Policing and Crime Bill

I thank all the contributors to this debate. It was inevitable that it would not only spread across Clause 13 and Amendments 45 and 56 but spill over into some of the issues that have strong support inside and outside this Chamber, whether it is to decriminalise prostitution completely or to ban paying for sex completely. Indeed, we could inevitably start to stray into the next major contentious issue, which is strict liability. However, I shall follow the good advice of the noble Baroness, Lady Hanham, and not stray into that area until we reach it. We are grateful for the constructive attempt to improve this clause, which has already gone through another place. We have considered the issues raised by Amendments 45 and 56 but none the less still believe that Clause 13 and the amendments that we have tabled to improve it represent the best way of defining the elements of this offence and finding a clear distinction between conduct that we wish to cover and the conduct that we do not. Before I deal with the amendment in detail, I should like to explain the rationale for the offence created by Clause 13 and set out in general terms what it is intended to cover. I assure noble Lords that the offence is very much intended to be part of the Government’s response to the problem of trafficking. I sense from some of the contributions that there may be a fear that we are talking about creating a new offence as a substitute for our efforts, through law enforcement, to get trafficking under control, to get the traffickers into court and to prosecute them. However, nothing could be further from the truth. This is simply another weapon in the armoury and not an attempt to reduce our endeavours to ensure that the horrible trafficking of women for sex is brought to a halt as soon as possible. This is very much part of a general response to the problem of trafficking. Taking steps to tackle the demand for trafficking for sexual exploitation was one of the actions recommended in the UK Action Plan on Tackling Human Trafficking. It was also a requirement imposed by Article 6 of the Council of Europe Convention on Action against Trafficking in Human Beings, which the UK has now ratified. I emphasise that this offence is one part of a comprehensive approach to trafficking. The need to respond to this serious issue was clearly one of the motivating factors behind the Government’s review on tackling demand, which also recommended that other measures, such as tightening up the law on kerb-crawling, be looked at. However, the concerns behind these amendments go beyond the protection of those who have been trafficked; they also include a wish to tackle other forms of exploitative prostitution, which I assure those who have tabled the amendment is also the Government’s aim. We see a need to reduce all forms of commercial sexual exploitation. That is one of the key objectives of the Government’s co-ordinated prostitution strategy, which sets out a comprehensive approach to tackling this issue. Many of the action points in the strategy have already been put in place. However, a number of the responses to the consultation, which informed the development of the strategy, emphasised the need to consider doing much more to tackle the demand for prostitution. That relates to the Government’s attempt to create a culture shift in how we view prostitution and how we deal with it at law. As part of the Government’s review on tackling demand, we considered the approaches taken to prostitution in different countries. The noble Baroness, Lady Miller, asked whether we had looked at the situation in New Zealand. Prostitution was decriminalised in New Zealand in 2003 under the Prostitution Reform Act. It is now a regulated endeavour and, under the provisions of the Act, brothels and escort agencies are required to be licensed and to have operator licences. We considered such an approach, but responses to the consultation and the evidence that we considered, which are highlighted in the review on tackling demand, supported taking a different approach—increasing criminal justice enforcement measures to tackle demand in order to target exploitation within the prostitution market. Our view is that it is not yet clear whether the New Zealand approach has proved to be effective and whether, in the long term, it would be beneficial. The noble Baroness referred to a five-year review, but I do not think that we have had sight of it at this stage. To tackle demand, it would be necessary to criminalise those who contribute to the demand for trafficking and other forms of sexual exploitation by paying for sex with those who are subject to exploitation and to deter those who pay for sex in such circumstances. We considered the option of criminalising those who pay for sex whatever the circumstances of the prostitute, but concluded that that was not the right approach. Instead, the review recommended that measures should be targeted at reducing areas of the sex market involving the most vulnerable—those who have been trafficked, exploited or involved in street prostitution. The offence is targeted at those who are forced or coerced into providing sexual services, which may be as a result of being trafficked but may also be a result of other forms of exploitative conduct. We recognise that defining such conduct is not easy; amendments have been tabled both in another place and for discussion in this Committee to ensure that the definition is as clear as possible. As a result of the constructive approach that has been taken thus far, we have been able to create an offence that is clear and which achieves its aim of criminalising those who pay for sex with someone who is subject to exploitation. I shall now set out why we believe that these amendments are not helpful in achieving that aim and shall try to respond to some of the points made by noble Lords. We note that the amendments would make it an offence to pay for sex with "the victim of trafficking". While we understand the sentiments behind that, the wording is problematic. It would mean that, where someone who had been trafficked escaped from the traffickers yet chose to work as a prostitute, it would still be an offence to have sex with that person if one knew, or ought to have known, of the person’s past. Given the definition of trafficking, the person would not need to have been trafficked into the United Kingdom for sexual exploitation. They could have been trafficked for labour purposes, as we have seen in some parts of the agriculture sector. The clause focuses on the conduct that is likely to be induced or which encourages the person to provide a sexual service to the payer. It covers cases in which a prostitute is coerced by traffickers but correctly excludes those cases when a person who was once trafficked to the UK now chooses to provide sexual services of her own volition. They will not be covered. The amendments would also cover those paying for sex with someone who has been subject to coercion. We have tabled amendments that make it clear that any form of coercion will be covered by Clause 13 offences. That includes threats of a non-violent nature, such as threats to withdraw accommodation or emotional support if the person does not provide sexual services. Government Amendments 52 and 62, which we will consider later, will cover that. Amendments 45 and 46 would also make it an offence to pay for sex with a person who provides sexual services to gain access to controlled drugs. Clause 13, as currently drafted, deals with the issue of a prostitute agreeing to provide sexual services because her pimp has threatened that he will otherwise refuse to supply her with controlled drugs. However, it will not cover someone who decides to work as a prostitute and chooses to use the money to pay for controlled drugs. By contrast, Amendment 45 would cover both those scenarios and, as such, is too wide. While we accept that there are clearly circumstances in which people provide sexual services under desperate conditions, including to gain money for drugs, catching those who pay for sex with someone who has freely chosen to engage in prostitution and then spends the money that they receive on drugs would be beyond the aim of the offence, particularly as it makes no distinction between those who are feeding an addiction and those who may be occasional recreational drug users. The amendment would also make it an offence to pay for sex with someone who had been directed or instructed to provide sexual services in circumstances when they had not consented to such direction. We would expect Clause 13 as drafted to cover most of the scenarios. If someone does not consent to a direction, one assumes that they would be free to ignore it, unless the direction was backed up by some force or threat. We believe that such conduct is already covered and falls within the scope of Clauses 13 and 14. We also note that the offence created by the amendments would cover someone who has used the services of a prostitute who had been trafficked or coerced or was otherwise considered to be exploited under this definition, rather than just someone who has paid for sexual services. There is a danger that the offence would criminalise consenting relationships, such as those between prostitutes and their partner or spouse, as there is no requirement for payment to be made when the person uses the sexual services of the prostitute in that circumstance. It is the payment to those controlling the prostitutes that fuels the demand, so that is the act on which we wish to focus our endeavours. The amendments also address the issue of strict liability by making it a requirement of the offence that the sex-buyer knew, or ought to have known, that the person whom they paid to have sex with had been trafficked, coerced, or the like. Although we understand and take seriously the concerns of the supporters of the amendment—indeed, such concerns have been raised in another place—we believe that it is important to maintain the strict liability element of the offence, for reasons that I will explain more fully when we consider Amendments 46, 50, 57 and 60. I also intend to deal with the concerns raised by the noble Earl, Lord Onslow, in respect of the Joint Committee on Human Rights about the strict liability element of the offence when we come to debate those amendments. Several important points were made by noble Lords, which I will seek to address. They cluster, in some ways. The noble Baroness, Lady Hanham, gave an excellent analysis of the problem that we have in dealing with trafficking and how we have to make more endeavours not only to control the importation of prostitutes who are trafficked but to deal with the demand side. The noble and learned Baroness, Lady Butler-Sloss, rightly said that there is an improvement in the prosecution rates. It is relatively recent, but prosecutions have been increasing as policies have been developed by the police to respond to the threat, such as intelligence-led, co-ordinated operations across police forces, which can be successful in identifying trafficking activities and rescuing victims. On the question raised by the noble and learned Baroness about providing some form of immunity for those who give evidence to convict traffickers and brothel owners, we do not believe that blanket immunity would be suitable. However, the CPS has discretion to decide where it is in the public interest to prosecute when a Clause 13 offence is thought to have taken place. The decision is taken in each individual case. My noble friend Lord Judd raised the issue of support for criminal legislation. A number of voluntary organisations working with prostitutes support criminal legislation to tackle demand and support Clause 13—CARE, Toynbee Hall, the POPPY project and others. Of course, there are those who would want decriminalisation to be the first option, but in the absence of decriminalisation they want the Government to do far more to ensure that the demand side is tackled. I hope that I have dealt with most of the questions. The noble Lord, Lord Pearson of Rannoch, asked how, if the individual did not know, the police would be able make a case for prosecution. The police would in such circumstances try not simply to arrest the person who was paying for the trafficked prostitute but to collect sufficient evidence so that the trafficker, the brothel owner and the sex-buyer were all in the frame, as you might say. We want to tackle the demand for such prostitutes. They, the trafficked people, are not the problem; it is the market that we seek to control.