed from that 2010 stage 1 report.

On action that the Scottish Government has taken, we have legislated for and funded the operation of the independent Scottish Sentencing Council. It was established in 2015 with a responsibility to improve transparency and consistency in sentencing. Parliament set it up in such a way that the council decides its own work in respect of producing sentencing guidelines, which Andy Wightman has just raised. The committee might want to think about asking the council whether it is considering guidelines in that area.

Philip Lamont can outline the publicity campaign that has been undertaken over the past few years.

Philip Lamont

The other element that sat alongside sentencing guidelines that the previous committee looked at during consideration of the Protection of Workers (Scotland) Bill 10 years ago was whether prosecution guidelines should be introduced. It might be helpful to make it clear that that would be a matter for the Lord Advocate—as this is one for the independent prosecution service. It is not for the Scottish Government to offer a specific view on that matter, although the committee has received, directly from the Crown Office and Procurator Fiscal Service, details in written evidence on how it approaches prosecutions and assesses evidence in cases that involve retail workers.

There has been no specific publicity campaign. A recommendation was made in respect of sentencing guidelines and prosecution guidelines, and a public awareness campaign being tied to their development. Although we now have the independent Scottish Sentencing Council, there are no specific sentencing guidelines on offences against retail workers. As the minister said, the council might wish to consider that and the committee might wish to raise it with the council. The publicity campaign that was proposed would have been tied to development of sentencing guidelines and prosecution guidelines.

The Government is happy to be involved and to reflect on what the committee thinks about that. If there were to be sentencing guidelines—indeed, guidelines in any area—it would be expected that the Sentencing Council would undertake a publicity campaign, because that is how it goes about its business. It always raises awareness of guidelines and does extensive consultation before developing them. That might be something to raise with the council directly.

Andy Wightman

Thank you. I have one more question for the minister. According to the Scottish Government’s memorandum, it does not support the bill as it is set out. As a matter of practical law, if—for the sake of argument—the bill were to be passed in its current form, would it be competent? Philip Lamont might be able to answer. Is the bill workable, or are there defects? I am not talking about defects that one would disagree with in policy terms. In practical terms, would it work?

Ash Denham

There are some issues around drafting in relation to the reasonableness defence. I ask Philip Lamont to give the committee a little more detail on the impact that that might have.

10:45  



Philip Lamont

As the committee has heard, the offence in the bill replicates existing laws. One law that it replicates is the offence in section 38 of the Criminal Justice and Licensing (Scotland) Act 2010, which is the threatening or abusive behaviour offence. That contains what is called a reasonableness defence, which means that a person who is charged with an offence of threatening or abusive behaviour can raise a statutory defence in law that their behaviour was reasonable in the circumstances. That exists because there can be occasions when someone would act in a threatening or abusive way, but in response to a situation or context that makes that behaviour reasonable. In those circumstances, the statutory defence in law in relation to the section 38 offence can be used to ensure that a person is not convicted.

The bill contains no similar defence. That means that a member of the public could, under the bill, be charged with an offence involving threatening or abusive behaviour against a retail worker in what might be a scenario in which they were responding to such behaviour from the retail worker. The bill would not allow the person to raise the reasonableness defence. If the bill progresses in its current form, the committee might, at the very least, wish to consider whether that is how it would want that bit of law to work.

Rhoda Grant

I have a brief question. Sale of age-restricted products to people who are under-age is an offence, and the law in that regard is binding on retail workers and businesses. What would happen to a retail worker or business that breached the law on that, perhaps because the worker felt that they were being threatened into doing so?

Ash Denham

Philip Lamont will give the detail on that.

Philip Lamont

If a person working in a shop felt that they were under undue pressure or influence because of threats or abuse from a member of the public, and that worker ended up selling something and breaching an age-restricted products law, action would be taken only if that became known to the police. If it became known, it would be the police’s responsibility to investigate all the circumstances of the offence. Obviously, the police and the COPFS have discretion on whether action would be progressed in the circumstances.

In the scenario that Rhoda Grant described, if the evidence was clear that the shop worker felt that they had no choice but to sell the product because of threats and abuse, even though they suspected that the person was under-age, the police would have discretion. Obviously, the COPFS can prosecute only if doing so is in the public interest; it would have to apply that test carefully before deciding what action, if any, to take in that situation.

Rhoda Grant

The worker could be prosecuted, however, and would currently have no protection.

Philip Lamont

The protection lies in the discretion that is available to enforcement agencies in applying the law.

The Convener

Members have no more questions.

In the current Covid-19 crisis, our retail workers have clearly had to step to the fore, and we owe them thanks. As we are taking evidence on the subject, it is incumbent on us to acknowledge that many retail workers have gone above and beyond the call of duty. They are in the line of danger at the moment, because they are often finding it difficult to keep their distance from people and are having to deal with angry customers. Whatever the outcome in relation to the bill, it is important that retail workers understand that we are looking at the issue seriously and that we recognise the challenges that they face—not only now, but generally—with customers, who can at times be extremely unreasonable.

I thank the minister and Philip Lamont for their time and their evidence. The minister has acknowledged on numerous occasions during the meeting that she has listened to what has been said and to members’ questions, and that she will reflect on the issues that have been raised, some of which are serious and affect people’s safety and lives. I hope that we will hear back from her on her thoughts. The committee will now discuss the bill, and I am sure that we will have recommendations to make.

That concludes the public part of the meeting. As was previously agreed, we now move into private session. I thank everyone for attending, and I thank those who have been watching. We look forward to seeing you again.

10:50 Meeting continued in private until 11:38.  



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Third meeting transcript

The Convener

Our main item of business is continuation of our evidence taking on the Protection of Workers (Retail and Age-restricted Goods and Services) (Scotland) Bill. I am pleased to welcome our witnesses: Daniel Johnson MSP, who is the member in charge of the bill; Andrew Mylne, who is head of the non-Government bills unit; and Kenny Htet-Khin, who is a solicitor for the Scottish Parliament.

The bill has been proceeding through our committee, and we have taken evidence from a number of people. This is our final session, in which we will take evidence from the member who introduced the bill. I invite Daniel Johnson to make a short opening statement.

Daniel Johnson (Edinburgh Southern) (Lab)

Thank you very much for that introduction. I thank the committee for its diligent work in examining my bill and for resuming its work in doing so. Parliamentary time is at an absolute premium, given that we are limited to online sessions, so I am truly grateful that the committee has prioritised examination of my bill.

I was struck—I am sure that the committee was, too—by the powerful testimony that was given by trade unions and the industry in the evidence that the committee took at the beginning of March. They powerfully brought to life the real issues that shopworkers face, such as being subjected to abuse and violence just through doing their job and upholding the laws that we have created for them. The witnesses brought to life the clear survey evidence that the industry and trade unions have to back that up.

In its survey, the Union of Shop, Distributive and Allied Workers estimates that 15 shopworkers are assaulted every single day in Scotland. Every respondent to the Scottish Grocers Federation retail crime report stated that they had experienced abuse when a sale was refused for failure to provide proof of age, and the Scottish Retail Consortium has published its findings that the vast majority of workers do not believe that the police take the problem as seriously as they should.

In the context of the current crisis, those facts become even more stark. We have all become much more aware of how vital the work that shopworkers do is. Shopworkers have very much been on the front line of the Covid-19 response and have assumed a key public health function that none of us could have foreseen.

Unfortunately, a conspicuous minority of people have responded to the restrictions in stores by swearing at, abusing and, in the worst cases, threatening to cough and spit on retail workers. USDAW has reported a doubling of the rate of incidents of violence and abuse against shopworkers through this period.

The primary objective of my bill is to respond to and deal with such abuse and violence, and the general principles of my bill stem from those issues. Shopworkers are required to uphold the law and, if they fail to do so, they face a possible penalty of a £5,000 fine or three months in prison.

Emergency workers and police officers are protected by the specific statutory offences of assault, obstruction and hindering, which carry penalties of £10,000 or a prison sentence. It could be argued that those offences duplicate common law. However, we deem them necessary, given the public protection role that critical workers undertake. The Emergency Workers (Scotland) Act 2005 is effective; hundreds of people are convicted under the legislation every year.

In carrying out identity checks, shopworkers act as agents of the law, but that function triggers acts of violence and abuse against them. The statutory aggravation provision in my bill would provide a key recognition of that vital function and the seriousness with which shopworkers undertake it.

My bill seeks to address a well-demonstrated issue. It would apply a legal approach that is well established elsewhere in law. I appreciate that there are various points of detail to consider but, as the committee assesses the purposes and general principles of the bill at stage 1, I hope that you will agree that retail workers play a vital role in upholding the law and keeping us safe, and that there should be much more focus on ensuring that they get the protection that they deserve. I hope that my bill provides an opportunity for the Parliament to take a step forward, and I look forward to answering the committee’s questions.

The Convener

Thank you. I will invite each member in turn to put questions to you, to scrutinise the bill. I will come back to you after each question.

I will ask the first question, to set out the context. You have talked a little about why you think that the bill is required. However, much of the evidence that the committee has received suggests that the problem is to do with not a gap in the existing criminal law but awareness, reporting and effective enforcement. Is that a reasonable suggestion?

Daniel Johnson

There is an important principle at stake here. When we ask people to uphold the law, they should have the protection of the law. I would go further: we should give them specific legal protections.

The analogy of the Emergency Workers (Scotland) Act 2005 is useful: the bill that became that act was introduced to address a serious issue of violent acts against first responders. At the time, we heard many of the arguments that you are describing. However, the existence of case-specific protection has reduced the phenomenon of violence against emergency workers; we do not hear as much about that in the media. Furthermore, the legislation is used.

Communication is a valid function of the law, as Lord Bracadale acknowledged recently in his independent review of hate crime legislation in Scotland. It is important that we make the key clarification that abuse of retail workers is unacceptable and illegal. Furthermore, when retail workers ask for proof of age they are acting as agents of the law; that is a critical point, which needs recognition in law.

The Convener

Will you clarify whether you are saying that there is a gap in the existing criminal law or agreeing with the suggestion that the issue is not a gap in the law but how the law is understood, promoted and enforced?

Daniel Johnson

The key issue is that there is no recognition in the law of the important legal function that retail workers carry out when they uphold proof-of-age legislation. The bill seeks to provide that recognition and to ensure that the issue is taken into account when people who commit crimes against retail workers are sentenced, through the creation of a statutory aggravation.

As we heard from the Minister for Community Safety last week, the bill would—at the very least—ensure that we had an accurate picture, because we would have the statistics.

Whether we understand this as being about addressing a gap in the law, ensuring that the law better reflects the important role of retail workers, ensuring that crimes against retail workers are taken seriously and dealt with appropriately in sentencing, or simply getting more information, the bill seeks to address all those issues.

The Convener

You keep using the word “recognise”—you say that the bill is about recognising people’s contributions. However, the law is there not to recognise people’s contributions or the job that they do but to identify where a crime or an offence takes place and to deal with that adequately. Is that what you mean by “recognise”, or are you really talking about sending a clear message to people that they cannot behave like that and that if they do, they will be punished? Can you make that clear?

Daniel Johnson

The bill would cover both those points. The Emergency Workers (Scotland) Act 2005, and section 90 of the Police and Fire Reform (Scotland) Act 2012, which creates the offence of assaulting, obstructing or hindering a police officer, reflect in law the important role that those people carry out. That ensures that when such crimes are committed, they are dealt with adequately. The function of providing communication and clarity also stems from those pieces of legislation, which both set a precedent for the bill.

Alison Harris (Central Scotland) (Con)

The Minister for Community Safety suggested to the committee that a high-profile campaign might be a more effective way of raising awareness among retail workers and the public, highlighting that abuse towards workers is not acceptable and that people will be prosecuted under the current laws. Do you think that such a campaign would be effective or have any benefit?

Daniel Johnson

Any effort to raise the issue would be welcome. However, I note that in response to previous attempts to introduce such legislation, the argument has been made that a campaign should be formed, and yet nothing has happened. It is not an either/or situation. Passing my bill into law would not preclude running an information campaign—indeed, such a campaign would greatly help, and I suggest that we do both.

Alison Harris

Is data collection part of the problem? Would you agree that—as has been suggested—other non-legislative measures such as an improvement in data collection would help to ensure that the police and other parts of the justice system have a clear understanding of the scale of the problem and treat it with the seriousness that it deserves?

Daniel Johnson

There are various strands to what my bill may do, including communication, legal and data collection aspects. There is also a broader issue for policing policy and criminal justice with regard to the data that we have available; it is a source of frustration that we do not have greater insight. Other options for collecting those data might well be open to Government, but it is Parliament that is currently considering the merits of my bill and the options in front of it. If members are interested in improving data collection, passing the bill is the one key step that will do that, which is a point that the minister acknowledged in committee last week.

The Convener

We move to questions from Richard Lyle.

Richard Lyle (Uddingston and Bellshill) (SNP)

First, I declare an interest: I am a member of the cross-party group on independent convenience stores and, as members know, I previously worked as a manager in the grocery trade.

Daniel Johnson’s bill will cover some, but not all, public-facing workers. Is it right to say that it will not cover bus or taxi drivers or refuse collectors? What is the position in relation to postal workers and other courier services?

09:45  



Daniel Johnson

I might bring in Kenny Htet-Khin and Andrew Mylne on the full technical details of that.

As a preamble, there is a balance to be struck in introducing any bill, and particularly a member’s bill, as the available resources are limited. When Hugh Henry attempted to bring in legislation in 2010, one of the key criticisms of his Protection of Workers (Scotland) Bill was that it was too broad.

The observation that my bill starts from is that there is a key legal function that retail workers carry out in upholding age restrictions. Indeed, that responsibility has increased because of the introduction of challenge 25, which is welcome and important. I sought to start from that observation on that key legal function and to ensure that, if people are carrying out that function and are exposed to risk because they are carrying it out, they will have a degree of legal recognition and legal protection.

As we were preparing the bill, we were very aware that the nature of retail is changing and we wanted to ensure that we protected not just people who carry out that function at a shop counter but people who are involved with the transaction at any stage, however customers might purchase goods. With the rise of online retail and people delivering, proof of age might well be requested at the doorstep rather than at the shop counter. Therefore, we sought to include, for example, delivery staff who might ask for proof of age in relation to the sale of goods. We extended the approach to people who sell age-restricted goods and services in a non-retail context, so the bill will protect bar staff and people who carry out door-to-door sales, for example.

In drawing up the bill and focusing on age restrictions, we have not covered bus drivers or other public-facing workers. A criticism of Hugh Henry’s bill was that having a broad definition of public-facing workers meant that there was a clarity issue about who would have protection. I have sought to avoid that lack of clarity.

I genuinely hope that the bill will cause the Scottish Government to reflect on the broader issues of public-facing workers and which workers should have specific legal protections and what legal protections they should have. Examining those broader issues is a job that is much better suited to the much greater resources that are available to the Scottish Government.

I will bring in Kenny Htet-Khin or Andrew Mylne to provide greater clarification on precisely who is and is not included in my bill from the legal perspective.

Andrew Mylne (Scottish Parliament)

Obviously, our role in the non-Government bills unit is to deliver a legislative vehicle to reflect the member’s policy. Daniel Johnson has explained what his policy starting point was. The focus was always on retail workers, and that is what the bill focuses on. It was never about public-facing workers. Obviously, it is for Mr Johnson to explain why he made that particular choice, but that is the basis on which we developed the bill.

One of the challenges that we faced in developing the bill was identifying as clearly as we reasonably could who was covered and who was not. That was not straightforward, but we are fairly clear that the bill covers all the people whom Mr Johnson is interested in protecting. We tried to draw boundaries around that as clearly as we could. In paragraph 68 of the policy memorandum we have given as clear a list as we could of how the bill and its various provisions capture different groups of people in particular circumstances. We also put in a list of some of the people who are not covered.

To pick up on the things that were mentioned in the question—Daniel Johnson has already covered this to some extent—bus drivers, refuse collectors and postal workers are not covered. They are not people who specifically do retail work.

The bill has a specific provision for delivery drivers who deliver supermarket shopping to people’s doors, for example, which will sometimes include age-restricted goods.

I hope that that helps to clarify the position. With legislation, one does not always get perfect definitions at every point of the boundaries that are defined; at some point, it will come down to interpretation and precedent. However, we are confident that the bill provides as much clarity as it reasonably can.

The Convener

Does Kenny Htet-Khin have anything to add to that?

Kenny Htet-Khin (Scottish Parliament)

No, I have nothing to add.

The Convener

Does Richard Lyle want to ask anything else?

Richard Lyle

No. My question was about who is not covered by the bill’s provisions and Daniel Johnson has explained that.

Colin Beattie (Midlothian North and Musselburgh) (SNP)

I welcome the fact that you have introduced your bill, because it highlights an issue that I know is a problem even in my constituency from time to time. However, there are some aspects of the bill that I have a wee bit of concern about, which you might be able to help me with.

Existing offences already allow for the prosecution of a person who assaults, threatens or abuses another person. Where appropriate, those offences can be prosecuted under solemn procedure, which allows for higher sentences than those that are available under the bill. Why should we not rely on those existing offences when a retail worker is assaulted, threatened or abused?

Daniel Johnson

I have two things to say about that. First, the provision in question is virtually identical to a provision in the Emergency Workers (Scotland) Act 2005 and the Police and Fire Reform (Scotland) Act 2012, and those bits of legislation have not created a problem.

Secondly, it is up to the Crown Office and Procurator Fiscal Service to decide what charges to bring. It can bring charges under different legislation if it thinks that that is warranted and believes that the higher penalties that are available under that legislation would better reflect the crime. That process is part and parcel of our legal system.

My bill does not preclude crimes being prosecuted under different pieces of law; indeed, it reflects what has already been acknowledged to be a useful legal provision in the Emergency Workers (Scotland) Act 2005 and in section 90 of the Police and Fire Reform (Scotland) Act 2012.

Colin Beattie

In your opening remarks, you mentioned your belief that, under the existing legislation, the police did not necessarily respond to reports of such offences against retail workers as quickly or with as much priority as they should. If the bill were passed, what would compel the police to respond more quickly and with more urgency?

Daniel Johnson

There are various strands to that. First and foremost, simply by having new legislation—the introduction of a new law is preceded by a process of discussion and discourse—the police will be required to re-examine their policies. That is what they have to do whenever new legislation is passed.

Furthermore, I point to the fact that the Emergency Workers (Scotland) Act 2005 has been used, on average, between 200 and 300 times a year over the past few years. With regard to efficacy, that act is a useful analogue for what the bill might do and how useful it might prove to be.

Colin Beattie

I am still a wee bit concerned. If we are not getting the police to respond under the existing system, why will that suddenly change simply because the legislation in this area is updated or refurbished? I am trying to think of the practicalities here. We all know about police priorities, the call on police time and so forth. How do we get the police to treat such crimes as a priority without having to produce a whole slew of new legislation?

Daniel Johnson

I would not describe my bill as a slew of legislation. Through a few parliamentary votes, we might be able to provide the focus and priority on this issue that is needed.

In a sense, Mr Beattie, you are highlighting a dilemma that we have in our system. We have a system in which the police cannot be directed by politicians or ministers, and that is absolutely correct. What we can do, though, as politicians, is pass laws. By passing laws, hopefully we communicate our priorities to the public and ensure that the law operates in a way that reflects the seriousness of the crimes that are perpetrated and the duties and obligations that we place on people.

The bill does not necessarily automatically mean that there will be an overnight change in the way that the police respond to certain crimes. However, the options that we have available to us—the powers that we have as parliamentarians and as a Parliament—allow us to state what we think the priorities are and what we think that the law should do and how it should deal with people who commit such offences.

Colin Beattie

You seem to be indicating that the bill would highlight to the police the priority that should be attached to protecting retail workers. If that is the purpose of the bill, surely a high-profile campaign of the kind that we talked about before would have the same result, in that it would bring such crimes to the front of police priorities.

Daniel Johnson

As I said to Alison Harris, I do not think that it is a case of either/or. I would like both those things to happen. I urge Parliament to pass my bill and I urge the Government to produce a clear communication plan.

The issue is not purely one of communication, though. The statutory aggravation is an important element in ensuring that, when people commit such crimes, the sentence that they receive reflects the seriousness of the crime. That is not to say that that cannot already happen, but the bill would ensure that it would happen in future. It is not simply a matter of communication or of reprioritising the issue or making a statement. It is also a question of ensuring that, when those crimes are prosecuted and people are found guilty, the penalty reflects the seriousness of the crime. After all, the crimes that we are talking about are being committed against people who are simply trying to do their job and uphold the law.

Willie Coffey (Kilmarnock and Irvine Valley) (SNP)

Good morning, Daniel. At the committee’s previous meeting, there was quite a lot of discussion about obstructing and hindering. We heard evidence that that offence is already covered in law when it is accompanied by threatening and abusive behaviour and so on, and that the punishments are already more severe than those that are proposed in the bill. Some people believed that your bill, if it were to proceed unaltered, would, in effect, criminalise what they said amounted to irritating or nuisance behaviour, perhaps by children.

Could you set out your vision in that regard and give us an indication of whether you might consider changing that aspect of your bill in order to get wider support for it? I think that the minister said that she was open to looking at the issues and listening to people’s views, if the bill proceeds. I would be obliged if you would give us your perspective on that important issue, which was discussed by the committee.

10:00  



Daniel Johnson

I will begin by setting out the purpose of including that provision. There is a scenario that many people who work behind shop counters recognise, in which a situation escalates from seemingly innocuous beginnings. Someone might be refused a sale because they cannot produce identification, or they refuse to do so. The situation does not start with violence; it does not even necessarily start with abuse. It starts with someone saying something such as, “I’m not moving from this spot,” until they are sold a particular bottle or packet.

I was attempting to reflect the fact that, when shop workers ask for proof of age, they are carrying out the serious and, indeed, solemn act of upholding the law. When a person interrupts, obstructs or hinders that process, they are doing something quite serious. I was also attempting to capture a set of behaviours that I think most people would agree are wrong and that can escalate to something much more serious. I wanted to draw a clear early line that shows where people trip over into doing something that is wrong and illegal.

In some ways, I was trying to reflect the fact that, for example, it is a crime to waste police time. When police are carrying out their investigations, inquiries or other duties, wasting their time is a quite serious thing to do; I was attempting to apply a similar logic here. That said, I recognise that, as the provision is currently framed, it is quite broad. The obstructions that are set out apply to the broad duties of retail workers and not just to those that relate to age restrictions. Therefore, I recognise the issues that have been raised.

The issue that Mr Coffey raises is exactly the sort of issue that it would be extremely useful to examine at stage 2. I am very open to amending the provision in question, restricting its scope or otherwise altering it. I do not believe that that part of my bill is of central or critical importance. The really critical aspect is the statutory aggravation provision, which acknowledges and reflects the important legal role and duty that retail workers carry out in asking for proof of age.

I hope that that explains the purposes of that part of my bill and my position on it.

Willie Coffey

That is very welcome. I have no more questions.

Andy Wightman (Lothian) (Green)

To follow on from Willie Coffey’s question, you acknowledge that obstructing or hindering is part of the overall offence that is created in the bill and that it is not restricted or tied to the question of upholding statutory sale restrictions.

In paragraph 64 of the policy memorandum, you say that you do not think that a “physical element” should necessarily be

“present before an offence of ‘obstruct or hinder’ could be advanced”.

However, a person

“refusing to move on in a queue”

might be caught by the offence. You then say:

“Another example might be where a retail worker is using equipment—for example, a shopping trolley—and a customer refuses to get out of the way.”

In what world should obstructing a shop worker with a trolley mean a criminal conviction?

Daniel Johnson

The key point is that such obstruction would have to be accompanied by the clear intent of preventing someone from carrying out their duties as a retail worker or disrupting that work. Inadvertent or unintentional obstruction would not take someone over the threshold; there would need to be clear intent. That logic draws on the provisions in the Emergency Workers (Scotland) Act 2005 and section 90 of the Police and Fire Reform (Scotland) Act 2012 on obstructing someone from carrying out their duties.

I think that the issue of whether obstructing or hindering retail workers in carrying out their broader duties, as opposed to carrying out their duties in relation to age restriction, is sufficiently serious to create a criminal offence is one for debate; there should be a focus on that at stage 2. I concede that that is an issue, and I accept that the relevant provisions are perhaps set out more broadly than I might have wished.

The resources that are available to members who want to introduce legislation are such that, while the non-Government bills unit does a fantastic job, it has to help a number of members simultaneously. If I were a minister who had the full resources of the Scottish Government at my disposal, I would have preferred to have a much broader set of proposals that recognised the seriousness of the legal obligations and duties that we place on retail workers with regard to upholding the law and ensuring that people comply with it. I proposed the obstructing offence because of the precedent that was there, but there are probably issues to examine, and I would be more than happy to do so at stages 2 and 3, if Parliament gives me the opportunity to do so.

Andy Wightman

There is no need to apologise. We are scrutinising the bill in the same way that we would scrutinise any bill. That answer was helpful. I think that you are right. The issue has been discussed and there is probably a way through.

I want to move on to section 3, which is on the defence to a charge of obstructing or hindering a retail worker. It says that there is a defence in situations in which the

“behaviour was, in the particular circumstances, reasonable.”

Could you say how you anticipate “reasonable” being interpreted?

Daniel Johnson

Yes. I assume that you are also interested in why we introduced the “reasonable” defence for obstructing a retail worker but not the other aspect. Would you like me to explain that as well?

Andy Wightman

That is a question for the Scottish Government.

Daniel Johnson

When it comes to obstructing or hindering, we can well understand that there could be a situation in which somebody who put a trolley, or stood, in the way of a retail worker who was carrying out their duties—if, say, the worker was walking on a path that might have led them to fall through a trapdoor in the floor that they had not seen—would be acting in a very reasonable way that would not cause the retail worker immediate harm but would prevent them from coming to harm by, in this case, falling through the trapdoor. There are other scenarios in which obstructing or hindering a person might prevent other harms and would therefore be reasonable.

Andy Wightman

You mentioned the question of the lack of a reasonableness defence with regard to abusing or threatening a retail worker, which the Scottish Government has raised. I do not have time to go into that now, but if there is time at the end of the meeting, I would like to do so.

Police Scotland has questioned the validity of the comparison that has been made between obstructing or hindering retail workers and obstructing or hindering emergency workers, given that, in many cases, emergency workers are trying to save lives, so obstructing them could be critical to life. Do you accept that the comparison is not as valid as you appear to have made out?

Daniel Johnson

I think that it is an important comparison. My bill draws fairly heavily on the logic of and measures in the emergency workers legislation.

The matters that emergency workers deal with are serious in that they often concern immediate matters of life and limb in a way that the duties of retail workers do not. However, by the same token, not everything that an emergency worker does will be concerned with such matters. In addition, the emergency workers legislation does not draw a distinction between when an emergency worker is dealing with immediate issues of life and limb and when they are carrying out other duties such as public information duties.

We should also consider the broader reasons for having age restrictions. Tobacco and alcohol are very significant causes of death in Scotland. We have age restrictions on those products because, ultimately, they save lives. Although upholding age restrictions is not the same as the immediate matters of life and limb that emergency workers deal with, it is wrong to say that it is not a matter of life and limb at all.

There is a discussion to be had as to whether obstructing a retail worker is as serious as obstructing an emergency worker. Although I fully accept that those two forms of obstruction are not necessarily of the same order of magnitude, it is clear that there is a parallel. Retail workers uphold the law, and upholding the law with regard to the age restrictions on certain products is important for protecting wellbeing in the broad sense. That is a valid argument to have. It is one that I hope that we can have at later stages of my bill and which I am happy to engage in.

Rhoda Grant (Highlands and Islands) (Lab)

Good morning. The committee has had very clear evidence that enforcing legal restrictions on sales can trigger abusive behaviour. Indeed, I think that we have all witnessed that, especially more recently when retail workers have been trying to enforce social distancing and to stop panic buying. How would an aggravation address that kind of behaviour?

Daniel Johnson

The aggravation does two things. First, and most important, it ensures that, when people are charged and found guilty of these offences, the sentencing reflects that. Secondly, it emphasises just how important it is that the enforcement of age restrictions is carried out by retail staff.

Indeed, one point that has been made to me by people working in the sector and by the trade unions is that, if nothing else, if the bill enabled there to be a very clear sign at the shop counter saying, “It is an offence to abuse or assault a retail worker,” or, “There is a statutory aggravation if you abuse or assault me while I am carrying out my legal responsibilities and duties in relation to age restrictions,” that would be useful. That is, having that clear law and being able to communicate that to customers would be useful in and of itself. The aggravation would make a real difference in relation to sentencing and in emphasising the seriousness of these issues and crimes.

Rhoda Grant

Your bill clearly covers age-restricted products and the like. However, as I said in my original question, we have all witnessed the abuse of retail workers in the current situation, when they are trying to keep everyone safe and make sure that there is enough stock for everybody to get what they need. Does your bill cover that kind of behaviour, or would it be possible to amend it to cover that kind of behaviour?

Daniel Johnson

The statutory offence that is created covers assault and abuse in broad terms; it is not specifically related to age-restricted items at all. In that sense, it would address, in part, that kind of behaviour. That important question has arisen in recent weeks and months. We have all seen retail workers enforcing social distancing in supermarkets. I have been struck by efforts in my local supermarket, where there are markings on the floor and retail workers are advising people where to stand and controlling the flow of customers into stores. Retail workers are carrying out a clear public health function that is required by the Government, if not necessarily by law.

10:15  



By coincidence, my bill affords us the possibility of looking at whether there are further protections that can be applied in light of the current context. More broadly, there is an opportunity to reflect on protections in other instances where we ask retail workers to carry out particular functions and where the Government sets out regulations that retail workers are required to uphold. Indeed, parliamentary procedure through stage 2 affords us the ability to take further evidence. Stage 2 and stage 3 proceedings would allow amendments to be lodged that may examine that in more detail, which I would welcome. I do not think that we can divorce my bill and the broad issues that it seeks to raise from the current circumstances in which we find ourselves.

Rhoda Grant

When you introduced the bill, you could not have possibly imagined the current circumstances, but it was right to look at protecting workers when they are in a difficult situation. The population as a whole would now applaud our retail workers: I am much more aware of the job that they do. We have talked about low-paid workers having to bear the brunt of the crisis. Do you think that the bill would send a clear signal to them that we value them and that we will take steps to protect them when they are on the front line?

Daniel Johnson

Yes, I think that it would send an important signal. In recent years, Governments of various hues and stripes have tended to think that public policy can be introduced through buttons on the till, most conspicuously with challenge 25 but also with other policies such as the plastic bag charge and the deposit return scheme. Although those are all useful and valuable propositions, there has been a sense that the Government can introduce such policies at no cost to it and they will be taken care of.

Retail workers are carrying out those policies, which are important public functions. It is important that we ensure that retail workers know that they are valued, and there is no better way of doing that than by recognising in law the age restriction and other duties that we ask them to carry out. Currently, a reassessment is being made of the value of all sorts of work; not just retail work, and it is important for us all to reflect on that.

Gordon MacDonald (Edinburgh Pentlands) (SNP)

I remind members that I am the convener of the cross-party group on independent convenience stores. I agree with Mr Johnson that we need a culture change, but we also need to ensure that any changes to the law are correct.

Colin Beattie has already highlighted that existing offences can be prosecuted under solemn procedure and may attract higher sentences. Rhoda Grant has suggested that the aggravation would make a real difference to sentencing, yet paragraph 53 of the policy memorandum says that the aggravation in the bill does not increase the level of sentence that is available to a summary court. What would the proposed aggravation add to existing provisions?

Daniel Johnson

A statutory aggravation does not necessarily increase the sentence that is available to the court, but it requires sentences to take the behaviours or circumstances set out in the statutory aggravation into account when sentences are being passed.

The other thing that I will add before I pass on to Andrew Mylne is that, as I have said before, we are talking about the same situation as exists when crimes are committed against emergency workers and the police. The relevant bits of legislation are carried out under summary procedure, although there might be crimes available to prosecutors that carry a heavier sentence. When prosecutors bring forward charges, they might choose to use other bits of legislation to prosecute people if that is deemed necessary.

I will bring in Andrew Mylne to provide further explanation on how statutory aggravations work and the comparisons with other areas of law.

Andrew Mylne

The way in which the bill works is based on a lot of precedent in existing legislation. When you create a criminal offence, you have to specify what the maximum penalty available to the court would be, but of course the average or typical sentence is well below the maximum. I do not have exact figures but, at least in some cases, there is evidence that the average sentence is roughly half the maximum. Obviously, if you increase the maximum sentence, you increase the average as well, but a court will always exercise discretion according to the facts and circumstances.

The point about an aggravation is to nudge the court to apply a higher penalty than it otherwise might do, because of a particular factor that featured in the case. Usually, there is plenty of headroom, because the sentence that the court would normally apply in such cases would in most circumstances be well below the maximum, so the court can add on a little because the offence is aggravated. By having an aggravation, the fact that you are not increasing the maximum penalty does not matter very much in most cases.

The way in which the bill sets out the procedure for aggravation is modelled on the existing statutory aggravation legislation that the Parliament has put in place over a number of years. For example, the feature of the bill that means that the court would not be required to increase the sentence but would have to justify not doing so is modelled on what happens under existing legislation in such circumstances. The bill simply adds another statutory aggravation in a way that is in line with what is already there.

I hope that that helps a little.

Gordon MacDonald

It does—thank you.

It has been suggested that, to move the bill forward and gain Government support, an alternative legislative approach would be to create a new statutory aggravation that was applied to existing offences. Is that a possible way forward, especially if it was focused on situations in which a retail worker was seeking to enforce an age restriction?

Daniel Johnson

I am happy to examine any alternative approaches, particularly if that secures Parliament’s broad support. I will again bring in Andrew Mylne on that point, but it is important to point out that, in drafting the bill, we looked at that possible approach fairly thoroughly. The reason why we rejected it was to do with precision. As you will see, a reasonable amount of space in my bill is given to trying to define precisely what retail workers are. To take the approach that Mr MacDonald suggests, you would need to spend quite a lot of time deciding which offences to attach the aggravation to. Would you be saying that any offence committed against a retail worker could be aggravated in such a way, or would it be particular offences? That would become a fairly complex picture.

We felt that it is simpler to create a straightforward statutory offence so that we have clarity on precisely what the offence is and who it attaches to, and then to have an aggravation layered on top of that to reflect the seriousness of such offences when they are in connection with age restriction.

I will hand over to Andrew Mylne, who can probably provide a better technical explanation.

Andrew Mylne

Kenny Htet-Khin might be better placed to answer that particular question.

Kenny Htet-Khin

As the member says, we are keen to give clarity in the law. If the member wishes to consider it in the future, we can think about how we might apply an aggravation to more offences. We were trying to be as specific as possible about how people who are accused of offences can know what the offence is and what the sentence might be should they carry out that offence. We thought that the provisions would provide foreseeability and clarity as to what is expected of them in the law.

The Convener

If there are no further questions on that subject, we will move to Dean Lockhart.

Dean Lockhart (Mid Scotland and Fife) (Con)

Good morning to Daniel Johnson and our other guests. In evidence given to the committee by representatives of the retail sector, we were told that the problems faced by retail workers here in Scotland are similar to those faced by—[Temporary loss of sound.]

Daniel Johnson

The sound seems to be breaking up—I did not hear that question, and I do not know whether Dean Lockhart is still speaking.

The Convener

Are you still with us, Dean? We may have lost him.

Dean Lockhart

Good morning again, convener. I am sorry—I seem to have dropped out. [Temporary loss of sound.]

The Convener

We have lost Dean Lockhart temporarily.

Dean Lockhart

Apologies, convener. The system dropped out for a few seconds. I want to ask about the protection that is available to retail workers elsewhere in the United Kingdom. When the committee heard evidence from representatives of the retail sector, we heard that the problems faced by retail workers in Scotland are very similar to those that exist elsewhere in the UK, including those of threat. Have Daniel Johnson or the other witnesses considered the protection that is available in legislation elsewhere in the UK? Are additional enhanced protections available for retail workers elsewhere? If so, we could have a look at that legislation or additional protection measures and compare them to the proposed provisions in the bill before us.

Daniel Johnson

My understanding is that such issues are faced across the United Kingdom. As with the situation that is faced by retail workers in Scotland, retail workers do not enjoy any particular additional legal protections elsewhere.

I will bring in Kenny Htet-Khin on this point, as he may be able to provide some insight into whether there is other relevant legislation in the UK, but the issue arose in the previous Parliament at Westminster, with attempts by David Hanson to introduce amendments to the Offensive Weapons Bill—now the Offensive Weapons Act 2019—that would have provided, in part, the sort of distinctions that we have discussed. In response, the UK Government entered into a consultation process, which I believe finished at the end of last summer. The UK Government has those findings now, but it has not published them. The consultation looked into whether legal steps could be taken to provide further legal protections.

A private member’s bill is being introduced at Westminster that would have a similar effect to mine. It likewise has a statutory aggravation that would apply to offences against retail workers in those situations. I do not believe that retail workers have any specific legal protections in other parts of the UK, but it is an apparent issue that is being discussed in other Parliaments in the UK. Does Kenny have any particular legal clarification to provide on what exists elsewhere?

10:30  



Kenny Htet-Khin

I do not have anything. [Temporary loss of sound.]

The Convener

I lost the end of that, but I think that Kenny Htet-Khin said that he did not have anything great to add.

Dean Lockhart

I thank Daniel Johnson for that explanation of the protections that are available elsewhere in the UK. I will follow up on a couple of issues that were discussed before about the different views on the need for the bill and what form it should take if it goes ahead—for example, the need for the hindering and obstruction elements of the bill. What are Daniel Johnson’s views on what elements of the bill could be stripped back from what is currently proposed without damaging the core protection for retail workers that he is trying to achieve?

Daniel Johnson

In my view, the most important element is the aggravation, which will reflect the seriousness of the responsibility that we place on retail workers for upholding age restrictions; ensure that sentencing takes that into account; and give us a better picture as to the extent of the problem of these crimes in society. By dint of that, having the statutory offence is important because it enables the statutory obligation and, for the reasons that we set out earlier, it is important and useful in terms of the precision that it affords. The other element of the statutory offence is that it provides a clear communication point.

Finally, the point about hindering and obstructing is important, but it is probably the least important of the three key provisions. It is important because it provides for an earlier threshold at which these situations could be nipped in the bud. As I illustrated earlier, a common scenario takes place when things start out as one thing and escalate to another; this is an attempt to stop that from happening. As I said earlier, I recognise the potential problems and the valid discussion about the comparability of the provision with the precedents that it is drawn from, so it is probably the least important element. I hope that that provides some clarity for the member.

Dean Lockhart

It does. Thank you very much.

The Convener

Andy Wightman wants to ask some questions and request clarification of some points.

Andy Wightman

I will follow on from Dean Lockhart’s question. You implied that statutory aggravation is one of your principal concerns and in your opening remarks you made quite a lot of play of that. It almost sounds as though you created the offences so that there could be a statutory aggravation. We have covered the question whether statutory aggravation could be applied to existing offences, so I do not want to look at that. However, rather than a statutory aggravation of offences that you create in the bill, an alternative approach would be to create a statutory offence of obstructing and hindering a retail worker in the course of upholding age restrictions. That would be a clear alternative. Could you respond to that?

Daniel Johnson

That is an interesting approach, which could be examined. When we looked at the matter, we had a range of possibilities for each of the different elements and we picked what we felt gave us the greatest precision and clarity.

I would not say that creating the statutory offence is purely to enable the aggravation; it is part of it. The point about clarity and communication is an important one. It is also about reflecting in law and indeed, in a sense, it borrows from the logic of the Emergency Workers (Scotland) Act 2005 and section 90 of the Police and Fire Reform (Scotland) Act 2012.

You have outlined an interesting approach in terms of creating that specific offence of hindering or obstructing in relation to age-restricted items, which it may or may not be possible to look at through stages 2 and 3 of the bill, if Parliament chooses to go down that route.

Andy Wightman

Thank you. One of the criticisms of your approach is that if prosecutors were to choose to prosecute someone who had abused a retail worker under the common law or, for example, under the Criminal Justice and Licensing (Scotland) Act 2010, the statutory aggravation would not be available. Given the statistics that we have on the use of the emergency workers statutory offences, it may be that most prosecutions are taken under other laws and one of your key objectives—the statutory aggravation—would not be available in those circumstances. Could you clarify that?

Daniel Johnson

I may bring in Andrew Mylne or Kenny Htet-Khin on the strict technical elements. I will say that there are lots of instances in the law where there are overlaps or even duplications between different statutes.

I believe that there were just under 200 prosecutions in 2017-18 under the Emergency Workers (Scotland) Act 2005. It is clear that the 2005 act is used and it has comparable penalties to those that I seek to introduce, so I do not think that there is any reason to believe that prosecutors would not use the legislation if it were enacted.

Does that mean that the numbers are comprehensive? Clearly not. I doubt that the 190 offences committed in 2017-18 represent the totality of all the offences that were committed against emergency workers in that period either. This is not about statistical accuracy; it is about providing options. The numbers provide insight rather than precision in terms of the total number. Andrew Mylne may have something to add.

Andrew Mylne

The way that you characterise it, Mr Wightman, may get things slightly the wrong way round. I am not an expert in criminal law; I have certainly never been a prosecutor. However, my general understanding is that when prosecutors are deciding how to charge a particular offence, they often have choices. In this particular case, as we acknowledge, there is an overlap between the proposed new offence and existing common law and statutory offences.

My understanding is that prosecutors will generally favour a specific statutory offence rather than a general offence, whether that is common law or statute, where they have a choice.

If the bill is passed, the section 1 offence would become the default option for prosecuting offences of this nature. It is not so much that, if prosecutors chose a different option, the aggravation would not be available; the fact that the aggravation was available for the section 1 offence would be an additional reason to choose that option.

As we have acknowledged, there is still a small limitation. If a case is particularly serious and a prosecutor thinks that it would need to be prosecuted under solemn procedure, they will always have that option, but such cases would be very much at the top end of the scale.

I would look at it that way round. Aggravation, certainly in a case that relates to age-restricted sales and so forth, would be an additional reason to choose to prosecute under the new offence.

Andy Wightman

Thank you—that is very helpful indeed. I have one final question. Time is tight, so it may be helpful for you and for us if you were to write to the committee in fairly short order to elaborate on your response, because the matter is a bit complicated. I am talking about the Scottish Government’s policy memorandum, which refers to the three elements that are necessary for an offence to be created under the Criminal Justice and Licensing (Scotland) Act 2010. The memorandum points out that the offence of abusing a retail worker as set out in Daniel Johnson’s bill could be committed by conduct that is not, as section 38 of the 2010 act requires it to be,

“likely to cause a reasonable person to suffer fear or alarm”.

It also points out that there is no reasonableness defence under the new offence in the bill, which again can be contrasted with section 38 of the 2010 act.

A two or three-minute answer is probably not the best means of articulating your response to that challenge, as set out by the Scottish Government in quite some detail in its memorandum, which is published on the committee’s website, but perhaps you can give a brief response now.

Daniel Johnson

I will take you up on your suggestion of writing to the committee, but the simple and short answer concerns intent and effect. In order for there to be threat or abuse, there has to be intent to cause fear or alarm. Whether that is ever reasonable, regardless of the circumstances, is questionable. It boils down to the question of what you are effectively saying. In a sense, it could be argued that you are saying that two wrongs can make a right.

There is potentially a problem in saying that, because these are lesser-order offences, it could be reasonable to respond to one offence with another offence. I am not convinced of that. As I said, in the end it comes down to intent.

I do not know whether Kenny Htet-Khin has any brief comments to add on the precise points that the Government has raised.

Kenny Htet-Khin

On the point about the defence of reasonable behaviour, that was something that we considered. It is clear that that defence exists elsewhere in legislation—[Temporary loss of sound.] However, although we considered the matter, we could not really think of a situation—[Temporary loss of sound.]—to threaten or abuse a retail worker, which is why we decided—[Temporary loss of sound.]

On Andy Wightman’s second point, about the “reasonable person” test, we were not too sure what such a provision would add to the specific circumstances of the bill. There are other situations in which the “reasonable person” test is not adopted in law—[Temporary loss of sound.]

The Convener

We are having a few problems hearing you, Mr Htet-Khin.

Daniel Johnson

We can cover those points in correspondence. I will add one final point: if a “reasonable” defence is thought to be necessary, it would be very easy to add that to the bill through amendments at stage 2 or stage 3.

Andy Wightman

Thank you. It would be very useful for the committee to have from you a clear exposition in response to what is quite a detailed critique, or objection, from the Scottish Government. That would assist us hugely with our scrutiny.

The Convener

I echo that comment, Mr Johnson—it would apply to anything that arises during the discussion that you might want to elaborate on.

We have reached the end of our questions, but I want to raise one small point. Throughout this process, what has become absolutely clear is the fear that is often instilled in shopworkers when somebody behaves in a threatening manner, especially when it is somebody local who returns to the shop routinely. Shopworkers therefore often experience psychological damage rather than a physical assault. We have also heard throughout the process that it is about the response if somebody is called.

You said that, if nothing else, a sign at the till saying that it is an offence to assault, intimidate or harass a retail worker would be helpful. Why are such signs not up already? Although there is no specific offence, it is still an offence to do those things, so should retail workers put up those signs at the moment?

10:45  



Daniel Johnson

I will deal with both of those important points. It is about providing clarity and precision by saying that such behaviour is an offence under a protection of workers act. If we talk about it being a common law offence, we start to get into the realms of legal terminology. Signs could and potentially should be put up, but the bill would send a much clearer signal. It is not just about that; there are also the other associated elements, such as the aggravation provision that the bill would provide.

The point that the convener started on is perhaps the most important. Crimes that are committed against retail workers are different, in part because of the legal obligations that we place on them, but also because someone who commits such a crime against a person who is at work and carrying out their legal duties is victimising them in a place to which they have to return. When someone is abused or assaulted at work, they have to go back to work the next day, which is extremely traumatic. That point needs to be taken much more seriously by us all, and I hope that my bill will enable us to address it in Parliament.

The Convener

Is there anything that you would like to add before I close the session?

Daniel Johnson

I simply reiterate my thanks to the committee, because I really appreciate the time that it is taking to consider my bill.

I add a word of thanks to Andrew Mylne, Kenny Htet-Khin and the other members of the non-Government bills unit. We are extremely lucky in the Scottish Parliament to have a system of members’ bills, which means that we have that resource available to us in a much more straightforward manner than is the case for other parliamentarians. I am thankful to them for all their efforts.

The Convener

I echo those comments. I thank Daniel Johnson and the officials, Andrew Mylne and Kenny Htet-Khin, for taking part in the meeting. I am sorry that we did not have very good communication with Kenny. We found it difficult to hear you; I would get on to your broadband supplier.

On behalf of the committee, I thank everyone who has contributed to the comprehensive evidence sessions on the bill. We will now consider our report, which I hope will reflect what we have heard over the past few weeks.

I take this opportunity to thank all our retail workers. Without a doubt, this has been a very unusual and difficult time, and retail workers in particular have had to step up to the plate. They have coped very well, and they continue to deliver what is an essential service to us all. We hope that we will do them justice in our consideration of this member’s bill.

As agreed at the beginning of the meeting, we move into private session.

10:48 Meeting continued in private until 11:50.  



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