Nadine
Dorries: Does that mean that the guidance will contain
criteria that stipulate that a brothel will be closed down if it is
premises where child pornography or prostitution, trafficking, control
for gain and drug abuse are
happening?
Mr.
Campbell: It will depend on the circumstances of the case,
but the closure orders will be not only targeted, but used
proportionately. In the circumstances where the offences that we are
talking about are prevalent in that premises, I see no reason why the
authorities would not use such orders—it is not defensible for
them not to use them if their use would help to disrupt that form of
criminality, although there must be a process of careful consideration
whether to use such a closure order, because every circumstance will be
different. However,
in the general circumstances that the hon. Lady is talking
about—those things that might be happening in those
premises—I see no reason why the orders would not be used,
because the purpose of the orders is to try to disrupt that particular
activity. With
those remarks, and fearing that I have not convinced everyone but
nevertheless stating the intention of what we are trying to achieve, I
urge that the clause stand part of the
Bill. Question
put and agreed
to. Clause
20 accordingly ordered to stand part of the
Bill.
Schedule
2Closure
orders
Dr.
Harris: 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.
The
Chairman: I am very
grateful.
Dr.
Harris: 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. 5.15
pm 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.
Campbell
rose—[Interruption.]
The
Chairman: The hon. Member for West Chelmsford is offering
me
medication.
Mr.
Campbell: 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.
Dr.
Harris: 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?
Mr.
Campbell: 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.
Nadine
Dorries: 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?
Mr.
Campbell: 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.
Dr.
Harris: 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.
Dr.
Harris: I beg to move amendment 69, in
schedule 2, page 111, line 24, leave
out subsection
(8).
The
Chairman: 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.’.
Dr.
Harris: 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).” 5.30
pm 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.
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