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Earl Russell: I should be happy to co-operate with the noble Lord in discussing such an amendment.

Lord Thomas of Gresford: I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 238ZGP not moved.]

Clause 124 agreed to.

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Clause 125 agreed to.

Clause 126 [Traffic in prostitution]:

Lord Thomas of Gresford moved Amendment No. 238ZGQ:

Page 70, line 2, after "if" insert "he uses force, coercion, deception or abuse of power or of a position of vulnerability, or if"

The noble Lord said: Clause 126 defines the offence of trafficking in prostitution. Under subsections (1) to (3), the offender commits an offence if he exercises,

"control over prostitution by the passenger".

"Passenger" is the word used in the clause. The words "exercise control" are then further defined in subsection (4). It is that definition with which we take issue. To start with, the "passenger" becomes a prostitute in subsection (4). The words used to define exercising control—

"if for the purposes of gain he exercises control, direction or influence over the prostitute's movements"—

do not take the matter much further.

Our amendments reflect the definition of "trafficking" in the United Nations protocol to prevent, suppress and punish trafficking in persons, especially women and children. The words in our amendment largely reflect the concepts contained in that protocol. It is interesting to observe that the same definition is used in the European Union framework decision on combating trafficking. In Article 1 of that decision, the same expressions are used.

It is important in the area of trafficking for prostitution that like expressions are employed whenever the same concept is being dealt with. A similar form of words was used in a letter written by the Home Office on 1st May 2002 to Anti-Slavery International. At this time of night, I shall not quote from it, but it uses a similar definition.

The amendment also removes the need to prove that the trafficker has directly benefited for the purposes of gain. Consequently, the definitions in subsection (4) should be tidied up as we propose. I beg to move.

The Deputy Speaker (Lord Elton): I must tell the Committee that if the amendment is agreed to, I shall be unable to call Amendment No. 238ZGR.

Lord Judd: I support the arguments behind the amendment, and I hope that it will be in order for me also to speak briefly to Amendment No. 238ZGR.

In their letter to Anti-Slavery International of 1st May, to which reference has already been made by the noble Lord, Lord Thomas of Gresford, the Government said that they were,

"keen to ensure that the same definition of trafficking is used domestically and internationally".

That is a fairly firm statement of intent. Our amendments are an attempt to bring the terminologies more closely together.

My amendment would also remove the phrase "for purposes of gain" from the clause. The amendment moved by the noble Lord, Lord Thomas of Gresford, would meet the point in another way. The effect of both amendments would be that a trafficker could be

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prosecuted if the police could prove that he had coerced or deceived someone into prostitution, regardless of whether they could prove that the trafficker had benefited directly from doing so. Having to show that the person who uses force or coercion has also materially benefited from doing so could, on occasion, be a significant obstacle to prosecution.

The definition proposed in the amendments more fully encompasses the methods used by traffickers to gain control over victims and exploit them. Along with the removal of the "for gain" aspect of the offence, it will better facilitate the effective prosecution of traffickers.

Baroness Anelay of St Johns: I support Amendment No. 238ZGQ, to which I have added my name. I recognise that the creation of the offence is a stopgap measure introduced pending major reform to cover those being trafficked for purposes of sexual or labour exploitation. However, I put my name to the amendment because it seemed to me that the definition used in Clause 126 was not consistent with the definition used in United Nations or EU instruments. Can the Minister say whether the definitions are consistent and, if so, how? The briefing that we have received from Anti- Slavery International—for which I am grateful—suggests that they are not.

Lord Hylton: I support the intention of both amendments. As the noble Lord, Lord Judd, suggested, their effect would be to lower the burden of proof and thus facilitate the effective prosecution of traffickers. That is an important reason for making them.

9.45 p.m.

Lord Bassam of Brighton: We respect the spirit in which the amendments have been moved. They are a constructive element of our debate.

Clause 126 proposes that it be a criminal offence for someone to arrange or facilitate the arrival into, passage through or departure from the UK of an individual with the intention of controlling that individual in prostitution. Both amendments would introduce additional elements into the offence by adding the use of,

"force, coercion, or deception or abuse of power or of a position of vulnerability".

The noble Lord, Lord Thomas of Gresford, rightly said that the wording used was drawn from the UN protocol on trafficking. We understand that, but we do not think that it adds any substance to the offence. The amendment in the name of my noble friend Lord Judd would, in addition, remove the element of gain from the new offence.

The noble Baroness, Lady Anelay of St Johns, anticipated the point that I was going to make. The provisions in Clause 126 represent a stopgap. The noble Baroness is spot-on about that. They aim to focus on the worst forms of exploitation connected to trafficking in advance of the introduction of more comprehensive measures, when—to use the age-old

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formula—parliamentary time permits. We want to have comprehensive measures in place; they would deal with the problem much better.

The wording of Clause 126 is taken from the existing formulation,

"exercises control, direction or influence over the prostitute's movements in a way which shows that he is aiding, abetting or compelling the prostitution".

That formulation is present in existing definitions of offences by those who commercially exploit the prostitution of others. The formulation of the words,

"for the purposes of gain"

is based on existing offences. It seems inconceivable that someone would exercise control over a prostitute for purposes other than for gain. What other reason would he have?

Earl Russell: People who do those things may not all have perfect mental balance, so gain may take forms other than financial ones.

Lord Bassam of Brighton: I am not sure that that is the case. The courts have never questioned that the gain may be other than monetary, which as the noble Earl, Lord Russell, has hinted, could be widely construed.

The existing formulation is, however, well understood by the courts and law enforcement agencies. It will be open to the courts to take into account evidence that coercion, threats and other aggravating factors have been used in determining what sentence to pass on convicted traffickers. We do not feel that adding the proposed wording, however well-intentioned and well-drawn it may be, will make it easier to prove the offence, which surely is the key.

It is only fair to put on the record that having such a wide definition of elements may actually prove to be confusing rather than helpful. It could make it harder to prove the offence, thus frustrating the amendment's intentions. We are committed to implementing the UN protocol and EU framework decisions, which will require amendments to existing criminal offences that fall well outside the scope of the Nationality, Immigration and Asylum Bill. In formulating the amendments, we shall make it clear that the issue of the victim's consent is immaterial to providing an offence of trafficking. For that stop-gap offence we do not want to overhaul the law on commercial sexual exploitation as it is part of the review of sexual offences. I know that Members of the Committee are aware of that.

We have drawn concepts from existing offences relating to controlling prostitution and have given a clear statement of intent. In drawing attention to where our wording comes from, and in making it plain that it is a stop-gap measure, I hope that the amendment will be withdrawn. We are grateful for having had this short debate as we share a common intent.

Lord Judd: I assure my noble friend that I have no intention of pressing my amendment, but will he agree

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to consider again what lies behind it? I do not claim to be legally qualified but, as a layman, it seems to me that the courts will have to demonstrate that the action was for gain. That may make it more difficult to bring a successful prosecution. The point needs some attention.

Lord Hylton: Will the Minister reflect on the possibility that one criminal might do something involving prostitution to repay a favour to another criminal? That would not necessarily be for cash or immediate financial gain.

Lord Archer of Sandwell: I have another case to put to my noble friend. Does my noble friend agree that when the Philistines persuaded Delilah to seduce Samson that was probably for gain, although no money changed hands?

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