Policing and Crime Bill

Commission for the Compact – in the House of Commons at 7:31 pm on 19 May 2009.

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Proceedings resumed.

Photo of Evan Harris Evan Harris Shadow Science Minister 7:39, 19 May 2009

I shall continue with the second half of my contribution, in which I shall specifically support new clause 25. It has been tabled by myself, by the hon. Members for Birmingham, Selly Oak (Lynne Jones), for Hayes and Harlington (John McDonnell) and for Totnes (Mr. Steen), by my hon. Friend Paul Holmes, and by Mr. Dismore, who chairs the Joint Committee on Human Rights. I understand that it is supported by both Opposition Front-Bench teams.

My view on clause 13 is that further criminalisation of prostitution will be detrimental. My hon. Friend the Member for Chesterfield and I voted against the clause in Committee, but I recognise that my view on that does not have sufficient support in the House, and that the Government have a majority to get some sort of offence on to the statute book to tackle demand. It is only realistic, therefore, for me to work with other hon. Members to find a form of words on which we hope there can be majorities in both Houses. I am grateful to Liberty, Justice, the Criminal Bar Association, the English Collective of Prostitutes and the International Union of Sex Workers, as well as to hon. Members, for their help in drafting the new clause. I am particularly grateful to Mr. Ruffley for his willingness to try to identify a way forward that delivers what he wants—a workable law that does something about demand but does not have the drawbacks that he expertly identified in the Public Bill Committee.

New clause 25 is therefore based on a consensus, and it has three main ingredients. First, it would get rid of the strict liability provisions, for reasons that I shall explain. Secondly, and as a consequence of that, it would enable the punishment to match the offence where there is not strict liability. Thirdly, it would redefine "controlled for gain" in a narrower way. I recognise that in tabling amendment 47 and associated amendments, the Government have also done that, so I do not propose to spend time comparing the construction of that amendment and the new clause. There are probably advantages and disadvantages to both, but they are both in the same general ballpark.

I have some points to make about the Government amendment, however. First, it still provides that control has to be for gain. We considered that matter with the lawyers who were assisting us, and could not understand why the Government did not want to capture pimps who do what they do for cruelty and for the hell of it, who get a kick out of controlling women and girls in prostitution and perhaps running them for drugs purposes, but do not operate for gain from the sale of sexual services. If the Government are still in listening mode concerning the nature of that part of their provisions, they should consider that.

Our equivalent provisions have four main parts. First, in proposed new subsection (3), we define a victim of trafficking. We use the language that has found favour with the hon. Member for Slough in other legislation. She is concerned that we ought to return to the definition that is often used in international law, and we have included it as far as we can. Secondly, the new clause mentions "coercion" and is therefore very similar to the Government's provisions. We include in that violence, threats and intimidation.

We thought that it was important that the third point was clearly captured, so that people controlling prostitutes would know exactly what they were letting themselves in for. We state that the person in control commits an offence if B—the prostitute—has provided sexual services

"in order to gain access to controlled drugs".

Finally, recognising that we could not get the Government to agree with us on the matter in the Public Bill Committee, we believed that we needed to discriminate between brothels that are run co-operatively, in which the women at all times accept the control of the madam, and brothels where women are working together but do not freely consent to the direction or instruction of someone who tells them, "Do this with this person, in this room, for this price." That situation would be covered by the new clause, because we reached consensus on a pragmatic way forward that would cover mischief in relation to which demand needs to be tackled on a non-strict liability basis. I hope that the Government will consider that further, as they have indicated they are willing to do in another place.

I now turn to the important matter of strict liability. I know that other hon. Members will talk about the experience and views of the English Collective of Prostitutes and others, so the best thing that I can do is demonstrate the forensic job that the Joint Committee on Human Rights, on which I serve, did, in a report that was unanimously agreed, on why the strict liability offence is so wrong.

The first criterion for having a law that potentially engages human rights—as the Government, in their memorandum to the Committee, accepted that this one will—is that it is necessary in a democratic society. That fundamentally requires evidence that the Government's legitimate goal, which will constrain freedoms, will be effective. The Joint Committee reflected on the fact that the Government have still failed to publish the evidence—although they said in their little paper supporting the offence that it existed—that strict liability would be beneficial. In Committee, the Under-Secretary of State for the Home Department, Mr. Campbell, confirmed that the review of evidence had not been published, but stated that the Government had never made a commitment to publish the evidence, and that it was currently being collated.

I do not think that that is acceptable, or that most Select Committees would consider it acceptable—certainly not the Joint Committee on Human Rights or the Select Committee on Innovation, Universities, Science and Skills, on which I also serve—for the Government to claim that they are introducing evidence-based policy and then fail to produce the evidence on which they seek to rely. Not only did they not produce it, they did not have it published and peer-reviewed before publication. That suggests that the Government do not have evidence upon which they can rely. They are, of course, aware that the weight of academic and health service opinion is that further criminalisation will be harmful. Taking an evidence-based approach alone, the Government are wrong.

The Government said that we

"should not read too much into the fact that the evidence has not been published. It does not mean that it contradicts the propositions that the Government are bringing forward." ——[ Official Report, Policing and Crime Public Bill Committee, 29 January 2009; c. 113, Q197.]

I cannot understand why something that was alleged to exist a year ago has still not been published. The Joint Committee stated:

"We are disappointed that the Government has failed to provide the evidence which, in its view, demonstrates the necessity for the new strict liability offence. As we have said on a number of previous occasions, legislation should be firmly based on evidence. We consider this to be particularly important when new criminal offences are proposed, to show why the existing criminal law is inadequate to deal with the targeted conduct and how the proposed new offence tackles the behaviour in a proportionate way."

Evidence is important when we are dealing with the criminal law. That echoes the point made by the hon. Member for Hayes and Harlington that adequate time for debate is important in such cases. The Joint Committee's report continued that

"it is even more imperative when the proposed new offence is one of strict liability. We recommend that the evidence be published without further delay so that Parliament can be properly informed when debating the need for this new strict liability offence."

Sadly, we are debating this before the Government's response to that report, and before we have seen the evidence, which is unfortunate.

The second criterion for such an offence identified by the Joint Committee is that it needs to be prescribed by law. Liberty made clear in its evidence to the Committee a point that it also made in its briefings on the Bill:

"Strict liability offences should be used very sparingly and should only apply to minor offences where it seems obvious in the circumstances that an offence has been committed. It should not apply when a person is unable to ascertain whether what they are doing is unlawful. Given it is not an offence to pay for sexual services of a person who is not controlled for gain, it would be unfair to impose a strict liability offence on someone who pays for the sexual services of a person who is controlled for gain but whom the offender does not know is controlled."

I have read that into the record because it is the quickest way to get that point across.

The European Court of Human Rights has considered the matter, and in one case, Salabiaku v. France, stated:

"States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence."

However, proving that an individual did not know that a person was controlled for gain is explicitly ruled out as a defence in the Government's proposal, which goes further than that case. That is why the Joint Committee was right to say that the proposed offence would be a human rights breach as well as bad law, and that we will have to amend our law if a case is brought.

The Joint Committee concluded that

"the fact that the offence is one of strict liability will make it difficult for an individual to know how to regulate his conduct given that his knowledge is not an element of the offence. We have concerns about the breadth of the new offence and its potential impact beyond the group that the Government seeks to target. In our view"— this is important—

"the proposed offence has the potential to put women into more exploitative or unsafe situations, may not address the problem which the offence aims to target (namely exploitative prostitution) and may discourage reporting of such prostitution."

I know that other hon. Members can speak about those issues, based on the experience and views of women involved in prostitution and of those involved in human rights.

I want to consider the provisions on rape, which, again, the Government have got wrong. I think that the Government accept that it is impossible to get a conviction for rape in the context of prostitution. However, they cannot have it both ways: they cannot say that because rape happens even though there are no prosecutions, we should have a strict liability offence with a low penalty, while also claiming that we can still prosecute for rape in those hard cases. The position is clear: it is impossible to get a conviction for rape in the context of prostitution. I wish it were not so, and that rape conviction rates were higher, but that is a problem in cases of rape outside the context of prostitution, and the Government have provided no evidence of prosecutions, let alone convictions, within that context. That leaves a gap. When someone knowingly has sex with a person who is not freely consenting in the context of prostitution, that should be punished by imprisonment. New clause 25 would rightly provide for that.

Photo of Evan Harris Evan Harris Shadow Science Minister

Of course I shall give way to the hon. Lady, who has strong views and has always been willing to have a proper exchange of views on such matters.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

The hon. Gentleman describes the existing situation, whereby men who rape prostituted women too often act with impunity. Does he realise that Cleveland police authority, which has the highest conviction rate for rape—twice the average rate of other police authorities—is also the most active in protecting prostituted women and tackling kerb crawling? Is he aware that it is possible to prosecute effectively if police and prosecution authorities work together to protect prostituted women? Cleveland has begun to show that, but it is not being done elsewhere in the country.

Photo of Evan Harris Evan Harris Shadow Science Minister

The hon. Lady's comments would be evidence for the Government's proposals if a causative association could be shown between the further criminalisation of prostitution and what she describes as an improved success rate for rape convictions. However, even she does not make the direct association— [Interruption.] I am sorry—I did not hear what she said just then; I shall give way to her again shortly, but I want to make my point clear. Policing prostitution as she described cannot be said to cause higher rates of conviction for rape. She states ex cathedra—I would like to see the published evidence—that there is such an association. Those on our side of the argument are talking about clear evidence of driving women away from the police. Making men more furtive will make women more vulnerable.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

The hon. Gentleman is right to say that there has been no research on causation. But let me offer him two facts. First, approximately 20 per cent. of all the prosecutions for kerb crawling in the country happen in Cleveland. Secondly, Cleveland police authority has double the average success rate, and a much higher success rate than the nearest police service, for rape prosecution. That authority takes seriously the violence against women that is inherent in prostitution. I believe that, as a result—though no study has been funded and completed—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. May I say to the hon. Lady, and the House generally, that consideration of this group finishes at 9 o'clock and that many hon. Members are trying to catch my eye? The hon. Gentleman who has the Floor has been speaking for a long time. Interventions are helpful to the debate, but deny other hon. Members the opportunity to speak, so perhaps hon. Members will bear that in mind.

Photo of Evan Harris Evan Harris Shadow Science Minister

Perhaps it will be best if I do not take any more interventions.

I have the utmost respect for the way in which the hon. Lady has put her case on this matter in the past few months. However, all I can say about her comments is that she is entitled to her own opinions, but not to her own facts. We need evidence-based policy, which seeks to protect women and punish the real offenders.

New clause 25 would make it an offence for a person to make or promise payment, or use the sexual services of a prostitute, when he knows or ought to know that the woman essentially does not consent. Associated with that is a prison sentence, which is the proper penalty befitting the offence of deliberately having sex with someone who does not consent, or of being reckless—the new clause has a wide recklessness test—of that fact. In the worst cases a long prison sentence can be expected, because it cannot be right for such an offence to be greeted with a fine.

The fundamental difference between us is, as the Joint Committee on Human Rights makes clear, that the Government's approach has no evidence to back up its effectiveness. It is not sufficiently clear for users to know when they are committing an offence, and it will make matters worse for the prostitutes because the men will be driven to seek out the exchange of money for services in a place where they will be less likely to be detected.

Photo of Evan Harris Evan Harris Shadow Science Minister

I have nearly come to the end of my speech, but I shall give way twice before concluding.

Photo of Philip Davies Philip Davies Conservative, Shipley

The new clause specifically states that a person commits an offence when they know or "ought to know" that somebody is "the victim of trafficking" and so on. What does the hon. Gentleman mean by "ought to know"? I am not entirely sure what that means.

Photo of Evan Harris Evan Harris Shadow Science Minister

"Ought to know" is a recklessness test, which basically means that if the court decides that it is reasonable that the person should have known, given the information in front of him, that the other person was not consenting—that the person was controlled, or whatever definition we use—he would be committing an offence. I hope that I have answered the question.

Now I shall respond to the intervention by Keith Vaz. He is right: the case has been made for new clauses 4 and 25, and I hope that the House will support them both.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Given that so many hon. Members wish to speak, I aim to be brief. I want to speak about amendment (a) to amendment 47, amendment (a) to amendment 51 and amendments 215 and 216. Some are amendments to the amendments that the Home Secretary tabled to clause 13.

Earlier, Mr. Gummer reminded us of what, for many of us, is the trigger for the debate: the violence that is inherent in prostitution, and the cause of the fact that prostituted women are, according to the British Medical Journal, 40 times as likely to die a violent death as other women.

The Government's proposal for a strict liability offence, which targets demand for prostitution, is based on clear evidence from other European countries that such an offence can reduce trafficking and also the demand for prostitution. For example, in Sweden, the number of men who pay for sex has reduced in the time that that country has had a stricter but comparable offence, from 13.6 per cent. to below 8 per cent. On the whole, that 8 per cent. pays for sex outside Sweden. Other Nordic countries have followed Sweden, including Norway. Despite being so much smaller than Sweden, it had a massively larger population of women who were trafficked for sexual purposes. Norway perceived that as a serious human rights problem, which it had to address. Finland has a slightly half-hearted version of the offence, with few prosecutions, although more have begun to be conducted.

Countries that have taken the opposite approach, such as the Netherlands, regret it and have experienced the growth of criminality and abuse that is inherent in prostitution.

It is also important to realise that public opinion on the issue can follow leadership. The Swedish law has become more popular since it was introduced. When the Minister for Women and Equality commissioned research in the United Kingdom into whether people thought it right to make it illegal to pay for sexual services, to start with, only a third thought so. When there was a prompt and people were asked whether such a law should be part of a campaign to reduce trafficking and exploitation, a clear majority of respondents supported it. That is why, despite being profoundly attracted by the Swedish approach, I felt it right to support the Home Secretary's more limited definition, which says that there should be a strict liability offence of paying for the sexual services of someone who is controlled for gain.

However, I am anxious that the further amendments that my right hon. Friend has tabled will limit the proposed offence more than I believe she intends to. I think it certain that the exploited women of Ipswich would not be covered by the language used in amendment 47, which refers to persons subjected to "force, deception or threats". We are talking about vulnerable young women whose vulnerability is exploited, sometimes with violence, but sometimes with profound emotional blackmail and with psychological pressure and force. If we are to keep to the original intention of the Bill, it is essential that we ensure that the—I think inadvertent—over-narrowing that is inherent in the Government's amendments is overcome.

That is why I have proposed amendments to the Government's amendments. In doing so, I have used language from other legislation. Although there are profound disagreements between Dr. Harris and me, for example, everybody in the House is absolutely united in wanting to protect women who are controlled, exploited, deceived, psychologically threatened and so on. My amendments, which use language drawn from the UN protocol on trafficking and from our legislation on forced marriages, would have the effect of including all the persons whom we wish to include. However, my amendments would do that without causing the problem caused by the original language, whereby, for example, a maid or a landlord could be described as controlling a prostitute or woman for gain. I always denied that that problem, which is portrayed as a common one, existed, but one has to face it when one has lost an argument.

The language that I have included says, first, that force should include psychological threats. That is language drawn straight from the Forced Marriage (Civil Protection) Act 2007. Secondly, I have referred to the exploitation of a person's vulnerability. That language is drawn from article 3 of the UN protocol on trafficking, which says:

"'Trafficking in persons' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force"— that is similar language to the Home Secretary's amendment 47—

"or other forms of coercion, of abduction, of fraud, of deception"— again, that phrase is used in the Home Secretary's amendment—

"of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person".

In fact, my amendments are still narrower than the international definition of trafficking. Nevertheless, I believe that they incorporate the fundamental issues.

I have talked to Home Office Ministers about that. I think that we are on the same page, but we need to start writing on it. Let us be clear: we are talking about an offence that will be tried in the magistrates court. It rightly carries a low penalty, and the reason is that the aim is to deter demand and ensure that those who would seek to pay an exploited woman for sex should obey the rule for any buyer anywhere: caveat emptor—buyer beware—and take care. For example, if one of our constituents came to us and said, "I bought this bottle of perfume from a table outside the shops, but it doesn't smell of anything, even though it says 'Dior' on the label," we would all be inclined to say, "Well, you have avoided the protection that you might have had if you'd gone into Debenhams and bought your perfume from there." The situation that we are talking about is exactly the same.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak 8:00, 19 May 2009

My hon. Friend is arguing that the Government's proposals as amended by her would help to keep women safe and help victims of trafficking. Could she cite evidence that the laws in Sweden have been effective in doing that? She gave no information on that point. Have the laws in the countries that she has named been subject to reviews of their effectiveness, as has been the case in New Zealand, which she has not cited, but where completely the opposite approach has been adopted?

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Those laws have indeed been subject to such review. There is quite clear evidence from research showing the extent to which there has been a reduction in trafficking in Sweden. I cannot find the citation, which is buried somewhere in this heap of paper, but I will send it to my hon. Friend by e-mail. That is also evidenced by the figures that I gave comparing Sweden and Norway. She referred to New Zealand, where there has been a Government-sponsored survey of the impact of the law. In this debate we are looking into how we can use the prevention of demand to protect women, and we are considering a legal mechanism to effect that prevention of demand. However, there are other mechanisms to prevent demand.

Small communities, where people know each other, act as a very effective mechanism to prevent demand. If someone knows the guy knocking on the door of the brothel and is aware that some of the women in the brothel are exploited or controlled by other people, they will be likely to tell their neighbours that he is sleeping with exploited women and paying for it. That changes the nature of the sex market in New Zealand—the fact that it is miles away from anywhere also changes it. The community is very small there and it is different from other places. I have quite specifically compared us to similarly diverse and similarly densely populated European countries that, I believe, have stronger lessons for Britain.

Photo of Keith Vaz Keith Vaz Chair, Home Affairs Committee, Member, Labour Party National Executive Committee, Chair, Home Affairs Committee

I know that my hon. Friend has a great interest and passion in the subject. However, she has clearly not had the opportunity to read the Home Affairs Committee report into human trafficking, which we published last Thursday, following a year-long investigation. The best way to stop demand is to stop the women from being trafficked into the country. That means going to the source countries. Once those women get here, it is too late. My hon. Friend's complaint is actually against prostitution. It is not about human trafficking; she just wants to stop prostitutes.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

My right hon. Friend is using an inaccurate definition of trafficking. Trafficking does not require people merely to be transferred across a border. Rather, trafficked women are often moved around within countries. There are women trafficked from Glasgow to Nottingham, Slough or London daily. We therefore cannot simply deal with such gross exploitation and violence towards women by protecting women from Romania or Thailand; we have to protect the women in our own communities who are trafficked and exploited through violence, pimping and abuse.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

May I just finish this point?

This is a point on which the Government and I do not completely agree, but I have chosen to support them in what I believe they are trying to achieve. I urge the Minister to accept my amendments because, without them, he will not achieve what I believe he is trying to achieve. The Government have identified the ill as the exploitation and control of a prostituted woman by another person. In effect, that is a modern day form of slavery. We are talking about women who do not have a choice because of "force, deception or threats", to use the Government's words. We also need to include the psychological exploitation that is so often at the heart of prostitution.

The Bill will not do what the legislation in Sweden has done. It will not make any man who pays for sexual services an offender. There is a strong argument for doing that. I believe that buying someone else's sexuality destroys human relations and creates a grossly unequal society. At present, however, I am not arguing for that position. I am hoping that the Government will accept my amendments and ensure that this offence will include women who are controlled by psychological means and exploited because they are vulnerable. Ministers have taken that position from their platforms in the past, and said that those women should be protected.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

My hon. Friend responded carefully to my earlier intervention, saying that there was evidence that trafficking in countries such as Sweden had been reduced. However, she did not address the question of whether violence against women in the sex industry per se had been reduced. In relation to New Zealand, does she not think that that country has just as many big cities as Sweden? To suggest that it has no large communities is an inaccurate reflection of that country.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

It does have large communities, but they are not as diverse as those in Britain. The mechanisms that we would need to use extend beyond those that would work in New Zealand. I have not challenged the New Zealand Government-sponsored review of their legislation, although I have spoken to women who have worked with prostituted women in Britain and who currently work with prostituted women in New Zealand. They believe that that report is not a proper description of what is happening on the ground there.

I did not answer my hon. Friend's question about violence against prostituted women in Sweden because I could not find the citations that she asked for. I can tell her, however, that I have spoken to Kajsa Wahlberg, a chief police officer in Sweden, who has made the specific point that one of the consequences of the Swedish legislation is that women are safer.

I want to conclude by looking at the issue of human rights. People have cited the conclusion of the report of the Joint Committee on Human Rights that introducing strict liability in the Bill would make it difficult for an individual to know how to regulate their conduct, and suggested that that could lead to an abuse of the rights of the punter. I would like to direct Members' attention to the parts of that report that clearly state that measures aimed at preventing prostitution can actually protect human rights.

Our international human rights obligations are quite clear under the United Nations convention against transnational organised crime, the convention on action against trafficking in human beings, the convention on the elimination of all forms of discrimination against women, the Beijing platform for action, and the declaration on the elimination of violence against women. All those international human rights instruments require states parties to tackle the demand for sexual exploitation. The Bill is our first serious attempt to do that since the legislation on kerb crawling 20 years ago. I urge Members to support my amendments and to support the Bill.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs) 8:15, 19 May 2009

It is important to put on record on behalf of Her Majesty's Opposition that the trafficking and exploitation of women and children is a vile and disgusting trade, and we can all agree that the Bill tries to tackle it more effectively. The question is the means that we should use. I am aware that many hon. Members wish to speak—in retrospect, I think it might have been a good idea to have had two days for Report—so I shall quickly state Her Majesty's Opposition's view on two points.

First, there has been a great deal of debate on the definition of "controlled for gain". Many of us thought that the definition in the original drafting was too broad and would not successfully target those who had been trafficked. Paradoxically, it might have caught many of those who assisted prostitutes in their trade. Government amendments 46 to 48 seek to narrow the original broad wording, and the Government are to be congratulated on that attempt. However, we believe that the language in new clause 25 is more appropriate, for the simple reason that it tracks the language relating to trafficking that is used in the Palermo protocol, which states:

"'Trafficking in persons' shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation."

That definition is included in new clause 25.

My second point relates to strict liability. It is important that people listening to the debate understand why we are wary and sceptical about this issue, and why we do not support the Government's importation of strict liability into the offences in clauses 13 and 14. We are not going soft on the horrible exploitation of vulnerable young women and children in any shape or form, but we do have a concern about the nature of strict liability offences generally. That concern has been put across rather well by Liberty, which has stated that such offences

"have traditionally been enacted in the regulatory sphere or for fairly minor offences where it is obvious that an offence has been committed. The strict liability standard is inappropriate where a person is unable to ascertain whether what they are doing is unlawful."

The proposed offence will apply whether or not a person knows that a prostitute is being controlled for gain or trafficked.

Liberty went on to state a point of principle:

"We are not aware of any other criminal offence of this nature where the strict liability standard applies allowing no prospect of a defence. It is worrying that such a move is being made here and it would be extremely concerning if this approach were to be extended."

That is our concern, too. Is this a slippery slope? Does it represent the thin end of the wedge? We are going into territory here that would be best avoided.

Photo of David Burrowes David Burrowes Shadow Minister (Justice)

My hon. Friend mentions a point of principle, but is there not also a point of practice in respect of parity with the Sexual Offences Act 2003, especially where there is an incorporation of a mental element? In the light of the proposed amendments, we also need to reflect on circumstances involving forced threats and deception; there should be parity of sentencing—not a level 3 fine, but an either-way offence.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

My hon. Friend anticipates me, and his points are well made. That is why we see merit in the proposal in new clause 25 for a "know or ought to know" test instead of a strict liability test, which would mean that it would be an offence only if the accused knew or was reckless as to whether the prostitute was controlled for gain. That will ensure that strict liability does not apply and it also deals with the issue of parity, to which my hon. Friend referred. The offence would require actual knowledge of or recklessness in respect of the circumstances; the person who should have known should be presumed to have had knowledge.

Photo of Denis MacShane Denis MacShane Labour, Rotherham

The hon. Gentleman is making his case fairly, but what he is actually saying is that there is going to be very little deterrent and no discouragement. I am not all surprised that Liberty, which is a libertarian organisation, is defending the rights of men to have sex almost on any terms, provided that they can put their money on the table and say later that they had no idea of the conditions of any of the women that they paid to have sex with. Liberty is a deeply reactionary and conservative organisation, whereas we need a more liberal interpretation of—

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

Order. I appreciate that the right hon. Gentleman does not like having his intervention abbreviated, but we are now running very short of time and I think that he has made his point.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs)

The right hon. Gentleman makes a point that is traditionally put across in such discussions and we have heard it debated many times. The point here, however, is that moving away from strict liability is not being soft on the offence nor indicative of failing to want a deterrent. I shall rapidly cite the reasons for that claim, before allowing other Members, many of whom have a great deal of knowledge in this subject, to speak.

We believe that the penalties for men who engage in sexual relations with trafficked people should be strengthened, and we support amendments 237 and 240 precisely because they will toughen the penalties for those caught under the new offence. Currently, a person found guilty of the new offence is liable to a fine of up to £1,000. The Government have not proposed any amendments to alter that, but under the amendments I mentioned, a person found guilty of the new offence under clauses 13 and 14 will be liable to imprisonment for a term not exceeding six months or a fine not exceeding the statutory maximum. On conviction for an indictable offence, a person is liable to imprisonment for a term not exceeding 14 years. Those severe penalties are appropriate given the ghastliness of the crime and offences that we are debating.

It is particularly important for Conservative Members to underscore the abhorrent nature of paying for sex with trafficked individuals, and it is in that spirit of toughness, while keeping a certain element of practicability in the back of our minds, that we believe we should move away from a strict liability test and replace it with a "know or should have known" test instead. That is the purport of new clause 25, which we support.

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

Many of us have had problems with lap-dancing clubs in our constituencies. The arguments were well rehearsed at length in Committee, so I willnot go over them again. I would like to speak to amendments 194 and 199, and Government amendment 54.

We have had trouble in our constituencies because lap-dancing clubs are currently licensed solely under the Licensing Act 2003. Those clubs share the same licences as cafés and karaoke bars and since the 2003 Act it has become very much easier for lap-dancing clubs to obtain a licence and far more difficult for our communities to have a say. Local authorities are also prevented from putting in place vital controls to govern how many licences can be granted in an area and whether private booths should be permitted.

Industry mapping has shown that new lap-dancing venues are opening on a nearly weekly basis and legal advice has shown that concerns relating to gender equality cannot be raised by local authorities or residents during the licensing process. This places local authorities in direct breach of their duties under the gender equality duty, which came into force in 2007.

I applaud the Government's response to this issue, but they have gone only so far. I think that the Bill is seriously undermined by the fact that the proposed sexual encounter venue category is optional and that venues where lap dancing is provided less than once a month are exempt from the category. In other words, the SEV licensing category is optional. Local authorities will not have to adopt it, although universal application has recently been advocated by the Select Committee on Culture, Media and Sport, following a lengthy review of the Licensing Act 2003.

It is crucial that we adopt the SEV category because it will guarantee local communities a voice. The current optional arrangement means that our communities will be deprived of that voice, so they are not guaranteed a greater say in the licensing of lap-dancing clubs because the outcome will depend on whether the local authority in question chooses to adopt that option.

Photo of Celia Barlow Celia Barlow Labour, Hove

In Brighton and Hove, money was ring-fenced for a private Bill to change the licensing law, and there is a will among all parties to control the spread of lap dancing, particularly in small communities like my own in Hove or Slade. There is concern that, on a temporary basis, it will possible to hold up to 11 such events a year, and it will be very difficult to police them in the same successful way that Sussex police have been able to police the larger venues.

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

Indeed, and it is very difficult—in fact, impossible—for local people to object to those temporary licences; only the police are able to do so, and in my experience they rarely do. This state of affairs applies despite massive objections, a 10,000-name petition that went to No. 10 Downing street and almost mayhem in some constituencies—not least my own.

We also need to protect local authorities from being vulnerable to challenge by the lap-dancing industry, which is quite a strong advocate. Furthermore, a sub-group of almost virtual lap-dancing clubs is growing, with businesses aiming to move their stable of women—a term used previously—from venue to venue. We really must not allow that to happen. We must protect local authorities from their vulnerability to this strong and powerful industry. The voluntary aspect governing the application of the Local Government (Miscellaneous Provisions) Act 1982 and the sexual encounter venue category will create an uneven licensing landscape, vulnerable to exploitation by the industry. Before the Licensing Act, uneven licensing between local authorities enabled lap-dancing clubs to exert pressure in favour of looser regulation. In 2002, for example, Westminster city council came under pressure to relax a no-nudity clause following the decision of a neighbouring borough council, Camden, to do so. Unfortunately, unless we can amend the new clause, that risk will be reintroduced.

It has been argued that universal reforms will impose a burden on local authorities, but closer examination of the actual process involved in implementation of the new clause reveals that that is simply not the case. Optional reforms will require local authorities to undergo eight procedures to install the controls that the new clause would introduce. However, if the reforms were applied universally, the process that each local authority would then undertake would be halved, and would require significantly fewer resources. We are talking about a low-cost procedure for local authorities, regardless of whether lap dancing clubs are involved.

Photo of David Lepper David Lepper Labour, Brighton, Pavilion 8:30, 19 May 2009

I believe that fees are set nationally under the Licensing Act, but under the usual regime the local authority can levy a charge for the application for a licence which covers the costs of the administration involved in consideration of that application. Would not universal reforms be cost-neutral?

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

Indeed. I intend to say more about that later.

Optional reforms would reduce the burden on local authorities that chose to adopt the new controls. The increased costs of enforcing the new clause would arise when an application was made. However, the costs of the process would be absorbed by licensing fees, and incurred by lap-dancing club operators rather than local authorities. That contrasts with the current circumstances, in which local authorities are not guaranteed to recoup fees through the premises licensing costs. Local authorities with existing premises would likewise be able to retrieve the cost of requiring venues to apply for the new SEV licence. The new category would, in fact, create efficiency savings for authorities.

Many local authorities currently undertake enforcement work against premises licence-holders who have specified dancing on their licences but who are, in fact, hosting lap-dancing events. The new clause will reduce the amount of work required in that context by providing for adequate scrutiny and funding through the increased licensing fees. It should also provide a solution that delivers local flexibility. Universal application of the new category is consistent with that, allowing local authorities more discretion when it comes to licensing clubs. Sexual encounter venue licensing affords flexibility within application and renewal rates. The duration of licences and a wide range of other factors could be included. The localities in which the sexual encounter venues could be licensed are assigned by individual local authorities. The definition of a locality is also determined by local authorities, as are licensing conditions.

Photo of Dan Rogerson Dan Rogerson Opposition Whip (Commons), Shadow Minister (Communities and Local Government)

At the beginning of her speech, the hon. Lady said that the arguments had been advanced before. That is in no small part down to her, and I congratulate her on the work that she has done. Does she agree that lap-dancing operators and their representatives ought to welcome a consistent approach across the country, which would enable them to know exactly how they will be treated because they would know that their establishments would be treated as sexual encounter establishments throughout the country?

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

They ought to welcome it, but of course they do not, because they prefer an uneven mixture of provision enabling them to exploit loopholes. Their industry has a history of exploiting loopholes and gaining as a result, and I do not expect its approach to change.

In its current form, the Bill exempts premises that provide lap dancing less frequently than once a month from requiring a sex encounter venue licence. Removal of that exemption is crucial, because we need to prevent the growth of lap dancing sub-markets. The proposed exemption will exclude a large number of premises that hold lap-dancing nights provided by lap-dancing agencies that take bookings in a range of public houses, bars and hotel venues. That sub-market is likely to grow in the light of such an exemption, especially in the context of falling alcohol revenue during the economic recession.

That is demonstrated by the recent case of the White Hart lap-dancing application in Lewisham, in London. A landlord stated:

"lap dancers are the sole salvation for my struggling pub".

Mapping of the lap-dancing industry between May and November 2008 revealed that a new lap-dancing venue opened, on average, every week during that period. Half those openings were in public houses or bars which now provide specialist lap-dancing nights.

We can prevent additional burdens from being placed on local authorities. The frequency-based exemption will increase the workload of local authorities, which will face higher enforcement costs in order to ensure that venues do not host lap-dancing events more than 11 times a year. That will place further financial pressure on authorities that are struggling now to recoup existing licensing costs through low premises licence fees.

I believe that the new clauses and amendments will add to what the Government have already done. I note and welcome Government amendment 54, which attempts to address the possible abuse of the TEN system, but I do not believe that it is strong enough.

Photo of Andrew Slaughter Andrew Slaughter Labour, Ealing, Acton and Shepherd's Bush

I entirely agree that the Bill is already having an effect. I offer as an example the fact that a major lap-dancing venue in west Kensington has withdrawn its appeal because it could see the writing on the wall. My hon. Friend is also right that temporary event notices are a way around regulation. The debate on this Bill has drawn attention to the fact that TENs in general—not just in relation to lap-dance clubs—represent a major loophole. Does my hon. Friend agree that it would be welcome if the Government were to issue a statement that the TEN system in general should be looked at so that local populations can challenge their use in the same way as they can challenge licences?

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

Indeed. The Minister spoke earlier about possible Department for Culture, Media and Sport plans to give councillors a voice. That—a community voice—is what has been missing. If the TEN system is looked at across the board, we will get what I and many of my colleagues started out in politics to support: a voice for local people. That is what has been missing.

Photo of Bob Spink Bob Spink Independent, Castle Point

Does the hon. Lady agree that one of the problems with the TEN is that local councils are either reluctant to collect the evident to prosecute, or do not have the required staff to do so, and so encourage breaches, which local people do not want? Local people do not understand why the Government are not taking stronger action.

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

That is absolutely the case.

In conclusion, I believe that the removal of the frequency-based exemption and universal application are crucial to ensure that these welcome reforms to lap-dancing club licensing deliver real and robust change, and I urge my hon. Friend the Minister to revisit the area covered by the amendments, if not here then in another place.

Photo of John Gummer John Gummer Conservative, Suffolk Coastal

Because of the way in which the House works, I am the only Member representing the Ipswich area who is able to refer to the terrible situation that arose there, and on which this Bill importantly bears.

Before I do so, I would like to say that I agree with Lynda Waltho about the licensing of the occasional venue; it certainly will be misused, and I hope the Government will resile from that. I do not, however, agree with the hon. Lady's comments about local authorities. They must have as much freedom as possible to decide whether they wish to use these provisions. I would just say to her that different parts of the country are very different, and it is perfectly reasonable for a local community to decide, through its local authority, that it does not need to have this kind of operation; it should be allowed to do that.

I turn now to what for me is the most important part of the Bill. I agreed very much with the comments of Fiona Mactaggart, who put the point very clearly. It is difficult for those of us who have a strong view about the nature of prostitution to speak in a way that is wholly acceptable to those for whom that view seems too harsh, or, indeed, too old-fashioned. I just think that the exploitation of human beings is at the heart of evil. There is little that one can say about it except that it is deeply offensive to the nature of human beings. To exploit the vulnerable—and particularly, if I may say so, those who are vulnerable because they are women—is offensive in a way that practically nothing else is. Therefore, we ought to talk about this subject very seriously, and I want to congratulate the Government on the delicacy of the manner in which they have sought to find an answer that helps us to move away from the old arguments. We have gone through a period when it was thought so improper for personal sexual activities to be affected by the law that we could not get beyond that and see how sometimes the human rights bit is about the exploited person and not about my human rights to follow to the nth degree any desire I might have. It is, I fear, 40 years since I wrote a book on this subject. In considering whether one might bring it up to date, I must say that I am appalled how right I was in some prognostications of what would arise from the perfectly reasonable liberal attitudes that made people think that we ought not to be as judgmental as historical societies had been. I join those who hold the view that the problem is that the pendulum has moved to a degree whereby it is difficult to discuss this subject without being thought to be censorious.

I wish to say simply that I hope the Government will move a little further, because it is very necessary to take on board what the hon. Member for Slough said. Our definition of trafficking must not be limited to the horrible but obvious business of collecting women—it is not always women, but it is in general—from poor and depressed communities in one part of the world and moving them to another part of the world where people have the money to indulge themselves in this way.

I must tell my own Front-Bench team that I thought it unacceptable to try to move away from having strict liability, because that is crucial; if someone wishes to pay for sex, they must recognise that in doing so they take on a particular burden. If they think that what they are doing is reasonable, they must recognise that the downside is with them and not with the woman concerned. I am sorry that our team has moved from the position that I thought it had taken—one of understanding that the libertarian position means being concerned about the woman in these circumstances—so I hope that it will move from the position it has taken.

One other issue must be raised very clearly. I have gone through the experience of those terrible few weeks in Ipswich when the bodies of a number of women were deposited in some of the most beautiful parts of my constituency. One must remember the circumstances of those girls, who had but a short period before been the light of the families who bore them. I wish to make that point, because we are not necessarily talking about girls who come from some appalling background and who are forced into this situation; we are talking about girls who, for one reason or another, find themselves believing that there is no other way in which they can pay for things—in this case, we are talking almost universally about drug habits. I cannot see that such a situation is any less exploitative than one where somebody is standing behind them with a knife, one where they know that they will be beaten up or one where they have been threatened that they will be deported. This situation is just as exploitative, and the suppliers of the drugs know perfectly well where the money is coming from. I do not see that one can make so clear a distinction between these things.

I come to the conclusion that it is better to move further towards the position that the hon. Member for Slough described so well, simply because we have to find a way in which the source of the money is restricted. This is a matter of trying to ensure that those who make this kind of prostitution successful enough to pay for the drugs or successful enough for the people to engage in trafficking find it more and more difficult.

Is it not reasonable in a civilised society to say to people whose very act of paying for sex is exploitative, at least to some extent—to use the words of the hon. Member for Slough—"Cave emptor. You have to make the decision, and the responsibility is with you"? Yes, it is true that we probably would not do this in almost any other circumstance in a free society, but we are not talking about any other circumstance. We are talking about the exploitation of one human being by another.

I am going to avoid any moralism, but I cannot escape the fact that all civilisations have understood that the central point about the difference between good and evil is that good is never exploitative; it is always free and it is always about individual, personal choices, whereas evil is always about exploiting someone else for one's own gain. If that is the case, I do not think that the strict liability test is a bad thing. I would move much further towards the position held by the hon. Member for Slough.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington 8:45, 19 May 2009

May I just say, Mr. Deputy Speaker, that this is no way to run a country, is it? We have had two hours of debate on amendments and about 15 more amendments will not even be discussed. We are talking about the prospect of legislation that will put prostitutes' lives at risk and will allow people to be arrested, detained and deprived of their liberty. We have had two hours, and that is all. I say to the Government that we cannot go on like this with criminal justice legislation.

We also cannot legislate on the basis of such lack of knowledge. Along with my hon. Friend Lynne Jones, I have tabled questions just to try to get some information. We asked the Government how many prostitutes there are in the country, and about their ages, sexes and basic circumstances, and we were told that information was not available. We then found that 80,000 was the figure used in one of the reports—one reference mentioned that a vast proportion were trafficked. We asked how many were trafficked and the Government estimate that came back was 4,000. I asked about incidents of violence in relation to prostitution, and was told that the information was not held centrally. I asked for information about prosecutions concerning brothels, and was told that information was not held centrally. We not only do not give ourselves the time to discuss legislation, but we legislate in absolute ignorance of the facts of what is happening on the ground.

Let me very briefly address the amendments tabled in my name, and particularly new clause 37. I would welcome a Division on that new clause, Mr. Deputy Speaker, but I accept that we might have to make choices between new clause 4 and new clause 37. If there has to be a priority, I would support a Division on new clause 4, because it relates to children.

A number of us have tried as best we can to get as much information on the subject as possible. I pay tribute to the English Collective of Prostitutes, which has brought together the Safety First coalition. I have met a number of representatives of the constituency of Mr. Gummer, and particularly from Ipswich. I have met the GMB sex workers branch; the Zacchaeus 2000 Trust, the religious group; Imperial College, which has carried out research; the Royal College of Nursing; the Women's Institute, which got involved in these discussions; the National Association of Probation Officers; and Women Against Rape. They have tried to raise at least some awareness and consciousness of what prostitution is like in this country. My amendments are based on that information and on the level of understanding that many of us have gained.

I have met sex workers in this country—men and women—who are sex workers by choice. They feel that there is no reason why they should be penalised for offering what they believe is a service to other human beings. They do not believe that that relationship is exploitative. Like others, I find that difficult to accept, but we have met those people and discussed their role with them.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

Criminalising such activities makes it difficult for people to make the choice to exit from that sort of work.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

What came across from all the information we have gleaned, and from the Government's strategy discussions in the early stages, is that there are women and men who undertake such work from choice, but most others—the vast majority—do not. They are there because of push factors such as poverty and drug dependency, and they often have mental health problems or other background problems. They need assistance to get "off the game", as they say. The one message that comes across loud and clear is that anything that criminalises their actions in any way undermines their ability to leave those occupations voluntarily.

Photo of Fiona Mactaggart Fiona Mactaggart Labour, Slough

Is my hon. Friend aware that one of the most effective exit projects in London, based at Toynbee hall, supports the new orders for prostitutes? Those workers with drug-dependent prostitutes say that often there are co-dependency issues that can be dealt with only if the prostitutes are brought to diversion projects by the court.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

We all bring anecdotal evidence. I have been convening Safety First Coalition meetings for more than three years and I have met a group of people who work with prostitutes in such centres and I have to tell my hon. Friend that a vast proportion of them oppose any measures that would introduce criminality in the system, because engagement with the legal system is such a deterrent.

Photo of Lynne Jones Lynne Jones Labour, Birmingham, Selly Oak

To counter the point made by my hon. Friend Fiona Mactaggart, on Friday I was at a meeting of people involved in a project in Balsall Heath on the boundary of my constituency. The people in that group are very much of the view that it is so important to build up trust with the people they are trying to help that they do not think a coercive and punitive approach would achieve that.

Photo of John Martin McDonnell John Martin McDonnell Labour, Hayes and Harlington

In fact, in the consultations the Government undertook, the view expressed time and again in various representations was that punitive measures actually make matters worse. It did not help that the Government did not publish the 67 responses to their consultation—a vast proportion of which opposed their proposals on criminalisation. As we learned from Ipswich, the overall priority is the need for safety. Anything that undermines the safety of sex workers should be avoided.

On new clause 4, I endorse the assertion made by Dr. Harris that we are talking about children who are victims. Almost every children's agency with which we have had discussions has said that we need to ensure that there is decriminalisation. Anything that increases the stigma for children and prevents them from coming forward will undermine their ability to seek protection and security.

Turning to new clauses 37 and 38, we have to recognise that women work together in brothels for safety reasons. My new clause would simply bring into legislation what Ministers were arguing for only a few years ago: a recognition that where two women come together, with a maid or madam—however we describe her—they should not be prosecuted under legislation relating to brothels. When we undertook our consultation, the English Collective of Prostitutes provided their analysis showing that it is 10 times safer for women to work in a brothel than to work on the street. As was mentioned earlier, small brothels often involve people working co-operatively to ensure their safety.

In 2005, when my hon. Friend Fiona Mactaggart was a Home Office Minister, she announced that two women should be able to work together from premises, yet that idea has been dropped and we are now introducing relatively punitive measures. In 2006, the Home Office acknowledged that—I quote from an article in The Times

"the present definition of brothel ran counter to advice that, in the interests of safety, women should not sell sex alone."

In recent months, the RCN has also debated the fact that nurses and health workers who work with sex workers are fearful for the safety of women who work on the street and are urging the Government to reconsider. At that time, the Government and others were considering four women working together. I am willing to accept a compromise of two women if that would increase their safety. The reality of the sex trade in this country is that women are working together to provide one another with safety and security.

Mention has been made of New Zealand, where a law makes a distinction between small, collectively run brothels of up to four people working together and larger brothels, which must be licensed. All the reports from New Zealand have said that the new legislation has increased the safety and security of women by enabling them to work together in that way.

Some of the information that we have managed to glean suggests that prosecutions for keeping a brothel used for prostitution have been increasing. In 2004, there were only three such prosecutions; in 2007—the latest figures that we could extract—there were 41. So the increasing pressure that is being put on women working together in brothels is forcing women on to the streets and into insecure and unsafe conditions.

One of the reasons why police harassment of brothels and sex workers has increased is, unfortunately, the incentive provided by the proceeds of crime legislation, whereby 25 per cent. of any assets confiscated during a raid on a brothel goes towards the police, 25 per cent. goes towards the Crown Prosecution Service and the Inland Revenue takes the rest. That is almost like the Government and the police living off immoral earnings. No wonder that there is an incentive to increase the number of raids on brothels.

What we are asking for in the new clause is simply a recognition of the reality that women will continue to work in the sex trade. If they do, they should be kept as safe as possible, and one way of doing so is to enable them to work in small numbers in brothels, where they can work co-operatively and therefore avoid the threat of being out on the street.

There are further amendments in my name. The Government are trying to introduce legislation whereby someone who is found in the same place twice in three months can be prosecuted for loitering or soliciting. I do not believe that something that happens twice in three months can be construed as persistent behaviour. We should reduce the period, and in amendment 6, I suggest using the phrase "twice in one week"—otherwise, we will draw more people into the criminal prosecution process, and they will therefore be more unsafe if they work in that way.

In amendment 7, I refer back to the debate that we had on previous legislation when a system of penalties was introduced whereby a person goes before a court, is given an order and placed before a supervisor. In all the discussions that we have had with NAPO—the trade union that represents the supervisors, given that the Government inform us that they will be appointed by the probation service—it has told us that the resources and trained staff are not available. In fact, the probation service is being cut back at the moment, as we learned from a seminar today. Therefore, the staffing is not available.

If such people, who lead extremely chaotic lives, do not attend a series of three interviews, they will be placed back before the courts. We are told today that that will be done as soon as practicable. We have been given such assurances on other new laws and crimes, and the phrase "as soon as practicable" can mean that someone is detained at least overnight. Our fear is that someone could be detained for up to 72 hours. That would have a devastating effect not only on individuals, but on their families. Many of them have children who need to be cared for. Therefore, my view is that that provision will render itself unworkable, while having a deleterious impact on the women themselves and on their families. It will be a way to intimidate women even further and undermine their ability to get off the game.

Photo of Paul Beresford Paul Beresford Conservative, Mole Valley

In the 30 seconds left, may I sound a positive note? I welcome new clause 22, which supersedes what I have been trying to do for many years, namely increase the penalty for encryption of child abuse pornography that is tucked away in data, and failure to give the key. I used the example of an individual who had 150 gigabytes of encrypted material. There were four years of attempts to break the encryption, but the attempts failed. The gentleman concerned has just been sentenced, and the best that could be managed for him was a community order for three years. That happened about four days ago. In that example, the judge tried to turn the matter to get the best result.

Debate interrupted (Programme Order, this day).

The Deputy Speaker put forthwith the Question already proposed from the Chair (Standing Order No. 83E), That the clause be read a Second time.

Question agreed to.

New clause 22 accordingly read a Second time, and added to the Bill.

The Deputy Speaker then put forthwith the Questions necessary for the disposal of the business to be concluded at that time (Standing Order No. 83E).