Clause 15

– in a Public Bill Committee at 11:30 am on 10th February 2009.

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Amendment to offence of loitering etc for purposes of prostitution

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 1, in clause 15, page 14, line 28, after ‘person’, insert ‘aged 18 or over’.

I apologise for not recognising the appropriate way forward during the last debate, Mr. Bayley. I resisted the temptation to make the points that I wanted to make during a clause 14 stand part debate, as I was not sure whether you would have allowed that either. I shall make a few short remarks about this amendment, because I rather hope—[Interruption.] I shall wait until the Minister is ready to hear my remarks. They are very short, and he might miss them if he blinks.

Why have the Government not introduced the provision in my amendment? I want it, if possible, to be debated by the whole House, because the Government have shown an interest in it before. I could go into the  reasons why there is a strong argument for decriminalising child prostitution. They involve our human rights responsibilities and our ability to encourage the victims of an offence—in this case children—to come forward, which is less likely if they are criminalised themselves.

The Government have given some thought to this matter in the past and indicated a willingness to look at it. I hope that shall I preserve the opportunity for the House as a whole to debate this important issue if I limit my remarks and provide the Government with an opportunity to explain why they feel that this is not the right time to discuss it in Committee.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I am grateful to the hon. Gentleman for his short introduction. I understand his motives, and I hope that my remarks will satisfy him on why we are pursuing this route.

Amendment 1 would amend the offence of loitering or soliciting for the purposes of prostitution to exclude those under the age of 18. I find more consensus with the hon. Gentleman on this matter than I did when we discussed the previous clause, and I assure him that we share his concerns about the issue, although I suspect not his route through it.

We recognise that children who become involved in prostitution are victims of a sexual offence and should be offered appropriate support. We do not want children in those circumstances being subject to punitive criminal sanctions. That view is reflected in the “Safeguarding Children in Prostitution” guidance issued in 2000. Since the publication of that guidance, the number of people under 18 who have been arrested and prosecuted for that offence has been very low. In practice, the offence is rarely used in relation to those under 18, which we believe is right. For the Committee’s information, that guidance will be updated specifically on this issue and published in spring.

This issue has been debated previously by Parliament, most recently during the passage of the Criminal Justice and Immigration Bill. During those considerations, we outlined our concerns about the potential impact of a change to remove under-18s from the scope of the offence. Those concerns remain. By decriminalising under-18s, we risk sending out a message that although we do not think it acceptable for adults to be involved in street prostitution, we somehow accept that children can be. We recognise that in the overwhelming majority of cases children involved in prostitution should be treated solely as victims. Guidance from agencies makes that clear, and that is consistent with the policy of the Association of Chief Police Officers, which supports the retention of this power.

However—this is the nub of our argument—there might be exceptional cases where criminal justice intervention is necessary to prevent a harmful situation and allow a child to access support. That is why we want to retain the ability for criminal justice agencies to intervene as a very last resort. Where other agencies fail to engage with young people who, for whatever reason, spurn offers of support and protection, the criminal justice system enables us to remove those young people from the street and any immediate danger. That intervention might make a difference. I acknowledge the concerns of the hon. Gentleman and others, but I assure all hon.  Members that our overwhelming priority is supporting rather than prosecuting children who are involved in prostitution.

I cannot accept the amendment. I hope that the hon. Gentleman appreciates the reasons for that and will withdraw it.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister for his reply. I would be interested to know under what circumstances the Government could not ensure that the victims of this essentially non-consenting offence and exploitation of children were helped other than by being arrested or engaged by the criminal justice system, as he put it.

Can the Minister give me a scenario where the support for children—whether that involves social services or exit strategies—is so inadequate that we have to rely on the criminalisation of those victims? Will he write to me and set that out so that I can consider the position further? If he cannot do that, he has not addressed the main concern and the obverse effect by which children may be deterred from coming forward for fear of prosecution under this or other prostitution offences, thanks to the message sent out by this law.

I wish to reflect on what the Minister has said, because it might be appropriate to table a similar amendment so that the House can take a view on it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of David Ruffley David Ruffley Shadow Minister (Home Affairs) 11:45 am, 10th February 2009

I beg to move amendment 19, in clause 15, page 14, line 29, leave out paragraph (b).

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

With this it will be convenient to discuss the following: amendment 246, in clause 15, page 14, line 31, leave out ‘two’ and insert ‘three’.

Amendment 20, in clause 15, page 14, line 31, leave out paragraph (a).

Amendment 247, in clause 15, page 14, line 32, leave out ‘three months’ and insert ‘one year’.

Amendment 22, in clause 15, page 14, line 39, leave out subsection (5).

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

Amendments 19, 20 and 22 were tabled to tease out the Minister’s thinking on the offence of persistently loitering for the purposes of prostitution. The clause will amend existing law so that the offence is committed only if there is loitering twice or more in a three-month period. On what evidential basis was the provision “twice or more” in a three-month period arrived at?

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful for the opportunity to speak to the proposals tabled by me and by my hon. Friend the Member for Chesterfield. I shall cover the whole principle of criminalising the selling of sex and loitering in the clause stand part debate. Why do the Government consider that such a change would make persistence a higher threshold? The clause says that the conduct will be persistent if it takes place on

“two or more occasions in any period of three months”.

At the moment, if the policing is such that people are arrested for the offence rather than cautioned or warned in respect of an offence that is more frequent and more persistent than that, the Government are making the threshold less persistent whereas the intention is to make it more persistent.

My amendments are probing. Given current police practice, on what basis do the Government think, if they do, that this will raise the threshold to ensure that those who are loitering are not arrested, sent through the criminal justice system and fined—thus, forcing them to work again to pay the fine—and not brought before the courts more frequently or at a lower threshold?

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

Amendments 19 to 22 would remove the elements of the clause that amend the offence of loitering or soliciting for the purposes of prostitution contrary to section 1 of the Street Offences Act 1959 to require a person to act persistently before an offence has been committed. Members of the Committee will be aware that clause 15 also removes the stigmatising term “common prostitute” from legislation, and I have noted the wide consensus for that approach.

It is important that, by removing that term, the Bill does not have the intended effect of allowing police to arrest those involved in street prostitution without having to establish an element of persistence that is implied by the term “common”. I shall refer to current police practice, because it is the answer to the question asked by the hon. Member for Bury St. Edmunds. The current practice of all police forces in England and Wales is to issue non-statutory prostitutes’ cautions to people caught loitering on two occasions before charging them with an offence. That cautioning process is used to establish that a person is a common prostitute. Once the term is removed from the legislation, the need to prove persistency is required to ensure that that current practice continues.

We recognise that criminal justice interventions are sometimes necessary for those involved in prostitution, but I reiterate that they should be a last resort. The requirement for a person to act persistently before an offence is committed provides a vital number of opportunities for engagement with services that can offer support and help them to find a route out.

Amendments 246 and 247, tabled by the hon. Member for Oxford, West and Abingdon, recognise the need for a requirement of persistence, but would define “persistently” as three or more occasions in one year, rather than as two or more occasions in three months. The definition of two or more occasions in three months is much more in line with current police practice.

The aim of the hon. Gentleman’s definition appears to be to ensure that the offence of loitering or soliciting is used against people involved in street prostitution on a relatively long-term basis by providing that persons would have to be apprehended by police on more occasions but over a longer period. However, it would not necessarily cover what we regard as persistent behaviour, or what the police currently consider persistent in practice. The suggested definition would not prevent the offence of loitering or soliciting from being used against people found to be involved in street prostitution on a daily basis, for example. In that, it is similar in effect to the definition in clause 15.

Unlike the current definition, however, that proposed by amendments 246 and 247 would allow the offence to be used against those who became involved in prostitution intermittently over a period. The hon. Gentleman asked for scenarios earlier, so here is a scenario involving an offence being used against a person found loitering or soliciting on single occasions in February, June and December in one year. His definition would capture such practice; ours would not.

The definition in the hon. Gentleman’s amendments could be used more easily against those who sought to leave prostitution but were forced back into it intermittently as a result of circumstances. It could undermine the primarily rehabilitative aim that underpins the current police approach, and that advocated by the co-ordinated prostitution strategy, of using this offence as a last resort. That is reflected in the relatively low number of prosecutions.

Requiring the prostitute to be found loitering or soliciting on three occasions would also prevent earlier intervention where appropriate. We recognise, however, that people will have different views on what counts as persistence, although we believe that our line is clear, defensible and in line with current practice. The term “persistently”, as currently defined, is vital to ensuring that the offence is aimed at those who are genuinely persistent, and we do not, therefore, wish to remove it by accepting amendment 19, or to alter the definition by accepting amendments 246 and 247.

For the same reasons, we do not wish to accept amendments 20 and 22, which would remove provisions that set out how “persistently” is defined and thereby help to ensure a consistent approach to policing the offence. With those comments, I ask for the amendment to be withdrawn.

Amendment, by leave, withdrawn.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I beg to move amendment 21, in clause 15, page 14, line 37, leave out subsection (4).

This is a probing amendment. Subsection (4) omits section 2 of the Street Offences Act 1959, which provides a mechanism whereby someone in receipt of a caution for loitering or soliciting can apply to the court to have it overturned. By tabling the amendment, which would delete the subsection, we seek to understand the reasons for its inclusion in the Bill, because the provision provides for the caution to be overturned by application to the magistrates court. The subsection may be a tidying-up exercise, involving a throwback to the arrangements whereby cautions were not necessarily considered to have been spent under the Rehabilitation of Offenders Act 1974. Substantively, therefore, the subsection may simply be technical, but it is still somewhat unclear to us what the Government propose. Therefore, amendment 21 was tabled to understand more clearly their intentions and whether the subsection’s retention is appropriate.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

The short answer is that it is a tidying-up exercise. Amendment 21 would have the effect of maintaining section 2 of the 1959 Act, which allows a person cautioned for loitering or soliciting to apply to a magistrates court to have the caution removed from  the police record. The reality is that that section has fallen into disuse and in our view no longer serves a useful purpose. A formal caution can be imposed only if the offender admits their guilt. If not, they can go to court where the prosecution has to prove the offence beyond reasonable doubt. We therefore conclude that there are sufficient safeguards in the process to ensure that formal cautions will not be wrongly given, and therefore there is no need to retain section 2, which is not used in practice in any event. I understand the hon. Gentleman’s concern about removing it, but I hope that he understands the reason why and can withdraw his amendment.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

On the basis of the Minister’s assurances, I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Evan Harris Evan Harris Shadow Science Minister

The stand-part debate gives us an opportunity to discuss the way the clause deals with the criminalisation of women who are loitering on the street for the purposes of prostitution, and how it essentially criminalises street prostitution and the women involved in it. We have an opportunity to examine to what extent the Government considered other approaches when thinking about reforming prostitution laws.

I think we established, although I did not get an answer to my question on the three occasions that I asked it, that there has been no formal consultation on any of the proposals, certainly not the clause 13 offence. I do not recall the Government in a formal consultation asking for opinions on whether prostitution should continue to be criminalised in this way. I invite the Committee to consider the argument that more public policy aims can be achieved by not criminalising the women who are engaged in prostitution. One can control it better, protect women better, and ensure that their health and safety is improved. All that can be done without increasing the demand for prostitution, and without increasing demand for the prostitution that involves women who are trafficked and controlled for gain, which is at the abusive and unacceptable end of the spectrum, as we discussed previously.

The problem with the clause is the absence of proper efforts to give women on the street ways out of prostitution, and the inadequate resources. I think the Minister accepted that when he said that there are “resource issues”, which is a phrase that we all use. Criminalising women drives them more into prostitution and further away from other options, even though the intention may be to protect them.

There is widespread support for ensuring that it is pimps and traffickers who are criminalised and not the women, whether the women are freely consenting to participate in the sex industry or are not consenting and are themselves exploited. The clause essentially maintains the status quo by criminalising women. One could argue that it would be appropriate if there were a properly funded and effective way of helping women to get out of prostitution and to treat their drug problems, and establishing why they are in prostitution in the first place. However, that does not exist in this country and there has been no co-ordinated effort by the Government properly to fund charities and other bodies to go about  this work. There are the occasional sex projects, but a massive expansion is needed if there is to be any balanced policy here. It is not balanced at the moment, so what clause 15 seeks to maintain will have side effects.

I draw the Committee’s attention to a letter that I believe we all received, as it was addressed to our co-Chairman, Sir Nicholas, and copied to the Committee. It is from Tim Barnett, the Member of Parliament responsible for decriminalisation in New Zealand, and it says, essentially, that we should not pass measures such as clause 15, and section 1 of the 1959 Act that it amends and maintains. He gives several arguments why the approach that New Zealand took, which was to use legislation like clause 15 to decriminalise, rather than criminalise the women, is effective. His argument, which I have not heard argued against effectively, is that

“prostitution is inevitable and that no country has succeeded in legislating or policing it out of existence.”

He accepts that some argue its removal was achieved in China under the Red Guard and Afghanistan under the Taliban, but he argues, as do I, that neither of those are particularly helpful precedents, even with the most right-wing Home Secretaries of either Conservative party that we are inflicted with. [Interruption.] I am joking—I do not want to antagonise the Committee. The Government cannot properly say that clause 15 and the other measures will get rid of prostitution. The question is, therefore, what is the best way of tackling the problems associated with prostitution and protecting women?

Tim Barnett goes on to point out that the tangible harms associated with prostitution that we all accept, including unsafe sex, coercion of people, trafficking, violence by clients and pimps, drug use, and offensive signage, are all offences under the current law, so we do not need a separate prostitution law.

The third point he makes is that the people most likely to be damaged by prostitution in a criminalised environment are the sex workers themselves. That is the view of sex workers. I have not met a sex worker—I have met several during the deliberations of the Committee—who supports their criminalisation. Whatever their view on the control of prostitution by pimps and traffickers, or on the strict liability offence that we have just discussed, none of them think that they are helped by their activities being criminalised because it drives them further from the police. It inherently makes women on the street more unsafe if their activities are criminalised because a barrier is put between them and the law enforcement agencies, which might protect them from abuse by clients or pimps.

He also makes the point that the criminalisation of prostitution places responsibility on the police to enforce the law and takes responsibility away from other agencies who should have an interest. That is an entirely unsatisfactory way of dealing with the harms associated with prostitution. The criminal justice system directed against women, as clause 15 continues to allow, is the wrong way to tackle the harms associated with prostitution.

I believe that the hon. Member for Stourbridge asserted that she had heard an opinion that the New Zealand system does not work well. I shall give her the opportunity  to intervene in a moment. Everyone is entitled to their opinion and to think that the policy in this country is wrong, which she will agree with. However, weight has to be given to the parliamentarians who introduced the measure and the fact that they have a proper review system built into their legislation.

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge 12:00 pm, 10th February 2009

The hon. Gentleman refers to the New Zealand example and the legislation, which is interesting and relevant. However, the evidence—or opinions—that I referred to earlier from Debbie Baker, stated that after five years of decriminalisation

“it hasn't really made a difference to the average girl out on the street, except there is more competition and the prices have gone down. Girls are working longer and harder and taking more risks to get a job, they aren't really checking out their clients.”

In addition, research by Melissa Farley in San Francisco shows that research does not stop the violence, abuse and stigma built into prostitution, and that it has increased dramatically in New Zealand since decriminalisation. Street prostitution has increased by 200 to 400 per cent. in Auckland alone. That is evidence rather than opinion.

Photo of Hugh Bayley Hugh Bayley NATO Parliamentary Assembly UK Delegation

Order. Interventions ought to be fairly short.

Photo of Evan Harris Evan Harris Shadow Science Minister

It is clearly opinion. What elevates opinion to the level of evidence is a moot point, but what helps is that it is public. [Interruption.] The Minister for Security, Counter-Terrorism, Crime and Policing says, “It depends whether you agree with it.” Sadly, that is the approach often taken. I was about to say how the matter is dealt with in academia. I do not claim to be an expert on academia or this area of it, but I think that there is a separate way of analysing it. [Interruption.] As he says, the Minister was speaking in jest. It was funny.

Photo of Paul Holmes Paul Holmes Liberal Democrat, Chesterfield

We have heard the opinion that violence in New Zealand has increased in the five years since decriminalisation, but in a five-year review published in June last year, the New Zealand Government concluded that there had been no increase in prostitution and that women were now more able to report violence. The Government’s review was overwhelmingly positive, saying that five years of decriminalisation had worked to improve conditions for sex workers.

Photo of Evan Harris Evan Harris Shadow Science Minister

That is helpful, and it is part of my reply to the hon. Lady. This is an important debate.

Let us deal first with the question of opinion versus evidence. Everyone is entitled to their opinion, and weight of opinion can be important, but on a question of fact and whether intervention A causes outcome B, the ideal is to have a properly designed study. That is difficult on this subject. I suppose that New Zealand could run trials where the law changed on the north island but not the south island, but it chose not to.

In the absence of a controlled trial, one must do what one can with outcomes. However, what one must do in order for opinion to be more helpfully considered as good evidence rather than simply a submission is say at the outset, “These are the outcomes that we’re concerned about. These are the outcomes, at the outset, that we’re going to measure. We’re not going to decide retrospectively  what the baselines were when and what particular issues we’ll measure. This is how we’re going to measure them, and this is how we’re going to do the review. The review is going to be organised with clear terms of reference. It’s going to engage a wide range of pre-existing opinion and expertise. It’s going to have an external stakeholder group to check that it’s not getting carried away internally, and it’s going to publish its findings so that they can be criticised and debated by other academics or people with contrary opinions.”

That is what New Zealand did in its five-year review, coming up with the conclusions that my hon. Friend cited. With great respect to the hon. Lady, simply quoting two people who disagree with the policy is in no way a match for a Government-organised review that considered independent advice and evidence, used predetermined outcome measures and carefully measured the outcomes.

Photo of Lynda Waltho Lynda Waltho Labour, Stourbridge

The hon. Gentleman refers to my comments as opinions. In one instance, I might agree. However, I also cited research. The research by Melissa Farley to which I referred draws attention to the New Zealand prostitution review committee, which stated that street prostitution in Auckland more than doubled in just one year, 2006-07. That is not opinion; it is fact.

Photo of Evan Harris Evan Harris Shadow Science Minister

So then we come to another issue. Are assertions of figures and findings facts? If the hon. Lady remembers the debates in the House about scientific matters and the Human Fertilisation and Embryology Bill, during which we were on the same side, she will recall that facts and figures were displayed by all and sundry. In such circumstances, all that one can do is look at where the figures were published and analyse whether they are a fair statement.

One also must analyse if it is the right outcome measure, to determine if we want to reduce street prostitution per se—I do not accept that the hon. Lady’s figures are valid, but let us say that they are—or if we want to reduce harm. So, if we had a scenario where the number of attacks on women was reduced to a tenth of the original figure but the number of women engaged in street prostitution doubled, clearly the outcome measure that the hon. Lady is concerned about is harm to women and not the number of women in the industry.

That is why I stressed the importance at the beginning of recognising the right outcome measure. Otherwise, one might find oneself in a situation where one says, “Yes, it’s great, we’ve halved the number of women in street prostitution by our policy,” which might be the consequence of clause 15 and the amended section 1 of the Street Offences Act 1959, but we have quadrupled the amount of risk that those women face. I am sure that the hon. Lady would not want that situation to result.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

I imagine that it would be almost impossible to evaluate the number of women working in prostitution until there is legalisation or licensing of brothels, because most of those women may have been working underground or in indoor situations and it would be the legalisation that brought them out into the streets. So it would be almost impossible to say that figures have doubled if one had no idea how to quantify the previous figure.

Photo of Evan Harris Evan Harris Shadow Science Minister

Certainly there is an issue about identifying the baseline. However, street prostitution, even when it is unlawful, can be counted by census, because it is on the street and outreach workers can establish the number of women involved, usually by judging the distance between women on the streets where prostitution happens. Clearly, if an activity is decriminalised, it becomes more observable, but the purpose of decriminalisation is obviously not to hide away that activity even more, nor is it necessarily to reduce the number of women involved; it is to reduce the harm. That is why I want to ask the Minister, when he responds to this debate, if the aim of his policy is to reduce the amount of prostitution or if it is specifically to reduce the amount of abusive prostitution and/or to reduce the harm, including forms of harm other than abusive prostitution, associated with this problem.

I have set out why the New Zealand system is a sensible one for the Government to have considered and even to have consulted on. I have also set out why I am satisfied that the review that the New Zealand Government published, which was comprehensive and which was not criticised by our Government for its accuracy or impact, is the way forward.

That brings me back to the point that I raised several times in one of our previous debates. It is that the Government, in order to justify their position, should first consult on their proposals, and if they were going to conduct prostitution law reform they might have consulted relevant groups to find out their views. Furthermore, if the Government were going to review the evidence, which they claim to have done, they must publish that review. Otherwise it is an alleged opinion or conclusion of a review of the published evidence and we are not allowed or able to comment on it, nor are other academics allowed to criticise it or to express support for it. In the absence of a published review, all we can see is that the Government, in this clause and in other clauses, are taking an approach that cannot be said to be evidence-based; indeed, it could be said to be evidence-free.

Photo of James Brokenshire James Brokenshire Shadow Minister (Home Affairs)

I rise briefly to make some general comments about clause 15. I hear and note the points made by the hon. Member for Oxford, West and Abingdon, along with some of the facts, evidence, opinion and possible supposition that he has put forward. However, considering whether or not we should make a significant change to legalise the arrangements for street prostitution would take a significant weight of evidence, persuasion and validation. Although the points that he has made are interesting, I for one am not convinced to take that step in the future, based on what I have heard thus far, although I respect the points that he has made and put on the record.

I have some questions for the Minister about the operation of the clause. Based on what the Minister said in his previous debate on some of the amendments, I understand that the substance of the clause is to regularise the law by deleting the term “common prostitute”. “Persistent” being on two or more occasions is, in many regards, a reflection of what the common law is at the moment when seeking to define a “common prostitute” for the purpose of the events.

Could the Minister confirm what the arrangements are, and would be moving forward, for recording warnings given to someone found to be loitering or soliciting? Would the recording be at a local level or on the police national computer? Where are the records kept? In other words, is the focus and intention of the clause very much localised, rather than in a police force area or crossing police force boundaries, and therefore dependent on local intelligence, with the knowledge of local community officers or local police officers about whether someone has been acting “persistently”—on two or more occasions—triggering the offence? Or, is the intention that the clause should be more wide ranging, perhaps necessitating a more formal recording of those warnings given to test whether there has been an offence in those circumstances?

Could the Minister give some indication about what guidance or advice is given to police officers concerning a first occasion? That is, the first time that someone is found to be soliciting in a particular location or loitering for the purposes of prostitution. As many have said in Committee, there is a need to consider other issues—addiction, mental health, the potential risk of trafficking. Therefore, what inquiries are made by police officers on that first occasion? I hope that they do not simply move someone away, cautioning them on that first occasion without further investigation or consideration. That would not necessarily follow through on some of the substantive problems and issues that might arise.

A criminal justice approach may be appropriate—I recognise that, and the proposed amendments simply reflect the existing law—but so is a better understanding of the interventions available. The reliance on the criminal justice system may not be necessary. Various factors may be picked up at the earlier stage, to signpost people for assistance and prevent an offence from occurring. Therefore, in the context of considering the clause, it would be helpful to get from the Minister a better understanding of current practice and whether ACPO or the Home Office intend to provide any further guidance, revised and updated, in connection with the operation of the clause and the new offence, albeit that they reflect existing law and practice and the common law definitions alluded to by the Minister earlier.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 12:15 pm, 10th February 2009

I shall respond first to the points raised in our discussion. The hon. Member for Oxford, West and Abingdon asked what is the purpose of the measure: to end prostitution or to end harm to prostitutes? Its purpose is to reduce demand, particularly for prostitutes who are controlled for gain and those who are trafficked. It follows logically that the ambition must be to reduce the number of such prostitutes and, globally, the number of women involved in prostitution. It is not a choice between the aims of reducing prostitution or of reducing harm, because they are two sides of the same coin. We disagree, however—I suspect fairly fundamentally—on whether the criminal justice system should have a significant, or any, part in that process.

The hon. Gentleman asked again about the publication of evidence. The clause 15 measures come not from the demand review, but from the prosecution strategy, which was subject to full consultation and considered a range of published research. The strategy was published in January 2006.

The hon. Gentleman made a number of points about criminalising women and what the effect of the measure would be in that respect. Again I point out that the intention is not to criminalise women. At every stage of the process, including the process that I shall describe in my remarks about how the provision will work, we seek to give women the advice and support that they need to get out of prostitution. However, they sometimes resist so-called “tough love” and other forms of intervention, and have to be gently pushed out of prostitution, encouraged to leave, or even coerced a little. They need a framework that will give them every opportunity to leave prostitution, but, if criminal justice intervention helps to focus minds and support and to get them into the right place, we believe that such measures are right. It is not a question of criminalising for its own sake; it is nothing more than using the criminal justice system as a last resort. For some women—perhaps those who are the most damaged, live the most chaotic lives and have found themselves in prostitution in terrible circumstances—it may be necessary to use the measures under discussion.

Let me introduce two other points that the hon. Gentleman did not mention. We are talking about one of the riskiest forms of prostitution, and it is not enough to say that women need to be given just the freedom of choice; we need to do everything we can to give them the evidence, the information and the support they need to make the choice to leave prostitution, which many prostitutes tell us they would prefer to do, because they do not want to live in such circumstances. Another reason why we think that the criminal justice system may have a part to play in some situations is that these women cannot act with impunity: they cause a nuisance and create concern in local communities, so the community has a right to expect that, if they have been given every opportunity to leave prostitution, they will be gently pushed in that direction.

Another point is that, if such a situation arose in my constituency and we wanted these measures to have an effect, not many of my constituents who came to complain would ask, “How does academia regard this issue? Has this been tested? Have we been able to challenge this? Which bits of evidence have you actually used to frame this measure?” We have to get real in this argument. I do not dispute the need for an evidence-based approach when we make public policy; on the contrary, I have gone out of my way to point out that that is what we have attempted to do and, I believe, succeeded in doing. But we want the measure to have a realistic and practical effect, and that is not a situation wherein academia can hold sway, however important we regard the advice that we take to be.

Photo of Evan Harris Evan Harris Shadow Science Minister

We need only think of Ipswich to recognise an important question that needs to be considered: what policies make the lives of women in that situation safer? Given that we are talking about sometimes life-or-death situations, it is important to bring academic evidence to bear. In my opinion, what makes the women safer is that, first, there are well funded exit strategies for them; and, secondly, that we do not force them into more dark, dangerous and isolated places if at all possible, while recognising the balance that must be struck regarding nuisance. Simply to say that a community wants prostitution out of the way—in a wood, for example, where women  are at far more risk—is not the right approach. The problem is multi-faceted. I hope that the Minister recognises that.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

That is precisely what the Government are doing by introducing these measures. The hon. Gentleman is taking us back to a debate about either/or, but in our view it is not a question of either/or. We need to put in place the right measures to hold accountable for their actions not only men but, if necessary, prostitutes, and to push them towards the support that many of them tell us they want and need. They are not necessarily the sort of people who would arrive at that conclusion very early in the process.

It is not a matter of just using the criminal law and not having in place the measures that the hon. Gentleman is talking about. I repeat for the record that we accept that there have to be exit strategies. That is the reality of much of the work being done now, which we want to extend. The implication of having those exit strategies is that women need to be informed but they might also need, in some circumstances, to be pushed towards making those choices; that might be where the criminal justice system has a part to play. I have accepted that there are resource issues and that it is important that we have proper local services that are properly resourced. We are currently considering what other resource implications there might be. My final plea is that people should not go away thinking that this is either/or matter, because it is not.

Photo of Sally Keeble Sally Keeble Labour, Northampton North

May I give my hon. Friend an example that supports his case? There is a young girl in Northampton whom I have met several times; she comes from a well-to-do family, but she got involved in drugs and became a prostitute, and she has been sleeping in a garage. She is lovely girl, but she has had a rough time. Innumerable efforts have been made to help her, but however much people try to help, she keeps slipping back to drugs and prostitution. The bottom line is that there are public nuisance issues and that other offences are being caused. Much though society has tried to help her, it also has an obligation to protect itself and others who might be affected by her behaviour. My hon. Friend is right to say that there has to be a carrot and stick approach.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I am grateful for that example, which illustrates the point very well. We have to consider the practical effects of the measures in our constituencies and across our country. My hon. Friend has provided a very good example.

Photo of Roberta Blackman-Woods Roberta Blackman-Woods Labour, City of Durham

We must also consider any unintended consequences. The New Zealand review picked up on the fact that decriminalisation led to the spread of prostitution into residential areas. That is a growing and significant problem in New Zealand. Our aim is to address such problems better in the Bill. We also know from the experience in Amsterdam that many women are being trafficked there specifically for the sex industry, so that is another unintended consequence of decriminalisation. It is not as straightforward as the hon. Member for Oxford, West and Abingdon suggests.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I am grateful to my hon. Friend for providing not only words of wisdom, but practical advice on the lessons that we can learn. Her point illustrates the importance of looking at what is happening in other countries and how they are tackling the problem. We can learn lessons from their experiences without necessarily following the routes that they have chosen.

The clause amends the offence of loitering or soliciting for the purpose of prostitution, as set out in section 1 of the Street Offences Act 1959. It removes the term “common prostitute”, as I have said, and requires that a person has acted “persistently” before an offence is committed. That reflects current police practice to arrest a person for the offence only if he or she has been cautioned on at least two previous occasions, or has been convicted of the offence.

The Government’s co-ordinated prostitution strategy, which was published in January 2006 following extensive public consultation, signalled our intention to make these changes. The measures were included in the Bill that became the Criminal Justice and Immigration Act 2008, but had to be withdrawn due to time pressure. We made it clear then that we would reintroduce them at the earliest opportunity. Perhaps the only area of unanimity—at least there was one—was support for removal of the term “common prostitute” from the statute, as it is outdated and offensive. The clause therefore removes the term.

The clause also inserts the word “persistently” so that an offence will now be committed by

“a person who persistently loiters or solicits in a street or public place for the purpose of prostitution”, as there are better ways of dealing those who are apprehended only once. Persistence is defined as conduct that

“takes place on two or more occasions in any period of three months”.

In saying that the process we are seeking to introduce is in line with current practice, the hon. Member for Hornchurch asked what currently happens on the ground. The truthful answer is that it varies from one area to another. In some instances, police officers approach prostitutes and bring to their attention what they believe is happening; they may also offer them advice and guidance. They might proceed to a prostitute’s caution in the first instance, but in reality that might not happen at that early stage. Practice varies across the country, but there is good practice, and the purpose of the proposal is to extend that good practice. We are working with ACPO on proposals to ensure that there is consistency across the country, based on what works. I hope that I have explained that point.

The hon. Gentleman asked how warnings will be monitored and the information kept. We regard this as a local matter, although not exclusively. We expect prostitutes to be well known to the police in the area, so it is not a question of looking to a national system. The matter is best addressed locally and that is how we will proceed.

Prosecution of the offence currently relies on the identification of the offender as a common prostitute. As I said, the practice of all police forces is to use a non-statutory prostitute’s caution to demonstrate that a  person is a common prostitute. Offenders are not prosecuted until at least two prostitute’s cautions have been given and witnessed. The caution is not a formal prerequisite of conviction, but it has become the method by which evidence is adduced to prove that an individual charged for the first time is a common prostitute. That generally takes the form of a brief administrative process, during which it will be recorded that two police officers have witnessed the individual loitering or soliciting for the purposes of prostitution. The prostitute’s caution differs from a statutory caution in that it does not require an admission of guilt. That practice will continue to be used to prove that conduct has taken place on two or more occasions in any three-month period.

Other forms of support may be in place for women seeking to leave prostitution. As well as establishing persistence, the cautioning process provides an opportunity to direct the individual to services that can offer them support to address the problems that have led them into prostitution and to help them to find a route out. That is not a new approach. It was set out in the original Home Office circular issued in 1959 that was sent to police. Although the language of that circular is somewhat archaic, the welfare approach remains valid. With increasing partnership between the police and voluntary organisations providing support to those involved in prostitution encouraged by the strategy, there will be more opportunity for the police to provide access to such support to good effect. As I said, we are working with ACPO on that policy.

The clause will repeal section 2 of the 1959 Act, which allows a person cautioned for loitering or soliciting to apply to a magistrates court to have the caution removed from the police record. As I said, that section has fallen into disuse and no longer serves a useful purpose.

Photo of Evan Harris Evan Harris Shadow Science Minister 12:30 pm, 10th February 2009

In defending the clause and section 1 of the 1959 Act, has the Minister taken into account the potential for an increase in street prostitution because of the clampdown on brothels envisaged in other parts of the Bill, such as clause 13 and the proposals for brothel closure orders? Does the Minister accept that if brothels are closed, whatever the motive for doing so, there is likely to be an increase in street prostitution unless prostitution suddenly ceases to be an option? That will cause an increase in risk and an increased burden on the policing of the offence.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

I will certainly not say that I accept that as a likely consequence. I think that we should have this debate when discussing closure orders. The hon. Gentleman seems to assume that the police are to be given carte blanche powers to close any brothel; he forgets that the measure is a targeted approach. We want to close establishments that contain women—they are predominantly women—who are being controlled for gain and/or have been trafficked. Why would such women want to remain in prostitution and why would they want to move from brothels to the streets? We are trying to tackle the problem at source. Some of the establishments that the hon. Gentleman talks of are holding and exploiting women, and that is what we propose to clamp down on. It is not the case that those women will necessarily find themselves on the streets.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

The objectives are laudable, but on 18 December a raid took place on a brothel where nobody had been trafficked and no one was being controlled for gain, yet the police threatened to charge the receptionist with controlling for gain. What measures will the Minister put in place to ensure that the police bear the clause’s objectives in mind and do not use it to close down every brothel they know to be in existence?

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction)

We are working closely with the police to simplify what can be difficult judgments and to ensure that the legislation works correctly. The orders under discussion were not in place for the December raid the hon. Lady mentions. The police presumably had some evidence on which to act. When we discussed amendments to clause 13, we debated the issue of what other people in a brothel might be doing and whether that can be construed as control for gain. During that discussion, I set out very clearly that we do not believe the definition includes someone who is, for example, keeping and organising a woman’s diary, or someone who is at the brothel specifically to keep the women safe.

My answer to the specific question I was asked about madams is that it would depend on their actual role. If a madam’s sole purpose is to keep the women safe and there is no evidence that she is controlling them for gain in the way set out by the Act and by case law—the court is clear on the matter—she would not fall foul of the law. However, if there is evidence that she is trafficking, exploiting or clearly controlling women for gain, there can be no excuse for allowing her brothel to continue. There is no simple answer. The hon. Lady says that the aims are laudable, but we have to make the measures workable too. We believe that the measures will have the desired effect.

We are confident that continuing the police practice of issuing prostitutes’ cautions provides adequate opportunity for an individual to protest that they were not loitering or soliciting. If there is real doubt about whether an individual is soliciting, charges are unlikely to be brought. In the event of a prosecution, persistence will need to be proved, and at that stage the man or woman will be able to explain what they were doing when said by the police to have been soliciting.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill