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Mr. Alan Campbell: First, I want to deal with the matter of encryption keys. New clause 22 and amendment 119 are together intended to have the same effect as new clause 7, which was tabled by the hon. Member for Mole Valley (Sir Paul Beresford). I want to
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place on record our gratitude to the hon. Gentleman for his interest in this area and for the way in which he has pursued this point.

New clause 22 and amendment 119 relate to the maximum sentences that can be imposed when people fail to comply with a notice relating to encrypted information issued under part 3 of the Regulation of Investigatory Powers Act 2000. Specifically, the amendments raise the maximum sentence on indictment from two years’ to five years’ imprisonment in child indecency cases. At present, the sentence in such cases is limited to two years. Given that sentences for child indecency offences can be far higher, as the hon. Member for Mole Valley has pointed out, we are proposing to raise the sentence for failing to comply with a notice to five years. In addition, the amendments allow individuals convicted of failing to comply with a notice or tipping off in connection with such a notice to be made subject, in appropriate cases, to a sexual offences prevention order under the Sexual Offences Act 2003.

We have adopted a slightly different approach from that proposed by the hon. Gentleman, because of the technical problems with the drafting of his new clause. We have also not included all the offences that were in new clause 7. That is not because they are not important offences, but rather because—in so far as they involve indecent images of children—they would be redundant. In other words, when they do not involve such images, the offences that we have included are the relevant offences so the higher sentence should be available anyway.

Our amendments will also make high sentences available in relation to specified offences in Northern Ireland and Scotland, and I should clarify that the Scottish Executive have welcomed those provisions. I want to conclude this section of my speech by repeating my thanks to the hon. Member for Mole Valley. I know that his efforts have been appreciated by members of the law enforcement community, particularly the Child Exploitation and Online Protection Centre. I hope that he will feel that there is no need to press his new clause and that he and all hon. Members will be able to support new clause 22 and amendment 119.

James Brokenshire: The Minister will be aware that this is an issue that we highlighted in the Public Bill Committee. I am sure that my hon. Friend the Member for Mole Valley (Sir Paul Beresford) will be pleased to hear that the Government have accepted the concept in tabling these amendments. Can the Minister give any explanation or guidance as to how the provisions will be rolled out? Is it intended that CEOP will take this forward, or will further broader guidance be given to police forces on the application of this new offence? Obviously, we hope that it will be effective in dealing with these pernicious paedophiles, who seek to hide away appalling images in computers and other systems in an encrypted form.

Mr. Campbell: Of course, CEOP plays a vital part in tackling this hideous crime. It is important that police officers in forces across the country are aware of this criminality and are able to spot it and know what to do with it. We will bring forward guidance in due course.

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I want to move now to the issue of “controlled for gain”, which took a great deal of time to debate in Committee. The debate in Committee was positive and constructive, even though we did not always agree. Amendments 142 and 143 would remove clause 13 and clause 14 respectively and replace those clauses with a new offence that seeks to address some of the concerns that have been raised about those clauses as the Bill has progressed. First, they seek to clarify the scope of the offence. In Committee, there were concerns that that the phrase “controlled for gain” was too wide and not sufficiently clear. We have tabled our own amendments in response to those concerns.

We believe that our amendments are preferable to the approach taken by new clauses 25 and 26 and a number of amendments that have been tabled that relate to the definition of “controlled for gain” or the scope of this offence. First, we have used the terms “force”, “threats” or “deception” as we consider them to be more precise than the word “coercion”. Secondly, although there appears to be consensus that the offence should cover those who pay for sex with someone who has been trafficked, we do not feel that it would be appropriate to adopt the approach followed by using the term “trafficked” in the legislation. For that reason, we also have reservations about amendment 211.

Using the term “trafficked” would mean that if someone had been trafficked and escaped from their traffickers, but still chose to work as a prostitute, it would still be an offence to have sex with that person if the payer knew or ought to know about the prostitute’s past. Instead, our amendment focuses on the conduct that is likely to have induced or encouraged the person to provide the sexual services to the payer.

Keith Vaz: Has the Minister seen the report of the Select Committee on Home Affairs on human trafficking, which was published last Thursday, and the concern that we expressed about the enforceability of what he is talking about? The evidence that the police gave us was that it would be very difficult to enforce. I welcome the shift in position. The Government have taken an important step forward in the few months since the publication of the Bill. Has the Minister been able to go back to the police to ask them whether this new proposal will be workable?

Mr. Campbell: I welcome the report by the Select Committee and the interest that it has taken in such matters. Of course, we speak to the police regularly about a host of things, and not least the enforceability of the legislation. Let me say by word of caution that we have brought forward a new definition that we believe is more workable. However, I think that this is still a work in progress. I will be listening carefully to the arguments that are made today from people with all sorts of different points of view on the matter. It is crucial that we get this definition right. Of course we want the definition to be right as the Bill leaves this place and goes to another place, but I am sure that this point will be the subject of great discussion at a later stage.

Mr. Denis MacShane (Rotherham) (Lab): I would modestly suggest that a definition that can satisfy everybody is all but impossible to achieve. There is a definition that covers anybody who employs a cleaning lady, for example,
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who might be an illegal immigrant. It is no defence to say, “I didn’t know that she was an illegal immigrant.” It is a crime under our law, decided by this House, to employ someone who is an illegal immigrant. Therefore, if someone has sex with someone who has been trafficked, it should be no defence to say, “I did not know that she was trafficked.” [Interruption.] My right hon. Friend the Member for Leicester, East (Keith Vaz) says, “Ridiculous”, but this is a profoundly important point. We have to send a signal out to the traffickers that if they bring girls into Britain and men pay for sex with them, buying that sex is a crime. Until we cut off some of the demand with tough measures we will never deal with the supply.

Mr. Campbell: My right hon. Friend goes to the crux of the debate. I understand that there are different views, not only about the workability of this measure but about whether it was a good idea to embark on it in the first place. However, my contention in Committee, which still holds, was that this is a fundamentally important piece of legislation. We need to focus on the Government’s intention when we set out. The intention has not changed, but we have learned lessons on how best we can define the way in which we can take this forward. As I say, the debate continues.

Dr. Evan Harris (Oxford, West and Abingdon) (LD): First, may I take this opportunity to welcome the fact that the Government have thought further about restricting the definition of “controlled to gain” to the language used in their amendment? It is probably equivalent to the way in which provisions are made in new clause 25, of which I hope to speak in favour if I catch your eye, Madam Deputy Speaker. We can recognise that that definition is work in progress, but the key issue concerns the strict liability and the fact that that is associated with a trivial penalty, even for someone who knowingly has sex with someone whom they know to have been coerced. That is what divides us still at the moment, and therefore that is what I think most of this debate will be about.

6.30 pm

Mr. Campbell: I intend to cover that very point. It is important that we have a workable definition that does the job we ask it to do, but it is also important that we have a proportionate response. I shall return not just to strict liability but to the penalties that flow from such offences.

We expect our proposed definition to cover most cases when a prostitute is still under the control of traffickers. We also expect it to cover most of the cases intended to be captured by the fourth scenario mentioned in new clause 25, whereby someone is directed or instructed to provide sexual services but the person does not consent to that direction, provided that they were not simply free to ignore it. In such cases, we imagine that such directions or instructions would be backed up by force or threats.

Our new clause will deal with the case of a prostitute who agrees to work as a prostitute because their pimp would otherwise refuse to supply them with controlled drugs. However, unlike new clause 25, it would not cover a person who decides to work as a prostitute and chooses to use the money to pay for controlled drugs. Although we accept that there are clearly desperate
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circumstances in which people provide sexual services to gain drugs or money for drugs, we believe that element of the proposed new clause is drafted too widely.

New clauses 25 and 26 would capture anyone who uses the sexual services of a prostitute who, under the definition, was trafficked, coerced or otherwise considered exploited, rather than just someone who pays for sexual services. There would be a danger that the offence would also criminalise consenting sexual relationships, such as those between the prostitute and their partner or spouse. It is payment to those who are controlling the prostitutes that fuels demand for them, so that act is the focus for our offence.

Dr. Evan Harris: I am grateful to the Minister for giving way again. It is useful for the House to discuss these points as he makes his critique, because we may never come back to them.

Is the Minister saying that the reference in new clause 25 to a person who

might be felt by the police and the courts to apply to the husband or wife of a prostitute? Is he seriously saying that that is a flaw in the provision?

Mr. Campbell: We are saying that we have to be careful about the language we use. The hon. Gentleman may be dismissive of the fact, but someone who uses a woman who is a prostitute is different from someone who exploits them for gain. There is a clear distinction and as we are talking about moving to a better definition it is important that we get the language absolutely right, or as close as we can.

New clauses 25 and 26 seek to address the other significant issue that has been discussed in relation to the offence—strict liability. We cannot accept the other amendments that have been tabled on the issue and we have concerns about that aspect of the new clauses. We still believe that strict liability is the most effective way of ensuring that those who pay for sex are forced to consider the circumstances of the prostitute who will be providing the sexual services, and that it protects those who have not chosen to be involved in prostitution.

My next point about the new clauses goes to the heart of the hon. Gentleman’s point about penalty. The proposals would increase the maximum penalty for the offence under clauses 13 and 14, which is currently a fine of £1,000, to 14 years’ imprisonment. Amendment 240 would have the same effect. We intend to continue to make the offence one of strict liability. In our view, it remains appropriate to maintain the maximum penalty as a fine. That is consistent with similar offences aimed at tackling the demand for prostitution, such as kerb crawling. If someone has sex with a person and they do not reasonably believe that the person consents, they should be prosecuted for something else—namely, rape.

The hon. Member for Oxford, West and Abingdon (Dr. Harris) is shaking his head. I realise that the Members who tabled the new clauses and amendments will not be satisfied by all the aspects of our response, but I hope that our amendments to the scope of the offence will be of some reassurance and persuade them not to press the new clauses.

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Lynne Jones (Birmingham, Selly Oak) (Lab): I am not sure that I have adequately understood what my hon. Friend said about the penalty. If someone knowingly or recklessly pays for sex with a person they know is subject to force, deception or threats, surely that is rape and a £1,000 fine is completely inadequate.

Mr. Campbell: The crux of the matter is whether there is evidence. The point I made is that if there is evidence of rape, the person should be prosecuted for rape and the penalties would be considerably higher. We seek to introduce for the first time an offence, and a penalty, to deal with people who have until now been able to get away scot-free. It would cover situations when traffickers have been held responsible for the women who were victims. We know what to do with the victims, but the men were able to walk away. We are saying—indeed, I am strongly saying—that if there is evidence that can be used to prosecute another offence that tackles the problem, that is what should be done. We are talking about reducing demand by sending out a strong message, based on strict liability. The penalty that goes with that strict liability offence is compatible with other measures that we want to introduce, and associated action we could take, to press down on demand—whether that is kerb crawling or other areas. We are saying to men, “If you pay for sex with a woman, whether or not you know she has been trafficked, you will be held responsible and the penalty will be commensurate with that offence”. However, I agree with my hon. Friend that if something else can be brought to bear in such circumstances, the authorities should use that offence.

Dr. Harris: It is difficult to get a conviction for rape, even in the starkest circumstances outside prostitution. I do not think that there have been any convictions of rape in prostitution and I should be grateful if the Minister could tell us whether he knows of any rape prosecutions against the clients of prostitutes. Does he still agree with Home Office evidence to the Joint Committee on Human Rights that there is no prospect of obtaining a rape conviction in the context of paid sex with a prostitute? If that is the case, that option is not an answer to the hon. Member for Birmingham, Selly Oak (Lynne Jones), so her proposal offers the better way forward.

Mr. Campbell: The hon. Gentleman is in danger of making our case for us. The difficulty in holding people to account has led us to introduce the strict liability clause and although he does not accept it, the penalty we propose is proportionate because it corresponds with other actions that can be taken to suppress demand. He asks me for examples of prosecutions for rape. My understanding is that the figures would not be broken down in that way; if that is not true, I shall set out the alternative. We could not say categorically whether people had been prosecuted for rape in such circumstances, but we must not lose sight of the reality that the men we are talking about have not been held to account. Whether the evidence—in the view of some people—would be akin to rape or whether it was actually evidence of rape, men have walked away from their responsibilities. The offence is one of the measures that we are putting in place to hold them to account and it is an important step forward.

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I turn to the amendments tabled by the Home Secretary and a number of Members, which deal with control for gain in relation to clause 13. Amendments 211 and 214 would narrow the offence under clause 13 by removing the term “controlled for gain” and substituting the word “coerced”. Members tabled similar amendments in Committee and the matter was discussed at length. The amendments tabled by my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Slough (Fiona Mactaggart) and the hon. Member for Totnes (Mr. Steen) and the new clauses tabled by the hon. Member for Oxford, West and Abingdon, which I have already discussed, would clarify the scope of the offence to ensure that it could not be used to prosecute men paying for sex with prostitutes who have freely consented to their involvement in prostitution, who work in a safe environment and who are directed, in a limited way, by a madam.

Our amendments would remove the term “controlled for gain” in light of concern about what would be covered by the word “control”. We do not want to interfere with the way in which “controlled for gain” has been interpreted by the courts in relation to other offences under the Sexual Offences Act 2003 by attempting further to define the term in the Bill. We have instead replaced the word “control” in the offence with a requirement that the prostitute involved must have been subject to force, threats or deception. We believe that that is consistent with the aims of a number of amendments tabled in Committee and on Report. I note in particular that, by using the term “force, deception or threats”, our amendments appear to have a similar effect to amendment 211, tabled by the hon. Member for Totnes.

Government amendments 46 to 53 would amend clause 13 to make it an offence to pay for sex with someone who has been subject to force, deception or threats from a third party of a kind likely to encourage the provision of sexual services for which payment has been made or promised. The third party must have acted for or be in expectation of gain for himself or another person. We believe that the term “force, deception or threats” covers the conduct that we have always been clear that we wish to capture—for example, paying for sex with someone who has been trafficked and forced to work as a prostitute—while clearly excluding circumstances in which someone chooses to work as prostitute entirely of their own free will. We have used those terms because we believe that they best respond to the concerns raised in Committee, while ensuring that we do not compromise the policy objective of tackling the demand for prostitutes who are being exploited.

On the amendment tabled by my hon. Friend the Member for Birmingham, Selly Oak (Lynne Jones), we do not feel that the word “coercion” would add greater clarity to the offence, as it is still not clear what threats or other types of pressure it might cover. We have therefore chosen language that we consider to be more precise.

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