Schedule 2

– in a Public Bill Committee at 5:00 pm on 10th February 2009.

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Closure orders

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 251, in schedule 2, page 110, leave out lines 4 to 7.

I do not have the skills of the hon. Member for Bury St. Edmunds, but will you, Sir Nicholas, take as read a compliment from me on your voice? We can then get on with it, because I think that we are all hearing you very well.

Photo of Evan Harris Evan Harris Shadow Science Minister

I will whip through the amendment because we have already touched on it perforce. It is about the question of the extent to which the power will be used. The Minister said that it will not be used indiscriminately, and I am encouraged by that. I want to put it on the record that he said some important things, and indeed, the measure contains some important things regarding my concerns.

The amendment, which is probing, would remove the provisions whereby the closure orders apply to places where prostitution is believed to be, or is, controlled for gain, and would therefore restrict them to matters relating to child prostitution and pornography. The Minister said that there is guidance on how the closure orders will be used. That is important because he could not yet commit to guidance in respect of issues relating to clause 13, which also impact on what we are discussing.

Is it possible for us in the Commons to see a draft copy of the guidance, so that we know what we are voting for? That theme has come around many times—for example, in the Criminal Justice and Immigration Act 2008. It is hard to argue that draft guidance cannot be made available to us as it is years since the provision was first outlined. It is reasonable that we should be able to see what we are voting on. I hope that the Minister will consider enabling that, as a lot will depend on the guidance.

The Minister said that it is important that this power is not used indiscriminately. The point of my probing amendment is to press the Government again on three points that relate to that non-indiscriminate use. I agree with him that if it is not used indiscriminately and is used carefully, the power could be useful in tackling what it is directed against.

The first question is on the definition of “controlling ... for gain” in the 2003 Act. We have debated the place of madams over a couple of days. The Minister uses a form of words that does not wholly satisfy me, but he said that he would come back to us. It is clear that a madam may sometimes control for gain in the sense that she organises prostitutes and takes a profit from the exercise. However, the prostitutes are not coerced, intimidated or threatened by the madam and are willing to work under that procedure for their own safety and for a sense of fairness because everyone gets a share. It is not clear that madams will not become the issue. This point goes back to the definition in the 2003 Act and the question of Massey, which I will not rehearse. However, Massey is not and must not be the last word on the issue.

Secondly, the explanatory notes on the 2003 Act give an example of the sort of behaviour that might be caught by the offence of controlling prostitutes for gain under section 53. This relates to the 2003 Act and not to the restatement of the term “controlled for gain” in clause 13. The section in question is covered by one of the paragraphs that I wish to remove with the amendment. I am grateful to the UK Network of Sex Work Projects for raising the matter in its briefing. An example of behaviour that might be caught by the offence given in the explanatory memorandum is

“where A requires or directs B to charge a certain price or to use a particular hotel for [their] sexual services [...] and B complies with this request or direction”.

To me, that could be what a madam does. A madam might say, “You go to this room and do this.” Indeed, a madam takes a slice of the income as profit. The UK Network of Sex Work Projects points out:

“This definition of ‘control’ would apply to numerous responsible and non-exploitative relationships in many types of sex work.”

There is a discrepancy between the explanatory notes, which give an indication of the Government’s intention behind “controlling ... for gain” in the 2003 Act, and what the Minister has rightly said about the need to use the power with discrimination and in a way that will not catch the madam arrangement that women use for their safety. The point was made earlier that women should be encouraged to work in safe environments if they are in prostitution—it is not the Government’s aim to end prostitution. It is important to note that if brothels  close in this way, it may simply lead to such women being taken further from the public glare and to less safe locations, particularly if there is no prosecution to trap the traffickers or exploiters and the women remain in thrall to them. It may lead to prostitutes working in their own homes or the homes of clients, which are both less safe.

Thirdly, although the Minister claims that he hopes that use of this provision will not be indiscriminate, I understand that when there are complaints, police are likely to be directed to go to such places to invoke a closure order. There might be complaints from neighbours in middle-class areas. I recognise that that is a particular problem, not least in my own constituency. It relates to men going in and out. It does not relate, in my experience and that of the police I have spoken to, to reports of screaming from inside these establishments. I do not see how the Minister can be certain that the police are not simply going to respond to complaints that there is a brothel, as opposed to complaints that there is exploitation, force, coercion, and intimidation being used against these women.

The amendment clearly does not do the job I am seeking to do. I have made it clear that it is a probing amendment, but I would be grateful if the Minister addressed the points I have raised in respect of it.

Mr. Campbellrose—[Interruption.]

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

I am a little concerned that the hon. Member for Oxford, West and Abingdon appears to hear me say things that I am not sure I say. We had a point earlier about police priorities. I hope that I did not say that we have the guidance in place now for the use of closure orders. I think that what I said was that we are working, and we will work, with the police to ensure that they are proportionate and targeted and do the job that we want. I am not able to furnish him with even a draft copy of that guidance at this particular point.

In a way, the amendment takes us back to clause 13 because it revolves around control for gain. I come back to the central argument, which is that we believe that “Controlling prostitution for gain”, as set out in the 2003 Act, and then further set out through case law Massey, is clear. It is clear what the term means and, therefore, how this legislation can be applied. The definition is a dictionary one—an ordinary meaning of “controlled for gain”. I can therefore only reiterate that, in our view, this does not include the sorts of scenarios that the hon. Member for Oxford, West and Abingdon is setting out where, for example, a brothel is run by a maid or a madam. However, it would depend on the circumstances and what the maid or madam were doing. If they were simply making cups of tea, keeping the diary and helping to keep the women safe, no one could think that that was an ordinary meaning of the term “controlled for gain”. If, however, they were using physical force, they were exploiting a prostitute’s drug habit, or they were threatening or coercing them, they would fall foul of the legislation.

Photo of Evan Harris Evan Harris Shadow Science Minister

First, can I say that I was not accusing the Minister of having the guidance and not releasing it. I was making the point that there ought to be draft guidance by now and, given how long it will take for the Bill to go through the House, there may be an opportunity to bring that forward.

On the point that the Minister has just made, does he accept that there is a middle ground between making cups of tea and intimidating and using force against someone and that that is co-ordinating the activities of the prostitutes, with their agreement, and taking a slice of the profits?

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

I accept that there will be as many examples as there are cases which are being examined. There will be a variety of scenarios. In some instances it will be absolutely clear what “controlled for gain” means in these circumstances and therefore whether these orders can be applied; in other instances it will be clear that they cannot. However, given the legislative history of “controlled for gain”, the experience of the courts and of the police in these matters, they are quite capable of making a judgment about what is proportionate and what is targeted. These closure orders will not be used in the scenario that the hon. Gentleman is talking about. If there is a brothel on a middle-class residential street where trafficked women are being exploited, and where there is child pornography and other such horrors, I would expect these orders to be used. The hon. Gentleman suggests that they will be used almost on the police’s whim, but that is not the intention, and I do not believe that it will be the case. I do not think, therefore, that the amendment is necessary.

Photo of Nadine Dorries Nadine Dorries Conservative, Mid Bedfordshire

Will the guidelines contain provisions to prevent the police from using the Bill to close down any brothel that they wish? The Minister says that it will not be so used, but will provisions be put in place to guarantee that?

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

We will return to that point when we discuss the relevant schedule further. All I can say to the hon. Lady is that the police will need a reason to seek to use the orders, and evidence will be required—they will not be able to use them simply as they wish. Clear guidelines on when an order would be appropriate will be produced.

As I have tried to explain, amendment 251 returns us to the debate about “controlled for gain”. The hon. Member for Oxford, West and Abingdon is not convinced that we got clause 13 right, and I imagine that he does not think that we have got the measure right here. However, removing the two offences before us, as the amendment would do, would be inappropriate. The proposed measure is important, so I ask him to withdraw his amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

I shall withdraw the amendment in a moment. The Committee has been a success: the Minister has stated what will not be included in the definition of “controlled for gain”—making cups of tea, reception work, maid services and so on—and what will be covered, including the use of intimidation, violence or force, on which we can agree. However, he has not clarified his view on the key question of whether women working  together in a brothel are liable to fall foul of the “controlled for gain” provision. On that question, Massey is not helpful, because it deals with a boyfriend and alleged pimp, and a drug-addicted prostitute, but not with the madam scenario. I still think that work remains to be done, as I hoped that he had acknowledged earlier.

If it is the Government’s intention, which it must be, to prevent prostitutes from being abused in intimidatory and coercive places, while not banning all prostitution, it must also be their intention to promote, relatively speaking, the organisation and use of prostitutes in brothels in non-exploitative ways. The Government accept that there will always be prostitution, but rightly do not want it to happen in abusive circumstances, so there is a strong argument for licensing, or at least legalising, some brothels to ensure a legal, safe, non-exploitative option. Otherwise, there will always be the danger of serious side effects—[Interruption.] The Minister shakes his head; he does not accept that point. However, having made it, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 69, in schedule 2, page 111, line 24, leave out subsection (8).

Photo of Nicholas Winterton Nicholas Winterton Conservative, Macclesfield

With this it will be convenient to discuss the following: amendment 249, in schedule 2, page 112, line 43, leave out ‘two’ and insert ‘three’.

Amendment 70, in schedule 2, page 113, line 18, leave out subsection (10).

Amendment 250, in schedule 2, page 113, line 21, at end insert—

‘(10A) The third condition is that the court is satisfied that the authorising officer has satisfied himself of the identity of the interested parties and effected service on them.’.

Photo of Evan Harris Evan Harris Shadow Science Minister

These are probing amendments designed to work out whether the provisions are adequate, to attempt to avoid the need for a schedule stand part debate, and to give the Minister a chance, perhaps in a later group, to address some other questions that I would have raised under such a debate. We have spoken widely about this matter, but I would like to raise a couple more questions—if I can find the piece of paper with those questions on, which is always a struggle.

Amendment 69 would delete subsection (8) of proposed new section 136B of the Sexual Offences Act 2003, which states:

“For the purposes of the second condition”— which is that

“the officer has reasonable grounds for believing that the making of a closure order under section 136D is necessary to prevent the premises being used for activities related to one or more specified prostitution or pornography offences”— it

“does not matter whether the officer believes that the offence or offences in question have been committed or that they will be committed (or will be committed unless a closure order is made).”

It seems to me that the threshold is set extremely low. One could argue, as I do through the amendment, that the Government need to justify why they are not requiring  a reasonable belief by the officer. If anything, on first reading, subsections (6) and (8) are contradictory. The officer must have

“reasonable grounds for believing that the making of a closure order...is necessary to prevent the premises being used”, but it does not matter whether the officer believes that the offence or offences have been committed or will be committed. Is the inchoate nature of what is allowed by the inclusion of subsection (8) meaningful? Is it not over-broad?

Amendment 249, with amendments 70 and 250, would insert a new subsection (10)(a) into proposed new section 136D of the 2003 Act, introducing another condition for a closure order to be made. Instead of requiring that a magistrates court sees that two conditions are met, there would be three. The third, which is set out in amendment 250, would be that

“the court is satisfied that the authorising officer has satisfied himself of the identity of the interested parties and effected service on them.”

It is peculiar that there are effectively different provisions for making the closure notice, fulfilling the closure and making the closure order by the court. It is my intention in the amendments to probe the reasons why there is not a like-for-like match.

Amendment 70 would remove subsection (10) of proposed new section 136D, which states:

“For the purposes of the second condition, it does not matter whether the court is satisfied that the offence or offences in question have been committed or that they will be committed...or will be committed”.

Again, that is analogous to the earlier provision whose efficacy I questioned, asking whether it will make it difficult to understand what needs to be fulfilled. My other, related point about the schedule is that under the provisions, the court will not have to be satisfied of the third condition for the making of a closure order: that is, that the local authority has been consulted and the interested parties identified. That relates to my earlier amendment.

There remains a concern that the closure order would have a wider application effect because of the sort of person likely to be affected by it. That includes vulnerable people who might be on the verge of destitution or of being made homeless. There should be a good reason for the closure order to be made. It is disappointing that the Bill does not make it clear that closure orders should be made only as a last resort. Is it the Minister’s understanding that the provision stating that the court must be satisfied that the issue of a closure order is necessary is meant to ensure that it is a last resort in respect of the fate of the women who will be involved?

Proposed new section 136O makes provisions for compensation. The new section suggests that someone could qualify to make an application for compensation for financial loss as long as they have taken “reasonable steps” to prevent the use of the premises for prostitution or pornographic activities. It would be useful, without necessarily setting out a list of reasonable steps, if the Government could specify that. It would be helpful and necessary in the interests of justice to have clarity as to what that would be.

Similarly, what would constitute a “reasonable excuse” under proposed new section 136G(3) for the purposes of a defence to the offence of “remaining on or entering”  premises for which a closure order has been made? Again it would be useful if there could be some indication of what would be considered a reasonable excuse.

Finally, are there circumstances in which the 21-day time limit for an appeal against a closure order may be extended? For example, an individual with an interest in the premises might not discover the existence of the order until after the 21-day period had expired. The Minister may be aware that the same issues were raised, including by the Joint Committee on Human Rights, in respect of antisocial behaviour orders when they were first promoted, or with closure orders in respect of earlier legislation. It would be helpful if the Minister could clarify answers to those questions and address the points made by the amendments in my name.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 5:30 pm, 10th February 2009

Amendments 69 and 70, relating to a closure notice by a constable or a closure order by a court, respectively, would remove subsections (8) and (10) of the proposed new section 136B, which are to be inserted into the Sexual Offences Act 2003 by schedule 2 of the Bill. The subsections are intended to ensure that the premises can be closed when the offences have not yet been committed, as well as when the offences have been committed.

The hon. Gentleman talked about the process and the need to demonstrate reasonableness. The conditions for imposing a closure order or notice focus on the activities forming part of the offence taking place on the premises, rather than on whether all the elements of the offence have yet been committed. An officer may authorise the issue of a closure notice if they have “reasonable grounds” for believing the premises have been used for activities related to one or more specified prostitution or pornography-related offences. An order is necessary to prevent the premises being used for such activities in the future—a court must be satisfied of the same before issuing a closure order.

I understand that the hon. Gentleman is seeking clarification of the circumstances in which orders are being used, to convince him and others that it is a proportionate response and also that there are tests in place before such closure orders can be taken forward. For example, if a premises is being used for controlling prostitutes for gain, it is enough that the officer reasonably believes that the premises are where the sexual services are being provided. It is not necessary for the police to have reasonable grounds to believe that all the elements of the offence of controlling a prostitute for gain have yet been committed, so they will not have to believe or prove that the controllers have yet received a gain from their activities.

We believe that it is necessary to retain the subsections in order to clarify the meaning of the conditions governing the issuing of a closure notice or the making of a closure order. In particular, while recognising the need for safeguards, we also want to make sure that the police have necessary powers in those instances where there is agreement across the Committee that the powers should be used—where they have reasonable grounds for believing, but they are able to respond rapidly. It is an important element that the police can respond rapidly to circumstances in which they reasonably believe that there is cause to do so.

Amendments 249 and 250 would impose an extra condition that must be met before a court makes a  closure order, in that the court has to be satisfied that the police officer responsible for authorising the issue of the closure notice, which must precede an application for a closure order, has satisfied himself of the identity of the interested parties and effected service of the closure notice on them. Under the new provisions, one condition that will have to be met before a police officer, who will not be below the rank of superintendent, can issue a closure notice, is that reasonable steps have been taken to establish the identity of any person who resides on the premises or who has control of, or responsibility for, or an interest in, the premises. The closure notice must then be served on the intended people.

The amendments would impose a condition on courts to ensure that the police have taken the necessary steps to identify people with a relevant interest in the premises, but we believe that it is clearly necessary for the police officer to meet such conditions if the notice is to be served properly. I understand what the hon. Member for Oxford, West and Abingdon is saying, but I hope that we can assure him that the amendment is unnecessary to ensure that the police officer serves the closure notice properly by taking reasonable steps to identify those with a relevant interest in the premises. If the police have not done so, they will have failed to serve the notice properly; if they fail to take reasonable steps, the notice will not have been validly served.

The hon. Gentleman made a couple of other points. First, his point on last resort relates to one I made earlier. We hope that the orders are used proportionately and reasonably, but I hope that last resort is not necessary a long way down the track. The reality is that, however strong the measures, it may be necessary for the police to move quickly. At the same time, the police would nevertheless have to satisfy the court both of the need for the order and of its proportionality.

Secondly, the hon. Gentleman asked why 21 days is regarded as appropriate. I am advised that it is in common usage and that it is understood. Certainly, I would be happy to look at any proposals that he has on the matter, but we believe that 21 days is an appropriate period.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister because he addressed all the points raised in the discussion. On 21 days, my point was not that the period is too short. I was asking whether there were provisions to extend it in specific cases when someone is not aware that a closure order exists and therefore unable to put their case that they had a reasonable excuse to use the premises.

I am grateful that the Minister explained the purpose of the measures to which I drew attention in the amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Evan Harris Evan Harris Shadow Science Minister

I beg to move amendment 71, in schedule 2, page 120, leave out lines 13 to 20.

The amendment would omit proposed new section 136Q from the Sexual Offences Act 2003. The section, which is entitled, “Issue of closure notices by persons other than police officers”, states:

“The Secretary of State may by order amend this Part so as to extend the power to authorise the issue of a closure notice to persons other than members of police forces”, and that an

“order under subsection (1) may make...further amendments of this Part as the Secretary of State thinks appropriate in consequence of the extension of that power to persons other than members of police forces”.

I do not have my note to hand so I would be grateful to know whether any order would be subject to the affirmative or negative resolution—[Interruption.]I do not want to interrupt the important conversation between the Whips, although I understand that it has to take place, and that it is a chore to get up. Will the Minister clarify whether it will be an affirmative power?

Secondly, the closure of premises, which can include family homes, has serious implications for the right to respect for private and family life in the home. Is it not a serious matter if the Government envisage that that could be carried out by people other than trained police officers? The closure of a premises is traditionally a judicial function, and extending it beyond police officers is highly questionable. Given the nature of the legislation, the training required and the understanding that this is part of the criminal justice arm involving uniformed police, those powers should not be hired out to third parties under contract performance targets and the like. I do not know what the Government envisage, but if they have a clear proposal, I hope that it will come forward as primary legislation. For the reasons that I have given, Liberal Democrat members of the Committee are concerned about what the Government propose regarding the secondary legislation envisaged by the provision.

Photo of Alan Campbell Alan Campbell Parliamentary Under-Secretary (Home Office) (Crime Reduction) 5:45 pm, 10th February 2009

This is primarily intended to give the Secretary of State the power to allow local authorities to issue closure notices, as they can already do in relation to premises associated with persistent disorder or nuisance. We have no current intention to extend those powers beyond the police, but it may prove useful to review the situation once the provisions are in operation. We have listened carefully to the points raised by hon. Members. We want to ensure that the legislation works as we intend it to, and that will involve reviewing it—that is not unusual. We may then wish to make other proposals.

In his last point, the hon. Member for Oxford, West and Abingdon said that extending these powers beyond police officers would be a questionable move. If we had proposals to extend the powers beyond police officers, they would have been in the Bill. We have no current intention to do that. If the Secretary of State decides to exercise the power that we are seeking, Parliament will have the opportunity to scrutinise the order that exercises those powers. I confirm that any such order will need to be laid and approved by affirmative resolution in each House. I hope that the hon. Gentleman finds that explanation helpful and feels able to withdraw his amendment.

Photo of Evan Harris Evan Harris Shadow Science Minister

I am grateful to the Minister for his explanation. In fact, his explanation stated that no need for this clause is envisaged at the present time. I am opposed to taking those sorts of powers just because there might be different circumstances in the future, but there is little that I, together with my colleague on the Committee, can do about it as a minority of two. I  know that the House of Lords feels strongly about the taking of such powers and will look closely at the justification and intention given by the Minister in respect of the provisions. If no reason to extend the powers can be envisaged—and there is good reason why they should not be extended—we should not be legislating on the basis of maybes.

Given the point that we have arrived at, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 2 agreed to.