Section 1 — Offences relating to prostitution

Prostitution (Public Places) (Scotland) Bill: Stage 3 – in the Scottish Parliament at 2:39 pm on 28th February 2007.

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Photo of George Reid George Reid None 2:39 pm, 28th February 2007

Group 1 is on offences involving the use of a motor vehicle. Amendment 1, in the name of Fergus Ewing, is grouped with amendment 3.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

I hope that, this afternoon, we will make a welcome change to the law. At present, a prostitute can be a criminal but the man who uses the services is not. That double standard is hypocritical and wrong, and I am sure that we will vote to end it later this afternoon.

In the evidence that the Local Government and Transport Committee received at stage 1, the most compelling was from ladies who live in a community in Glasgow where, at all hours of the day, they are subjected to kerb-crawlers driving round their area seeking to purchase sex. The evidence of Jennifer McCarey was particularly compelling. She said:

"men—middle-class men, working-class men and upper-class men—come into our community looking for street sex. They think that that is acceptable behaviour ... Our community group says that that is unacceptable ... There is a whole layer of dangerous men who partake in that activity for their own reasons. The women and children in our community are more likely to be exposed to those dangerous men."

Jennifer McCarey then described what kerb crawling is like:

"It is a car slowly following you and creeping along beside you. Often you are the only person in the street. The car stops until you catch up, then it drives slowly beside you and stops. It is tremendously intimidating behaviour, which does not involve rolling down a window and talking to you."—[Official Report, Local Government and Transport Committee, 24 October 2006; c 4148-49.]

The purpose of the amendments is to introduce sanctions that would be an effective deterrent to the men in question. They would bring down the full force of the law on those men in order to tackle the behaviour, to reduce it and, as much as possible, to stamp it out.

The Scottish National Party believes that two particular measures should be taken. At stage 1, I raised them with many of the witnesses—members of the community, representatives of Glasgow City Council and senior representatives of the police—and almost every witness agreed. The first sanction is that a punter should face disqualification from holding a driving licence. Secondly, if a burglar's tools can be confiscated because they assist him in committing crime, I would argue that for persistent offenders—men who continually kerb crawl and abuse women in this way, often using violence—the sanction of confiscation of motor vehicle should also be applicable.

Photo of Margo MacDonald Margo MacDonald Independent

Will the member make it plain that the abuse to which he refers is not on the part of the kerb-crawler against women unconnected with selling sex? Is he confusing the prostitute with the passer-by?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

Margo MacDonald is quite wrong. If she had heard the evidence that I read out, she would know that it was from a lady who is not a prostitute but who simply lives in a certain part of Glasgow. Like the rest of the women in that community, she has to put up with that behaviour. On the committee, members from all parties took the view that that was entirely wrong, so the measures of disqualification and confiscation are appropriate.

When I raised the matters in committee, the minister stated:

"we are considering seeking an order at Westminster that would make disqualification available to the Scottish courts. We are in active dialogue with Home Office officials about that."—[Official Report, Local Government and Transport Committee, 6 February 2007; c 4546.]

That does not constitute an assurance; it simply states that the matter is under consideration. Therefore, we have not had any clear assurance from the minister that the sanction of disqualification will be available to the courts to use as they think appropriate.

If the minister can provide a categoric assurance that disqualification will be available and if he can explain when it will be available and whether the Scottish courts will have the power to disqualify from driving punters who are convicted of the offences in the bill, I will consider whether to press the amendment. However, my first point is that the minister has not given us an unequivocal assurance, which I would welcome in his response.

My second and last point is that I would like the provision of forfeiture to be used where appropriate. It would be appropriate only for a repeat offender—someone who had not learned a lesson having been convicted. I make that clear in case it was not made clear at the committee. I would welcome assurance from the minister that the sanction of forfeiture—of confiscation of a punter's car—will be available to the Scottish courts to tackle this appalling crime and to deter men from committing it.

I move amendment 1.

Photo of Margo MacDonald Margo MacDonald Independent 2:45 pm, 28th February 2007

I appreciate that it is a great invasion of the privacy and well-being of a woman who is entirely unconnected with prostitution that someone who seeks to purchase sexual services should stalk or follow her in a car, but Mr Ewing referred to the violence that the car driver perpetrates. In intervening, I wanted to make it plain that few—if any—cases of violent attacks on such women have occurred.

I appreciate—and the expert group on prostitution, of which I was a member, appreciated—why we should do whatever we can to ensure that people who are unconnected with the sale of sex on the streets should not be offended or alarmed or have nuisance caused to them by it. However, I suggest that the unforeseen consequence of these amendments, which I have no doubt are well intentioned, would be to drive prostitution further underground and therefore put at risk vulnerable women. I am sure that he does not intend that. However, if he can show that in other places where his measure has been put into effect, prostitution has reduced, I may think again.

Photo of David McLetchie David McLetchie Conservative

The Conservatives are sympathetic to amendment 1, which would increase the penalties that are attached to kerb crawling to encompass the possible loss of a driving licence, as Mr Ewing said. The Local Government and Transport Committee discussed such an amendment at stage 2, when the minister advised us that it was not competent to incorporate such a penalty in the bill, as disqualification is a matter for road traffic acts, which are reserved to Westminster. Mr Ewing knows that perfectly well, but he is never one to miss the opportunity to highlight a power that is not the Scottish Parliament's prerogative—Scottish National Party members are entitled to do that.

The minister undertook to consult the Home Office on the matter. I hope that, in the debate, he will give us further information on the progress of his discussions because, like Mr Ewing and his colleagues, the Conservatives would welcome modification of the road traffic legislation as it applies to Scotland to deal with the matter.

As for amendment 3, I understand from the minister's advice to the committee that a vehicle that is involved in kerb crawling may be the subject of forfeiture as the law stands. The amendment would require a prosecutor to give reasons for not seeking a forfeiture order in a particular case. By placing such a responsibility on prosecutors and thereby influencing their decisions, the amendment would make forfeiture the norm rather than the exception. That is unreasonable. If we believe as a matter of law that all cars that are involved in kerb crawling should be the subject of forfeiture, we should make that mandatory in law on the conviction for kerb crawling of the vehicle's owner or driver. However, if we do not make it mandatory, an application for forfeiture must remain at the discretion of the prosecutor in any case and set of circumstances. I do not believe that we should seek to fetter the discretion of prosecutors.

Photo of Margo MacDonald Margo MacDonald Independent

I agree with the legal points that the member makes. Does he agree that the unforeseen consequence of the power in amendment 1—should the Parliament decide to agree to it—could be to further endanger women, given that prostitution would be driven out of sight and out of the control of police forces?

Photo of David McLetchie David McLetchie Conservative

I just want to conclude my points on amendment 1. I do not think that we should fetter the discretion of prosecutors in the manner that Mr Ewing proposes, which is why we will be voting against the amendment.

On Mrs MacDonald's point, we are here to deal with the narrow issue of street prostitution and the nuisance that it causes in communities. We need an effective set of laws to deal with that public order problem. Given the evidence that was presented to the Local Government and Transport Committee and the many representations that Mrs MacDonald has made on the subject, I acknowledge fully that there are much wider issues to do with street prostitution.

However, I do not believe that the way to tackle street prostitution is to allow it to be conducted in a controlled environment under police supervision. To my mind, that is institutionalising the problem, rather than solving it. I would much prefer us to find other strategies for dealing with the problem of street prostitution. We should concentrate first on dealing with the public nuisance aspect, then carry out a wider programme of work directed towards trying to assist women out of prostitution generally.

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Members who did not participate in the committee proceedings might not be aware that the penalty for the offence has already been doubled from a maximum fine of £500 to a maximum fine of £1,000. I find myself agreeing with David McLetchie—which is amazing—

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

I hear calls for my resignation, but I will go on.

I agree that we are dealing with the nuisance that is caused by street prostitution. We are talking about the discretion of the prosecutor and the courts in relation to forfeiture of vehicles. The provisions in amendments 1 and 3, to which Fergus Ewing wants us to agree, would be totally out of proportion to the offence committed.

Photo of Tricia Marwick Tricia Marwick Scottish National Party

I was going to intervene, but I think that Mr Rumbles has finished.

Photo of George Reid George Reid None

Mr Rumbles has sat down. I am sorry, but you missed the bell, Ms Marwick.

Photo of George Lyon George Lyon Liberal Democrat

Amendment 1 seeks to empower courts to disqualify offenders from driving. Of course, as others have said, Mr Ewing lodged a similar amendment at stage 2. As I explained during the debate on that amendment, we support the principle of empowering courts to disqualify offenders from driving where they use a motor vehicle to engage in kerb crawling. We agree that the threat of such a sanction could have a deterrent effect on those who seek to purchase sex in public places. However, as I stated at the time, the authority for the court's power to disqualify offenders from driving comes from and forms part of the road traffic regime that is set out in the Road Traffic Act 1988 and the Road Traffic Offenders Act 1988 and, as such, is reserved to the Westminster Parliament—a point that I suspect is not lost on Mr Ewing.

Amendment 1 therefore falls outwith the legislative competence of the Scottish Parliament and, as such, we cannot support it. However, I can confirm that, following stage 2, I wrote to Baroness Scotland at the Home Office to seek her view on whether United Kingdom ministers would support an order at Westminster that would provide Scottish courts with the power to disqualify those convicted of kerb-crawling offences from driving. I do not foresee difficulties in securing their agreement to bring the powers of the Scottish courts into line with those in England and Wales.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

The minister stated that, after stage 1, which was a considerable time ago—[ Interruption. ] I meant stage 2—sorry. After stage 2, which was some time ago, he wrote to Baroness Scotland and asked whether Westminster will change the law so that disqualification can be imposed. Can he tell us what response he received from Baroness Scotland and whether she has agreed to do that?

Photo of George Lyon George Lyon Liberal Democrat

First, I clarify that it was after stage 2 that I wrote the letter. We await Baroness Scotland's response. However, I reassure the Parliament that the officials who are in discussion with Westminster believe that we will secure its support. We do not envisage that there will be a difficulty with securing agreement to bring the powers of the Scottish courts into line with the powers of the courts in England and Wales. I hope that the Parliament will accept my assurance about that.

Mr Ewing asked me to confirm that the courts, on application from the prosecutor, already have the power to seize property that has been used to facilitate the commission of an offence, including vehicles used by kerb-crawlers. I am happy to put that on the record.

Photo of George Reid George Reid None

Members should note that we are now very tight for time in group 1.

Photo of Margo MacDonald Margo MacDonald Independent

I ask the minister to state on the record exactly what the offence would entail. Would someone who was found driving slowly in a known red light area be supposed to have committed an offence, or must they make contact with a seller of sexual services? If the person is to lose their means of livelihood, it is important for us to work out exactly what they would be losing their livelihood for.

Photo of George Lyon George Lyon Liberal Democrat

The offence of loitering within a vehicle will, of course, be an offence where the evidence would lead one to infer that the person was in the area for the purposes of procuring the services of someone who was involved in prostitution.

I will deal with the second part of Margo MacDonald's intervention in my comments on amendment 3. I hope that she will listen carefully.

Amendment 3 would require the prosecutor to state their reasons for not seeking a suspended forfeiture order under section 21 of the Proceeds of Crime Act 1995 on each and every occasion on which they were entitled to do that but elected not to do so. That is the position that David McLetchie outlined in his comments.

We believe that such a provision would represent a substantial erosion and fettering of the independence and discretion of prosecutors. In no other situation is the prosecutor required by law to tell the court their reasons for a decision. It is for the prosecutor to determine—in the public interest—whether to apply for forfeiture in each case. It is the prosecutor who has the full range of information to allow them to decide whether the penalty is proportionate and, if so, whether to seek it from the court. Their decision is made independently of the court. Therefore, the Executive cannot support amendment 3.

Given the assurances that I have given the Parliament today, I ask Fergus Ewing to withdraw amendment 1.

Photo of George Reid George Reid None

We are considerably over our time limit for group 1, but I was anxious not to curtail the questioning, so I exercised my discretion under rule 9.8.4A(c) to extend the time limit.

I call Mr Ewing to wind up. You have no more than two minutes, Mr Ewing.

Photo of Fergus Ewing Fergus Ewing Scottish National Party

The purpose of these amendments is to deter men from going to prostitutes. Margo MacDonald says that the amendments would drive the problem underground, but is she really saying that we should not have effective sanctions, so that prostitution can just continue? That is an extremely odd argument, and not one that she put at stage 1, when she said:

"I agree with the analysis that if we can bring about a drop in demand, supply will drop off, too."—[Official Report, 31 October 2006; c 4184.]

How can we reduce demand if men are not sufficiently deterred by the sanctions from committing the crime in the first place?

Photo of Mike Rumbles Mike Rumbles Liberal Democrat

Does the member think that a fine of £1,000 for the offence of causing nuisance is reasonable? Is a fine of £1,000 on every occasion not a deterrent?

Photo of Fergus Ewing Fergus Ewing Scottish National Party

That fine might not be imposed. I hope that it will be a deterrent, but I do not believe that it will be an effective one, particularly for well-heeled men who drive around in Jaguars or other expensive cars—[ Interruption. ] Members think that what I have said is funny, but the witnesses who came to the committee did not think that the matter was funny. We can see that the Liberal Democrats are soft on crime and soft on the causes of crime.

In response to David McLetchie, I say that no attempt is being made to fetter the discretion of prosecutors. Agreeing to amendment 3 would simply mean that the procurator fiscal would have to make a statement in which he explained why he was not using a power. How would that fetter a prosecutor? Surely it is about time that our prosecutors gave more explanations to ensure that the public see that criminals get the sentences that they deserve. Such explanations are important.

Finally, the minister assured us that there have been discussions with officials. That is some assurance.

Photo of George Reid George Reid None

The question is, that amendment 1 be agreed to. Are we agreed?

Members:

No.

Photo of George Reid George Reid None

There will be a division. I suspend the meeting for five minutes.

Meeting suspended.

On resuming—

Division number 1

For: Adam, Brian, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Ewing, Fergus, Fabiani, Linda, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Kane, Rosie, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Robison, Shona, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Watt, Ms Maureen, Welsh, Mr Andrew
Against: Aitken, Bill, Alexander, Ms Wendy, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Brownlee, Derek, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Davidson, Mr David, Douglas-Hamilton, Lord James, Eadie, Helen, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Petrie, Dave, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Swinburne, John, Tosh, Murray, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid None

The result of the division is: For 24, Against 85, Abstentions 0.

Amendment 1 disagreed to.

Amendment 3 moved—[Fergus Ewing].

Photo of George Reid George Reid None

The question is, that amendment 3 be agreed to. Are we agreed?

Members:

No.

Division number 2

For: Adam, Brian, Crawford, Bruce, Cunningham, Roseanna, Curran, Frances, Ewing, Fergus, Fabiani, Linda, Gibson, Rob, Grahame, Christine, Hyslop, Fiona, Kane, Rosie, Lochhead, Richard, MacAskill, Mr Kenny, Marwick, Tricia, Mather, Jim, Maxwell, Mr Stewart, McFee, Mr Bruce, Morgan, Alasdair, Neil, Alex, Robison, Shona, Stevenson, Stewart, Sturgeon, Nicola, Swinney, Mr John, Watt, Ms Maureen, Welsh, Mr Andrew
Against: Aitken, Bill, Alexander, Ms Wendy, Arbuckle, Mr Andrew, Baillie, Jackie, Baird, Shiona, Baker, Richard, Ballance, Chris, Ballard, Mark, Barrie, Scott, Boyack, Sarah, Brankin, Rhona, Brown, Robert, Brownlee, Derek, Butler, Bill, Canavan, Dennis, Chisholm, Malcolm, Craigie, Cathie, Davidson, Mr David, Deacon, Susan, Douglas-Hamilton, Lord James, Eadie, Helen, Finnie, Ross, Fraser, Murdo, Gallie, Phil, Gillon, Karen, Glen, Marlyn, Godman, Trish, Gordon, Mr Charlie, Gorrie, Donald, Harper, Robin, Harvie, Patrick, Henry, Hugh, Hughes, Janis, Jackson, Dr Sylvia, Jackson, Gordon, Jamieson, Cathy, Jamieson, Margaret, Johnstone, Alex, Kerr, Mr Andy, Lamont, Johann, Livingstone, Marilyn, Lyon, George, Macdonald, Lewis, MacDonald, Margo, Macintosh, Mr Kenneth, Maclean, Kate, Macmillan, Maureen, Martin, Paul, May, Christine, McAveety, Mr Frank, McCabe, Mr Tom, McConnell, Mr Jack, McGrigor, Mr Jamie, McLetchie, David, McMahon, Michael, McNeil, Mr Duncan, McNeill, Pauline, McNulty, Des, Milne, Mrs Nanette, Mitchell, Margaret, Morrison, Mr Alasdair, Muldoon, Bristow, Mulligan, Mrs Mary, Munro, John Farquhar, Murray, Dr Elaine, Oldfather, Irene, Peacock, Peter, Petrie, Dave, Pringle, Mike, Purvis, Jeremy, Radcliffe, Nora, Robson, Euan, Rumbles, Mike, Ruskell, Mr Mark, Scott, Eleanor, Scott, Tavish, Sheridan, Tommy, Smith, Elaine, Smith, Iain, Smith, Margaret, Stephen, Nicol, Stone, Mr Jamie, Swinburne, John, Tosh, Murray, Wallace, Mr Jim, Whitefield, Karen, Wilson, Allan

Photo of George Reid George Reid None

The result of the division is: For 24, Against 87, Abstentions 0.

Amendment 3 disagreed to.