Amendment 27, in clause 13, page 13, line 30, after (B), insert
, or knows that another person has made or promised payment for such sexual services,.
Amendment 28, in clause 13, page 13, line 31, leave out paragraph (b) and insert
(b) any of Bs activities relating to the provision of those services are procured by a third person through the use of or threat of the use of force or coercion or B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation) which together shall mean controlled for the purposes of this section, and
(i) A does not reasonably believe that any of Bs activities relating to the provision of those services are controlled, or
(ii) A is reckless as to whether any of Bs activities relating to the provision of those services are controlled..
Amendment 67, in clause 13, page 13, line 31, before any, insert
A knows or is reckless as to whether.
Amendment 82, in clause 13, page 13, line 32, leave out for gain.
Amendment 83, in clause 13, page 13, line 32, at end insert , and
(c) A knows, or is reckless as to whether, any of Bs activities relating to the provision of those services are intentionally controlled by a third person..
Amendment 68, in clause 13, page 13, line 33, leave out subsection (2).
Amendment 29, in clause 13, page 13, line 36, leave out paragraph (b).
Amendment 84, in clause 13, page 13, leave out lines 36 and 37 and insert
(b) whether A is aware of the identity of C..
Amendment 30, in clause 13, page 14, line 1, leave out subsection (3).
Amendment 85, in clause 13, page 14, leave out lines 1 and 2 and insert
(3) An activity is controlled by a third person (C) if
(a) B participates in the activity because of the use or threat against B or another person of one or more of
(iii) unlawful detention, or
(iv) other reprisal;
(b) C intentionally exercises control over the activity; and
(c) C is aware, or ought to be aware, of a relevant circumstance in paragraph (a) above..
Amendment 80, in clause 13, page 14, leave out lines 1 to 4 and insert
(3) An activity of B is controlled by a third person (C) if
(a) Cs behaviour in relation to that activity involves
(i) compulsion, coercion, intimidation or force directed against B or any other person, or
(ii) regular instruction or direction, or
(b) if B reasonably believes that Cs behaviour includes that described in paragraph (a).
(4) A person guilty of an offence under this section is liable
(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;
(b) on conviction on indictment to imprisonment for a term not exceeding 3 years..
Amendment 31, in clause 14, page 14, line 11, after B, insert
, or knows that another person has made or promised payment for such sexual services,.
Amendment 32, in clause 14, page 14, line 12, leave out paragraph (b) and insert
(b) any of Bs activities relating to the provision of those services are procured by a third person through the use of or threat of the use of force or coercion or B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation) which together shall mean controlled for the purposes of this section, and
(i) A does not reasonably believe that any of Bs activities relating to the provision of those services are controlled, or
(ii) A is reckless as to whether any of Bs activities relating to the provision of those services are controlled..
Amendment 33, in clause 14, page 14, line 17, leave out paragraph (b).
Amendment 34, in clause 14, page 14, line 19, leave out subsection (3).
May I be as helpful as possible to the Committee? I appreciate that the clause is an important feature of part 2. I would be inclined to permit a stand part debate, as long as hon. Members speak specifically to the selected amendments, rather than going wider and discussing the general principles of the clause. With that understanding, I can give a commitment to permit a stand part debate if one is requested. I have already been advised by the hon. Member for Oxford, West and Abingdon that he would like to discuss the principles in a stand part debate, which is a rational and constructive way of discussing this important clause.
It is a pleasure to be more actively engaged in scrutiny of the Bill. I am delighted that the Committee has made such good progress, and I hope not to stand in the way of progress this afternoon.
There are clearly disagreements about the provisions, but we can all agree that the intention behind the Governments proposals is a good one. However, there are many issues about the impact, effectiveness and unwanted side effects of the provisions, as well as the evidence and consultation behind them. Those are matters for a stand part debate and, given that you will look kindly on a request for one, Sir Nicholas, I intend not to raise questions in this part of the debate about the general approach of a clause 13 offence seeking to tackle demand, or about the impact, effectiveness and side effects of the clause, as well as about consultation and the evidence base. We can talk about the large number of amendments that seek to probe the intentions behind the clause or, in some cases, to improve it. I understand that the Minister and the hon. Member for Bury St. Edmunds agree with that divide, which will hopefully enable us to have a more constructive first debate, followed by one in which there is clear division on the second point. I shall only raise general points now if they are strictly necessary for the discussion of the amendments.
The amendments fall broadly into three groups. Although there is large number of them, they overlap. Rather than go through the amendments in my name and that of my hon. Friend the Member for Chesterfield in order, I thought I would discuss them in groupings. I am more than happy to accept interventions when I describe the impact of the amendments, if hon. Members think that I have got it wrong or missed something. First, the amendments are broadly on the question of strict liabilitythat is, whether there is intention or not. Secondly, the definition of controlled for gain, which constitutes part of the offence, and is probably the most important issue, although they are all important. It is the issue on which there may be some common ground. Following the evidence session, we understand that the Government may be prepared to look at whether there are ways of making absolutely clear what we are talking about.
Included in this group is a series of amendments that tackle miscellaneous issues, such as what the penalty should be, particularly if the offence is not a strict liability one; whether the offence is committed by the person who pays or by the person who uses the paid-for sexual services; and issues related to the geographical scope and jurisdiction of the offence. I accept that not all the amendments in my name are perfectI speak only for myselfor legislation-ready. They are probing amendments, as this is the first of many stages in which this part of the Bill will come under serious scrutiny. May I say at the outset that regardless of how dismissive the Government are of the amendments, they will not provoke me into seeking to divide the Committee. I hope that that is helpful, because we are seeking to establish the intention behind the provisions.
As I say, I recognise that the intention behind the clause is honourable, as it claims to deal with the question of prostitution involving trafficked women and coerced women, forced prostitution, and exploitative prostitution. There is no difference, I think, between any of the parties represented in Committee about how much we want to abolish such forms of prostitution and get rid of them. They are a breach of human rightsI serve on the Joint Committee on Human Rightsand it is very clear that we should have little tolerance of any coercion, where there is no willingness on the part of the prostitute. Part of the argument we can have on clause stand part is whether an offence like this effectively deals with that problem. We will touch on that when we discuss strict liability. I hope that that is understood and that we are not in the business of debating whether there is a commitment on anyones part to deal with, get rid of and punish those responsible for forced prostitution in all its forms.
Turning to the amendments dealing with strict liability, which include amendments 67 and 83 in my name, and amendment 29 in the name of the hon. Member for Bury St. Edmunds. These amendments try to argue with the point raised in subsection (2 ) of proposed new section 53A, which states that it is irrelevant
whether A is, or ought to be, aware that any of Bs activities are controlled for gain.
Amendment 29 seeks to remove those words.
Amendment 67 contains the words:
A knows or is reckless as to whether.
I accept that the amendment might read betterand this is why I do not think that it is perfectif it contained the words, known or ought to have known. That is probably a better way, in this sort of legislation, of considering the question of whether we should have something that is either strictly intentional and includes a degree of recklessness, or is an issue of strict liability.
In her evidence, Shami Chakrabarti from Liberty helpfully set out the hierarchy of intention down to strict liability. EssentiallyI am not quoting her directlyat the top end, it was a strict intentional offence. Coming down the scale, it was an intentional offence including a situation in which the perpetuator blinds themselves to the consequences of their action. Further down, there are forms of subjective recklessness: we are not doing a reasonableness test, so it is harder to commit the offence. In a case of subjective recklessness, someone does not think rationally about the consequences of what they are going to dofor example, if they throw a stone over a wall, knowing that there is a greenhouse on the other side, they do not intend to break the glass, but just do not consider the consequence of what they are going to do.
In cases of objective recklessness, which is similar to a form of negligence, a reasonable person would have foreseen the action. Further down the line, there is strict liability. The amendments are aimed at getting rid of strict liability, because there are real problems with it. Firstand we heard from lawyers who gave evidence to usit is wrong in principle to have strict liability offences outside the narrow area of regulatory offences, in which regulatory bodies say that if these are the facts, regardless of whether somebody intended to commit an offence, an offence has been committed. In principle, that is an inappropriate measure for matters to do with sexual offences or personal matters of this nature.
There were attempts to make gross indecencythen a homosexual offence and age-of-consent offences offences of strict liability. In even more conservative times than those we live in today, there were strong objections to there being strict liability offences in those situations because of the danger of someone being misled or blackmailed. Those two go together, of course, and I do not think the question of blackmail has been brought up in connection with the clause. It is quite possible for someone who is prepared to be exposed as someone who uses the services of a prostituteand therefore not blackmailable in that senseto be blackmailable on the basis that a third party later claims that they committed an offence, even though they were led to believe as part of the entrapment that they had definitely not done so, and they took care to establish that they were not committing that offence. It would help them if they could be confident that they had any kind of defence against those facts. Under the provision as drafted by the Government, there is no such defence, and therefore there exposure to blackmail is possible. Blackmail is an offence in itself, regardless of whether people think that those individuals deserve to be blackmailed. Blackmail is not to be encouraged or assisted by legislation, but the chances of blackmail may increase under the Bill.
The Bill does not allow for a penalty to be imposed that matches the offence. The position with strict liability offences is that it is impossible to impose a custodial sentence, as I understand it, because of human rights issues. There must be some form of fairness in the trial and possible defences, before someone can be locked up for strict liability offences. That means that the Bill will captureand perhaps it is designed to capturea man who knowingly have sex with a woman who has been forced into prostitution, and knowingly has sex with a woman who is not therefore giving consent to that act, as coercion completely vitiates consent. That is rape, and even if people do not feel that rape could easily be proven, it is certainly a serious matter if someone knowingly has sex with someone against their will because they have been coerced or intimidated. However, to punish that with a maximum fine of £1,000 does not fit the purpose. If one could have an offence that was intentional, or even objective recklessnessthat is the provision that I am offering the Ministerone could have custodial sentences to match the offence. One would not be dealing with people who were misled or made a simple mistake or had no good reason to believe that there was coercion and that the consent was not valid.
That brings me on to another reason why strict liability offences are not appropriate in this area. They do not achieve what the Government would otherwise achieve by having a more directed, restricted offence. If the Government accept that prostitution is with us, and they are not criminalising all prostitutionall the buying and all the selling related to prostitutionit must be a public policy aim to direct as much demand as possible, and I will come onto enforcement in a moment, into the acceptable end of the prostitution marketplace, where there is no coercion, sexual enslavement, intimidation or exploitation by third parties such as pimps gaining from it. In those conditions, women who are engaged in prostitution receive no benefit from it, but are essentially forced by circumstances to do something for which they are not getting a return.
We do not have to get into a debate about whether all prostitution is always exploitativeI use that term in the sense that I have just describedand how to make a distinction between that and the type of prostitution where the woman is in charge of her arrangements, is making a return, has a choice about which clients she accepts, what she performs and the price she charges. There is clearly a distinction. If the Government intendas I believe they shouldto push the demand, such as it is, into that area and therefore reduce demand in the area that we all find unacceptable, it would be wise for the punters offence to be committed in the circumstance in which we want to diminish the market, and not the other. That is only logical. The Government will be frustrated in what they are seeking to do, and they have blinded themselves to that eventuality by not including such provision.
My proposals measure would also allow our precious enforcement resources to be directed towards the unacceptable, outrageous offences. I was going say the mischiefa term we use in lawbut it does not describe the abominable nature of the offences. If there is such an offencewe are debating amendments in relation it, so it is clear we can envisage circumstances in which there will be onewe would like the police to chase after men who are going to end of the market where prostitutes are exploited as I have described and are forced, intimidated or coerced. I would be grateful if the Minister responded to the points of principle I have raised about the drawbacks of a strict liability offence.
As I have said, my amendment deals with recklessness and I am happy for that to be understood as ought to have known, which is common in other areas. That is pretty wideit goes wider than simply strict intentionand would require men who use the services of prostitutes to be clear, and seek to be clear, that there is no intimidation, coercion or control for gain, particularly if they are going back to the same women. We will have a debate later about how we define that. If such men fail to take straightforward steps or find themselves giving money to a man rather than to the woman herself or if there is any sign that the woman in unwilling, the offence might have been committed.
The measure gives a man who is charged a defence, which is right according to the rule of law, but it also enables the penalty to be much more serious. What I have proposed in my formulation in amendment 80, as a consequence of its no longer being strict liability, is that the offence is triable on indictment, with a maximum penalty of £5,000 if it is heard in the magistrates court, and that it should have a term of imprisonment not exceeding 3 years. If the Minister were to say, Well, if were going to have a strict intention offence, it should be seven years as some of these offences are, I am happy to consider that. The point is that that would be a far greater deterrent to men, and therefore a far greater restraint on this evil trade, than that currently in place. The man would be genuinely deterred and the police could enforce the legislation in a directed way in these areas.
The hon. Gentleman is making an interesting argument. Will he reflect on the fact that the Bill tries to shift the responsibility for using the services of a prostitute who has been forced into prostitution, for which there might be a range of reasons, from the prostitute to the man who purchases her services? It tries to do that in a way that is not overly complex, but what he is arguing for would introduce an area of complexity in relation to what is and is not reckless.
I accept the hon. Ladys point. Providing a defence, and providing extra criteria that must be met before an offence is committed, would change the offence from a simple one of strict liability, as the Bill proposes, to one that, for the reasons I have given, I might consider supporting. Her point about transferring some of the onus for dealing with the problem on to men is an issue to be discussed in the stand part debate, so I shall not respond directly to it now, except to saythis is relevant to the amendmentsthat the Government have advertised this offence as dealing not only with trafficking, but with the wider exploitation of women through the use of force or intimidation.
All I ask is that a distinction be made between that sort of prostitution, when men know that it is happening, and cases in which men do not know that it is happening.
My final argument of effect is that we should rely more on men to report the fact that women are being coerced, intimidated or forced. The Minister for Security, Counter-Terrorism, Crime and Policing knows that I have made this point before, in previous exchanges on the Joint Committee on Human Rights, in which he did not take the position that he is taking now. There have been campaigns on this issue in other countries, and I suspect that if we had a proper campaign, using public money better to educate people about the fact that there is trafficking and exploitative prostitution, through which women are essentially being rapedI have no problem with using that terminologymore punters would be aware of the problem and would be prepared to report it. We know that from examining the websites of puntersmen who use prostitutes.
Punters will feel less likely to report those situations if they are then prosecuted regardless of the circumstances. As far as I can tell, if they have paid, they have already committed an offence regardless of whether they have had sex. What if they pay and have sex, but find out the womans situation later, after she has got the money? That is often how prostitution works, particularly with women who are forced into it.
In order not to be intimidated or violated by their pimps, those women have to get the clients and the money, so punters might not find out about their situation until afterwards. By then, the punters will have committed an offence, unless the measure is changed to say that they knew or ought to have known about the situation. Do the Government propose to provide prosecutors and the police with a statutory guide saying that they should not prosecute cases in which such a report has been made? That might ameliorate the problem, but I have seen no sign, either on Second Reading or during our debates in the evidence sessions, that that is going to happen.
If we want men to report such cases, we have to give them a defence. Otherwise, they will not report, or trust that they can do so. If we want them to give evidence at some point, and make charges stick against the slippery pimps and traffickers who are prosecuted too rarely in this country, we do not want them to report anonymously, and we must encourage them to come forward.
Other countries have a hotlinenot a general one, but a specific onefor men to report trafficked women. I have been to Italy to see that. Such a hotline could also be used to report other forms of controlled prostitution in which force, intimidation and coercion are used. I understand that 60 per cent. of the calls to that national 24-hour hotline come from men who use prostitutes, some of whom have fallen in love with a particular prostitute. That might seem curious to us, but it can happen when someone goes back to the same person.
Other men feel sorry for the women, feel guilty or want to help them for some reason. In the context of there being routes out of prostitution, given the residence permits and reflection periods in that country, it is highly attractive for men to do that because it enables them to keep in contact with the relevant woman, if she is willing to do so, although who knows how often she is willing? So, elsewhere, 60 per cent. of callsthousands of callsare from men, whereas in this country there are vanishingly few.
When we discussed this issue in the evidence sessions, the POPPY project claimed that 22 menI think that meant as few as 22 menhad reported and therefore played a part in rescuing such women. I made the point that, by doing so, they were preventing those women from being raped several times a day for weeks and months. They were preventing huge numbers of offences and I do not think that that was properly taken on board, because our witness said that in all those cases it was alleged by the woman that the man had sex anyway, before making the report. I think that the Minister for Security, Counter-Terrorism, Crime and Policing made that point as wellcertainly in debate, perhaps on Second Reading.
On the basis of those cases we do not know whether the men knew in advance or were told afterwards because, as reported in that evidence, they had sex and then made the report. In many cases, a man will suspect the situation only after they have had the service for which they have paid. A lot of prostitution is criminalised here, and exchanges, arrangements and liaisons are furtive, and there is not that opportunity for negotiation and discussionone of the problems with the Governments approachso that is likely to happen. I hope that I have responded to the point raised by the hon. Member for City of Durham as to why strict liability would be counter-productive in helping to track down this mischief.
There is an interesting debate to be had around the definition of controlled for gain. In a sense, it is a separate issue from the one of strict liability and I hope that we can isolate it in our discussions accordingly. As set out in the clause, there is a lack of definition of the term controlled for gain. There is no definition of control in statute, and the meaning of for gain comes from section 53 of the Sexual Offences Act 2003, as it amends the Street Offences Act 1959. We do not have a difficulty with understanding what the for gain aspect of the phrase means.
Section 53 of the 2003 Act, under the heading Controlling prostitution for gain, states:
A person commits an offence if
(a) he intentionally controls any of the activities of another person relating to that persons prostitution in any part of the world, and
(b) he does so for or in the expectation of gain for himself or a third person.
Section 54 defines gain as:
(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or
(b) the goodwill of any person which is or appears likely, in time, to bring financial advantage.
There is little debate and contention over the definition of gain, but control is simply undefined. That leaves it, first, to case law, and, secondly, to policing practice. Into that, it leaves it to the jury.
With such a broad offence, including strict liability, is it wise for Parliament not to be clearer at this point? That is not a criticism of what the Government did in 2003. However, we are where we are with this offence, which, if it is enforced, is going to capture many people. Is there not an opportunity for us to set Parliaments intention out, here in statute, to guide juries and the higher courts on appeal? That is good practice and I hope the Minister will consider doing it, even if he does not agree with my prescription.
What does case law say about what controlled for gain means in that situation? The one case, which may be the only one so far of an offence of controlling a prostitute for gain under the 2003 Act that has gone to appeal on the grounds of that definition, is Massey, which has been referred to already. The question there was what control meant. There was some criticism of the judge in the first instance case in relation to his direction to the jury, but that is not material to the outcome of what the Court of Appeal said. What the Court of Appeal said is important because it is where I hope we will find common ground:
Control includes but is not limited to one who forces another to carry out the relevant activity.
So, if we want to stick to MasseyI am not sure that we do, and there are various amendments that do not stick to MasseyI accept that we do not have to stick to forcing. It could go wider than that.
The Court of Appeal said:
It is not necessary or appropriate for us to seek to lay down a comprehensive definition of an ordinary English word.
I think that the inference is that it might be for someone else to do that, and we are that party.
The Court of Appeal went on to say:
It is certainly enough if a defendant instructs or directs the other person to carry out the relevant activity or do it in a particular way... There may be a variety of reasons why the other person does as instructed. It may be because of physical violence or threats of violence. It may be because of emotional blackmail, for example, being told that if you really loved me, you would do this for me... It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile.
It goes on to talk about the person being controlled being younger and immature and the other person being older.
So, we must consider the question whether that definition, as the Court of Appeal has it, always covers an exploitative situation, as I hope we would want it to cover an exploitative situation if we were to have such an offence. The Court goes on to say:
The Concise Oxford Dictionary defines in control of as directing an activity. It defines the noun control as power of directing, command. By contrast, it does not include the words compel, force or coerce, although they would doubtless be forms of control.
So, the question is whether the guidance in Massey is enough for us to rely on in terms of our intention that this new offence will be policed, whether it is enough in relation to the police and men who might want to seek to avoid committing the offence knowing what to do, and whether it is enough for prosecutors and for judges in directing juries. I suggest that it is not enough, and I have already said that I think that the guidance should be defined. Also, I would like to talk through the three versions that have been tabled in amendments.
Amendment 28 was tabled by the hon. Member for Bury St. Edmunds. I hope that he will not mind if I comment on it now, because it is convenient to do so and I do not wish to misinterpret what he is seeking to do. It has significant merit because it says that if the Government want to tackle traffickinga lot of this debate has been about the disgraceful and abominable crime of trafficking women for sexual exploitationwhy not have the trigger of the offence being circumstances or facts that would amount to an offence of trafficking, as well as
the use of or threat of the use of force or coercion.
So that version is wide, it deals with trafficking, force and coercion, and I like what it seeks to do in that regard.
There is a good argument for that version. I am sure that the hon. Gentleman will make this point too, but in response to that the Government needs to explain what they seek to capture that is not captured beyond that definition. We can then have a useful debate.
In order to frame other alternatives, I thought it worthwhile to table two other versions. One came from Justice, which is a respected legal human rights organisation that gave evidence to us, and is in amendment 85. It requires that
An activity is controlled by a third person (C) if
(a) B participates in the activity because of the use or threat against B or another person of one or more of
(iii) unlawful detention, or
(iv) other reprisal;
(b) C intentionally exercises control over the activity; and
(c) C is aware, or ought to be aware, of a relevant circumstance in paragraph (a) above..
That version also has merit, partly because it has clearly been drafted by someone who can draft, unlike, I suspect, my own attempt, which I will come on to. It covers that part of trafficking without requiring that any trafficking offence be covered that involves:
(iii) unlawful detention, or
(iv) other reprisal;
Of course, other reprisal could includein my view, it must includethe threat to report someone to immigration officers if they are in the country illegally, or the threat to withhold their fix of drugs if they are a drug-dependent prostitute. So other reprisal can cover many areas, short of threats of violence or threats of blackmail. The reprisal might be emotional blackmail. The definition is wider than it might first appear. It takes a different approach from requiring the circumstances to be those where a trafficking offence may be committed. Perhaps a combination of these two might capture even more than this does, without capturing what we would not want it to.
In my constituency there have been a number of incidents of trafficked womenor of women whose route into prostitution and into the UK was blurred. Does the hon. Gentleman accept that if he defines this too closely, particularly regarding trafficked women, he could exclude a number of women whose activity is controlled? They may have entered into prostitution by another route; they may have come in for servitude, or as unaccompanied minors, or thinking that they are going to work in a massage parlourthat was a notorious case in my constituency. Therefore, it is important that the definition be left reasonably wide in order to catch the issue of controlling a woman for gain.
I agree and I think amendment 28 does that. If the hon. Lady reads its wordingthe hon. Member for Bury St. Edmunds can defend his own amendment, I am sureit is not just
B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation).
There is an or before that. Those services have been procured by
a third person through the use of or threat of the use of force or coercion.
The definition is already wide.
I understand that the hon. Lady would want it to be even wider because we want to capture things that are not direct force, coercion or trafficking offences. There may be merit in that. That is why I explained that amendment 85 would appear to be wider because if women are being exploited in prostitution it implies that if they do not do what they are told there will be a reprisal. That is covered by subsection (3)(a)(iv) of amendment 85. I agree with her and I saw the Minister nodding. I am prepared to accept that we need to have a wide definition of controlled or controlled for gain.
Also regarding amendment 85, there are two reasons why for gain has been deleted. One could argue that we want to make this an offence even if there is no financial gain; some people control prostitution in an exploitative way just for the sake of it because they are evil characters. It is unfortunate, then, that the Governments approach requires there to be the financial element. One could argue that that is the case in the 2003 offence. While they are concerned about circumstances where there is not obvious financial gain, why is it tied to profit? Why is it not tied to the unacceptable, criminal, evil behaviour of coercion? There are some bad people and some mad people involved in this business and profit may not always be a factor.
The other reason for taking out the for gain in one of the preparatory amendments to this one, is to prevent confusion between the 2003 offencewhich deals with controlling for gain and also controlling child prostitutesand a new offence. It would be awkward if controlled for gain was the same wording in each offence but defined differently for that particular Act, part or section.
If there is common ground and the Government accept that there is merit in amending the definition used for controlling prostitution in sections 52 and 53 of the 2003 Act, do we use another word instead of control so that it is clearly made separate?
The final option on redefinition of controlled for gain is that set out in amendment 80. My amendment tries to make the Massey position statutoryI do not think it would, frankly, so I am not claiming that it is brilliant, but the Committee will see the direction of travel. The amendment says that an
activity of B is controlled, meaning, again, that the definition does not require the profit element to be met,
by a third person (C) if...Cs behaviour in relation to that activity involves...compulsion, coercion, intimidation or force directed against B or any other person clearly, families can be intimidated or have force threatened against them, requiring person B to act in the way desired
or...regular instruction or direction.
No one will be happy with that, because of people who do not want the legislation to include women working together.
I want to make it absolutely clear that I am desperate not to include women working together. My aim is to make this offence not deal with women working together, perhaps in a co-operative, with one person organising them, saying, You go with this person, We have this one, You go with that one, This is the time that you will do it or This is your shift. That person could be a madam, if you like, who may well be paid for the work and may be responsible for dispersing the total income. I do not have a great knowledge of how the business works in this area, so I hope that hon. Members will forgive me if I do not describe every particular situation, but that is what I want to avoid.
I was rather hoping that regular instruction or direction could be read as to be exploitative, but we may need further amendment. We are talking about a pimp, boyfriend or drug pusher who is saying, You do this. That is where you are going tonight, with him. Ill pick you up in due course. There we are. That is what I am prepared for the legislation to capture. That was clearly felt in the Massey casethe defendant, the prostitute, alleged that she was in that position. She was found by the jury and by the Court of Appeal to be in that situation, with the boyfriend acting in that role.
I am told by representatives from the GMB, the International Union of Sex Workers and the English Collective of Prostitutes, and individuals who e-mailed us or made specific submissions through the scrutiny unitthat the current lack of definition of controlled for gain means that the section 53 definition is currently being used against women in brothels working together with a madam, maids and security. I am not suggesting that the current definition includes maids and mere securityemployees of the prostitutes, essentiallyalthough I know it has been claimed. I am claiming that the current definition is being used to arrest and could be used to close brothelswe shall come on to debate those later clausesand that is not satisfactory. The definition fails the critical test that the Government ought to be setting for themselves of finding ways to make the market, as it exists, as safe and non-exploitative as possible, and to make as small and as deterred as possible the exploitative, unpleasant, unacceptable and worse end of the market. I am inviting the Government, by tabling my amendment, to have a look at my proposed subsection (3)(a)(ii), to see if there is another way of describing controlled for gain that would specifically exclude women working together.
I want to finish by making two suggestions. Statute could exclude women working together, as long as all the people involved are providing the service and that there is not someone who is not doing ita pimp, who is getting someone else to do the sex and just taking the money. One could capture that, specifying it as an exception. The Minister could even come back and consider guidelines for police and prosecutors dealing with such a situation. We want to hear something so that we can, at least, have an exchange.
An alternative is to recognise that in Massey we would not have had that conviction without the prostitute herself making the complaint and giving evidence. The problem with this offence, because it is strict liability and because of the undefined nature of control, is that it does not require B to make any complaint against C. In a situation in which women are working together for mutual security and protection, including having someone in charge of the money to dole it out and make the arrangements, they are unlikely to complain. If we could find a formulation that would require there to have been a prosecution or an affidavit from B, we could argue that the demand offence would be met. Even though I do not like the approach, as you will hear me argue under the clause stand part debate, the Government are determined to find a way in which to deal with the matter, a problem that I am struggling with.
I wish now to deal with the miscellaneous issues that I mentioned earlier. I am grateful to the Committee for bearing with me. I have dealt with the penalty. It is wrong to be limited to a fine, when the offence would catch men who knowingly rape women because they do not give consent, and the men know that they are not giving valid consent. A penalty is unacceptable. It would be okay if the Government were to say, Dont worry, we will use the crime of rape more. We are confident that we can do that and that there will be more rape convictions, as a result. However, in our exchanges, Ministers have been honest and said that it is extremely difficult to use rape. It is hard enough to use rape and increase the conviction rates, and I share the Governments commitment to improve the situation. The fact that it is difficult means that they are not getting the real mischief, which is men who cannot be prosecuted for rape and who escape with £1,000 fine. That would not even meet the Harman test, if I can call it that.
While going over matters and the representations that I have received with some advisers, I was interested in who the clause will actually affect. It seems to cover the person who makes the payment, not the person who has the sex, so A commits the offence if they make or promise payment for the sexual servicesnot to him or her, but in general. If someone pays for me to have sex with a woman, is it the person who pays on the telephone with a credit card who is liable rather than the person who has sex? I presume that that is the case by design. If so, it will not be an effective deterrent if it is known that, as long as the person who has sex is not paying in cash, but someone else pays by card over the telephone in advance, that person will not guilty ab initio of the offence. The Government are creating a loophole that undermines the design of the provision. I would be interested in the Ministers response. As long as he has understood my argument, I shall not labour the point.
I am interested in what the Minister is getting at in respect of jurisdiction. New section 53A states that
where in the world the sexual services are to be provided and whether those services are provided is irrelevant. Will he explain the purpose behind those words and say why the provision is drafted in such terms? It could be possible, by virtue of amending the schedule 2 offences of the Sexual Offences Act 2003 under section 72, to list the offence as one that has wide jurisdiction. At present, section 53the controlling provisiondoes not fall under section 72 of the 2003 Act, so it does not mean that a UK resident or citizen can be prosecuted for committing the offence anywhere in the world. I am sorry if I have not made myself clear. The problem is due not to my briefing, but my own writingit is a doctors issue.
I should be grateful if the Minister would explain why he has taken the unusual step of stating that something is irrelevant? If something is irrelevant, it need not be stated, but should be part of the offence. What is he trying to capture? If someone from this country pays by credit card on the telephone for a service to be provided, even to them in another country where prostitution is lawful, even if it is controlled for gain in a modest senselet us take Holland, where force and coercion is not toleratedwould that be an offence here? If so, strange as it may seem, is that compatible with our obligations to free commerce in the European economic area?
Secondly, how does the Minister envisage this operating? I presume he is envisaging preventing me from paying a prostitute and then taking her to Parisif one has money and it is that sort of prostitute, I supposewhere that prostitute is subject to control for gain. I presume that is what the Minister is trying to capture. If so, that is legitimate: one should not be able to buy it here and then commit sexif hon. Members will excuse the expressionoutside the country. But I am not sure whether the provision he sets out in new section 53(2)(a) goes further than that.
More could be said about the framing of these clauses, but I have had a good innings and am grateful to members of the Committee for their patience. I hope that the way in which I have tried to separate out the issues has been helpful. I very much look forward to the contribution from the hon. Member for Bury St. Edmunds and, indeed, the Minister and other hon. Members.
Several hon. Members rose
Many of the points I wished to make have already been made by the hon. Member for Oxford, West and Abingdon. Let me say at the outset that Her Majestys Opposition are supportive of the general thrust of this clause. We do not intend to seek to divide the Committee on the amendments to which I am about to speak; they are probing amendments.
The amendments in my name and that of my hon. Friend the Member for Hornchurch, and, indeed, that of the hon. Member for Oxford, West and Abingdon address two questions, and they have both been alluded to. The first is the question of whether strict liability is the correct mode of reducing demand for sex in the circumstances set out in this clause. Amendments 28 and 29, in particular, speak to that. The second question is whether the demand for sex is sufficiently properly defined so far as the controlled for gain language is concerned.
The amendments, if applied, mean that person A commits an offence if he or she makes or promises payment for the sexual services of a prostitute B, if those services were procured through force or coercion by a third person, or if B had been the subject of trafficking arrangements as defined by sections 57 to 59 of the Sexual Offences Act 2003. I will not detain the Committee talking about the issues that Government Members had; they would argue that that was insufficiently wide in ambit. The hon. Member for Northampton, North made her point in that respect. The demand for some specificity is behind our amendment. The eagle-eyed among members of this Committee will instantly note that there is an extraneous not in the drafting of amendment 28. I am not quite sure how that crept in.
The appropriateness of the strict liability offence has been discussed by the hon. Friend the Member for Oxford, West and Abingdon and also in the evidence session, so I will not rehearse the arguments. Suffice it to say that I have just one question for the Minister. When the drafting of the clause was undertaken, what discussions did he or his colleagues and officials have in respect of drafting either a recklessness test, intent test or a greater negligence test, rather than a strict liability test, which is, of course, what the clause ends up with? What process was gone through before strict liability was chosen rather than the alternatives listed in the amendment standing in my name?
I should like to move on to those parts of the amendments that address the controlled for gain question, eloquently outlined by the hon. Member for Oxford, West and Abingdon. I will not rehearse the questions about whether maids or receptionists and so forth will be caught by the clause as drafted, as I assume that the Minister will reply to that automatically. However, I want to finish my remarks by making two points.
First, there has been a lot of concerned lobbying by those who represent and try to support vulnerable women who are victims of the sex industry. The UK Network of Sex Work Projects points out that a controlled for gain measure is already present in the 2003 Act. It observes that that extant provision is rarely used. I therefore pose the following question to the Minister: how many proceedings, in respect of control for gain in the 2003 Act, have been brought before the courts? It will be useful to have a quantum so that we can understand how frequently the existing legislation, albeit in a slightly different contextthe controlled for gain language, however, is deployedhow has been used, and whether the police see it as a useful measure to crack down on circumstances in which individuals are controlling sex workers for gain. That is a point of information for the Committee, so that we can understand how the existing law operates.
The English Collective of Prostitutes has made representations, along with a host of similar groups, to Committee members. The ECP asked the question, Controlled by whom for whose gain?. It made the obvious point: to what extent will certain individualsfor example, a co-worker, who is also a prostitute perhaps working in the same premises, a maid, or a partner of a woman who provides some kind of assistance, perhaps even watching after their safetybe caught by the wording, controlled for gain? Armistead made a similar point in its representations.
I conclude by confirming the importance of the Regina v. Massey judgment of 2007, and the part of that judgment that the hon. Member for Oxford, West and Abingdon read out in relation to emotional blackmail and so on. The relevant part of the Court of Appeal judgment ends as follows:
It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile. It may be because the defendant is an older person and the other person is emotionally immature. It may be because the defendant holds out the lure of gain, or the hope of a better life. Or there may be other reasons.
We all understand the list that their lordships were enumerating, but I am not clear about the phrase:
Or there may be other reasons.
Is it the Ministers view that the other reasons will cover what could be called the ancillary group of individualsreceptionists, maids, driversassociated with a woman who has been trafficked? Might those other reasons, which their Lordships do not bother to enumerate, include the lists that the hon. Member for Oxford, West and Abingdon and I have gone through, of people who are not coercing, or threatening, the prostitute in question but are merely ancillary to the activity, because they are maids, receptionists, drivers and so on? Will the Minister respond to those questions and give some clarification on that point? I repeat that the broad motiveand, we hope, the effect of the clauseis something with which Her Majestys Opposition concur. Probing amendments are exactly thatthey are designed to tease out answers to the questions that I have posed.
It is a pleasure to serve under your chairmanship, Sir Nicholas, as we approach what the hon. Member for Bury St. Edmunds described as the meat of part 2 and clause 13. I am minded to accept interventions, if anyone wishes to make one.
I apologise to you, Sir Nicholasyou were quite right procedurally. It has just been pointed out to me that I did not mention in my speech the amendment that inserts the word intentionally before makes or promises payment. I apologise, but I missed it out. I should like the Minister to respond, because it covers a situation in which someone thinks they are paying for a lap dance, for example, but they are offered the extrathey are not asked to pay for it, and they had not intended to make that payment. Would that situation be covered? I wanted to make sure that I was complete in what I addressed.
There are many amendments in the group, and I wish to address each of them. I hope that I can follow the broad approach adopted by the hon. Member for Oxford, West and Abingdon in grouping them together in themes. In response to his earlier remarks, it is not my intention to dismiss the arguments that have been made. This has been an extraordinarily thoughtful debate, and I accept the starting point is one of great common ground on the measure.
We have to make sure that the legislation is effective and that it works in the way in which we intend it to work. I intend to try to answer hon. Members questions, so I am delighted to be able to answer a direct question from the hon. Member for Bury St. Edmunds, about how many prosecutions there have been under the section entitled Controlling prostitution for gain in the Sexual Offences Act 2003. There were three in 2005; 11 in 2006; and 24 in 2007.
I do not know if other members of the Committee share my surprise at what appears to be an extremely low number of court proceedings. This is not meant in any sense as an attack on the Government, because that piece of legislation is sensible and, to my recollection, we supported it. Would the Minister care to comment on the number of offences, and does he think that that is particularly low? Whether or not he thinks it is low, does he think that enforcement is at the level at which it should be nationally, since that important offence was put on the statute book? Fewer than two dozen seems a remarkably small number to me. If that is anything to go by, the new offence created by the clause could affect very few women.
It demonstrates the fact that it is enforceable, and that it is possible to bring prosecutions. There are also other prosecutions that could be brought in the sort of circumstances that we are talking about. The hon. Gentleman will be aware of the prosecutions that have been brought against people who traffic women for sexual exploitation. I think that there were 92, if memory serves, in recent years.
It is important to remember, when looking at either of those numbers, that prosecution often depends on the evidence available, the particular offence for which the prosecution is brought and the inclination of the CPS and the police to get a prosecution for the most serious offence they can. Although we should pay attention to the numbers, we have to put them into the proper context.
I will go into this question in more detail in the stand part debate, but can the Minister tell us whether he has any information about how many of those prosecutions were made thanks to the offence being brought to the attention of the authorities by the client or punter? It is possible that they would be deterred by the provision from aiding in bringing even that small number of prosecutions.
I am not sure whether I will be able to furnish the hon. Gentleman with that information by the time of the stand part debate or outside the Committee. I am not even sure whether we can furnish him with the information or whether it is held in the form he is asking for. I shall return to the hon. Gentlemans earlier point about the role of men who do seek help, or inform the appropriate authorities where they believe that a prostitute has been trafficked or is being held or controlled for gain.
Before I do so, I shall address the amendments dealing with strict liability. Amendments 29, 33, 68 and 84 would have the effect of removing subsection (2)(b), and would therefore remove the strict liability aspect of the offence. Amendments 67 and 83 would replace the strict liability element of the offence with a requirement that the sex buyer must know or be reckless as to whether the prostitute he pays for is controlled for gain or not.
Without straying into issues we will deal with in the stand part debate, I stress that the strict liability element of the offence is one of the key aspects of what the Government are seeking to do in the measure. It is, in our view, the most effective way of ensuring that those who pay for sex consider the circumstances of the prostitute who will be providing sexual services. It places the risk on the sex buyer of paying for sex with someone who is being controlled for gain. That is the fundamental point. The aim of the offence is to shift the emphasis and to start to take greater action against those who contribute to the demand for prostitutiona point well made by my hon. Friend the Member for City of Durham. The alternative approaches proposed in the amendments would, in our view, be much less effective in achieving that. Indeed, by removing strict liability, the amendments would significantly weaken the offence.
Having to prove intention or recklessness, which would be the effect of amendments 67 and 83, would make the offence more difficult to enforce, given the difficulties of proving intention or recklessness when the offence is likely to have been committed behind closed doors and in private. It would be more likely to require testimony from the prostitutes themselves, requiring them to go through the burden of attending court to give evidence.
The hon. Member for Oxford, West and Abingdon asked about precedents for strict liability offences. I draw his attention to one precedent, which is certain sexual offences against children under 13, such as the rape of a child under 13, under section 5 of the Sexual Offences Act 2003. Under the Act, a person is guilty of an offence if they have sex with a child under 13, whether or not they know that the child is under 13. The offence is one of rape whether or not the child indicates consent. There are precedents for measures such as these.
The hon. Gentleman also asked about public awareness and, in particular, whether we could have some kind of anonymous tip-off system, perhaps a phone line. I remind him that we have Crimestoppers, which is a way of giving information to the police about a whole range of crimes, including the ones that we are talking about. However, I recall from the evidence sessions that I undertook to look at this, to see what more we could do.
The hon. Gentleman was concerned about men who face a dilemma if they believe a woman has been trafficked or is controlled for gainwhether they should report it, even though they might be guilty of an offence. Part of the hon. Gentlemans argument referred back to the evidence of the POPPY project and the 22 men who pointed the prostitutes whom they believed may have been trafficked or controlled for gain in the direction of the POPPY project. As far as I recall the evidence, the important point is that the men knew that the women had been trafficked or were controlled for gain, but they had sex with them anyway. I interpreted that as their going ahead, despite their realisation, and having sex. That takes us to the nub of the problemwhether a man who believes, or has evidence, that a woman has been trafficked or is being controlled for gain will go ahead and have sex with that woman.
If I remember correctlyI made an effort to remember, because I was concerned about the portrayalwhat the POPPY project know, what we hear third hand, not even second hand, is that the men had sex with the women. We do not know that the women told the POPPY project that the men knew; all we know is that the women told the project that the men had had sex with themas I said, it is quite possible that the men might have realised after they had had sex, and they did not know before they had sex. Dealing with third-hand judgments is not something of merit, either for the Minister or for me.
Yes, I accept that. I do not want to labour the point, but I would question why men in such circumstances pointed the women towards the POPPY project in the first place. Whether the men had sex before or after they reached their conclusion, why would they say to the women that that was the best direction for the women, unless they were concerned about the very things that we are talking about with this offence?
I discussed the evidence with the International Union of Sex Workers and others, and I am told that what often happens in such circumstances is that men get to know a woman by going back to them on several occasions. They have a regular, and they develop a relationship. In that context, the woman feels able to tell them, or the men who develop feelings beyond mere sexual lust inquire or raise concerns. Clearly, on a repeat visit, they will already have had sex with the woman. That does not mean that at the time they knew that, and were therefore committing what would be an intentional form of offence, like rape.
I understand the hon. Gentlemans point very welland this is a fine line that we are seeking to drawbut I would approach it from a different angle. In such circumstances, it would be up to the Crown Prosecution Service to decide whether it would prosecute. It is not impossible to envisage a situation in which, had a man acted as the hon. Gentleman suggested, he might be treated differently from someone who was, or should have been, aware of the facts but carried on regardless. There is an element of redress that could be available in those circumstances.
I am conscious that I am intervening, but this is helpful, rather than me coming back at the end, and then the Minister coming back. I asked whether he might go further than what he has just said, or whether he would leave open the option of going further and offer some form of guidance to go with the Bill when it becomes an Act, so that men would know the situation in advance. If he wants to encourage men to come forward, it would help if there was a backstopif men knew, or at least had a good idea, that they would not be prosecuted when they had done the right thing.
I was intending to come back to the issue of guidance. I hesitate, and would advise caution, because at the end of the day we are talking about men who will have committed an offence, albeit a strict liability offencethey will have committed an offence if they have purchased and had sex with a woman who is controlled for gain or who has been trafficked.
Whether through guidance or anything else, we should not be sending out a message that there is a way around thisthat a man could, for example, have sex with a woman who was trafficked or controlled for gain and be allowed to reduce the severity of the offence he has committed, as long as he points her in the direction of help afterwards. We have to be careful before we go down that route. I take the hon. Gentlemans point, but I want to make some progress.
Amendment 84 would not go quite as far as the other amendments in relation to strict liability. It would remove subsection (2)(b), and thereby the strict liability element of the offence. However, it would ensure that it was irrelevant that the person paying for sex, A, knew the identity of the person, C, responsible for controlling the prostitute, B. We are clearly in agreement with that aspect.
We do not think it should be necessary to establish whether the client was aware of the identity of the person responsible for controlling the prostitute. We believe that our clause already covers that; indeed, it goes further. For the reasons that have been outlined, we do not wish to limit the offence by accepting amendment 84 so that it would be valid defence for someone to say that he or she did not know the prostitute was being controlled for gain.
Amendment 79 also relates to the level of knowledge, on the part of the person paying for sex, necessary for an offence to be committed. It would ensure that an offence was committed only when someone had intentionally paid or promised payment for the sexual services of a prostitute. We have no difficulty in principle with that, but we do not feel it necessary to add the word intentionally. It is implicit in the wording of the new offence that the buyer must intentionally pay for the sexual services of the prostitute. He cannot pay for the sexual services if he does not intend to do so.
I want to turn to amendments relating to controlled for gain.
That is the point I made in my first intervention, rather than in my speech, and I apologise again for that. I would accept that point normally, but what if the man intends to pay for something else and does not realise that he has in fact paid because he has paid for six lap dances or paid for something that he does not realise is a sexual service, but accepts it when it is offered? Does the Minister intend the clause to cover that? Is he confident that it is covered? He may not be able to answer me now. If it is not his intention that it will be covered, should he not include the word intentionally to make it clear?
No. We are of the view that the clause will cover the circumstances we are talking about. We are confident of that. We do not believe that the word intentionally ought to be there and, apart from anything else, we believe that it would make such a thing more difficult to prove.
I want to discuss the issue of controlled for gain. Moving away from strict liability and turning in particular to amendment 68, which in addition to removing subsection (2)(b) and the strict liability element would also remove subsection (2)(a), clause 13 makes it an offence to pay for sex with a prostitute who is controlled for gain, even if the sexual services are ultimately provided outside England and Wales.
I want to be clear on this point: we do not want people in this country to pay in England and Wales for sex with a prostitute who is controlled for gain, even if that prostitute is living elsewhere in the world. In particular, we do not want people to get round the offence by making a payment here and then travelling to, for example, Scotland to obtain sexual services. That does not meanI hope this goes some way toward responding to the point that the hon. Gentleman has madethat the police will target people who travel to, for example, the Netherlands and pay for sex in that country, provided that both the payment and services are obtained abroad, but it is important that the potential loophole that the amendment would create is not opened up. We fear that that would be the consequence of amendment 68.
The hon. Gentleman went on to make a point that, in all honesty, I am not sure I understood: what would happen if one procured the services of a woman in this country, paid money and took her to Paris, where she was somehow controlled for gain? The point is whether she is controlled for gain when the payment or the promise of it is made. I cannot envisage a situation in which that control for gain would be absent on this side of the channel, but when they arrived in Paris circumstances would somehow change.
I want to get this straight. The Minister might know that in Nevada prostitution is legal and, I think, there are some state-run brothels, which means by definition that the people working in them are controlled. Does that mean that if someone from England or Wales goes on holiday to Nevada, visits one of those establishments and pays at the time for sexual services, they will not be covered by the Bill and will not be committing a criminal offence?
The answer is no. The issue is prostitutes who are controlled for gain, and I am not sure that that is the situation in Nevada. Presumably state brothels there do not condone control for gain and do not traffick women in.
I am not a lawyer, so I may be confused. What I mean about controlled for gain is that if prostitutes are working for the state of Nevada, one might argue that they are in effect controlled by another body. If, then, one was paying them, although that is legal in Nevada, would one be committing an offence under the Bill?
I think the answer is that we are confusing two issues. The situation to which the hon. Gentleman refers is more akin to having a receptionist or maid, or someone who caters for the prostitutes safety. We do not believe that those people will be caught up in this offence, so that situation will not arise. I will return to that.
It is clear that if someone pays here and takes the woman who is controlled for gain here to Paris, that should be covered by the offence, however we define it. In Nevada, there is someone running the brothel and making a profit by controlling the womenthey are employees. Even in Holland, where things are less formal than that, there is control for gain. I think the Minister means that if someone pays here and has sex there, it is covered but will not be enforcedit will not be a police priority. Also, under the Bill, if people pay there, have sex there and the controlled for gain provisions are met, they will be covered, even if for practical or policy reasons that is not a priority. If that is not the case, will he explain?
The point about paying or promising payment here and then travelling abroad to secure sexual services is to avoid people using a loophole to get round our legislation. Clearly, if people do such things in this country and not abroad, they are committing an offence. What is the difference, then, if they pay or promise to pay in this country and then go abroad intending to do it anyway?
I do not want wrongly to recall what the hon. Member for West Chelmsford said, but he cannot have it both ways. I think he referred in the evidence sessions to different jurisdictions and different laws relating to prostitution abroad. He cannot now say that we should have a legal system here that penalises people who go abroad to procure sex and who make or promise payment while they are in another country. That is not what we mean. We are referring to when people pay or promise to pay in this country and then go abroad and access the service, knowing that that is how they will avoid the law.
If there are trafficked women in a Dutch brothel, and someone from this country is on holiday in Amsterdam and pays for and procures sex there, that and the issue of the trafficked women in those brothels is a matter for the Dutch authorities, not for this offence.
I now turn to amendments 28, 30, 32, 34, 80, 81, 82 and 85 relating to the definition and scope of the term controlled for gain. They clearly recognise that the aim of the new offence under clause 13 is to ensure that those paying for sex with vulnerable people involved in prostitution, through trafficking or other forms of exploitation, either desist from such activities or face criminal sanctions. That is the right approach and it will help to protect those vulnerable people who, under the control and direction of another, have little choice but to continue their involvement in prostitution.
Controlled for gain is the most appropriate term to cover the circumstances that we want the offence to deal with and which would allow its most effective enforcement. The term is used already under the Sexual Offences Act 2003 and, as such, there is already case law that helps to define the term. As has been referred to, the Court of Appeal in R v. Massey explained that the term should be given its ordinary dictionary meaning.
There is no doubt that the word control covers those who have been forced, coerced or compelled to provide sexual services as a prostitute. We also accept that the term goes wider than that. In the Massey case, for example, there was no need to show that the boyfriend accused of controlling prostitution for gain used physical violence to control his girlfriends work as a prostitute, although the girlfriend had made that allegation. The Court accepted that sex workers are often vulnerable young women with disturbed backgrounds who have never known a stable relationship or respect from others, and are therefore prey to pimps and those who seek to exploit them, albeit such exploitation may not necessarily involve intimidation or force. It is those people whom we want to protect, but the amendments would be in danger of excluding them.
On the other hand, it is important to make it clear that the offence will not go as wide as some are claiming. For example, we do not believe that a prostitute who employs a receptionist to arrange her appointments will be considered controlled for gain, as some have suggested, nor do we consider that a prostitute who arranges for a security guard to protect her will be controlled for gain. That does not accord with the ordinary meaning of controlled.
What the Minister said about scope is helpful, although not a surprise. It was made clear on Second Reading that the Bill is trying to capture not receptionists or maids, but traffickers and pimpseven pimps who are not overtly violent or threatening, as in the case of Massey. I accept that, but what about a madam? I have asked that key question before and I shall go on asking it until the Bill receives Royal Assent. With a madam, women can work together and be together for security. Is it the Ministers intention that the police should go for the person who is taking money, making a profit and organising with the willing co-operation of the women in such arrangements? We need clarification.
I want to come back to the issue of women working together, which the hon. Gentleman has raised on two occasions, after which we can perhaps discuss madams.
I want first to talk about enforceability. We have looked at several examples of how the current offence of controlling prostitution for gain is used, and it is clear that, in practice, it is being used as part of anti-trafficking operations and against those complicit in a level of coercion. We shall continue to work with the Association of Chief Police Officers and the Crown Prosecution Service to ensure that they are aware of the mischief that the new offence is aimed at, but the term control does not need to be explicitly restricted in the way suggested by the amendments.
I recognise the concerns about the use of the term controlled for gain as a means to define which prostitutes the offence is specifically aimed at protecting. I regard the amendments as a constructive attempt to address such concerns and I am grateful to members of the Committee for their approach to such issues, but we do not believe that the amendments are the most effective way to ensure that the offence targets those who pay for sex with those particularly vulnerable prostitutes whom we wish to protect.
Amendments 28, 32 and 85 would require the prosecution to prove that force or coercion was necessary to make the prostitute engage in a specific transaction or, in the case of amendments 28 and 32, that the prostitute was trafficked. The term control is wider than the circumstances covered by most of the alternatives that have been suggested by way of amendment, in that it does not require the prosecution to prove an absence of free will on the part of the prostitute. This is to ensure that we cover those who may have initially agreed to be trafficked into the country or have submitted to a certain degree of direction or management by their pimp, but only because they have very limited choicesfor example, because the pimp also supplies them with drugs, on which they are dependent. My hon. Friend the Member for Northampton, North made a valuable intervention in regard to this and I thank her for that.
The problem with using the term trafficked to try to cover the voluntarily trafficked prostitutes, is that if a woman was trafficked, it would forever more be illegal to pay to have sex with her, even if, however unlikely such a scenario may be, she escaped the traffickers and found work outside of prostitution, but at some point in her life decided to return to work as a prostitute. By putting trafficked in there as a label, it is our view that it would forever more be illegal to pay to have sex with that woman and therefore would fall out of the original intention of what we are trying to do.
Amendment 85 tries to broaden the offence by using the term other reprisal. However, we are not clear what would count as a reprisal. Having tried to tighten up the definition, our concern is that a term such as reprisal would open up the door again. For example, is a reprisal intended to cover a prostitute who knew she would be refused drugs by her pimp if she did not engage in prostitution according to the instructions he gives her? There is a lack of clarity on that point, and, given that we do not believe that we need to define control or controlled for gain more than we have done, we are inclined to reject the amendment.
In tabling amendment 80, the hon. Member for Oxford, West and Abingdon appears to recognise the need to cover circumstances beyond coercion and compulsion. In defining control as activity involving
compulsion, coercion, intimidation or force or regular instruction or direction, the amendment covers most of the activity that we believe would be within the scope of the term control. However, we do not believe that the requirement for regular instruction or direction is helpful. What matters is whether the prostitute is being directed to such a degree that she would be viewed as controlled in relation to the provision of the sexual services to the particular buyer, whether or not this occurs with any degree of regularity.
I return here to the point that the hon. Gentleman made about women who work together. We accept that, for safety, prostitutes sometimes work together. I re-emphasise the point that he allowed me to make earlier, which is that the measure is not directed at the receptionist, the maid, the security person, or any other woman working with another prostitute, where they are working together for reasons of safety. It is difficult to envisage a situation where a madamI am not sure what the hon. Gentlemans definition of a madam iswould fall under the definition of controlled for gain that this offence would be based upon. If we are talking about someone who arranges the appointments, shares the venue, ensures that the prostitutes are safethe things that we are talking about that we are confident are not covered by this offencewe believe that the definition controlled for gain would not extend to include the situation that he is talking about. However, he has asked whether or not there would be further guidelines and explanation on this. Let me take this away and look at it. I suspect that the hon. Gentleman will continue to have concerns about this.
What the Minister says is very helpful and I thank him for that. However, I do not think that there is a gap, because he has intimated clearly what is not coveredmaids, receptionists and women working together who help each other. In an earlier remark, he mentioned security and identified what he would like to be covered, including pimps who withhold drugs and so on, even in cases where it is not necessary to prove that there is no free will. I am prepared to accept that although I did not say that I would.
However, the madam situation is somewhat difficult under those circumstances and the Minister ought to go further. This is about someone, often a woman, who may not be a prostitute herself but who is saying, You do this as that is how we organise our business, you do that. I am going to take a cut, this is your cut. People agree to work under that arrangementit is similar to that of employer and employee. Financial gain is clearly involved, but arguably the part about control should exclude a consensual employer-employee formal relationship. That needs clarification, preferably in statute, but otherwise in guidance.
Let me take this away and look at it again. My initial reply is that it would depend greatly on the relationship between the madam and the prostitute. If the hon. Gentleman is talking about a situation where the prostitute is guided in terms of a place to ply her trade, arrange the diary of clients and ensure that she is safe, that is one thing. If he is talking about coercion, intimidation or threats from a madam, that is clearly different. We are not talking about that situation. I give the hon. Gentleman a commitment that I will take that matter away and look at it to see if we do need further clarification.
I wonder if I could urge caution the other way. If the argument about manipulation and control is about consent, it is not possible for somebody to assign their consent to have sex with somebody to a third person. That is where I think that the position of the madam is not acceptable. One cannot have an employer-employee relationship over decisions regarding consent to have sex. I take an opposite view to the hon. Member for Oxford, West and Abingdon.
That illustrates exactly how difficult this is. I know what is at the heart of the concerns raised by hon. Member for Oxford, West and Abingdon, and indeed all our concerns. As I said, I will look at this matter. However, I would also caution against seeing this as an employee-employer relationship. It has been put to me by prostitutes that every relationshipnot only those between prostitutes and their clients, pimps and madamsis in someway exploitative. We have to draw the line somewhere and we are confident that this is the right place for it to be. However, I give the hon. Gentleman a commitment to look again at that specific point.
I have one narrow point of qualification. If there is a prostitute whose activities are in part controlled for gain although not wholly and exclusively, how would the clause operate? Is it captured because of the wording surrounding any of the activities relating to the provision of those services or, in specific circumstances, would the court need to be satisfied that the prostitute was controlled for gain in that individual case?
I am not sure of the answer to that question. Again, I will look at it. To some extent, this will be defined by the individual circumstances of the case, and the courts will have a part in framing the answer that the hon. Gentleman seeks. I am not sure whether he had a particular example in mind of how a prostitute could at some point be controlled for gain while not controlled for gain at some other point when she is plying her trade.
The hon. Member for Hornchurch makes a useful point. I thought that was covered. Suppose a woman works for herself as a call girl some of the time, but in a brothel the rest of the time. The brothel circumstances would be such that they would be controlled for gain and we would all agree that they were because there was an aggressive, intimidating pimp there. I understood that the reference in proposed new section 53A(1)(b) to
any of Bs activities relating to the provision of those services refers to those specific services that have just been paid for or for which payment has been promised rather than those general services that they are buying. That is probably the point that needs to be clarified. It is possibly ambiguous.
I thank the hon. Gentleman because he more or less did my job for me there in clarifying that point. I was going to make the point, but I will take guidance on this, about the circumstances when the payment and the act took place. There may well be a difference between the two, but let me come back to him on that because it is a good point.
Amendment 80 also provides that it is necessary to prove that the controlled prostitute reasonably believed that she was subject to coercion and the like. That puts a significant degree of importance on the prostitutes belief, which is not appropriate. It should be necessary only to establish objectively that a prostitute has been subject to what amounts to violence or blackmail, for example. The approach adopted by amendment 80 has particular dangers when it is used in relation to people who have been subject to violence or blackmail, and who may not recognise the fact they have been manipulated and controlled, or who may be under significant pressure to say they have not been subject to violence. We believe that the court is already comfortable with the term controlled for gain and how it has been interpreted because that was a key part of Massey, which we keep coming back to for reference.
Will the Minister clarify which bit of amendment 80 he was concerned about? If it was the proposed new subsections (3)(a) and (b), they are preceded by an or and that covers the circumstances where the impression is given that she is controlled and therefore behaves in that way. It is an option, not an and.
I will come back to the hon. Gentleman on that point before I conclude my remarks. I recognise the concerns that have motivated these amendments and welcome the constructive attempts to clarify the definition of controlled for gain, albeit a difficult task. I hope that my remarks have provided clarity and that hon. Members will not feel that they have to push these amendments.
I turn now to other amendments in this group that would remove the phrase, for gain, as well as amendments that raise issues not specifically relating to the definition of control. Amendments 82 and 83 would remove the term for gain. While the other amendments appear to be an attempt to narrow the scope of the offence, that would allow it to apply in a wider set of circumstances. It would not be necessary to establish that the prostitute was being controlled in order for another person to benefit financially.
While there is an argument that it should be illegal to pay for sex with anyone who has been forced or coerced, regardless of whether that coercion was motivated by financial gain, we believe that financial gain is a significant element of the exploitation we are trying to target with the offence. If we are to maintain the term controlled without further definition, as we intend, then it will be necessary to retain the term for gain to ensure that the scope of the offence is not too wide, and is consistent with the existing offence of controlling prostitution for gain. For example, we would not want to criminalise a sex buyer who paid for sex with a prostitute if that prostitute had followed the instructions of a friend in providing sexual services for payment, where that friend had no view to profiting personally from the advice and instructions provided.
I turn now to the question of the penalty. In addition to defining the term control, amendment 80 would provide a maximum penalty of three years imprisonment for the offence, which would be a significant increase on the maximum penalty in the current provisions, which is a fine of £1,000. This is no doubt related to other amendments tabled by the hon. Member for Oxford, West and Abingdon, which would remove the strict liability element of the offence. As I have indicated, we do not intend to remove the strict liability element of the offence. Therefore, it follows that a custodial sentence would not be appropriate, and, if my memory serves me correctly, Liberty appeared to agree with that in its oral evidence. A fine would also be consistent with similar offences such as kerb crawling or the new offence of soliciting, which the Bill introduces.
Amendments 27 and 31 attempt to ensure that if a person engages in sexual activity with a prostitute controlled for gain, knowing that that has been paid for by somebody else, they would be covered by the offence. We believe that clause 13 already covers that conduct. Subsection (2)(a) specifies that it is irrelevant whether the sexual services are provided, so simply by paying for sexual services a person has committed the offence. They do not have to have bought the sexual services for themselves. If another person receives sexual services, which someone else has paid for, they are likely to be guilty of aiding and abetting the offence covered by clause 13. The aim of ensuring that people do not avoid committing this offence by allowing others to pay for sexual services on their behalf seems clear, and it is certainly an aim that we share, but we do not believe the amendment is necessary to achieve it. The conduct that the hon. Member for Bury St. Edmunds is concerned about is already covered by the offence. I hope that that clarification is helpful and persuades him that amendments 27 and 31 are unnecessary.
A very interesting point is raised by the amendments tabled by the hon. Member for Bury St. Edmunds, as he identified the offence of aiding and abetting. Is it aiding and abetting, or is it encouraging or assisting, as in the framework and language of sections 44 to 46 of the Serious Crime Act 2007? Some provisions in that Act replaced those in the Criminal Justice Act 2003, and I am not sure which relate to the offence. Is the prostitute aiding and abetting in any of these circumstances? How would someone who has had sex that has been paid for by someone else be aiding and abetting the offence? That is a prior offence. It might be hard to argue that that is aiding and abetting or encouraging or assisting as it is after the fact of the offence.
I am advised that aiding and abetting is best used to describe this. I shall consider the hon. Gentlemans comments in light of the important points made by the hon. Member for Hornchurch. On the question of whether the person would be committing an offence because they had sex with a prostitute paid for by another person, the clause seeks to get at those who have sex with prostitutes who are being controlled for gain or have been trafficked, so I am not sure that I see the circumstances in which the person who had paid for the services but not used them entirely lets the person who has gone on to use those service off the hook.
Advice may be coming the Ministers way and I am sorry if I was not clear enough about this point in my speechindeed, I may not have covered it. I thought that it was obvious from the wording of proposed new section 53(A)(1) that the offence is making or promising payment. I can see that the services do not have to be providedthat is covered by proposed new subsection(2)(a)but that does not mean that if somebody else pays for me and I go, I am committing any offence or that I am even aiding and abetting the offence. Could the prostitute who does the deal with the person who pays be charged with aiding and abetting? Potentially, that could further criminalise women. It is not clear, and the Minister may want to reflect on how it could be made clear, if he does not intend further to criminalise women.
It is not our intention to criminalise women in that situation. If a woman has been trafficked for sexual exploitation, it is clear that the person who trafficked her has committed an offence. We are adding to that the strict liability offence of paying for sex with that woman. In such situations, if a woman has been trafficked for sexual exploitation, she is not a criminal, but a victim.
I want to focus on the point made by the hon. Member for Oxford, West and Abingdon. It has been suggested that somebody who makes payment but does not consume the sexual services might be aiding and abetting. However, that is not the case. I would be grateful if the Minister could clarify that an offence is committed only if somebody makes or promises payment for sexual services, irrespective of whether that person consumes the sexual services himself. The question for us is, if somebody has made the payment and not consumed the sexual services, what offence is committed by the consumer of the sexual services that have been paid for by the third party? Is it aiding and abetting or some other offence? It is certainly not any offence under the Bill.
It is clear that the person who pays for sex is committing the offence that we are talking about. It is our view that the person who does not pay or who has the payment made on their behalf, but has sex with that person is aiding and abetting the offence.
I hear what the Minister has said about the aiding and abetting offence. Will he consider my point because of the need or desire of the Government to put this issue beyond doubt? It is a relevant and important issue. If we accept the general argument on demand, the situation should be made clear for somebody who has not paid but is effectively blind, reckless or is not thinking about the services they are using. A stark message should come from the Bill that that sort of activity is equally criminal and should not take place.
I am grateful to the hon. Gentleman. It serves us all well to be absolutely clear on this point, so I will look at the issue of who has committed the offence and what the offence is. I will write to the Committee on that.
The Minister is being generous in considering these points. May I ask him to do something over and above writing to the Committee? We have a serious problem with the drafting. Would it not be better if he tabled a Government amendment in these proceedings or on Report to change the wording in lines 29 and 30, so that the clause states that the offence is committed not only if an individual makes or promises payment for the sexual services of a prostitute, but if an individual consumes, takes advantage of or enjoys the sexual services of a prostitute that have been paid for by another individual? That should be in the Bill, otherwise to find the offence that is committed by someone who enjoys the services of a prostitute but does not make payment, we will have to go to other pieces of legislation or common law that relate to incitement or aiding and abetting. Surely that offence should be in the Bill? The Minister should consider not merely writing to Committee members, but tabling an amendment. That should not be difficult. There is no point of principle that Ministers should object to.
There is no point of principle to which I am objecting. I am saying that there are two parts to my response. First, I have undertaken to look at this measure. The advice I have received is that the matter is covered. I am happy to explain what we find from that investigation to the Committee. If we find that there is a problem, as the hon. Gentleman suggested, we would seek to address it. It is in no ones interest to have an offence that creates loopholes and opportunities for people to get round it.
I urge the Minister to be cautious. May I tell the hon. Member for Bury St. Edmunds that if the offence remains one of strict liability and the criteria for its being committed are too broad, I would not like it to be said that I urged that the net be cast wider to include a party who had no knowledge of the payment being made, or if they had knowledge, should not be found guilty on the strict liability test that the person is making the payment. Arguably, that is the operative moment of the case. It may not be aiding and abetting that can be prayed in aid here. It may be conspiracywill you pay for me?but that is a separate matter. I urge the Minister not to widen this clause any further at my behest.
That is why we will look at it. I have given that undertaking and, if necessary, we will bring forward some proposal. I can assure the hon. Gentleman that in the process we will not bring guilt on him.
That can be part of our coming back to the Committee.
I appreciate and understand the need to be clear about the circumstances covered by the term controlled for gain. I hope that in our lengthy deliberations, where we have had useful discussion backwards and forwards, I have sufficiently persuaded hon. Members of the advantages of the term that we are proposing to use over their amendments. I also hope that I have stressed the importance we place on the strict liability aspect of the offence and the need to retain the ability to prosecute, even where sexual services are obtained outside England and Wales. I hope that hon. Members, in accepting that reasoningalbeit with the caveats we have agreed to and the need to look again at some of these issuesare reassured sufficiently not to press their amendments.
We have had a lengthy and useful debate. Clearly, the hon. Member for Oxford, West and Abingdon will have an opportunity to respond and no doubt will indicate what he wishes to do with the lead amendment, but the general thrust of the clause and in particular all the amendments have been dealt with in great detail.
I certainly agree that we have had a full debate on these amendments, due in no small part to the willingness of the Minister to engage with us in a meaningful way. I am grateful that he has done so. He has taken interventions. He has tolerated my missing one of my amendments in my opening remarks and he has offered to come back to us entirely appropriately at the right moment. It does take both sides for that to happen. That means that when we have a clause stand part debate we can talk about the general issues and we do not have to refer, except in passing, to the nature of strict liability and so on.
I need to respond to a few of the points the Minister has made and will do so briefly. He answered the question raised by the hon. Member for Bury St. Edmunds on the small number of prosecutions. It is a small number and some may well have come from anti-trafficking measures where there was not enough evidence to use the trafficking offencesappropriately, I am not criticisingand therefore controlled for gain section 52 offences have been identified. Nevertheless, even in the most recent years, there have been fewer than two dozen. I agree that information is not readily available on how many of those prosecutions have relied on punters tipping off the police or providing evidence, but that is one example of where research could have been done to identify that information, because the numbers are small. I shall come back to that in the clause stand part debate.
The Minister defended strict liability by saying that that is the best way of doing things because it places the risk on the people who are responsible for the demand. I think it would be more effective, as well as better public policy and better law, to place the responsibility on men in relation to having sex with someone against their will, where they are controlled or coerced, even within the wider definition, rather than just placing on them the risk of being guilty of an offence when they are ignorant of the circumstances or have been deceived regarding control of the prostitute. I shall come back to that point in the stand part debate, but I wanted to point out that I do not accept his analysis. We will also come back to whether the proposals would be less effective if the offence were not one of strict liability. I accept that that is another issue for the stand part debate.
On the Ministers argument that there is a precedent for strict liability in the offence of having sex with a child under the age of 13, may I say that he has not given the full story? Section 47 of the Sexual Offences Act 2003 states:
A person (A) commits an offence if...he intentionally obtains for himself the sexual services of another person (B), and
before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment, and either
B is under 18, and A does not reasonably believe that B is 18 or over, or
B is under 13.
That is how strict liability is affected when there is a five-year errorI do not use that term to exculpate anyone who has committed that offencein the reckoning of the girls age if the defence is wheeled out that she looked 19. So, it is reasonable to say, when there is a difference of five years, between the ages of 13so it is 12, actuallyand 17 years, 11 months and however many days, that the offence is not one of strict liability but one of a form of recklessness. The same thing occurs in other parts of the legislation.
That is the case with child prostitution, and I should think that there is a stronger case for having a strict liability offence for child prostitution, if one has to rely on it in recognising that there is limitation in sentencing, although I note that when B is under 13, the offender is not faced only with a fineso that is considered proportionate. If strict liability is not appropriate for an offence of having sex with a child prostitute, I am not convinced that it is appropriate for an offence of having sex with someone who is controlled for gainat least in more marginal cases, such as Massey and beyond, in which force, intimidation and coercion are not used. I do not accept that argument, but I do not want there to be unpleasantness between the Minister and me on that point. We will come back to the hotline and crime busters in the clause stand part debate.
I asked the Minister whether the CPS could have discretion, to which he replied that that would send out the message thatI hope that I am not misquoting him, because he makes a fair pointas long as men who commit an offence point people in the direction of help, they get off the hook. That would be the effect of putting that into statutory guidance, but it would be worth it because it is far more important to prevent multiple rapes from occurring every day. We could do almost anything to get that advantage, even if it meant that men were encouraged to come forward on the basis that if they co-operated, they would not be prosecuted for this, more minor, offence. I would rather stop the gang rapes and prosecute the pimps and traffickers than prosecute one person for this minorin terms of penaltyoffence. We would still have the aim, because the law would be in statute, of having the deterrent effect which the Minister believes works but which I do not. However, I will come back to that in the clause stand part debate.
On amendment 79, the Minister said that he felt that the word intentionally was unnecessary in respect of the payment. His also argued that he did not want to make the case more difficult to prove. However, I am still concerned about the measure in the context of the example I gave in which someone who is not paying for sex is penalised. We could discuss whether lap dancing and table dancing constitute sexual servicesthey do not do so under the Billbut what happens if someone is paying for those services and does not intend to pay for sex with a prostitute, but nevertheless gets it as a good customer? That should be addressed.
The Minister went on to deal with the question of anywhere in the world. I think I understand his position, but I would be grateful if he could confirm my understanding, which is this: for the offence to take place, the payment has to occur herethat is the root of the offenceregardless of where the sexual services take place. Therefore, clearly, paying here and taking a prostitute abroad would be covered under the provisions. I do not object to that. I also accept that if a person pays on a credit card from here to another country, an offence has taken place regardless of whether the services are ever delivered, as long as it comes under controlled for gain.
However, my concern is a situation in which an activity that comes under our definition of controlled for gain, be that relating to a pimp or madam, is legal in another country such as Holland. The payment is made here and the services obtained there. The Minister went as far as to say that it would not be a high priority for the police to enforce that sort of thing, but I would be grateful if he could confirm whether it would be an offence. If it is not illegal to have sex with a prostitute who has a madam in, say, Holland, should it be an offence, on strict liability, to pay for it in this country? I accept that the Minister has already made his contribution, but I would be grateful if he could deal with that question in correspondence, even if it is to say that I have got it completely wrong.
Something else just occurred to me. If the hon. Gentlemans analysis is right and if it is confirmed by the Minister, would an individual who pays for sex in Amsterdam using a British credit card fall foul of the law, considering that the actual physical payment will be made in this country?
I do not know the answer to that question, and neither does the Minister. Hopefully an answer will come, either later in the debate, in correspondence, or during the next debate. He should answer that question especially if there is no easy answer.
On controlled for gain, I am grateful for the Ministers engagement in the debate and that he understood the spirit in which hon. Members tabled amendments. It is important that he has clarified that, in his view, mere receptionists, maids and security guards, who undertake no controlling activities, are not covered. I think we agreed in an earlier exchange that the role of a madam could vary, so the facts could lead the question because the madam could be aggressive and intimidating.
We all accept intimidation, force and coercion, but the question of direction and instruction remains, because to run a tight shop doing something that is unlawful, people have to be quite brusque sometimes. I think the test is whether the prostitute agrees to the structure and arrangement of the control. That does not mean that there is carte blanche or that control is always acceptable, but it takes account of a situation in which a prostitute is agreeable to the structure, and has consented by saying, Yes, I understand that I will be taking these instructions. As long as there is provision to deal with trafficking, or force and coercion and forms of reprisal, that test could be a way forward. Liberty has made such a proposal, but we will not be able to deal with it today.
Mr. Peter Lodder QC gave evidence to the Committee. An offer was made to him to consult, and he told me that he is more than willing to meet or write to any of us to offer his thoughts as a practising criminal barrister with an interest in such things. He did not agree with everything that I asked him in the evidence session, so he is not necessarily on my side of the argument.
The Minister objected to amendment 27, which was moved by the hon. Member for Bury St. Edmunds, because he said that trafficking is a was situation. He recognised that there may be circumstancesbizarre though it seemsin which, the trafficking having been done, the person was no longer controlled. That problem could be remedied if the amendment was redrafted to say that the offence is still extant. Perhaps that might be tackled.
I am prepared to recognise that Massey did not require that due consent was not given. My instruction and direction were an attempt to recognise that. I would be grateful if a way could be found to deal with the madam point to protect women whom we should encourage to work together to get rid of drug pushers and pimps from their business.
The hon. Member for Northampton, North said that even if the arrangement is purely consensual and the prostitute is happy to have an employer who can sort out the finances and organise the security and business, they cannot be instructed to have sex with someone because that gets rid of their consent. I accept the point. The instruction I was talking about was a person perhaps being allocated to someone if they were willing. It is essential in prostitution that, up to the very last point, women should have the freedom to consent.
I am grateful to the hon. Lady for giving me the opportunity to clarify the fact that what I was referring to was instruction around the arrangement of the business, not the instructionregardless of whether they like it or notto have sex. I entirely agree with her about the nature of consent.
One question that was not addressed was whether, in any circumstances, the prostitute, in negotiating the payment, would be guilty of aiding and abetting. The old language of assisting and encourage was used, I think from the Criminal Justice Act 1967, although I do not know as I am not a lawyer. I would be grateful if that was clarified. Potentially, the prostitute is guilty of such a charge, but I can understand why the Minister does not want that prosecuted. Nevertheless, if the police see such an offence, they might want to get the numbers up, which is a worry.
Finally, there is the question of for gain. The Minister explained why he did not want to lose those words and gave one example of a friend who says, You have sex with that person, even though they were not doing it for gain.
There are other circumstances that I raised to which the Minister did not respondfor example, a boyfriend who, just for the hell of it, is making someone have sex and payment is given to someone else. I think that it is necessary to capture that behaviour, even under section 52 of the 2003 Act, because that talks about for gain. Therefore, even though this whole construction of controlled for gain was not recognised by my party in 2003, it could do with revisiting now, especially given the Governments determination to crack down on abusive prostitution situations. I ask him to reflect on that.
We have had an extensive debate and I am grateful to the Minister for the points that he made and his offer to communicate with us further.
Very briefly, I want an acknowledgement from the Minister that he will take the following point on board when he goes away. The more I look at the offence before us, the more I see that, on a strict construction, it involves someone who makes or promises payment. That is the offence. It is not clear that someone has to consume the sexual service. We understand that.
However, I struggle to understand the point in relation to someone who does not make the payment, but none the less enjoys the sexual services, because A, who makes the payment, has decided to do so on his behalf. How does aiding and abetting relate to the offence of making payment? I can envisage a situation in which the consumer of the services, who is not paying for those services, is stony-broke. In what sense, therefore, can he aid and abet the making of a payment?
I am genuinely puzzled about why the Minister alights on aiding and abetting as the offence committed by someone who consumes sexual services without paying for them. Is it aiding and abetting, or might it be conspiracy? Might it be something else? Under strict construction, someone who is stony-broke cannot aid and abet an offence, if that offence is the making or the promise of a payment. The offence is quite unconnected with the individual consuming the sexual services.
I shall give my hon. Friend another example that might, to him and me, seem bizarre: some fathers, when their sons reach the age of 18, will spend the money for their sons benefit, as a birthday present.
In any event, I take my hon. Friends point. I do not wish to detain the Committee, but the Minister needs to explain aiding and abetting in the example given. I am not sure why he alighted on that specific offence, rather than conspiracy or anything else. A full explanation is required.
The hon. Gentleman talked about fathers, but I understand that some mothers do the same. I think that Coleen Nolan, from the Nolan Sisters, paid for her son, or said that it would be a good 18th birthday present for him. Might the extension not be and/or consumes the service? Surely, that would be a way round the problem.
I am grateful to the hon. Lady for that intervention. She agrees that we are trying to tighten up the clause, in a helpful way, so that it catches those who should be caught, and she is entirely right, but I hope, too, that Labour Members will accept that we are widening the provision, although probably in a way that the hon. Member for Oxford, West and Abingdon thinks is not appropriate. Nevertheless, I am sure that we all give thanks to him; his contributions have teased out many important questions. However, the possible avoidance, under the strict construction of the clause, needs to be considered.
It is greatly to the Ministers credit that he will take this away and give us a full explanation. I am concerned about the aiding and abetting provision, because it does not seem to bite on the offence. At the moment, merely making a payment, regardless of whether sexual services are consumed, is an offence. On that note, I plead for a full explanation from him.
In response to that last point, I disagree with the hon. Gentleman in only one respect, although I am grateful to him for his kind words. The modern language for aiding and abetting is encourage and assist. That is the language in sections 44, 45 and 46 of the Serious Crime Act 2007, under which this might well fall. Clearly, if someone says, Look, pay for me, will you? Ive got no money and I want to use this prostitute, it is encouraging an offence. However, the question is whether strict liability should be transferred to the person who consumes even if they do not encourage. I think that the Minister has in mind offences of payment committed in this country.
Then there is the problem that if we added consumes, as the hon. Member for Stourbridge suggests, to the top criteria, that would make it difficult for the provision to bite if the consumption took place abroad, unless that was one of the offences in the 2003 Act that was made cross-jurisdictional. Some of them are, but I believe that those relating to sections 52 and 53we are debating proposed new section 53Aare not.
In any event, we look forward to the Ministers response and I am grateful to the hon. Member for Bury St. Edmunds for clarifying the fact that I am not an enthusiast for widening the provision any further. I feel guilty for having contributed to the finding of a potential loophole that the Government might close. Having said all that, I beg to ask leave to withdraw the amendment.
My comments will be exceedingly brief because we have had an incredibly full debate. I wish merely to make the following points by way of summary.
I hope that Ministers will keep a keen eye on the enforcement of the clause, should it be enacted, because the answer that the Minister gave on the number of proceedings in relation to the controlled for gain legislation in the 2003 Act struck me as extremely low. That led me to think of two possible reasons. The first is that the police do not have enough resources to enforce. I do not know whether that is the case, but it is one logical possibility. The second possibility is that the prosecution in relation to that legislationor, indeed, this legislationmight not be able to meet the burden of proof. That point was raised by many witnesses.
Release, in particular, is worried about enforceability. It said that
the prosecution would never be able to meet its burden of proof. This would be compounded by the difficulties already faced by sex workers during the investigation process where they often receive poor service or little respect from the investigating officers.
I hasten to add that I do not know whether that is true. I am merely suggesting that that allegation is being made. Release goes on to say that
when they are witnesses in court their credibility is impugned through the adversarial processthis makes them unlikely to support prosecutions and makes it
unlikely for a conviction to be obtainable under the proposed offence.
Although it is a strict liability offence, Release seems to be making the point that there will have to be some evidential input from a prostitute and it suggests that that might not be forthcoming, so I still think that the whole question of enforcement is very much a live one.
As Her Majestys Opposition have made clear, we still believe that the clause should go through, because one has to start somewhere in choking off demand. I wish that to be clearly placed on the record, because the Opposition have strong viewsviews at least as strong as those of Ministers and Government Members. However, there is a question whether this law will be enforced. That is my first point on clause stand part.
My second pointthe final one, so that we can make progresshas been raised by many witnesses who have written to us and whom we heard from last week. They talk about the good intentions of the clause, but say that it might, if enacted, be counter-productive, in that it might drive vulnerable women sex workers undergroundthat is the word used. The briefing from the vicar of St. Brides, who is a doughty supporter and giver of pastoral care to prostitutes in central London, expressed those sentiments. I am not saying that the Government were not trying to do the right thing, but it might lead to some women leaving brothels where they might enjoy relative safety at the moment and being driven underground.
My hon. Friend made an important point about enforcement, but does he agree that on the issue of demand we are talking about changes in behaviour and attitude? It has been said quite strongly that we need to focus on education to change attitude and that legislation of itself is not necessarily the most effective way to address that.
I agree with my hon. Friend, but it is not a case of either/or. In an attempt to curb criminality, the legislation must start somewhere and, of course, education must be complementary and supplementary.
The Government mount many campaigns to publicise Home Office policies, not all of which I agree with. All Governments do so, particularly in relation to reckless driving on the roads and breaches of the Highways Acts. We have all seen advertisements that warn members of the public of the danger of drink driving and how serious criminal offences can be committed if individuals who drink over the limit get behind a car and injure people. They could face custodial sentences.
It occurred to me listening to the debate that, if successive Governments rightly mount campaigns to stamp out the criminality of reckless driving, for example, perhaps a campaign of some description might be mounted to spell out to men primarilyit will be menthat, if they do not heed the new strict liability law, not only will they be guilty of perpetrating the vile trade of human and sexual trafficking, but there will be penalties for them for the first time under British law. That suggestion was prompted by my hon. Friend the Member for Hornchurch. Many witnesses were concerned about enforcement, so will the Minister consider my proposal? I am not suggesting that he commits himself to a spending pledge, but I wonder whether he considers that the new offence is sufficiently serious and will have a high enough profile to be the subject of a Government information campaign, as reckless drink-driving is.
We should not let this moment pass without reflecting on what is happening in Committee Room 11 today. We have seen a seismic shift. The Government are introducing a strict liability offence under clause 13, which the Opposition spokesmen have said that they will not oppose. We are debating how to make the clause effective. That is a phenomenal change, as the Government, in the broadest sense, are looking at how to deal with the problem that we have been wrestling with for decades, indeed centuries.
I do not want to over-egg matters, but when people look back they ought to reflect sometimes on moments such as this. What is happening in Committee represents a fundamental shift and change in how this country is seeking to look at the whole issue. To be fair to all members of the Committee, that deserves to be put on to the record.
I am most grateful to the Minister and I absolutely agree with his sentiments, but none of us in Committee yet knowonly time will tellwhether the enforceability problems that many witnesses and some Committee members see will be overcome successfully. The jury is out, but we travel hopefully, those of us who would see the clause pass into law. The Minister was entirely right in what he said. However, it remains the casethis is not a proviso or a conditional comment of any kindthat good law has to be tightly drafted. If there is any suggestion that it is not operating as it should or is not as effective as it should be, or, let us not forget, if injustices are being committed because of the construction of the words or of how judges or prosecuting authorities interpret the words, it behoves any Government to revisit the measure. Bad law ends up being no law at all. On that note of positive support for what Ministers are trying to do, I conclude my remarks.
I want to bring out some of the points that are particularly important and good in the clause. Both Opposition parties are being a little mealy-mouthed, because the clause deals with the worst mischief in prostitution. I draw from the outstanding work done by SWAN, which is a project supporting street workers in Northampton, and from the contact that I have had with trafficked women and women who at various times have been involved in prostitution. I want to make just three points.
First, it is absolutely right that this should be a strict liability offence. That says a lot for the Governments support for vulnerable and exploited women. It does not mean that the men do not have defences to put up if they are prosecuted. There is a whole variety of defences, some of which we have heard herethey did not pay, someone else paid for them, they did not intend to pay or they did not have sex, which is always one of those defences that men put up. Having been a juror in a rape case, that was one of the defences, which, completely implausibly, the man ran. However, he did use it.
I would like to stress to the hon. Lady that proposed new section 53A(2)(a) is very clear that it is irrelevant whether those services are provided. I do not disagree with what she said about how that might be a rubbish defence in rape, but the fact that you did not have sex at the outset is definitely not a defence.
I apologise, Sir Nicholas, for implying that you, at least in this instance, were the person involved. I was talking about you in the sense of one, and I shall be very careful in future discussions not to impugn your behaviour in any way.
I take the point, but if the facts of what happened are in dispute, that can certainly be disputed. The man cannot use as a defence issues about the status of the woman, which is absolutely right. The status of the woman, if she is controlled, is an objective fact, and it seems quite wrong that that should be used as a defence.
My second point concerns the trafficking issue, which is also rightit is not mentioned in the measure. Some of the other descriptions of women are not mentioned. One reason is that it seems to create two categories of prostitutesa prostitute controlled for gain who has been trafficked, and a prostitute controlled for gain who has not been trafficked. That would be completely wrong. If it is wrong to control prostitutes for gain, that should apply no matter how the woman ended up in prostitution.
Secondly, we sometimes have very stereotyped ideas about trafficked women. Some women conform to the stereotype of women who are smuggled in in gangs, brought in on lorries, kept in particular houses or moved around the country, and sold and resold. However, I have spoken to a number of women and children who have been trafficked, and it is clear that they do not all fit into that stereotype. Some are brought in ostensibly for one reason and slip into prostitution; some think that they are coming in for a different reason. Some of the lines are blurred. If the offence was specifically about trafficked women, enforcement would be extraordinarily difficult. It would be necessary to prove some tight circumstances.
My concluding point is that it is right not to dwell too heavily on the type of coercion that the women are under. There was an extraordinary case in my constituency very soon after I was electedhon. Members might remember it because, unfortunately, it was one of our colleagues who was caught in a brothel. A number of my constituents came to see me and they were absolutely clear that the women in the massage parlour were being coerced. They were outraged at what had happened. Some people had certain attitudes to prostitution, but they were more concerned about the fact that the women were being held there improperly, that their passports had been taken away and they were not being provided with much money, and that the people using their services were making a nuisance driving round the area in cars.
When the police duly carried out a raid, the attitudes of the women themselves were quite different. If we had to rely on the views of the women as to the level of coercion it might be hard to prove an offence. The Government are right to say that if prostitutes are being controlled for gain, whether or not they consent to that and it is seen as an employer-employee relationship, it is not acceptable by the standards of our society. Whatever the deal is, it is not acceptable for women to be treated in that way.
As I am sure all members of the Committee know, some prostitution involves women who have been brought in from other countries where they have had abysmal rights and have been abused. It might therefore appear to somenot all, but certainly some of them, as it did in the case I mentionedthat they are not getting a bad deal over here. It is important to assert that if a woman is being controlled for gain, that is wrong and is a strict liability offence. We should not have to prove issues about trafficking or levels of coercion. This is an important clause and will go far in resolving some of the long discussions that have taken place about the rights and wrongs of prostitution.
I look forward to the measure being on the statute book and being implemented. There is much more to be done in dealing with prostitution. That includes the kind of work carried out by SWAN which looks at the risks faced by prostitutes and the health services required, and tries to find them alternative livelihoods so that they do not have to rely on prostitution and can move out and find something else to do. This is an important clause, and I commend the Government on introducing it.
Several hon. Membersrose
I fear and regret that consensus must stutter to a halt at this point. If my colleagues and I believed that, unamended, the offence would be effective in reducing harm, improving the safety of women, reducing demand in general and demand for the unacceptable, forced prostitution about which we are all concerned, and effective in helping to bring to book traffickers and those who, through violence and intimidation, oppress women in the sex industry, we would support it. Furthermore, if I thought that it would not do any harm and was worth a try, I would also be minded to support it. But I do not support it, because, in its current form, it is bound to do more harm than good, and I hold that view in all sincerity. I do not suggest that colleagues, including Conservative Members, support it despite knowing that; they clearly take a different view based on their view of the evidence. I hate to use the word evidence, however, because it elevates the information that we have been given to a state that it does not deserve.
I shall explain why the measure will not work and why it will be counter-productive, in the hope that others in the House hear the views of myself and my hon. Friend the Member for Chesterfield, because we appear to be outnumbered in this Committee. If the Government had accepted that strict liability was the wrong approach, and if it was clear that the offence would be targeted at the abuse of prostitution, I might recommend to my colleagues that we support it, even though we are dubious about tackling demand, because it cuts off reporting and, therefore, involves paying a much higher price. Sadly, the Government are not minded to restrict the measure to intention or recklessness, and their definition of control for gain is still too widely drawn.
The safety of the women concerned is the top priority, and the test is whether this clause or the others in this part include good evidence that has been published, peer reviewed and commented on, and whether everyone agrees, or a strong case has been made, that such measures will make women safer. I do not think that that case has been made.
I am determined to help the Committee to deal with the matter by the end of play today. That may not be possible, but I am not going to string this out. In order to make progress now, I shall deal with increased criminalisation during stand part debates on other clauses, but I do not want it thought that everything I say now is my entire argumenton even this measure. So, safety is the top priority, but I have not seen any evidence, let alone any good evidence, and there has been no consultation. The people who are affected by the measure should have been consulted, in particular. That includes the punters, whatever our view of them, and the womenthey are mainly womenwhose services they buy.
Do we provide an alternative? Is the measure part of a coherent package that provides, for example, funded exit strategies? Is there any evidence of support from sex workers, themselves? Even if they are not being exploited, they know about the situation better than others, and they feel strongly about it. The English Collective of Prostitutes and the International Union of Sex Workers really want the oppressive, exploitative and abusive prostitution rackets to end; they do not have any interest in such pursuits. There is also the absence of a proper public education campaign to go with the provisions in the clause.
In the absence of all that, it is very hard to see how a rational legislatorespecially one who wanted to submit the propositions of the Executive to due scrutinycould enthusiastically support the measure, even if they are sympathetic to it, as the hon. Member for Bury St. Edmunds says he is.
None of those provisions have been met to my satisfaction or, indeed, have even been attempted to be met. Secondly, is there evidence that tackling the demand will work to reduce the demand? Doing so is incidental if the prostitution continues and if women are still abused and oppressed, but they have more idle time between seeing clients. Is there any evidence that the provisions will have any impact whatsoever? I have not seen any evidence that the measures will work to reduce demand. It would take huge amounts of enforcement to do that, and unless the Government want to give the false impression that one is at serious risk of being prosecuted, is it worth the enforcement time?
We have precious few enforcement resources, and they must be directed towards the abusers of prostitutes, not towards enforcing the strict liability offence of dealing with someone who makes payment for someone who is controlled for gain. There is a big difference between those two. If the police in my area are picking up clients instead of pimps and traffickers, and there are tiny numbers of prosecutions despite the efforts of the police, that is an indication that there is plenty more enforcement to be done. If that is any indication to go by, giving the police other options to prosecute without clear evidence that it will improve the situationnot just hope that it willis a real problem that prevents one from supporting the clause.
In addition, my main concern is that the measure will be counter-productive to the interests of women. That applies to all the clauses, but in the interests of time I will not go into all my arguments on that because there are better clauses in relation to which I can do so. Anything that drives women and prostitution further from the law creates real problems. In the remaining time, I will deal with the issue of the evidence because the Home Office report Tackling the Demand for Prostitution claimed that there was a literature review on the subject commissioned by the Home Office. In what I suspect is a standard letter that was sent to another Member from the MinisterI was sent it by the person who wrote to the hon. Memberhe said:
The review involved key stakeholders and practitioners, including the Police and the Crown Prosecution Service as well as organisations supporting individuals involved in prostitution.
We have had a number of representations both through the scrutiny unit and directly to ourselves from organisations involved in working with people from prostitution, including the national sex worker project people, who co-ordinate a whole load of people who do not agree with that. I fear that they might have been left out or ignored in that review.
Work undertaken as part of the review included an assessment of relevant academic research. Where is that assessment? Well, it is referred to on page 11 of the review:
That was in November. I have already expressed my utter dismay about that matter to Ministers and, in fairness, the hon. Member for Gedling regretted that it had not been published and said that he could not understand why. However, I have also expressed my regret to the Governments chief scientific adviser and all Ministers who say that they have an evidence-based policy, because they gave an undertaking in response to the Science and Technology Committees report on evidence-based policy making that evidence would mean evidencenot assertion, unpublished and unpeer-reviewed work, but proper evidence. Otherwise, it is even worse than having non-evidence based policy because it pollutes the language.
We cannot even see the terms of reference of that evidence assessmentlet alone what it says. We do not know whether it has been peer-reviewed or what all the other academicsother than the people at the university of Huddersfieldthink of it. Other academics might say, This is an excellent systematic review; actually it looks as if the evidence is pointing in this direction. However, if we cannot see that, asserting that there was any attempt to get relevant academic research or assess it is meaningless. I am shocked and appalling that the Government are relying on something that is not published and even if it had been published, it was not peer-reviewedespecially if that does not represent the consensus of academics, who do not have a vested interest.
The UK national sex workers project group has sent us a memo setting out its concern about inadequate and selective evidence. I am conscious of the time and look to you for guidance, Sir Nicholas. It was not my intention to take the debate beyond 4 oclock, and the Minister and the hon. Member for Bury St. Edmunds might still have to respond.
I am a servant of the Committee and am in its members hands. It is not for me to advise members whether the matter should be concluded this afternoon. The hon. Gentleman is aware that one member of the Committee wishes to speak, albeit briefly I understand, and clearly the Minister might want to say a few words in response. I hope that that advice is helpful.
During your helpful comments, Sir Nicholas, I had an indication from the Government of what might happen. It is clear, sadly, that we will not finish the clause stand part debate today, and I regret my part in that, but I will attempt to finish my remarks today and I understand that the Government Whip might catch your eye to move the adjournment at 4 oclock.
The UK national sex workers project group mentioned the inadequate and selective evidence and questioned the numbers that have been provided by the Home Office in its 2003 estimatewe will discuss that further in future debates. The Minister, the hon. Member for Gedling, will know that when the Joint Committee on Human Rights, of which I am a member, conducted our inquiry into trafficking, which I had suggested, we questioned the figure for the number of women being exploited. Even if there were 100 women, or only one woman, who was trafficked, forced to become a sex slave or was being forced and intimidated, that would be too many.
If the efficacy of the offence is predicated on the number of prostitutes in that position, and therefore the number of people who might reasonably be at risk from a strict liability offence, the Government could have provided us with more information on the numbers. I do not know how many men in Britain use prostitutes, on average, each night, but I suspect that it is in the tens of thousands. I suspect that it is not as many as in Italy and I do not know why that should be the caseperhaps the religion of the country produces a behaviour in men, but I do not understand that. Estimates have been made of the extent of prostitution across Europe, and there are particularly problems in particular countries. Nevertheless, the figure is high.
I do not know whether the Minister envisages that 10,000 men a night could be at risk of committing that offence and that the police will pick them up. If it is 10,000, and if the number of prosecutions is as low as it is for the offences that have been on the statute book for three years, men will understand that they have a one in 10,000 chance of being prosecuted. I am not sure that that achieves the purpose of the measure, and it is difficult to know without having the data on which the Government based their numbers.
It is the view of the International Union of SexworkersI have met many people who work in the industry at such meetingsthat the draft legislation and all its clauses will increase the vulnerability of people in the industry. No matter how well intentioned it is, it will tend to drive the industry back underground, which makes the vulnerable people involved in the industry more vulnerable. While we might like to think that it will help, there is no evidence that it would. People in the sex industry assertI accept that they are only assertionsthat it will make matters worse, and I do not see why they should have a vested interest in that if they are not being controlled, as many of them are not. I believe that it will aid traffickers and those who control prostitutes by deterring some of the people who know where the offences take place from reporting them.
I would like to live in a society in which men or users, if they encountered prostitutes being controlled against their will, would report it and be encouraged to do so. The proposal sends the opposite message before that technique has even been tried. I accept that the numbers are currently low, based on what we have, but the approach has never been tried.
Finally, there is the question of blackmail, which was not addressed but is a point I raised when discussing the amendments on strict liability. It was not a point that the Minister responded to, but there are men who have sex with male prostitutes who could take the money, have sex, claim that they are controlled for gainthe people who run those rackets are not stupidand then threaten to expose the individual concerned and report them to the police, not only for having sex with prostitutes, but with rent boys and homosexuals as well. When considering legislation such as this, we must recognise that that might create more offences and damage without the evidence that it is solving the problem it seeks to solve.