Policing and Crime Bill

I shall continue with the second half of my contribution, in which I shall specifically support new clause 25. It has been tabled by myself, by the hon. Members for Birmingham, Selly Oak (Lynne Jones), for Hayes and Harlington (John McDonnell) and for Totnes (Mr. Steen), by my hon. Friend the Member for Chesterfield (Paul Holmes), and by the hon. Member for Hendon (Mr. Dismore), who chairs the Joint Committee on Human Rights. I understand that it is supported by both Opposition Front-Bench teams. My view on clause 13 is that further criminalisation of prostitution will be detrimental. My hon. Friend the Member for Chesterfield and I voted against the clause in Committee, but I recognise that my view on that does not have sufficient support in the House, and that the Government have a majority to get some sort of offence on to the statute book to tackle demand. It is only realistic, therefore, for me to work with other hon. Members to find a form of words on which we hope there can be majorities in both Houses. I am grateful to Liberty, Justice, the Criminal Bar Association, the English Collective of Prostitutes and the International Union of Sex Workers, as well as to hon. Members, for their help in drafting the new clause. I am particularly grateful to the hon. Member for Bury St. Edmunds (Mr. Ruffley) for his willingness to try to identify a way forward that delivers what he wants—a workable law that does something about demand but does not have the drawbacks that he expertly identified in the Public Bill Committee. New clause 25 is therefore based on a consensus, and it has three main ingredients. First, it would get rid of the strict liability provisions, for reasons that I shall explain. Secondly, and as a consequence of that, it would enable the punishment to match the offence where there is not strict liability. Thirdly, it would redefine "controlled for gain" in a narrower way. I recognise that in tabling amendment 47 and associated amendments, the Government have also done that, so I do not propose to spend time comparing the construction of that amendment and the new clause. There are probably advantages and disadvantages to both, but they are both in the same general ballpark. I have some points to make about the Government amendment, however. First, it still provides that control has to be for gain. We considered that matter with the lawyers who were assisting us, and could not understand why the Government did not want to capture pimps who do what they do for cruelty and for the hell of it, who get a kick out of controlling women and girls in prostitution and perhaps running them for drugs purposes, but do not operate for gain from the sale of sexual services. If the Government are still in listening mode concerning the nature of that part of their provisions, they should consider that. Our equivalent provisions have four main parts. First, in proposed new subsection (3), we define a victim of trafficking. We use the language that has found favour with the hon. Member for Slough in other legislation. She is concerned that we ought to return to the definition that is often used in international law, and we have included it as far as we can. Secondly, the new clause mentions "coercion" and is therefore very similar to the Government's provisions. We include in that violence, threats and intimidation. We thought that it was important that the third point was clearly captured, so that people controlling prostitutes would know exactly what they were letting themselves in for. We state that the person in control commits an offence if B—the prostitute—has provided sexual services""in order to gain access to controlled drugs"." Finally, recognising that we could not get the Government to agree with us on the matter in the Public Bill Committee, we believed that we needed to discriminate between brothels that are run co-operatively, in which the women at all times accept the control of the madam, and brothels where women are working together but do not freely consent to the direction or instruction of someone who tells them, "Do this with this person, in this room, for this price." That situation would be covered by the new clause, because we reached consensus on a pragmatic way forward that would cover mischief in relation to which demand needs to be tackled on a non-strict liability basis. I hope that the Government will consider that further, as they have indicated they are willing to do in another place. I now turn to the important matter of strict liability. I know that other hon. Members will talk about the experience and views of the English Collective of Prostitutes and others, so the best thing that I can do is demonstrate the forensic job that the Joint Committee on Human Rights, on which I serve, did, in a report that was unanimously agreed, on why the strict liability offence is so wrong. The first criterion for having a law that potentially engages human rights—as the Government, in their memorandum to the Committee, accepted that this one will—is that it is necessary in a democratic society. That fundamentally requires evidence that the Government's legitimate goal, which will constrain freedoms, will be effective. The Joint Committee reflected on the fact that the Government have still failed to publish the evidence—although they said in their little paper supporting the offence that it existed—that strict liability would be beneficial. In Committee, the Under-Secretary of State for the Home Department, the hon. Member for Tynemouth (Mr. Campbell), confirmed that the review of evidence had not been published, but stated that the Government had never made a commitment to publish the evidence, and that it was currently being collated. I do not think that that is acceptable, or that most Select Committees would consider it acceptable—certainly not the Joint Committee on Human Rights or the Select Committee on Innovation, Universities, Science and Skills, on which I also serve—for the Government to claim that they are introducing evidence-based policy and then fail to produce the evidence on which they seek to rely. Not only did they not produce it, they did not have it published and peer-reviewed before publication. That suggests that the Government do not have evidence upon which they can rely. They are, of course, aware that the weight of academic and health service opinion is that further criminalisation will be harmful. Taking an evidence-based approach alone, the Government are wrong. The Government said that we""should not read too much into the fact that the evidence has not been published. It does not mean that it contradicts the propositions that the Government are bringing forward."––[Official Report, Policing and Crime Public Bill Committee, 29 January 2009; c. 113, Q197.]" I cannot understand why something that was alleged to exist a year ago has still not been published. The Joint Committee stated:""We are disappointed that the Government has failed to provide the evidence which, in its view, demonstrates the necessity for the new strict liability offence. As we have said on a number of previous occasions, legislation should be firmly based on evidence. We consider this to be particularly important when new criminal offences are proposed, to show why the existing criminal law is inadequate to deal with the targeted conduct and how the proposed new offence tackles the behaviour in a proportionate way."" Evidence is important when we are dealing with the criminal law. That echoes the point made by the hon. Member for Hayes and Harlington that adequate time for debate is important in such cases. The Joint Committee's report continued that""it is even more imperative when the proposed new offence is one of strict liability. We recommend that the evidence be published without further delay so that Parliament can be properly informed when debating the need for this new strict liability offence."" Sadly, we are debating this before the Government's response to that report, and before we have seen the evidence, which is unfortunate. The second criterion for such an offence identified by the Joint Committee is that it needs to be prescribed by law. Liberty made clear in its evidence to the Committee a point that it also made in its briefings on the Bill:""Strict liability offences should be used very sparingly and should only apply to minor offences where it seems obvious in the circumstances that an offence has been committed. It should not apply when a person is unable to ascertain whether what they are doing is unlawful. Given it is not an offence to pay for sexual services of a person who is not controlled for gain, it would be unfair to impose a strict liability offence on someone who pays for the sexual services of a person who is controlled for gain but whom the offender does not know is controlled."" I have read that into the record because it is the quickest way to get that point across. The European Court of Human Rights has considered the matter, and in one case, Salabiaku v. France, stated:""States may, under certain conditions, penalise a simple or objective fact as such, irrespective of whether it results from criminal intent or from negligence."" However, proving that an individual did not know that a person was controlled for gain is explicitly ruled out as a defence in the Government's proposal, which goes further than that case. That is why the Joint Committee was right to say that the proposed offence would be a human rights breach as well as bad law, and that we will have to amend our law if a case is brought. The Joint Committee concluded that""the fact that the offence is one of strict liability will make it difficult for an individual to know how to regulate his conduct given that his knowledge is not an element of the offence. We have concerns about the breadth of the new offence and its potential impact beyond the group that the Government seeks to target. In our view"—" this is important—""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."" I know that other hon. Members can speak about those issues, based on the experience and views of women involved in prostitution and of those involved in human rights. I want to consider the provisions on rape, which, again, the Government have got wrong. I think that the Government accept that it is impossible to get a conviction for rape in the context of prostitution. However, they cannot have it both ways: they cannot say that because rape happens even though there are no prosecutions, we should have a strict liability offence with a low penalty, while also claiming that we can still prosecute for rape in those hard cases. The position is clear: it is impossible to get a conviction for rape in the context of prostitution. I wish it were not so, and that rape conviction rates were higher, but that is a problem in cases of rape outside the context of prostitution, and the Government have provided no evidence of prosecutions, let alone convictions, within that context. That leaves a gap. When someone knowingly has sex with a person who is not freely consenting in the context of prostitution, that should be punished by imprisonment. New clause 25 would rightly provide for that.