Chamber and committees

No. We are not suggesting that my bill will provide any redress whatsoever, but I am making the point to the committee that many of the women will have entered prostitution as children or will have been trafficked, and they will have criminal records in relation to their own exploitation. I think that, as a society, we would agree that that is completely unacceptable.

That is my preference for how we should go about it. If the Parliament does not agree, I am perfectly willing to look at other options. For the sake of transparency, I point out that, in her letter, the Minister for Victims and Community Safety said that she did not think that basing our approach on the Horizon legislation was the right way to go, and I think that the Law Society of Scotland might have said the same.

There are a couple of other options. We could do something like what was done in the Miners’ Strike (Pardons) (Scotland) Act 2022, or in the Historical Sexual Offences (Pardons and Disregards) (Scotland) Act 2018. There are other ways of doing it.

It is a good question and, to be honest, we wrestled with it a little bit ourselves. The reason behind the policy intent is that, as you can imagine, as the law stands, women who are selling are often arrested and have convictions for selling sex under soliciting legislation.

I have one friend who has exited prostitution. She has been out a long time now. She entered prostitution when she was 15 and she had 39 convictions by the time she was 17. I probably do not have to explain to the committee that, if you have convictions in this area, it can create a barrier to accessing services, because women often do not want to disclose that they are in prostitution. We often see women in prostitution having their children taken away from them. If you want to exit prostitution, it could have a damaging effect on your employment prospects, whether you are able to get access to housing and a range of other things. Survivors were very clear with me that they wanted not only to be decriminalised but to have any existing convictions for the offence to be quashed or pardoned in some way.

If the committee still has doubts about that, it is borne out by the Casey review report that just came out. I do not know whether any of you have looked at it. It is about the Asian grooming gangs—well, they get called that, but I call them “rape torture gangs”—and it was commissioned by the UK Government. It has 12 recommendations on that particular issue, and the UK Government has accepted those in full. You will know that many of the girls who were groomed into those situations ended up in commercial sexual exploitation, so they were prostituted. Obviously, most of them were young—in many cases, they were below the age of consent—so one of the recommendations is that no one should be criminalised for their own abuse or their own exploitation. That is the policy intent.

How we get to the outcome, I am not so set on. I very much like the idea of an automatic repeal. The reason for that is that, when the records are looked up, there will not be anything on them. The offence will not be listed and then disregarded—it will not be on there at all. If, when they fill in forms, such women are asked whether they have a criminal record, they will be able to legitimately say that they do not, because it will have been removed.

However, there are other ways to get there. There are three quite recent pieces of legislation, the names of which Maren Schroeder will help me to remember. We have based our approach on the Horizon legislation, because we want there to be an automatic repeal, for the reasons that Maren set out. Only one crime code is involved, and there is no need for a case review.

My legislation would send a message to society—like other countries that have adopted this approach—to say that, in Scotland, we recognise who is the exploiter and who is being exploited. We now conceptualise most of the people who are in prostitution as victims. A lot of the women who I have spoken with who have exited prostitution would not think of themselves in those terms. They consider themselves very much to be survivors; that is how they want to refer to themselves.

Consider the testimony that Fiona Broadfoot gave. She came to the launch of the bill a few weeks ago and spoke with the media quite extensively. She was prostituted in Scotland, including in a brothel in Edinburgh. She explained that there were a couple of times when she was on the street with her pimp and the police arrived. They arrested her and took her away. She was a teenager at the time. There is a power imbalance between the exploitees and the exploiters, who are not just the sex buyers but the pimps.

Reem Alsalem has written a number of really good papers on the topic. She has a country report in which she talks about prostitution in the UK and recommends that we move to a challenge-demand model. She has also penned an excellent letter—if the committee has not seen it, I will circulate it. It is brutal. In it, she talks about the reality of prostitution, particularly for those who are trafficked and coerced. She also refers to pimps as being—I cannot remember exactly how she phrases it—the biggest users of torture. That is how bad things are; they are torturing prostitutes.

We should flip that and let the women who are working in the sex trade know that they are decriminalised. I know that some people think that you should not do that—they feel that, if you think that prostitution is wrong, you should criminalise everybody. However, I believe that some of these women are so traumatised by what has happened to them in prostitution that they will never really recover from it. Adding a layer of criminality to that, in my view, is just wrong. Decriminalising them does not lead to an increase in prostitution because the demand is coming from the buyers. If you decriminalise the sellers, it will not have an impact on the size of the prostitution market.

There would be recurring and one-off costs. We have estimated the cost to Police Scotland, in relation to additional crimes and cases proceeded with, to be between £33,000 and £100,000. We have estimated the cost to the Crown Office and the SCTS of the cases being brought to be between £84,000 and £218,000. We have also added in the cost of what we consider to be the fairly unlikely event of anyone being sent to prison for this offence—the offence of the purchase of sex—of around £48,000. Similarly, we do not imagine that community payback orders would be used extensively. We imagine that most people would receive a fine, but we have estimated the cost of those to be between £2,200 to £6,600.

The largest cost would be for the support services element, because the bill would make what I would describe as a bold move, which is to create the legal right to support for victims who have been in prostitution. It is fairly difficult to estimate what would be needed in that regard. The bill, as drafted, hands that over to the Government, because I accept that it would be the Government that would either instruct local authorities to provide those services or commission third parties to do that, as it does now.

There are two funds that the Government puts money into at the moment—the victim centred approach fund and the equally safe fund—which amount to more than £60 million. I have had a discussion with the Minister for Victims and Community Safety, and I imagine that it might be possible to refocus some of that funding as a result of the bill, with some of it going to prostitution spending.

The committee will be aware of Routes Out in Glasgow, which is an example of a provider of excellent services to those who are exposed to prostitution. It is funded by Glasgow City Council to the tune of about £400,000. In calculating the amount for the support services provided for in the bill, we had to include—I thought this was slightly odd when we were preparing the documents—that Routes Out funding in our figures, even though the money is already being provided for support services relating to prostitution. We have calculated support services at something between £1.3 million and £2.2 million, depending on how that works out.

As Maren Schroeder said, a number of records, some of which are on paper, might need to be changed. The SCTS gave us a figure of what it would cost it in administrative time to find, locate and update those records.

It would reduce the number of people involved in prostitution. We need to be clear about that from the start. Some people have the idea that, because prostitution will always exist and always has existed, we should not seek to have an appropriate legal or legislative framework to manage it. My view is that, as legislators, we need to look at the international evidence, the harm that is being done to women who are in prostitution and the harm to society, and we need to come up with the best possible option.

This is not a perfect solution—there are no perfect solutions. Other countries have criminalised the buyer through a challenging-demand model. Demand drives the supply. The buyers, 99 per cent of whom are men, demand the service, and the traffickers and the pimps step in to fill that demand. That is what drives the trafficking inflows. We know from the data on buyers that, if buyers know that they will get a criminal record and that what they have done will be made public, most will stop. You reduce the demand by creating that deterrent effect. In the countries that have brought in such a legislative framework, the market for prostitution has contracted. We can see that, and we have data for that. I will ask Maren Schroeder to go into the specifics. We also have international data that shows that the trafficking inflows into a country will also drop. We know that the model works.

It is also about decriminalising the women. I say “women” as a shorthand, because we estimate that 96 per cent of sellers are women. It is not all women; there are men who sell sex as well—I put that on the record—but I say “women” as a shorthand because the majority of sellers are women.

What also seems to happen is that, when the women are decriminalised, they develop a better relationship with people in law enforcement and are able to work with them. In the countries that adopt that approach, not only do they create crimes around the purchase of sex; it tends to lead to better investigations and investigation results on other crimes that are connected to that, the obvious one being trafficking.

We saw that in France. The statistics there showed that, when France changed the law quite recently—the French law is only a few years old—investigations into other crimes relating to the purchase of sex went up by 54 per cent. When I went to Sweden a few years ago, the Swedish police told me that, too. One of the police officers there, who was in charge of the issue in Stockholm, told me that he had no idea that that would happen once they started to criminalise the sex buyers. He said, “Well, we would go and arrest them, and then we would look in their car and find all these other types of criminality”—I am sure that you can imagine. Moreover, someone who was selling sex gave them very good evidence that led to the arrest of high-profile individuals for other issues.

It creates an environment in which things are all working together towards the ends that we as a society want to see. We do not really want to put these people in prison; we are seeking to create a deterrent effect, so that men who buy sex realise that that is exploitation and stop doing it, and then the market will drop.

I will let Maren Schroeder give us some facts and figures on the international data.

That is a good question that gets brought up quite a lot. The main takeaway for the committee to remember from Northern Ireland is that, even without strong enforcement, the law has had a measurable deterrent effect. The issue in Northern Ireland is not with the legislative framework, but with the enforcement of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015. I will bring in Maren Schroeder, because she has looked into it extensively.

In 2017 or 2018—I cannot remember what year it was; I will have to check—I went to Northern Ireland when I was preparing the first time around for my member’s bill and spoke to the then attorney general, John Larkin. We discussed in a private meeting that, at the point that I visited, they had not made a single arrest. He admitted to me that there were enforcement challenges.

Yes.

The committee will know about the national referral mechanism, which is set out in UK Government legislation. The women will have access to that and to a temporary recovery and reflection period, during which they are protected from deportation. That period normally only lasts for 30 days, but, in practice, it can often last up to 12 months, until they get the conclusive grounds decision. In that time, they are entitled to things such as safe accommodation, healthcare, legal advice and other support, but they still have to pursue the immigration route if they want to stay in the country.

My bill is part of a suite of support that is offered to victims, but it would not have any impact whatsoever on how the support is set out.

Yes, although it is the Scottish Government that allocates funding to the trafficking awareness-raising alliance project Scotland. Is that funding shown in our figures, Maren?

I will start with the point on driving practices underground, because it is quite a prevalent argument that the pro-exploitation lobby uses. What the word “underground” means is never defined. It could mean that prostitution has gone indoors where you cannot see it, or it might mean that it is more unsupervised or more unregulated—those are the definitions that I can think of. However, that is not what the data shows. Prostitution cannot really go underground, because it is an act of purchase, so the buyers and the sellers must connect with each other. Sweden’s national rapporteur on trafficking, Kajsa Wahlberg, said:

“prostitution activities are not and cannot be pushed underground. The profit of traffickers, procurers and other prostitution operators is obviously dependent on that men easily can access women … If the buyers can find the women … the police can too.”

That claim is frequently repeated, but it is not supported by the evidence at all. The most compelling example of what you are talking about is probably what we have seen in France. The claim that the law was in contravention of the human rights of those who were selling and pimping, and that more violence was created by the law, was thoroughly examined by the European Court of Human Rights, and it was rejected in June 2023 in the judgment on MA and others v France. The court stated that the applicants had not demonstrated that the contested legislative provisions had had any effect on their situation or had exposed them to increase in violence or danger. The harms that the opponents to that court case described are real. Women in prostitution are subjected to horrendous and consistent levels of abuse and violence, but those harms are inherent in prostitution and they existed in France before the law. It is not the law that causes the harms; it is prostitution.

Does that answer your question?