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Has Glasgow morality come to Edinburgh?

14 July 14

The winning entry in the Law Society of Scotland/Scottish Parliament student essay competition, on Police Scotland and prostitution

by David Gallagher

The Police and Fire Reform (Scotland) Act 2012 was granted royal assent on 8 August 2012, with one of the two new agencies, the Police Service of Scotland, coming into existence on 1 April 2013.

In 2011, Kenny MacAskill, Cabinet Secretary for Justice, described the existing police system, consisting of eight separate police forces, as “unsustainable” and proposed a vision for a new centralised police service expected to result in savings of £1.1 billion by 2026(1)(2). The stated aims established by the Scottish Government were “to protect and improve local services”, “create more equal access to specialist support and national capacity”, and to “strengthen the connection between police services and communities.”(3) It has been referred to as the “most radical shake up to policing in Scotland for a generation”.(4)

On the morning of 7 June 2013, 150 officers attached to the new Police Service of Scotland East Division descended on seven of Edinburgh’s licensed saunas and massage parlours. Thirty women were interviewed in relations to allegations of prostitution and assets in excess of £500,000 were seized.(5) In recent Edinburgh history, the raid was unprecedented and marked a radical change from 30 years of police practice and policy.

Contrasting approaches

Lothian & Borders Police had historically maintained what has been popularly referred to as a “long-standing liberal approach to prostitution”.(6) While “official” tolerance zones were eliminated in 2001, many still believed that – in the words of Margo MacDonald MSP – they “led the thinking on how to manage prostitution”.(7) She had previously been asked by Lothian & Borders Police to chair a “steering group”, which included both the police and the council, and which was tasked with finding pragmatic solutions to issues of prostitution.

The group’s findings emerged in 2002 with the Prostitution Tolerance Zones (Scotland) Bill, introduced by Ms MacDonald with the aim of designating “areas as zones within which loitering, soliciting or importuning by prostitutes is not an offence”.(8)

This was in stark contrast to the approach taken by Strathclyde Police. Its policies have been influenced by the position held by the Glasgow City Council, specifically its “radical and proactive stance” against prostitution.(9) Both of these parties, together with the Greater Glasgow Health Board, similarly formed a working group: the Routes Out Partnership, which meant adopting a zero tolerance policy on prostitution, and vociferously opposing the introduction of the Prostitution Tolerance Zones Bill. This can be characterised, in contrast to that in Edinburgh, as the “abuse discourse model”, which sees prostitution as a form of harm to women and rejects its inevitability. Indeed, one voluntary service manager stated that, on this issue, “there’s a more fundamental philosophical split between Glasgow and Edinburgh”.(10)

Lothian & Borders Police employed 2,844 full time sworn members in March 2012.(11) It was the second largest police force in Scotland, with the majority of its constituent population residing in Edinburgh. It was, however, dwarfed by Strathclyde Police, who employed 8,058 full time police officers.(12) It is therefore not surprising that former members of Strathclyde Police comprise the largest constituent element of Police Scotland, with its former chief constable assuming the same role for all Scotland. With a single headquarters and significantly streamlined management, concerns were raised prior to its incorporation that Police Scotland might adopt a “blanket policy” to crime within Scotland, influenced by the practices in Strathclyde.(13) After the June raids this fear was raised again, with elected officials warning against the prospect of “progressive policies to tackle prostitution at a local level being lost”.(14) If this were true, the approach represents one of the largest shifts in the way law is applied in Scotland’s history.

Centralised influence?

The stated purpose of the Police Service of Scotland is defined in s 32 of the Act: being to “improve the safety and wellbeing of people, places and communities in Scotland”. This ambiguous phrasing downplays the great discretionary power held by the police within Scotland, and indeed law enforcement as a whole. It has been stated that “what emerged from an encounter between a citizen and a law enforcement official often bore little relation to what have been expected from a simple reading of the formal requirements”.(15)

Indeed, in s 4 of the 2012 Act, the PSS is awarded discretion to do “anything that it considers appropriate for the purposes of, or in connection with, the carrying out of its functions”. One need only look at the continuing rise in the number of police recorded incidences of domestic abuse (for instance, there was a 7% increase in 2010-12) to show the impact of changes to police practice on the administration of law in Scotland.(16)

It is hard to deny that the 2012 Act represents a dramatic break with the longstanding tradition of policing in Scotland. The Scottish Archive Network – in surveying the available literature on the subject – notes that “there is no general history of policing in Scotland. There are various histories of individual forces”.(17) Policing in Scotland was historically conducted at a regional level, with 67 burghs maintaining their own police force in 1852 with each possessing its own operating procedures, determined by reference to the character of the area and personalities of the managing parties.(18) While the administrative reforms of 1975 reduced the number to eight police forces, each still had procedural differences and possessed their own institutional character.

There has, over the last half century, been great concern about increased centralisation of policing in Scotland and one of the most persistent concerns is the greater potential this would allow for “political interference”.(19) Interference had been largely prevented, prior to passage of the 2012 Act, through the tripartite relationship between the police force and local and central government, which had its legal origins in the Police (Scotland) Act 1967.(20)

This has been effectively ended, with local government now stripped of its duty to fund local policing and the role being assumed by the independent Scottish Police Authority. This agency, as per s 5(1) of the 2012 Act, “must comply with any direction (general or specific) given by the Scottish ministers” (with the exception of specific operations), and its members are directly appointed by the Scottish ministers.(21) Furthermore, there are no statutory guidelines that dictate that the new body must include elected members of local government.

In response to these concerns, Kenny MacAskill has stated that, “Local authorities will approve plans for their area and, rather than a handful of councillors attending a regional board, many more councillors will have a say in what happens in their area.”(22) Section 44(2) requires that, “For each local authority area, the chief constable must, after consulting the local authority, designate a constable as local commander.” The new Chief Inspector has pledged to go further than this and establish a policing plan for each council ward in Scotland.(23) It is argued that this will lead to greater co-operation between local communities to allow them to be better able to provide input into the strategies which play a significant role in how the criminal law of Scotland is administered on a daily basis. Through s 46(2ZA) a local authority may specify policing measures that it wishes the local commander to include in a local policing plan. However, the Act does not state the consequences if the local commander were to ignore entirely the wishes of the local authority. It is far from clear what would happen if a local authority were to refuse to endorse the plan of its local commander.

Distinct views

The raids of 7 June do not represent a model example of consultation being employed to create a local approach to policing. Although the 2012 Act was specifically included in the current ruling party’s election manifesto, the sudden measures to curtail a policy adopted by a democratically elected body raise the possibility of a democratic deficit in the policing process. Specifically, the longstanding “Edinburgh Approach” towards prostitution: “pragmatism and flexibility to implement effective responses” has been significantly undermined by reports from Police Scotland that “this approach is no longer proving to be effective”.(24)(25) It is worth noting that in the nine meetings of the Scottish Police Authority that preceded the raids of 7 June, no mention was made of the policing of the sex trade, leading many to believe that there was a significant lack of consultation regarding the new policies with relevant community groups, despite measures to facilitate this being present in the 2012 Act. Christine Grahame MSP, the convener of the Justice Subcommittee on Policing, noted the “perception that policing practices are being standardised across the country at the detriment of local flexibility”.(26)

The level of dissatisfaction with the current system can be seen through the widely circulated news that the City of Edinburgh Council is reportedly planning on withdrawing £2 million over four years of the total capital it invests in community policing, as regulated in s 45 of the Act, over concerns regarding its diversion to other duties outside the council area.(27) Serving councillor and former Lord Provost Lesley Hinds stated that the council felt it had “no influence in how these officers are being deployed”.(28) Notably, stop and search powers were employed by police within Edinburgh 8,259 times in April-June 2013, compared to 4,706 times for the same period in the previous year.(29)

Despite concerns over how the new legislation has impacted upon law enforcement, there has been significant praise for several provisions. Reform has removed the potential for a hierarchy of specialist police services to develop, with all areas of Scotland now having more equitable access to resources. The PSS can perhaps be best assessed by reference to the criteria enumerated by Sir Robert Peel, most notably that “the police are the public and the public are the police”.(30) Section 32, with its overriding general principles of policing, certainly is Peelian in its scope. Fyfe contends that the principles in this section represent a redefinition of the scope of policing, away from an overriding focus on crime reduction – found in England & Wales – to one where the promotion of community wellbeing is given a higher priority.(31) Certainly, it gives far more definition and clarity to the role of the police than the requirement to “guard, patrol and watch” contained within s 17(1)(a) of the Police (Scotland) Act 1967.

In its appraisal of the 2012 Act, Audit Scotland described it as occasioning “one of the biggest and most complex restructures in the public sector for many years.”(32) It further stated that “although not a stated objective of reform, one of the main drivers was to save money”.(33) The Scottish Government has had its overall funding reduced by almost 11% between 2010-11 and 2015-16, and it is clear that this legislation is a product of this political reality.(34) Its purpose, however, goes beyond mere cost cutting and the impact on Scots law was starkly illustrated by what occurred on the morning of 7 June 2013. In the words of Oliver Wendell Holmes, “no formulation of legal rules, in the criminal law or elsewhere, can be effective to the degree that it is at cross-purposes with the beliefs and expectations of the community”.(35)

Different areas of Scotland have always held subtly different sets of values. Hugh MacDiarmid passionately illustrated these differences when he wrote, incredulously, “Scotland small? Our multiform, our infinite Scotland small?”(36) The principle of local governance is a longstanding one, in a manner that can almost be said to accord with the principle of subsidiarity: decisions ought to be taken at the lowest effective level. Robert Crawford has written “Like good and evil, Glasgow and Edinburgh are often mentioned in the same breath but regarded as utterly distinct”.(37) It is therefore vital that measures employed in the former are not imposed arbitrarily on the latter, to ensure that policing retains its longstanding local focus and character. It remains to be seen whether further legislative measures are put in place to ensure that this diversity is maintained.

David Gallagher is a second year student at the University of Edinburgh, currently in the process of completing an Accelerated LLB. Prior to this, he graduated from the University of St Andrews with a MA (Hons) in History and from the University of Edinburgh with an MSc in Architectural Conservation.
This essay was written in December 2013.

References

(1) Kenny MacAskill, Parliamentary statement on police and fire reform, Scottish Parliament (8 September 2011): www.scotland.gov.uk/News/Speeches/police-fire-reform

(2) Audit Scotland, “Merger of Scotland's police achieved but the service faces significant financial challenges’ (14 November 2013).

(3) Audit Scotland, Progress Update 2013 (November 2013), 2.

(4) Nicholas Fyfe, “A Different and Divergent Trajectory” in Jennifer Brown (ed), The Future of Policing, Routledge, London (2013), 504.

(5) Brian Donnelly, “Clampdown on brothels as Police Scotland raid saunas”, The Herald (7 June 2013): www.heraldscotland.com/news/home-news/clampdown-on-brothels-as-police-scotland-raidsaunas.21288301

(6) Ian Swanson, “Groups warn sex trade ban will put more women at risk”, The Scotsman (19 June 2012) www.scotsman.com/news/groups-warn-sex-trade-ban-will-put-more-women-at-risk-1-2362595

(7) Dale Miller, “Police deny change in policy over sauna raids”, The Scotsman (16 June 2013): www.scotsman.com/news/scotland/top-stories/police-deny-change-in-policy-over-sauna-raids-1-2968734

(8) Prostitution Tolerance Zones (Scotland) Bill, Preamble.

(9) Glasgow City Council, Glasgow City Council evidence to Local Government Committee on Prostitution Tolerance Zones (Scotland) Bill (Undated): www.glasgow.gov.uk/CHttpHandler.ashx?id=5750&p=0

(10) Lucy Holmes, “A Tale of Three Cities: Regulating Street Prostitution in Scotland”, in Scottish Studies 52 (Summer 2005), 74.

(11) The Scottish Government, Police Officer Quarterly Strength Statistics Scotland (31 March 2012): www.scotland.gov.uk/Resource/0039/00394382.pdf

(12) Ibid.

(13) Fiona McKay, “Police told to beware of single stance on sex trade”, The Herald (9 June 2013).

(14) Ibid.

(15) John Kleinig, Handled with Discretion: Ethical Issues in Police Decision Making, Rowman & Littlefield (1996).

(16) The Scottish Government, Statistical Bulletin Crime and Justice Series: Domestic Abuse Recorded by the Police in Scotland 2008-09 (30 October 2012): www.scotland.gov.uk/Resource/0040/00406823.pdf

(17) Scottish Archive Network, Policing and Police Forces (undated): www.scan.org.uk/knowledgebase/topics/policing_topic.htm

(18) W Knox & Ina McKinlay, “Crime, Protest, Policing in Nineteenth-Century Scotland”, in History of Everyday Life in Scotland, 1800 to 1900 (2010), EUP, 214.

(19) Kenneth Scott, “A Single Police Force for Scotland: The Legislative Framework (2)”, in Policing 7 (2013 Issue 2), 140.

(20) Scottish Government, Independent Review of Policing in Scotland: Appendix A, “Tripartite arrangement” (January 2009): www.scotland.gov.uk/Publications/2009/01/23133505/10

(21) Police and Fire Reform (Scotland) Act 2012, s 5.

(22) Scottish Government, Police and Fire Reform Bill (17 January 2012): www.scotland.gov.uk/News/Releases/2012/01/Police-Fire17012012

(23) Scottish Parliament, Justice Committee Agenda (34th meeting 2012: Tuesday 27 November 2012), section 28: www.scottish.parliament.uk/S4_JusticeCommittee/Meeting%20Papers/Papers20121127.pdf

(24) City of Edinburgh Council, Prostitution in the Leith Area, section 5.1 (13 November 2003): www.edinburgh.gov.uk%2Fdownload%2Fmeetings%2Fid%2F19888%2Fprostitution_in_the_leith_area&ei=griYUoDUAuPy7Aaa1oFA&usg=AFQjCNFLxCqHZdssGkBY9W5KjA31zKLnKQ&sig2=_ZS78lCERv1n0WZlMbzAyg&bvm=bv.57155469,d.ZGU&cad=rja

(25) City of Edinburgh Council, Public Entertainment Licensing Consultation (undated): www.edinburgh.gov.uk/info/674/consultations

(26) Scottish Parliament, “Local communities asked for their views on the impact of police reform”, (4 November 2013): www.scottish.parliament.uk/newsandmediacentre/69425.asp

(27) Edinburgh Evening News, “Council set to cut community policing funding” (16 September 2013): www.edinburghnews.scotsman.com/news/crime/council-set-to-cut-community-policing-funding-1-3095095

(28) Ibid.

(29) Rory Reynolds, “Concerns at rise of ‘Strathclyde-style’ policing”, (2 August 2013): www.scotsman.com/news/scotland/top-stories/concerns-at-rise-of-strathclyde-style-policing-1-3026554

(30) John Dempsey & Linda Forst, An Introduction to Policing, Cengage Learning (2011).

(31) Nicholas Fyfe, “Making Sense of a Radically Changing Landscape: The Key Contours of Police Reform in Scotland”, in Scottish Justice Matters 1 (June 2013).

(32) Audit Scotland, Progress Update 2013 (November 2013), 6.

(33) Ibid, 2.

(34) Scottish Government, A Budget for Scotland’s Future (11 September 2013).

(35) Carl McGowan, “Rule-Making and the Police”, Michigan Law Review (1972), 659.

(36) Hugh MacDiarmid, Direadh, Kulgin Duval & Colin H Hamilton (1974), 1.

(37) Robert Crawford, On Glasgow and Edinburgh, Harvard University Press, Harvard (2013), 1.

Bibliography

Official Government and Local Government Publications

Audit Scotland, “Merger of Scotland's police achieved but the service faces significant financial challenges” (14 November 2013): www.audit-scotland.gov.uk/media/article.php?id=250

Audit Scotland, Progress Update 2013 (November 2013).

City of Edinburgh Council, Prostitution in the Leith Area, section 5.1 (13 November 2003): www.edinburgh.gov.uk%2Fdownload%2Fmeetings%2Fid%2F19888%2Fprostitution_in_the_leith_area&ei=griYUoDUAuPy7Aaa1oFA&usg=AFQjCNFLxCqHZdssGkBY9W5KjA31zKLnKQ&sig2=_ZS78lCERv1n0WZlMbzAyg&bvm=bv.57155469,d.ZGU&cad=rja

City of Edinburgh Council, Public Entertainment Licensing Consultation (undated) www.edinburgh.gov.uk/info/674/consultations

Glasgow City Council, Glasgow City Council evidence to Local Government Committee on Prostitution Tolerance Zones (Scotland) Bill (undated): www.glasgow.gov.uk/CHttpHandler.ashx?id=5750&p=0

Nicholas Fyfe, “A Different and Divergent Trajectory” in Jennifer Brown (ed), The Future of Policing, Routledge, London (2013), 504.

Police and Fire Reform (Scotland) Act 2012, s 5.

Prostitution Tolerance Zones (Scotland) Bill, Preamble.

Scottish Government, Independent Review of Policing in Scotland: Appendix A, “Tripartite arrangement” (January 2009): www.scotland.gov.uk/Publications/2009/01/23133505/10

Scottish Government, Police and Fire Reform Bill (17 January 2012): www.scotland.gov.uk/News/Releases/2012/01/Police-Fire17012012

Scottish Government, A Budget for Scotland’s Future (11 September 2013).

Scottish Parliament, Parliamentary statement on police and fire reform (8 September 2011): www.scotland.gov.uk/News/Speeches/police-fire-reform

Scottish Parliament, Justice Committee Agenda (34th meeting 2012: Tuesday 27 November 2012), section 28: www.scottish.parliament.uk/S4_JusticeCommittee/Meeting%20Papers/Papers20121127.pdf

Scottish Parliament, “Local communities asked for their views on the impact of police reform” (4 November 2013): www.scottish.parliament.uk/newsandmediacentre/69425.asp

The Scottish Government, Statistical Bulletin Crime and Justice Series: Domestic Abuse Recorded by the Police in Scotland 2008-09 (30 October 2012): www.scotland.gov.uk/Resource/0040/00406823.pdf

The Scottish Government, Police Officer Quarterly Strength Statistics Scotland (31 March 2012): www.scotland.gov.uk/Resource/0039/00394382.pdf

Newspaper and other online sources

Brian Donnelly, “Clampdown on brothels as Police Scotland raid saunas”, The Herald (7 June 2013): www.heraldscotland.com/news/home-news/clampdown-on-brothels-as-police-scotland-raidsaunas.21288301

Ian Swanson, “Groups warn sex trade ban will put more women at risk”, The Scotsman (19 June 2012): www.scotsman.com/news/groups-warn-sex-trade-ban-will-put-more-women-at-risk-1-2362595

Dale Miller, “Police deny change in policy over sauna raids”, The Scotsman (16 June 2013).

Trisha Hamilton, “End Prostitution Now”, in Changemakers (16 February 2010): www.changemakers.com/node/70028/resources

Scottish Archive Network, Policing and Police Forces (undated): www.scan.org.uk/knowledgebase/topics/policing_topic.htm

Fiona McKay, “Police told to beware of single stance on sex trade”, The Herald (9 June 2013).

Edinburgh Evening News, “Council set to cut community policing funding” (16 September 2013): www.edinburghnews.scotsman.com/news/crime/council-set-to-cut-community-policing-funding-1-3095095

Rory Reynolds, “Concerns at rise of ‘Strathclyde-style’ policing” (2 August 2013): www.scotsman.com/news/scotland/top-stories/concerns-at-rise-of-strathclyde-style-policing-1-3026554

Journal articles

Carl McGowan, “Rule-Making and the Police”, Michigan Law Review (1972).

Kenneth Scott, “A Single Police Force for Scotland: The Legislative Framework (1)” in Policing 7 (2013 Issue 2), 133.

Kenneth Scott, “A Single Police Force for Scotland: The Legislative Framework (2)” in Policing 7 (2013 Issue 2), 140.

Lucy Holmes, “A Tale of Three Cities: Regulating Street Prostitution in Scotland”, in Scottish Studies 52 (Summer 2005).

Nicholas Fyfe, “Making Sense of a Radically Changing Landscape: The Key Contours of Police Reform in Scotland”, in Scottish Justice Matters 1 (June 2013).

Books

W Knox & Ina McKinlay, “Crime, Protest, Policing in Nineteenth-Century Scotland”, in History of Everyday Life in Scotland, 1800 to 1900 (2010), EUP, Edinburgh, 214.

Helen Fenwick, Text, Cases and Materials on Public Law and Human Rights, 987, Cavendish Publishing, London (2003).

John Dempsey & Linda Forst, An Introduction to Policing, Cengage Learning, Stamford, Ct (2011).

Hugh MacDiarmid, Direadh, Kulgin Duval & Colin H Hamilton (1974), 1.

Robert Crawford, On Glasgow and Edinburgh, Harvard University Press, Harvard (2013), 1.

John Kleinig, Handled with Discretion: Ethical Issues in Police Decision Making, Rowman & Littlefield, Lanham, Md (1996).

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