§ Mr. Dewar
I beg to move amendment No. 191, in page 33, line 14, at end add—'(4) A district or islands council may resolve that while Schedule 2 to this Act shall apply in their area no licences shall be issued to any shop which falls within the definition of a sex shop in the said Schedule and the terms of Schedule 2 shall be modified accordingly.'.The spirit in which the House is approaching the Report stage does not encourage far-reaching and wide-ranging debate. If I attempted to enter into such a debate I should be a lonely figure. This amendment is tabled to provide a caveat against the way in which the Government have approached the problem of the licensing of sex shops in Scotland. The subject was reached late in Committee. There were lengthy discussions primarily between the hon. Member for Renfrewshire, East (Mr. Stewart) and myself. I do not apologise for that as this is a controversial and important matter.
Clause 45 leads us to schedule 2 which can be made effective in any local authority area at the discretion of the local authority for that area. Schedule 2 sets out at great length over many paragraphs and pages an extremely sophisticated and complex system for the licensing of sex shops. I have never made any secret of the fact—I believe I have the support of almost everyone—that there is something wrong with a system which could allow a pitched battle to be fought over a take-away shop but did not allow local objections or opinion to be canvassed about the desirability of a sex shop in a particular locality. Anyone who has had experience of sex shops opening in their constituency knows how strongly feelings run, and sometimes perhaps they run too strongly. There is no way in which a local authority can consult and reflect on what it discovers by that consultation for the control of such shops.
I do not wish to attack the concept of control which I think is necessary. The more my right hon. and hon. Friends and I look at schedule 2 the more we begin to worry about the way in which we are plunging into a labyrinth of control which will involve enormous difficulties of definition. Grey areas will emerge and there will be a great deal of tension and difficulty. We have a bad case of overkill. There is a problem, but we may have gone a little too far in our attempts to find the right way to deal with it.
I do not want to repeat all the arguments that may have been relevant in Committee but are probably not relevant in the House. I referred to the difficulties of definition, some of which are extremely fundamental. When asked 1147 what is a sex shop, the Government replied that it is a shop that sells a sex article. When we define a sex article we finish with a general definition:Anything intended for use in connection with or for the purpose of stimulating or encouraging—
There was a great deal of good natured banter, but it had a serious purpose. Hon. Members vied sometimes in private conversation and sometimes in Committee to think up objects that clearly fell within that definition, but which could not be seen as sex articles in the normally accepted sense of the word.
- (i) sexual activity; or
- (ii) acts of force or restraint which are associated with sexual activity."
The Minister will remember that one example that was mentioned was the shop that sold a double bed. There is nothing that more clearly falls within the definition of a sex article. Ingenious friends have talked about the dangers of lipstick and perfume. Shops that sell those objects are clearly selling something intended for use in connection with stimulating sexual activity. I can think of no other reason for perfume or a double bed, although I hope that I shall not be considered to have a devious mind when I put those points to the Minister.
More seriously, there is the problem with newsagents that is widely canvassed. Nearly every newsagent on every railway station in Scotland sells a large number of magazines that are clearly sex articles. The previous Solicitor-General for Scotland even called some of them obscene articles. Prosecutions have resulted. Although it is not Parliament's intention that the newsagents should register as sex shops, they are caught in the definition if the letter of the law in the statute is strictly applied. I do not like to be in the situation where it is said that no one will strictly interpret the letter of the law. There is a great problem because of the complexity of the matter. The House has a duty to introduce a more simple and understandable system.
Amendment No. 191 permits us in certain circumstances not to go through the enormously complicated and difficult safeguards of schedule 2 and to accept that a local authority that wishes to ban sex shops should be allowed to do so. But it would still require the definition in schedule 2 and schedule 2 would have to apply. If, having considered the matter, the local authority comes to the conclusion that there should be no sex shops in the area, is it not better to give it that power? The concept is not as revolutionary as it may first appear. In effect, schedule 2 will achieve what the amendment suggests but by the back door, and I do not like back-door legislation.
In schedule 2 we have a complicated system of intimations, rules, regulations and appeals set out in 20 pages and in the middle has been inserted the concept of the nil quota. A person may apply for a licence, but if the local authority has decided on a nil quota in the locality, irrespective of the applicant's fitness to run a sex shop, the suitability of the premises and the experience of such shops in the area, the licence will be refused without the right of appeal. In paragraph 22 are set out complicated provisions for appeal, but if a nil quota has been decided there is no right of appeal. In Committee the Minister stated that each application must be carefully considered on its merits, but if a local authority has decided on a nil 1148 quota it can examine an application for as long and solemnly as one likes, but at the end of the day the answer will still be "No".
The amendment cuts the cackle and simplifies the issue: if a local authority wants a nil quota across its area let it have it. I do not know whether I like that blanket approach by local authorities, but we are in any case slipping the power in with the nil quota in paragraph 9(6), which states:Nil may be an appropriate number for the purposes of sub-paragraph (5)(c) above.If we include that sparkling sentence, a more honest way of approaching the matter, which would save much expense, time and heart searching—and may even prevent a local authority going through the empty charade of considering applications that it knows that it will refuse in the knowledge that its right to refuse cannot be challenged in any appeal procedures—would be to go for something like amendment No. 191. This is a simplifying proposition. It does not change the spirit of what the Government are about, but it recognises the realities buried in what is at times an over-complicated machinery.
The hon. and learned Member for Kinross and West Perthshire (Mr. Fairbairn) hoped that we would be able to halve the size of the Bill. Our effort in Committee was not too bad. The Minister was a key figure. He had to accept the various excisions and junk the various unnecessary measures. However, at the end of the day, along came schedule 2 and sex shops, and rather than halving the Bill, we placed a substantial burden on its weight and size.
I make no complaint about that. It was perhaps inevitable. However, at this last stage we should try to do something to simplify the procedures. We should recognise what will happen in reality. Amendment No. 191 may be technically imperfect, but we need something like it if the Government are to move in that direction.
§ Mr. Hugh D. Brown
I missed the interesting discussions in Committee on this part of the Bill because of the Coatbridge and Airdrie by-election, but I see no reason why I should be denied the pleasure of making a few observations on this interesting subject.
I do not altogether agree with the amendment. Edinburgh, Dundee and other cities may have different problems, but inevitably in Glasgow the respectable citizens of areas such as Eastwood find their way into the working class area where the sex shop is located. On the other hand, the greatest need for such shops seems to be in the trendier parts of the West End of Glasgow.
The vast majority of my constituents are fairly normal. Therefore, there is not much demand for sex shops in the huge housing estates. We are wise to take a hard look at this matter, because it is regrettable that such shops are so profitable and to some extent cater for people who, frankly, are not strictly normal. Perhaps they require something other than a sex aid.
It would be wrong to ask an authority to take a policy decision based on prejudice. That is not a particularly judicious approach. The Government have gone even further than I would have gone. I do not think that we should encourage the blanket rejection of an application merely on a local authority policy decision. Instead, we should leave it to the discretion of the licensing authority.
§ Mr. Gordon Wilson (Dundee, East)
I am not sure whether the advice given by the hon. Member for Glasgow, Garscadden (Mr. Dewar) would be entirely 1149 suitable for parliamentary purposes. He advised us to cut the cackle, but if we did so we would be left with little else to do.
This monstrous schedule has taken us far from the protests that emerged two years ago as a result of the growth of these shops in various parts of Scotland. I congratulate the Government on having responded to the pressure from all parts of the country about the need for regulation of these shops. There is no doubt that they have been found to be offensive both in concept and principle. There was much concern about their layout, and, as we all know, there was a series of prosecutions, with variable success, against some of the shops involved.
I am rather impressed by the amendment tabled by the hon. Member for Garscadden. Honesty is sometimes appropriate. It is clear from the schedule, and particularly the nil quotas, that it would be possible for licensing authorities, in pursuit of their quasi-judicial role, to take decisions which were not essentially judicial or even quasi-judicial. They would operate on the basis that these shops were not acceptable in the locality controlled by the licensing board. It is a policy decision, and one might as well admit that from the start. If political objection is taken by councillors in a locality to the setting up of such shops in their area, and those councillors are responding to political pressure, there is nothing wrong with that. Equally, if it is right for councillors who are elected to respond to pressure put on them by their constituents, there should be an opportunity for a policy decision to be taken by the local authority concerned.
I am attracted to the hon. Member for Garscadden's amendment, because he seeks to put the responsibility back on the shoulders of the district or islands council. The amendment would have other beneficial effects. It would prevent applicants for licences for these shops wasting their own time and that of the licensing board when there was no chance of getting a licence. They might as well know that there is a policy veto, and that they should avoid that area.
I have looked at schedule 2, in all its length, but if amendment No. 191 is accepted I cannot see that it will shorten the Bill in any way. In fact, it adds to it marginally. It is an honest declaration. If decisions involving public policy are to be seen to be open, there is every reason to support the amendment. I see no reason why the Minister should seek to cloak objection to sex shops within the terms of schedule 2. It should be left open to the local authority to tell prospective applicants and the public where they stand in relation to these new manifestations on the Scottish scene. It is quite clear that they are not welcome or acceptable. In fact, many of them do not display offesive material, and seem to hide behind painted windows, for instance, to avoid drawing attention to their activities. However, their basic existence in some areas is objectionable to people who wonder whether youngsters will find their way into them.
As we all know, these shops also attract people who do not react in normal ways, and parents object to that kind of attraction in their district. The hon. Member for Glasgow, Provan (Mr. Brown) said that one tends to get one or two shops in a city and that customers therefore concentrate in that area. That is why many people feel, quite openly, that shops of this kind should not be in their locality, and that there is no need for them.
Therefore, I commend the amendment to the Minister. I hope that, if he is still in a basically friendly mood 1150 towards the Bill, as seems to have been the case, judging from the mutual back-slapping and back-scratching episodes that I lave noticed so far, he will accept the amendment tabled so wisely by the hon. Member for Garscadden.
§ Mr. Allan Stewart
I thank the hon. Member for Dundee, East (Mr. Wilson) for what he said about the introduction of the provisions in the Bill. I recall, I think correctly, that the concern on the Floor of the House in relation to this matter was first raised by him, by the hon. Member for Dundee, West (Mr. Ross) and by my hon. and learned Friend the Member for South Angus (Mr. Fraser). That is a fairly considerable political cross-party alliance.
What the hon. Member for Glasgow, Garscadden (Mr. Dewar) is proposing is fundamentally different from the licensing provisions in the Bill. As hon. Members have said, the amendment would enable local authorities to ban an activity as a matter of principle—an activity that may be quite legal—and without giving any consideration to individual cases. That is an inequitable approach.
By contrast, the Government's approach will give local authorities effective control over sex shops. Problems arise not so much from the type of material that is sold in sex shops as from the fact that local authorities at present have no control over the opening or siting of such shops. Therefore, they are unable to prevent establishments that many people find offensive from opening in particularly unsuitable locations. The hon. Member for Glasgow, Cathcart (Mr. Maxton) has previously referred to a location next to a primary school, which is obviously undesirable.
The licensing scheme will give local authorities control over both the number and location of sex shops in their area. They will have full power to decide that there should not be any sex shops in a particular locality. However, the local authority must reach such a decision only after giving proper consideration to an application for a licence to operate a sex shop in that locality. The local authority must consider every individual application.
§ Mr. Stewart
A local authority must consider each individual application on its merits. For example, a new application for an establishment could be different from a previous application that had been turned down. I would argue strongly that that is equitable in order to ensure that every individual application is seriously considered by the local authority.
§ Mr. Dewar
I am intrigued by that. The Minister seems to be suggesting that there might be different categories of sex shop. He has not answered my question. If an area has a nil quota, what conceivable point is there in solemnly considering an application which must, by definition, be turned down?
§ Mr. Stewart
A new application would not necessarily be in precisely the same location as a previous application. The local authority, rightly and properly, should consider the new application on its merits, regardless of what it had 1151 decided previously. Local authorities should consider each individual application that is made, because applications and circumstances will vary.
The amendment proposes a total ban on an activity that is not in itself illegal, with no consideration of the merits of each individual case. That is not acceptable. There is a fundamental difference of principle between the approach adopted by the Government and that adopted by the Opposition in their amendment.
§ Mr. Dewar
It might be helpful to withdraw the amendment. I have sympathy with some of the Minister's points. Indeed, one advantage of tabling the amendment is that I have drawn attention to the fact that, like the hon. Member for Dundee, East (Mr. Wilson), I believe that there is just a touch of dishonesty about the way in which the whole thing has been constructed. We have managed to slip in what may amount to a ban if the local authority wishes to operate the provision in that way. At the same time, the Minister has protested mightily that that would be wrong and contrary to the great traditions of Scottish justice. However, the Minister will discover that he has allowed an absolute ban. Like several other hon. Members, I should have preferred it if that fact had been recognised. In the hope that the Minister will make a concession during our next debate on sex shops, I beg to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.