My Lords, I start by saying that I totally share the horror of the noble Lord, Lord McColl, and the whole House, at the ideas of violence, exploitation—I think that he had in mind living off immoral earnings—intimidation and, although he did not mention it, rape, having sexual intercourse without consent. These are real horrors. We have pretty strong laws against them with pretty strong penalties, but if the noble Lord can make out a case to strengthen the penalties or enforcement, I may well be with him. I do not think that he has made a case that the solution is to criminalise prostitution itself. I am quite certain that he has not made a case that the right way to criminalise prostitution is to do it on the back of this Bill, which is ostensibly about something else.
In my view, legislation should always be open, overt, frank and transparent. It should not be carried surreptitiously, casually on the back of some other Bill. It is very important that the whole House, the other place and the public have a chance to think through the long-term consequences of new legislation, particularly radical legislation of the kind that the noble Lord proposed in his introductory speech, which is criminalising prostitution itself. A lot of perverse consequences would flow from that. The noble Lord shakes his head, but we must be in a position to consider those consequences specifically in relation to the proposal that he has now made to the House to abolish prostitution, not the proposal in the paper that he has put forward, the Bill, which is simply to criminalise advertising for prostitution purposes. There is a lack of frankness in that approach of which I strongly disapprove.
My view about legalising or criminalising prostitution is, above all, based on a fundamental principle, which is that set out so lucidly by JS Mill 150 years ago, which I think is dear to the hearts of everybody who believes in freedom. That is that the state should not restrict the freedom of any citizen except to the extent required to protect the freedom of others. It flows directly from that that acts in private between consenting adults are no concern of the state or of the law. You violate that principle at your peril.
I recognise that virtuous and respectable people, in the interests of reforming society, as they see it, are always trying to encroach on that principle. The worst case was the introduction of the legislation in the 1880s criminalising homosexuality, which continued on our statute book for 80 years. In my view, we should never have violated that principle. I would be against it even if the pragmatic arguments ran in the other direction, but actually, I see several pragmatic arguments which run very much against the idea of criminalising prostitution. In the time I have, I will mention just three.
One is a definitional problem, whether it has to be dealt with by Parliament or by the judiciary in the courts. I fear that it does not sound very romantic or edifying to say so, but I suspect that quite a lot of relationships—far more than we like to think—have some element of material interest in them. It would be extremely difficult to decide whether the material or
monetary interest was decisive in one particular case. The law would make an awful fool of itself if it specified that if you hire someone for sex for a night or a weekend, you are committing a criminal offence, but if the relationship, including the financial relationship, continued for months or years, you are not—in other words, that a crime, if continued long enough or repeated frequently enough, ceases to be a crime. That would be a novel jurisprudential notion.
Equally, the law would be pretty stupid if it ended up specifying that if you pay for sex with money—cash or specie—it is a criminal offence, but if you pay by means of a diamond brooch, it is not. The law would be held up to equal ridicule and there would be a considerable sense of injustice if you targeted the poor prostitute and perhaps the relatively poor client of the poor prostitute and left the wealthy man and the successful and wealthy courtesan to enjoy themselves without let or hindrance. That would be a mistake. So the definitional problems are real, and the noble Lord needs to address them, if he wants to take further his project of abolishing prostitution by law.
Then there is the issue of the strain on the criminal justice system and particularly the police. We know that the Government are cutting police numbers in drastic fashion, which I personally think is an utterly irresponsible policy that we and even they will ultimately regret. That aside, can you imagine what would happen if the police had responsibility for chasing up every act or alleged act of prostitution in this country? Here for once I do feel that I am not speaking alone. I should be very unamused if I was told by the police that they did not have time or resources to investigate the burglary of my house because they were launched on a much more exciting case, because Snooks was alleged to be having sex with Fifi and money might be changing hands. We want to think very carefully about that aspect as well.
Thirdly, there is the whole issue of the prohibition effects. We all know what prostitution is conceptually. The exchange of money for sex or sex for money is the confluence of two powerful forces in human nature: the desire for sex and the desire for money. If there are more powerful forces in human nature, I am not quite sure what they are, and if you try to dam the tide against them you may have some very perverse effects. The Americans did that with prohibition, but I fear that the two forces that I have just mentioned may be even more ubiquitous and powerful than the desire for alcohol. So you get the same effects; you create a whole new seam of rich potential profits for criminals involved in the intermediation which obviously would be necessary if you criminalised prostitution. It is quite easy to envisage all sorts of opportunities for criminal activity, racketeering and so forth, such as happened under prohibition.
If you prohibit by law something that has been going on for a long time and for which there is a structural demand and existing supply system—we are told that it is quite pervasive; I have not seen these websites myself but I have heard about them and I gather that there are an awful lot of them—you will force a raft of people overnight to change their habits or give up their livelihoods or become criminals. There are
enormous social implications from doing that which have to be thought through. None of this has been thought through on this occasion.
Finally, there is one extraordinary anomaly—an ironic contradiction at the heart of the noble Lord’s Bill. He set out his intention essentially to defend women in this matter, and I have some sympathy with that: but he then brings forward a Bill that criminalises advertising. But advertising is always paid for by the supplier, not the customer, and the suppliers on these occasions are largely women. So the only people who would suffer criminal sanctions as a result of the Bill becoming law, if it ever did, would be the females involved in prostitution, and not the males. That seems to me an extraordinarily perverse outcome, and I hope that the noble Lord will think a little bit further about this Bill before taking it further.