Justice Committee

Meeting date: Tuesday, June 19, 2012

Official Report 401KB pdf

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Proposed Criminalisation of the Purchase of Sex (Scotland) Bill

The next item relates to the proposed criminalisation of the purchase of sex (Scotland) bill. I make it clear to members that the purpose of this discussion is not to get into the proposed legislation’s merits. Tempting though it may be to proffer your views on the issue, you should bear in mind that we do not even have a bill before us. We are simply considering the process and the question whether there has been sufficient consultation on the proposal for it to proceed without the member in charge having to repeat, re-enact or redo the consultation. If and when a bill is published, the committee will have the opportunity to take evidence in the usual way, with calls for evidence and stage 1 to stage 3 consideration. I just want to make that clear at the outset to ensure that we do not have a prolonged debate on the good, the bad and the ugly. That is not what this item is about.

I very much welcome to the meeting Rhoda Grant, who is proposing to make it an offence to purchase sex and has provided a statement of reasons on why consultation on the proposal is not required. The Parliamentary Bureau has referred to the committee a draft proposal and accompanying statement of reasons and at this stage the committee has been asked only to decide whether it is satisfied with the reasons that have been set out.

Rhoda Grant is accompanied by Claire Menzies Smith of the Parliament’s non-Executive bills unit; I also welcome Margo MacDonald to the meeting. I invite Rhoda Grant to make a brief opening statement.

I thank the committee for its invitation to attend the meeting.

There is a huge amount of evidence on this issue, some of which supports the policy intention and some of which does not. I am obviously persuaded that the proposed bill will bring benefits but as you said, convener, those arguments are for another day. Today we are discussing procedure and whether sufficient consultation has been carried out to allow me to lodge the final proposal and gain the necessary support to secure the right to introduce the bill. I believe that that requirement has been met and that the proposal should go forward.

Trish Godman started the process during the passage of the Criminal Justice and Licensing (Scotland) Bill, to which she lodged amendments that the committee took evidence on. Although sympathetic to the amendments’ aims, the committee felt that there was a need for much wider consultation. Thereafter, Trish Godman launched a formal consultation on proposed legislation that attracted a huge number of responses.

When Trish Godman retired, she asked me to take forward the proposal. Since then, I have met interested parties, listened to their concerns and briefed them on how I wish to take forward legislation on the matter. I hope that by taking all those steps I have persuaded the committee that sufficient consultation has taken place. As the convener pointed out, if I gain the necessary support to allow the bill to proceed the committee will be able to scrutinise the matter further at stage 1.

Can you take us through the consultation process and explain why you think it has been sufficient? There seems to be doubt as to whether it was, but you seem convinced that it has been.

The consultation was sent to a large number of organisations and attracted a large number of responses. As I understand it, those who have suggested that the consultation was not sufficient have done so not because of the level of consultation or the number of people who responded but because they do not agree with the very premise for the consultation. They simply do not agree that a bill should be introduced in this form. Obviously, they will be able to set out at stage 1 their concerns about the bill and their views on whether it should go through to stage 2. Actually, the very people who are saying that the consultation has not been sufficient made use of the opportunity to respond to it.

How did the original consultation reach out to the key stakeholders who will be directly impacted by the proposal—in other words, those who provide or purchase sexual services?

As you can imagine, it is difficult to identify those people, as a great deal of activity in this area is already illegal. Trish Godman reached out to organisations that have those links—those that work with prostitutes and clients, such as SCOT-PEP and the UK Network of Sex Work Projects—and to organisations such as social work departments, which deal with people’s day-to-day issues. A huge number of consultation forms were sent out—around 146—and, obviously, that spread the consultation wider.

There has been a suggestion that there was a lack of rigour in the analysis of the results that were received. Do you want to respond to that?

I do not believe that there was a lack of rigour in the analysis. The information that came back, together with every response to the consultation, is published on my website. There has been no attempt to hide the responses, and the analysis is quite straightforward. As a result of that consultation, I have changed some of what Trish Godman proposed early on.

I have listened to the consultation responses. Obviously, I need to take that information away and do more work on it—I am not at the stage of introducing a bill at the moment. However, that process has honed my ideas around how I want to take the bill forward.

I admit that I was not closely involved with the initial consultation, but it seems to have been quite a narrow consultation and to have closed down options for discussion early on, which led respondents down a particular route. Do you feel that there would be benefits in having a much more open consultation that allowed lots of different options?

The member’s bill process involves taking forward an idea on which a member has formed an opinion and consulting on that idea. If I were coming from a Government point of view, and therefore had the ability to conduct a much wider consultation, I might throw open the discussion and say, “This is the issue and these are the problems that are caused. How do we change the plethora of legislation and interventions that we have in place?” However, that course of action is not open to a member. A member identifies a problem and consults on the solution that they come up with. It is for people to say whether they agree with the proposal. That is what happened in relation to the proposal that we are discussing: that is what consultation is about.

The original consultation document that was produced by Trish Godman proposed the creation of three new offences:

“engaging in a paid-for sexual activity; advertising paid-for sexual activities; and facilitating engagement in a paid-for sexual activity”.

Do you propose to change that approach and concentrate merely on the issue of the criminalisation of the purchase of sex?

Yes. The responses that came back on the issues of facilitating and advertising made clear to me that those areas were too complex to cover in a member’s bill. We need to realise that it is not always possible to deal with complex areas in a member’s bill.

Having considered the issues that were raised in the consultation and the areas in which people suggested that there would be difficulties, I think that pursuing the criminalisation of the purchase of sex, which I hope to be able to do, will provide a focus and will avoid the unintended consequences of a broader bill.

In Trish Godman’s consultation, was there a specific question on whether the consultees agreed that the activity should be criminalised?

There was not a specific question on that. However, people responded to say that they thought that something quite different should happen. It was open to people to respond as they wished. In consulting on her proposal, Trish Godman asked for more information in that regard, and some people responded to say that they did not agree with the proposal.

So there was no specific question that asked whether or not they thought the activity should be criminalised.

No.

Rhoda Grant and I have already crossed swords this morning.

I understand what the convener said about the issue being procedural, and I have three procedural questions. However, I must pick up on Rhoda Grant’s definition of a member’s bill as something that seeks to deal with a problem. She first has to establish that what she wants to deal with is a problem. To whom is it a problem that two women work—selling sex—from a flat that they own or rent, about whom nobody ever complains?

I would rather go back to the consultation, rather than go into that, as I think that would be in the nitty-gritty of the bill itself.

Okay. Rhoda Grant said that this was about the core aim. What is the core aim of the bill?

The core aim of the bill that I hope to propose will be to criminalise the purchase of sex.

Okay. How do you propose to strengthen existing legislation? With all due respect, if that is the intention, there must be consultation on the bill that the Parliament passed recently, to see how that legislation is working—whether it is working or whether it needs changing.

That would be a matter for the Government, and possibly the committee, if it reviewed the legislation. I do not think that that would be something to be done as part of a member’s bill.

Should you not know the results from the last piece of legislation to be passed before you propose to strengthen existing legislation?

Part of putting forward legislation is looking at what is happening on the ground, and taking account of that. Obviously, I have seen nothing coming out of the most recent legislation to change the way in which I am dealing with things; otherwise, I would not be bringing forward the proposal.

I am finished for the moment, thank you, convener.

Good morning. I am at a disadvantage as I was not a member of the Justice Committee when the matter was discussed previously, but I have a copy of the previous bill. Will you elaborate on what you said in paragraph 19 of your submission, about why your proposal is restricted to the criminalisation of the purchase of sex, when the original proposal was based on the criminalisation of both purchase and sale? Also, the consultation did not provide an option 3, which would have been the criminalisation of only the seller. I would be grateful for your comments on that.

The consultation provided the option of criminalising only sale, and the criminalisation of both sale and purchase were consulted on. Given the consultation responses that Trish Godman received, I have narrowed down the proposal. As I said, I have read through what people had to say and I have reacted to that. It was clear to me from the consultation responses that people did not want further criminalisation of prostitutes—indeed, they wanted the opposite. That is why I wish to propose something that would criminalise the purchaser, rather than the seller.

Which option had the criminalisation of the seller?

There were two options in paragraph 57 of Trish Godman’s consultation:

“Option 1 is to criminalise both the seller and the purchaser”

and

“Option 2 is to criminalise only the purchaser.”

I asked whether there was an option to criminalise only the seller.

That was not included as an option.

I have another small point. Things have moved on a bit, in terms of reports on trafficking, which is a subject that is dear to my heart. It might be that, at some point, somebody would want to embark on legislation in relation to trafficking, which obviously would not just relate to sexual trafficking. Have you considered whether that might impact on your proposal? Would you consider that?

If someone came forward with such legislation it would probably move things in the same direction as I hope that my bill would. I do not think that it would impact on my bill. Obviously, people are trafficked for a wide range of reasons, of which prostitution is one. However, dealing with trafficking is not the core aim of my bill, and a trafficking bill would not address all the issues that I hope to address in my bill.

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Now that you have raised the issue of trafficking, I seem to recall through the dim mists of my brain that Shona Robison, the minister in charge of the Commonwealth games, has said something about legislation on trafficking being introduced in advance of those games in 2014. Has the member checked whether that is, indeed, the case? I do not think that I dreamt it.

I do not have information with me that will confirm that, but I am pretty sure that the Government has made some statements about trafficking and the Commonwealth games.

Notwithstanding what happens today, it might be useful if you can confirm the position to us. Of course, we can also confirm with the minister concerned whether it is a proposal for legislation, policing or whatever.

Again, however, I point out that the bill is not about trafficking itself.

No, but my point is ancillary to Rod Campbell’s question whether other pieces of legislation, policies or whatever that are swilling about might impact on your proposal.

In the same paragraph of your statement that Rod Campbell asked about—paragraph 19—you say that, although you are sympathetic with the other strands of Trish Godman’s proposal, you want to refocus your proposal

“on the creation of an offence of purchasing a sexual activity”.

Given that change in focus, would it not be helpful to consult further?

That comment reflects the breadth of the consultation that took place and the fact that the consultation itself has influenced the proposal that will come forward. However, if someone is influenced by the outcome of a consultation to the extent that they need to consult further, they will never get anything done. If they are listening, they are being influenced. It is very clear that the consultation worked well, because it has influenced my proposal.

Perhaps I should rephrase my question. Would further consultation be an obstacle? Do you think, for example, that it would damage the bill?

It would not damage the bill itself, but it would slow the whole process. Given that the committee has already examined and taken evidence on this issue and that a full consultation has already taken place, the proposal has jumped through more hoops than most bills. I do not think that further consultation would do damage; I just do not think that it would bring anything new to the argument.

I appreciate that but, as Rod Campbell suggested, it might help new committee members. Perhaps I did not do my previous job as a researcher all that well, because I have to say that I did not pay too much attention to the consultation and I do not know too much about it, particularly the context in which it was carried out. As a result, I wonder whether with your refocusing on this particular element of the original proposal further consultation might help to inform the committee. Nevertheless, I take your point.

I have been copied into correspondence that suggests that you, too, have been copied into it—I do not know whether you have been; I am simply making an assumption—and which cites several academics questioning the methodology that has been employed. Are you concerned by phrases such as “deeply biased” and

“flawed in every conceivable aspect, including the questions”?

I think that perhaps as many people have called the consultation open and fair. After reading some of those submissions, I feel strongly that they simply disagree with the whole premise behind my proposal. They think that there should be a consultation on the question, “What do you think of this?”—full stop. Trish Godman consulted on a proposal that she was bringing forward; if she had wanted to do something different, she would have consulted on something different. The people to whom you refer are confusing a consultation such as this one, which is about a member’s proposal for a bill, with a Government consultation, which is a very open process that seeks to identify issues.

I understand what you are saying—the parameters for a consultation on a member’s bill are narrower.

However, the correspondence says:

“The majority of references were drawn from a handful of websites replicating statistical errors and misquotes, clearly indicating that no work had been done to verify, or even read, source material.”

There is so much evidence out there that, in a way, if my proposed bill proceeds to stage 1, the committee will have my sympathy, because it will have the joy of reading all that evidence.

There is evidence on both sides of the argument. The criticism that has been received is that, because Trish Godman cited the most convincing evidence that she found for proceeding with the bill and did not cite evidence for not proceeding with it, the proposal is biased. However, a member who proposes a bill will obviously put forward the evidence for their proposal.

Are you absolutely content that the evidence that formed part of the consultation was robust and fully accurate?

Yes.

Your statement says that you will reduce the demand for prostitution

“by strengthening the existing legislative framework”.

How will that reduce the demand?

If it becomes an offence to purchase sex, people will not break the law, which will reduce demand.

I have to—

I am sorry, Margo, but such questions would be for the bill at stage 1. We have a narrow focus on the consultation process—whether it was wide ranging enough, whether enough time was allowed and whether it was properly intimated.

I return to my earlier question: why has there not been a consultation on how the existing legislation—which was called the kerb-crawlers bill—is working?

I do not know whether, strictly speaking, it would be necessary to consult on that. The existence of a gap in the existing legislation could be covered in background materials.

I know—that is what I was asking about.

I do not know whether it is obligatory to intimate in a consultation the existing legislation and why the proposal is being brought forward; perhaps Claire Menzies Smith could help with that. Does that form part of the lead-in to a consultation?

I am sorry—I am thinking back to my member’s bill and how there was a gap in the law on the control of dogs. There was a problem with the Dangerous Dogs Act 1991, which is why the proposal was introduced. In relation to your proposal, what is the gap that is being filled? Did that form part of your consultation?

There is obviously a gap, because at the moment those who sell sex tend to be the ones who are prosecuted. If Margo MacDonald had listened to this morning’s “Call Kaye” programme, on which we crossed swords, she would know that it is clear that people who sell sex are being arrested while those who purchase it are walking away. There is a huge disparity in that regard. That is the gap that the proposed bill is looking at.

We are again coming close to the issue. Rhoda Grant makes the assumption that we would want to see someone prosecuted if a paid-for act of sex had taken place. I do not necessarily subscribe to that view.

I am looking at paragraphs 30, 31 and 32 on page 9 of Trish Godman’s public consultation. Although some reference is made to the existing legislation in the area, no assessment is provided of how effective or ineffective it has been. I think that that was the question that was being posed. Quite rightly, a member will bring forward a bill—as we all know, it must be fairly straightforward—on an issue on which there is a gap in the law and which the Government has not dealt with. I wonder whether sufficient consideration has been given to the impact of existing legislation in this area before anything else is introduced.

Each part of the legislation has statistics attached to it. I do not have them with me this morning, but they could be used to inform decision making. To me, however, the evidence is clear that there is a gap in the law, and my bill seeks to fill it.

The statistics are fairly dated. Paragraph 33 of Trish Godman’s consultation states:

“According to Scottish Government statistics, prostitution offences have increased by 5% over the past year”,

meaning 2008-09. At that time, the Prostitution (Public Places) (Scotland) Act 2007 had hardly got going. I do not want to hinder you, but do you have a firm foundation?

We have figures on that, and we can provide them for the committee.

To go back to the process, the majority of the 122 formal responses that were received more than two years ago supported the need for legislation. Do you anticipate that those who have an alternative view of the situation will have an opportunity to give evidence to the committee, so that we can examine, if we choose to do so, those alternative views, or the assessment that John Finnie mentioned earlier? That would ensure that, if people feel sufficiently strongly about the matter and the committee decides to take it on to the next stage, we will have a chance to examine that.

This is an opportunity to visit what is, no doubt, a controversial area, and one that has caused concern for many years. I have to admit that, from my point of view, it has always seemed iniquitous that one half of the transaction was criminalised but the other walked away scot free. Is it your position that we will be able to examine all the elements and decide, in that process, whether we should take the matter forward in Parliament?

Yes. May I just correct you on the timescale? The Justice Committee took evidence on the Criminal Justice and Licensing (Scotland) Bill before Trish Godman put out her consultation. The consultation went out in November 2010 and it was 2011 before the responses were gathered in, so the length of time that was mentioned has not elapsed since the consultation.

Obviously, the pros and cons of the legislation will need to be discussed by the committee at stage 1. I hope that the people from whom the committee will take evidence will support the bill, but obviously it will take evidence from some people who do not believe that the bill is right. It will be for the committee to scrutinise the bill and report to Parliament and it will be for the Parliament to decide—

So it will give us a chance to vent the issues.

Of course.

We knew that anyway, Graeme, but I let you say it, and so did Rhoda. I know why, but I will not say why.

That concludes our questions. The committee will discuss the matter further. I thank Rhoda Grant and Claire Menzies Smith for coming along today.

11:12 Meeting continued in private until 12:15.