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I look at the noble Lord, Lord Lucas, simply because he is one of those to criticise more recently and, perhaps, directly; many have voiced not doubts about our intent or beliefs that our intent is not in good faith, but questions on whether we will have the benefit of unintended consequence, as my noble friend Lord Desai put it. I am frankly not sure that I buy the economic argument being translated into this field, which is not simply a transaction. In fact, I am reminded that labour in any form is not a commodity.
I am pleased and grateful for the support of the right reverend Prelate, who makes a good point. This is not a moral issue, but one of how we protect very vulnerable people. We have responded to the specific concerns raised in the other place, echoed here by the amendments we have tabled. The version of Clause 13 that we want to introduce will best address the aim of protecting vulnerable people involved in prostitution. It will address many of the circumstances that Amendments 45 and 56 would cover. I hope that your Lordships will appreciate why the Government have taken this view, and respectfully ask the noble Baroness to withdraw her amendment.
Baroness Miller of Chilthorne Domer: That has been an incredibly helpful debate in drawing out the confusion that lies behind the Government's approach at the moment-whether they are actually talking about stopping trafficking. We had some fantastic contributions on the issue, starting with the tour de force of the noble Baroness, Lady Hanham, about why we must address trafficking. On that issue, the noble and learned Baroness, Lady Butler-Sloss, mentioned the presentation by the Director of Public Prosecutions which I went to as well last Monday. When he did not directly address this Bill, he talked about all the legislation that could be used against traffickers and mentioned the increasing expertise of the CPS. The evidence that the DPP presented to us on Monday, which the Government could follow, is that the existing legislation should be used better, not that we need more legislation.
Is this clause about reducing demand? I do not think that the Minister has proved the case for that at all. He referred to the police observing the comings and goings at brothels but he did not explain how the clause would reduce demand. Having to ascertain where a prostitute comes from will not make men feel less like buying sex but will mean that they are more likely to buy it from someone with a British accent.
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I am not on a moral crusade although I say to the right reverend Prelate the Bishop of Chester that I do not think there is anything wrong with a moral crusade provided it is on the right issues. I absolutely agree with his comments about the abhorrent practice of the increasing sexualisation of children, and that such issues are not addressed in the Bill.
I am especially grateful to the noble Baroness, Lady Stern, and to the noble Earl, Lord Onslow, who added their names to my amendment and spoke so powerfully on it. The noble Earl, Lord Onslow, said that we should aim to have legislation which makes it easier for the client to report these issues. Other noble Lords also made that point powerfully. That is exactly what we should be aiming for, but I heard nothing in the Minister's reply which suggests that is the road he is going down. The noble Baroness, Lady Stern, is absolutely right about the coalition that certainly does not support the Government's stance and is deeply worried about it. The Minister slightly dismissed the New Zealand evaluation. However, as pointed out by my noble friend Lady Tonge, who speaks on health matters but is unable to be here today, in addition to the trafficking, health issues should worry the Government and they should concentrate on those. The New Zealand evaluation forcefully addresses health issues.
Possibly for the first time I agree with the noble Lord, Lord Pearson of Rannoch, although I am very pleased that that is the case. He made some extremely good points which are very well taken. I am glad that he pursued them. The Minister says that this clause is simply another weapon in the armoury. The Government are creating a cannon-to continue the metaphor-when they need a sniper's rifle, which they already have, as the DPP said. I worry that the cannon, when fired, will catch all sorts of innocent and vulnerable people, including the children of prostitutes. It is absolutely the wrong mechanism. We will work strenuously with the Government to consider how the Bill can address trafficking more forcefully and we shall return to Clause 13 on Report. The comments made by noble Lords all round the Chamber lead me to the conclusion that the Bill would be better off without this clause. However, in the mean time, I beg leave to withdraw the amendment.
46: Clause 13, page 15, leave out lines 36 to 38 and insert "and knows, or ought to know, that a third person (C) has used force, deception or threats of a kind likely to induce or encourage B to provide the sexual services for which A has made or promised payment, and"
Baroness Hanham: I remind the Committee that I am a serving magistrate, as I declared on a previous occasion. Inevitably, the debate has strayed a little between these two amendments. I am amazed that we have managed to hang on to this amendment, which stands very much on its own and is a very important part of what we are discussing.
I am very grateful for the support of the noble Baroness, Lady Miller, for this amendment. I think that she will join me in saying that one of the greatest concerns of many noble Lords is the imposition of the strict liability on the defendant and that there is no defence against the charge that he was going to have or had had sex with a prostitute who had been trafficked.
I am not a lawyer, but it seems to me that it is an extremely serious matter to put someone in jeopardy of the law by an incontestable assumption of guilt. In the case of a person who seeks sex from a prostitute who-the noble Lord, Lord Pearson, has already raised this-at a later date is found to have been trafficked, exploited or abused, in hiring her for sex he commits an offence whether or not he knows or has any reason to believe that she has been trafficked. This assumption of knowledge as a basis for prosecution clashes, we believe, with natural justice. At least an offence should be committed only if it can be proved that the defendant could reasonably have known that the prostitute had been trafficked.
I know that many will disagree with giving even this limited amount of defence and we have heard a little of that today. There are those who believe that these provisions will, because of the jeopardy in which the punter is being placed, reduce the amount of prostitution per se. Again, we have discussed the purpose of Clause 13. Many see this as a moral issue, but because this clause and the offence are so prescriptive it is in our view solely an issue of justice.
Like other noble Lords, I have been inundated with e-mails, letters and briefings. This issue has led to an enormous amount of lobbying from both sides on all aspects of Clause 13. Quite rightly, concern over exploited prostitutes' welfare has led to the involvement of many organisations, all of which are seeking the same result: largely the ending of all prostitution-again, we have discussed that briefly-whether there is evidence of trafficking or not. There are those who believe that this proposed legislation is unworkable in that the offence will be almost impossible to prove. So it will not achieve its aims of reducing the number of prostitutes who are controlled by pimps or of helping to make prostitutes any safer.
We need to remind ourselves again that prostitution per se is not a crime, although a good many offences are attached to it. Contrasting views and opposing testimony show just how important it is that the legislation is clear, unambiguous and, above all, does what is intended. The primary reason for this offence being promoted is to seek to protect those who are exploited and trafficked for sex, and to reduce the opportunities for those generating and profiting from that exploitation.
These are laudable aims, but we must remember that unworkable law will not help anyone. It will not support the victims seeking protection from exploitation
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The question of whether the offence should be one of strict liability has been considered by a great many bodies. The Joint Committee on Human Rights is surely not a committee that one would ever suggest did not take the protection of the vulnerable seriously enough. It clearly stated that the Government have failed to demonstrate the necessity for the new strict liability offence. It stated:
"In our view, the proposed offence has the potential to put women into more exploitative or unsafe situations, may not address the problem which the offence aims to target (namely exploitative prostitution) and may discourage reporting of such prostitution."
Justice, another organisation dedicated to the protection of human rights and the improvement of the legal system, also opposes a strict liability offence, as do Liberty and the Bar Council. All these organisations believe that the human rights issues in such an offence, couched as it is and being one of strict liability, make it extremely unlikely that a conviction will ever be achieved.
All that this offence will result in is an even lower incidence of reporting as punters shy away from talking to the police for fear that they will be prosecuted for an offence against which they would have no defence. I hope that the Government, who in the next group of amendments indicate that they are listening to the concerns being raised about aspects of this clause, will also listen to our concerns. In moving the amendment we are looking at the adequacy or otherwise of the fairness of a prosecution. In doing so, I do not dismiss nor am I unsympathetic to the grave concerns being expressed, but this House as well as the other place need to be clear that when they put legislation for offences on to the statute book, it is fair and just. I beg to move.
Lord Lloyd of Berwick: I support this amendment for all the reasons that have been given by the noble Baroness and, very simply and very briefly, on the basis of the facts of a case that is well known to any lawyers that are here present; I think that two other lawyers are here present. I refer to a case known as Sweet v Parsley (1970) AC 132. The facts were that the defendant let out rooms in a farmhouse. Some of her tenants smoked cannabis. It was accepted by the
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"Speaking from a rather long experience of membership of both Houses, I assert with confidence that no Parliament within my recollection would have agreed to make an offence of this kind an absolute offence if the matter had been fully explained".
To adapt those words of Lord Reid to the present case, it seems to me that to convict a defendant of an offence under Clause 13 when he does not know and has no means of knowing that she was a controlled prostitute would be, in the words of Lord Reid, obviously unjust. As to the second quotation, Parliament may have changed since the days of Lord Reid, but I cannot believe that we have deteriorated so far as to make an offence of the kind set out in Clause 13 into an absolute offence without proof of knowledge.
The clause is all the more wrong-headed because I cannot see how, as it stands, it would achieve its object. Prostitution is not a crime. I do not see how this clause will serve to protect prostitutes-an important consideration; how it will reduce the demand for prostitution-as is said to be the case; and still less how it will reduce the number of pimps.
I confess that when I first saw Clause 13 I was astonished. That was many, many months ago and, for what it may be worth, I expressed that astonishment in a public lecture. I do so again today. I will be happy to see the clause if it is amended as is now proposed, but not otherwise.
Your Lordships will, I am sure, accept that strict liability crimes are sometimes justified in the context of sexual offences. An example, which I hope is illuminating for our purposes, is Section 5 of the Sexual Offences Act 2003, which makes it an offence for a person to have sex with a child who is under the age of 13 irrespective of whether the defendant knew or ought to have known of the age of the victim. The differences between Section 5 and Clause 13 illustrate the problems with the proposed offence.
Your Lordships may know that in June 2008, in the case of R v G, the Appellate Committee of your Lordships' House considered and dismissed the argument by a man convicted of an offence under Section 5-having sex with a child under the age of 13-that the strict liability element in the Section 5 offence was a breach of his human rights. But the Appellate Committee emphasised that there were strong policy reasons for making that offence one of strict liability. The object
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It is much more difficult to identify any policy which can justify strict liability in the present context. As noble Lords have already pointed out, it is not the policy of the Bill that all prostitution should be made a criminal offence by the customer; nor is the Government likely to accept the arguments powerfully advanced by the noble Lord, Lord Waddington, that paying a prostitute for sexual services should be made a criminal offence.
In Clause 13, one faces the difficulty that the relevant ingredients of the offence are not clear by contrast with the Section 5 strict liability offence. In the context of Section 5 on having sex with a child under the age of 13, the child either is or is not under the age of 13. The age is discoverable by a number of means. By contrast, Clause 13 would mean that whether the criminal offence was committed by the customer would depend on specific factual matters-that is, whether a third person has used force, deception or threats or engaged in exploitative conduct-as outlined in the Government's proposed amendment. But such matters are not objective; they are not incontrovertible facts but highly contentious matters. Indeed, they will inevitably be the subject of dispute between the prostitute and the third party.
In the light of this, my question to the Minister is: can he give the Committee any other example of a strict-liability offence where that liability arises in a context that is not one where there is an absolute prohibition on defined conduct by reference to an objective criterion such as a person's age, such as in Section 5 of the Sexual Offences Act, but rather an example of a case where strict liability applies only where criminal liability occurs that is dependent on so vague and contentious a criterion that is referable to the alleged conduct of a third party?
Lord Borrie: I find myself in agreement with most of the criticisms made by the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, of Clause 13 as it stands. I am not sure that I go with them in supporting this amendment, but I am with them in their basic criticism of the clause.
I sat through the previous debate, though I did not take part. As noble Lords who were here will know, it lasted for about an hour and was fully comprehensive on all sorts of matters, including what we are discussing now. However, I did not hear the Minister explain with any clarity what the justification was for making a person who obtains sexual services from a controlled prostitute liable for a criminal offence irrespective of his knowledge, likely knowledge or "should-be knowledge" of whether the prostitute giving her services had been forced to do so.
I am still extremely unclear on that point, except-although he is not in his place, I am referring here to the noble Lord, Lord Waddington-on the basis that the Government's real objective is to bring about an end to, or a ban on, the provision of sexual services for money. If that is the Government's intention, Clause 13
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As with the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, the reason why I am uncertain about being in favour of the amendment is that, with all the good will in the world towards an amendment of this kind, and for the legal policy reasons that have been explained by those who have spoken before me, I do not think it would achieve its objective. Looking at it from the prosecution's point of view, how on earth in practice is the prosecution going to prove, except in the most remote cases, knowledge or "ought-to-have knowledge" of the controlled nature of the prostitute's services? In amending the Government's Bill we would be putting forward a criminal offence that would be almost impossible to prove.
If the amendment were part of the law, those who control the prostitute would make it their business to ensure that the women concerned made no reference to, and gave no indication of, where they had come from in Eastern Europe or wherever, how they had got there or anything else. Therefore, although I support what has been said in criticism of Clause 13, I do not feel that I can support the amendment. I would rather simply eliminate Clause 13 and, as the noble and learned Baroness, Lady Butler-Sloss, explained in the previous debate, use more effectively the existing laws we have against traffickers. We should go for the traffickers, not the man or the woman seeking or providing sexual services.
Lord Baker of Dorking: Having listened to the speeches of the noble and learned Lord, Lord Lloyd of Berwick, and of the noble Lords, Lord Pannick and Lord Borrie, it appears to me that the Minister is being asked questions which he cannot possibly answer, verified by the fact that the noble Lord, Lord West, went a moment ago to the Box to check whether there was an answer available. This is a matter for the lawyers. There is clearly real anxiety about the effectiveness of this clause. I suggest that it might be an idea for the Minister to take away the clause and think again about it before Report, at which time he might invite the Attorney-General to give the advice to the House, as it is a matter for the lawyers to decide.
The Earl of Onslow: The quote from Lord Reid that the noble and learned Lord, Lord Lloyd, used is a stunningly great principle of English law and the liberty of the subject which we have known since the dawn of legal memory in, I believe, 1189. That is a principle and a core which has gone through all our history; it makes us what we are and it makes the point of the law in this country such a magic thing. I speak as a non-lawyer, but as someone who has read a little bit of history.
"The proposed new offence raises issues about whether the interference with the right to respect for private life (Article 8 ECHR), which includes sexual conduct, is sufficiently certain to satisfy the Convention requirement that such interferences be 'prescribed by law'".
In all honesty, this is not quite as strong as I would have liked. Having listened to the noble and learned Lord, Lord Lloyd, the Government should, with respect, put their tail between their legs, be as quick as they can, come back with a big, happy smile on their face and say that the noble and learned Lord was right.
Baroness Miller of Chilthorne Domer: I have put my name to this amendment. We have heard the legal arguments and I want to advance a little more evidence. A very interesting study, at which I have had an advance look, will be published on 10 July. It has been commissioned by the Economic and Social Research Council at the University of East London and is entitled Migrants in the UK Sex Industry by Dr Nick Mai. There are many conclusions but the ones relevant to this discussion show why it would be so difficult for a client to know. Not all prostitutes are women who have been trafficked; we often think of them as helpless victims who have been kidnapped. Dr Mai found that many of the people interviewed were from relatively privileged backgrounds who had aspirations to improve their living conditions. They had employed traffickers to help them come to this country. They paid money to be trafficked. Are they victims? They were self-determining; they chose that for themselves, partly because for those with undocumented status, the sex industry provides a way of working away from the public eye as it is largely informal. There were many more findings of that nature. So knowing whether someone is actually a victim and is being coerced is not that simple.
The second finding that has some bearing on this debate is that less than 10 per cent of the people interviewed had experience of exploitation. In all those cases, the clients played a key role in their strategy for escape. Women count on their clients, and if the clients are criminalised, they will not be able to help.
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