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“We are therefore unconvinced by the Government's explanation of the continuing need for the criminalisation of children involved in prostitution, which is in direct opposition to the conclusions of the UN Committee on the Rights of the Child. In particular, we are not persuaded by the assertion that the criminal justice system may be needed to enable children to access support. The provision of revised guidance is insufficient to address our central point of concern. We recommend”—
“that the Government reconsider its opposition to decriminalising children involved in prostitution and suggest an amendment to the Bill.”
In the minute that I have left, I should like to turn to new clause 25; I imagine that I will have to come back to it after the Speaker’s statement. The new clause is one of the key parts of the debate. [Interruption.]
Madam Deputy Speaker: Order. Yet again, I ask the House to come to order while the hon. Gentleman is on his feet.
Dr. Harris: The House is anxious to hear the statement, and I understand that. [Interruption.] If I do not speak, someone else will, so there is no choice.
I am talking about an important matter. Hon. Members will have been lobbied about the Government’s proposal for a strict liability offence that meant that paying for sex with a prostitute controlled for gain will be a criminal offence whether or not the person was aware, or should have been aware, that the prostitute was controlled for gain. The fundamental problem with that approach is that the penalty for someone who is aware that they are having sex with a trafficked or coerced woman will be a maximum fine of £1,000. The offence that I am talking about is akin to rape. It cannot be right that the Government’s provisions fail to capture a person who goes on to have sex with someone, against their will, who they know has been trafficked and coerced. It is clear that that person cannot be prosecuted or convicted for rape. The Minister could provide no examples of where rape prosecution would work in the context of prostitution. New clause 25, which is supported by official Opposition Front Benchers, Liberal Democrats and Back Benchers on both sides of the House, would provide for an offence that would suitably punish people in that respect.
After the Speaker’s statement, I will set out why the Government’s approach is wrong and ours is right. This amendment is supported not only by those who work in prostitution but by health service workers such as those in the Royal College of Nursing, who voted by 10 to one during their last conference to oppose deeper criminalisation of the vulnerable people working in prostitution. It is supported by organisations such as Justice and Liberty, which recognise that it is fundamentally against people’s human rights to be hit with a strict liability offence that criminalises them, particularly in a private matter.
Speaker’s Statement
7.31 pm
Mr. Speaker: I should like to make a statement, for the second time today.
This afternoon I convened a meeting of party leaders—both major and minor parties—and members of the House of Commons Commission to make decisions on the operation of parliamentary allowances pending the recommendations of Sir Christopher Kelly’s Committee on Standards in Public Life. The Chairman of the Committee on Members’ Allowances was also present to advise us.
The Committee on Standards in Public Life will come forward with long-term reforms to the current allowances system. All parties are now committed to implementing its recommendations as a whole, subject to the formal agreement of this House, provided that these reforms meet the tests of increased transparency and accountability and reduced cost for the taxpayer. We have today agreed a robust set of interim measures which will take effect at once and do not pre-empt any more substantial changes to be put forward by the Kelly committee.
Second homes: there will be no more claims for such items as furniture, household goods, capital improvements, gardening, cleaning and stamp duty. The following only should be claimable: rent, including ground rent; hotel accommodation; overnight subsistence; mortgage interest; council tax; service charges; utility bills, including gas, water, electricity, oil, telephone calls and line rental; and insurance—buildings and contents.
Designation of second homes: no changes to be made to designation of second homes in the years 2009-10, with a transparent appeal procedure for exceptional cases.
Capital gains tax: Members selling any property must be completely open with the tax authorities about whether they have claimed additional costs allowance on that property as a second home and are liable for capital gains tax. Members should make a declaration in respect of any property on which they claim for expenditure that it is not—and will never be—their main residence for capital gains tax purposes. Whether such a declaration has been made will be made public.
Couples: Members who are married or living together as partners must nominate the same main home, and will be limited to claiming a maximum of one person’s accommodation allowance between them.
Mortgages: all those Members claiming reimbursement must confirm that the mortgage continues, that the payments are for interest only, and the amount claimed
is accurate. Mortgage interest claims will be capped at £1,250 per month. In the view of the meeting—and subject to the recommendations of the Kelly committee—this maximum figure should be reduced in the longer term. The same cap will apply to rent and hotel accommodation. Some of these measures I am announcing will require a resolution by the House in the near future; others will be put into effect by administrative action.
Staffing: we confirmed the enforcement of deposit of staff contracts and the registration of any relatives employed.
While the Kelly committee recommendations are awaited, there will be no specific changes to other allowances. The Department of Resources is instructed to tighten the administration of all claims and apply a clear test of “reasonableness”. If there is any doubt about the eligibility of a claim, it will be refused and there will be no appeal. In future, all authorised payments will be published online at transaction level on a quarterly basis by the Department of Resources.
All past claims under the former additional costs allowance over the past four years will be examined. This will be carried out by a team with external management; the external manager will be appointed after consultation with the Comptroller and Auditor General. All necessary resources will be made available. The team will look at claims in relation to the rules which existed at that time, and will take account of any issues which arise from that examination which cause them to question the original judgment.
The meeting also received a paper from the Prime Minister, which was endorsed by the other party leaders, calling for a fundamental reform of allowances—moving from self-regulation to regulation by an independent body. The Government will consult widely on this proposal. Further to this, the Leader of the House will be making a statement tomorrow, which will allow the House a full opportunity to ask questions, and Members to air their views on the decisions we have made and the proposals for the future.
The Leader of the House of Commons (Ms Harriet Harman): Further to your statement, Mr. Speaker. As you said, the Prime Minister provided a document for today’s discussions with you and other party leaders. For the convenience of Members, I will deposit this paper in the Library tonight, and copies will be made available for Members in the Vote Office.
Mr. Speaker: I will now pass the House back to the Deputy Speaker.
Policing and Crime Bill
7.39 pm
Dr. Evan Harris: 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.
7.45 pm
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.
“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”—
“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.”
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