Policing and Crime Bill — Report (1st Day) (Continued)

– in the House of Lords at 8:18 pm on 3rd November 2009.

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Amendment 10

Moved by Baroness Harris of Richmond

10: Clause 5, page 6, line 35, at end insert—

"(1) A collaboration agreement may be entered into jointly by a police authority and the police force for its area with another party or parties, but any such joint agreement shall—

(a) set out the matters relating to the discharge of functions by members of the police force under section 23 in a form which distinguishes them from the matters relating to the discharge of police authorities functions under section 23A;

(b) contain the information required under section 23D.

(1A) Any police force collaboration agreement which imposes any legal liability on the police authority must take the form of a joint agreement referred to in subsection (1)."

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords) 8:31 pm, 3rd November 2009

My Lords, I supported the original version of the amendment, but I am moving this version after listening to the Minister in Committee because I remain concerned. I agree entirely with him about bringing greater clarity to which sorts of agreement are appropriate for forces to enter into and which are appropriate for authorities to make. Although a number of rough edges remain to be ironed out in this clause, I support its overall aim and acknowledge that this is a very important area to tackle, to strengthen resilience at strategic level.

The original amendment was not in any way intended to merge or confuse the functions that could respectively be carried out by forces and authorities under collaboration agreements. The amendment was simply to make it clear that forces and authorities could enter into agreements together. However, the revised amendment tries to clarify the points made by the Minister, whereby the functions can be kept separate.

Joint agreements are in practice how most collaborations actually work. For instance, the main focus of an agreement might be to work with another force to improve the way that human trafficking is handled, but the agreement will also need to include collaboration on a number of support services, such as the provision of specialist IT. However, I am concerned that if an enabling provision is not put into the Bill specifying that it is possible for an authority and force to enter jointly into agreement with another authority and force, then sooner or later someone will challenge this common practice on the grounds that it is ultra vires because it is not set out in legislation.

It might be argued that if the intention had been to provide for joint agreements, the legislation would not have been so specific about separating out force agreements and authority agreements. I am sure that a court would have some regard at a judicial review to the debate that we are having about this issue. However, that will not have the same force as something that is in the Bill. We need to put this matter beyond doubt and be absolutely clear that it is permissible to enter jointly into force and authority collaboration agreements while preserving the specific roles of forces and authorities in those agreements.

The second part of the amendment tries to clarify what should happen when a force collaboration agreement imposes a legal liability on an authority. The Minister implied in Committee that this had already been dealt with because an authority would have to approve a force agreement in any event. I am uneasy about this. Approving a collaboration agreement in advance is very different from being a party to it and involved in operating it. I am concerned here about various statutory responsibilities of police authorities, particularly those that accrue to it as an employer, which cannot be wholly delegated to the chief officer. This includes things like health and safety. The intention is not to suggest that police authorities should become involved in delivering operational policing but that they should be capable of meeting and managing their legal liabilities in a way that might be difficult if their role is merely to approve and then monitor agreements. This might not give them the necessary traction to manage their risks and responsibilities effectively.

This goes back to the earlier point about entering joint force and authority agreements that might cover some of these concerns. There are potential situations where no parallel support agreement is required from the authority, but the authority is nevertheless exposed to liabilities. It worries me that an authority might have limited routes to protect its position in this situation. I have removed the reference to exposure to financial liability because I accept that authorities should have other means of meeting their financial stewardship duties through financial delegation arrangements.

I reiterate that the amendment seeks to improve, and remove barriers to, collaboration. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I will be brief. Having read Hansard, it seems to me that the noble Baroness and the Minister are trying to achieve the same thing. I accept the Minister's previous assurance that police authorities will have to approve, and be involved in, all police collaboration agreements, including any liability imposed on them and any establishment of accountability arrangements.

In Committee, the Minister said that the detailed clarity that the noble Baroness seeks will be found in supporting guidance and in the example agreements that the Government will publish. We look forward to receiving these—I hope that they will be made available.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the provisions on collaboration agreements deal with the different roles that police forces and police authorities have within the collaboration. The most straightforward way for the legislation to make these details clear is to address them separately. However, that in no way undermines the need for both authorities and forces to assume their distinct responsibilities in the arrangements for a police force collaboration. The provisions ensure that they have a duty to assume those responsibilities.

When the amendment, in a slightly different form, was tabled in Committee, I reassured noble Lords—as the noble Baroness, Lady Neville-Jones, mentioned—that there was no discernible difference between the present legislation and the proposed new arrangements in so far as they both supported police forces and police authorities signing up to their combined plans for collaboration. The only difference is that the new provisions make it clearer that they deal with two different sorts of agreement about their respective responsibilities, but that these may be interlinked and indeed form two parts of the same set of paperwork. I also reassured noble Lords that such an approach would be the default arrangement in the template agreements set out in the supporting guidance. I take the point of the noble Baroness, Lady Neville-Jones, that we must make sure that this is given out soon to the House. That is indeed the basis on which the templates are being drafted.

I recognise the concern behind the amendment. As has been stated, we are both after the same thing. The linkage between force and authority agreements is important and may not appear explicit under the provisions as drafted. However, there is a clear dependency between the two, and all police forces' collaboration agreements will automatically present an opportunity to the police authorities to develop associated agreements on governance arrangements and support services by virtue of the fact that the authorities must consider them for approval. There is no legal requirement for a police authority agreement to be the same as the agreement between police forces on which it is dependent. We will be happy to provide detailed advice to police authorities and forces on this point in the statutory guidance—I have already touched on that.

I give my further reassurance that the approach set out in the provisions provides a robust and legitimate platform for agreements that combine the arrangements for operational policing collaboration with the governance and resourcing arrangements needed to underpin them. On this basis, I request that the noble Baroness withdraw her amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I am very grateful to the Minister. I think that we are probably seeking the same ends but through slightly different means. The detailed clarity to be found in guidance is to be welcomed and I look forward to it. I do not think that we can go any further with the amendment at this stage but I am grateful that our discussion will be recorded in Hansard so that authorities will be able to see what we have been debating. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendment 11

Moved by Baroness Harris of Richmond

11: Clause 5, page 7, line 6, after "force" insert "or more than one police authority acting under joint arrangements set out in subsection (3)"

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I spoke to a number of related amendments in Committee and supported earlier versions of both Amendments 11 and 15 in this group. However, I shall speak first to my Amendment 11.

The Minister's response at that time focused more on other amendments in the group and did not really deal with this one, beyond acknowledging that many police authorities already carry out their collaborative functions through joint committees. However, I am afraid that that rather missed the key point about accountability, which this amendment seeks to address. It is designed to clarify not so much authority functions as chief officer accountability for collaboration. I have revived it because I am still concerned that it is essential to get governance absolutely clear in what is a very complex area. Therefore, I have removed the reference to joint committees, because I think that that rather confused the debate, and instead have focused on joint arrangements in order to get to the nub of this issue.

There have been occasions in the past when collaboration has been impeded because the chief officer has refused to answer to a joint committee of police authorities for the conduct of collaborative functions on the grounds that in law his only accountability is to his home police authority. The amendment would ensure that that excuse could not be used in future and that a chief officer could legally be held to account for collaborative functions jointly by the authorities involved in that collaboration. I am not convinced that the existing wording in the Bill is specific enough about this because at present new Section 23D(1) refers only to police accountability to a home authority. Subsection (3) does mention joint arrangements but it refers to authority functions and not specifically to the answerability of chief officers. I accept that one function of an authority is to hold to account but there are many others, and the meaning of this new section is, to my mind, obscure and still open to interpretation by a reluctant chief officer. I hope that the amendment puts that beyond doubt, and it is essential if we are to be serious about removing the barriers to collaboration.

I turn to Amendment 15. When we last debated this section of the Bill in Committee, the Minister indicated that there might be some merit in looking again at the delegation of police authority functions if it helped to assist aspects of collaboration and procurement. If he has done that, I have not heard so specifically from him, but I understand that the Home Office retains concerns that disapplying the bar on delegation might open the floodgates and that that might lead to authorities delegating their policing functions in their area inappropriately. However, the inability to delegate any functions is undeniably a bar to facilitating collaboration and adds needless bureaucracy to the process.

I was under the impression that this section of the Bill was supposed to make collaboration clearer and easier. I am sure that it is not the intention of police authorities to divest themselves as quickly as possible of all their responsibilities. That is not what local authorities did when they were given the same power and there is no reason to think that police authorities would act differently. This would be much more consistent with the principles of greater devolution which the Government supported in the Green Paper on policing. Indeed, the only reason that police authorities were prohibited from delegating functions when this legislation was passed nearly 40 years ago was that they were then still effectively committees of their local authority. I remember that extremely well. In those circumstances it was inappropriate for police authorities to have an independent legal status outside their councils or to arrange for another police authority to carry out their functions.

I understand that over the summer there has been some confusion about the ability of police authorities to collaborate in another context. I believe that the standards board issued guidance about collaborating to form joint standards committees locally. That guidance was substantially aimed at local authorities, but police authorities are covered by the same legislation on standards as local authorities are. However, I believe that the standards board initially concluded in its guidance that the Local Government Act 1972 prevented police authorities from collaborating together on their standards functions. It really is a bit of a mess. I understand that this issue has now been resolved and that the initial advice has been revised to confirm that police authorities can collaborate regarding standards. That must be a welcome move but it illustrates starkly the confusion about the matter. Surely, in a Bill which is meant to clarify and facilitate collaboration, it is essential to ensure that that lack of clarity is quickly resolved.

I shall now try to help the Minister. Rather than simply disapplying the relevant part of the Local Government Act 1972, I seek to amend it to try to cover his concerns. First, it prevents police authorities from delegating all of their functions to another police authority, although the other side of that coin is that it will permit them to delegate some functions. Secondly—and here I give the Minister a big helping hand—I have included a provision that would enable the Secretary of State to make regulations about functions that cannot be delegated, although naturally that is subject to consultation with the Association of Police Authorities. Therefore, I hope the Government agree that that is an acceptable compromise which helps to remove barriers to collaboration and unnecessary bureaucracy while overcoming the concerns expressed by the Minister in Committee. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs 8:45 pm, 3rd November 2009

My Lords, we have some sympathy with Amendment 11, which specifies that when a chief officer is acting under the terms of the collaboration agreement which cuts across a number of force areas, he can be held to account by police authorities jointly. It is important that a mechanism is set up to see that the joint arrangements are working.

In Committee, the Minister said that new Section 23D(3),

"encourages consideration of joint committees for this purpose".—[Hansard, 22/6/09; col. 1413.]

He seems to suggest that there might be alternative mechanisms for accountability and collaboration arrangements. It would be helpful to know whether that is the case. Perhaps the Minister could give examples of the ways in which accountability can be achieved in the circumstances. In any event, if the Minister is willing to give an assurance that subsection (3) will have the effect desired by the noble Baroness, we would be willing to accept that.

In regard to Amendment 15, our attention alighted on the sentence of the noble Baroness about there being some merit in the suggestion that some employment and procurement difficulties in collaborations might be eased by the ability to delegate to some of the other functions in those areas. That relates to the problem posed by the Local Government Act where there is an inability to delegate. Is there any way in which to allow police authorities to delegate some of the functions to other police authorities without amending primary legislation?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I recognise the concern behind Amendment 11. However, I do not believe that this point needs further clarification in statute. The Local Government Act 1972 permits police authorities to establish joint committees and to discharge their functions jointly through them. A discharge of the function of holding a chief officer to account for his collaborative work, as set out in Section 23D, via a joint committee is, therefore, permitted. The chief officer failing to recognise the authority of such a committee would be in breach of his duties, which for the avoidance of doubt may be set out in the provisions of the collaboration agreement. I would be happy to ensure that this position was clarified further in the statutory guidance to which chief officers must also have regard. I would add that the guidance will provide advice which the police authorities are helping to draft on the best ways in which they should structure their governance of collaborations under different circumstances.

Amendment 15 seeks to make changes to the Local Government Act 1982 in order to permit the delegation of functions from one police authority to another. When this matter was debated in Committee, I assured the noble Baroness that it should be explored further. Those discussions are continuing between the Home Office, the Association of Police Authorities and the individual police authorities. There is considerable pressure for more to be done to enable joint procurement and for policing to run more smoothly—not least coming from me. I was appalled by how poor the linkages for procurement were. There is a great deal of pressure to do something, and perhaps I may get back to the noble Baroness, Lady Neville-Jones, about whether the issue can be delegated. I am not sure about the answer to that, but I hope that it has been examined because it is so important.

I would ask that the discussions between the Home Office and the Association of Police Authorities should be allowed to conclude before the most appropriate solution is taken up. I am absolutely certain that we need to make a move in this area. During Committee, the noble Baronesses, Lady Harris and Lady Henig, proposed that this constraint in the Local Government Act should be repealed in full. It might be that such a straightforward way ahead might be best, but we need to examine that before making a decision. I again undertake to seek to address the issue, which is recognised as a stumbling block for police authorities wishing to work better in collaboration with each other, as quickly as possible. On that basis, and in the light of my reassurance on the joint discharge of accountability functions, I would ask that the amendment be withdrawn.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, once again, I am grateful to the Minister for his reply. I also thank the noble Baroness, Lady Neville-Jones, for her support, especially for joint arrangement working in Amendment 11. Having the promise of guidance and rigorous re-examination of these difficult areas, and having continuing discussions on joint procurement as we did not go for the merger of police authorities, it is important to have greater clarity on what we want to do in collaboration agreements between forces. I welcome the Minister's comments and beg leave to withdraw the amendment.

Amendment 11 withdrawn.

Amendment 12

Moved by Baroness Harris of Richmond

12: Clause 5, page 7, line 31, at end insert—

"( ) Before issuing guidance under this section, the Secretary of State shall consult—

(a) the Association of Police Authorities,

(b) the Association of Chief Police Officers."

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I shall speak also to Amendments 13 and 14, the last relating to Clause 5. They follow from our discussion on this part of the Bill in Committee. I am acutely conscious of the need to improve the resilience of policing at a strategic level and, in the light of the current financial situation particularly in the public sector, significantly to improve how protective services are handled and how efficiencies can be achieved in doing so.

I have carefully considered what the Minister said in Committee and taken the point that the Secretary of State is responsible to Parliament for national security. It is important for him to have some powers of direction over collaboration to ensure the strategic resilience of policing. My amendment therefore preserves this power. However, I do not entirely agree with some of the points the Minister made in Committee, hence the tabling of these amendments. However, before dealing with those individually, I shall summarise the overarching concerns that the amendment address—I hope for the last time.

This section contains very draconian and wide-ranging powers of direction which, if left unmodified, could be used at some point in the future in dramatic ways which are not intended. As I have said, although I accept that the present Government do not intend to use the powers inappropriately, once they are on the statute book they will present a temptation to all future Administrations. One day, an Administration may find it convenient to use the powers in a more far-reaching way.

At best, the powers confer the ability to micromanage collaboration between police forces and authorities; at worst, they could be used to direct that policing is restructured by the backdoor. It may or may not be that, one day, it will be right to restructure policing, but that should be done through the proper parliamentary process, not through another route that enables that process to be circumvented.

In Committee, the Minister did not really deal with my points about the pernicious nature of the powers in this section to give central directions to police officers. He talked about powers of direction not being new but, in that context, included powers to direct police authorities. That rather misses my point. The ability to give direct orders to chief officers is the thin end of the wedge of exercising central political control over policing.

We are all aware of the recent debates about the politicisation of policing, which the current, carefully crafted structure of the tripartite system is there to prevent. The Bill rides roughshod over that. Even on the Minister's words, it is intended to be used in a routine way. He stated previously that the powers were needed not as a last resort, but to develop a national consensus about consistent collaboration. I do not entirely buy that. I think that there are other ways of developing national consensus without using draconian powers.

I am of course aware that the Secretary of State has similar powers of direction in the current collaboration section of the Police Act 1996, which the provisions are intended to improve but, in the 13 years since the Act was originally passed, the tripartite structure has matured. Other powers to direct or intervene that have been introduced into policing legislation since then have recognised that, and have usually been careful to preserve the appropriate balance of powers. Sections 40 to 40B and Section 53A of the Police Act are examples of that. That has not prevented the use of central powers, but has limited how they can be exercised to preserve the independence of policing. Since then, there has been an move to greater local devolution and accountability. The Green Paper supported that aim, yet here we have centralising powers, which fly in the face of that and pretend that time has stood still.

I have taken on board two points that the Minister previously made. First, this section of the Bill cannot be tied to Sections 40 to 40B of the Police Act, because it deals with remedying poor performance, not with wider strategic issues, or the ability to specify what action may be needed in a collaborative context. Secondly, I noted his point that HMIC will be important in developing a proactive approach and providing advice to determine what action might be needed to improve collaboration and in scoping policing functions that could usefully be delivered in collaboration.

I have brought those points together in my amendment. It would enable the Secretary of State to give directions about collaboration, but only via police authorities, which could use existing powers available to them under the Police and Justice Act 2006 to ensure that their forces collaborate. That would mean that we could avoid the prospect of the Secretary of State giving orders directly to chief officers, but achieve the same outcome in terms of traction over collaboration. It would also ensure that the Secretary of State could exercise his powers only on advice from HMIC that it was in the interests of the efficiency and effectiveness of policing. Finally, it would give the authorities and forces concerned an opportunity to make representations about the direction that HMIC would have to consider in providing advice. This represents an appropriate balance between meeting the national strategic needs of the Home Secretary and preserving important safeguards and local responsibilities.

I shall be brief on my other amendments in this group. They relate to consultation before powers of direction are exercised and before statutory guidance about collaboration is issued. I heard that the Minister thought it was unnecessary to specify that this should include consultation with APA and ACPO because that would be done anyway, as they would be among other bodies that would be consulted. That struck me as a little too casual. By that yardstick, it would be unnecessary to mention anywhere in the Police Act that APA or ACPO should be consulted about anything, but they are statutory consultees to many aspects of the Police Act and other policing legislation. I wonder why the Minister thinks collaboration should be the exception. Given the problems that have accompanied attempts to collaborate, I find it particularly odd that he does not think it appropriate to mention consultation with the bodies that have experience of putting this into practice. It also, by implication, seems to place central interests first once again and pays scant regard to the rest of the tripartite structure. I do not see the problem with including this as it gives a formal say to the other legs of the governance structure in an area that will become increasingly important to policing. I beg to move.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, the noble Baroness spoke to her amendments in some detail, and I can be brief. They raise an important question: is the Bill consistent with the roles, functions and authority of police authorities set out in existing legislation that gives them the power to ensure that a chief officer complies with directions?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism) 9:00 pm, 3rd November 2009

My Lords, these amendments seek to constrain the Secretary of State's powers to direct police forces and police authorities to issue guidance about collaboration. It is reassuring that the noble Baroness does not seek to remove these powers completely because she clearly recognises the need to have the tools to carry forward strategic directions and supporting guidance where they are deemed necessary. Indeed, as she said, this already exists to an extent in legislation.

The dependency on efficiency and effectiveness is made explicit in Amendment 13, but it is not necessary. The Secretary of State is already compelled by Section 36 of the Police Act to exercise his powers in such as way as to promote those aims in respect of Part 1 of the Act, which the provisions in Clause 5 amend. Amendment 13 also seeks to allow directions to be given to chief officers only via their police authorities. To answer the noble Baroness, Lady Neville-Jones, we believe that this is consistent with the requirement to have police authorities with their powers. We are not trying to bypass them. I do not believe that this is a necessary change to the arrangement set out in Clause 5. The Secretary of State may wish to issue a direction to particular forces, for example, to follow a particular collaborative route or to modify the way in which they are currently collaborating, and at the same time would need to direct those forces' authorities to enable such a change. I do not see that this direct engagement with forces diminishes in any way the position of police authorities or their responsibility to govern the work of their forces. I am happy to clarify now that there is no question that any direction to be given to a chief officer would first involve consultation with him and his police authority. There will always be consultation before anyone is directed. Further, the amendments seek to make explicit such consultation, as well as consultation with the Association of Police Authorities and the Association of Chief Police Officers on directions and statutory guidance. They also seek to specify that the advice of Her Majesty's Inspector of Constabulary should also be sought.

It is fully intended that these avenues of consultation will be pursued as a matter of course. The mechanism that is being established to oversee and guide collaborative working through the tripartite national police protective services board involves all these organisations, and it is intended that it should make recommendations to the National Policing Board for any proposed directions in the future. The intention to consult these policing partners has been made very plain in Committee debates in both Houses of Parliament, and does not need to be spelt out again in the provisions of the Act.

I should add that before issuing statutory guidance or directions to the British Transport Police or the Civil Nuclear Constabulary, which are included in the provisions in Clause 5, the Secretaries of State for their respective departments would also be consulted as a matter of course.

On that basis, I ask the noble Baroness to withdraw her amendment.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I could have anticipated what the Minister said in response to my arguments. I have asked for the Secretary of State's powers to be constrained for a very long time and in many ways, and it still seems to fall on deaf ears. However, the Minister has slightly reassured me about the central direction to chief police officers by saying that he will consult, and consult broadly, all members of the tripartite arrangement before any directions are given. I will hold him to that and will watch very carefully, as I know the Association of Police Authorities will do, to ensure that those arrangements are working properly and effectively and that central direction to chief police officers plays no part in future policing in this country. With his assurances, although I am not entirely happy with them, I beg leave to withdraw the amendment.

Amendment 12 withdrawn.

Amendments 13 to 15 not moved.

Clause 11 : Police equipment

Amendment 16

Moved by Baroness Neville-Jones

16: Schedule 3, page 83, line 8, at end insert—

"Information

7A (1) Regulations may make provision for or in connection with authorising the supply of information, other than excluded information, held by—

(a) a police force,

(b) the probation service, or

(c) such other person as may be prescribed, to a person within sub-paragraph (2) for use for the purposes of any provision of this Schedule.

(2) The persons within this sub-paragraph are—

(a) the Secretary of State;

(b) a person providing services to the Secretary of State;

(c) an approved person (within the meaning of paragraph 2).

(3) Information supplied under the regulations may not be supplied by the recipient to any other person unless—

(a) it could be supplied to that person under the regulations;

(b) it is supplied for the purposes of any civil or criminal proceedings; or

(c) it is required to be supplied under any enactment.

(4) In sub-paragraph (1) "excluded information" means any information relating to or acquired as a result of—

(a) the provision of medical or surgical treatment or care, or

(b) the provision of services by a social worker, other than information as to whether a person is having (or has had) treatment in respect of the person's use of any drug.

(5) In sub-paragraph (1) "the probation service" means—

(a) in England and Wales, a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 or a provider of probation services;

(b) in Scotland, a local authority within the meaning of the Social Work (Scotland) Act 1968."

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, this amendment probes Clause 11. I hope that this will be turn out to be an area in which we share the objective.

Clause 11 allows the Secretary of State to make regulations on the standards of police equipment for one or more police forces in order to promote efficiency and effectiveness. Clause 12 allows the Secretary of State to make regulations to require one or more police forces to adopt particular procedures and practices in order to facilitate joint or co-ordinated operations. Does the Minister accept that there have been problems, which are not limited to the police but extend across all emergency services, in responding to large-scale events such as terrorist attacks or natural disasters, because forces do not always share the same equipment and procedures? Arguably, the ability of the emergency services to work together is hindered by a lack of national standards. Will the Minister therefore say how far the Secretary of State's existing powers to set regulations for equipment for all police forces and to require all police forces to adopt particular procedures and practices have been used to date? We on these Benches believe without question in the operational independence of the emergency services, but see the need for national standards to help to ensure interoperability.

Secondly, can the Minister say how far the Government intend to use these powers to achieve this desired interoperability on the basis of national standards in relation, in particular, to the police?

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, Clauses 11 and 12 are valuable and necessary to improve information systems in policing. The proposed amendments would prevent the Secretary of State being able to make these regulations for a smaller number of forces and thereby prevent more effective collaboration below the national level. I do not believe that that is what the noble Baroness intends. Her point about needing to achieve better standards across the police forces and better interoperability is well taken, and is part of what we are trying to achieve by this. At the moment, it is not satisfactory and we have got to move forward to achieve that.

Clauses 11 and 12 will further strengthen the ability of the Secretary of State to provide a regulatory basis for convergence in support of the Information Systems Improvement Strategy that is being taken forward by the National Policing Improvement Agency with tripartite support. In the Green Paper we said that, if necessary, we would make changes in the legal framework in order to support this approach.

We believe that much progress can be made through voluntary collaboration. A number of regions have already begun such collaboration and the NPIA is working closely with those collaborations. But we need to be certain that, if it is clear that there are benefits to the public and the police service generally, whether in terms of operational effectiveness or management of costs, and that those can be achieved only through forces acting together, we can require them to do so. We also recognise that force IT is at different stages of development and that by making the legislation more flexible we also make it more equitable to apply. All those things are trying to achieve what the noble Baroness was talking about when she spoke to these amendments.

It is not our intention in any way to cut across the operational decision-making of chief officers and their police authorities. We are merely seeking to enable a more effective regime for promoting efficiency and effectiveness through co-operation, which is so fundamental and important. Existing safeguards are already in place to prevent excessive use of these powers. Regulations can be made under Section 53A only if the Secretary of State and Her Majesty's Chief Inspector of Constabulary are satisfied of various matters set out under subsection (7). Those safeguards remain unaffected by the government amendment.

Prior to any application of these powers criteria would also be developed in consultation with the police service using the existing legislative framework. Decisions about services would continue to be taken at a local level, but to an agreed set of criteria underpinned by guidance. We do not expect to use the powers to make regulations frequently and there is no immediate proposal to use the power. The Secretary of State would use the power only where he considered that it was necessary to promote the efficiency and effectiveness of a police force—I have already said that I am concerned about some of these aspects—and, again as required by legislation, only where the Chief Inspector of Constabulary considered it necessary to do so. In the light of my response, I hope that the noble Baroness is convinced that there is no need for this amendment and I would ask her kindly to withdraw it.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I thank the Minister for his reply. I am glad to hear that the Government share the desire for greater effectiveness and efficiency, which needs to be brought about by increased interoperability. I do not accept that my amendments would impede that. However, I am reassured by what he said about a shared objective. I hope that the Government will use their powers to increase the capacity of the police to operate on the basis of national standards, which is very important. On the basis of what the Minister has said, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Clause 12 : Police procedures and practices

Amendment 17 not moved.

Amendment 18

Moved by Baroness Henig

18: After Clause 12, insert the following new Clause—

"Police authorities: co-operation with local authorities

Any relevant council (as defined by section 20 (questions on police matters at council meetings)), and Schedules 2 (police authorities established under section 3) and 2A (metropolitan police authority) of the Police Act 1996 (c. 16), shall have a duty to co-operate with the police authority in relation to delivery of the Secretary of State's strategic priorities for police authorities set out in section 37A of the Police Act 1996 (setting of strategic priorities for police authorities)."

Photo of Baroness Henig Baroness Henig Labour 9:15 pm, 3rd November 2009

My Lords, I return to this topic having taken careful note of what the Minister said in Committee. I have considered carefully his view that a duty on local partners to co-operate with the police in delivering the Government's confidence target for policing is not necessary. He believed that it would merely duplicate the existing arrangements to co-ordinate public service agreements across government departments. I think that he was also saying by implication that it might skew wider public service agreement targets.

However, I am not convinced by this. The poor take-up of the confidence target by local authorities under their local area agreement arrangements indicates to me a continuing problem. I am not alone in coming to this conclusion; it is widely shared by colleagues across the police service. My amendment would not impose any targets on local government and, without there being targets to fulfil, I am unsure how it would duplicate or skew other, wider targets. What it would do is impose a responsibility to co-operate, which seems a rather different matter.

Most public organisations are already under a duty to co-operate with local authorities in helping them to deliver their local area agreement targets, which does not seem to have raised concern in government about duplication or distortion of public service agreement priorities. I am not sure why a duty to co-operate with policing organisations should be viewed as problematic while a duty to co-operate with local authorities is not.

Let us not forget that the target imposed on policing to improve confidence is doubly difficult, because it is expressed as a joint measure of confidence in police and local authorities. One understands how this has come about: it is based on the recognition that public confidence relies not just on what the police deliver but on wider social and community safety concerns. However, it seems strange that only one half of the equation must be assessed on what is a joint measure, while the other half may choose whether they are measured on it or not.

It remains a concern that a joint measure of confidence that is mandatory for the police but not for local authorities could diminish the enthusiasm with which one half of the partnership approaches this matter. Councils can sign up to the target as one of a suite of targets that they may choose to adopt with their local area agreements, but they do not have to do so. Not surprisingly, police chiefs have protested that their work to meet the confidence targets is very likely to be hampered, if not undermined, if partner bodies are not going to be under any duty to co-operate in dealing with anti-social behaviour issues or petty crime in their local area.

After some consideration, I have changed my original amendment to recognise that the key players in relation to aligning local area agreement targets and policing targets are the local strategic partnerships. The original amendment would have placed a duty on the wider crime and disorder reduction partnership, but most of these partners are not responsible for local area agreements. This amendment instead would place a duty to co-operate on local strategic partnerships in a rather roundabout way. This has been necessary because local strategic partnerships are not statutory concepts but are owned by the top-tier local authorities. It is the same top-tier authorities that nominate councillor members to police authorities, so I have defined the main partners in my amendment by reference to this.

As discussed in the earlier debate on this topic, I am told that out of 350 local authorities only about 50 have signed up to the confidence target. On my calculation, this means that there are around 300 local authority areas where the police are being asked to deliver single-handedly a joint target that they cannot completely control and where their key partner may have little incentive to co-operate. This will become particularly problematic in the financial environment that we are all facing, where resources will be tight and have to be allocated to key priorities. Councils that have not adopted the target will have even less incentive to support it in these circumstances. It is obvious that this will have a detrimental effect on policing and on force performance, not necessarily through any fault of individual forces. This seems to me like an Alice in Wonderland situation.

If, as I do, one supports greater devolution and a reduction in central targets, one believes that it is inappropriate to impose additional targets on local authorities; as I stressed earlier, this is not a target. However, I do not see why councils should not at least be put under a duty to co-operate in delivering a target that relies partly on a measure of their contribution and effectiveness. If I could limit this by specific reference to the confidence target in the Bill, I would, but of course the confidence target is not a statutory concept. However, confidence is one of the Home Secretary's policing priorities, which are referred to in statute. The amendment has therefore been framed with reference to those priorities.

The key aim is to ensure that local authorities co-operate with the police in improving confidence, because this is a joint measure. In any event, and in the bigger scheme of things, it cannot hurt to strengthen partnership arrangements by asking that councils also co-operate in delivering other key policing priorities. I stress again that this is not the same as asking them actually to deliver or to be measured on these targets; it is simply about working together effectively at the local level, not about duplicating the strategic alignment of targets.

It has been said many times that the police cannot deliver community safety alone and in isolation from their wider local partners. My amendment acknowledges this and suggests a proportionate and co-operative solution. If this amendment is not accepted, we risk seriously undermining confidence in policing in the difficult financial climate that we will face. Not only are certain types of recession-related crime likely to rise, which is bound to impact on confidence levels, but the police will be left to firefight complex local social issues on which they will be measured but over which they have only limited influence. My fear is that this could have serious consequences for policing in future years. I beg to move.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

My Lords, I shall be brief in rising to support the amendment tabled by the noble Baroness, Lady Henig, which would place a duty on top-tier authorities to co-operate with police authorities in delivering the Secretary of State's strategic priorities and the confidence target. I was shocked, although perhaps I should not have been, to hear that only 50 out of 350 local authorities have signed up to the confidence target. The police cannot be expected to deliver in areas that are most appropriately dealt with in collaboration with local authorities. This is an important amendment and I support it strongly.

Photo of Baroness Neville-Jones Baroness Neville-Jones Shadow Security Minister, Home Affairs

My Lords, I can be equally brief. This is a sensible amendment. As the noble Baroness opposite said, the police cannot single-handedly deliver safer communities, so they need to work effectively with partners to achieve success in improving public safety and driving down crime. I, too, am struck at the large number of local authorities that have not signed up to the confidence target. It does not accord with what the Minister said previously, which was that the amendment would duplicate the current integration of strategic policing priorities with public service agreements and existing processes for setting local priorities. If that were the case, I do not think such a large number of local authorities would not have signed up to the target. It would be helpful for the House to hear the Minister explain the discrepancy and why this amendment to encourage the process is not necessary.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, having listened to what has been said on this issue, while I do not remotely pretend to be an expert in the area, I must say that I am convinced that rather more action needs to be taken in view of the small number of authorities that have signed up.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I understand that my noble friend's amendment has been made with the single public confidence target for the police in mind to ensure that all top-tier councils have a duty to co-operate with the police in the delivery of the target. Local authorities in England, together with the police, are already under a duty to have regard to local improvement targets when exercising their functions, and the majority of local area agreements include one of the key public confidence indicators, showing a strong commitment on the part of local government to deliver on this shared agenda. Indeed, more than 40 per cent of local area agreements include at least one of the four confidence-related national indicators. In seeking to introduce any additional duty, we would have to give due regard to the new burdens of this assessment.

The comprehensive area assessment—a new joint way of assessing local public services in England—examines how well local councils are working together with other public bodies and is due to report shortly. It will assess progress on all national indicators regardless of whether they are included as a target in the local authority agreement. Where local authority performance issues are identified, a proportionate and co-ordinated response to identifying and tackling the improvement need will be delivered through a range of support options from local, regional and central government partners.

However, this does not mean that there are not other ways in which local partners can contribute more to delivery of the confidence target. Given the target's stretching nature, the Government are willing to consider what more local partners might do to contribute to its delivery. We propose to do this through a consultation with stakeholders. As to the duty of LSPs to co-operate, the comprehensive area assessments will measure all national indicators, as I have said, regardless of whether these have been chosen as a target of the local area agreement. This will therefore pick up where local areas are not making progress.

Having made that response—which I thought was a good response—I was quite shocked to hear the figure of 50 out of 350, so I sent a message to the Box to ask whether it was correct. It seems to me that local partners can contribute more to improving confidence in their areas and that we need to consult on the best way to achieve this. While I do not wish to accept the amendment, I shall commit to going away and looking at this in some detail because, as I said, I was rather shocked by the issue raised by the noble Baroness. If I do that, I think that we will then have to enhance our consultation to see how we move forward. On that basis, I invite the noble Baroness to withdraw her amendment.

Photo of Baroness Henig Baroness Henig Labour

I thank my noble friend for that response. I listened carefully to what he said but I am not sure that he is fully sighted on the problem in view of what he said about being surprised at the poor take-up by local authorities. I found the earlier part of his response rather bewildering, because it seems that the Government are going round the houses in a haphazard way to meet what my amendment would meet in a direct way. I cannot understand why these abstruse arrangements are being entered into—they are extremely difficult to follow—when a straightforward approach would have met the issue.

I hear what my noble friend says. I am mindful of the fact that the single target for the police is now confidence; this is all that they are being measured on. It seems totally unfair that when they are being measured on this single overall target we are not giving them all the opportunities and facilities to deliver on it. It is important for the public to see what the police are doing and how they are doing it. If we are not going to bind all the partners in, it will put an unfair burden on the police. I urge the Minister to look at the matter again.

I am grateful for what my noble friend said. I hope that it will be possible to move in the direction that he has indicated and to help the police by doing something along the lines of my amendment. At this stage of the proceedings, I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

Amendment 19

Moved by Baroness Henig

19: Schedule 3, page 85, line 39, after "assessment" insert ", and a subsequent interview (a "drugs interview") with an approved person to discuss any matters arising out of that assessment,"

Photo of Baroness Henig Baroness Henig Labour 9:30 pm, 3rd November 2009

My Lords, I return to the issue we discussed in Committee and which, indeed, some of us seem to have been discussing for some years now. I thank the Minister for the response he gave me at that time, which was essentially that councils would implement the guidance which had been issued by the Home Office and that the guidance strongly recommended that a police authority member should be included on a local authority crime and disorder committee. I am afraid that I do not share his confidence that the guidance will be enthusiastically taken on board everywhere. As I have pointed out before, there are several councils across the country that, as a matter of principle, will not include external people on their committees unless legislation requires them to do so—and guidance is not legislation.

It is important to say at this point that I have no worries about effective councils. They are deemed to be effective precisely because they understand the value of working appropriately with partner bodies. It is the less effective councils in general that, I suggest, may not follow Home Office guidance, thus compounding problems in some areas. I dealt with the history of this matter in Committee and will therefore summarise the situation only briefly. Crime and disorder committees were created under the Police and Justice Act 2006. They are effectively local authority overview and scrutiny committees when they sit to consider matters of community safety. The regulations governing how they should operate, however, were introduced only this year.

When that Police and Justice Act was originally a Bill in this House, I and a number of other noble Lords raised concerns about some of the proposals. The issues centred on the subtle difference between holding crime and disorder reduction partnerships to account as a whole through these committees and holding the individual partners to account. In a policing context, I was concerned that these committees would overlook the subtle difference and try to hold individual police commanders to account, which would conflict with existing arrangements for police accountability. Local commanders are responsible to their chief officer, who is in turn accountable to the police authority. Crime and disorder committees might therefore be tempted to stray into undertaking the statutory job of other bodies.

I was led to understand by the then Minister that, to overcome these concerns, provisions would be placed in regulations specifying that crime and disorder committees must include a police authority member. Alas, in the event this did not happen. When issued, the regulations included a provision that councils "might" co-opt external members, but not that they must. The guidance that was issued at the same time merely recommended this as good practice.

The Minister expressed confidence in Committee that local authorities would ensure that police authorities played an active part in these committees, but he also mentioned that it was important to allow for local flexibility. Interestingly, when we originally debated this matter some three years ago, we agreed that it was more important to ensure that we got accountability right. I am not clear what has changed since then. One has only to look at some of the promotional literature currently being circulated, offering advice on implementing the new regulations. Phrases like "scrutinising the police" crop up all too often, demonstrating that there is indeed a widespread misconception about the role and remit of these scrutiny committees.

This leaves me with significant concerns that, in areas where police authority members are not co-opted to these committees, the committees will overstep their remit and seek to hold local police commanders to account. That risks creating tensions between local authorities and both police forces and police authorities, which will have a detrimental effect on partnership working.

Police accountability and how to make it effective is an important current preoccupation, and rightly so. We have to ensure that new legislation such as this supports and strengthens existing arrangements rather than offering any possibility of cutting across them. I would be happy if the Minister could tell me that the regulations will be reconsidered, but I fear that he will not be able to do so, any more than he was able to give me that reassurance in Committee. I beg to move.

Photo of Baroness Harris of Richmond Baroness Harris of Richmond Deputy Speaker in the Lords, Deputy spokesperson for Northern Ireland, Home Affairs spokesperson for police matters, Deputy Speaker (Lords)

Unsurprisingly, my Lords, I support Amendment 19. When this Government came in and started talking about crime and disorder committees, those of us then on police authorities spent a great deal of time working out how best these could be set up and scrutinised. We always felt that it was important to have a member of a police authority on that committee. It is important that the committees understand the work of the police and are able to have someone with a little expertise to explain some of the difficulties and constraints within the policing arena. Good councils, as the noble Baroness, Lady Henig, reminded us, will do the job well with crime and disorder committees, but it is important that bad ones—those that are not engaged at the moment—do so as well. Anything that the Minister can do to ensure that police authority members are included on local authority crime and disorder committees will be very much welcomed. It is extremely necessary.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the amendment would make it compulsory to have a member of the local police authority as a member of crime and disorder committees. This is an interesting point, but regulations made under the Police and Justice Act 2006 already enable the co-option of additional members to crime and disorder committees, including police authority members. Although this is subject to local determination, supporting guidance, drafted in partnership with the Association of Police Authorities, encourages local authorities to presume that police authorities must play an active part on the committee and provides clarity on the circumstances in which police authority members can add value to the work of a scrutiny committee.

I am confident that existing arrangements will encourage local authorities to ensure that police authorities play an active part at committee when community safety matters are being discussed, particularly when the police are to be present. Given the early stage of implementation of overview and scrutiny of crime and disorder matters, I would not want to draw a conclusion as to whether local authorities are, in fact, engaging with police authorities. However, we will continue to monitor implementation. The effect of this amendment would be to prejudge the effectiveness of implementation of the current arrangements. It would also put a new burden on police authorities to put forward a member for each overview and scrutiny committee within their force area. In London, that would mean 33 committees. For those reasons, I ask the noble Baroness to withdraw her amendment.

Photo of Baroness Henig Baroness Henig Labour

I thank my noble friend for that response. It will not surprise the House to learn that I do not share his confidence. Those of us who have a lot of experience of local government, particularly in two-tier areas, know all about the problems, rivalries, difficulties and dangers. The Government are just piling up legislation that rests on other legislation. At local level, you then find that accountabilities get blurred and all sorts of problems rear their heads. I hope that the Minister's confidence is justified and that this all works, but I have a great concern that it will not, that there will be problems and that they will continue into the future. With past legislation, I was in the position of raising the alarm and, lo and behold, after a few years it was necessary to revisit the legislation. I fear that this will be the case again here, but I do not wish to hold up the business of the House. I beg leave to withdraw the amendment.

Amendment 19 withdrawn.

Clause 14 : Paying for sexual services of a prostitute subjected to force etc: England and Wales

Amendment 20

Moved by Baroness Miller of Chilthorne Domer

20: Clause 14, page 17, leave out lines 33 and 34 and insert—

"(c) A is aware, or ought to be aware, that C has engaged in exploitative conduct of that kind"

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, with this amendment, we move to Part 2 of the Bill, on sex offences and sex establishments, and prostitution in particular. Clauses 14 and 15 have presented the most difficult issues. We also found that to be the case in Committee. I appreciated very much the letter of 2 November from the noble and learned Baroness, Lady Scotland, as I did her usual clarity of position and her recognition of the fact that there are arguments for different approaches. She said that the Government's position is clear. However, I think that tussling with the different positions has been very difficult for everybody.

Since Committee there has been a considerable amount more evidence—letters, e-mails and testimonies. As Liberal Democrats we believe—and, as a woman, I believe—that there should be zero tolerance of coercion, violence or sexual abuse towards anybody working in the sex industry. Those who have been trafficked into this country and forced to work in the industry against their will should expect and receive full protection under the law. I am not speaking to defend men who buy sex. I am moving this amendment in response to concerns about the effect that this legislation will have on some of the most vulnerable women in our society, and that was very much the tenor of our debate in Committee. The Government explained the strict liability aspect of the offence, saying that it was likely to have the effect of reducing demand. The evidence on that issue and how it has been approached by other places in the world has also formed part of our thinking in retabling these amendments.

Those who support Clause 14 say that making men criminally liable for,

"Paying for sexual services of a prostitute subjected to force", will drastically reduce the demand for such services and reduce the incentive for traffickers to traffic women. That belief contains two assumptions that I do not believe are correct: first, that most prostitutes are trafficked women; and secondly and more importantly, that this legislation will make that trade lessen and disappear by further criminalising the sexual services trade. The supporters of the Bill do not accept that it will drive the trade underground and endanger the very vulnerable women that they seek to protect.

If I believed that the Government's assumptions were true I would support Clause 14. However, I have looked carefully at the evidence and it does not support those two assumptions. First, there is the evidence on trafficking, which we have had a lot more of since debating this in Committee. The Home Office figures on the number of people working in the sex trade who have been trafficked have themselves been widely challenged. That was no surprise to us because we quoted in Committee the work that was just being published by Dr Mai and that had been funded by the ESRC. The Guardian report of 20 October also produced many more questions about the veracity of the Home Office figures.

Be that as it may, let us suppose for a moment that the Home Office is right about the figures. The next question to answer is whether as a result of the provisions the sex trade will disappear, or whether it will continue to exist but as a less dangerous place for women to work. There is lots of evidence on that from countries all over the world, including the US, which, with the exception of one or two states, has a highly criminalised system. For us, however, the most persuasive evidence came from those who work with women in the sex trade and those who work with the women themselves. I want to share with the House some of what I have heard since we debated this in Committee.

As far as those who are trying to improve the life of women in the sex trade are concerned, I shall simply cite, for instance, Georgina Perry from the Open Doors project in the East End of London. This project has been going since 1993, and it sees about 1,200 women a year who work in indoor sex and about 300 who work on the streets. Many are migrant women. They do not believe that the percentage of those who are trafficked is significant at all, but that the women who they work with are there because of economics, not force. They believe that it is essential to tackle health issues, first and foremost, and to support the women. They are deeply worried by these clauses.

In theory, many academics who have studied these issues for years and years are, equally, deeply against the Bill—I am sure that Ministers are aware of their names. Perhaps most persuasive are those who see the really terrible side. Women Against Rape are also deeply worried by these clauses. When we debated the provisions in Committee, the Government stated that this new offence,

"is distinct from rape because there is no requirement to show that the defendant knew or ought to have known that the prostitute was threatened or deceived".—[Hansard, 01/7/09; col. 278.]

As these provisions introduce a lower tariff, there will be a temptation to prosecute under them even in cases where prosecutions should be directed at the offence of rape. It is extremely rare to successfully convict someone of rape, particularly in such cases.

However, the most persuasive case for my amendment is made by the women themselves through the English Collective of Prostitutes and the International Union of Sex Workers. I am aware that supporters of Clause 14 are somewhat dismissive of these women's comments and claim that they often represent the views of pimps and exploiters. However, that is not the case with the women I have met who have attended many meetings in Parliament. These women are very fearful that the trade will be driven underground.

We need to look again at the evidence from the JCHR, which made its case forcefully. It referred to the likelihood of the measure having unintended consequences, including driving prostitution further underground and increasing the vulnerability of prostitutes. I do not think that the Government have provided new evidence to assuage the JCHR's fears. The Joint Committee further stated that legislation should be firmly based on evidence. It considered that it was particularly important when new criminal offences were proposed to show why the existing criminal law was inadequate to deal with the targeted conduct and how the proposed new offence tackled the behaviour in a proportionate way. In the committee's view that was even more imperative when the proposed new offence was one of strict liability. My noble friend Lord Thomas of Gresford will expand on that.

This matter was fully debated in the Commons, where some improvements were made to Clause 14. However, we are still left with the necessity of dealing appropriately and effectively with trafficking and rape. Given the many problems associated with the proposed new offence, we believe that the relevant clauses should be removed from the Bill and that the Government should instead consult on the creation of any new offence. I am sure the Minister will mention that consultation began with Paying the Price and that this measure is the end result. I believe absolutely in her sincerity in promoting her case, given her record on domestic violence, on which she has worked very hard. However, in this instance I am deeply worried that the Government are pursuing a line that will increase these women's vulnerability and will not solve the problem. We should be looking at better enforcement of existing law rather than creating this new offence. I beg to move.

Photo of Lord McColl of Dulwich Lord McColl of Dulwich - Shadow Minister, Health 9:45 pm, 3rd November 2009

My Lords, I support the retention of Clause 14 because it begins to put the responsibility for prostitution onto the man who chooses to buy sex instead of on a seller who, because of exploitation, has no choice. Some people are concerned about the strict liability element of the clause and it has been claimed that there are no current examples of strict liability in similar offences in UK law. However, there are cases where strict liability has been employed; for example, in Section 5 of the Sexual Offences Act 2003, which makes it an offence to have sex with a child under the age of 13, regardless of whether it can be proved that the offender knew that the child was under age or whether the child consented to the sexual activity. This is in place because of the abhorrent harm inflicted through child sexual abuse. Secondly, Section 4 of the Road Traffic Act 1988 makes it an offence to drive or attempt to drive under the influence of drugs or alcohol, regardless of whether the driver is aware of this.

It is important to consider how effective Clause 14 would be without a strict liability element. The answer is to be found in Finland. The Finnish Parliament voted in June 2006 to pass legislation that criminalises the buying of sexual services from a victim of human trafficking or from someone who is a victim of procurement. In order successfully to prosecute a buyer of sexual services, evidence has to be provided that the man in question knew that he had purchased and sexually exploited a woman who was a victim of trafficking in human beings or who was under the control of a pimp. Due to the difficulty of enforcing the legislation, no convictions were secured until January of this year, when 16 people were convicted. Fourteen of the convictions related to the case of a severely mentally disabled young Estonian woman. The other two convictions related to a young Finnish girl who was held in a basement on the Russian/Finnish border.

The nature of these cases makes it evident that unless the burden of proof is on the accused, it is almost impossible to obtain convictions. Would-be exploiters know this, and the law is, therefore, of very little deterrence. We know that a significant number of women in the sex trade are subjected to physical violence and rape, and are exploited by a third party. Such women are powerless to do anything about it. By contrast, the person who pays for sexual services does have a choice. If Clause 14 is passed, he will know in advance that he must satisfy himself that he has reasonable proof that the woman is not controlled for gain by a third person. If he has no such proof, he must desist or run the risk of prosecution under Clause 14. He has that choice. That is what strict liability means in practice in those circumstances.

I can see absolutely no injustice in this. To avoid any risk of conviction, the person intending to pay for sex should assume that the person he is about to pay is controlled by a third person and, therefore that he commits an offence for which he may be convicted. Thus, in practice, the benefit of doubt is given to the person who is in danger—the one who is powerless; the one who may have no choice. That is as it ought to be. Put another way, a man who wants to pay for sexual services must make sure that the person he is to pay is not being exploited by a third party. If he cannot be sure, he risks conviction. That is the message of Clause 14, and it is a message that this House should send loud and clear, because it is designed to protect those who most need the law's protection.

We need to do all we can to protect women and children who are subjected to commercial sexual exploitation. We must take this step to reduce exploitative prostitution and protect those who are currently unable to protect themselves. The human trafficking trade in the world is worth $44 billion. We must do something to reduce that.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I support the amendments proposed by the noble Baroness, Lady Miller. Without the amendments, the customer will be guilty of a criminal offence however careful he may be to check whether there is exploitative conduct by another person, and even if it were not possible in all the circumstances for the customer to identify whether exploitative conduct has occurred.

Of course, as the noble Lord, Lord McColl, indicated, the criminal law is replete with examples of strict liability offences, some of which are sexual. However, I cannot think of any other example where the defendant can be guilty of a criminal offence on a strict liability basis when he is a secondary party; that is, when he is not responsible for the primary wrongdoing, which here is the exploitation. That is what distinguishes this case from the examples given by the noble Lord, Lord McColl.

To impose strict liability on the secondary party—that is, the customer—so that he has no defence however careful he is to ascertain whether the mischief of exploitation by another person has occurred, is to make the secondary party, the customer, liable for the wrongdoing, namely the exploitation, which he has not caused. That is simply wrong in principle. If the Government take the view—and there is some force in the argument—that exploitation is endemic to prostitution, and therefore any customer bears a responsibility and should be liable, let them come forward with a clause that makes it a criminal offence to purchase the sexual services of a prostitute. However, if they are not prepared to do that, they should not put before this House and Parliament a clause in the form that we currently see.

D

This is perhaps the most cogent argument of all for the removal of Clause 14, or at least the strict liability contained in it, from the Bill.

The integrity of British justice is paramount, and the scales of justice should not be biased in the way the government are proposing.

Submitted by David Tong

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

My Lords, I disagree with the noble Lord that the law is replete with examples of the extension of strict liability to acts of a criminal character. Strict liability is usually to be found in enactments that apply to particular trades—for example, the sale of food, drink or medicines—where it is in the public interest to enforce regulatory standards.

The Law Commission, in its Working Paper No. 31, considered the mental element in crime and said:

"To make a person liable to imprisonment or criminal sanction for an offence which he does not know he is committing ... is repugnant to the ordinary man's conception of justice and brings the law into contempt".

Lord Reid—a very wise man, and very frightening to appear before—said, in the leading case of Sweet v Parsley in 1970:

"It does not in the least follow that when one is dealing with a truly criminal act it is sufficient merely to have regard to the subject matter of the enactment. One must put oneself in the position of a legislator".

We are the legislators. Lord Reid continued:

"It has long been the practice to recognise absolute offences in this class of quasi-criminal acts"— that is to say, regulatory offences—

"and one can safely assume that, when Parliament is passing new legislation dealing with this class of offences, its silence as to mens rea means that the old practice is to apply. But when one comes to acts of a truly criminal character, it appears to me that there are at least two other factors which any reasonable legislator would have in mind. In the first place a stigma still attaches to any person convicted of a truly criminal offence and the more serious or more disgraceful the offence the greater the stigma. So he"— the legislator—

"would have to consider whether, in a case of this gravity, the public interest really requires that an innocent person should be prevented from proving his innocence in order that fewer guilty men may escape. And equally important", said Lord Reid,

"is the fact that fortunately the Press in this country are vigilant to expose injustice and every manifestly unjust conviction made known to the public tends to injure the body politic by undermining public confidence in the justice of the law and of its administration".

So the extension of strict liability to acts of a truly criminal character is extremely limited.

The noble Lord, Lord McColl of Dulwich, referred to Section 5 of the Sexual Offences Act 2003 concerning the rape of a child under the age of 13. The offence requires merely proof of an intentional penetration with the penis but does not require knowledge that the child is under 13 and does not permit any defence of reasonable mistake as to age. It is not a question of changing the burden of proof; there simply is no defence.

That was so far beyond the ordinary principle that it was subject to an appeal to the House of Lords in the case of G in 2008. It was contended that Section 5 of the 2003 Act was incompatible with a presumption of innocence guaranteed by Article 6.2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. That was considered but rejected by their Lordships in this House. They held that proof of the intentional penile penetration of a child under 13 years of age was all that was required for a conviction under Section 5 of the 2003 Act. So, to the extent that there was no defence but that the accused believed the other person to be aged 13 or over, it was an offence of strict liability. However, their Lordships said that the policy of the legislation was to protect children and there was nothing unjust or irrational about a law which provided that a male who so penetrated a young person who was in fact under 13 years of age had committed an offence. The focus was on that policy. The noble and learned Lord, Lord Hope of Craighead, who is very familiar to your Lordships, said:

"There is no doubt that when section 5 of the 2003 Act was enacted the protection of children was one of the primary concerns of the legislature. Furthermore, as Rose LJ said in R v Corran ...its purpose is to protect children under 13 from themselves as well as from others who are minded to prey upon them".

The important point is that, by contrast, under Section 9 of that Act sexual activity with a child between the ages of 13 and 18 requires the prosecution to prove not merely intentional penile penetration of a child but also that the defendant does not reasonably believe that the child is 16 or over. In other words, when a child is 13, the Sexual Offences Act 2003 does not impose strict liability for that criminal offence, and the person who is a defendant for having sex with a girl over 13 and under 18 has a defence to say that he thought she was over 16.

Why, then, should the concept of strict liability be introduced into the offences of paying for sexual services of a prostitute subjected to exploitative conduct? I am grateful to the noble Lord, Lord Pannick, who pointed out that it is at one remove at any event, and that a very considerable amount of harm and damage is being done by the exploiter.

The offence put forward by the Government is not considered serious enough even to be an indictable offence. It can be prosecuted only in the magistrates' court. The maximum penalty in the offence before your Lordships is a fine not exceeding level 3—that is, up to £1,000. Therefore, there is a defence to having sex with a girl between the ages of 13 and 16, which is that you thought she was over 16. However, the Government have put it as a magistrates' court offence with only a fine but they wish to impose strict liability. It is a huge leap in principle. Is the use of prostitutes so great a social evil as to be compared with having sex with a child over 13 and more serious than non-consensual sex with a child between the ages of 13 and 18?

The amendment tabled by my noble friend does not attempt to minimise the need to protect prostitutes who are subject to exploitative conditions. To be proportionate, the defendant must surely be able to say, when he is brought before the magistrates, that he did not know or have reason to know that a third party was exploiting that prostitute. Why do the Government say that, unlike the whole calendar of criminal law, including murder, rape, terrorist crime, armed robbery, and fraud, all of which require mens rea—an intention and knowledge in the head of the person—this new offence of strict liability, this magistrates' court offence, is punishable by a maximum fine of £1,000? Why is this suddenly to become strict liability so that a defendant has no defence? Is it to send a message? We could abolish the need to prove intent or knowledge to send a message about murder or rape. Abolishing mens rea in all serious criminal offences would send a message. I suggest that the only message to be sent is that the Government have lost a sense of proportion in considering this offence.

Photo of Lord Morrow Lord Morrow DUP 10:00 pm, 3rd November 2009

My Lords, I wish to express opposition to Amendments 20 to 25, particularly to Amendments 23, 24 and 25, as they impact directly on Northern Ireland. I wish to express my support for Clause 15 of the Policing and Crime Bill, which makes it an offence in Northern Ireland for someone to buy sex or try to buy sex from someone subjected to force. Increasing demand for paid sex is a matter of national shame. Not only does it result in more women being drawn into forced prostitution from within these islands but also in women being trafficked and, yes, trafficked into Northern Ireland.

In March this year, the Police Service of Northern Ireland announced that 11 trafficked women had been rescued from sexual slavery in the previous 12 months and since then another six had been rescued in Belfast and Londonderry. In March, the assistant chief constable, Drew Harris, explained that traffickers were targeting females from sub-Saharan Africa, eastern Europe or the Far East with the promise of a far better life. He said:

"When they are actually brought here they are forced into prostitution ... We can expect that this will be a continuing problem for us because the profits involved and the criminal networks that are involved see this as a very lucrative business ... People could have a brothel quite close to them and they should be aware of that, that it could actually be one of these brothels with women in it in the most awful circumstances in sexual servitude".

We must confront the fact that forced prostitution exists only because there is a demand for it. If it was not for that demand, there would not be women languishing in forced prostitution in Northern Ireland and in the rest of the UK today. Crucially, the fact that there are women in such deplorable circumstances is not helped one bit by the fact that buying sex from someone who is subjected to force is completely legal. There is a terrible sense in which anyone who buys sex from women subjected to force can do so in good conscience, going to bed at night knowing they are a good citizen who has broken no law.

How can we celebrate, first, in 2007 the bicentenary of the abolition of the slave trade, passed by an Act of Parliament, and then this year, the 175th anniversary of the release of all British colonial slaves that was again the result of an Act of Parliament, saying to ourselves, "Never again", and yet take no action in relation to the sexual slavery that is in our own midst, sustained not by an evil foreign power, but by British men? This is a matter of great shame for our nation and I very much welcome the Government's attempt to use the law to make it illegal to buy sex from women subject to force, thereby combating contemporary slavery.

I am of course aware of the argument that says if you make it an offence to buy sex from someone subjected to force, you will push forced prostitution underground and women will suffer more. I do not believe, however, that this stands up to close scrutiny. If we do not make it an offence to buy sex from people subject to force, women will continue to be drawn into forced prostitution and more and more will suffer.

If, on the other hand, we do make it an offence to buy sex from women subject to force, some men will think again, mindful of the fact that the shame of being caught buying sex from someone subject to force will be considerable, and fewer women will suffer. Moreover, we must not forget what the Swedish police have told us; namely, that making buying sex an offence does not push prostitution underground in the sense of being beyond the law's protection. Pimps have to advertise to their punters and reel them in, and it is in doing this that they give themselves away and the police can move in and take action.

Then there are others who question the wisdom of Clause 15 on the grounds that strict liability infringes the civil rights of those buying sex, if they are deemed to have committed an offence regardless of whether they knew the person from whom they purchased sex was subject to force. While I do not have very much sympathy for anyone buying sex in any context, I have no desire to set unhelpful precedents in relation to strict liability generally, and am persuaded that we must take very great care before applying it. In this case, however, it seems to me that the two tests set out by Lord Reid in Sweet v Parsley, the leading judgment on the creation of strict liability offences, and elaborated on by Lord Scarman in Gammon v Attorney-General of Hong Kong, have been passed.

The first is that there is a clear public interest and public safety imperative, not least because forced prostitution is umbilically attached to organised crime in the form of drug and people trafficking, although there are numerous other reasons, such as its association with a very much higher than average mortality rate. The second is that without the strict liability component, the offence would be rendered very much less effective. As in Finland, where such a law exists, punters and pimps would know that if caught they could always say, "I'm very sorry, I didn't know the person from whom I purchased sex was subject to force". And so long as they were not subject to very obvious duress, it would be fairly impossible for the authorities to demonstrate otherwise.

Clause 15 is very welcome in Northern Ireland. It makes sense, while the arguments advanced against it do not hold together. Not only that, but it is supported by some 64 NGOs, many of which, like Beyond the Streets, have considerable expertise of working with women in prostitution, helping them to find routes out and a fresh start. Thus I would call on noble Lords here tonight to support Clause 15—and indeed Clause 14 —and to reject Amendments 20 to 25. Let us use this opportunity to take decisive action, making it plain, in this the 175th anniversary of the release of all British colonial slaves, that there is no room for the sexual slavery in the United Kingdom, including Northern Ireland.

Photo of The Archbishop of York The Archbishop of York Bishop 10:15 pm, 3rd November 2009

My Lords, Clause 14 is entitled:

"Paying for sexual services of a prostitute subjected to force".

That is the controlling element: the force. It seems to me that a person who purchases sex ought to know. If I drive a motor car that does not have a proper licence, an MOT or insurance and then say, "I did not know", the law is very clear. I have always believed that law always states public policy. If you withdraw the whole question of strict liability, it will become very difficult, as the noble Lord, Lord Morrow, said. Finland had in the end to decide because there was no way that they could prosecute some people who were engaging in forced sex. It is not about prostitution in general, it is of a particular kind where people are subjected to force.

The noble Lord, Lord Thomas, speaks with great eloquence and persuasion. There is a bit of me that says, "Yes, the accused always needs a very good defence". But if the statute clearly states what the law is, ignorance—as you and I know—cannot be a defence. You cannot say, "I didn't know", if the statute is very clear. If on a Sunday, instead of being in church, I decided to go to a car boot sale and bought a lot of goods there and was then arrested for purchasing or having stolen goods, or if I decided to sell the same goods another day, the defence would say, "This was in an open place, so it was absolutely safe", but the trader, the seller, would say, "You bought them knowing that they were in a car boot sale". If I bought an electrical good that short-circuited and ended up injuring someone, I could not say, "I was not aware, I was not so sure that the goods were not of the right quality".

It seems to me that the law of strict liability simply states a policy: that in cases where force has been used, you ought to ask, you ought to know before you purchase that sex. If people simply say that they are assuming that all prostitutes have not been subjected to trafficking, to abuse or to people behind them who say that they must engage in that activity, we are really saying that some of the women who engage in those acts do so freely. In the past week also, prostitutes have written in our daily papers saying, "From my experience, it may have well looked as if I was genuinely and freely engaging in this, but there were pimps behind me forcing me to get into this activity".

For me, strict liability is a statement of policy and a statement of law, just as we have it on so many other things. On the nuancing by the noble Lord, Lord Thomas, about a child, if the policy had not been stated as it was, most people would get away with it. They would say, "The child looked to me as if they were 16". My dear friends, I do not think that that is the way that we should go. As far as I am concerned, if you remove strict liability, you can forget the clause itself. It will lose its power, it will lose its definition and people will not know. I beg to say that the Government have got it right; I am not one of those who constantly supports them, as you will know, but I think that they have got the clause right. If you do your research and if you get as many letters as I do, you will know that most people are saying that trafficking has become endemic. Women are being forced into activities in which they would rather not be involved. Gang and organised crime is part of all this. Let us send out a very clear statement that in this country, if you purchase sex where the prostitute has been subjected to force, you ought to know. If you do not know, the law will state clearly what the penalties will be.

Photo of Baroness Howarth of Breckland Baroness Howarth of Breckland Crossbench

My Lords, I shall be brief because many of the points that I would have made have already been made. I support the Government's position and shall speak against the amendment. Yesterday evening, I was the only Peer who went to a meeting in this House that was packed with organisations that support women caught up in the sex trade and the young women themselves. They asked me to bring their message, which is why I am speaking.

Before I do that, I shall comment on the ideas about evidence expressed by the noble Baroness, Lady Miller. Those of us who have worked in this field for many years know that there are all sorts of difficulties about evidence on numbers in the sex trade. I have been a social worker for—shall I admit it?—30-plus years and, for all those years, I have worked with women in various places. They have never been able to come forward. They would never have won a case in court. We know that many women who are raped or children who are abused never go to court because they know that they would not win their case.

We also know that there are all sorts of figures about sex trafficking. Hillary Clinton launched the State Department annual report on human trafficking this year. The UN Office on Drugs and Crime produced its own assessment. It stated that more than 21,400 victims were identified in 111 countries in 2006, but the number of convictions for trafficking was just not proportionate: two out of five countries covered by the report had not recorded a single conviction. There are real issues about the evidential base on trafficking and about numbers.

I am not an expert in strict liability, but when I met the women last evening I said that there would be two arguments on the Floor of this House. One would be the legal argument about whether the law would be enforceable. We have heard the pros and cons on that. The other would be that prostitution would be driven underground, which would be worse for women. They asked me to bring the message that they thought that the law needs to set a marker. I think that it should be a stronger marker, but at least this is a marker. The second message is that they feel that, if the law was there, prostitution would not be driven underground because they would be able to come forward. Many organisations would be able to come forward with more evidence than feel able to do so in the present position.

We should remind ourselves what "subject to force" means. Most of us use that phrase thinking of subject to force during the act, but it is about youngsters who have been brought into this trade by their boyfriends. Let me remind the House about numbers. The average age in Europe for entry into prostitution is 14. I have never understood why the law of strict liability stops at 13. That is something that the Government might look at. Youngsters are young until they are 18. Think of your own daughters, your nieces, the children you care for at the age of 14 or 15.

At 14, these youngsters come in, often from care. They certainly do not come, on the whole, from posh backgrounds. Those few women who do, and think that they control their own lives, are not typical of the young women, the prostitutes, whom I have met. Seventy-five per cent enter before their 18th birthday. That is child abuse. Once in the sex industry, they are pretty much lost. Ninety-five per cent become hooked on class A drugs. Getting out is almost impossible unless they are fortunate enough to be helped by one of the excellent organisations working in this field.

Being subject to force means that they will have a boyfriend whom they thought they could trust but who becomes their pimp, they find themselves caught up in organised crime to get the drugs on which they have become dependent, or they are poor and are doing it to support their children. What kind of society allows the degradation of a mother, with all the social and health issues involved, to support her children? We can do better than that.

I agree with the noble Baroness, Lady Miller, that we need to do more about health, education and supporting the groups that can help these young women to come out of the sex trade, but last night I listened to the stories of these women, who are all hoping desperately that noble Lords will support Clause 14. It will stop providers enslaving women, or at least deter them, because even if you are a user and not the pimp you are complicit; there is no other way of looking at it. If you see some of the young women whom I have seen, there is no way in which you could not know, as the most reverend Primate the Archbishop implied, that they are damaged goods. They need to get out of that damage and live a life.

I hope that noble Lords will go into the Lobby not sorry for the users but with the words in their mind of a young woman who said, "I had to say I enjoyed it, and I didn't—I had to say I chose it. It's what the Johns want to hear. As a prostitute, I existed for their pleasure. My body and words were for their pleasure. The real me was effectively mute". I support Clause 14 in the hope that it will set down a marker and get away from the idea that men are entitled to sex whenever they want it. There are good men who will stand instead for the rights of women and children so that they can live decent lives that are free from coercion and the slavery of the sex trade. I hope that noble Lords will support the Government.

Photo of Baroness O'Cathain Baroness O'Cathain Conservative

My Lords, the issue that we are debating this evening is profoundly humanitarian. Prostitution is almost always seen as a female issue, but of course it is not; it is a scourge that affects both genders. I see it as a human rights issue that relates specifically to the abuse by people of people in the form of bullying and exploitation. Clause 14 is a measure to protect children, teenagers, young adults, and indeed older vulnerable adults, from being bullied, not in the playground or by gangs roaming the streets but into prostitution—a demeaning and extremely dangerous occupation. It is the responsibility of the state to protect the vulnerable. We have a long and praiseworthy history of doing just that, but the people who have been and continue to be bullied into prostitution have somehow dropped off the radar screen.

According to the Home Office, as many as 70 per cent of the women involved in prostitution were drawn into—bullied into—prostitution as children. I do not have comparable information for men, but it is probably no different. This is an horrendous statistic. Not only the underclass of society is involved; the children or grandchildren of Members of this House could also be involved.

Let me digress for just a minute. During the terrible teens, children often run away from home or school. This is not necessarily a reflection on the circumstances at home or at school; it is just a fact of life. These teenagers feel that the whole world is against them. They rebel against parental discipline because they see their friends doing it and they do it. Fortunately, most realise that it is a cold world out there and in most cases return to the warmth and comfort of the home. Others do not have a warm and comfortable home. The parents are fed up with them, and they are left on their own and just leave. We all know of cases and have read stories of such behaviour. The one thing that these children have in common is that they are very vulnerable. We all have experienced great vulnerability from time to time, but normally have the resources to cope with it. These children do not. In addition, migrants—not necessarily illegal migrants—are also vulnerable. In both cases we know only too well that pimps are on the prowl recruiting from the vulnerable, and then grooming begins.

When one drills down into the nature of prostitution in this country, one is faced with an appalling story. It is a story of which I have been utterly ignorant and I regard it as a major flaw in my work here in this House. This has come to me as such a horrid shock. Let me give you some facts: 85 per cent of women in prostitution say that they were physically abused as children; 70 per cent spent time in care; and 45 per cent have experienced sexual abuse. Any of those experiences are so demeaning that self-worth and self-respect vanish. They are an easy target and the pimps have rich pickings. Most of those women have experienced a lifetime of abuse. Prostitution perpetuates that abuse.

Many have observed that trafficking women into prostitution is a modern form of slavery, on which the noble Lord, Lord Morrow, dwelt. This Parliament led the world, as we already know, in the 19th century in fighting slavery, but other countries are now ahead of us in tackling the social evil of sex trafficking. We are so often told about prostitutes who regard prostitution as a business, one where some make much money, and can shut out of their minds what they are doing. But, if the research is to be believed, they are in a very small minority. According to that research, 90 per cent of prostitutes say that they want to escape prostitution, but they do not feel able to do so. The noble Lord, Lord Pannick, says that there is no evidence of exploitation. I suggest to the noble Lord that if 90 per cent of prostitutes say that they want to escape prostitution, that is evidence of exploitation. They are, or they feel, trapped.

In this country we have great campaigns about animals in captivity and the ill treatment of animals. Where is the similar campaign for helping trapped humans? Those who are involved in prostitution face a potentially dangerous situation. More than half the prostitutes involved in one study said that they had feared for their life at least once. I cannot think of any other group of people in this country who we would permit to live in such a state of terror and abuse, and without any end in sight.

Strict liability is the most hotly debated part of Clause 14. My noble and learned friend Lord Mackay of Clashfern is unable to be here, but he has particularly asked me to refer to his view that the new offence will be useless without the strict liability element. I am convinced that he is right.

Better minds than mine will battle with this, but I should like to make one point. If this clause remains in the Bill and becomes law, it will send a very strong signal that men must avoid any coercion of the vulnerable. I admit that I would much prefer an outright ban on prostitution, but I realise that it is neither possible nor probable now. However, by agreeing to Clause 14, we would take a mighty first step in declaring that we are a humane society, we believe in human rights, we wish to protect the vulnerable and we particularly wish to protect children from being blighted for life. We must declare that we are a caring and loving society, and then show that we are. I reject the amendments to Clause 14.

Photo of Baroness Stern Baroness Stern Crossbench 10:30 pm, 3rd November 2009

My Lords, I support the amendment moved by the noble Baroness, Lady Miller. In a perfect world perhaps there would be no social evils. There would be no drug addiction, no violence, no alcoholism and no prostitution—maybe. But in the mean time, we have to live in a less than perfect world and deal as best we can with real life.

In real life, some women and men are engaged in prostitution. That is the way in which they make their living. We may judge or we may not judge, but this is what they do. The question that we should ask is how that fact can best be managed by the local authorities in the areas where it occurs and by the police to ensure certain protection.

We should try to ensure that no under-age people are involved; we should ensure that no people are brought in, perhaps from foreign countries, and are working against their will; and we should try to ensure that those involved are protected from violence and the health risks that their work brings. Surely the right policy approach should be to reduce the harm and to ensure that neighbourhoods are not made unpleasant for their residents.

Surely we do not want prostitution pushed underground and women being in such fear that they dare not speak. The evidence suggests that it is often clients of prostitutes who inform the police when they suspect that someone has been trafficked. We need to ensure the availability of routes out of prostitution for that large number of people who it has been alleged seek a way out—and I am sure that a large number would like a different way of life. We need to try to ensure maintenance of good relationships with the local police, so they can get information and intelligence on criminal activity, violent customers and the crime that surrounds the work about which we are talking.

That is why these criminalising measures are opposed by, for example, the UK Network of Sex Work Projects, which goes into the real world and works with people in prostitution to help them find a way out and a different way of life. It is enormously difficult work, and many dedicated people are doing it. The measures are opposed also by the Royal College of Nursing, because they will do nothing to ensure that women are able to go to health services or approach the people who bring vans on to the street carrying doctors and nurses who work at night to offer health testing.

I assure the noble Baronesses, Lady Howarth and Lady O'Cathain, that many people who support the amendments are as concerned as they are about the girls from care who end up on the street. They are concerned about the people with learning difficulties and the vulnerable who are dragged into this work. They are concerned about the people who have been abused as children and find that this is all that life seems to offer them. They are concerned about those who are drug-addicted and need money to feed their habit. We are not divided not in our concern for these people, but in how we see them best helped. There is no evidence that the law helped those people in their childhood when they were abused. The law is too blunt an instrument to deal with these sorts of social problems. I hope that the House will think carefully before rejecting the amendments.

Photo of Baroness Howe of Idlicote Baroness Howe of Idlicote Crossbench

My Lords, I shall be brief. I have listened with great attention. The desires of everybody who has spoken are evident. I commend particularly the Government for the attention that they have given to this matter. It is clear that it has not been an easy part of the Bill to work through and develop in a way that could provide an effective remedy. They have listened to a great deal of what has been said.

However, like my noble friend Lady Stern, I am afraid that there are equal numbers on the other side who feel, alas, that this is not the way to solve the problem. Perhaps I may say also that it is a big mistake on the part of the Government to debate such a crucial issue at this time of night. Here we are with a limited House considering an issue that lies at the basis of our humanity. I gather that a letter was sent by the noble and learned Baroness, Lady Scotland, on 2 November, but I have to say that few of us have had it. Noble Lords were also involved in the debates on this issue in Committee, and it worried us deeply then.

Is criminalisation going to help? That is the basic question. I remain unconvinced that the different way that we have had explained to us and which is to be applied to those who commit this offence is going to work. I am worried that not only will the whole situation continue, but we may well find that the provisions have the opposite effect.

Photo of Lord Skelmersdale Lord Skelmersdale - Shadow Minister, Shadow Minister

My Lords, it is a temptation for someone who, I suspect, is speaking last before the Minister in a debate such as this to take on the arguments with which I disagree. I am going to reject that temptation, which many noble Lords will be glad of. The Government made some good progress on these clauses while the Bill passed through another place and listened to concerns about the drafting of the definition of "coercion". However, I have been both surprised and disappointed that they continue to maintain their position on strict liability, as I suspect they will do again tonight. I will, therefore, support the noble Baroness, Lady Miller, in her amendments within this group to remove the strict liability aspect of the new offence, as my noble friend Lady Hanham did in Committee.

Underlying this debate is the fact that all noble Lords in this House understand fully the Government's desire and society's need to act against trafficking and forced prostitution. My noble friend Lady O'Cathain was absolutely spot on in making that point. This horrific trade in humans must be stopped and I would fully support any measure that would improve the chances of prosecuting those who knowingly—I underline the word—pay for sex with a coerced woman.

My noble friend Lord McColl and the most reverend Primate made in part the same point, which is that the man concerned in the transaction must assure himself that he is not about to pay for sex with a trafficked or exploited woman. How easy it is to say, but how difficult to achieve. If someone asks a prostitute whether she has been trafficked, the inevitable answer will be "No". If she is being exploited, the inevitable answer will be "No", because otherwise the pimp or whoever will come down on her like a ton of bricks and the woman will be even more frightened than she is already.

I side with those who do not believe that the offence as drafted in the Bill would achieve the objective that we all want to see. Also, I do not believe that it would lead to a cultural shift among men who frequent prostitutes, as the Minister appears to believe that it would. In Committee, he argued that these amendments would allow men to get away with the sort of behaviour that we all want to stop because they could say that they did not know the circumstances of the prostitute. However, this argument has been challenged again tonight by many noble Lords far more learned in the law than I am, and I am glad that we have heard from them.

We are about to hear what the Minister has to say. I suspect, as I said earlier, that he will maintain that this absolute offence of strict liability will do the job. I am afraid to tell him that, from my point of view, it will not.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General 10:45 pm, 3rd November 2009

My Lords, as you will see, I rise to reply to the amendments on behalf of the Government. I say to all noble Lords who have contributed that the debate has done the House justice on this very important amendment.

Noble Lords will not be surprised that I agree, without reservation, with all of those who support the Government's case—the noble Lords, Lord McColl and Lord Morrow, the most reverend Primate the Archbishop of York, the noble Baronesses, Lady Howarth and Lady O'Cathain, and, through her, the noble and learned Lord, Lord Mackay, who is absolutely right in his assessment that without strict liability this offence will be meaningless. I of course take great note of what the noble Lord, Lord Skelmersdale, says, but I prefer the view of the noble and learned Lord, Lord Mackay of Clashfern.

I understand the reservations of the noble Baroness, Lady Miller, the noble Lords, Lord Pannick and Lord Thomas of Gresford, and the noble Baronesses, Lady Stern and Lady Howe. However, although there were many powerful speeches in support of the Government's case, one of the most poignant came from the noble Baroness, Lady Howarth, who had the privilege—it must have been a privilege—of hearing directly from the women who suffer and about whom we speak. We should not cloak ourselves in the impression that what we are talking about are the civil liberties of the purchaser. What we are talking about is the abuse, degradation, humiliation and pain caused to women who engage in this activity, not because they desire it but because they are compelled, coerced and manacled in a way that no human being should be. The pain described by the noble Baroness, Lady Howarth, and which was referred to poignantly by the noble Lords, Lord McColl and Lord Morrow, and the most reverend Primate the Archbishop of York, is very real indeed.

We are faced with a choice tonight: do we speak for the victims, do we stand up for those who have no voice for themselves, do we stand in the breach for them—or do we provide a cloak of anonymity and protection for those who do not wish to face what they do when they purchase sex from a woman or a man, quite often of tender years, who has been coerced or forced into that position? With great respect to the noble Lord, Lord Pannick, who knows that I hold him in the highest esteem and affection, we should not cloak ourselves with nice legal arguments about secondary or primary participants. I need to be clear that the Government's view is that those who purchase sex from people in that position commit a wrong. They enable a situation that is avoidable to continue. We have a choice tonight to decide on which stand we will set our mark. Who will we support, and who will we defend?

The Government do not hesitate in saying that we hope that this offence will have a "chilling effect" on those who buy sex from the vulnerable and the weak and from people who they do not know—on each person who buys sexual favours for money from a prostitute, be they male or female. If the consequence of this amendment would be to deprive us of an opportunity to protect people, then our position is that that would be very wrong.

I pay tribute to the noble Baroness, Lady Miller, because I know that her intention is to help to protect those who are vulnerable. We are not apart in that, but she is right that there are different views about how we should do it. She knows that when we embarked on the consultation process, we did so openly. There was no limit to what we were willing to consider. We looked hard at the issue, and over the summer we considered all the things that we had heard. However, there is evidence and then there is something else—it is called judgment.

We have to make a judgment about what is best. It is the Government's judgment that we need to draw a line in the sand and say to individuals, "If you wish to purchase sex from an individual, you can—there is no impediment to you doing that—but you have to be sure from whom you are purchasing. You have to be sure that that person isn't coerced, that they are of the right age and that you are not in fact engaging in sexual abuse. If you are not sure, then maybe you should buy from someone else".

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

Does the Minister agree that if the person is in the category of being coerced, even if the customer, to use that expression, is sure by reason of all the inquiries that he has made, he is still committing a criminal offence?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Attorney General, Attorney General's Office, The Attorney-General

The noble Lord uses the issue of whether someone is sure. The noble Lord knows as well as I do that those who find themselves acting as prostitutes are often some of the most vulnerable and delicate people there are. If, after making an inquiry, from the observation that they have of the individual and the circumstances in which that individual is found, a person can be sure that that individual is not being coerced, then that is a matter for them. I hear the noble Lord's point, though, that that person cannot be sure. If he cannot be sure, maybe he should buy from somewhere else.

There are many noble Lords here tonight. I heard what the noble Baroness, Lady Howe, said about the timing of this debate. It has always been the privilege of the Government not to have any control at all over timing—it is one of the joys of the House of Lords. As a result, the timing is that dictated by the House, and there are enough noble Lords here tonight to do us justice. We have a decision to make for which we will be held to account by victims and those who look to us for succour. I invite the House to reject these amendments and to vote for those who are at risk.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson for the Home Office

My Lords, if there was one justification for tabling these amendments, it has been the quality of the debate tonight. If there was one reason to hold the debate, the noble Baroness, Lady O'Cathain, expressed it. It has made us all learn a great deal more about a way of life that mostly goes unseen, un-noted and undebated by this House. So in no way do I regret tabling the amendments.

We have learnt a great deal more this evening. We have heard both the perfect world solution and what the noble Baroness, Lady Stern, referred to as the imperfect world solution. I hope that the noble and learned Baroness, Lady Scotland, will follow through this debate with developing those routes out of prostitution. We have not yet debated the next clauses in this part, but they do not look as though they try to develop routes out as much as criminalising the women, forcing them into rehabilitation, developing problems for them when they do not comply with the orders, closing down brothels and so on. That part of the Bill gives a very negative feeling to what the Minister gave a very positive view of this evening—and I hope that the Government return to that more positive feeling that she expressed in summing up.

I shall not enter into the lion's den again of the legal arguments expressed by the noble Lord, Lord Pannick, and my noble friend Lord Thomas of Gresford. It is clear that there are immense problems around this. If the Government have their way and this goes forward unamended, we will be back here debating whether it is proving workable and whether there is a better solution. Tonight, the right thing to do will be to allow this experiment—and it is an experiment—to go forward. We will not continue to oppose the Government in this, but I plead with them to develop a far more positive attitude to the other clauses in the Bill and not leave us with a negative feeling when we debate those clauses, starting with the very next clause, which leaves the under-18s criminalised. The noble Baroness, Lady Howarth, made a very powerful speech, but she must remember that the negative point with which this Bill starts is that it leaves children under 18 as criminals. They are still criminalised; they should be seen by the law as victims and not criminals, as the Government wish to leave them in this Bill.

We will not oppose this clause tonight. The debate has stiffened our resolve to keep a very close eye on this issue. I beg leave to withdraw the amendment.

Some Lords objected to the request for leave to withdraw the amendment, so it was not granted.

The Chairman decided on a show of voices that Amendment 20 was disagreed.

Consideration on Report adjourned.

House adjourned at 10.59 pm.