Scottish Parliament

Local Government and Transport Committee

Tuesday 6 February 2007

[THE CONVENER opened the meeting at 14:03]

Prostitution (Public Places) (Scotland) Bill: Stage 2

The Convener (Bristow Muldoon): I call to order today's meeting of the Local Government and Transport Committee and I welcome members and members of the public. I also welcome for the first agenda item—stage 2 of the Prostitution (Public Places) (Scotland) Bill—the Deputy Minister for Finance, Public Service Reform and Parliamentary Business, George Lyon MSP, and supporting officials. I expect that today we will get through all the amendments that have been lodged for stage 2, but I will judge whether we have made sufficient progress as we go along.

Section 1—Offences relating to prostitution

The Convener: Before we begin the debate on group 1, I draw to members' attention the fact that agreement to certain amendments will pre-empt others in the group. If amendment 14 were agreed to, amendments 9 and 10 would be pre-empted. If amendment 9 were agreed to, amendment 10 would be pre-empted. If amendment 19 were agreed to, amendments 12, 1, 13, 2, 3 and 4 would be pre-empted. If amendment 1 were agreed to, amendment 13 would be pre-empted. When we get to the questions on the amendments, I will remind members of those pre-emptions.

Amendment 14, in the name of Margo MacDonald, is grouped with amendments 9 to 11, 15 to 19, 12, 1, 13, 2 to 4, 20, 6, 24, 7 and 8.

Margo MacDonald (Lothians) (Ind): I will not take up the committee's time by rehearsing the arguments that we had at a previous meeting. My amendments seek to reinstate the holistic approach to coping with street prostitution that the expert group recommended in its report. I think that everyone has heard the arguments, so I am happy to leave it at that.

I move amendment 14.

The Convener: I thank you for those introductory remarks.

Michael McMahon (Hamilton North and Bellshill) (Lab): One of the strengths of Parliament is that committees are given the

opportunity, having listened to evidence, to amend bills. We consult and listen to all the arguments. We heard strong arguments from a range of people who gave evidence, particularly from communities that are affected by street prostitution.

Ann Hamilton from Glasgow City Council talked about tackling the demand for prostitution. She said:

"We feel that the men who come into areas to buy sex need to be targeted. We need powers to do that."—[Official Report, Local Government and Transport Committee, 31 October 2006; c 4173.]

Assistant Chief Constable Neilson from Strathclyde police said, in relation to the judgment of what constitutes a nuisance:

"There are many ifs and buts, but the legislation lies totally with the perception of police officers."—[Official Report, Local Government and Transport Committee, 31 October 2006; c 4201.]

He also said that something needs to be built into the bill to prevent people from stopping people in the street.

The evidence that we heard suggests that people want to see the purchasers being dealt with, but the bill as drafted does not allow that. The Association of Chief Police Officers in Scotland stated in its submission that

"Since 'kerb crawling' has been identified as a major source of discontent in communities affected by prostitution, the Bill is therefore unlikely to satisfy the needs and demands of the community."

I hope to address the issue in my amendments.

If we are to tackle demand, as Ann Hamilton and others have called for us to do, in a way that the police are comfortable with, we must ensure that the soliciting offence applies to purchasers only. We must also remove the "alarm, offence or nuisance" test and make it an offence to solicit per se, which is what amendments 9, 11 and 12 seek to do. I ask the committee to support them: the evidence that we took suggests that that is what communities, local authorities and the police want.

Fergus Ewing (Inverness East, Nairn and Lochaber) (SNP): I will speak to amendments 10 and 13, which are substantially the same amendment. They would remove the nuisance test from the bill, which I believe is correct because the bill should ensure that men who go to women for sex do not receive the preferential treatment that they currently receive in not being prosecuted. I do not believe that the requirement that the test of nuisance be proven is justified. I understand that the minister has said in his letter, which was issued just before stage 1, that the Executive is minded to do the same thing. I await with interest his arguments on his amendments to see whether we can reach common ground.

It is disgraceful that men have not been subject to criminal sanctions when women have, and it is outrageous that the violence that is perpetrated against women has led to their being prosecuted when the punters that go to them have gone scot free. Today is a chance to end that injustice. I will echo the comments that were made by Michael McMahon. The evidence that we heard at stage 1, particularly from people from the communities involved, was compelling. I share the broad sentiments that he expressed in his arguments. There is a great deal of common ground. I think that my amendments would enable the bill substantially to be improved.

In conclusion, Presiding Officer, if men were to be prosecuted for going to women for sex, that would send out the very clear message that we do not accept prostitution. We heard that message from the witnesses, especially those from Glasgow—both Glasgow City Council and Glasgow residents. I believe that prostitution is both morally wrong and the source of abuse of and violence against women since time immemorial. No one is arguing that any legislative measure can remove or stamp out prostitution—let it not be said by those who disagree with the committee members who are proposing these measures that we are suggesting that we can ever eliminate prostitution. However, our sending a clear message that such conduct will be criminalised is bound to deter many men who currently go to prostitutes from doing so in the future. If we achieve that, we will have achieved something very worth while.

The Convener: I thank Fergus Ewing for promoting me to the role of Presiding Officer. I do not know whether it is the start of a campaign by the member for me to be the next Presiding Officer, but Mr Reid still has the job.

Fergus Ewing: It must be the result of your even-handed approach, convener.

Margo MacDonald: Convener, will you guide me on the procedure that is to be followed?

The Convener: You will have a chance to respond to the debate at the end, because you moved the lead amendment.

The Deputy Minister for Finance, Public Service Reform and Parliamentary Business (George Lyon): I will speak to amendment 1 and to the other amendments in the group.

I turn first to amendments 14 to 20 and amendment 24, in the name of Margo MacDonald. Together the amendments seek to replace the existing offence of soliciting with an offence of causing actual alarm, offence or nuisance while seeking to purchase, or attempting to sell, sexual services. The amendments also seek to remove

the loitering offence with respect both to purchasers and to sellers.

As we made clear at stage 1, we intend to amend the bill so as to remove the seller from its remit and to strengthen the offences that are specifically targeted at purchasers and kerb-crawlers. To simplify enforcement and to ensure that purchasers and sellers are treated equally, we made a commitment to remove the requirement for the behaviour to be likely to cause alarm, offence or nuisance.

Amendments 14 to 20 and amendment 24 seek to go in the opposite direction. If they are agreed to, it will be necessary for witnesses to come forward to the police to give evidence that they have had alarm, offence or nuisance caused to them. Members of the public may be reluctant to come forward to the police, even when they have experienced alarm, offence or nuisance because they fear reprisals or do not wish to become involved in a court process.

Amendments 19 and 20 would remove the loitering offence from the bill. The committee heard evidence from residents groups in Calton and Leith about the disturbance, nuisance and fear that can be caused by kerb-crawlers loitering for the purpose of purchasing sex. We believe that such behaviour needs to be tackled. The Executive cannot, therefore, support the amendments in Margo MacDonald's name. If agreed to, they would considerably limit the circumstances in which the police could act and, as a consequence, they would compromise the protection that the bill will afford the wider community.

I turn to amendments 9, 11 and 12, which were lodged by Michael McMahon. Mr McMahon's amendments go part of the way towards meeting the commitments that we made at stage 1 in that they would remove sellers from the new soliciting offence and remove the reference to alarm, offence and nuisance that I mentioned earlier. To focus the new legislation solely on purchasers will send a clearer message about the unacceptability of their behaviour. Amendment 9 seeks to make soliciting an offence in itself, which would further strengthen the offence. For that reason, the Executive supports Mr McMahon's amendments.

I turn to amendments 10 and 13, in the name of Fergus Ewing. The Executive supports the general principle behind the amendments, which would duplicate the effects of amendments 1, 9, 11 and 12, in that they would remove references to alarm, offence and nuisance. However, unlike those amendments, amendments 10 and 13 do not provide for removal of the seller from the offence provisions, or for the introduction of the reasonable inference test to the loitering offence in line with the commitments that we made at stage

1. With those assurances, I ask Mr Ewing not to move amendments 10 and 13.

14:15

I turn now to the Executive amendments. The committee expressed concern about whether it would be possible to secure convictions of purchasers under the new loitering offence. In particular, there was concern about the fact that the loitering offence could not be committed by a person in a motor vehicle. Amendment 1 will strengthen the loitering offence to allow proceedings to be brought where a person is loitering in a relevant place and, in all circumstances, it is reasonable to infer that they are doing so for the purpose of obtaining the services of someone who is engaged in prostitution. Prosecutors believe that the strengthened offence will provide the basis on which prosecutions can be brought against people who kerb crawl or loiter in vehicles. As with all prosecutions, the burden of proof will lie with the Crown. However, the accused will have the opportunity to lead evidence in his defence to show that he had a legitimate purpose.

To bring the loitering offence into line with the soliciting offence, amendment 1 will also remove references to sellers and to the alarm, offence and nuisance test.

The committee also sought amendments to the bill to apply the new offences to purchasers only and to retain the existing section 46 offence under the Civic Government (Scotland) Act 1982 for sellers. Although we acknowledge the vulnerability of sellers, we consider that it would send out the wrong message to decriminalise the selling of sex in public places. It could serve to make life easier for people who seek to profit from prostitution by coercing individuals into it, as they would be able to tell those individuals that what they would be doing was not illegal. It would also compromise the protection that is provided to communities from the adverse effects that can arise from street prostitution.

Amendment 7 will ensure that the existing law relating to sellers, in the Civic Government (Scotland) Act 1982, is retained. Amendment 8 simply reflects the fact that the bill as amended will make new law regarding purchasers rather than simply amend existing law.

Amendment 4, in the name of Mike Rumbles, would remove from the loitering offence the exemption for people who loiter in vehicles that are not public transport. By ensuring that the bill can tackle people who kerb crawl or loiter in motor vehicles, it would complement the strengthened loitering offence for which amendment 1 provides. The Executive therefore supports amendment 4.

Executive amendments 2, 3 and 6 will make changes that are consequential on agreement to amendment 4. They will tidy up the definitions of public transport and remove the unnecessary distinction between hire cars and other forms of public transport.

The Executive amendments in group 1, together with the amendments that Michael McMahon and Mike Rumbles have lodged, will fulfil the commitments that we made at stage 1 to remove the seller from the remit of the offence, to remove the reference to alarm, offence or nuisance and to strengthen the kerb-crawling offence beyond the legal position in England and Wales. Taken together, the amended offences will send a strong signal to kerb-crawlers that their behaviour is unacceptable.

I hope that the committee will support the Executive amendments and those in the names of Mr McMahon and Mr Rumbles.

Mike Rumbles (West Aberdeenshire and Kincardine) (LD): Amendment 4 is the only amendment that I lodged. Having heard the evidence that we received at stage 1, I think it important that we change the bill, so I am delighted to have heard what the minister said, the thrust of which will radically change the bill.

Amendment 4 would delete sections 1(6) and 1(7). The evidence that we took at stage 1 showed that 85 per cent of people who purchase sex on the street do so from motor vehicles. Members of the committee saw evidence of that in a video that the police provided to the committee. It was clear that none of the activities that members saw in the video would have been illegal under the bill as introduced, so it was important to lodge an amendment such as amendment 4.

As the minister said, the point of the bill is to make activities such as kerb crawling criminal offences, so we cannot leave something in the bill that says that no offence is committed if a person is in a motor vehicle. Therefore, amendment 4, which is straightforward and simple, will remove sections 1(6) and 1(7) from the bill.

David McLetchie (Edinburgh Pentlands) (Con): I welcome the amendments that the Executive, Michael McMahon and Mike Rumbles have lodged and I will support them. Together, they reflect the evidence that the committee took at stage 1 and the commitments that the minister made in discussions with the committee and Parliament. The Executive is to be commended for taking on board the concerns that the committee expressed in its stage 1 report.

I appreciate that other people have alternative views on how to deal with street prostitution. However, in the last analysis, we can adjust the law, but the key issue that arose time and again in

debates was enforcement of the law—not just strict enforcement, but enforcement combined with a strategy to deal with getting women in particular out of prostitution and back into legitimate employment.

We have all acknowledged that the bill has a narrow focus. The new offences that it will create, which complement existing law, will provide a better basis for tackling street prostitution. I trust that the law will now be enforced throughout the country and that it will be coupled with other recommendations in the expert report to get women out of prostitution, which must be our long-term objective. I will support the amendments to which I referred.

Tommy Sheridan (Glasgow) (Sol): In our analysis of this and other bills, we have sometimes spoken about the importance of symbolism. We might not always think that laws will do exactly what they say they will do, but they might send out wider messages that can sometimes be just as important.

The symbolism of the amendments from the Executive and committee members is important, because we wish to move away from criminalising women towards criminalising men. We wish to move away from a burden whereby the law deals harshly with women, 95 per cent or more of whom are in a trap that is engendered mostly through drug addiction and their inability to get out of it. Yet, we have laws that are not balanced and which are unfavourable towards those vulnerable women. The amendments, together with the bill, will not deal with the wider societal problem of prostitution—there is a gap—but they will shift the balance and send the message that the men who purchase sex are the criminals, not the women who are forced through drug addiction or poverty to sell their bodies to make a living. From that point of view, the amendments deserve support.

The evidence that we heard from communities was powerful. We have a duty to act. If we did not act, we would ignore the sane, rational and reasonable voices of people whose lives are blighted by the effects of prostitution. The amendments address the voices of the people who came all the way here to ask for our assistance. I hope that, in a small way at least, the bill will help.

A big question remains—I do not know who will deal with it and whether it will be dealt with before the parliamentary session ends—about routes out of prostitution, on which David McLetchie touched. That question is key. If we are—rightly—moving the symbolism and the balance of the law against the people who purchase sex, we will have to come up with much better resources and solutions than we have now to give the women who are in that trap a way out.

You will recall the evidence that we heard, convener. The witnesses from the organisations that represent Glasgow and Edinburgh said that the situation had either worsened or got no better for the client group with which they were dealing. It is clear that what we are doing now is not enough, so we really have to up the ante. However, with respect to the symbolic nature of the amendments, it is time to criminalise the men and stop criminalising the women.

George Lyon: There are a couple of points on which I wish to reflect. Mr McLetchie raised a point about enforcement. I hope that committee members were reassured by the letters from the Association of Chief Police Officers in Scotland and the Lord Advocate on that subject. Mr McLetchie and Mr Sheridan were quite right to remind the committee that, aside from the creation of a new criminal offence and the measures to tackle kerb-crawlers—cross-party support for which is welcome—a huge issue remains concerning victims' routes out of prostitution and the need to take action to assist those who have become trapped, often by drug habits or abusive partners, and who find themselves having to sell their bodies on the streets to survive. We need to consider resources and assistance: we need to provide that opportunity and that route out for those who are trapped in such unfortunate circumstances. Mr McCabe and I are reflecting on some of the points that were made during stage 1 about the possible need to do more. I welcome the committee's support for the measures that we are presenting today in the form of amendments.

Margo MacDonald: One committee member said that the main point of the proposed legislation is to deal with the nuisance of kerb crawling. I had thought that the main point was to exercise a duty of care towards prostitutes and the general community. I might have been wrong about that.

I find it ironic that the bill discriminates against prostitutes—it discriminates against the street women. The bill would not make offences for people who work indoors—I am referring to exactly the same immorality that Fergus Ewing was talking about. As regards the support of the police for the amendments, obviously I took police advice: they advised me that my amendment 14, to section 1 at page 1, line 4, suited them. They thought that they would have adequate powers under my amendment. I might be speaking out of turn, but any committee members who imagine that by passing the bill we will reprioritise police operations might be disappointed.

Comment has been made on the evidence that has been given, and that has influenced the contents of amendments. The evidence that was given to the committee was not as full as the evidence that was heard by the expert committee

under Sandra Hood. It was also a bit dated, at least as far as the residents from Leith are concerned. Were you to interview people from that part of the town now, you would find that there is no complaint, because matters have moved on.

On whether the bill will lead to the elimination of prostitution, it has been said to the Equal Opportunities Committee and to this committee that it will be a small step. The bill is not meant to be an all-embracing measure to deal with prostitution, but it will be a small step in the right direction. What direction is that leading in if not elimination?

I will not press my amendments.

Amendment 14, by agreement, withdrawn.

Amendment 9 moved—[Michael McMahon]—and agreed to.

The Convener: As I said earlier, agreement to amendment 9 has pre-empted amendment 10. I am sorry—I should have reminded the committee of that.

Amendment 11 moved—[Michael McMahon]—and agreed to.

14:30

The Convener: That brings us to amendment 15. Margo, do you intend to move amendment 15, or do you intend not to move any more of your amendments?

Margo MacDonald: It would save the committee's time if I did not move my other amendments.

Amendments 15 to 19 not moved.

Amendment 12 moved—[Michael McMahon]—and agreed to.

Amendments 1 to 3 moved—[George Lyon]—and agreed to.

Amendment 4 moved—[Mike Rumbles]—and agreed to.

The Convener: That brings us to amendment 20, in the name of Margo MacDonald.

Margo MacDonald: May I have your guidance, convener? I thought that, as I was not a member of the committee, I could not vote on the amendments.

The Convener: You cannot. You can move your amendments, but you cannot vote on them.

Margo MacDonald: That is what I thought. I will not bother then.

Amendment 20 not moved.

The Convener: That brings us to the next group. Amendment 5, in the name of Paul Martin, is grouped with amendments 21 to 23.

Paul Martin (Glasgow Springburn) (Lab): Amendment 5 would increase the sentencing tariffs that are available to sheriffs and raise the fines for those involved in kerb-crawling activities from the current level 2 to level 3. That would effectively double the fining opportunities and sentencing tariffs that are available to sheriffs.

In similar terms to Tommy Sheridan's earlier point, the amendment is about sending out a clear message. The communities in Calton and Leith gave powerful evidence that they are unwilling to accept the kerb-crawling activities that have become part of their communities for some years now. The change would send out a powerful message that kerb-crawling activities will not be accepted.

One point that was made by a number of witnesses was about the difference in social profile of those who sell and purchase sex. It is clear that the kerb-crawlers' social and economic profile is higher than that of those who sell sex, which should be recognised in the sentencing tariffs that are available. I hope that higher fines will act as a deterrent—a level 3 fine is a genuine deterrent.

To make the amendment would be not just symbolic, but would serve as a clear message that kerb crawling will not be accepted; and it will hit the pockets of the individuals involved.

I move amendment 5.

Fergus Ewing: First, I support Paul Martin's amendment to raise the level of fines that are open to the courts. I agree with his arguments.

My amendments 21, 22 and 23 are designed to deal with the disqualification of the driving licence of a person who has been convicted of offences under the bill: usually a man seeking to solicit a woman for sex. The intention of the amendments is to ensure that the power to disqualify such a person's driving licence is open to the court, and that the court has the power to order the forfeiture of the vehicle that the person uses, is driving, owns or possesses.

I asked a number of the witnesses who gave the committee evidence at stage 1 about this issue, and it is fair to say that virtually all of them agreed that it would be a positive move if men who currently kerb-crawl and otherwise solicit women for sex were faced with the full sanction of the law so that they would know that they might lose their driving licence and, possibly, their motor vehicle.

The precise circumstances in which a court would decide it appropriate to make such orders would be up to the courts. My intention is to ensure that such powers are available to the courts and that Parliament sends a message that the courts should have those powers and, where appropriate, exercise them. If the amendments are

agreed to, the bill will be more than a very small step; it will be substantial progress. Hearing the news report about this bill and finding out that they risk losing their driving licence or car if they go to a prostitute, might give many men serious food for thought and deter them from behaving in that way, thereby reducing the demand for prostitutes.

I want to say a technical word about each of the three amendments for the benefit of the minister, and to explain their purpose. Before I go on, I should say that I understand that the Executive is sympathetic to the arguments that I have advanced today and at stage 1, so I hope that my amendments will receive a positive response.

In relation to amendment 21, I am aware of the general powers that exist under the Criminal Procedure (Scotland) Act 1995 to issue, where a person is convicted, an order for disqualification of a licence. However, it is not clear from section 248 of that act whether that power would be available for an offence that was subject to the summary procedure. This is a somewhat technical area, minister, and I have never claimed to be an expert in this area of law. If there is such a doubt, I seek to remove it so that it is clear that disqualification exists as a sentence, even though the procedure that will be adopted for prosecuting such offences will almost certainly be summary rather than solemn. If that is not necessary and the argument is not valid for technical reasons, it would not be necessary for me to move amendment 21, but the purpose of moving it at stage 2 is to explore whether the technical argument is correct.

The aim of amendment 22 is to ensure that, under the Proceeds of Crime (Scotland) Act 1995, the power of forfeiture would apply to offences committed under the bill. To put it simply, we need to be absolutely clear that a person convicted of an offence under the bill can face the forfeiture of his car. My amendment seeks to remove any doubt. Does the minister agree that doubt might open up in the light of the amendments that the committee has just agreed to, because references to a motor car have been removed by the deletion of some elements of the bill, which might alter things? I think perhaps not, but the benefit of amendment 22 is that it would make the bill say explicitly that forfeiture is a remedy. That would remove any argument that a solicitor or defence agent might make that, for technical reasons, the order of forfeiture is inappropriate, because it depends on the interpretation of the Proceeds of Crime (Scotland) Act 1995 and on whether the car was used in, or to facilitate, the commission of the offence. It could be argued that if somebody parked their car round the corner and left if for half an hour, the car was not liable to forfeiture. A man should not be able to exculpate himself from the consequences of the law simply because he left his car 30 minutes before he solicited a woman for

sex; that would be perverse. To prevent that is amendment 22's purpose.

Amendment 23 is rather different. It would put an onus on the procurator fiscal to explain to the court why he should not apply for an order for forfeiture when someone is convicted of an offence under the bill. It would therefore require the procurator fiscal to consider actively whether an order for forfeiture of the vehicle was appropriate. That would have the benefit that the courts would actively consider the powers.

One reason why I lodged amendment 23 is that I have received information that the counterpart powers in England and Wales have been used sparingly. The information that I have is not 100 per cent, so I will not repeat it, but I understand that few orders for forfeiture, if any, have been made in England. Perhaps the minister will let me know whether he has information about that. He will recall my intervention towards the end of the stage 1 debate, in reply to which he undertook to obtain further information. It would be extremely useful to the committee if he could let us know the experience in England and Wales, what information he has obtained from the Home Office about the number of disqualification orders that have been made when men have been convicted of the counterpart offences in England and what use has been made of the power to order the forfeiture of motor vehicles for those offences.

Some people argue that the sanctions of disqualification of a driving licence and forfeiture of a motor car do not impact significantly on the number of men who seek women for sex. I suggest that the truth may be that the powers have been used sparingly, if at all, and that therefore it is not possible to draw such a conclusion. Perhaps demand for prostitution is not reducing because the orders for disqualification and forfeiture have not been made, so a deterrent effect has not been perceived in England and Wales. That is why I hope that the minister agrees that it would be useful if the procurator fiscal explained to the court his thinking on whether, when a person has been convicted of an offence under the bill, an order for forfeiture should be made as a sentence.

For those reasons, I commend my amendments to the committee. I will listen with interest to the minister's arguments in response, to enable me to decide whether to press the amendments to a vote. It would be extremely helpful if the minister spoke about the amendments' technical relevance and acceptance and whether his advisers consider that technical objections to the amendments exist. That would be extremely useful for the purpose of considering whether to lodge similar amendments at stage 3.

14:45

Mike Rumbles: I do not agree with the arguments that Paul Martin and Fergus Ewing advanced. I also do not agree with Fergus Ewing's amendments 21 to 23 because of their provisions on the forfeiture of vehicles. It seems to me that there is a bidding war between Fergus and Paul as to who can appear tougher. I certainly do not agree that Paul Martin's amendment 5 will create a genuine deterrent, but I am not opposed to it and will vote for it on the basis that it will not make a ha'p'orth of difference whether the fine is £500 or £1,000. However, I will vote against amendments 21 to 23 because they go far too far and it is inappropriate to go down that route.

The Convener: Do any other members wish to speak at this point?

Tommy Sheridan: I find myself quite divided on the issue. On one hand, I would be reluctant for the penalty to be so severe that someone who commits the offence cannot afford to pay. We know that that will not be so in many cases but, sometimes, that may be the case. In those circumstances, a jail sentence would be the alternative, which would not be helpful to society as a whole or the individual concerned. There should be an offence and there should be a serious sanction, but the question is just how serious the sanction should be.

That is why, uncharacteristically, I do not disagree with Fergus Ewing, even though he and I do not always see eye to eye politically. The loss of a vehicle or a licence is not the loss of liberty, but it may mean the loss of employment because the individual might rely on their licence or vehicle to make a living. Therefore, it is a very serious sanction. However, in light of the points that were made earlier in connection with the first group of amendments, the question is whether that serious sanction is required to get a message across as quickly as possible or achieve the shift that the Parliament is trying to secure in the attitude to prostitution.

I would like to hear other arguments. I noticed that not many members put their hands up when the convener asked for other contributions to the debate, but I hope that there will be others, because I am genuinely open to persuasion. I do not want people to end up in jail, because jail should be for people who are a threat to society, but we need a strong sanction. Why introduce new laws if they will only be ignored?

The point that Margo MacDonald made on the equalisation of the treatment of prostitutes was important enough for the minister to address. No one in the committee wants there to be a situation in which we discriminate against women who are involved in street prostitution but we tell men that it

is okay to go somewhere else and purchase sex. We must be clear that we are talking about the purchasing of sex across the board, not only in the street. Will the minister comment on whether what Margo MacDonald said has merit?

The Convener: I do not want the minister to respond to that last point in this debate because Margo MacDonald was winding up in response to the previous debate and the minister did not have an opportunity to respond at that stage. We are now debating a separate issue, but I am sure that the issue that you raise will be adequately debated at stage 3, when Margo MacDonald will, I am sure, make her arguments and the minister will respond with whatever arguments he wishes.

Ms Maureen Watt (North East Scotland) (SNP): Tommy Sheridan's point is important. Because its focus is narrow, the bill will probably just shift the problem, but I still think that it will be one small step in the right direction. Actually, it will be more than that, because the Parliament will send out the message that we regard violence against women as wrong. Indeed, I hope that the message will go out that we are against all violence; we live in a fairly violent society and we have to try to turn that around. This bill will be a start in the process.

We have to ask how serious we are about sending out a clear message. The sanctions that we impose on purchasers will be one way of sending such a message. We have all seen the statistics on the number of women who are prosecuted for soliciting and who end up in jail for non-payment of fines, and we all know the horrendous problems that that can lead to—for example, their children having to go into care. The sanctions on purchasers must be severe; it must be clear that we mean what we say. I would like to hear more from the minister about those sanctions.

Margo MacDonald: Perhaps the minister or committee members can put me right. The bill seeks to make it a crime to purchase sexual services.

David McLetchie: In the street.

Margo MacDonald: In the street. Does purchasing involve only money, or could it involve barter or another reward in place of money? If you say that it is illegal to purchase sex, you have to define what you mean by "purchase".

Michael McMahon: I was not going to come in on this particular debate, but I want to comment on Margo's point. The mechanism by which a man purchases sex from a woman does not matter. I do not think that the bill aims to address whether a sexual favour is purchased by the handing over of beads, or drugs, or whatever. Paul Martin's amendment 5 and Fergus Ewing's amendments

21, 22 and 23 are about punishing the purchasers. We are saying that we believe that it is not acceptable for men to purchase sex; the means that they might use are immaterial.

The committee must send a signal that it is unacceptable for a man to create a situation in which a woman sells her body. That view is based on evidence that committee members have heard from communities and on evidence that individual members have heard from people who are concerned about these issues.

As Tommy Sheridan said earlier, sometimes a message is just symbolic, sometimes it is just a signal that we think something is wrong. If we do nothing else, we should support Paul Martin's amendment 5, because it will send out that signal. I am not quite convinced by Fergus Ewing's amendments, because I do not think that the evidence suggested that putting those provisions in the bill would be the only way of dealing with the issue. Other laws allow motor vehicles to be confiscated. However, we should at least support Paul Martin's amendment 5, because we want a man who purchases sex from a woman to be punished more than we want the woman to be punished. That is an important signal to send out.

The Convener: I certainly agree that Paul Martin's amendment 5 deserves support. The committee was clear—by a substantial margin—that it believed that the punishment for a purchaser should be higher than that originally proposed in the bill. Moving the fine from level 2 to level 3 would be the minimum response to the recommendation in the committee's stage 1 report.

I will listen closely to the minister's response to Fergus Ewing's amendments 21, 22 and 23. We will find out in due course, but I understand that the minister might well argue that the amendments' provisions are not needed in the bill, because sanctions relating to the seizure of a vehicle used in the commission of an offence might well be covered in existing legislation. If the courts used such a sanction, I would expect that they would not necessarily use it for a first offence, but that they might consider using it to deal with a repeat offender. I look forward to hearing what the minister has to say about Mr Ewing's amendments.

George Lyon: As you will be aware, at stage 1 the committee expressed a number of reservations about the penalties for the offences in the bill. The amendments in group 2 all deal with that issue. Restricting the scope of the offence provisions to purchasers will allow us to introduce tougher penalties for purchasers.

I will deal first with Paul Martin's amendment 5, which seeks to increase the maximum penalty

available to the court to a fine that does not exceed level 3 on the standard scale, which is currently £1,000. Amendment 5 will strengthen the penalties available to the courts and the Executive supports it.

Fergus Ewing's amendment 21 seeks to empower courts to disqualify offenders from driving. As we said during the stage 1 debate, we are supportive of the principle of empowering courts to disqualify from driving offenders who 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 we also said during the stage 1 debate, the authority for the courts' 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. As amendment 21 falls outwith the legislative competence of the Scottish Parliament, we cannot support it for that reason alone. I have indicated that 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.

Mr Ewing asked for information about the situation in England and Wales, and I can confirm that the Home Office has advised that it collects figures on persons who are disqualified from driving as a result of having been convicted of kerb crawling. It was notified of 36 such cases in 2004-05. I hope that the committee will accept our assurances that our discussions with the Home Office will continue and that we intend to make progress on the issue.

The intention of amendment 22 is to make it clear that the forfeiture powers in section 21 of the Proceeds of Crime (Scotland) Act 1995 would apply to vehicles used by kerb-crawlers. As we are content that there is no doubt about that, amendment 22 would merely restate the existing law. Indeed, including such a provision could run the risk of unintentionally implying that, when such explicit provision is absent from other acts in the future, it should be assumed that the forfeiture powers in section 21 of the 1995 act do not apply. For that reason, I ask Fergus Ewing not to move amendment 22.

If accepted, amendment 23 would require a prosecutor to state his or her reasons for not seeking a forfeiture order under section 21 of the 1995 act on each and every occasion on which he or she was entitled to do so, but elected not to. We believe that such a provision would represent a substantial erosion of the independence and discretion of prosecutors. There is no other situation in which the prosecutor is required by law

to state their reasons for a decision to the court. In each case, it is for the prosecutor to determine whether it would be in the public interest to apply for forfeiture. Indeed, prosecutors may use the public interest test based on the evidence and information available to them to decide whether, under the powers of the Proceeds of Crime (Scotland) Act 1995, they can apply to the courts for the seizure of the vehicle. Such powers are already available to public prosecutors. Such a decision is taken independently of the court. The Executive cannot, therefore, support Mr Ewing's amendment.

Convener, can you clarify whether I should address amendment 25, or whether it was not accepted for debate? Should I just wind up?

15:00

The Convener: We have only 24 amendments today, minister, so I do not know which one you refer to.

George Lyon: My officials and I were unsure whether amendment 25 was to be discussed or not.

Margo MacDonald: Amendment 25 is my manuscript amendment.

George Lyon: I take it that that amendment was not accepted for debate.

The Convener: That is correct, minister. Sorry, I was a bit confused. An amendment was lodged after the deadline, so I decided not to accept it. Is that the amendment to which you refer?

George Lyon: It is. So that is not for discussion and I do not need to tell the committee that the Executive cannot support it.

In conclusion, therefore, I ask the committee to support Mr Martin's amendment 5, which will increase the maximum fine to one not exceeding level 3 on the standard scale. I reassure the committee that my officials have been in discussion with Home Office colleagues about seeking an order at Westminster to empower Scottish courts to impose driver disqualification on those convicted of kerb crawling.

Following my clarification in relation to Fergus Ewing's amendments 21, 22 and 23, I ask him not to move them.

The Convener: I will allow Mr Ewing one brief, clarificatory question to the minister, which might lead to his not moving one of his amendments.

Fergus Ewing: Thank you, convener. In relation to amendment 21, which seeks to empower the courts to disqualify from driving punters convicted of the offence of soliciting from a car, the minister indicated that there has been dialogue with the

Home Office and offers that as an assurance. I am not 100 per cent confident in the competence of the Home Office and I note that I am not alone.

Will the minister say whether he is able to provide an answer from the Home Office as to whether it will allow us to pass a law that would confer on the courts the sanction of disqualification? When does he expect to get that response? It is not a particularly difficult question since we understand that such powers exist in England.

If the minister can assure me that he will get a substantive response from the Home Office in advance of stage 3, it would provide me with the assurance that I need not to move the amendment. However, if he is unable to give that assurance, I would prefer to seek a vote on it today.

George Lyon: Far be it from me to speak on behalf of the Home Office—

Mike Rumbles: Careful!

George Lyon: What I can say is that we have been in discussions with officials at the Home Office and they have been positive in terms of our intentions to progress the issue. I hope that with that assurance—I will be able to provide further assurance at stage 3—the committee will accept that it is our intention to progress the matter as it has asked us to, and I hope to be in a position to announce good progress.

David McLetchie: I have a question of clarification for the convener. In his analysis of Mr Ewing's amendments, the minister suggested that amendment 21 was incompetent under the Scotland Act 1998, given the division of powers and responsibilities between us and Westminster. Is it competent for members to lodge incompetent amendments for decision?

It is Mr Lyon's view that the amendment is incompetent. He is entitled to draw a conclusion, but sometimes there are narrow points of interpretation. I have always assumed that before any amendment came to the Parliament at any stage, it had gone through a sifting process by the parliamentary authorities to determine its competence. I assumed that competence was not a matter for political debate in a committee, but a matter for determination before an amendment came to a committee. Am I wrong?

The Convener: As I understand it, David McLetchie is right to suggest that whether a proposal is within the terms of the Scotland Act 1998 can be arguable. I think that the Parliament can pass a bill that does not meet the tests that are set out in that act, but any such bill would then go to the law officers who advise the Government on whether bills can be given royal assent.

Obviously, if the law officers who advise the United Kingdom Government believed that a bill that the Scottish Parliament had passed went outwith the bounds of the Scotland Act 1998, the bill could be challenged and would be unlikely to receive royal assent. Therefore, it is not incompetent for members of the Scottish Parliament to move an amendment of that nature, but any bill that was amended in that way and then passed by the Parliament might not be given royal assent. That is my understanding of the situation.

Tommy Sheridan: Convener, I seek further clarification on that point—

The Convener: I thought that I was pretty clear.

Tommy Sheridan: It should also be made clear that the Westminster Parliament can decide to accept such a measure even if it goes outwith the terms of the Scotland Act.

The Convener: I believe that that is the case, but I am not a constitutional lawyer. I have certainly been advised that it is not incompetent for a member to move such an amendment.

Tommy Sheridan: The reason that I make that point is that I have recently had the benefit of some legal advice on legislation on air-guns. The advice that I received was that Westminster could accept such a bill that had been passed by the Parliament.

The Convener: I ask Paul Martin to wind up and respond to the debate.

Paul Martin: Let me deal with the points that Mike Rumbles and Tommy Sheridan raised.

Mike Rumbles made the flippant point that it would make no difference whether the fine was £500 or £1,000. I do not know what sort of background he comes from, but I can assure him that, where I come from, £1,000 is a lot of money.

Mike Rumbles: So is £500.

Paul Martin: Yes, £500 is a lot of money as well. However, the message that we will send by doubling the maximum fine available will be a deterrent. I point out that the tariff will be increased so that the fine can go up to level 3. That will still allow the courts discretion so that—this responds to Tommy Sheridan's point—they can take into account ability to pay. However, I will come back to that.

The evidence that we received from Calton for All highlighted that there is a cost—members have talked about costs but not this cost—to the Calton community as a result of the kerb-crawling activity that residents have had to put up with for several years now. We heard powerful evidence about how mothers and children have seen their community taken over by people involved in this unacceptable antisocial behaviour. That has been

a cost to a community that already faces a number of economic challenges, where people are involved in the fight-back in respect of regenerating the Calton area. There is a significant cost to the community as a result of kerb-crawling activities.

I believe that we sometimes need to stand up and be counted even though some individuals might experience difficulties in paying such a fine. Some people might even see it as a badge of honour if they end up in prison as a result of not being able to pay a fine. I would like the Executive to consider how we can prevent that, as I have every sympathy for those who might genuinely find it difficult to pay.

However, the balance that we need to strike is that, if those individuals were not involved in kerb-crawling activities in the first place, they would not cause the antisocial behaviour that communities such as Calton have had to put up with for several years now. I take on board the point that Tommy Sheridan made. Yes, there will be individuals who might experience difficulties. However, for the majority of offenders, the higher fine level will be a deterrent. Communities such as Calton will be able to live in peace and harmony if we send out a powerful message that we find such activities unacceptable.

Amendment 5 agreed to.

Amendment 21 moved—[Fergus Ewing].

The Convener: The question is, that amendment 21 be agreed to. Are we agreed?

Members: No.

The Convener: There will be a division.

FOR

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Watt, Ms Maureen (North East Scotland) (SNP)

AGAINST

Jackson, Dr Sylvia (Stirling) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)

ABSTENTIONS

Sheridan, Tommy (Glasgow) (Sol)

The Convener: The result of the division is: For 2, Against 6, Abstentions 1.

Amendment 21 disagreed to.

Amendments 22 and 23 not moved.

Amendment 6 moved—[George Lyon]—and agreed to.

Section 1, as amended, agreed to.

Section 2—Arrest for offences under section 1

Amendment 24 moved—[Margo MacDonald].

The Convener: The question is, that amendment 24 be agreed to. Are we agreed?

Members: No.

AGAINST

Ewing, Fergus (Inverness East, Nairn and Lochaber) (SNP)
Jackson, Dr Sylvia (Stirling) (Lab)
Martin, Paul (Glasgow Springburn) (Lab)
McLetchie, David (Edinburgh Pentlands) (Con)
McMahon, Michael (Hamilton North and Bellshill) (Lab)
Muldoon, Bristow (Livingston) (Lab)
Rumbles, Mike (West Aberdeenshire and Kincardine) (LD)
Watt, Ms Maureen (North East Scotland) (SNP)

ABSTENTIONS

Sheridan, Tommy (Glasgow) (Sol)

The Convener: The result of the division is: For 0, Against 8, Abstentions 1.

Amendment 24 disagreed to.

Section 2 agreed to.

Section 3—Repeal of section 46 of Civic Government (Scotland) Act 1982

Amendment 7 moved—[George Lyon]—and agreed to.

Section 4 agreed to.

Long Title

Amendment 8 moved—[George Lyon]—and agreed to.

Long title, as amended, agreed to.

The Convener: That ends stage 2 consideration of the bill. I thank the minister and his team of officials for their attendance at the committee this afternoon.

Subordinate Legislation

Argyll and Bute Council (Pilotage Powers) Order 2007 (SSI 2007/3)

15:13

The Convener: The Minister for Transport, who will give evidence to the committee under agenda item 2, is still on his way to the committee. I believe that he is in the building, so he should be with us shortly.

I propose that we take agenda item 3, which is two items of subordinate legislation, while we are waiting for the minister to appear.

No members have raised any points on the Argyll and Bute Council (Pilotage Powers) Order 2007 (SSI 2007/3). The Subordinate Legislation Committee has not drawn the order to our attention and no motion to annul has been moved. Can we agree that we have nothing to report?

Members indicated agreement.

Road Works (Inspection Fees) (Scotland) Amendment Regulations 2007 (SSI 2007/4)

The Convener: The same applies to these regulations. Can we agree that we have nothing to report?

Members indicated agreement.

The Convener: I will suspend the meeting for about five minutes, until the minister and his team arrive.

15:13

Meeting suspended.

15:16

On resuming—

Public Appointments and Public Bodies etc (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2007

The Convener: For the final agenda item, we have been joined by the Minister for Transport, Tavish Scott, and his Scottish Executive officials. David Todd is assistant policy manager in the ferries division, Alan McPherson is branch head in the ferries division, Graham McGlashan is a principal legal officer in the solicitors division, and David Hart is head of the ferries division.

The order is subject to the affirmative procedure, which means that the Parliament must approve it before it comes into force. Normal practice is for me to allow the minister to introduce the order and

comment on its effect. After that, I will give members an opportunity to ask questions. At that point, the officials may respond on behalf of the minister if the minister so chooses. We will then move on to the formal debate.

The Minister for Transport (Tavish Scott): The order gives effect to the restructuring of Caledonian MacBrayne Ltd, which was restructured on 1 October 2006 into an operating company named CalMac Ferries Ltd and a vessel and infrastructure owning company named Caledonian Maritime Assets Ltd.

CalMac Ferries Ltd now operates the Clyde and Hebrides ferry services that were previously operated by Caledonian MacBrayne Ltd and has been invited to bid for the contract to operate those services. Caledonian Maritime Assets Ltd leases vessels and harbours to CalMac Ferries Ltd and, in due course, will lease them to the operator that is appointed following the tendering process.

The main purpose of the order is to ensure that, following the restructuring, public appointments to both successor companies are regulated under the established public appointments procedures. To ensure that appointments to David MacBrayne Ltd—the parent company of CalMac Ferries Ltd—and Caledonian Maritime Assets Ltd are within the scope of the public appointment rules, we need to add them by order to schedule 2 to the Public Appointments and Public Bodies etc (Scotland) Act 2003. That will bring them within the remit of the commissioner for public appointments in Scotland. The order removes Caledonian MacBrayne Ltd from schedule 2 to the 2003 act, given that the company with that name is now a dormant subsidiary of Caledonian Maritime Assets Ltd.

The Convener: Do members have any questions for the minister or his officials? They should be questions rather than points of debate, which can be made later, if necessary.

Tommy Sheridan: Is there a current price tag on the restructuring exercise? What is the overall cost?

Tavish Scott: As I have said on numerous occasions, the process will indeed cost taxpayers' money. We do not know at this stage how much it will be, but there will certainly be a bill to you and me as taxpayers.

Tommy Sheridan: Can you give us any detail about when we will know how much that bill will be?

Tavish Scott: No.

The Convener: The draft order is a technical instrument that ensures that both successor organisations come under the Public

Appointments and Public Bodies etc (Scotland) Act 2003. That is separate from the broader debate about the tendering of Caledonian MacBrayne ferries, which is obviously a matter of considerable debate on which many people hold strong views. That, however, is a broader issue than the scope of the technical matter before us now.

Tommy Sheridan: I have to say in my own defence that I thought it was reasonable to ask about the cost. I was not trying to be difficult.

The Convener: Okay.

Tavish Scott: And I gave him an answer.

Michael McMahon: There is something that I think we must pose as a technical question. Paragraph 5 of the Executive note says:

"The instrument has no financial effects on the Scottish Executive and local government."

Does that relate specifically to the draft order, rather than to the overall cost of restructuring and so on? Can I confirm that the order is a specific instrument that itself has no financial consequences?

Tavish Scott: That is correct.

David McLetchie: What are the ownership characteristics of a nationalised body that is required to be included in the list under schedule 2 to the 2003 act? Is a nationalised body one whose shares are wholly owned by the Scottish Executive or the Government? Would a body be a nationalised body if its shares were owned by local authorities? How does the definition of "Nationalised bodies" bring Caledonian Maritime Assets and David MacBrayne under the ambit of the 2003 act?

Tavish Scott: My understanding is that Mr McLetchie's first observation is correct: it is that the body is owned by the Scottish ministers. Exactly the same procedure applies to Highlands and Islands Airports Ltd, and all appointments to its board are subject to the same scrutiny, through the same legislation that the committee is considering today.

Ms Watt: The Executive note mentions that the matter has been discussed with the commissioner for public appointments in Scotland. Will the two bodies have different sets of board members?

Tavish Scott: Yes.

Ms Watt: With no overlap?

Tavish Scott: Correct.

The Convener: There are no more questions, so we proceed to the debate. I invite the minister to move the motion in his name. You may make a further contribution at this stage, minister. Even if

you choose not to exercise that right, you may still wind up following any contributions made by other members.

Motion moved,

That the Local Government and Transport Committee recommends that the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2007 be approved.—[Tavish Scott.]

David McLetchie: I think that the restructuring of Caledonian MacBrayne and the separation of asset ownership from the management and running of services is entirely correct and is a step in the right direction, which might lead to a more equitable management of tendering processes in the future. However, that is a debate for another occasion. I understand that it is that separation that gave rise to the requirement to have two companies, with separate directors, listed in schedule 2 to the Public Appointments and Public Bodies etc (Scotland) Act 2003.

I welcome the minister's answer to my question about the nature of a nationalised body. Given the new policy that is apparently pending, I look forward to the minister being in a position in the next session to present a Scottish statutory instrument to this committee or its successor to delete other organisations from the list of nationalised bodies in the schedule. That would be an entirely welcome process.

The Convener: Mr McLetchie is being a bit mischievous. We are not being asked to consider whether we are in favour of the tendering process in relation to Caledonian MacBrayne services: the order is about whether the two bodies that are being created as a result of the process that the European Union has required the Executive to follow are within the ambit of the Public Appointments and Public Bodies etc (Scotland) Act 2003. If the two bodies were not within the ambit of the act, the level of transparency and accountability around the appointment of people to them would be lower than it is around the appointment of people to other public bodies. If the Executive had not introduced the order it would have been criticised for watering down transparency and accountability in relation to the 2003 act. Irrespective of committee members' various views on the costs of tendering and whether it is right in principle to go down that route, it is appropriate for us to approve the order, which will ensure accountability and transparency around appointments to these public bodies.

Tommy Sheridan: It is right to approve the order, because it is a technical order. In the course of doing so, it is also right to highlight the deeply wasteful process that the European Union has forced us to endure. I have made clear my view, as have many other members, that the Executive was wrong to accept the advice that it received,

because there was contrary advice that would have allowed it to refuse to tender for Caledonian MacBrayne services. There is a lot of insecurity among the workforce, not only about jobs but about conditions of employment, many of which have been developed over decades. The taxpayer will bear the costs, but that is money that would be better invested in expansion and improvement of the service. The convener is right to say that the measure is technical and should be approved, to try to retain some form of transparency. However, by the same token, we have continually to point out that we have entered into a wasteful exercise and that the Executive was wrong not to stand up to Europe.

Tavish Scott: I agree with Mr Sheridan that the process has been wasteful. I share that concern. Believe me, I have a few views on this myself, and there will come a moment when I will be allowed to express them. The European Union does not have a consistent transport policy. Let me be clear that it made us tender—would that I had been able to say no—in relation to lifeline ferry services in the Clyde and Hebrides, but it does not say that Paris metro services have to be tendered. There is an enormous disconnect in European transport policy as laid down by the French transport commissioner. I have deep concerns about the entire process.

I am grateful that members have acknowledged that the order is purely technical, but it is clear that our objective must be to ensure that the islanders who these ferries serve are protected, that the workforce is given comfort and that there is no disruption to services.

The Convener: The question is, that motion S2M-5493, in the name of Tavish Scott, be agreed to. Are we agreed?

Mike Rumbles: Oui.

The Convener: You continental, you.

Motion agreed to.

That the Local Government and Transport Committee recommends that the Public Appointments and Public Bodies etc. (Scotland) Act 2003 (Amendment of Specified Authorities) Order 2007 be approved.

The Convener: I thank all members, the minister and his officials for their attendance.

Meeting closed at 15:29.