Policing and Crime Bill
Second Reading, House of Lords, 3 June 2009
Moved By Lord West of Spithead
Baroness Miller of Chilthorne Domer: (Lib Dem) The Bill is the 66th criminal justice Bill since 1997. Between them, they have created 3,600 new criminal offences. We feel that the Government have still failed to understand that you cannot solve social problems by making criminal offences of them; you simply fill up our courts and prisons. The prison population has reflected this, increasing from 61,114 in 1997 to 82,586 in February 2009, an increase of 35 per cent. The Bill does nothing to solve that situation.
. . . With regard to this Bill, it is sad—I would say even tragic—that the legacy of our first woman Home Secretary will be some legislation that unless we defeat it here makes the lives of some 80,000 women in this country more dangerous. I talk of course of women in the sex industry, working and selling sex. Institutions as diverse as the Royal College of Nursing and the YWCA oppose the legislation and the approach that the Government are taking, as do we.
Far from making women safer, this legislation will force many back on to the streets, leave them more liable to be in prison, separating them from their children, causing those children to go into care and creating exactly the sort of vicious circle that should be avoided. We will oppose the Government’s approach.
Baroness Miller of Chilthorne Domer: My Lords, I would certainly pay tribute to the noble Baroness’s [Corston] record on women’s issues, particularly the issue of women in prison. Of course I have read the debates in the other place, and, as I was about to say, trafficking is an appalling crime. Exploited women who are trafficked need the full protection of the law, but legislation already exists to address the issue of trafficking. Is further criminalisation of women working in the industry the way to address the issue? She talked about the issue of men buying sex, but she is being extremely optimistic if she thinks that this legislation will solve a problem that has been around for 3,000 years. We are angry that the Government have not looked at the evidence of what works. Ministers have chosen to turn a blind eye to the constructive approach taken in New Zealand, for example, which has decriminalised prostitution and treats it as the social and health issue that it is. Five years of evidence show that that was a good move.
Nor does the Bill take the right approach to the exploited children in the sex trade. Instead of treating them as the victims they are, it leaves the under-18s to be treated as criminals. That attitude really worries us and will do nothing to help the exploited children in this country or, by example, in the rest of the world. All too often young street-working children in the rest of the world are treated as criminals simply for selling themselves for sex in order eat. We do not want to replicate that problem here in the UK.
Baroness Stern: . . . In particular, the Government have set their sights on prostitution, too much drinking by young people and membership of gangs, all of which fit neatly into the definition of social problems for which the solution is not more law, more law enforcement, more police powers and more criminalised people pushed into the ranks of the socially excluded. The answer is more social measures that deal with the drivers of these social problems, preferably by strengthening the role of local agencies rather than dictating from the centre.
I am grateful to the Minister for his thoughtful and full introduction to the Bill, but I am afraid that I was not convinced that there is any evidence that the measures proposed in these areas will be effective. Effectiveness is one line of argument. These measures are not likely to work. For example, criminalising parents who cannot get their children to go to school, so that single mothers end up in prison, did not deal with the problem of truanting children, as we have been able to see quite clearly in the eight years since that measure has been on the statute book. The measures I am concentrating on today will not only be ineffective, they are also unsatisfactory in legal and human rights terms, and will give law enforcers powers that it is not desirable for them to have.
I turn first to the measures relating to prostitution. The Home Secretary said in the other place that she was aiming to reduce the criminalisation of women. She also said,
“I am pretty clear that without a demand for prostitution, particularly the sort of prostitution that involves exploited or trafficked women, there would be less of it”.—[Official Report, Commons, 19/1/09; col. 526.]
It is clearly a sensible policy aim to shift away from the criminalisation of women involved in prostitution. Many would agree with that proposition. The Home Secretary is right when she says that, without a demand for prostitution, there would be less of it. The proposition is unarguable. It is also unarguable that we should be concerned about trafficking for sexual exploitation. But we need to consider whether these proposals will have these effects. Can the law reduce demand for prostitution or will these measures be counterproductive? I share the view of many who fear that they will be counterproductive.
Regarding the offence of paying for sex, even in the new circumstances defined by the amendment in the other place of force, threats or deception, there are widespread concerns. For example, there are concerns about the strict liability offence. The Joint Committee on Human Rights in its 10th report said that,
“the offence in its current form is overbroad and lacks certainty”.
But there are other arguments, too, against this provision. Increasing the elements of criminality and possible law enforcement in the transaction between sex worker and client increases the danger for the sex workers, who are already, as the Minister said, a very vulnerable group.
When I was a member of the Joint Committee on Human Rights we visited Italy in connection with an inquiry into human trafficking to look at the arrangements there. The system there did not aim to reduce demand—it was felt to have been an unfulfillable aim—but was concerned to protect women, to rescue them from coerced situations and to catch, prosecute and deal with traffickers. There was an anonymous phone line for anyone to ring who suspected that a sex worker was trafficked. Does the Minister think that many people would ring such a line or get in touch with the police if they felt they would then be charged with committing a criminal offence? Is it likely to protect trafficked women?
I turn to the orders requiring attendance at meetings with a named supervisor which can be used by courts for those convicted of loitering and soliciting. The aim is to help people to get out of prostitution—an extremely worthwhile aim—but the Minister will no doubt be aware that there is a great deal of opposition to these proposals also. Once again, it is the right thing being done in the wrong way. Routes out of prostitution are needed and many organisations do superb work and achieve a great deal. The Government seem to have the view—I assume that this is the case—that it is the threat of punishment that motivates people to do what is good for them. Could the Minister for a moment consider what the life has been like of the women for whom these provisions are intended? Does he not think that their lives have already had more than their quota of punishment? Why does he believe that threats and punishment are more likely to work than support, encouragement and practical, no-strings help, given with understanding and a commitment to persevere even when there are relapses and crises?
The third measure in Clause 20 gives the courts the power to make premises closure orders where there is evidence that the premises are being used for activities relating to certain prostitution and pornography offences. Here, too, the safety of the women is put at risk. All the evidence suggests that women are safer working from premises than working on the street. At a meeting I was able to attend with the noble Baroness, Lady Miller, we heard from sex workers and their maids, who are the gatekeepers, of the security that they can use in a flat to ensure that violent and threatening clients do not get in. They have CCTV and doors that they can control. This is not so easy to do on the street if they have been thrown out of their premises.
I also hope that at the next stage of the Bill we shall be able to persuade the Government that these offences should not apply to young people aged under 18. Young people engaged in prostitution are victims, not criminals, and criminalising them is objectionable. I support very much the words of the right reverend Prelate. I suggest that the Minister’s reply to the Joint Committee on Human Rights that criminalisation is helpful in getting children engaged in prostitution access to the services they need is a sad reflection on the state of services for very vulnerable young people. The Government’s argument in response to the Joint Committee on Human Rights that, if we decriminalise prostitution for those under 18, we are sending out a message that for under-18s to engage in prostitution is acceptable seems to me totally fatuous. Are the Government really so out of touch with the realities of the life of those young people who end up on the streets?. . . .
Lord Faulkner of Worcester: . . . Turning to Part 2, there has been no shortage of attempts over the years to reform the law on prostitution and sexual offences. I have raised these issues in the House on a number of occasions over the past eight years. I first did so during the passage of the Criminal Justice and Police Act 2001, which imposed new restrictions on “carding”, the practice of placing cards advertising sexual services in phone boxes. That Act, I am afraid, had the effect of making it harder for women working in the relative safety of their own flats to receive clients safely, with the consequence that many were tempted to resume soliciting on the streets where the risk of serious assault is 10 times greater. I shall come back to that theme in a moment as I develop my argument.
That Act was followed in 2004 by the publication of the Government’s consultation paper, Paying the Price, which, on looking back, is probably the most thoughtful contribution we have had as an attempt to look at the law on prostitution and to reform it sensibly. That consultation paper gave serious consideration to the possibility that local authorities would be allowed to sanction red light toleration zones, with sex workers licensed and regular health checks introduced. This approach is followed in a number of other countries, including Australia and Holland.
Paying the Price was followed by a White Paper in January 2006 and then, in 2008, by the criminal justice Bill which, in its original form, would have introduced compulsory rehabilitation under threat of imprisonment. On the surface, this appeared as a well-meaning effort to try to get people out of the sex industry. It was, however, opposed vigorously by a body called the Safety First coalition, which came into being after the dreadful murders in Ipswich. It is a remarkable collection of individuals and organisations, including religious groups such as Zacchaeus 2000, the Royal College of Nursing, the National Association of Probation Officers, Women Against Rape and the English Collective of Prostitutes.
The purpose of the coalition was to win support for the view that everyone deserves to be safe, regardless of gender, race, occupation or lifestyle. There was general agreement that tackling rape and violent crime are the real priorities and that decriminalising prostitution will assist with that. I spoke against the inclusion of the supervision orders at the Second Reading of the Bill in 2008, as did the noble Baroness, Lady Miller of Chilthorne Domer, and happily, after a number of meetings with my noble friends who were then Ministers in the Home Office, it was decided to remove those clauses from that Bill and we saw no more of the proposal.
However, I am baffled that that provision is now back in this Bill. It means that anyone arrested for loitering or soliciting would have to attend three meetings with a supervisor approved by the court. It is not an alternative to a fine as failure to comply may result in a summons back to court and 72 hours in gaol. So you can envisage a situation where women could end up on a treadmill of broken supervision meetings, court orders and imprisonment. We must bear in mind that the sort of women who are working on the streets and are likely to be picked up are leading dysfunctional and disorganised lives. We are talking not about a regulated sex industry but about a very dysfunctional group of people.
Imprisoning women for this sort of offence goes totally against the recommendations contained in the report written by my noble friend Lady Corston in March 2007. I am sorry that she has not stayed for the debate; she made an interesting intervention early on and I want to answer the point that she made about Ipswich. If she reads this report, she will have the opportunity to see what I said, which is that the Safety First coalition was an Ipswich-based initiative and its approach is widely supported by the people of that town.
Clause 16 is being introduced with Clause 15, which widens the definition of “soliciting”. It will make it easier for the police to arrest street workers and at the same time—this is the one welcome aspect of the clause—will abolish the definition “common prostitute”. The other aspects of these two clauses, however, are undesirable. I do not see how the Government can justify defining soliciting as “persistent” when it takes place twice in three months, which is the provision in the Bill. “Occasional” would be a more accurate definition.
The question that we should always be asking ourselves, when looking at any legislative proposals on this subject, is: do they increase or diminish the safety of the women who are involved in the sex industry? To say that we want sex workers to be safe is not to condone their way of life, still less to express approval of it. But who are we to cast the first stone? What do we know of the considerations that make a mother or a young woman take such a step, especially during a recession? Is it not better to acknowledge that, whatever these considerations may be, sex workers are entitled, like the rest of us, to receive the security that the law can give them?
It is in that context that I ask my noble friend to look again at the “controlled for gain” provisions in Clauses 13 and 14 and the penalties contained within them. These clauses were significantly amended by the Government just prior to Report in the other place. Originally, it was to be an absolute criminal offence for a man to have sex with a person “controlled for gain” whether he knew it or not. This was based on a wholly misguided attempt to criminalise the clients of prostitutes, and drew heavily on the experience of Sweden, which has attempted something similar and where the results are far less successful than some people have claimed. Many commentators and academics, as well as police officers, take the view, and I agree with them, that criminalising clients drives prostitution underground and increases the dangers that women sex workers face.
In the new versions of these clauses, “controlled for gain” is replaced with “force, deception or threats”, which is certainly an improvement. That is intended to help women who are trafficked or coerced into prostitution. I support what the Government are attempting to achieve here, because tackling the exploitation and trafficking of women and children is extremely important. I am concerned, however, that the offence will not help to tackle the problem of trafficking, and that it may diminish the responsibility of those who knowingly have sex with a trafficked woman. One of the main priorities in tackling human trafficking is targeting those people who orchestrate, control and coerce and, in doing so, profit from what is modern-day slavery.
The clauses as they stand provide for a person guilty of the proposed new offence only to be fined up to £1,000. Knowingly having sex with a woman who has been trafficked, and who is acting under coercion and not truly consenting, is akin to rape. The difficulty is—this was very much the view in debates in the other place—that a prosecution for rape in the circumstances where a prostitute is the victim, whether she is trafficked or coerced or not, would be most unlikely to succeed.
It is extremely important not to treat trafficked women as a “no-go zone” for rape prosecutions simply because investigating the offence may be difficult.
What is indisputable, though, is that a £1,000 fine is a wholly inadequate penalty for an offence where a third person is forcing a prostitute to have sex with a client. It is not a minor offence. I support the view that has been expressed to a number of your Lordships by Liberty: that Clauses 13 and 14 should be withdrawn and the Government should consult on whether a new offence is necessary, which would have a more appropriate and proportionate penalty attached to it, and look at what is needed to enable successful prosecutions for rape, kidnapping, false imprisonment or any other relevant charges to be brought in against those who take advantage of vulnerable women. There is a huge difference between consensual situations where sex workers are working voluntarily and situations where women are being coerced and suffer violence.
Clause 20 and Schedule 2 amend the Sexual Offences Act 2003 to give police the power to issue a temporary closure notice in respect of any premises if the officer reasonably believes that within the previous three months the premises had been used for activities related to particular offences and the closure is believed to be necessary. I am concerned that here the Bill is strengthening the proceeds of crime powers without any consideration for the vested interest it promotes, since the police get to keep 25 per cent of any money seized during raids and prosecutions. This establishes the possibility of conflicts of interest that will be very difficult to resolve.
Safe premises are already being targeted. In December police raided premises in Soho, threatening receptionists with being charged with “controlling prostitution for gain”. Receptionists are sex workers’ first line of defence against violent attacks and exploitation, and if they are prosecuted, women will be left to work alone. This is something that the noble Baroness, Lady Miller, and I saw together when we visited premises in Soho earlier this year. That would take us into the opposite direction to that where we should be heading. I would much prefer us to follow New Zealand’s example and decriminalise all prostitution, both indoors and on the street. In the six years that their law has been in operation, women are safer and there is little evidence that I have seen which suggests that there has been an increase in prostitution.
I conclude on the question of premises with some words sent to me by a branch secretary from the Royal College of Nursing. She is called Carol Watts and is from Cambridgeshire, and she has given me permission to quote from the e-mail she sent to me and to a number of your Lordships last week:
“I am writing to you following our meeting of RCN Congress last week at Harrogate. During Congress I proposed a motion on behalf of Cambridgeshire branch ‘that this meeting of RCN Congress would urge RCN council to lobby local government to allow up to 4 sex workers to work together legally before requiring a licence’. The proposal was for members to consider the impact that de-criminalising prostitution would have on these workers’ access to healthcare and personal safety. The resolution was passed by 93.46 per cent to 6.54 per cent of all voting members, representing the whole of the UK”.
I agree with her, and if amendments are tabled in Committee that would give effect to what this lady has written to me about, I shall support them.
Baroness Hanham: (Con) . . . . . We agree entirely about the desperate need for proper measures to be taken to prevent those who have been involved first of all in the awful crime of human trafficking from then being exploited in prostitution. . . . . However, whether the proposed measures and the new code of practice will achieve that in a way that will receive the full measure of support is something that we will need to test in Committee and, if necessary, at later stages.
Lord Ramsbotham: . . . you must take account not just of crime but of the causes of crime, which, as we all know, are all around us in society: poverty, unemployment, homelessness, ill health, social neglect, and so on. . .
Secondly, the Welfare Reform Bill also includes conditions on benefits for drug addicts attending for treatment, but there are simply not enough treatment centres or workers available to treat all those affected. Again, no provision to increase the number was made in the recent health and social care legislation. As for the Ministry of Justice, 80 per cent of those under probation supervision are substance misusers and the probation service warns that, if denied benefits, they will turn to crime to survive. Those awarded community sentences are unlikely to receive the required supervision because of cuts in the probation service, and many will therefore end up in prison. The Government have introduced 1,036 new imprisonable offences, resulting in inevitable overcrowding in the prison system. They are reducing the availability of courses, including drug treatment, and the Treasury is now imposing severe cuts on both the probation and Prison Service.
. . . Other noble Lords have already spoken far more eloquently than me on parts of this Bill in which I have an interest. I shall want to join in the challenge to some of the clauses on prostitution . . .
Lord Sheikh: . . . With regard to strict liability, this may create some difficulties in enforcement. I would have thought that a serious crime of this nature required the mens rea element of criminal law. The absence of this condition may not sit well with some individuals. My concern is how a man establishes whether a woman has been forced into prostitution. He may not know the owner of the establishment or have met the woman before. We therefore need to look at these provisions fully in Committee..
Lord Dholakia: . . . It has been particularly indefensible that women who were victims of sex trafficking have often faced deportation, whereas those who have colluded with this trade by using their services have faced no sanction.
This is where the arguments become very complex, because we tend to look for easy solutions. I support the intention behind the new offence of paying for sex with someone who is controlled for gain, in order to provide a deterrent that will reduce the demand. However, we should exercise great caution, as there are some important questions relating to the scope and enforceability of the provision. We can explore these in Committee. In particular, we should take note of the contribution on that point made by the noble Baroness, Lady Stern, and the issues that she identifies.
There is a need to take a careful look at the convention on trafficking. Women who are trafficked are often in need of support and assistance. We must exercise great care to ensure that the action that we take does not drive prostitution underground. Is there any evidence that criminalising all men who use prostitutes will help the authorities to find and rescue those women in need of help? It might be helpful at some stage if such evidence were produced by the Home Office. If the legislation is devised as part of a co-ordinated approach that tackles demand but helps those who wish to escape the misery of prostitution, the situation will need careful monitoring. I ask the Minister to look at the international dimensions of this issue—the example cited was New Zealand—as almost all western countries are affected, to ensure that we do not add to the difficulties that women already face.
Clause 15, which abolishes the insulting legal term “common prostitute”, is a welcome measure. I note that Clause 16 will enable courts to order a woman to attend three meetings with a supervisor, who can explore ways of helping her to find a way out of prostitution. That sounds very good, but let us not forget that we are dealing with those caught in a cycle of deprivation, who are often exploited and frequently victims of violence, poverty and abuse. Do they see such meetings as relevant to their life chances? There is of course a need for a constructive approach rather than fining prostitutes, which simply pushes them quickly back on the street to earn money to pay the fine. I am concerned about whether we have thought out our approach on this issue.
I question one aspect of Clause 18—the removal of the requirement for persistence before someone can be prosecuted for soliciting. We are talking about a group of women, and sometimes young men, who usually have a drug habit, are often homeless or victims of abuse and may have a range of health problems. Surely it is preferable to use cautioning, coupled where possible with constructive diversion programmes, on the first one or two occasions when they are found soliciting rather than prosecuting them and giving them a criminal conviction for their first or second offence. I appreciate why the Government want to remove the requirement for persistence before prosecuting kerb-crawlers, but I believe that different considerations should apply to prosecutions for soliciting.
Viscount Bridgeman: (Conservative lead in the Lords) . . . On Part 2, I completely agree with noble Lords who have shown their concern at the growing number of women and children trafficked into prostitution in this country. More must be done to punish those benefiting from this disgusting trade, and those being exploited must be rescued. Once again, however, we are presented not with a comprehensive set of measures which will make a genuine difference to those who are suffering but with a policy that has run into such controversy that the Government have already been forced to make similar changes to their initial proposals and are likely to have to make several more before the Bill’s proceedings are completed.
We are particularly glad that the Bill contains a much more precise definition of what being controlled for gain comprises and the associated question of strict liability. There are, as your Lordships have mentioned, other concerns about the implementation of this offence. For one, the penalty seems extraordinarily low for the crime—a point made by the noble Lord, Lord Faulkner. The Bill’s other provisions will also need to be looked at carefully to ensure that they do not have the unintended consequence of driving women on to the street or of discouraging children from seeking the help that they need.
. . . . I must pay tribute to the noble Lord, Lord Faulkner, for his very thoughtful intervention on the whole question of prostitution.
Lord West of Spithead (Leads for the government in the Lords) . . . . It is certainly not our intention to criminalise everything and to try to put ever more people into prison.
. . . The noble Baroness also touched on Clause 2 and the sex industry, as did a number of other speakers. There are some really big issues here which need to be developed and I have considerable sympathy with some of the views expressed. We have to ensure that we make these women safer, not less safe. We also have to stop trafficking, rules on which are already in place. We have to look at it very carefully. The intervention from the noble Baroness, Lady Corston, demonstrated that there are different views on the issue. We need a real debate on it and to go into it in depth. I welcome that as well.
The noble Baroness, Lady Stern, touched on the issue of the prostitution measures being counterproductive —I think I have covered that—and the concern of the Joint Committee on Human Rights. Again, we will have to address exactly what it has raised on these issues. She eloquently showed the real issues of being trafficked and the real problems that these poor women have to get into the position that they are in. As I say, we are aiming more at rehabilitation. We will have to debate whether we are actually achieving that. . . . The noble Baroness asked me if anyone would phone anonymously on the prostitution issue. I think that they might do because, of course, it is anonymous, and they would therefore not be giving anything way—but one cannot be absolutely sure of that. Our aim is to do more on supporting routes out of prostitution. Perhaps we are not doing enough, and this can come out in Committee. My noble friend Lord Simon really raised the same issues on prostitution that have been covered by a number of other noble Lords. As I say, this will have to be debated.
I thank my noble friend Lord Faulkner of Worcester for his general support for some of these measures, but I absolutely take his point on Part 2, which a number of noble Lords touched on. It is an issue on which there will be a long and interesting debate.
. . . All of us are completely against trafficking and the exploitation of women in this way; they are treated really badly. It is a question of how we can best handle that to make them safer and to solve some of these problems. We must not drive this under ground.