Seòmar agus comataidhean

It is wrong, and it is not just me who says that. The committee had a criminologist—a professor with 30 years’ experience—in here who told you that that is wrong and that there is no evidence to back up that claim.

If the bill is passed into law and the offence is created, we want the legislation to work. As I said in answer to an earlier question, we have seen from other jurisdictions—particularly Northern Ireland and Ireland— that such legislation has some effect even when not enforced. That is because a lot of people do not want to break the law. If you tell people that they must wear a seat belt or that they cannot smoke indoors, most people will obey that and it will have an immediate effect, even without enforcement.

It is important that we have laws that are enforceable. That is why I have spent extra time checking the bill and the way that it has been drafted. We have not come on to this, but something that came up in relation to the definition of the “sexual act”. I would be happy to speak to the committee about that.

It appears that enforcement is an iterative process and that is certainly what we saw in Sweden, which has changed the way that it polices this area. As a result, Sweden has more convictions. When Sweden was using the surveillance model, it was getting something like 200 proceedings a year. In 2024—the year for which we have the most recent data that we have—Sweden moved to what we would understand as more of a welfare model and it is now getting 500 proceedings a year.

I know that the committee understands that all contexts are different but justice partners have assured me that the proposed legislation is enforceable. If we in Scotland are taking it seriously and if we think that it is violence against women, we will need to enforce the legislation robustly. I imagine that we would go on an iterative journey, as we are doing with other types of offending. The Lord Advocate has obviously made some changes in respect of other types of sexual offences, so it might end up being something like that.

There is rather a lot in that question. I counted about four different things and will take them in turn, starting with the final point.

I have not spoken to the Government since last week, although I have had several meetings with the minister and her team while I have been developing the bill. The most recent of those meetings was some months ago. I attempted to get a meeting with the special adviser about two weeks ago, but that meeting did not take place. I imagine that the Government will watch this evidence session, and I think that it would be appropriate for me to meet the Government again soon after today’s meeting.

As I had an opportunity to say last week, I want the bill to work. It is important that we put it into law for the reasons that I am sure we will speak about. I think that some of the issues that the Government has raised are reasonable—quashing is the obvious example.

The policy intent behind quashing past convictions is that many women and girls who are groomed into prostitution and end up with criminal convictions find it very difficult to move on with their lives. Over the years, I have spoken to a number of women who have found that to be a real barrier to moving on with their lives in the way that they want to. They feel as if their convictions hang over them, and they have had to disclose them, for example for employment or housing purposes.

The committee will understand that there have been changes to the disclosure rules in Scotland, and that the situation is not as it used to be. The minister touched on that last week. Such a conviction will now remain on someone’s record for only a year and, after that, will not be disclosable for level 1 or level 2 checks. However, the principle remains that someone can be criminalised for their own exploitation, so there is a symbolic element here.

The policy intent behind the quashing of past convictions and the repealing of offences is to send a message, and it is one that has been echoed elsewhere. I do not know whether committee members have had the opportunity to read the report from the Casey review, which came out a couple of months ago. That is the review that was ordered by the United Kingdom Government and by Prime Minister Starmer into grooming gangs. There were only 12 or 13 recommendations, one of which very clearly said that girls who had been groomed into prostitution should not be criminalised for their own exploitation. That is an important principle.

The original policy intent was to have automatic quashing, which I felt would send out the right message. It also seemed to be the simplest way to do it: it would be automatic and would apply across the board.

However, I have very much taken on board the evidence raised at stage 1. Maren Schroeder and I have had a number of meetings with the Law Society of Scotland and others to discuss the issue. I intend to lodge amendments at stage 2 to put into practice something that will fulfil the same policy intent but will do so in a more appropriate way, and that is to move to having an automatic pardon. That would have the effect of saying to people that they should not have been criminalised for their own abuse.

There would also be a voluntary disregard process, which has appeared in other pieces of legislation. I am sure members are aware of that process, which is familiar to our justice partners, such as the Scottish Courts and Tribunals Service, who already amend people’s records.

The approach also respects the idea of being trauma-informed. We do not want to be sending letters out to people who may have had a conviction 40 years ago. That would not be good practice. I think that the new approach will achieve all the policy objectives that we set out to achieve, but does so in a way that respects the law. It certainly picks up on points made by the Government, by Liam Kerr at a previous committee meeting and by the Law Society.

That deals with those two points. Do you want me to move on to enforcement?

I took note of the fact that Police Scotland raised that in its evidence a few weeks ago. Under the bill, the offence is complete at the point of agreement to pay; the sex act does not have to take place. Obviously, that is intentional. There is also the reasonable inference test.

I know that committee members are interested in the Irish experience, so I note that the bill is drafted very differently from the Irish legislation. The offence is designed to focus on the buyer’s demand behaviour, so it does not require the act to have taken place before the police can intervene.

I was cognisant of evidence that came forward during scrutiny of the bill, and I requested a meeting with the Lord Advocate to discuss this very point, because I wanted to be clear about whether the drafting of the bill was appropriate. In the meeting with the Lord Advocate, she confirmed to me that there is nothing wrong with the drafting of section 1 of the bill and that, as far as she is concerned, the way in which it is drafted means that it is enforceable.

I would say that the trafficking legislation that we have is good. In the conversations that I have had with the police, I have heard that it can be difficult to gather evidence in those cases, but they do it and we have seen some high-profile convictions because of that. I am sure that members will be familiar with the one in Dundee that happened not that long ago. The investigations are very painstaking and involved, and I am sure that it is a good thing to have trafficking legislation and to catch and convict traffickers.

What I am suggesting, however, is that we want our country to have a legislative framework that shrinks demand. The smaller the prostitution market is, the less profitable it is for traffickers. Countries that have lax prostitution laws, such as the Netherlands, Germany and New Zealand, have higher trafficking inflows. That is demonstrated in the evidence, and I can send that evidence to the committee. Countries that have adopted the equality model have lower inflows of trafficking.

Trafficking legislation is good if you want to convict your traffickers, but if we want less trafficking—and I suggest that the Parliament does want to see less sex trafficking of women and children—we will need to reduce the market for prostitution and to make it as difficult as possible for traffickers. What makes it difficult for traffickers is not so much that they fear arrest—they just see that as a possibility in any jurisdiction. They want to know how much money they can make and how fast they can make it. The more buyers that there are, the more money they can make.

We have extensively covered the claims about the bill making prostitution more unsafe, and we have covered screening. There is agreement on three parts of the bill—the majority of the bill. If you are involved in prostitution, the bill will be very beneficial, because you will be decriminalised, any convictions that you have will be removed from your record and you will be able to access support services—

The bill will shrink the prostitution market, but it does not make any judgment on whether any individual woman should want to stay in prostitution—that is obviously a decision for them and them alone to make. I am suggesting that we legislate based on the majority of women who are in prostitution.

In jurisdictions that have adopted the proposed model, the relationship between the women who are in prostitution and the police improves. I think that those women feel that they are able to engage with the police and report things that have happened to them. As the committee probably understands, there are an awful lot of unreported rapes and assaults against women who are involved in the sex trade. It will be very important for those women to feel that they are able to go to the police to report that. I genuinely hope that, if we change the law in this way, all the women who are involved in the sex trade in Scotland will feel that all parts of the proposed law are beneficial to them.

I know that Mr Hepburn will understand that because this is primary legislation, it sets the duty on Scottish ministers. Then, it is up to them, as they are obviously the appropriate people to place duties on other parts of the public sector to set staffing levels, decide how that might work and then set out a delivery and implementation plan to the Parliament. I will lodge an amendment that would provide for the Government having to do so within three months of royal assent—I invite members to think about whether they might want to do the same. It would be an affirmative procedure, so it would give Parliament an opportunity to scrutinise those plans.

I can talk to you about what good practice would be in relation to how we support people in prostitution. The costs are all set out in the financial memorandum, and the evidence that the committee has taken has shown that front-line services and other jurisdictions coalesce around that figure, which is roughly around about £1 million a year for support services, which I believe is a moderate amount for what we are talking about.

If I get an opportunity, I would like to talk to the committee about the costs to society of prostitution, which are very stark. We are often being asked in Parliament to observe the Christie principles and to bring the idea of preventative spending as much as we can into the decisions that we make here. I believe that this is one of those areas in which we should do that—I can support that with evidence, which, if I do not get a chance to put on the record now, I will follow up on in writing. I do not have the studies in front of me, but a number of them have looked specifically at that area. One of them—Maren Schroeder will correct me if I am wrong—was a Scottish piece of research that said that for every pound that you might invest in prostitution support services would deliver back between just under £6 and £6.80. That shows that this is a spend-to-save model.

The Government has admitted in various reviews that there is a fragmented picture of support. If you are in Glasgow, you will be very well served because you have access to Routes Out, which is an excellent service that does extremely good work there. However, that is funded by Glasgow City Council.

The Government is putting a bit of money into commercial sexual exploitation at the moment, but it is only resulting in, we think, somewhere between three and four posts across the whole of Scotland. As you can see, at the moment, very little support is available to those who are in prostitution.

I think that it was Diane Martin, when she came to the committee earlier this year, who talked about the need for linked-up casework, so that you can follow women over time, because you are right, Mr Hepburn, that what we know about working with women in prostitution is that it can take a very long time. Services might have to engage with women for a very long time before they are ready and able to leave prostitution. They might come into services, disappear for a while, and then come back.

I want to put on the record that there is no intention with any of this that anyone who is engaging with those services should have to say that they will exit—that should be a principle, and I intend to lodge an amendment to bring it into effect. No support services should be conditional in that way.

They might.

Those women might well decide to give evidence. If a punter commits an assault against them, they might want to report that to the police, as I believe they should. They should feel able to do that, and they should feel that the police will support them in making a complaint.

I have already acknowledged in front of the committee that a small minority of those who are involved in prostitution have chosen to be involved—the research puts the figure at about 2 per cent. I am sure that they would tell you that that is their choice and that they feel that they can manage the risks against them. No one is saying that we do not acknowledge that that is the case; we do.

I am concerned with the majority of people in prostitution: the women and girls who have been trafficked here from other countries, who have no control over what is done to them and who will probably leave prostitution infected with a sexually transmitted disease. They will probably have, or might have, irreversible damage to their bodies, including damage to their eyesight. I can go into detail with the committee as to why that might be the case. They might be incontinent. They will be traumatised. Studies have shown that they have rates of complex post-traumatic stress disorder at about 70 per cent, which is higher than rates among combat veterans and victims of state torture.

I believe that, as a Parliament, we should concern ourselves with those women, and we should seek a legislative framework that will reduce the prostitution market, because that will reduce the harm to the women and children who are dragged into it.