My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Falconer of Thoroton.)
I shall speak also to the other amendments in the group. Amendment No. 290 inserts "or knowingly" into Clause 54(1), so that the offence of paying for sex with a child is committed if a person either intentionally or knowingly obtains for himself the sexual services of a child. The other amendments do the same for the other offences in Clauses 55 to 59, which deal with prostitution and child pornography.
The amendment was suggested to us by the Metropolitan Police, which has provided very helpful briefings to a number of noble Lords and suggestions for several parts of the Bill, all based on its thorough professional knowledge of the subject matter. The Metropolitan Police says that it can often prove, through painstaking investigation, that a person had knowledge of prostitution and was gaining financially, but that it may be more difficult to prove intention—the state of mind of the person.
The example that the police pose is of a pimp who says that he knew that a person was working as a prostitute, but that he did not intend that to happen. Would he get away with it under the offences? They tell us that that is not fanciful, and say that pimps are likely to make such statements. For example, a man drops a woman off in a red-light district, goes home and waits for her to return with the money. He says that he knew that she was working as a prostitute and giving him money, but that she wants to do it. It was not his intention for her to do it. The Minister looks sceptical, but that is what the police have told us.
The police's concerns were in particular in relation to the prostitution offences—those in Clauses 55 to 59. I have also added "knowingly" to Clause 54, possibly unnecessarily, but for good measure in case there were people who might say that they knew that they were paying for sexual services with a child but did not intend to do so. I beg to move.
The noble Baroness puts the case very clearly. I find it quite difficult to see how the activities covered in the relevant offences could in practice be committed knowingly without being committed intentionally. For example, is it really likely that a person who knows that he is obtaining sexual services for himself in return for payment will not be intending to obtain sexual services? That is perfectly easily dealt with. Similarly, is it likely that a person who knowingly controls the activities of a prostitute will not be intending to do so? Again, I find that quite difficult.
The only situation in which I can conceive of a person having the requisite knowledge but not the intention is where he is not acting with free will. For example, where a person makes his house available for prostitution as a result of a threat, he would knowingly be facilitating prostitution, but he would not intentionally be facilitating it. But such a person should not face criminal liability, especially criminal liability carrying high penalties.
However, I will think about the examples given by the noble Baroness. I say that without giving rise to any expectations. Subject to considering the examples, our present view is that not much would be added to the existing offence.
I thank the noble and learned Lord for that reply and for being prepared at least to think about the matter further. In turn, I will consider carefully what he has said, in particular whether one can control without knowing about the matter. That is a satisfactory basis on which to proceed and I beg leave to withdraw the amendment.
I shall speak to the amendments in two groups because they are not specifically related. I shall speak first to those in the 290s and then to Amendment No. 303A and those following.
I begin by acknowledging the great progress that the Government have made in advancing recommendations made in the sex offences review Setting the Boundaries. Clauses 54, 55, 57 and 59 comprehensively set out in law for the first time the range of offences related to the abuse of children through prostitution and pornography. The proposed offences properly acknowledge that all children, as defined by the United Nations Convention on the Rights of the Child and the Children Act 1989, up to the age of 18 are victims of abuse. In this respect, I wholeheartedly welcome these clauses.
However, as it stands, Clause 54 makes a set of distinctions in relation to the age of a child who has been abused which I regard as flawed and to which I fundamentally object. The clause proposes that in cases involving under-16s, the maximum sentence available to the court should be imprisonment of 14 years. However, for cases involving 16 to 17 year-olds, the maximum sentence available to the court would be seven years regardless of the particular circumstances of the case.
I submit to the Committee that such distinctions do not reflect the reality of the lives of children who are abused in this way. The age limit seems to me to be arbitrary. It is difficult to gauge things at that particular age in the development of growing children/adults.
The clause as it stands appears to establish a blanket assumption in law that in all cases the gravity of the offence and the effects upon the child are lessened where the child is over 16, whatever the evidence or the circumstances of the crime committed. Research evidence produced by, among others, the Children's Society and Barnardo's demonstrates the highly complex range of factors that can result in the abuse of children in prostitution. For many children, problems may have begun very early on in their lives that have led to them presenting a high level of vulnerability. We must remember that vulnerability at any age is identified and targeted by abusers.
Although the offence may have been committed when the child was 17, the child's engagement with abuse through prostitution was more often than not begun at a much earlier age. I am not suggesting that the defendants in cases involving 16 to 17 year-olds should be held responsible for previous incidents of abuse of a child. However, I ask Members of the Committee to consider in this respect that the effects on the child and the seriousness of abuse cannot be so strongly, and in my view arbitrarily, linked to age. Control and coercion begin at a much younger age and most 16 to 17 year-olds will have been conditioned into a lifestyle of sexual exploitation which means that they are not able to make informed choices whether they are 13 or 17 years of age.
That brings me to the question of a link between the age of consent and the distinctions in sentencing that the clause makes. The lower maximum sentences that are available to the courts for 16 and 17 year-olds imply an assumption that the child being old enough to consent to sexual intercourse is relevant to the offence of paying for sex with a child. The suggestion is that on some level the child can consent to his or her involvement in prostitution. I simply do not believe that this approach is consistent with that set out in Setting the Boundaries. The House must acknowledge that this perception of children's involvement in prostitution is an outdated one which the Department of Health has sought to address in its 1999 guidance to local authorities setting out how they should treat children as first and foremost in need of protection and support. This came about as a result of campaigning by organisations such as the Children's Society.
Such guidance has resulted in better responses to children abused in this way and a decrease in the number of proceedings taken against children and young people. But the situation lacks consistency across the country. Children are still liable to prosecution related to their abuse in this way through existing offences in the Sexual Offences Act 1956 and the Street Offences Act 1959, which this Bill does nothing to address.
Latest Home Office figures show that in 2001 there were eight cautions, 14 prosecutions and six convictions of children under the age of 18 under Section 1 of the Street Offences Act 1959. The majority of those children had been between the ages of 16 and 17. We have a duty to protect 16 and 17 year-olds and I am concerned that the clause as currently drafted falls short of this need and sends out the wrong message to abusers. I am also concerned about the possible abuse of the distinction the clause makes by the defence in trying to secure a lesser sentence by arguing that the child was believed to be over 16. I seek the Minister's reassurances on that.
To some extent, Members of the Committee have already looked at this matter in earlier debates on the clauses relating to the sentences of care workers, when the need for the application of the principle of proportionality was highlighted. I agree that there is a need for sentences to be proportionate to the offence that has been committed and for the circumstances of the case to be fully considered. However, I am concerned that as the clause is currently drafted sentencers will be prevented from matching the offence to the sentence by the arbitrary bar being placed on the maximum limits according to age distinctions. As legislators, surely we must aim to set broad parameters that are reasonable and workable, based on evidence, and leave it to the Lord Chief Justice and the judiciary to decide on the length of sentence they believe to be appropriate.
These amendments would ensure that the judiciary have at their disposal the power to give sentences of up to 14 years where a person is convicted of paying for sex with a child. These amendments are supported by the Children's Society, Barnardo's, Childline and the NSPCC. I beg to move.
I support the amendments standing in the name of the right reverend Prelate and myself. I, too, will address my comments first to the 290s and latterly to the 300s. I strongly support the principle of the amendments. I believe there should be no less protection for 16 and 17 year-olds than for under-16s.
Some while ago, I was at a shelter for homeless young people between the ages of 16 and 23 and I saw a young girl speaking with her neighbour in the dining area. She was talking about her visit to Ibiza and about the dancing, the sex and the drugs involved. Later I spoke to the volunteer worker who sat next to her. He described to me how she had had her leg very close to his as she had been describing those incidents.
I remember another time when a young woman wanted to ask my advice on laundry. She held up an undergarment made of leather with steel studs and asked my suggestions for cleaning it. When I looked at the garment, it clearly stated "dry clean only". I discussed this later with another staff member. He had had an identical conversation with a girl about this matter.
My point is that young girls who have had very poor experiences in the family and perhaps later on in care often try to find a way to add value to their lives by securing the sexual attention of adults. I certainly believe that we must do all we can to protect those children against being used by adults. Any child making the transition from adolescence to adulthood may lose his or her way. That could happen even to one of your Lordships' children. We all know that the transition from adolescence to adulthood is a difficult time. We need to be as protective of these children as we can.
In addition, we need to be aware of the health risks involved. This matter was very much brought home to me recently by visiting sufferers of HIV/AIDS. One man had experienced the disease for six years and had lost his wife through HIV/AIDS. Another young woman had lost her child the previous week from AIDS. That brought home to me the risks associated with sexually transmitted infections, in particular HIV/AIDS. We know that incidences of many of these infections are now rising. Experienced sex workers are normally aware of the risks and take the necessary protections. Newcomers are less likely to be prepared, in particular children. At the moment when the client and the girl have to negotiate practising safe sex and the use of a condom, immaturity and inexperience puts children at a considerable disadvantage. Those are my concerns. I look forward to the Minister's response. Finally, on the latter group of amendments I should also welcome his making clear how he intends to implement the legislation to make it effective.
Notwithstanding the obviously excellent intentions of the right reverend Prelate and my noble friend Lord Listowel, I think the Government have got it about right and that the amendments go too far.
First, there are many girls of 16 and 17 who look 19 or 20. If a 16-year old happens to be a professional prostitute it is even more likely that she will look older than she is. But Clause 54 does not cover only prostitution. As drafted, if a man says to a girl of 17, "Let me buy you a couple of drinks and then I expect something in return", or, "I will take you to a pop concert", or something of that kind, "in return for sex", he would be caught by it. Is it seriously suggested that such men should be sent to prison for 14 years? Incidentally, if he were to say to the girl, "Let me give you a ride in my powerful sports car", I think he would be safe because no money or notional financial transfer would have taken place. As I said, I think the Government have got it about right. This is a difficult issue: I should be interested to hear the Minister's response.
Notwithstanding the difficulties envisaged by the noble Lord, Lord Monson, I rise to support the right reverend Prelate in these amendments. It seems to me that there is here a question of vulnerability and the old word "intimidation" comes into play again. Often we are talking of young people who do not have the security of support at home. Many young people who come out of care at the age of 16 and are left to the mercies of the streets are particularly vulnerable. We know that far too many end up in some form of prostitution, whether on their own account or inveigled into working for others and offering sex for money. For someone who does not have any, there is also the attraction of money. Therefore, this concerns a particularly vulnerable age group.
Picking up on some of the points made by the noble Lord, Lord Monson, and the examples given, this applies also to 15 year-olds. It is a particular problem in this country and I suspect in other developed countries that 14, 15 and 16 year-olds could be taken for any age. It is difficult to discern their precise age. However, that should not prevent us from considering the age at which young people should be protected from this kind of violation of their bodies.
The problems of this particular age group—16 to 17 year-olds—is a theme I have supported throughout the Bill. The irony is not lost on me. The people who have supported the amendments, which I too support, are the very people who agreed to lower the age of consent to 16, by which all of these problems arise. In a number of different contexts in debates on the Bill we have concerned ourselves with the very young age group of those between 16 to 18 who, because the majority of people now stay on at school after 16, are schoolchildren. Some are extremely unworldly, others are very streetwise and there is everything in between. I want to stand up in this Chamber and fight for some protection for those young people, and in particular those who are very vulnerable and who do not enjoy the love and care of a supportive home.
The protection given by the provisions—not the amendments but the basic provisions which the right reverend Prelate's amendment seeks to protect—is for 18 year-olds and under in relation to child prostitution and child pornography. The issue addressed by the amendment tabled by the right reverend Prelate and the noble Earl is whether distinctions should be drawn by reference to age in relation to the "mistaken and reasonable belief" defence and in relation to the sentence which should be passed depending on the age of the victim in the case. Life is the maximum sentence in the case of a victim aged 13 or under; 14 years if the victim is aged 13 to 16 and seven years if the victim is aged 16 to 18 years. Mistaken and reasonable belief is a defence if the victim is over 13 but not a defence if he or she is under 13. This is a difficult issue. One has to get the balance right. We believe we have got it right.
I shall deal with all the amendments in the original group because the noble Earl has dealt with all of them. However, I do not in any way want to prevent the right reverend Prelate coming back later on amendments by separating them.
The effect of Amendments Nos. 290A, 290B, 295A, 295B, 303A, 303B, 312A and 312B is to remove the defence of mistaken belief in age from the child exploitation cases at Clauses 54, 55, 57 and 59. The offences in this clause are designed to tackle the exploitation and abuse of children through prostitution and pornography.
However, in some circumstances a person might exploit a child in that way thinking that the child is an adult over 18. It is right that, where the court considers that belief reasonable, the person would not be guilty of this offence. For example, if a person were to pay for sex with a child he knew was in the same class at school as his 14 year-old sister, obviously the court would be very unlikely to consider it reasonable that the offender thought the child to be 18 or over. However, were he to meet a 17 year-old girl in a night-club, for example, which admitted only those over 18, he might genuinely and reasonably have believed her to be 18 or over. It would be wrong in that situation to have a strict liability offence. Having said that, the mistaken belief in age defence available here does not apply to cases where the child victim is under 13. In those situations the offences carry strict liability. Any age distinctions necessarily are arbitrary to some extent. However, we think we have the matter about right.
Behaviour that involves causing, inciting or controlling prostitution, even where the offender reasonably believes the child is 18 or over, might still constitute an offence under Clauses 56 or 58. That is how we deal with the mistaken belief issues.
As far as concerns the penalties, the purpose of Amendments Nos. 290A and 290B is to remove one of the penalty tiers for the offence of paying for sex with a child in Clause 54. As drafted, the offence carries a maximum penalty of life where a child of under 13 is involved and where penetration takes place; 14 years for all other behaviour with a child under 13 and any sexual activity with a child aged 13 to 15; and seven years for any sexual activity with a child aged 16 or 17.
In England and Wales the age of consent is 16. The noble Baroness, Lady Blatch, is right to refer to that as a factor—and it must be—that one takes into account. Sex per se with a child over that age is not illegal; therefore, it is the nature of the exploitation involved with prostitution and pornography and not the sex per se that we seek to tackle in this situation. So a lower penalty than that applied where the child is below the age of consent is appropriate.
That is the basis upon which we have drawn the distinctions in age. They are carefully thought through. I am sure that not everyone will always agree with them. However, a difficult course must be taken on these age levels. We think we have got the situation about right.
I am grateful to the noble and learned Lord for his reply. I apologise for slightly misleading him earlier. In this debate my priority lies with Amendments Nos. 290A and 290B. They concern the age distinction. I do not regard the other amendments as a priority and should like to withdraw them.
I was always told that when one makes a nuisance of oneself one should be gracious. Therefore, I shall be gracious by not pressing all my other amendments, but I want to press Amendments Nos. 290A and 290B because I am unpersuaded by what has been said about the age aspect. I do not know whether I can actually make a nuisance and test the opinion of the Chamber, but I am minded so to do.
moved Amendment No. 291:
Page 25, line 28, at end insert "(including sexual services)"
These government amendments—Nos. 291, 315 and 317—make explicitly clear in the definitions of "payment" and "gain" in Clauses 54 and 60 that where reference is made to the provision of services, it also includes the provision of sexual services.
The amendments would make it clear that the prostitution and child pornography and trafficking offences cover the situation where the offender committed the act in return for, or in the expectation of, sexual services. In the case of the offence of paying for sex with a child, the amendments make it clear that a person can pay for sex with a child by providing or promising to provide sexual services.
The police have reported cases to us in which paedophiles provide children for their acquaintances sexually to exploit in return for being able to have sex with other children to which the exploiter can provide them access. The amendments would cover such situations and enable us to prosecute such people.
Although it is possible to argue that it would be harder to prove that type of "payment" or "gain" than, for example, a direct cash or goods transaction, in some cases it may be possible to prove it by way of witness testimony, written e-mails, letters or other communications. For that reason, it is important that the provision is included specifically. I beg to move.
I shall speak also to Amendment No. 314. Amendment No. 294 would amend Clause 55 by replacing some words in subsection (1)(a), so that the offence would become one of intentionally causing or inciting another person to be abused through prostitution, or to be involved in the making or production of abusive or indecent images. The inspiration for the amendments is again the Metropolitan Police Service, which, sadly, has so much experience in the misery of child prostitution and pornography.
There are two aspects to the amendment. First, it would replace,
"causing or inciting another person to become a prostitute", with,
"causing or inciting another person to be abused through prostitution".
The police point out that there is no doubt that children are abused through prostitution. They believe that it would be clearer for juries if the offence was specified in those terms. They say that there is a difference between adult prostitutes who willingly and freely ply their trade and child prostitutes, who are always victims.
Secondly, Amendment No. 294 changes the words, "involved in pornography", to,
"involved in the making or production of abusive or indecent images".
Amendment No. 314 amends the definition of pornography in Clause 60 in a similar manner.
The Metropolitan Police believe that a clearer distinction should be made between child and adult pornography. They are concerned that adults may associate pornography with the kind of adult pornography that usually involves willing participation. It is different with children. They are not willing participants in pornography. The images are the result of children being abused—either sexually or through the abuse of trust. My widened definition is intended to capture that abuse.
The current definition focuses on the indecent end-result—the still or moving image—but does not convey the awfulness of the process for the child. The police want to be sure that juries understand the offence before them. They are genuinely concerned that by using language that has a meaning for adults that usually involves free participation, we shall not convey the seriousness of the offence when children are involved. They therefore suggest moving to a different language, so that juries can be in no doubt that we are talking about a different and nastier kind of offence. I beg to move.
I support the amendment and want to make an additional point to those raised by the noble Baroness, Lady Noakes. For many years, children's organisations have struggled to change the nomenclature used in relation to children suffering this form of abuse from prostitution. This offence involves not young prostitutes but children suffering abuse. Although I am critical of the Bill for failing to have any therapeutic content, the approach would have a great emotional effect on young people, who would see that abuse, not prostitution, was referred to. That would be hugely helpful.
I support the thrust of the amendment and commend to the noble and learned Lord the Minister the recent report from the NSPCC, which was published by the Joseph Rowntree Foundation and carried out in collaboration with a university research department. It studies 55 cases of persons under 18 who have been severely abused.
From these Benches, we, too, support the amendment. The noble Baroness, Lady Noakes, made a very good case and the noble Baroness, Lady Howarth, has experience par excellence in this field. Her reference to the fact that young people of the age involved are not prostitutes but abused children was very pertinent. We support the amendment.
We all agree on the principle in relation to the amendment and we all agree that there is an absolutely clear distinction between people who are adults who go into prostitution and the children whom we are seeking to protect in this regard. I completely sympathise with the noble Baroness's comments.
The advice that I am getting, which seems entirely right, is that the amendment would make it harder rather than easier to get a conviction in the courts. If one added the words "abused" or "abusive", they would need to be defined for the purposes of the charge. The noble Lord, Lord Campbell of Alloway, supported the change because it "tightened up" the definition. I fear that that is right. There would need to be not only an element of prostitution but also an element of abuse. The noble Lord, Lord Campbell of Alloway, is nodding.
I fully appreciate the principle of the amendment but I assure those noble Lords who support it that it would have precisely the opposite effect to that which they intend. The provision would make it much harder rather than easier to get a conviction in this regard. I am sympathetic to the amendment's intent but I strongly urge the noble Baroness to think again about it.
I thank the noble and learned Lord for that; I am glad that he is sympathetic to the amendment's aim. There is something to be said for the words used in defining the offence. I was trying to make that point, and we discussed it at length on our first day in Committee in relation to the offence of rape—we discussed whether that had a meaning that should not be changed by the Bill. I shall reflect on what the noble and learned Lord said.
I should have thought that with regard to children it will not be any more difficult to prove abuse because the situation of child prostitution or child pornography is, by definition, abusive. That was my point. The amendment would ensure that juries understand that we are dealing with the abuse of children, not with something that they may associate with what adults do freely.
I shall reflect again on the amendment but I may return to it on Report. In the mean time, I beg leave to withdraw the amendment.
In moving this amendment, I shall speak also to the other amendments that are grouped with it. The amendments have one common purpose: to remove the requirement that offences relating to prostitution and child pornography be done for or in the expectation of gain for the defendant or a third party.
Two thoughts lie behind the amendments. The first is that requiring the prosecution to prove that the defendant acted in the expectation of gain would simply add an unnecessary hurdle. With regard to Clause 55, is it not enough that the person intentionally causes the child to become a prostitute or be involved in child pornography? Why does the expectation of financial gain also have to be proved? What if the person acts in that way for no more than the perverse satisfaction of seeing a young life ruined? Would we say that no offence had been committed?
My second reason for the amendment is that confining the offence to financial gain is unnecessary and potentially wrong. Paedophiles get children involved in pornography partly so that they can trade the resulting indecent images for yet more indecent images. The common currency of paedophiles often is not money; it is the disgusting material that feeds their sick minds. I do not believe that the Bill as drafted, even with government Amendments Nos. 315 and 317, covers that. The report, Shifting the Boundaries, said that we thought that introducing or facilitating the sexual exploitation of a child was so harmful and potentially damaging to the child and his or her future that the offences should not require any financial reward.
The amendments are intended to find out from the Government why they believe that gain is an essential part of the definition of the offence and, from a public policy perspective, what it adds to the offence. I beg to move.
I support the amendment. I shall be very brief. If one takes the pornography branch, what does "gain" mean? It can mean two things. It can mean financial benefit or it can mean a form of sexual gratification. As it stands, that appears to be quite unnecessary. The evil that the clause is supposed to prevent would be better dealt with if the amendment were accepted.
The noble Baroness, Lady Noakes, made a good point. If the noble and learned Lord the Minister consults the Metropolitan Police and other police forces, he will find that they will tell him that having to prove gain will mean fewer convictions. While I am on my feet, I put down the marker that we shall return to the subject of gain when we reach the clauses on trafficking.
I support the amendment. It is another illustration of the confusion between abuse and prostitution, particularly in relation to young people. If one is seeking to prove prostitution—I speak having worked in the adult field and dealt with sex lines and other issues, and I know a great deal about the law about gain in relation to prostitution—I understand why the provision is written in that way from the point of view of the law. However, if one considers the matter from the point of view of trying to protect children, all of this is child abuse. All of Clause 55 relates to children in abusive situations. That is why I am so concerned about the drafting of the Bill in this way.
I, too, support my noble friend's amendment and what was said by the noble Baroness, Lady Howarth. The amendment is an improvement on the offences involving prostitution and child pornography—it would remove the requirement on the prosecution to prove that the perpetrator or third party had gained financially. I hesitate in saying "gain financially", because my noble friend Lord Campbell of Alloway raised the issue of the definition of "gain". What is "gain"? Proving expectation of gain might also be an onerous burden for the prosecution. It could require forensic accounting evidence or access to papers carefully concealed by the defendant.
The requirement to prove that the action was for gain might also provide a bizarre defence. Some defendants may escape conviction by arguing that they committed the offence, not for gain, but for purely sexual gratification—the point made by my noble friend Lord Campbell of Alloway. Therefore, it is important that "gain" is properly defined.
It would be unjust to leave the clause as it is. That is why I regard it as vital to support my noble friend in this matter. If the noble and learned Lord cannot give us a definition today, it is very important for us properly to understand the ease with which it can be proved, whether for sexual gratification or financial gain. Very seriously abused young people will have no protection in the courts simply because it will be nearly impossible to prove "gain", by whatever means, as it is defined.
We, on these Benches, are inclined to support the amendment. It is very difficult to define "gain" and to prove the expectation of gain. As the noble Baroness, Lady Howarth, said, it is child abuse, whether or not the perpetrator gains financially or otherwise; therefore, it is a very serious offence. Will the Minister clarify the meaning of "gain" and how it would be interpreted in the courts? It would be very helpful to the Committee.
Will the Minister remind us of the existing law on controlling prostitution, and whether the word "gain" is used in it? I suspect that it has been used without any difficulty since the previous century.
This is an important and difficult amendment that raises a point that we need to consider very carefully. As the noble Lord, Lord Hylton, said from the Cross Benches, we will come to the matter again in relation to trafficking. We have decided to delete the reference to "gain" from the provision on trafficking. If we are going to retain the reference in this clause, we will need a reason for that difference.
I shall set out the position and undertake to return on Report with a more detailed one. I do not want to give rise to any expectations, but it is a very difficult issue. The definition of "gain" used in these clauses is found at Clause 60(3). It is wide enough to capture, not just those who receive direct financial gain through their activities relating to the sexual exploitation of others, but also those who receive drugs or who are allowed to miss a debt payment, for example, in return for their deeds. It covers benefits that may or may not materialise. It also covers situations where the gain is not for the offender but for a third person. It is very wide.
Our intention with those offences is to catch those engaged in exploitative relationships with adults who are prostitutes and children abused through prostitution and pornography.
May I finish my remarks and then return to the noble Lord's point? We do not want to cover people who are not engaged in exploitative relationships, but who may, for example, be attempting to help someone or to act in their best interests.
I shall give two examples of that. The first is the potential case of a mother whose 16 year-old daughter is working as a prostitute. She has tried to dissuade her from doing so, but without success. Fearful for her daughter's safety and unable to stop her from selling sexual services, the mother provides a room or flat in which her daughter can work. In that way, the mother can at least feel that she has provided an added element of safety for her daughter. If the requirement of "gain" were removed from that situation, the mother could be charged with facilitating the prostitution of a child. I do not think that Committee Members would regard that as particularly desirable.
Research carried out by ECPAT showed that many young people involved in prostitution felt unable to exit prostitution until they had found someone supportive to turn to, or somewhere safe to go. We would have thought it inappropriate to criminalise those, such as the mother in the example that I gave, who try to make things better or safer for such children, for no gain, until the child feels able to exit prostitution.
When considering adult prostitution, which is not illegal, removing "gain" from the scope of the offences would mean that where, for example, a prostitute encouraged her friend to become a prostitute for whatever reason, and she stood to gain nothing from that encouragement, she would commit a criminal act. That applies to the adult situation. We think that that would probably be excessive.
The word "gain" is included because of that situation and others mentioned earlier, which involve people genuinely trying to help someone. I see the force of the arguments on the other side. A difficult balance must be struck. In response to the noble and learned Lord, Lord Lloyd of Berwick, yes, the requirement of "gain" is part of the make-up of the offence under current law. I am not aware that that causes difficulty, but I have not asked about it. No doubt, the noble and learned Lord, sitting as a judge, has had some experience in that respect. We must reflect very carefully on what is said to see whether our approach is consistent with our decision to delete the word "gain" from the provisions on trafficking.
Without wishing to disagree with the noble and learned Lord, Lord Lloyd, who I always admire and listen to, the situation with adults is significantly different. I have no issue with adult gain. I am familiar with that in other areas. I simply hope that we can find another vehicle to ensure that children who are now called prostitutes are no longer so called, but are seen as abused children. I am sure that the noble and learned Lord's ingenuity would find a way around the narrow examples in which we must give other protection. The width of the provision is unhelpful.
I am sympathetic to that approach. The amendments suggest that we capture organisations and parents who, by helping someone out of the exploitation to which the noble Baroness refers, commit offences. I do not believe that that is the noble Baroness's intention. We seek to wrestle with that problem.
Does not the noble and learned Lord's reference to "gain" in Clause 60(3) as defined make the point that I was trying to make? We are really concerned with abuse, not with a definition of "gain". The definition of "gain", which applies to Clauses 55 to 59, is restrictive. Why should we have a restrictive definition if the concern is to inhibit abuse? Does that not make my point?
I am pleased to hear that the Minister will reflect on what has been said. That is always very welcome. I was corrected by my noble friend on the Front Bench to the effect that "gain" is defined in the Bill. It is financial, or, in colloquial English, what appears to me as payment in kind; for example, remitting a payment or some such measure. But I agree with my noble friend Lord Campbell of Alloway. Under the clause as it stands, someone who abuses a young person for sexual gratification would walk free from court. The noble and learned Lord sounds as though he is in a very receptive mood to consider the amendment. I accepted that without prejudice to the outcome of his deliberations before the next stage of the Bill. But I ask him to reflect on what he has said.
The point that the noble Baroness, Lady Blatch, and the noble Lord, Lord Campbell of Alloway, make about the definition of gain is something that I must take into account.
I thank the noble and learned Lord for the way in which he received the amendment. The fact that he will think about it further gives me some hope, and I look forward to debating the issue again on Report, one way or the other.
The noble and learned Lord gave us some examples of situations that we would not want to catch. We have had that debate time and time again during the passage of the Bill. We have drafted legislation in a way that catches activities for which we do not intend people to be prosecuted. We had the case of sex between mentally disabled people and in the case of teenage sex. It is not impossible to draft a Bill that, in principle, catches things for which we would not people to be prosecuted. It is a matter of balance, and we have had the issue the whole time. I hope that, when the Minister takes the amendment away, he will not be so obsessed with those particular examples that the Bill must be driven by them.
The real issue is whether we have an effective offence relating to the abuse of children. I am particularly concerned about children, rather than adults. There is also the question of whether the gain element should be there at all. If we are considering the need to have an offence for what is done to children, the question of whether we catch, theoretically, other cases in the margins is less important. I accept that that balance must always be debated.
I am more than grateful for the way in which the noble and learned Lord has received the amendment. In the light of that, I beg leave to withdraw the amendment.
My purpose is to draw a distinction between, on the one hand, the section of the sex industry that is characterised by fear, coercion and violence and is frequently linked to illegal immigration and drug trafficking and, on the other, the section that, although disapproved of by many people—including, I am sure, a considerable number of Members of the House—is best described as the commercial exploitation of consensual adult sex. I stress the word "adult" because we are not talking about child pornography; we are talking about adult prostitution.
In the Bill, we have the opportunity to provide greater protection for vulnerable women and, at the same time, attack the evil smuggling into Britain of desperate young women from countries such as the new republics of eastern Europe and the exploitation of such women by gangsters who live by violence. In recent weeks, several newspaper articles have graphically described some of the horrors that go on in countries such as Romania. The amendments would help reduce such exploitation and, at the same time, avoid criminalising activities that are largely consensual and give rise to little public mischief.
The amendments would, for example, prevent innocent partners or teenage sons from being criminalised for living off immoral earnings. Under the present legislation, that happens even when the partners and sons do not want the women in their life to be involved in sex work. They would make it easier for the police to bring charges against those who use threats and would make the law simpler and clearer.
The amendments would also improve the legitimacy of the law. At present, because there is less clarity, the police use more discretion. The danger with that is that the law will be enforced inconsistently. I am concerned that, if the Bill is passed in its present form, England and Wales will finish up with the most punitive laws on prostitution at exactly the time when the rest of Europe is starting to address the vulnerability of women sex workers.
What research there has been into the sex industry—there is a strong case for the Government to conduct their own inquiry, alongside the excellent work of many academics, such as Belinda Brooks-Gordon of Leicester University—shows that it is safer for the industry to be conducted indoors, rather than on the streets. The incidence of violence against women who look for business on street corners or in alleyways is many times greater than when the business is done in indoor premises, such as flats, hotel rooms and massage parlours. The Economic and Social Research Council conducted research among street-working and indoor-working prostitutes in Glasgow, Edinburgh and Leeds, as part of its violence research programme. Among the findings was the fact that those working on Glasgow's streets were six times more likely to have experienced client violence than those working indoors in Edinburgh and four times more likely than indoor workers in Leeds.
On the assumption that Parliament does not intend to make criminals out of all prostitutes, would it not make sense to use the Bill to make life safer for women who work in the sex industry? Surely, the receptionist at a massage parlour who facilitates the booking of clients for women who work there as prostitutes is in a different league from the evil men who import vulnerable women from eastern Europe and force them to work under a regime of terror in the sex industry here. Criminalising more women and clients and imposing harsher penalties without safeguards will draw more women into the criminal justice system and then to prison. It is harder for them to get out of such a life later if they have a criminal record. The criminal record makes getting a job more difficult.
The time has come for a thoroughgoing review of prostitution and the sex industry generally. Setting the Boundaries said that it was needed. In the interim, I hope that your Lordships will agree that the amendments would put some fairness and common sense into the situation. I beg to move.
I oppose the amendment, for two basic reasons. First, I do not understand it. Secondly, for the reasons already given, subsection (1)(b) should come out. That view is shared throughout the Committee and is not only my opinion.
I do not understand the amendment. If someone "does so", he does so "using fear, force and fraud". What on earth does the amendment add? If he does so, he does so. It does not matter how he does it. There is no object or sense in the amendment.
I understand that, in any event, the amendment has been devised to deal with a review of prostitution. That is a good idea, but I do not understand what it has to do with the drafting of the amendment.
It is with some reluctance that I rise not to support the amendments. I have supported the noble Lord, Lord Faulkner of Worcester, and I sympathise and empathise with his concern for people in such a position. For those who experience fear, fraud or force in such situations it is a dreadful thing, but I am more concerned with securing a conviction. I am concerned that that would be made more difficult, rather than easier, by the amendments.
The noble Lord may want the law to reflect something of the dangers and pressures faced by those who suffer at the hands of pimps. Many would sympathise with that. However, there would be a lacuna that would result in unintended consequences. The noble Lord may also wish to make it clear that the law does not protect those who engage in prostitution entirely of their own volition, a point that, I think, he made. I am much less in sympathy with that, as it is difficult to tell whether someone is acting as a truly free agent, when he or she engages in prostitution. I fall back on the fundamental point made by my noble friend Lord Campbell of Alloway, which is that a crime has been committed anyway, regardless of whether one has to produce evidence of gain or of fear, force or fraud.
Amendment No. 299 imports the common law definition of what it takes to vitiate consent. "Fear, force or fraud" is a phrase that occurs throughout the case law on consent, not only in relation to sexual offences. The noble Baroness, Lady Howarth, made the point that there is a world of difference between adult prostitution and what we are now calling prostitution through child abuse. However, its addition here would make it more difficult to prove the offence of causing prostitution for gain. Its addition to Clause 58, by Amendment No. 308, would do the same for the offence of controlling prostitution for gain.
I am concerned because it imposes an added burden on prosecutors, which they will often find difficult to overturn. A person who is clearly a victim of prostitution may be unwilling to give evidence. Prosecutors may be relying on other evidence, such as testimony from "clients". None of them may be able to address the issue of whether fear, force or fraud was ever used on a prostitute.
Therefore, it would be difficult to envisage a scenario in which a man who really was acting as a pimp would be unjustly prosecuted. The court would be unsympathetic to a claim from a pimp that, although he intentionally caused a person to become a prostitute in expectation of gain for himself, he does not really deserve to be punished because his prostitutes were all willing and it was never proven that he used fear, force or fraud.
I am sure that my noble friend Lord Lucas will speak to the amendments in his name in due course. However, I shall deal with them now to save time later. Simply by requiring proof of,
"force, coercion, deception or abuse of power or of a position of vulnerability", the amendments place a hurdle before prosecutors which they may be unable to clear, even though an offence of the type which ought to be caught by this offence has clearly been committed.
I oppose these amendments because they would make it more difficult for the courts and they move away from the fundamental issue that a child below this age is being abused anyway. Looking for evidence of gain, fear, force or fraud is a diversion for the courts. A crime has been committed and it should be dealt with as such.
I return to the final point made by my noble friend Lady Blatch. My amendment has nothing to do with children; we are past that. It concerns adult prostitution. I understand her comments about making it more difficult. I favour the last group of amendments, which would eliminate "gain" entirely. If "gain" must be kept, maybe this is a useful adjunct for dealing with child cases whereby someone is making a child into a prostitute not for their own personal gain. Perhaps we can differentiate in the case of a mother looking after her child by inserting a phrase such as that suggested by the noble Lord, Lord Faulkner.
However, I agree very much with the noble Lord, Lord Faulkner of Worcester, that we need a proper and consistent basis for the law on prostitution. In conversation, as it were, I think that we all know where we are at. In the general sense, we do not want it to be a crime. We want the women to be safe. We do not want prostitution to be thrust in our faces as we walk around most parts of most cities. But if it is carried on decently in private, as a reasonable and consensual contract between adult individuals, we are prepared for it to exist. Given what goes on in the industry, we are particularly concerned that it should be a safe occupation for the women who find themselves in it.
A very important part of that issue is re-educating the police. The police use the current laws to prosecute the boyfriends, children and husbands of prostitutes. That is entirely unreasonable. It is a complete abuse of the intentions of Parliament and should not go on. Why is a prostitute not allowed to have a husband or a boyfriend? Because they happen to share accommodation or benefit in some way from the prostitute's earnings, why should that person be vulnerable to prosecution? But they are and they are prosecuted and persecuted by the police. That is an entirely unreasonable attitude. If a prostitute is carrying on her business in a manner with which we are content and she is not subject to abuse, force or coercion in any way, what she does with her money is up to her. If she chooses to support a fledgling who will not leave the nest or a boyfriend or a husband on the money that she earns, why should we seek to interfere with that?
Certainly, I address these amendments from the point of view of preventing the abuse of the current system by the police. I understand entirely the point made by my noble friend Lady Blatch about it presenting some difficulties in conviction. I think that if we are to have a system whereby prostitution is allowed to exist and women are safe in that occupation, we must bring an end to the persecution of their family arrangements by the police.
I have added my name to Amendments Nos. 299 and 308, so ably moved by the noble Lord, Lord Faulkner of Worcester. I hope that he will not regard me as a turncoat if I say that I now favour Amendments Nos. 299A and 308ZA tabled by my noble friend Lord Lucas. I promise that this is not a party political issue. I consider that the formulation in the amendments proposed by my noble friend captures the element of exploitation which should be at the heart of any offences related to prostitution. Setting the Boundaries recommended that exploiting others by receiving money or reward from prostitutes should be an offence. It explains that that exploitation should relate to,
"abuse, pressure, force, deception and coercion".
Those are the concepts at the heart of the amendments tabled by both noble Lords.
In their response to Setting the Boundaries, the Government said that there should not be an offence of exploiting others by receiving money from prostitutes because that would, for example, criminalise people who sold groceries to a prostitute. I wonder whether the Government really understood the point being made, which was about exploitation of a person through force. It was not about exploitation in the financial sense of transactions in the ordinary course of business. The Government might want to look at that aspect again.
I am concerned that the offences in Clauses 56 and 58 do not sufficiently recognise that prostitution is itself legal and that some of the ills that surround prostitution are those relating to forcing a woman into prostitution. That is the aspect on which we should concentrate.
I echo the comment made by the noble Lord, Lord Faulkner of Worcester, in relation to a review of prostitution. Setting the Boundaries recommended a review but the Government only half agreed in their response and I am not quite sure how much they agreed. Will the Minister say whether there is to be a review of prostitution? If so, what will it entail and when might it occur?
Unlike the noble Lord, Lord Campbell of Alloway, I find the wording of Amendment No. 299 perfectly clear and unambiguous. The words would be a highly desirable addition to the Bill. As the noble Lord, Lord Lucas, pointed out, Clause 56 refers to adult prostitution, unlike most of what we have been talking about today. Many of us will have read in the press during the past couple of months about respectable or respectable-seeming women in rural and suburban England turning occasionally to carefully-selected prostitution in order to pay their children's school fees. Of course, those who are doctrinally opposed to private education may consider this utterly shocking, but I doubt that the rest of us will worry too much about it. Clearly no force, fear or fraud is involved. Therefore, as the noble Lord, Lord Lucas, said, it is ridiculous that the police should involve themselves in such matters. I heartily back these amendments.
I, too, have added my name to Amendments Nos. 299 and 308, although I would be perfectly happy if the amendments tabled by the noble Lord, Lord Lucas, were to be carried by the Committee. No doubt the noble Lord, Lord Faulkner of Worcester, would be happy with that as well.
Both sets of amendments would enable genuinely voluntary sex workers to operate more safely and prevent them from coming into contact with the law quite so often, while at the same time enabling the police to bring charges against those who use threats and coercion. Violence is endemic in the sex industry and many very vulnerable women work in that sector. It is vital that we do all we can to protect them.
As the noble Lord, Lord Faulkner of Worcester, pointed out, despite Recommendation 53 in Setting the Boundaries for a full review of the laws covering prostitution, we have not yet seen such a review. We still have a good deal of piecemeal legislation which puts women at risk every day. I am sure that we do not want to add to that through this Bill while we wait for the full review.
Lastly, I wish to echo the question put by the noble Baroness, Lady Noakes. Can the noble and learned Lord reassure us that the review will take place before too long?
The amendments tabled by both my noble friend Lord Faulkner of Worcester and the noble Lord, Lord Lucas, seek in effect to limit the circumstances under which someone can be guilty of the offence of intentionally "causing or inciting" another person to become a prostitute. Clause 56 does not deal with the situation where someone is already working as a prostitute, but rather where a person is caused or incited to become one. As regards Clause 58, to which both of the amendments would also apply, they do not deal with the situation legitimately raised by the noble Lord, Lord Lucas. A person should not become liable for a criminal offence if they were married or living with someone who also worked as a prostitute and the earnings are shared. In those circumstances the partner of the prostitute would not be someone intentionally controlling any of the activities that relate to prostitution.
The two criminal offences that we are dealing with are, first, where a person intentionally incites someone else to become a prostitute and, secondly, where someone controls the activities of a prostitute for gain. If the words,
"the use of fear, force or fraud", were to be introduced, then inevitably it would become extraordinarily difficult to prove either of those offences. The noble Baroness, Lady Blatch, made that case most effectively in her remarks.
The noble Lord, Lord Lucas, pointed out that we are dealing with adults in these clauses and that prostitution is not a criminal offence. However, we believe that it is wrong to incite people to become prostitutes—I stress that it is wrong for one person to incite someone else to do so—and we believe that it is wrong intentionally to control for gain another person who works as a prostitute. To add the words suggested in the amendment would make both of those offences extremely difficult to prove. However, I do not stand only on the point of proof, I stand also on the point that the circumstances I have already described should be criminal offences.
My noble friend Lord Faulkner of Worcester made several points about the problems that arise with regard to prostitution and all noble Lords are right to say that they need to be looked at. That is why in Protecting the Public, published on 19th November last, we said that we would look to see what the scope of an appropriate review should be in all the issues surrounding prostitution and particularly—although not limited to it—the relationship between drugs and prostitution. We think that that is very important. I am not in a position today to say precisely what the scope of the review will be, but I hope that when we come to the Report stage I shall be able to tell your Lordships.
I thank the noble and learned Lord for his generous comments. Around three-quarters of the way through my remarks on this issue, my mind switched back to our discussions on children. I apologise to the Committee if I have caused any confusion. I stand by the arguments I made because I believe that they are still valid. However, I referred back to Clause 54 and I apologise for that.
Do I understand from what the noble and learned Lord has said that the old concept of the crime of "living off immoral earnings" is now dead as a result of this Bill, if it is not dead already? Can no prosecution be brought for that offence?
I must be careful in my response. Clause 58, covering the intentional control of a prostitute for gain, is the offence we are concerned with here. I think that the old offence mentioned by the noble Lord has gone, but I stand to be corrected. I shall write to the noble Lord to confirm the point.
The noble and learned Lord talks of "controlling a prostitute", but Clause 58(1)(a) refers to controlling "any of the activities of" a prostitute. Let us suppose that a boyfriend takes bookings on the telephone for a prostitute, or organises her rate card, or fills in her tax return—if she makes one. Any of those activities would be very wide of what is set out in the Bill. If he is completely controlling the prostitute, then he would be doing what used to be known as living off immoral earnings. Is the response of the noble and learned Lord wholly satisfactory in relation to Clause 58, which refers to controlling "any of the activities"? That would cover even a very limited activity undertaken by a boyfriend or someone else living with the prostitute, but who in no way was driving her into prostitution.
Clause 56 deals with "causing or inciting", while Clause 58(1)(a) deals with controlling,
"any of the activities of another person relating to that person's prostitution", which can include controlling her activities as a prostitute. However, the noble Viscount is right to point out that he can also control various activities relating to the other person's prostitution.
The purpose of Clause 58(1)(a) is to cover, primarily, the control of prostitution. The way that is done is by reference to controlling the,
"activities of another person relating to that person's prostitution".
Usually that would mean the control of, as it were, the entire business enterprise, but it can also cover elements of the activities. Thus we shall avoid the situation where, simply to say that someone else deals with another element, it is not a crime.
This has been an extraordinarily interesting debate. I am most grateful for the support that my amendment has attracted from every part of the Chamber, which I think may be unprecedented. Support has been expressed from the Bishops' Bench on my left, the Cross Benches on my right, and from the Conservative and Liberal Democrat Benches opposite. My noble and learned friend may be relieved to know, however, that I do not intend to press the amendment, but I shall read with great care what he has said in response.
One point that has come out of our debate on which I would ask him to reflect most seriously is the general view that Recommendation 53 in Setting the Boundaries, calling for a comprehensive review of the laws covering prostitution, needs to take place. Prostitution was not included in the terms of reference for the Setting the Boundaries team, although it did take a great deal of evidence on it. However, it is clear from the amount of legislation dealing with prostitution, from the Sexual Offences Act 1956 onwards, that we are in danger of simply putting an extra ratchet on to the sexual offences laws without thinking through properly what should be the situation relating to prostitution.
I certainly do not take exception to the noble Baroness, Lady Noakes, for preferring the terms of the amendment tabled by her noble friend Lord Lucas. Had he tabled his amendment before mine, I would probably have added my name to it. I am as content with his amendment as I am with my own.
However, at this stage I beg leave to withdraw the amendment.
In moving Amendment No. 299B, I wish to speak also to Amendment No. 308B. If we are to have the industry or activity of prostitution based largely inside premises so that it does not greet our eyes on every street corner—we all agree that not only is that safest for the women concerned, it is also more pleasant for local residents and those travelling through the areas where prostitutes ply their trade—then those women must have some way of contacting their customers.
In that regard, in some areas the police can present a considerable obstacle. They will prosecute a newsagent who displays in a quiet corner of his shop a board containing prostitutes' advertisements, although the same newsagent cannot be prosecuted for having row upon row of disgusting magazines on the top shelf. The police will even prosecute a sex shop for displaying such advertisements. They have prevented the Yellow Pages from carrying advertisements for sexual services, while noises even seem to have been made in the direction of some magazines which carry such advertisements.
Prostitutes must be able to contact their clients in a way that does not cause offence. I fully understand why people object to stickers in phone boxes, but if we do not allow this to happen in a reasonable and regulated way then stickers in phone boxes is what we will get—and quite right, too, because they will have to find an outlet somewhere.
The purpose of the amendments is to ensure that advertising a sexual service, carrying advertisements or facilitating advertisements is not of itself an offence. The amendments will ensure that those who wish to provide advertising services to prostitutes are able to do so without fear of prosecution. I beg to move.
I support the amendment. I was wondering whether to raise the issue of legal brothels but I am sure that the Government do not want me to do so in connection with this Bill. As to the point raised by the noble Lord, Lord Lucas, legalised prostitution may, if properly run, tend to save some of the child abuse that we are seeing today. The Government should at least consider carrying out research on the subject.
I agree with the noble Lord, Lord Northbourne, and I, too, support the noble Lord, Lord Lucas. One of the objects of the Bill is to reduce the incidence of rape. A wise man once said to me that it is largely thanks to prostitution that our wives, mothers and daughters walk the streets in safety. I do not believe that they now walk with quite the safety that I enjoyed when I was young—we have to accept that—but it is very important that prostitutes are not persecuted and driven onto the streets. They should have the opportunity to pursue their industry, not only in safety but in reasonable comfort.
I do not support the amendment simply because of its width. I seek clarification. Having worked for 10 years as a regulator with ICSTIS, where premium rate industry sex lines could be advertised, I am concerned about being very precise about the kind of magazines in which you cannot have this type of advertising and those in which you can. If we introduce simply the broad category in the amendment, such advertisements will appear everywhere. There will be an outcry because people find them largely offensive. There are places where one can find these advertisements with no problems, but we have to be very precise.
I support the amendment. The noble Lord, Lord Lucas, is seeking to do what he and I sought to do with the previous amendment—that is, to ensure that if prostitution is conducted it is conducted in safe premises rather than dangerously on the streets. If women who work in the sex industry are able to advertise—and I see no reason why such advertising should not be severely regulated in order to counter the point made by the noble Baroness—I cannot see where any public mischief would arise.
As far as I am aware, the only research conducted into unauthorised advertising in pay phones was undertaken on behalf of British Telecom, in conjunction with the Metropolitan Police and Westminster City Council, in June 1994. The research dealt with the issue of cards in phone boxes. Curiously, the public response was far less condemnatory of simple advertising—a simple card with, perhaps, a woman's name and phone number on it—than many would expect. For example, in the survey, only 10 per cent found those simple cards offensive and 58 per cent felt that prostitutes should be allowed to advertise their services.
The noble Lord, Lord Lucas, is pursuing a cause that should be looked at. If there is to be the review of prostitution we called for in the previous debate, this is clearly an issue which would need to be covered in some detail.
I hope that I can set minds at rest. Advertising the availability of the services of a prostitute would not in itself constitute causing or inciting another person to become a prostitute, nor would it constitute controlling any of their activities relating to prostitution. It is possible, obviously, that advertising the services might be evidence, along with a variety of other evidence, used in support of a charge but it would not constitute an offence in itself. If, for example, a pimp advertised the services of a prostitute over whom he had control so that she received more clients and he got more money, that might be one of the many factors used in evidence for a charge of controlling prostitution for gain but it would not be an offence in itself.
I understand the concern of the noble Lord, Lord Lucas, that we should not make advertising of itself an offence. Neither Clause 56 nor Clause 58 does so. There is already provision—the noble Lord referred to this—in Sections 46 and 47 of the Criminal Justice and Police Act 2001 which makes it an offence to place cards advertising the services of prostitutes in telephone boxes. Anyone advertising the services of a prostitute in this way, whether or not excluded from the offences under this Bill by an amendment such as the one we are discussing, would therefore already be guilty of an offence under the earlier Act. I hope that in the light of what I have said the noble Lord will feel able to withdraw his amendment.
I am quite happy to do so. If the noble and learned Lord could include in the letter he may already be sending me confirmation that there will be nothing left in the law that will enable the police to prosecute a newsagent for carrying prostitutes' cards—provided the cards are decent and conform with the law—I shall be most grateful. I beg leave to withdraw the amendment.
moved Amendment No. 302:
Page 26, line 35, at end insert "in any part of the world".
Amendments Nos. 302, 306 and 311 make clear that the offences at Clauses 57 to 59 refer to the controlling, arranging or facilitating of prostitution, including that by children, and the involvement of a child in pornography anywhere in the world. This was always our policy intention when formulating the offences but it is not clear from the Bill as drafted.
We want to cover situations where an offender in this country arranges, facilitates or controls the prostitution and pornography of children and controls the prostitution of adults in other countries as well as here. The amendments seek to cover situations where someone in this country knowingly leases their apartment abroad to child pornographers to film in or, for example, where a pimp may direct a prostitute under his control to fly to a client abroad. It should not matter where the prostitution or pornography takes place if the control, arranging or facilitation is done from the United Kingdom. We should be able to prosecute those in this country who exploit others in that way. I beg to move.
moved Amendment No. 306:
Page 27, line 8, after "prostitution" insert "in any part of the world".
On Question, amendment agreed to.
[Amendments Nos. 307 to 308ZA not moved.]
In Amendment No. 308A, we return to the issue we debated only a few minutes ago. The purpose of the amendment is to protect the personal safety of sex workers and prevent them from falling foul of the Bill. As we have said, prostitution itself is not illegal in this country—it is all the activities surrounding it that often bring sex workers into conflict with the law. That is why we have a duty to do whatever we can when a legislative opportunity arises to protect sex workers from the dangers with which their type of work is beset. We should also avoid a new piece of legislation unduly or accidentally criminalising them further. That is why the noble Lord, Lord Lucas, and I have put down this amendment.
According to the Josephine Butler Society, a charity that works with prostitutes and their dependants, the safest place for a prostitute to work is in her own premises. However, if she works alone she puts herself in danger because if she is attacked by a client there is no one there to help her. Brothels are currently illegal and anyway, they could, if not properly regulated, lay the way wide open for traffickers and drug dealers. The solution is for two women to work together. However, if they do so, they risk being caught by the provisions in Clause 58 on controlling prostitution for gain, as they might be seen to be controlling each others' activities in some way.
The Bill is not really about prostitution. Sadly, the whole spectrum of legislation that affects prostitution has been put together in a very piecemeal way, and that has become very clear this afternoon. It really is time the Government grasped the nettle and I hope they will do so very soon. However, the Bill will affect prostitutes, as the noble Lord, Lord Faulkner of Worcester, mentioned, in several ways—we will come to the matter of public places later. Unfortunately, neither sex workers nor those who work for their welfare have been consulted about it.
No country has ever been able to stop prostitution. Not for nothing is it called the oldest profession in the world. In a civilised society, we should be concerned with harm minimisation and welfare as well as human rights. Unless we give these sex workers a safe way of working, where they can be independent and not constantly run the risk of falling foul of the law, we are playing right into the hands of the pimps, traffickers and drug dealers who seek to control women by getting them addicted to hard drugs. This amendment offers them a way of achieving that safety. I beg to move.
I entirely support what the noble Baroness has said. I have no wish to push the Government down the road towards legalising brothels in this Bill—it is road that I suspect I would not wish to travel myself. But the difference between one and two is the difference between being alone and feeling a great deal safer than that, between a partnership, or at least some form of support, and none at all. That is a step we can take without any fear of opening up the question of whether we are into the business of legalising brothels or, indeed, instituting "Ofbroth", or whatever the Government might choose to call it.
I understand exactly why the noble Baroness, Lady Walmsley, has moved the amendment—she put the reasons very clearly—but we do not think it is necessary. It would amend a clause which makes it an offence to be controlling prostitution for gain. The clause is designed to cover exploitative relationships. Where two prostitutes are working together, consensually, for each other's protection—for example, standing on the same street corner, noting the registration numbers of the cars that their partner or friend gets into, which is quite a common form of mutual protection—it is very unlikely that either could be said to be "controlling" the other. It is also very unlikely that either could be said to be gaining from the prostitution of the other.
Where one prostitute is exerting exploitative control over the other—for example, where she is working with a pimp to help him control prostitutes or exercising by herself a pimping role over other prostitutes and is gaining from that control—that is obviously a different sort of offence. If we accepted this amendment, we would not be able to cover such a situation. We do not think it is necessary to cover the situation that the noble Baroness has identified. We think it is sensible not to have such a provision in the Bill, for the reasons I have indicated. I hope that in the light of that reassurance the noble Baroness will feel able to withdraw her amendment.
I am grateful to the noble and learned Lord for the words of comfort that he has given to me from the Dispatch Box, which he of course realises is very significant in law. It will give comfort to sex workers who want to protect themselves in the way that I described. Therefore, I beg leave to withdraw the amendment.
moved Amendment No. 315:
Page 27, line 37, after "services" insert "(including sexual services)"
On Question, amendment agreed to.
This is a probing amendment designed to tease out what is meant by "goodwill" in this context. Clauses 55 to 59 require the prosecution to prove, as an essential element to the offence, that the activity in question is done,
"for or in the expectation of gain".
Gain is then defined in subsection Clause 60(2) in the terms set out.
I would like to know what the Government have in mind. Is it pleasing a potential employer or a superior, like Jack Lemmon did in providing a flat in which his boss could carry out an illicit assignation in the film "The Apartment"? That is not so far a criminal offence, as far as I know.
I have no particular objection to the concept, provided that it is clearly established what the limits of the proposed criminality are. I would be most grateful if the noble and learned Lord could clarify that.
Subsection (3)(b) states that gain covers,
"the goodwill of any person which is or appears likely, in time, to bring financial advantage".
This provision has been included to cover those situations in which one person may undertake an activity in the hope that it will please somebody else. I do not have recent and detailed recollection of "The Apartment", but from the way in which the noble Baroness described it, the provision would cover precisely that situation where someone will, in time, return the favour, which is likely to bring financial advantage. For example, a person causes a child to become a prostitute in order to please the pimp who will derive an income from the child's involvement in prostitution in the expectation that in the future, the pimp may give him a share of those profits, a supply of drugs, or access to other child prostitutes.
I appreciate that in some cases there may be evidential problems about proving that goodwill, as defined, was the motivation behind such behaviour, but I would resist removing the ability to prosecute for this type of situation because in other circumstances it might be possible to meet the evidential requirements. There may, for example, be evidence of a defendant having told a third party of his motivation for causing the prostitution.
The noble Lord, Lord Lucas, asked whether the paragraph adds anything to the basic offence to which it refers. Yes, it does, because it is wider than the terms of the basic offence. There will be prosecutions in which goodwill can be a possible factor. On that basis, I resist the amendment, which I accept was a probing amendment.
If that was the Government's intention, why do we have the second part of paragraph (b)? Why not simply leave it as,
"the goodwill of any person"?
The second part of paragraph (b) merely refers back to the gain that is already covered in the original offence, and limits it. I could understand it if it referred only to goodwill, which would expand the offence—but the offence is cut back to a gain of a financial advantage. The financial advantage is already there in the original offence.
It is needed, because goodwill is at one remove from a specific financial advantage.
I still cannot see why goodwill is limited by the wording that it should lead to a financial advantage. If one does the godfather a favour, one may not know of what kind the benefit will be. It may be a benefit to some other member of one's family at some other time and in some other form completely. Why limit the goodwill to financial gain for oneself, especially given that that is already in the original offence?
The reason why the whole sentence is there is because it is one remove from "gain". The word "goodwill" is limited as it is because, if we did not limit it at all, it would be so vague as not to have any definition at all.
I thank the noble and learned Lord the Minister for his reply. However, I do not know whether he realises that he has just described a whole lot of offences of possibility.
Earlier in our discussions on this Bill, we were a little concerned about the possibilities of "thought" offences in relation to Internet grooming. I am satisfied that that is not the case. However, the offences that the noble and learned Lord has just described involve the possibility that the person gaining the goodwill might, at some unspecified time in the future, in some unspecified manner, actually gain in some way from the activity concerned. That is far too vague for any kind of criminal offence.
I shall read with great interest what the noble and learned Lord said, but it is something to which I may want to return. In the meantime, I beg leave to withdraw the amendment.
The new offences to tackle prostitution and child pornography contained in Clauses 54 to 59 replace some of the existing offences relating to prostitution. For example, Section 30 of the Sexual Offences Act 1956 relates to a man living off the earnings of prostitution and Section 31 relates to a woman exercising control over a prostitute. However, they do not replace all existing prostitution legislation.
The provisions relating to kerb crawling and loitering and soliciting for prostitution, among others, are remaining on the statute books. That is because the area of prostitution itself, rather than the exploitation of people through prostitution, fell outside the remit of the sex offences review, which recommended a further review of matters related to prostitution. We have debated that point this afternoon. However, we are taking the opportunity to rectify one of the fundamental flaws with existing legislation—its gender specificity.
Much existing prostitution legislation is framed in terms of men committing offences against female prostitutes, whereas male and female prostitutes can both be exploited by someone of their own sex or of the opposite sex. The current framing of the law is outdated and government Amendment No. 318 introduces a new schedule—in government Amendment No. 362—to gender-neutralise the legislation.
Section 36 of the Sexual Offences Act 1956, which relates to permitting premises to be used for prostitution; Sections 1 and 2 of the Street Offences Act 1959, which relate to loitering and soliciting for the purposes of prostitution, and application to a court by a woman cautioned for that; and the provisions in the Sexual Offences Act 1985 relating to kerb crawling, are all made gender neutral by these government amendments.
The structure of the offences and the penalties for the offences remain unchanged, but the amendments mean that we are able to prosecute offenders of either sex, committing offences against victims of either sex. That is important.
The offences in the Sexual Offences Act 1956 relating to brothels are not included in these amendments. Although they are gender specific, since brothels refer only to places where female prostitutes work, we do not need to gender neutralise these offences, as Section 6 of the Sexual Offences Act 1967 applies the same provisions as the brothel offences to premises resorted to for homosexual practices. It is therefore unnecessary to include them here.
I urge the Committee to accept these amendments.
Also grouped with the amendment are the amendments tabled by the noble Lord, Lord Lucas. It might be convenient if I addressed his amendments now.
Amendment 362A seeks to remove the term "common prostitute" from the offence in Section 1 of the Street Offences Act 1959, which relates to loitering or soliciting for the purposes of prostitution. However, the term "common" in the expression "common prostitute" is important. The performance by a woman of a single act of lewdness with a man on one occasion for reward may be sufficient to make the woman a prostitute, but it does not make her a "common prostitute" for the purposes of the Section 1(1) offence. It has been held that a common prostitute is a woman,
"who is prepared for reward to engage in acts of lewdness with all and sundry, or with anyone who may hire her for that purpose".
Amendment 362B would remove the ability for the courts to apply anti-social behaviour orders against prostitutes convicted for an offence under Section 1 of the Street Offences Act 1959. ASBOs are not a punishment or penalty. Their purpose is rather different, as they are designed to protect individuals and, perhaps more importantly, communities from behaviour that causes harassment, alarm or distress. It is the responsibility of a court to determine whether an order should be made in any individual case. The police have discovered that using ASBOs against prostitutes, who can, unquestionably, cause harassment, alarm or distress to residents of an area, can act as a deterrent to others. The use of ASBOs on prostitutes in Lambeth for example has lead to a very noticeable improvement on Brixton High Street. We think it important that the facility to apply the order is retained and, for those reasons, we resist the amendments.
I shall speak to the two amendments tabled under my name. As regards Amendment No. 362A, I shall take into account the Minister's comments on the nature of the offence when I read Hansard, and shall decide what to do next. However, I shall describe the particular ill that I am aiming at.
The common practice is for a prostitute who is caught by the police to be cautioned. As the Minister will know, there is no court appearance and no easy appeal in such a case—it is just something that a person does in order to get out of custody. When that person has been cautioned twice, if she then comes up in court again, she is referred to as a "common prostitute" and is two-thirds of the way to conviction. She is labelled as a common prostitute in court when she has never been convicted of a prostitution offence. That is what I was seeking to avoid, but I understand from the Minister's remarks that I have gone broader than that without meaning to.
I shall consider the matter again, but I should very much appreciate the Minister's views on whether labelling people in such a way before conviction is really something that we wish to continue to do.
My second amendment seeks to address a specific issue. When we dealt with the laws on street prostitution, I thought we decided that we were not going to imprison prostitutes—we were not going to stuff them into prison—for the ordinary run of street offences. However, that is what ASBOs are being used for. They are being used to imprison people for prostitution offences. That is undesirable. The problem is caused not by the use of ASBOs as a technique, but by the targeting of ASBOs, or the breach of them, to imprison prostitutes. I thought that we had got away from that in the earlier Acts and had decided that that was not what should be done. That is the ill at which I am aiming. I appreciate that I may not have a sufficient understanding of the operation of ASBOs to have aimed precisely right. However, I should very much like to achieve a resolution that ensures that Parliament's clear intention of not imprisoning prostitutes for these types of offences is adhered to in practice in relation to ASBOs.
I am not sure whether this will come as too much of a shock to the noble Lord, Lord Bassam, but I support government Amendments Nos. 318 and 362. It would be wrong for a male prostitute to be immune from offences that apply to female prostitutes. The noble Lord made some powerful points in speaking to these amendments. He also referred to the activity of kerb-crawling. A person who kerb-crawls should not escape prosecution because his targets were male rather than female. That is an entirely sensible change to the law, and it is surprising that it was not included in the Bill originally. I do not know why it was omitted. It has long been government policy to be "gender neutral"—not a phrase I like—on these issues. I thought that that was the thrust of the Bill. Surely it was a mistake not to include it in the Bill initially.
I have not thought deeply enough about the two amendments tabled by my noble friend Lord Lucas, but his second point was on prison. Although I do not want to say that all prostitution is offensive to some people, prostitution offences run the whole gamut from deeply offensive in terms of public nuisance and the degree to which vast sums are earned to less offensive. I think that it must be for the courts and judges to decide whether imprisonment is the appropriate sentence. I do not believe that it is for us to take the principled position that prostitutes per se should not be subject to imprisonment. That seems very much a matter for the courts. The Bill should establish a framework that provides judges with great latitude to decide the appropriate sentence. However, I have not thought too deeply about the subject because I did not see the amendments at the previous stage.
I am extremely grateful to the noble Baroness, Lady Blatch, for her support and warm words. I think we are making progress. However, I shall not dwell on it; I shall pick up some of the points that she and the noble Lord, Lord Lucas, made. As the noble Lord said, if there is a breach of an ASBO, the court can use the ultimate sanction of imprisonment. However, it is worth reflecting on precisely what surrounds the act of prostitution, including noise disturbance, such as the banging of car doors, and more general disruption for parts of our communities. For many, such behaviour is not only offensive but disturbing, discomfiting and distressing. I would find that distressing and I am sure that the noble Lord would also. In such circumstances, we think it absolutely right that the court should have the reserve position of penalising people for the breach of an ASBO.
As for the noble Lord's first point, I think he accepts that his amendment ultimately does not achieve what he seeks to do—to unpick aspects of labelling. However, if the police have on record a consistent pattern of behaviour by those who have indulged in a lewd act termed as prostitution, someone in that position ultimately will be described as a common prostitute, and that description will have a value in law.
We therefore have to resist both amendments. However, I understand the wider issues of concern that the noble Lord is seeking to raise in his amendments. I commend our amendments to the Committee and hope that he will not press his own.
The purpose of Amendment No. 319 and the two amendments grouped with it is to remove the need to prove "gain" or the "expectation of gain" in order to establish the offence of trafficking. That is not always easy to do, even if it is only an expectation or intention. I think that the police services across the country will be in agreement with that, as I mentioned on Second Reading. That probably provides one of the reasons why there have been relatively few, if any, prosecutions for trafficking since it first became an offence although it is well known that hundreds if not thousands of young women and some children have been trafficked, mostly into London. The type of case of a mother helping her daughter out of prostitution referred to earlier by the Minister is unlikely to occur in the case of trafficking. I realise that gain is widely defined in Clause 60, but I submit that the offence of trafficking would be better defined without it.
There is the further point that gain becomes almost academic if the Government accept the words "force, coercion, deception" and so on as proposed in the next group of amendments. I beg to move.
In the unavoidable absence of my noble friend Lord Astor, I should like on behalf of these Benches to support the amendments proposed by the noble Lord, Lord Hylton. I suspect that this grouping is somewhat larger than he originally envisaged. I should therefore like to say why we have joined in tabling the amendments.
I wish to probe further the phrase,
"for or in the expectation of gain".
Although it is clear that those who traffic human beings do so because of the material gains from the activity, I suspect that it is very often hard to prove such "gain". It is easy to envisage that difficulty causing a significant obstacle in securing convictions. For example, how does one prove that a person who has forced a child into prostitution has, or indeed will, also materially benefit from doing so? Removing the requirement of gain from the trafficking offence would therefore allow the police or prosecution to concentrate on proving the abuse suffered by the child regardless of whether anything was gained. Most traffickers are connected to criminal networks with sophisticated methods of money laundering. Tracing the exact whereabouts of money made from trafficking can be both time consuming and costly.
I am also unsure about the advisability of "intentionally" as used in these clauses. It is often difficult to prove one's intention. The phrase "intentionally or knowingly", well trailed in legislation, might be a better reaction. I would welcome the Minister's views. On a general point, I wholeheartedly support all those groups that have lobbied us extensively on the need for comprehensive legislation to cover all types of trafficking, not just trafficking for sexual purposes. More resources must be allocated to social services, which provide accommodation, care and support to child victims of trafficking; for example, West Sussex social services which takes trafficked children from Gatwick Airport. However, these clauses are not only about the trafficking inwards; they deal also with trafficking in this country and trafficking from this country to other parts of the world.
We hope to see legislation introduced as soon as possible to deal with these outstanding issues, not least Articles 33, 34 and 35 of the UN Convention on the Rights of the Child.
It may help if I set out the Government's position at this point. We accept in principle the amendments tabled by the noble Lord, Lord Hylton, in this respect. We do not believe that there is a justification for retaining,
"for or in the expectation of gain", in the trafficking offences. As the noble Lord, Lord Hylton, said, there is a differential between these and the earlier sorts of offences that we discussed. However, we shall have to consider whether that differential is sufficient to justify such a change. We accept the amendments in principle but cannot agree to them at this stage because we need to amend the precise wording to cover Clause 64, which is not covered by the noble Lord's amendments.
I, too, welcome the noble Lord, Lord Skelmersdale, to the Conservative Front Bench. He will be a most welcome addition in our debates. He is very brave to join at Amendment No. 319 in this very interesting and enlivening debate. I hope that the noble Lord will remain on that Front Bench for many years to come.
I cannot let that go without comment. I did speak to various amendments on the first day of Committee, which no doubt the noble and learned Lord will remember. Indeed, I rather suspect that my comments were received with approval, unlike those of other noble Lords who participated in the proceedings on that day.
We should all like to be associated with the comments welcoming my noble friend back to the Front Bench, where I believe he belongs. I welcome the remarks just made by the noble and learned Lord. It looks as though these amendments will be accepted. The noble and learned Lord will be relieved of what I might have said if he had not made that particular intervention. I am most grateful to him.
I have given an undertaking that I shall bring forward amendments at a later stage. We cannot agree to the current group of amendments because Clause 64 is not covered by them. Therefore, I undertake to bring forward amendments on Report that will have the same effect, and go slightly wider.
Amendments Nos. 320, 324 and 328 are very similar to Amendments Nos. 321A, 325A and 329A, tabled by the noble Lord, Lord Hylton, to which my noble friend Lady Noakes has added her name. Essentially, the point of principle is the same. However, I believe that Amendment No. 320, which would insert the phrase,
"using force, coercion, deception, or abuse of power or of a position of vulnerability", at line 8, not line 9, is more inclusive and would by definition cover paragraphs (a) and (b), not just the former.
This group of three amendments is designed to complement the previous group of amendments. Trafficking for sexual exploitation is a sexual offence and therefore the focus should be on the harm done to the victim in terms of sexual abuse, assault, violence and violation. It is for this reason that we wanted to remove the issue of whether "gain" was involved. Indeed, we have just had a very helpful discussion about such wording.
Amendments Nos. 320, 324 and 328 would also alter the current definition of "trafficking" to reflect the definition adopted in the UN protocol to prevent, suppress and punish trafficking and would supplement the UN convention against transnational organised crime. The protocol has been signed by over 115 countries, including the United Kingdom. The same definition is used in the EU framework decision on combating trafficking in human beings. Following this definition will ensure that the same definition of "trafficking" is used both domestically and internationally. That seems to us not only to make sense, but also to be vital if trafficking is to be tackled as a crime on an international scale rather than being viewed as a domestic problem.
Further, I believe that the insertion of the phrase,
"using force, coercion, deception, or abuse of power or of a position of vulnerability", would add greater clarity to the clauses on trafficking. It would help to differentiate trafficking from the less serious offence of smuggling people into the country—though I am not sure the Home Office would agree with that. None the less, that is my feeling on the matter. It would identify some of the abusive and exploitative methods that are often involved in the trafficking process. It would also help to emphasise that even those who may agree to be trafficked are essentially victims, as they may agree to this under a false impression of the true nature of their eventual fate.
The amendments illuminate the trauma suffered by victims and perpetrated by offenders involved in trafficking. It is important that this should be apparent on the face of the Bill, which, I regret to say, is not the case at present. I beg to move.
I support the noble Lord, Lord Skelmersdale, in this group of amendments. He is quite right to refer to the UN protocol and to the EU framework decision. As to smuggling, I should have thought—I hope that the Minister will agree—that that would be an offence under immigration law, and not covered by the provisions of this Bill.
The whole issue of force, coercion and people being made to act against their will is a very real problem. I do want to detract from that in what I say. Where it is believed that a crime has been committed under these clauses, we should be focused on securing a proper conviction. Although the amendments are very well intentioned and extremely well understood, I believe that they would make the whole process more difficult. Therefore, for those reasons and those that I gave earlier in a different context, such provisions would just make it more difficult to secure a conviction.
Situations may arise where,
"force, coercion, deception, or abuse", cannot actually be proved. Therefore, the case against someone who, nevertheless, has indulged in what I consider to be criminal activity might not be found. It could be proved in court that a person facilitated the arrival of the victim in the country; it could be proved that he intended that sexual offences would be committed against the victim; but, if there is no evidence of force, coercion or abuse, that person could escape conviction.
I am not sure whether the latter was the intended consequence, but, if my reading of the Bill is correct, I believe that could be the case.
Noble Lords from these Benches wish to be associated with the welcome extended to the noble Lord, Lord Skelmersdale, on his arrival on the Front Bench. He played a very important part in the proceedings on the first day of Committee. It is very nice to see him in his present position. However, I must support the remarks just made by the noble Baroness, Lady Blatch. She is quite right. It is unnecessary to add further ingredients that the prosecution must prove beyond reasonable doubt. Why open up defences for a person to say, "Yes, I've done everything else in these clauses but I didn't use force, coercion, deception or abuse of power or of a position of vulnerability at all. Therefore, I'm not guilty"? I see no reason why that defence should be open to scheming defence lawyers.
I agree with the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Blatch. We oppose these amendments. We are all aware that some of those who are trafficked are often very vulnerable to intimidation and threats against themselves, or their families in their country of origin; and, indeed, to deception by the promise of good earnings, a better life, and greater opportunity. However, the actual conditions under which they are expected to work are very different from those that they are led to believe will be the case.
In the destination country, those who are trafficked may often be unable to speak the language, know no one and may be without legal immigration status. Their freedom of movement can be severely curtailed by the trafficker, their earnings and passports can be taken away, and they can be subject to debt bondage. They may be forced to service many men, have unprotected sex, or engage in perverse sexual practices once at their destination or even en route. There are considerable reports of violence and rape being used to subdue and control such victims.
Of those trafficked domestically, many are young, kept isolated from their friends and family, and misled by their trafficker into believing that they are earning money to build a future life together. When they become aware of the reality of their exploitation, fear of violence and the sense of stigma that derives from being a prostitute often inhibit their coming forward to report their situation. They are therefore potentially more vulnerable to exploitative practices.
Even where none of the abusive elements specified in the amendment is present, we none the less take the view that it should be an offence to move people from one place to another to exploit them in prostitution, or to commit a sex offence against them. That is why we have defined the offence in the way in which we have. To include "force, coercion" and "deception" as integral elements of the offence is likely to limit prosecution in cases where the only evidence as to the force, coercion or fear would come from the frightened victim. However, where there is evidence that, for example, violence, whether sexual or otherwise, has been used, as would be needed if the amendment were agreed to, that can be charged in its own right in addition to the trafficking.
The amendments reflect the language of the United Nations protocol, as has been said. However, we do not wish to limit the offences to those circumstances defined in the international agreements, in which the action is, to quote the protocol,
"carried out by threat or use of force, or other forms of coercion, abduction, fraud, deception, the abuse of power or a position of vulnerability".
We wish to offer a level of protection that does not depend on those factors being present.
We think we have got the definition of the offence about right. We believe that it provides more protection than that suggested by the noble Lord, so we resist the amendments.
I can be extremely brief with the amendments. They seek to ensure that all trafficking cases are tried by conviction on indictment in the Crown Court rather than by a summary conviction before the magistrates' court.
As has been mentioned, trafficking is an offence based for the most part on professional or sometimes international operations involving long-term planning and substantial sums of money changing hands. It is not something that individuals often do as a one-off or on a whim; in fact, I have never heard of it done in those circumstances. Trafficking organisations are run as businesses, often to fund other criminal activities. I see no reason why it should not be mandatory for something as grave as trafficking offences to be tried before the Crown Court. I beg to move.
I would like to speak to Amendments Nos. 322A, 322B, 326A, 326B, 330A and 330B, which are grouped with Amendment No. 322. The group of amendments deals with two specific sets of issues. The first is to ensure that all trafficking cases involving children are referred to the High Court and therefore attract higher sentences. The second is to set a minimum tariff for a second offence.
First, let me deal with the reasoning behind why I want trafficking cases involving children referred to the High Court. As the clause stands, offences involving children could attract the lower sentences given in the magistrates' courts of six months maximum or a fine. Research has shown that, over the past few years—in particular, the past seven years—children have been increasingly trafficked into the UK and forced into prostitution.
Trafficking is a serious abuse of human rights. On top of the exploitation that the child often suffers as a result of being trafficked, the experience itself often involves rape, and sexual and physical violence. As traffic victims are predominantly 13 year-olds to 17 year-olds, that group has a particularly strong need for legislation that gives adequate protection. I know that the Minister has much sympathy with the issue, and I look forward to hearing what he has to say on the subject.
I shall move to a more difficult issue—the setting of a minimum tariff. I understand why courts resent Parliament putting tariffs in legislation, but what can the mitigating circumstances be of a second offence for a person trafficking someone aged under 18? There is the argument that minimum sentences take away the power of judicial discretion to pass the sentence that judges believe appropriate to a case. I am rather glad that a number of lawyers have left the Committee to have their dinner.
I know. Believe you me, I am coming to you!
The sentencing and offences unit at the Home Office states that minimum sentences have to be issued for what it describes as,
"very serious offences which give rise to particular public concern".
I believe that the offences do just that.
Fundamentally, a minimum sentence still enables a judge to pronounce a different sentence where he finds that there are exceptional circumstances, either in relation to the offence or the offender. In such a case, a judge must explain to the open court what the exceptional circumstances are and why the minimum sentence is not being imposed.
I suspect that those are the very arguments that my noble and learned friend's colleagues are just about to deploy to justify minimum sentences in other circumstances. I hope that at least I will be consistent in voicing my support for those moves, and I hope that he will be consistent in showing his support for what I am proposing. But I know that he is a skilled lawyer, and no doubt he will come up with a finely tuned legal argument as to why minimum tariffs are acceptable when he thinks that they are right, and unacceptable when I think that they are right. Or perhaps he will surprise me and agree to all that I am proposing.
I am pleased, however, that the Bill attaches a maximum possible sentencing of 14 years to trafficking offences. However, the trafficking offences are predicated on the commission of a "relevant" offence as set out in Clauses 54 to 60. The offences are serious, and I hope that my noble and learned friend will look carefully at what I have had to say. I have put forward my arguments for the amendments, but in the end I believe that we have to send a clear signal that trafficking in children is at least as serious as trafficking in drugs.
I am open-minded about most of the amendments in the group but, despite the persuasive arguments of the noble Lord, Lord Alli, I could not support Amendments Nos. 322B, 326B or 330B. Members of the Committee with legal qualifications will correct me if I am wrong, but I believe that minimum sentences are essentially alien to our law. Minimum periods of disqualification for motoring offences are a different matter, because they involve neither incarceration nor a drain on the public purse.
It is fashionable in liberal circles to deride the present Home Secretary, Mr David Blunkett. I do not join in that derision, but I strongly disapprove of his proposal to impose de facto minimum sentences for various, rather random, categories of murder, leaving minimum discretion to the trial judge. In a much more minor way, the amendments I specify fall into the same category and I certainly could not support them.
I support Amendments Nos. 322A, 326A and 330A, which acknowledge the seriousness of the crime of trafficking with regard to children. Such crime should certainly always go to the Crown Court. Throughout our proceedings on the Bill, I have argued for children to be treated differently, both when they are the abusers and when they are abused. Their extra vulnerability sets them apart from other victims, and the courts should recognise that when dealing with such crimes.
Trafficking of children is on the increase. We need a penalty that acts as a deterrent. We need to send a message that it will not be tolerated and, if detected, will be treated as a very serious crime. As the noble Lord, Lord Alli, said, to abduct a child is a serious abuse of its human rights, apart from the other abuses that often go with it. I want the Bill strengthened in terms of how it protects children, so I urge the Minister to accept Amendments Nos. 322A, 326A and 330A.
I am afraid that I do not agree with the other amendments tabled by the noble Lord, Lord Alli, because I do not believe that imposing minimum sentences is a good idea. The noble Lord, Lord Alli, knows that I will not support that proposal. I prefer to leave the matter to the judge. Aggravating factors—for instance, there being only one offence, rape, physical and sexual violence and so forth—will mean that the sentence given will be towards the top end of the range. I do not believe that we need to specify that. Anyone guilty of such acts should be given a sentence that reflects the seriousness of the crime, which is what normally happens in a court of law. I believe that we can leave it to the courts, within the framework of the sentencing guidelines, to make that decision.
I support what has been said by the noble Lord, Lord Alli. I really am breaking all the moulds today! I do not believe that there is a more heinous crime than trafficking in children; passing children around the world like parcels for the gratification of, often, older men. It is too awful even to contemplate. I agree with the noble Lord, Lord Alli, that if someone has been proven in court to have committed the offence twice and is coming into court for the third time for that same offence, it is hard to envisage what should be more lenient than the minimum sentence set by the noble Lord.
I know of all the sensitivities which surround our having any view about minimum sentences, but it is for Parliament to set frameworks. That is our role. If, after full consideration of both Houses of Parliament and before the Bill receives Royal Assent, we genuinely take the view that the crime is so serious that we want to do what the noble Lord, Lord Hylton, has advocated for many years in this House in relation to the trafficking of children for the sexual pleasure of people around the world, we now have the opportunity to do something about it.
I want to put a question to the noble and learned Lord, the answer to which could alter my view about whether I support the noble Lord, Lord Alli, which I want to do. What evidence do we have about how the cases are treated in court? Are there any historical records. As the noble Lord, Lord Alli, said, I trust the courts to impose a sentence of seven years upwards, depending on the seriousness of the crime. The offence of trafficking in children not once, not twice, but for a third time, is so serious that in my book seven years minimum is about right. The courts should be left to determine how much longer in addition should be imposed.
I support what the noble Baroness, Lady Blatch, has just said and I support the amendments tabled by the noble Lord, Lord Alli. I added my name to the amendments as a result of a debate held in this House about 18 months ago. I was fortunate enough to win a balloted debate and I used it to raise the subject of trafficking.
Fortuitously, the debate falls during the week when we will commemorate the life of Lord Wilberforce. He spoke during that debate in your Lordships' House—one of the last speeches he made here—about this modern form of slavery. Standing as he did in the footsteps of his great ancestor, his words about the need to do something about the issue struck many of us most powerfully.
It was with great pleasure that I went with my noble friend Lord Hylton to see the Minister, who has been most receptive on the issue. I congratulate him and the Government on the responsive way in which they have dealt with the concerns raised during our debates over the past 18 months. The Bill therefore generally sends out the right signal, but as always those of us who want to see strenuous measures taken to deal with the issue will push a little harder. I do not support the Holy Grail, often expressed by many lawyers, that we should not indulge ourselves occasionally in minimum sentences.
It is not unreasonable to put such provisions on the statute book. After all, when my noble friend Lord Hylton—I was in the other place at the time—introduced a measure to make it a criminal offence prosecutable within this jurisdiction to abuse children overseas, we were told that we could not do that; it was without precedent. There was a precedent; it was torture. Eventually, despite the opposition of the then Lord Chancellor, Lord Hailsham, the measure was incorporated in statute.
I do not therefore believe that this measure will shake the foundations of your Lordships' House or of the legal establishment. It will instead send a useful signal. As the noble Baroness, Lady Blatch, said, we need to send signals about how serious we are about the issue. It involves the taking away of the innocence of children, a point made when with representatives of World Vision, Anti-Slavery and the Jubilee Campaign, I was able to see the Minister with my noble friend Lord Hylton. They were extremely grateful for the positive way in which he responded at that time.
The amendments are good and will add to what the Government are already doing. Even if they cannot be accepted today, I hope that between now and the Report stage the Minister will give further consideration to the representations made to him and to the amendments in the name of the noble Lord, Lord Alli, which should receive our support.
I want to address the question of minimum sentences. It should not be confused with recent pronouncements on the tariff where there is a mandatory life sentence and the recent pronouncements of the Home Secretary that the minimum period that a person has to serve before his sentence is considered by the Parole Board, but within the context that a life sentence has been passed on a mandatory basis. We should not get confused about it.
Even though these are heinous crimes, those who call for minimum sentences always have in mind the main conspirator; the person who is the organiser. Often tactically there is a reason for prosecuting the minnows in a conspiracy such as trafficking or in drugs. It may well be that if minimum sentences are imposed, prosecutions will not be brought against, say, the girlfriend of someone who happens to be peripherally involved but just can be said to be a party to the conspiracy.
Every case is different. Judges are not irresponsible people with liberal inclinations. I assure your Lordships that often they do not have liberal inclinations. They do not pass light sentences. Trust them and do not introduce minimum sentences in any aspect of our criminal law.
Perhaps I may ask the noble Lord, Lord Thomas of Gresford, to think again about the analogy that he has made with drugs. I heard only today about someone who is fighting an accusation of bringing drugs into the country. The person was stacking pallets on a huge lorry and it turned out that instead of one of them containing floor tiles it contained a large consignment of drugs. Whether the case is proven or not, it is possible to envisage that the person who imported those drugs into the country may well be entirely innocent. It is a possibility that he may be guilty, but that is a matter for the courts.
However, the case is different when it concerns human beings. Children are not hidden in luggage unwittingly. People wittingly bring children into the country and then their little bodies are used for the gratification of others. It is different from the importation of drugs.
As regards minimum sentences, I agree with the noble Lord, Lord Thomas of Gresford. I am also greatly relieved to hear his assurance that the majority of Her Majesty's judges do not have Liberal Democrat tendencies.
At the risk of being criticised by a lawyer, perhaps I may make one or two technical points about the amendments which the noble Lord, Lord Alli, addressed. They increase the penalty if the victim of a crime is aged under 18. Clauses 55, 57 and 59 deal with people who are not only under 18 but who the criminal in question did not reasonably believe to be that age. It seems to me somewhat strange that in the amendment tabled by the noble Lord, Lord Alli, the higher penalty would apply if someone turns out to be 17 and 11 months even though the person appeared to be well over that age. I mention that in case the noble Lord, Lord Alli, is minded to return to this at another stage. He might like to consider whether he should adopt that test.
I thought the noble Lord, Lord Alli, said in relation to the minimum sentence that judges could in exceptional circumstances depart from that. I do not find that in his amendment and do not know where that power would come from. I was also puzzled by the noble Baroness, Lady Blatch, who seems to have added an extra offence. She talked of people who were coming up for the third time. As I understand Amendment No. 322B it would apply to a person coming up for the second time not a third time, which is a rather different situation.
One has to be concerned when my noble friend Lord Alli and the noble Baroness, Lady Blatch, are on the same side even though, as the noble Viscount, Lord Bledisloe, pointed out, it would appear that they are united on a totally different amendment from that on which they thought they were united.
That is a mere detail in relation to this matter. As regards the first part of this group of amendments—that is, whether trafficking offences should be triable only on indictment—the noble Baroness, Lady Noakes, will know that an arrangement was reached whereby we would write to noble Lords in relation to each one of these points. I do not know how that slipped through the net but I shall certainly deal with it.
Clauses 61 to 63 include adult and child trafficking. These are incredibly serious offences. However, one must recognise, for example, in relation to an adult trafficking case that one could be guilty of this offence by providing food or water to people who are being trafficked. The CPS is perfectly capable of deciding how serious that particular case is. But should the Crown Courts have a large number of those kinds of offences or should the CPS be able to make up their own mind whether to start in the magistrates' court or the Crown Court, remembering that the magistrates' courts are able to say, "We do not think that this is suitable for the magistrates' court; it can go to the Crown Court"? I think that there are adequate safeguards in relation to that. Judgments have to be made, recognising that these are very serious offences.
The same arguments apply to Amendments Nos. 322A, 326A and 330A tabled by my noble friend Lord Alli in which offences have to be tried on indictment even where the victim is under 18. If we think of the peripheral figure and of the protections of the CPS and the magistrates' court, in reality I do not think that there is much to worry about as regards that.
As regards the minimum sentence, the noble Baroness, Lady Blatch, raised a legitimate point and asked what is the experience so far in relation to sentencing. I am told that it is too early for any patterns to emerge at present. Is it right to have a minimum sentence here? We think not. Yes, in some cases there will be an appropriate place for a minimum sentence. The most recent one that has been introduced or is about to be introduced is in relation to firearms where there are existing penalties. The crime has been there for a long time. A particular problem has arisen in the context of a pattern of sentencing over a period of time. It is because the problem has arisen that it is right that the legislature sends a particular signal. But we think that there is no need for that in this case.
All around the Committee noble Lords have indicated their total abhorrence in respect of which these offences are held. There is no reason to suppose that the courts would not take the same approach. Therefore, although we are fully appreciative of the motives behind the particular amendment, we believe that it is not appropriate. No doubt the person on the telephone to the noble Lord, Lord Thomas of Gresford, would have enthusiastically embarked on that. Therefore, we would oppose minimum sentences.
I apologise to the Committee. "For whom the bell tolls". It tolls for me! In response to the noble and learned Lord, Lord Falconer, perhaps I may make this point. When it comes to guns we shall put forward exactly the same arguments when that Bill goes through. One can envisage a circumstance when the police burst into a nightclub and a man hands over a gun to his girlfriend who is found in possession of a firearm. I cannot remember the minimum sentence in the Criminal Justice Bill.
She would be liable to five years because her boyfriend has handed her a gun. It is always possible to think of circumstances where sentences of that length are completely inappropriate. She is in possession and is guilty. Probably, she would not be prosecuted but why should we prosecute her on a lesser scale if she is involved to that degree? I give due warning that we shall return to that on the Criminal Justice Bill.
I thank the noble and learned Lord for his advice. I shall read carefully in Hansard what he said. However, he may have created an alliance the likes of which this Chamber has not seen before. I shall take my copy of Hansard. I shall walk down the corridor and sit with the noble Baroness, Lady Blatch, and we shall contemplate what our next move will be on Report. Do not be surprised to find on the Marshalled List an amendment tabled in our names.
I little thought when I introduced a modest probing amendment about trial on indictment that it would excite quite as much comment as the amendments which were grouped with it in the name of the noble Lord, Lord Alli, which I support. I support both sets of amendments. The second set reminded me of a replay of those clauses on rape which we discussed on the first day in Committee when noble and almost learned Lords battled somewhat weakly at moments against the rest of us. Today we have had a little more of the same.
The point I really want to make is that these children are often plucked from their native countries, removed to the UK, abused, violated and used for prostitution. Children are particularly vulnerable. Any sexual offence where children are the victims should meet with a more serious penalty. Therefore, we support Amendments Nos. 322A, 326A and 330A as an alternative to introducing a second offence of the trafficking of children, which would be sensible to avoid if we possibly can. There are quite enough words on the statute book already. If we can get away with fewer additional words, that is a good thing. In the meantime, I beg leave to withdraw the amendment.
The clause stand part debates on Clauses 61, 62 and 63 have been grouped together. I hope the Committee will forgive me if I take a little time on these three clauses. I think that we should have a general debate on the subject of trafficking. I should very much like to stress from the start that this is not because we feel that no offences should be included in the Bill dealing with the problem of trafficking into, within and out of the United Kingdom for sexual exploitation. This is clearly a massive problem on an international scale and it is vital that the Government introduce legislation to tackle it. We not only welcome it; we praise them for it.
However, we have received a significant amount of briefing from organisations which are concerned with the problem of trafficking, such as UNICEF. It has several concerns that this legislation tackles only sexual trafficking and not trafficking in general. On a further note, it feels that the Bill lacks provision for the victims of trafficking and that that may well prove to undermine the effect of the newer offences and result in a lack of successful prosecutions. In terms of combating trafficking, police in the United Kingdom have stated that there are two major obstacles to prosecuting traffickers: first, the lack of a specific law against trafficking; and, secondly, a lack of victims willing to testify against their trafficker. Clauses 61 to 63 will remove the first obstacle, but only in relation to sexual offences. However, the second and more significant obstacle remains.
The Government, as I mentioned previously, have an obligation under Articles 34, 35 and 36 of the UN Convention on the Rights of the Child to provide protection for child victims of trafficking. That matter was ignored by the noble and learned Lord at the time. Provision of such protection would protect children's rights, as well as being a crucial part of an anti-trafficking strategy. Furthermore, it has been shown that the four countries that provide the most comprehensive protection for victims of trafficking are the same countries as have the most successful records for prosecuting traffickers.
I take the noble and learned Lord's point in his letter of 24th February to the noble Lord, Lord Hylton, that trafficking of children for non-sexual exploitation is outside the scope of the Bill. However, in this Chamber we have the opportunity which is denied in another place to alter the Long Title of the Bill. That is why we begin our Committee stages with a Motion to postpone the Long Title. Were the Long Title to include simply the trafficking of children, that would bring it within the scope of the Bill. Naturally, that would also require either a new clause or substantial amendments to Clauses 61 to 63. Do I see a frisson of horror piercing across the faces of Ministers? None the less, there would be the obvious advantage of implementing Articles 34, 35 and 36 of the convention without further delay.
I must be fair and say that there is also an obvious disadvantage. The Government's declared aim of gathering all the law on sexual offences into one Act of Parliament would be diluted. In fact, by their own admission this afternoon, that is already diluted because they are still studying the law in connection with prostitution. If the noble and learned Lord resists my proposal, will he at least give a commitment that the Government intend to legislate on the non-sexual part of the trafficking of children?
Furthermore, there is no doubt that the Government need to implement safeguards for victims entering the United Kingdom and to ensure that no child is returned to his country of origin, unless that is in his best interest. That needs to include the training of immigration officials so that they can recognise the victims of trafficking.
I have already referred to West Sussex Social Services, which deals with a large number of trafficked children due to its close proximity to Gatwick airport. It has used its knowledge to design an "at risk" profile for children entering the country. The profile highlights typical attributes of one group of victims of trafficking. A pilot programme run at Gatwick airport proved successful. If an immigration officer had reason to believe that the child was a victim of trafficking he referred the child to social services. Upon referral, social services were alerted that the child was suspected of being a victim of trafficking and the care and protection then afforded was determined accordingly. The Government should place on record their commitment to the assessment and roll out of such schemes.
It is essential that social services staff also receive training on trafficking, the way in which a child can be controlled by the trafficker and how the child can be protected while within the care of social services. Trafficked children suffer horrendous abuses even before they are sexual exploited, as traffickers use various forms of physical, sexual and even drug abuse to keep the child terrified and under control.
Another point is that of specialist accommodation with supervision to stop traffickers snatching back their victims. There are occasional safe houses. West Sussex Social Services has one. It is a beacon project but may be closed down due to lack of funding. The possible closure reflects the need for social services to receive central government funding in order to cater specifically for the needs of trafficked children. Victim protection measures must include a period of reflection when he or she is granted leave to remain in the United Kingdom while his or her future options are considered.
I apologise to the Committee for speaking at such length on these important issues. But I believe that the Government should put on record their reaction to: first, what is happening in the Gatwick area; and, secondly, whether in the near future they intend to legislate on Articles 34, 35 and 36 of the United Nations convention.
The noble Lord, Lord Skelmersdale, talked of the horrors of trafficking in children when advocating his Amendment No. 322. I wholly agree with him, but Clauses 61 to 63 inclusive are not confined to children. In Clause 64, which is the interpretation clause, subsection (1)(a) refers to,
"an offence under this Part".
That is Part 1 of the Bill. This part contains numerous clauses which involve adults—for example, Clauses 56 and 58. So almost every clause in Part 1 of the Bill, which amounts to about 80 clauses, is included accidentally in Clauses 61 to 63 inclusive if indeed it is thought that trafficking is confined to children.
The noble Lord, Lord Skelmersdale, was quite right to draw attention to the omission in the Bill of trafficking for labour exploitation. I trust that it will soon become an offence. I know that the legislative programme is already very crowded, but I hope that the Government will not forget about that point.
However, on trafficking for sexual exploitation, I very much welcome the Government's intention to act decisively against it. That is shown by the way in which they have drafted Clause 61 and the next two clauses. It will, however, require the closest co-operation between immigration officers, police, Customs and Excise, the courts and the voluntary sector. The action needed will be over and above existing responsibilities of the department. Do the Government appreciate that, and will they provide significant extra resources?
I also welcome Home Office action in helping to organise and fund—although, so far, only for an initial six-month period—a safe house for trafficked adults, to be located in the region of south London. I have visited the housing association involved in that pioneer project and was well impressed by its approach to the problem. Of course, the numbers of trafficked women and children cannot be known, but they are significant. No doubt more individuals will come to light once it becomes known that exits are being provided from prostitution and pornography. The problems are not exclusive to central London, but are already cropping up in the suburbs and in other cities.
The situation for trafficked children appears less good. I appreciate that that is a matter for the Department of Health, but I trust that the noble and learned Lord will be able to answer for that department, as I gave notice of this question to his office. For some years past, the main burden of unaccompanied children arriving at Gatwick and Heathrow, some of whom have been trafficked, has fallen on West Sussex social services, as has been mentioned.
Although some children have disappeared from its care, a safe house has been provided, from which disappearance is much less likely. However, I understand that there is some danger that that house may have to close. Can the Government shed light on the up-to-date situation? I gather from a parliamentary reply from the noble Baroness, Lady Andrews—reference number HL 2530—that a proposal has been tabled to close the safe house and replace it with training and support for carers for young people at risk of trafficking. Does that mean that they will be placed with foster parents? If those young people are to be fostered only in West Sussex, will they not require almost 24-hour police protection?
If, on the other hand, the children are to be dispersed nationally, there will still be a need for great vigilance. Who is to decide what is the most prudent course of action? Surely, it should not be left to one committee of one county council to decide such a matter. Care and protection of trafficked people—whether children or adult—is properly a central government responsibility.
On Second Reading, I urged that the burden should not fall largely on local authorities, which may be hard-pressed for many different reasons. Will the Department of Health provide for protection and care of trafficked children, wherever that is needed? Will it provide for better training of social workers about trafficking, and for counselling for child victims? Those things are necessary if intelligence is to be gained about the operation of traffickers and if evidence is to be given against members of very tough criminal gangs.
Both adults and children need a period of calm and time for quiet reflection before they can be expected to provide either intelligence or evidence. Sweden, Italy and the United States of America all provide for such reflection periods—usually for six months or longer. They are reaping the benefits in the form of improved conviction rates for traffickers. Customs and cultures vary between the various countries of origin. In some cases, it may also be necessary to arrange protection for the families of trafficked people in their home countries to secure evidence in Britain.
As the noble and learned Lord did not mention the matter on Second Reading, will he tell the Committee what is the Government's policy about reflection periods? I am sure that he will acknowledge that that will involve extra costs for the important purpose of catching and convicting traffickers.
Finally, I ask the Government urgently to consider the evidence from police forces—for example, Bristol and Nottingham—which has been accepted by voluntary organisations, that children aged from 13 to 17 are being trafficked from city to city within England. That can include English children. There are thus domestic as well as international aspects to that exploitation.
I should like briefly to reinforce the points made by my noble friend Lord Hylton and by the noble Lord, Lord Skelmersdale. The Minister will recall that when the noble Lord, Lord Hylton, and I came to see him, we raised the issue of West Sussex social services and the question of reflection periods. Indeed, the noble Lord, Lord Bassam of Brighton, will recall that we have also had exchanges on the subject during Questions.
We should not be over-critical of West Sussex—an authority that, merely because of its proximity to Gatwick Airport, has had an unfair burden of responsibility placed on it. The problem is that any local authority close to an international airport is bound to have the lion's share of responsibility placed on it. Those extenuating circumstances mean that we must assist those authorities that are close to Gatwick and Heathrow when those circumstances arise.
In our discussion, the noble Lord showed considerable concern that so many children have simply disappeared from West Sussex and that we have no knowledge of where they have gone or what their fate was. I am sure that all noble Lords agree that once people have been placed in care, they should not disappear and we should not have no knowledge of their fate. Has it been possible to establish any more about the profiles of those children, their whereabouts and what happened to them? What can we learn from their disappearance? It is extremely worrying that, having been taken into a sanctuary, children should disappear in that way from any part of the United Kingdom. My noble friend Lord Hylton and I are concerned about the possibility that the provision that we are discussing might disappear from West Sussex and that the safe house provision might disappear altogether—we discussed that earlier today. Will the Minister share with us details about what provision will be made in future in West Sussex to look after those vulnerable children?
The second issue that my noble friend Lord Hylton raised was that of reflection periods. I have raised that separately with the Minister. We can learn from the experiences in Sweden and elsewhere—they have already been alluded to—in which the six-month periods can be used as a way to track down the people who are responsible for organising the rackets that led to the trafficking of children. After all, our first priority should be to stop the trafficking.
Frightened children are unlikely to give information when they are picked up or taken to a safe house. They need time in which to stabilise and realise that there will be no retaliation against them and that long-term security will be provided for them. That is when the best information and intelligence is likely to be made available to us, and that information will enable us to break the circle that clearly operates from places such as west Africa and south-east Asia. That would allow us to end once and for all trafficking in vulnerable young human beings. Reflection periods are a good way forward. I hope that the Minister will not rule it out entirely and, if he cannot agree to it tonight, give it further consideration.
Another point that I wanted to mention was raised by the noble Lord, Lord Skelmersdale, and my noble friend. It concerns the extension of legislation to deal with non-sexual exploitation. Articles 34 to 36 of the UN convention have already been mentioned. I know from my discussions with the Minister that this is not the place in the Bill to make such a provision. However, it would be helpful to the Government and all those agencies that are rightly concerned about the use of children in any number of labour-intensive occupations and sweat-shops, where they are exploited in terms of employment. It would be useful to know that that is on the agenda and that the Government intend to deal with it in due course. I hope that he will take the opportunity this evening to say a few words about that.
I thank the noble Lord, Lord Skelmersdale, for providing us with an opportunity to hold this important debate.
I attended a meeting of the all-party parliamentary group for children, in which the director of the West Sussex safe house described her work to us. It was deeply concerning to hear how the children had often been terrorised and that they sometimes honestly believed that they were under some sort of spell and that, if they failed to do as they had been told, terrible things would happen to them. At the end of that meeting, the director of the establishment said that she was very concerned about the circumstances of returning children—or, when they reach the age of 18, adults—to their home country. I should appreciate an assurance from the noble and learned Lord—I apologise for not giving him prior notice of this question—that there is proper liaison between the Home Office and such establishments about returning children to their home country. Perhaps he could do so before we reach the next stage. I know that a child should not be returned unless that is in their best interests, but I understand that there is some concern that on occasion children are not returned when that is in their best interests.
I associate myself with the comments of my colleagues and thank the noble Lord, Lord Skelmersdale, for giving us the opportunity to make our points. Most of what I was going to say has been said, so I shall make one central point about co-ordination. The noble Lord, Lord Hylton, pointed out how important it is that all the authorities work together to ensure, not only that they are identified when they enter, but that they are quickly allocated the right placement, that they are given the right kind of support, and, as the noble Lord, Lord Alton, pointed out, that they do not then disappear. I refer particularly to children, as that is where my knowledge and interest lie.
The Minister may be aware that the Government have recently set up a project to look at the co-ordination of services to prevent illegal meat imports. I declare an interest as a member of the Food Standards Agency. The project looks at co-ordination between DEFRA, local authorities and the Food Standards Agency. If we can work so hard to ensure that illegal meat does not enter the country, we might work equally hard to ensure that children who enter the country illegally are cared for and co-ordinated to that high standard. I look forward to the Minister's response.
This has been an extremely useful and informative debate on the Question of whether the clause should stand part. Obviously, the subject will continue to exercise us, as it has done over many years. I have much respect for noble Lords who have campaigned on all those issues, certainly during the years in which I have been involved with them at the Dispatch Box. I am aware that many noble Lords who contributed to the debate support strongly the introduction of more comprehensive legislation to tackle the appalling trafficking of people for sexual exploitation and labour exploitation generally.
Let us work through some of the issues raised. The noble Lord, Lord Brennan, is not present, but he asked me to make plain that his absence is not through lack of interest or concern. He wishes the Committee to be aware that he shared the concerns that other noble Lords raised today. I am extremely grateful to the noble Lord, Lord Skelmersdale, for his introductory comments, focusing on trafficking more generally, rather than on trafficking for sexual exploitation. He focused especially, as the noble Lord, Lord Hylton, did, on the support available for victims and the need to ensure that all services involved work well together, and, in particular, that they are led well by the Immigration Service.
The Government have a comprehensive strategy to deal with trafficking. We set it out very clearly in the White Paper Secure Borders, Safe Haven. That set out a four-pronged approach, which we said was needed, covering the creation of appropriate offences in legislation, enforcement, victim protection, and, perhaps most importantly, the need for international co-operation. Only the first of those requires legislation, which is why the Government have acted quickly to include offences covering trafficking on to the statute book, first, in the Nationality, Immigration and Asylum Act 2002, and now in this Bill. Provisions for victim protection and enforcement do not require legislation. We take the view that those measures should not be impeded by the progress of including those offences on the statute book.
The Immigration Service has a fundamental, critical role in combating trafficking of children. But, we argue, it must be seen in a multi-agency context. The Immigration Service has developed very close working relationships with social services and police, in locations including Heathrow, Gatwick and Dover, to identify children at risk and to ensure that they get help when most needed. A working group on unaccompanied children has been set up by the IND and the Department of Health, which are working together. It provides an active forum for social services and the Immigration Service to discuss identification and profiling issues. Furthermore, the Home Office has published a "toolkit" for practitioners in the field to help them identify and deal with trafficked victims. It offers guidance to, among others, immigration officers and the police on how to identify and deal with victims of trafficking. Although the recommendations are not obligatory, they are designed to raise standards.
Trafficking is a recent phenomenon. There is little hard evidence of the scale of the problem overall. There are various pieces of information of varying quality about adult and child trafficking. One of the key aims of the toolkit is to raise awareness of the issue of trafficking, so that police forces and social services recognise the warning signs. The best way of doing that is through that sort of awareness raising, rather than by making obligatory responsibilities that would place burdens on forces and local authorities in areas where there may be no trafficking problem.
Several members of the Committee rightly raised the issue of safe houses. As recently as last month, Beverley Hughes announced a pilot project. It focuses specifically on adult women in prostitution. That group has been targeted because there is no existing provision for them and they are recognised to be particularly vulnerable, on the basis of existing research on adult women. No such picture exists for child trafficking. It would be inappropriate to mix children with adult sex workers in a pilot scheme, and they are not included in the project.
Clear arrangements for children to be taken into local authority care already exist. They are set out, as the Committee will understand, in the Children Act 1989. That is in no way related to their giving evidence against traffickers. The provision of support and assistance to child victims of trafficking should be secured—directly or through specialist agencies—by local statutory services in response to identified needs. Child victims of trafficking are likely to need specific, specialist, well developed welfare services. As we all understand, social services have a duty to safeguard and promote the welfare of such children, following an assessment of their circumstances.
Several noble Lords raised issues relating to the important work that West Sussex County Council undertakes by virtue of the fact that Gatwick Airport is within its boundary. West Sussex County Council is considering whether to close the safe house that it runs for trafficked children and replace it with training and support. The noble Lord, Lord Hylton, raised concerns on that issue, as, I think, did the noble Lord, Lord Alton of Liverpool. Understandably, they also raised the issue of the particular burden on West Sussex County Council.
The council is considering replacing its existing facility with training. Several noble Lords mentioned the importance of properly supporting training. It is also considering providing support packages for carers of young people assessed as being at risk of being trafficked. Obviously, it is for West Sussex County Council to decide how best to provide services for children in need in its area. It is closest to the problem and is most likely to understand its nature and extent.
Government funding is allocated to councils with social services responsibilities on the basis of the needs of their population. A weighted capitation formula is used to determine each body's fair share of available resources. It is for councils, working in partnership with the relevant local agencies and stakeholders, to determine their spending priorities on the basis of local needs.
The noble Lord quite properly raised this earlier. I am not in a position from the Dispatch Box to give him that precise information. He has asked this question on other occasions. We have tried to supply as much information as possible.
I, too, am grateful to the noble Lord for giving way. What the noble Lord has just said is very serious. If the noble Lord, Lord Alton, had asked that question off the cuff today, as indeed he did, it would be entirely understandable for the Minister to say that he needed notice of the question and that he would seek the answer. But the noble Lord said that the noble Lord, Lord Alton, had asked for the information on a number of occasions. Is the Minister admitting that the department does not know, not just the number of children who have disappeared, but to where those children have disappeared, or their fate? Are we simply admitting that the children have disappeared and that we are not certain how many or to where?
The noble Baroness is right to raise issues of concern. In this debate we are looking and dealing with a whole range of general issues relating to trafficking. As I understand it, we have supplied information in the past. Of course, it is of great concern that a number of children have disappeared from the care of West Sussex County Council. Clearly that council has been involved, working closely with other agencies, in taking on its responsibilities and addressing the issues that, quite properly, have been raised.
I am sorry to press the point. The question is simple. Do the Government, West Sussex County Council or anyone know how many children have been taken into care and have disappeared? Are there any figures? If the answer is no, simply say, "No, we do not have the information and we cannot get it". If it is possible to obtain the information, the Minister should say that he will retrieve the information and let the Committee know.
Before the noble Lord replies, it seems to me that the Government should write to each Member of the Committee who has raised these points today. In addition to the points so far raised, they should say whether any of the children have been recovered in this country.
I appreciate the extreme concern that has been raised by Members of the Committee. Of course, I undertake to write to Members addressing the issues raised and to provide available information. I give that commitment.
That would be helpful to the Committee. Following the meeting that we had at the Home Office, the noble and learned Lord provided some information at that time about the numbers. I want to put that on the record. My question is: do we have any further information about whether any additional children have disappeared? We are talking about approximately 70 children. The real point made by my noble friend, supporting the point made by the noble Baroness, is: what do we know about what has happened to the children? What can that teach us now about what to do about trafficked children? We cannot just lose 70 children who were in our care and learning nothing.
The noble Lord is right. He will also appreciate that I was not privy to the discussions that he had with my noble and learned friend Lord Falconer. Obviously, we shall continue to keep the noble Lord updated. That must be right. The noble Lord is also right that we should learn from this, as, no doubt, West Sussex County Council is learning a great deal from its experiences to date because it has an important responsibility.
Turning now to the point that I was making about support for victims, the whole point of the pilot project for adults, to which I referred, is to give women a safe environment in which they can make informed decisions about co-operating with authorities and whether to give evidence and intelligence about traffickers. It is not a simple trade-off; namely, granting exceptional leave to remain in return for evidence that might act as an inducement. In some circumstances that might be unlawful and entirely inappropriate.
There have been calls today for an automatic reflection period for victims of trafficking. The noble Lord, Lord Hylton, in particular, made that point. The pilot project for adults includes a period to enable women to make an informed decision on whether to co-operate with police. Children have different considerations and will not be returned to their countries of origin unless robust arrangements have been put in place for their safety.
Obviously this is a difficult and highly sensitive area. It is true that the Government have consistently rejected proposals for a statutory reflection period for adults or children because we think that that is inflexible. Furthermore, in some circumstances it could act as an incentive for trafficking. We continue to be aware of and concerned about some of those approaches.
The police are already engaged in major operations to tackle traffickers. Alongside legislation, we have already put in place enforcement structures to support those operations. The Reflex task force co-ordinates intelligence and operations against trafficking and smuggling. Using intelligence to mount proactive operations can help to avoid an onus being put on victims to provide testimony, in recognition of the fact that often they are too intimidated to do so. The current high-profile Operation Maxim, which involves joint police and Immigration Service operations against trafficking in London, shows a high level of commitment to tackling this evil and exploitative crime.
I hope that, with the exception of some of our exchanges on West Sussex County Council, I have assured noble Lords, and in particular the noble Baroness, Lady Blatch, that these new offences are much needed. I hope, too, that noble Lords will feel able to withdraw their opposition to Clauses 61 to 63 standing part of the Bill.
The noble Lord, Lord Skelmersdale, asked about trafficking for purposes other than sexual exploitation. The noble Lord rightly deserves a response to his question. Work is in progress on developing an offence of trafficking for labour exploitation. As yet no legislative vehicle has been identified for taking that forward, but it is very much work in progress. We recognise the importance of the point made by the noble Lord, but as I am sure he will appreciate, it is outside the scope of the Bill we are now considering.
I hope that I have been able to address all the issues and concerns that have been raised. We recognise the seriousness and the sensitivity of this area. The Government have a policy and a strategy to tackle these difficult issues and of course we are extremely grateful to all noble Lords who have taken part in this discussion and who continue to contribute to ensuring that this policy is taken forward with maximum political support.
Further to a question I raised a few minutes ago, can the noble Lord kindly confirm that the clauses we are discussing, Clauses 61, 62 and 63, embrace the trafficking of adults and are not confined to the trafficking of children, as some noble Lords seem to imagine?
Clause 61 agreed to.
Clause 62 [Trafficking within the UK for sexual exploitation]:
[Amendments Nos. 323 and 324 not moved.]
[Amendment No. 325 had been withdrawn from the Marshalled List.]
[Amendments Nos. 325A to 326B not moved.]
Clause 62 agreed to.
Clause 63 [Trafficking out of the UK for sexual exploitation]:
[Amendments Nos. 327 and 328 not moved.]
[Amendment No. 329 had been withdrawn from the Marshalled List.]
[Amendments Nos. 329A to 330B not moved.]
Clause 63 agreed to.
Clause 64 [Sections 61 to 63: interpretation and jurisdiction]:
I should make it clear that this is a probing amendment. As is explained at the start, this clause concerns the jurisdiction of the criminal courts of England and Wales and Northern Ireland, but not those of Scotland. I observe in passing that Clauses 61 to 63 are included in Part 1 of the Bill, and it is made plain by Clause 127(1) and (2) that this part extends to England and Wales and, in part, to Northern Ireland. The provisions do not extend to Scotland. That is clear from the provisions of Clause 127(3) which provide that only Part 2, with certain exceptions, and Part 3 extend to Scotland.
The effect, however, of Clause 64—in particular subsection (1)(e)—is to provide for anything done outside England and Wales and Northern Ireland. Paragraph (e) refers specifically to those two parts of the United Kingdom even though Clauses 61 to 63 extend to actions which arrange or facilitate trafficking into the United Kingdom, which could be anywhere within the United Kingdom; trafficking within the United Kingdom, which could be in Scotland; or trafficking out of the United Kingdom, which could be done from Scotland. Those are to be offences by virtue of having been committed outside England and Wales and Northern Ireland. None of the offences listed in Clause 64(1)(b), (c) and (d), of course, affects the criminal law of Scotland.
The matter goes further because Clause 64(2) applies to anything done in the United Kingdom by a body incorporated under the law of a part of the United Kingdom—that is to say it encompasses a company incorporated under the law of Scotland and an individual to whom subsection (3) applies. That of course extends to a British citizen. The word "British" appears throughout.
I fully understand and support the thrust of Clauses 61 to 63. It is intended to deal with an international problem which affects the whole of the United Kingdom and extends beyond its boundaries. I am concerned about the way in which the matter is to be dealt with by the criminal courts. In normal circumstances, where conduct is carried out within a part of the United Kingdom which has its own system of criminal justice, the courts there are seized of that matter—that is to say, it is perfectly possible for conduct of a kind which would fall within, for instance, Clause 62 to be carried out by a person who is resident in Scotland and who arranges or facilitates travel within Scotland by a person with the intention set out in the clause.
As I understand it, the effect of Clause 127, combined with Clause 64(1)(e), would make that an offence which would be justiciable not before the Scottish courts but before the courts of England and Wales or of Northern Ireland. The Committee will understand that the Scottish courts have their own system of criminal law and, indeed, of evidence in relation to that criminal law.
It would appear that what has happened is that what is sometimes called the "nationality principle" has been used to extend the criminal jurisdiction of the English and Northern Irish courts in a manner that I find unique. I may be corrected on this. I have always thought that offences which are intended to be dealt with on a United Kingdom basis and to extend to conduct abroad by British citizens or, indeed, by companies incorporated under the law of any part of the United Kingdom, would be dealt with according to where that conduct took place by the particular courts within the United Kingdom where that conduct took place. The noble and learned Lord will be aware that there are quite a number of cases in which Scotland has, as it were, been part of the criminal jurisdiction process by which such offences are dealt with in the United Kingdom.
I note that Clause 127(5) provides, in relation to the Scotland Act 1998, that,
"this Act is to be taken to be a pre-commencement enactment".
If that be so, I ask myself what would normally be done in a situation such as this, where we are dealing with what is, in effect, an international problem to be dealt with by the criminal courts in the United Kingdom. In the normal case, one would find that the offence created would extend to persons who commit an offence anywhere in the United Kingdom. As a result, the relevant conduct would be determined by the courts which would initially be seized with jurisdiction over that person. One would use the nationality principle for the conduct by a British citizen abroad who could be brought to book in any of the courts within the United Kingdom which have criminal jurisdiction.
Taking the matter further, I am certainly aware of circumstances in which, for instance, in a Bill which extends only to England and Wales, there may be an undertaking that complementary Scottish legislation will be brought forward to run parallel with the provisions for the similar offences in England and Wales or, indeed, in Northern Ireland. That is not apparently what is in mind. Perhaps the noble and learned Lord will let me know whether it is intended that the Scottish Parliament should pass similar provisions for offences of the character which are set out in Clauses 61 to 63 in order to enable the Scottish courts to have a similar jurisdiction to that which has been accorded the courts in England and Wales and Northern Ireland.
I think I have made it abundantly clear what my concern is. What appears to be done here is to arrogate to the English courts and the courts in Northern Ireland conduct which was not carried out within the boundaries of their jurisdiction by use of the subsection to which I draw attention and in a way which, so far as I can discover, is perhaps not necessarily unique but certainly unusual. Perhaps the noble and learned Lord will let me know about that. In circumstances in which one is dealing with the nationality principle, I find it very strange indeed that it has not been thought appropriate to bring within the content of Part 1 of the Bill offences which would apply to all the criminal jurisdictions within the United Kingdom but to only two out of the three. I beg to move.
This gives me an opportunity to thank the noble and learned Lord, Lord Cameron of Lochbroom. There is confusion in the Bill about the way in which it will be enacted vis-a-vis the different jurisdictions. I raised that at an earlier stage and was promised a reply to a particular question.
For the purposes of our debate, we need clarification on whether this is a reserved matter, because that is pertinent to where one goes from here. If it is not a reserved matter, it raises one set of questions; if it is a reserved matter, it raises a different set of questions. One way or another, the matter will have to be resolved and there must be a proper understanding about the way in which the Bill will work in practice.
It seems strange that the Bill refers to the word "British" and even to the words "United Kingdom", yet this clause refers to only three parts of the United Kingdom—
I thank the noble and learned Lord, Lord Cameron of Lochbroom, who has very ably spoken to his particular amendment. However, there is a wider issue to be resolved once and for all—the way in which the Bill will be enacted vis-a-vis the different jurisdictions.
I thank the noble and learned Lord, Lord Cameron of Lochbroom, for raising this matter and for giving me notice in writing some time ago about this provision. It is important, so I shall take a tiny bit of time to explain it. I shall also answer the questions raised by the noble Baroness, Lady Blatch.
Trafficking is defined in Clauses 61 to 63 as arranging or facilitating travel for the purpose of committing a relevant offence anywhere in the world. Clause 64(1)(e), which this amendment would remove, is needed because the relevant offence may be committed anywhere in the world. It explains what a relevant offence means when it is committed outside England, Wales or Northern Ireland.
I understand that the noble and learned Lord has concerns over the extent of the offences as they apply to Scotland. However, by removing the paragraph he also casts doubt on the scope of our trafficking offences as they apply abroad. I understand the essence of his concern. The Bill does not apply to Scotland—he is right about that. The criminal law is a devolved matter to be dealt with by the Scottish Parliament. "And yet", he is saying, "you could have an offence that was completely Scottish in every single respect that could be tried in England, Wales or Northern Ireland. Is that right?" That is the question that he is posing by his amendment.
As drafted, it would be an offence for a person in London to organise for a person to be trafficked to Nigeria to be forced into prostitution. Clause 64(1)(e) ensures that that is still an offence even though the victim will be forced into prostitution in Nigeria rather than in England, Wales or Northern Ireland. Removing the provision would prevent that from happening, which nobody would want.
As regards the specific position of Scotland and trafficking, the situation is complicated, but I do not see a problem with the provision remaining. Although it is true that the provision gives English, Welsh and Northern Irish courts jurisdiction over acts carried out anywhere in the UK, it is likely that, where appropriate, any acts carried out in or in relation to Scotland would be tried by the Scottish courts under their own trafficking provisions. Those provisions are contained in Section 22 of the Criminal Justice (Scotland) Act 2003, which stipulates in Scottish law that it is an offence to traffic someone into, out of, or within the UK for the purposes of exploiting them in prostitution or pornography. In keeping with our offences, that carries a maximum penalty of 14 years imprisonment.
Like our offences, the Scottish offences take jurisdiction over acts committed anywhere in the UK and over acts committed extraterritorially by UK nationals and companies incorporated in the UK. Therefore, the Scottish Parliament has adopted what the noble and learned Lord rightly described as a not very common approach. I cannot say whether it is unique. In practice, that means that we would expect prosecutors from both sides of the border to liaise as to the most appropriate place for a prosecution, taking into account where the act took place, where the defendant lives, where witnesses live and, as the noble and learned Lord will know, the usual sorts of issue as to where the appropriate jurisdiction lies.
So I entirely appreciate the concerns of the noble and learned Lord. He is right in his analysis of the legal position in relation to the Bill. However, in saying that, I am referring to his bare analysis and not to some of the adjectives that were occasionally applied. As there is this complementary provision under Scottish law, produced by the Scottish Parliament, the problem would be dealt with in practice.
Trafficking is an issue of international concern and extensive jurisdiction is essential for us to be able to address the problem effectively. It is right that in this climate of devolution the Scots have their own comprehensive legislation to tackle it also, but we must ensure that the UK as a whole is able to tackle this most abhorrent example of exploitation and abuse. I hope that that helps to put the noble and learned Lord's mind at rest and that it specifically answers the noble Baroness's questions.
I am very grateful to the Minister for his reply. It is perhaps unfortunate that it could not have been made plainer that Scotland was excepted from the scope of Clause 64(1)(e). That might be a way through. Of course I did not intend to press the amendment. I was well aware of the much more general intention of the provision. I beg leave to withdraw the amendment.