Dr.
Harris: I am grateful to the Minister for his reply. I
would be interested to know under what circumstances the Government
could not ensure that the victims of this essentially non-consenting
offence and exploitation of children were helped other than by being
arrested or engaged by the criminal justice system, as he put
it. Can
the Minister give me a scenario where the support for
children—whether that involves social services or exit
strategies—is so inadequate that we have to rely on the
criminalisation of those victims? Will he write to me and set that out
so that I can consider the position further? If he cannot do that, he
has not addressed the main concern and the obverse effect by which
children may be deterred from coming forward for fear of prosecution
under this or other prostitution offences, thanks to the message sent
out by this law.
I wish to
reflect on what the Minister has said, because it might be appropriate
to table a similar amendment so that the House can take a view on it. I
beg to ask leave to withdraw the
amendment. Amendment,
by leave,
withdrawn. 11.45
am
Mr.
Ruffley: I beg to move amendment 19, in
clause 15, page 14, line 29, leave
out paragraph
(b).
The
Chairman: With this it will be convenient to discuss the
following: amendment 246, in clause 15, page 14,
line 31, leave out ‘two’ and insert
‘three’. Amendment
20, in
clause 15, page 14, line 31, leave
out paragraph
(a). Amendment
247, in
clause 15, page 14, line 32, leave
out ‘three months’ and insert ‘one
year’. Amendment
22, in
clause 15, page 14, line 39, leave
out subsection
(5).
Mr.
Ruffley: Amendments 19, 20 and 22 were tabled to tease out
the Minister’s thinking on the offence of persistently loitering
for the purposes of prostitution. The clause will amend existing law so
that the offence is committed only if there is loitering twice or more
in a three-month period. On what evidential basis was the provision
“twice or more” in a three-month period arrived
at?
Dr.
Harris: I am grateful for the opportunity to speak to the
proposals tabled by me and by my hon. Friend the Member for
Chesterfield. I shall cover the whole principle of criminalising the
selling of sex and loitering in the clause stand part debate. Why do
the Government consider that such a change would make persistence a
higher threshold? The clause says that the conduct will be persistent
if it takes place
on “two
or more occasions in any period of three months”.
At the moment,
if the policing is such that people are arrested for the offence rather
than cautioned or warned in respect of an offence that is more frequent
and more persistent than that, the Government are making the threshold
less persistent whereas the intention is to make it more
persistent. My
amendments are probing. Given current police practice, on what basis do
the Government think, if they do, that this will raise the threshold to
ensure that those who are loitering are not arrested, sent through the
criminal justice system and fined—thus, forcing them to work
again to pay the fine—and not brought before the courts more
frequently or at a lower
threshold?
Mr.
Campbell: Amendments 19 to 22 would remove the elements of
the clause that amend the offence of loitering or soliciting for the
purposes of prostitution contrary to section 1 of the Street Offences
Act 1959 to require a person to act persistently before an offence has
been committed. Members of the Committee will be aware that clause 15
also removes the stigmatising term “common prostitute”
from legislation, and I have noted the wide consensus for that
approach.
It is
important that, by removing that term, the Bill does not have the
intended effect of allowing police to arrest those involved in street
prostitution without having to establish an element of persistence that
is implied by the term “common”. I shall refer to current
police practice, because it is the answer to the question asked by the
hon. Member for Bury St. Edmunds. The current practice of all police
forces in England and Wales is to issue non-statutory
prostitutes’ cautions to people caught loitering on two
occasions before charging them with an offence. That cautioning process
is used to establish that a person is a common prostitute. Once the
term is removed from the legislation, the need to prove persistency is
required to ensure that that current practice
continues. We
recognise that criminal justice interventions are sometimes necessary
for those involved in prostitution, but I reiterate that they should be
a last resort. The requirement for a person to act persistently before
an offence is committed provides a vital number of opportunities for
engagement with services that can offer support and help them to find a
route
out. Amendments
246 and 247, tabled by the hon. Member for Oxford, West and Abingdon,
recognise the need for a requirement of persistence, but would define
“persistently” as three or more occasions in one year,
rather than as two or more occasions in three months. The definition of
two or more occasions in three months is much more in line with current
police
practice. The
aim of the hon. Gentleman’s definition appears to be to ensure
that the offence of loitering or soliciting is used against people
involved in street prostitution on a relatively long-term basis by
providing that persons would have to be apprehended by police on more
occasions but over a longer period. However, it would not necessarily
cover what we regard as persistent behaviour, or what the police
currently consider persistent in practice. The suggested definition
would not prevent the offence of loitering or soliciting from being
used against people found to be involved in street prostitution on a
daily basis, for example. In that, it is similar in effect to the
definition in clause 15.
Unlike the
current definition, however, that proposed by amendments 246 and 247
would allow the offence to be used against those who became involved in
prostitution intermittently over a period. The hon. Gentleman asked for
scenarios earlier, so here is a scenario involving an offence being
used against a person found loitering or soliciting on single occasions
in February, June and December in one year. His definition would
capture such practice; ours would
not. The
definition in the hon. Gentleman’s amendments could be used more
easily against those who sought to leave prostitution but were forced
back into it intermittently as a result of circumstances. It could
undermine the primarily rehabilitative aim that underpins the current
police approach, and that advocated by the co-ordinated prostitution
strategy, of using this offence as a last resort. That is reflected in
the relatively low number of
prosecutions. Requiring
the prostitute to be found loitering or soliciting on three occasions
would also prevent earlier intervention where appropriate. We
recognise, however, that people will have different views on what
counts as persistence, although we believe that our line is clear,
defensible and in line with current practice. The term
“persistently”, as currently defined, is vital to
ensuring that the offence is aimed at those who are genuinely
persistent, and we do not, therefore, wish to remove it by accepting
amendment 19, or to alter the definition by accepting amendments 246
and
247. For
the same reasons, we do not wish to accept amendments 20 and 22, which
would remove provisions that set out how “persistently”
is defined and thereby help to ensure a consistent approach to policing
the offence. With those comments, I ask for the amendment to be
withdrawn.
James
Brokenshire: I beg to ask leave to withdraw the
amendment.
Amendment,
by leave,
withdrawn. James
Brokenshire: I beg to move amendment 21, in
clause 15, page 14, line 37, leave
out subsection
(4). This
is a probing amendment. Subsection (4) omits section 2 of the Street
Offences Act 1959, which provides a mechanism whereby someone in
receipt of a caution for loitering or soliciting can apply to the court
to have it overturned. By tabling the amendment, which would delete the
subsection, we seek to understand the reasons for its inclusion in the
Bill, because the provision provides for the caution to be overturned
by application to the magistrates court. The subsection may be a
tidying-up exercise, involving a throwback to the arrangements whereby
cautions were not necessarily considered to have been spent under the
Rehabilitation of Offenders Act 1974. Substantively, therefore, the
subsection may simply be technical, but it is still somewhat unclear to
us what the Government propose. Therefore, amendment 21 was
tabled to understand more clearly their intentions and whether the
subsection’s retention is
appropriate.
Mr.
Campbell: The short answer is that it is a tidying-up
exercise. Amendment 21 would have the effect of maintaining section 2
of the 1959 Act, which allows a person cautioned for loitering or
soliciting to apply to a magistrates court to have the caution
removed from
the police record. The reality is that that section has fallen into
disuse and in our view no longer serves a useful purpose. A formal
caution can be imposed only if the offender admits their guilt. If not,
they can go to court where the prosecution has to prove the offence
beyond reasonable doubt. We therefore conclude that there are
sufficient safeguards in the process to ensure that formal cautions
will not be wrongly given, and therefore there is no need to retain
section 2, which is not used in practice in any event. I understand the
hon. Gentleman’s concern about removing it, but I hope that he
understands the reason why and can withdraw his
amendment.
James
Brokenshire: On the basis of the Minister’s
assurances, I seek leave to withdraw the
amendment. Amendment,
by leave, withdrawn.
Question
proposed, That the clause stand part of the
Bill.
Dr.
Harris: The stand-part debate gives us an opportunity to
discuss the way the clause deals with the criminalisation of women who
are loitering on the street for the purposes of prostitution, and how
it essentially criminalises street prostitution and the women involved
in it. We have an opportunity to examine to what extent the Government
considered other approaches when thinking about reforming prostitution
laws. I
think we established, although I did not get an answer to my question
on the three occasions that I asked it, that there has been no formal
consultation on any of the proposals, certainly not the clause 13
offence. I do not recall the Government in a formal consultation asking
for opinions on whether prostitution should continue to be criminalised
in this way. I invite the Committee to consider the argument that more
public policy aims can be achieved by not criminalising the women who
are engaged in prostitution. One can control it better, protect women
better, and ensure that their health and safety is improved. All that
can be done without increasing the demand for prostitution, and without
increasing demand for the prostitution that involves women who are
trafficked and controlled for gain, which is at the abusive and
unacceptable end of the spectrum, as we discussed
previously. The
problem with the clause is the absence of proper efforts to give women
on the street ways out of prostitution, and the inadequate resources. I
think the Minister accepted that when he said that there are
“resource issues”, which is a phrase that we all use.
Criminalising women drives them more into prostitution and further away
from other options, even though the intention may be to protect
them. There
is widespread support for ensuring that it is pimps and traffickers who
are criminalised and not the women, whether the women are freely
consenting to participate in the sex industry or are not consenting and
are themselves exploited. The clause essentially maintains the status
quo by criminalising women. One could argue that it would be
appropriate if there were a properly funded and effective way of
helping women to get out of prostitution and to treat their drug
problems, and establishing why they are in prostitution in the first
place. However, that does not exist in this country and there has been
no co-ordinated effort by the Government properly to fund charities and
other bodies to go about
this work. There are the occasional sex projects, but a massive
expansion is needed if there is to be any balanced policy here. It is
not balanced at the moment, so what clause 15 seeks to maintain will
have side
effects. 12
noon I
draw the Committee’s attention to a letter that I believe we all
received, as it was addressed to our co-Chairman, Sir Nicholas, and
copied to the Committee. It is from Tim Barnett, the Member of
Parliament responsible for decriminalisation in New Zealand, and it
says, essentially, that we should not pass measures such as clause 15,
and section 1 of the 1959 Act that it amends and maintains. He gives
several arguments why the approach that New Zealand took, which was to
use legislation like clause 15 to decriminalise, rather than
criminalise the women, is effective. His argument, which I have not
heard argued against effectively, is that
“prostitution is
inevitable and that no country has succeeded in legislating or policing
it out of
existence.” He
accepts that some argue its removal was achieved in China under the Red
Guard and Afghanistan under the Taliban, but he argues, as do I, that
neither of those are particularly helpful precedents, even with the
most right-wing Home Secretaries of either Conservative party that we
are inflicted with. [Interruption.] I am
joking—I do not want to antagonise the Committee. The Government
cannot properly say that clause 15 and the other measures will get rid
of prostitution. The question is, therefore, what is the best way of
tackling the problems associated with prostitution and protecting
women? Tim
Barnett goes on to point out that the tangible harms associated with
prostitution that we all accept, including unsafe sex, coercion of
people, trafficking, violence by clients and pimps, drug use, and
offensive signage, are all offences under the current law, so we do not
need a separate prostitution law.
The third
point he makes is that the people most likely to be damaged by
prostitution in a criminalised environment are the sex workers
themselves. That is the view of sex workers. I have not met a sex
worker—I have met several during the deliberations of the
Committee—who supports their criminalisation. Whatever their
view on the control of prostitution by pimps and traffickers, or on the
strict liability offence that we have just discussed, none of them
think that they are helped by their activities being criminalised
because it drives them further from the police. It inherently makes
women on the street more unsafe if their activities are criminalised
because a barrier is put between them and the law enforcement agencies,
which might protect them from abuse by clients or pimps.
He also makes
the point that the criminalisation of prostitution places
responsibility on the police to enforce the law and takes
responsibility away from other agencies who should have an interest.
That is an entirely unsatisfactory way of dealing with the harms
associated with prostitution. The criminal justice system directed
against women, as clause 15 continues to allow, is the wrong way to
tackle the harms associated with prostitution.
I believe
that the hon. Member for Stourbridge asserted that she had heard an
opinion that the New Zealand system does not work well. I shall give
her the opportunity
to intervene in a moment. Everyone is entitled to their opinion and to
think that the policy in this country is wrong, which she will agree
with. However, weight has to be given to the parliamentarians who
introduced the measure and the fact that they have a proper review
system built into their legislation. | 
