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[THE CONVENER opened the meeting at 14:01]

[... omitted]

Breastfeeding etc (Scotland) Bill: Stage 1

The Convenor:  I thank the witnesses on the panel for coming and for waiting so long.

I welcome Elaine Smith MSP, Mike Dailly, who is from the Govan Law Centre, and Kay Sillars, who is a researcher. They are our final panellists of the evening—which it almost is.

Janis Hughes: I have asked a few witnesses this question today. What is your view on the criminalisation element of the bill in relation to breastfeeding in public places? Could it lead to a negative attitude towards breastfeeding mothers?

Elaine Smith: We live in a culture that is negative towards breastfeeding, and we have to take things from that starting point—unfortunately, Scotland has a non-breastfeeding culture at the moment. There were various reasons for taking the criminalisation route, and many of the decisions were arrived at after much discussion in the steering group, which was made up of a wide range of people and organisations. Civil legislation would put the onus on the woman—or the parent, as the convener keeps pointing out; the bill is now wider in scope than it was originally. The route of statutory obligations would be difficult, and I think that the provisions would be more wide ranging.

The bill seeks to protect people who choose to breastfeed and carry out other forms of feeding in public, and to protect the children. It also seeks to act as a deterrent. If we have criminal legislation, we must define the sanctions to go with it. I will ask Mike Dailly to comment further on that, if members do not mind.

The Convener: Absolutely—we will go to the lawyer sitting at the end.

Mike Dailly (Govan Law Centre): Coming from Govan Law Centre, I can tell you that, over the years, the availability of civil legal aid has decreased. The only people who want to raise civil litigation and who qualify for legal aid are incredibly poor or incredibly well off. I would not raise civil litigation, for fear of the consequences. To be realistic, I would say that the civil route could be a good way to go, but only if people were able to raise litigation. We know that financial exclusion would play a part, because even those who are on a low wage have to pay a big contribution to the Scottish Legal Aid Board to get

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civil legal aid. That is a question of priorities for the Legal Aid Board—it is a harsh fact of life.

If we accept as a starting point the fact that the bill needs to have some teeth, and if we accept that the civil system would be extremely problematic and would result in financial exclusion, the only thing that we have left, other than the question of licensing, is the criminal system, which seems the obvious route.

Helen Eadie: I turn to the issue of deterrence and ensuring that people comply with the law. Deputy Chief Constable David Mellor's view was that the bill

"would be good law in that it would be symbolic, it would reinforce the aims of the bill and it would exist as a threat."

Do you think that people sometimes need a threat so that they change their attitudes and their behaviour? Speaking in support of the bill, David Mellor went on to say:

"I anticipate that prosecutions would be few in number."—[Official Report, Health Committee, 11 May 2004; c 868.]

Elaine Smith: David Mellor also said:

"It is perfectly legitimate to create a criminal offence as part of a strategy to change attitudes."—[Official Report, Health Committee, 11 May 2004; c 866.]

The bill is largely about creating a deterrent. However, the law would be symbolic because, at the end of the day, there would be few prosecutions. Mike Dailly will answer in more detail.

Mike Dailly: There are few prosecutions for not wearing seatbelts or for using a mobile phone in a car, for example. However, I believe that the relevant laws act as deterrents. That is what the Breastfeeding etc (Scotland) Bill is trying to do.

16:45

The Convener: I heard what you said about choices and I know all about the difficulties of obtaining civil legal aid. However, why would the person who was feeding the child necessarily have to pursue a civil action? The bill refers to "in a public place"; an obligation could be placed on the proprietor, or whatever, of a public place—for example, a local authority that is responsible for a park or a commercial company that owns a shop—to be the party who pursued the case on behalf of the mother, who could simply be a witness in the cause. That would lift the burden off the individual. I am sure that you have explored that idea and that you will tell me why you ditched it.

Mike Dailly: Indeed. The big problem is that nobody wants to spend the money to raise litigation. For example, I deal a lot with noise 

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nuisance cases in Govan Law Centre. Local authorities serve section 80 notices under the Environmental Protection Act 1990 on people who cause noise problems. It is rare even for a council to raise summary application proceedings, because doing so costs a fortune and they run the risk of getting caught up in lengthy litigation.

What you suggested for the bill could be a solution in principle, given all the practicalities, but the problem is that it would probably result in piecemeal application of the bill throughout the country, because prosecutions would depend on individual organisations and different people. I must state candidly that I do not believe that such folk would want to use their own funds to raise an action in a sheriff court.

The Convener: You are saying that the function of the criminal consequences that would arise from the bill is to be a deterrent. You do not expect there to be many prosecutions.

Mike Dailly: Indeed, convener.

Elaine Smith: The Association of Chief Police Officers in Scotland said in evidence that it did not think that the civil route was appropriate. I am sure that that is in the Official Report.

The Convener: I appreciate what ACPOS said, but I am interested in how the provisions in the bill developed. Did you have a hand in drafting the bill?

Mike Dailly: I drafted the bill.

The Convener: I am interested in knowing why you included certain things rather than others and why you went down the criminal route rather than the civil route.

Mr Davidson: My question is for Elaine Smith. I understand that the principle behind the bill is the promotion of breastfeeding. Paragraph 3.3 of your written submission gives a list of conditions that would be minimised, if not avoided, if more children were breastfed. To achieve that aim, you want to go down the criminal route. If you support the notion of using the criminal route to change societal approaches to what is basically health provision for babies, is there any particular reason why you did not include in the bill, for example, making it a criminal offence for a mother to smoke while she is breastfeeding or while there is a child in the home? Those behaviours, equally, have huge effects on children's later lives because of the transmission of chemicals through skin contact and so on. If you are going to use the criminal route to solve a health problem, do you agree that it should also be used to change societal attitudes?

Elaine Smith: As Duncan McNeil said earlier, the bill is not, in and of itself, legislation to promote a campaign; it is legislation to ensure that the right

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to feed infants and children in public is protected and that there is a deterrent to support that. That is what section 1 of the bill is about. The bill is very much about saying that we, as a society, will no longer thole women and other people who are feeding children being put out of public places for doing so. That relates specifically to breastfeeding, because the anecdotal evidence is about breastfeeding mothers having such problems.

Of course, other issues are involved. For example, the previous panel of witnesses asked whether allowing smoking in restaurants would somehow prevent breastfeeding in those places. However, the issue is about parents making choices rather than anyone dictating to them; once those choices have been made, it is about how to feed the infant or child. The important thing then is for society to support the choice to feed in public.

Much time has been spent considering the bill's impact on cafes and restaurants, but the bill would apply to all public places. Earlier, Pat Hoddinott asked whether people thought that preventing someone from breastfeeding should be viewed as a crime, but that is what the bill is about. Under the bill, it would be a crime to tell someone, "Sorry, you can't do that here. Please leave." Feeding choices are up to parents, but the bill is about supporting those choices once they have been made.

Mr Davidson: I notice that you did not use the parallel that I suggested. For the record, will you clarify that the bill is not about promoting children's health but about giving mothers the right to feed a child under the age of two, whether by bottle or by breast, anywhere that they chose?

Elaine Smith: The bill is child centred, so it is about the right of children under the age of two to be fed in public places. It is also about supporting feeding choices once those choices have been made. Section 4 deals with promotion of breastfeeding, which the committee has spent some time discussing with the minister and with other witnesses. Paragraph 3.3 of my submission explains the need for that promotion section in the bill and why it is good for children to have breast milk. However, section 1 establishes a criminal offence and is definitely about acting as a deterrent.

Mr Davidson: However, the issue that is covered in paragraph 3.3 of your submission is incidental to the bill's main objective.

Elaine Smith: The bill is not a panacea but, as part of a multifaceted approach, it will help improve the rates of breastfeeding, which research shows has many health benefits. As such, the bill will be a positive factor in the health of future generations in Scotland. The bill and my submission embrace a lot of issues—perhaps my

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submission was a bit long—but I wanted to give the committee as much background information as possible on the kind of things that the steering group discussed when the bill was being prepared. The main thrust of the bill is about ensuring that parents can go out and about in public with their children and access public services without being challenged about the way in which they feed their children.

Janis Hughes: You mentioned the evidence from ACPOS, but it also suggested that, rather than make the prohibition of breastfeeding a criminal offence, it might be preferable to include a statutory provision on breastfeeding in the licences and charters of public establishments. What is your view on that?

Elaine Smith: That would be rather more limited. The media in particular have sometimes misconstrued the bill as applying only to cafes and restaurants, but although it is nice that people can go out for lunch, it is imperative that they have access to public services. Going down the route that has been suggested would be rather limiting, because it would not encompass the amount of public places that would be covered by the bill. Mike Dailly will give the committee more detail on that.

Mike Dailly: To repeat what Elaine Smith has said, simply including a provision in licences would mean that public places would be missed out. For example, if someone is standing at a bus stop, they are not in a place that is licensed. The bill tries to encompass all public places and licensed places where persons might want to feed their child.

Mr Davidson: This question follows on from the previous one. We heard today that half of breastfeeding women would prefer to feed their children in a private place. Would it be preferable to encourage businesses and public premises to provide separate facilities for breastfeeding and bottle feeding, both of which are mentioned in the bill?

Elaine Smith: It is important to make it clear that the bill would make no requirement for such facilities. At the moment, 50 per cent of women might say that they would prefer to have private places, but that might be because of public attitudes. Is it preferable to hide in a private place because cultural attitudes mean that people fear that they will be embarrassed by someone telling them, "You cannot do that here—please stop"?

We are talking about a mixture. If mothers and parents want to choose to go somewhere private and there is somewhere for them to go, that is fine, but the bill imposes no requirement in that regard. I understand that some places—such as Boots the chemist—are considering such

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provision. I will probably get a rap from the convener for mentioning a company.

The Convener: No, that is fine.

Elaine Smith: Such companies are considering the provision of nicer private facilities for people to access.

The other problem is that, if a woman is breastfeeding in the cafe of a department store and someone tells her that the store has a private breastfeeding room and asks whether she would like to go there, that can often upset the milk. It might seem that the woman is being told that she must go there. If such choices are on offer and women know about them, they can make their choice freely. That is fair enough, but I reiterate that the bill does not seek to impose the provision of such facilities on any public places or licensed premises. If we are to have a more breastfeeding-friendly culture in which we encourage people to think about breastfeeding as the norm, it is important that we see breastfeeding going on round about us as we do when we go to many other countries. Kay Sillars might want to comment on public attitudes.

Kay Sillars: Although some research suggests that it is half and half whether women want to breastfeed in private, the research has not explored why that is the case. Other research indicates that more than two thirds of women believe that other people find breastfeeding in public unacceptable. Although they would happily breastfeed in public if they knew the response that they would get, they say that they would rather do it in private because they fear other people's responses.

As regards the other half of the bill, which is about increasing the breastfeeding rates in Scotland, there is a lot of evidence that suggests that the more people view breastfeeding as part of normal life, the more they are likely to consider it as a choice for themselves. If the bill had gone down the road of demanding more private spaces for women to breastfeed in, that would not have enabled women to see breastfeeding as something that they can do easily as part of their lives and therefore as something that they would consider for themselves. That applies in particular to women from low income areas, who do not get to see breastfeeding in more private places, such as their homes or the homes of their friends and family.

The Convener: I am not suggesting that it is a question of having breastfeeding in private or breastfeeding in public but, if both were possible, we might find that, incrementally, women who would not have breastfed at all will start off using a facility and that that will give them the self-

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confidence to move into public spaces. That could be an advantage.

Kay Sillars: My experience of breastfeeding is that women go through different stages—at some times and in some places they are quite happy to breastfeed, whereas at other times and in other places they might need a more private space. I do not think that, as part of the bill, it is being suggested that the provision of breastfeeding rooms is necessarily a bad thing.

Shona Robison: On that point, breastfeeding is surely a matter of choice. As you have just said, sometimes a woman might want peace and quiet and to be away from other folk, but at other times she might not. I would have thought that it would be a good thing if one of the bill's consequences was that more quality private areas would be provided for the women who chose to use them when they wanted to. Even if it is not a stated intention of the bill, would it not be a positive consequence if, in addition to encouraging women to breastfeed in public, the bill produced an improvement in the quality of private areas and an increase in their number?

Elaine Smith: I reiterate that the bill is about supporting choices—it is about supporting the feeding choices that are made and the availability of choice when women are out and about in public. At the moment, there are not many comfortable places to go to. As I think I told the Finance Committee, in Ayrshire I saw a notice on a wall that said, "Ladies and nursing mothers". When I went to investigate, I found that it was referring to a public toilet. That is just not acceptable; it sends out a very bad message. If places are available and people choose to use them, that is fine. The bill would add to the good work that people in the health service, the Executive and the voluntary sector are doing. If it helped over time to make Scotland's culture more breastfeeding friendly, people might have less need to seek out private places.

17:00

Helen Eadie: One area of controversy in relation to the bill is the proposed age limit. Some witnesses agree that an age limit should be set and others say that it should not. Would the age limit make people think that it was illegal or wrong to feed in public a baby who was over that age limit? The World Health Organisation has not set an upper age limit, but it quotes 4.2 years as the average natural weaning age for a child. Will you comment on that?

Elaine Smith: I am happy to comment. I am not surprised that the matter has been the subject of much debate and differing views, because the steering group had exactly the same debate over

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a few meetings. The age that has been chosen is not arbitrary. The WHO refers to two years and beyond; it does not say three years, four years or one year and beyond. I have no particular feelings about the age at which babies choose to wean or mums think that it is time to wean them. That matter is entirely between mothers and their children. That can also be a cultural issue. However, in discussion of the bill, we felt that it would be better for clarity in the law to set an age limit, so we had to decide what age made sense. The figure was not plucked from the air.

The bill would not make it illegal to breastfeed or bottle-feed in public a child who was over two years old. The status quo would prevail. We must make progress in small stages. We have problems now because wee hungry babies are being thrown out of public places and licensed premises. If we can create a breastfeeding-friendly culture over time, that may have a positive effect on whether people see breastfeeding as acceptable.

Dr Turner: Do you see no practical problems with the age limit of two years, given that the bill will create a criminal offence?

Elaine Smith: Other legislation has age limits. Mike Dailly will comment from a legal point of view.

Mike Dailly: We need to define the word "child" in the bill as a matter of good law. The age of a child is a matter for Parliament. I think that you have said that the age limit of two could be difficult if a baby happened to look older than that. However, that is the position with under-age drinking when under-age people buy alcohol unlawfully. If a shopkeeper is to be prosecuted, birth certificates will be lodged in evidence, if the prosecution goes that far. For an offence under the bill, the situation would be no different. The question is: what age should the Parliament decide on? The word "child" needs to be defined, as otherwise it would be meaningless as a term in the bill. We must grapple with that issue, which is a matter for Parliament.

Dr Turner: We are trying to de-stress a woman in such a situation. Thinking about the age of her child, what her child looks like and whether that will pose a problem could stress a woman. You talked about under-age drinking—do people not have identity cards? Is a woman to carry her child's birth certificate around with her?

The Convener: I think that identity cards for babies were a Conservative suggestion.

Mike Dailly: To be fair, I do not expect the situation that Jean Turner described to happen.

Dr Turner: So you expect no difficulties.

Mike Dailly: Apart from the reasons that Elaine Smith gave, one reason for setting the age at two 

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or under was that we wanted to take as many people with the bill as possible. We need to be realistic—some people might be especially offended if older children were being fed. I am the father of a two-and-a-third-year-old child. The point has been made that if a person has a wee baby, they cannot negotiate with it about feeding—

The Convener: We all know that.

Mike Dailly: I am preaching to the converted—I will say no more.

Elaine Smith: If the bill goes to stage 2, I would be happy to discuss amendments. I can only tell the committee my reasons for putting an age in the bill.

Shona Robison: Mike Dailly hit the nail on the head. We are talking about whether a woman who is breastfeeding a four-year-old could be asked to leave a place because the legislation had an age limit of two or under. However, to return to a point that was made earlier, the bill is about public perception. A mass of the public will not know the ins and outs and the details of the bill, but they will see how it is perceived and presented. It would be unfortunate if the bill's good elements were lost because of a hang-up or obsession with the fact that a mother who was breastfeeding a 10-year-old could not be thrown out of a restaurant. I use that as an extreme example, but some people will use such examples to undermine the bill. Evidence that we have heard from people who have suggested that there should be no upper age limit is perhaps a tactical mistake on their part because we must start from where people are and take them with us, as Mike Dailly pointed out. I take it that Mike Dailly would agree with that.

The Convener: David Davidson has a question.

Mr Davidson: Right. I am sorry—I was waiting for an answer to what Shona Robison said.

Mike Dailly mentioned underage drinking. Many premises now display signs that say "Proof of age required", for example, and everybody says that that is a good thing. Under the bill, if a sign were put up in premises that said, for example, that breastfeeding and feeding milk from a receptacle are fine and are permitted for children up to the age of two and that proof of age may be required, that would be in the spirit of the bill in practical terms. Somebody might become very upset because of the attitude that that would display but, according to the bill, it would be legal. Somebody could go down the road, get very upset, write to the press, go to the local bobby or whatever else and get the answer, "No matter how sensitive you are about the situation, that's what the law says." Have you considered that that could happen?

Elaine Smith: With due respect, people could put up such notices now, without the bill, for all 

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infants and children, but I am not sure that that happens. People tend to put up notices that say that breastfeeding is welcome in premises. The committee heard earlier about peer support groups going round and trying to identify places from which mothers and babies will not be thrown out and in which they will not be treated disparagingly, harassed or segregated. That said, things do not always work in practice. When mystery breastfeeders try out premises, what people have said and what signs say do not always turn out to be true. I would be surprised if anybody would take the time to put up such notices but, over time, I would hope that such attitudes would change anyway once the bill is embedded in Scottish law.

Mr Davidson: I raised the matter simply because what I described would still be legal within the definition in the bill. Before the bill is ever considered by the Parliament, we must decide whether it is reasonable and properly written and whether all the objectives have been thought about.

Elaine Smith: Perhaps I could ask the person who drafted the bill to say something, if you do not mind.

Mike Dailly: I do not see a problem with having a notice that says "Breastfeeding mothers welcome". The notice that David Davidson described might not be as nice as that, but the point is that a notice can be put up that says "Breastfeeding mothers welcome".

In fact, the bill is quite neutral in respect of not altering licensing law or, indeed, the law in any respect. The key point about the bill is that it will apply only in places in which a child is lawfully permitted, which is why we need to bring the debate back to the reality of commerce. There has been a bit of a red herring to do with how the bill will affect pubs. The committee has heard evidence that most pubs do not apply for children's certificates. I assume that that is because they want people to smoke and to buy booze—fair enough; that is what pubs do. A small number of pubs want to attract a niche market of families and kids. That is a matter for them and of course the bill will in no way alter that or tell anyone what to do. The bill will merely engage with pubs that have a policy of allowing children under two on the premises; it will have no relevance for pubs that lawfully do not allow kids under two on the premises.

Mr Davidson: The council officers who gave evidence earlier said that someone might not be prosecuted for an offence under the bill, but a licensing board might take a different view. Will you comment on that?

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The Convener: I take it as a compliment when Conservatives ask my supplementary questions.

Mr Davidson: I am glad. I am just getting my revenge because you regularly do that to me.

Mike Dailly: I was not convinced that what the council officers said was an accurate statement of the law, because the bill will create a criminal statutory offence and not a civil law wrong, which is different. For example, the Rent (Scotland) Act 1984 creates an unlawful offence—

The Convener: The officers suggested that the licensee would have to comply with certain conditions of the licence.

Mike Dailly: That would be a different matter. If a condition were made—

The Convener: The comments were made in the context of the mystery that arose earlier about Perth and Kinross Council's policy. I am sorry to interrupt you, but I just wanted to explain what the discussion was about.

Mike Dailly: It would not be unreasonable to make it a condition of the licence that the licensee must comply with the provisions of the bill. However, the licensing system has an appeals procedure. Licensing boards must comply with the Human Rights Act 1998 and be impartial and fair. People would get a chance to say, "Hang on. Is this proportionate?" For example, there might be a human rights issue if the revocation of a licence would deprive someone of their livelihood. Councils would have to tread carefully, because someone's livelihood could be taken away on the basis of a small piece of evidence. That might cause problems in the context of the Human Rights Act 1998.

I am not convinced that there would be a big problem. The minister sought clarification on various issues and perhaps it would be legitimate to consider the matter. No one has asked me to do so.

Shona Robison: Has anyone from the Crown Office been in touch with you to discuss enforcement?

Mike Dailly: No.

Shona Robison: For the record, I find it strange that the Crown Office has not discussed with the bill's proposers some of its concerns to do with enforcement. I would have thought that that would be its first port of call.

Concerns have been expressed that the bill does not specify what is meant by

"to prevent or stop a person in charge of a child from feeding milk to that child".

Earlier, a witness envisaged a situation in which someone was tapping their feet and staring at a 

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person with the clear intention of making them feel uncomfortable. Would that be an offence?

The Convener: No—I try that approach from the chair and it does not prevent or stop members from doing anything.

Mike Dailly: It is legitimate to ask those questions. The minister said that he needs to be satisfied that various matters are resolved and I might be able to resolve that issue now. The position is not complicated, but there has perhaps been a misunderstanding about it.

People have asked what "prevent" means and who would be the accused. The bill uses the phrase, "deliberately to prevent". As the convener knows, the word "prevent" relates to the actus reus of the offence—the physical action—but to convict someone of an offence, there must also be the mens rea—the intention—which is reflected in the word "deliberately". Section 1 of the Protection of Wild Mammals (Scotland) Act 2002 uses the same terminology.

If a woman on a bus were breastfeeding her baby and a person on the bus disapproved and decided to stare at her, would that person be committing an offence under section 1 of the bill? The answer would be, on the face of it, no, because it would have to be shown that the person was deliberately trying to stop the feeding of the child. Some people might stare just because they are a nosey parker or they are curious, so one would need to go beyond that. If the person on the bus then said—

The Convener: Can I stop you for a minute? Does the Protection of Wild Mammals (Scotland) Act 2002 say "deliberately to prevent" or does it just say "to prevent", with "deliberately" implied?

Mike Dailly: The word is there—"deliberately".

The Convener: But it is not in the bill.

Mike Dailly: It is in section 1(1).

The Convener: I beg your pardon. I see it. It has been a long day.

17:15

Mike Dailly: The Crown Office knows the law, so I am surprised that it is asking who the accused is and who will enforce the bill—obviously, it will be enforced by the criminal justice system. The law currently uses the concept of "deliberately to prevent". Other examples of words that are used include "wilfully", "knowingly" or "recklessly". That is the mens rea, or intention part of it.

If the situation that has been described happened, and the woman on the bus said, "That's disgusting. Get off this bus right now. That's outrageous," I think, given their evidence,

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that the police would have a word with that person and say, "Come on, don't you realise that this is now the law? You can't do that any more," and send them on their way. In more serious persistent cases an offence might have been committed. There might also be a breach of the peace, if the situation is that serious.

The Convener: It is a question of degree.

Dr Turner: Would it not need a great deal of publicity to make a campaign accompanying the bill work and would that not have financial implications? The public need to be educated about the bill. As Shona Robison said, nobody is going to read the detail, but it will come out at them if the bill is passed.

Elaine Smith: I looked into this. You mentioned previously the law on the use of mobile phones in cars. That was publicised through the usual channels: the media and the usual advertising methods. NHS Scotland has an advertising process, which it uses during breastfeeding awareness week—the committee might have seen the current advert. One previous campaign asked, "What is this miracle food?" and was about how good breast milk is. The current campaign has picked up on problems associated with breastfeeding in public. Public education could be provided through such advertising. Awareness could also be raised through normal training procedures, which could state briefly, "This is the law," or there could be more intensive training that is part of equal opportunities or induction training. Ellen Kelly said a little bit about that.

The financial memorandum states that the bill would not put an onus on the Scottish Executive to spend a lot of money promoting breastfeeding, other than what it currently spends. If it wished to promote breastfeeding, that would be a good thing. It would be a matter of getting media coverage of the fact that the bill had become law—some people already think that it is law, given the coverage that the subject has received over the past couple of years.

Prosecutions would be few and far between, given what Mike Dailly just said. The police indicated that they would always try to mediate before they used the ultimate sanction.

The Convener: In its report on the bill, the Finance Committee repeated the recommendation that it made on the financial memorandum to the Fire Sprinklers in Residential Premises (Scotland) Bill, which was that the Executive should produce an assessment of the financial impact of members' bills to inform committees. That is only fair, because you do not have the resources that ministers have. Many of us would like to see that happening with members' bills.

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Mr Davidson: I refer members to Keith Harding's Dog Fouling (Scotland) Bill in the first session. The Executive offered its support when the bill got to a certain stage, but it also put up a pot of money—I am not sure whether it was £200,000 or £300,000, but the amount was of that order—for councils to spread the gospel that the law existed, so that people were not ignorant and had no excuse or defence that they did not know. Presumably, you will require the same for your bill.

Elaine Smith: In my answer to Jean Turner, I said that the bill does not absolutely require that kind of funding. However, given that the Executive provided funding for the bill on dog fouling—which involved fines, if I remember correctly—it would be most welcome if it wanted to do something similar with this bill, to help with promotional work. However, there is nothing in the bill that absolutely requires the Executive to spend any money. The Finance Committee has agreed with my analysis of that. However, we could make the point to the Executive that the costs of any promotional work could be offset against the health benefits that would result from an increase in breastfeeding. I was a little disappointed in the Executive's submission. It talked about some of the costs but did not talk about the kind of savings that could be made from encouraging an increase in breastfeeding.

Mr Davidson: Convener, may I ask a question about the example Mike Dailly used of a lady on a bus?

The Convener: Yes—although I have a question to ask that has not been asked before.

Mr Davidson: Is it expected that a member of the public who caused problems would be prosecuted? The bus driver might not be able to see what is going on and the bus company would not be involved if it was not a member of staff who had said something. What would happen in that situation?

Mike Dailly: If there were a stushie on a bus, I would have thought that the bus driver would know the position. As Elaine Smith has said, such training can be tagged on to existing induction courses for employees, and people have to keep up to date with health and safety obligations.

If the bill becomes law, I would think that a driver would be able to say to a member of the public who was protesting, "You can't do that, because it's against the law." I would hope that that would resolve the problem. If someone was being abusive—and let us be honest, that can happen—to someone who was feeding their child, the bus driver might pick up the radio and get the police. However, I think that most people would calm down before that stage was reached.

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Elaine Smith: That is the opposite of the situation that we had a few years ago in Edinburgh, when a woman was put off the bus for the heinous crime of breastfeeding a baby. As the minister Malcolm Chisholm said at the time, there were no powers to do anything about that. This bill will provide those powers. In my view, the Parliament would show vision by passing it.

The Convener: I am uncomfortable with the "etc" in the title of the bill—the Breastfeeding etc (Scotland) Bill—which is there because you include bottle feeding and other stuff. The information that we received from SPICe talks about

"a division of opinion among respondents"

about including bottle feeding. I do not think that it was in the bill the first time that you proposed it. What was the division? Was it 50:50? I know that not all opinions have the same weight, but what was the division?

Elaine Smith: I do not think that it was 50:50 at all. People had various reasons for feeling that bottle feeding should or should not be included but, if I remember correctly, most respondents felt that it should be included.

Mike Dailly: I think that that is right. However, it is reasonable to say that if the bill had not been inclusive, it would have been beyond the competence of this Parliament under the Scotland Act 1998.

The Convener: So the reason is technical.

Mike Dailly: There are several reasons and inclusivity is one of them. An issue arises over the suggestion that women who are bottle feeding should really be breastfeeding and that, if they are not, they are not being a good mum. However, the technical legal reason is that, because the bill deals not only with breastfeeding mothers but with breastfeeding women and people who are feeding milk to a baby, it can come within the ambit of the Scotland Act 1998.

The Convener: In the SPICe briefing, one of the arguments against including bottle feeding is that doing so would

"equate the benefits of breast milk with formula milk".

We know that that is not the case. You are promoting breastfeeding, but it seems to me that you are getting a bit politically correct by including everything. I would have preferred the bill to be simply a breastfeeding bill, without the other stuff. The bill could then have been tested for its inclusivity with the Executive.

Elaine Smith: The bill was tested with the Presiding Officer, who has to decide whether a bill is competent before it can progress. In the previous session, when the bill was introduced as

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you suggest it should be, it was decided that it was not competent for this Parliament and was a matter for Westminster. That was a matter of opinion, but that was the opinion that was given. The bill was then redrafted and the current Presiding Officer decided that the redrafted version was competent under the Scotland Act 1998.

The bill was redrafted to make it child centred—which I think is right—and to ensure that people were supported once they had made their choices.

The Convener: Why was the first bill deemed competent only for Westminster?

Elaine Smith: It is a matter of legal opinion, but equal opportunities issues arise if the bill is only on breastfeeding.

Mike Dailly: The first draft was very specific and would have kept the bill nice and short and to the point. However, because it dealt only with women, issues of discrimination arose. There are things that the Scottish Parliament can do to promote equal opportunities, but it cannot change laws on discrimination. The view was taken that the bill would not be competent. We were faced with the possibility that Elaine would never be able to push this issue forward in the Scottish Parliament, which would have been unfortunate and incredibly frustrating. However, we managed to come up—as lawyers often do—with a solution.

The Convener: That is very helpful. You have explained why bottle feeding is included; I am still a bit uncomfortable with that, but I now know why it is there.

Thank you for your evidence. It has been a long haul, but I hope that we have done our bit in testing the bill today.

Meeting closed at 17:26.

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© Scottish Parliament 2004

 Prepared 1 June 2004

Full official report:  http://www.scottish.parliament.uk/health/or/he04-1402.htm#Col883