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Lord Falconer of Thoroton: The point that the noble Baroness, Lady Blatch, and the noble Lord, Lord Campbell of Alloway, make about the definition of gain is something that I must take into account.
Baroness Noakes: I thank the noble and learned Lord for the way in which he received the amendment. The fact that he will think about it further gives me some hope, and I look forward to debating the issue again on Report, one way or the other.
The noble and learned Lord gave us some examples of situations that we would not want to catch. We have had that debate time and time again during the passage of the Bill. We have drafted legislation in a way that catches activities for which we do not intend people to be prosecuted. We had the case of sex between mentally disabled people and in the case of teenage sex. It is not impossible to draft a Bill that, in principle, catches things for which we would not people to be prosecuted. It is a matter of balance, and we have had the issue the whole time. I hope that, when the Minister
takes the amendment away, he will not be so obsessed with those particular examples that the Bill must be driven by them.The real issue is whether we have an effective offence relating to the abuse of children. I am particularly concerned about children, rather than adults. There is also the question of whether the gain element should be there at all. If we are considering the need to have an offence for what is done to children, the question of whether we catch, theoretically, other cases in the margins is less important. I accept that that balance must always be debated.
I am more than grateful for the way in which the noble and learned Lord has received the amendment. In the light of that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Lord Bishop of Portsmouth had given notice of his intention to move Amendment No. 295A:
- Page 26, line 13, leave out "either"
[Amendment No. 295A not moved.]
The Lord Bishop of Portsmouth had given notice of his attention to move Amendment No. 295B:
- Page 26, line 14, leave out from "18" to end of line 16.
[Amendment No. 295B not moved.]
[Amendment No. 296 not moved.]
6.15 p.m.
Clause 56 [Causing or inciting prostitution for gain]:
[Amendments Nos. 297 and 298 not moved.]
Lord Faulkner of Worcester moved Amendment No. 299:
- Page 26, line 26, after "so" insert "using fear, force or fraud"
My purpose is to draw a distinction between, on the one hand, the section of the sex industry that is characterised by fear, coercion and violence and is frequently linked to illegal immigration and drug trafficking and, on the other, the section that, although disapproved of by many people—including, I am sure, a considerable number of Members of the House—is best described as the commercial exploitation of consensual adult sex. I stress the word "adult" because we are not talking about child pornography; we are talking about adult prostitution.
In the Bill, we have the opportunity to provide greater protection for vulnerable women and, at the same time, attack the evil smuggling into Britain of desperate young women from countries such as the new republics of eastern Europe and the exploitation of such women by gangsters who live by violence. In recent weeks, several newspaper articles have graphically described some of the horrors that go on in countries such as Romania. The amendments would help reduce such exploitation and, at the same time, avoid criminalising activities that are largely consensual and give rise to little public mischief.
The amendments would, for example, prevent innocent partners or teenage sons from being criminalised for living off immoral earnings. Under the present legislation, that happens even when the partners and sons do not want the women in their life to be involved in sex work. They would make it easier for the police to bring charges against those who use threats and would make the law simpler and clearer.
The amendments would also improve the legitimacy of the law. At present, because there is less clarity, the police use more discretion. The danger with that is that the law will be enforced inconsistently. I am concerned that, if the Bill is passed in its present form, England and Wales will finish up with the most punitive laws on prostitution at exactly the time when the rest of Europe is starting to address the vulnerability of women sex workers.
What research there has been into the sex industry—there is a strong case for the Government to conduct their own inquiry, alongside the excellent work of many academics, such as Belinda Brooks-Gordon of Leicester University—shows that it is safer for the industry to be conducted indoors, rather than on the streets. The incidence of violence against women who look for business on street corners or in alleyways is many times greater than when the business is done in indoor premises, such as flats, hotel rooms and massage parlours. The Economic and Social Research Council conducted research among street-working and indoor-working prostitutes in Glasgow, Edinburgh and Leeds, as part of its violence research programme. Among the findings was the fact that those working on Glasgow's streets were six times more likely to have experienced client violence than those working indoors in Edinburgh and four times more likely than indoor workers in Leeds.
On the assumption that Parliament does not intend to make criminals out of all prostitutes, would it not make sense to use the Bill to make life safer for women who work in the sex industry? Surely, the receptionist at a massage parlour who facilitates the booking of clients for women who work there as prostitutes is in a different league from the evil men who import vulnerable women from eastern Europe and force them to work under a regime of terror in the sex industry here. Criminalising more women and clients and imposing harsher penalties without safeguards will draw more women into the criminal justice system and then to prison. It is harder for them to get out of such a life later if they have a criminal record. The criminal record makes getting a job more difficult.
The time has come for a thoroughgoing review of prostitution and the sex industry generally. Setting the Boundaries said that it was needed. In the interim, I hope that your Lordships will agree that the amendments would put some fairness and common sense into the situation. I beg to move.
Lord Campbell of Alloway: I oppose the amendment, for two basic reasons. First, I do not understand it. Secondly, for the reasons already given, subsection (1)(b) should come out. That view is shared throughout the Committee and is not only my opinion.
I do not understand the amendment. If someone "does so", he does so "using fear, force and fraud". What on earth does the amendment add? If he does so, he does so. It does not matter how he does it. There is no object or sense in the amendment.
I understand that, in any event, the amendment has been devised to deal with a review of prostitution. That is a good idea, but I do not understand what it has to do with the drafting of the amendment.
Baroness Blatch: It is with some reluctance that I rise not to support the amendments. I have supported the noble Lord, Lord Faulkner of Worcester, and I sympathise and empathise with his concern for people in such a position. For those who experience fear, fraud or force in such situations it is a dreadful thing, but I am more concerned with securing a conviction. I am concerned that that would be made more difficult, rather than easier, by the amendments.
The noble Lord may want the law to reflect something of the dangers and pressures faced by those who suffer at the hands of pimps. Many would sympathise with that. However, there would be a lacuna that would result in unintended consequences. The noble Lord may also wish to make it clear that the law does not protect those who engage in prostitution entirely of their own volition, a point that, I think, he made. I am much less in sympathy with that, as it is difficult to tell whether someone is acting as a truly free agent, when he or she engages in prostitution. I fall back on the fundamental point made by my noble friend Lord Campbell of Alloway, which is that a crime has been committed anyway, regardless of whether one has to produce evidence of gain or of fear, force or fraud.
Amendment No. 299 imports the common law definition of what it takes to vitiate consent. "Fear, force or fraud" is a phrase that occurs throughout the case law on consent, not only in relation to sexual offences. The noble Baroness, Lady Howarth, made the point that there is a world of difference between adult prostitution and what we are now calling prostitution through child abuse. However, its addition here would make it more difficult to prove the offence of causing prostitution for gain. Its addition to Clause 58, by Amendment No. 308, would do the same for the offence of controlling prostitution for gain.
I am concerned because it imposes an added burden on prosecutors, which they will often find difficult to overturn. A person who is clearly a victim of
prostitution may be unwilling to give evidence. Prosecutors may be relying on other evidence, such as testimony from "clients". None of them may be able to address the issue of whether fear, force or fraud was ever used on a prostitute.Therefore, it would be difficult to envisage a scenario in which a man who really was acting as a pimp would be unjustly prosecuted. The court would be unsympathetic to a claim from a pimp that, although he intentionally caused a person to become a prostitute in expectation of gain for himself, he does not really deserve to be punished because his prostitutes were all willing and it was never proven that he used fear, force or fraud.
I am sure that my noble friend Lord Lucas will speak to the amendments in his name in due course. However, I shall deal with them now to save time later. Simply by requiring proof of,
- "force, coercion, deception or abuse of power or of a position of vulnerability",
I oppose these amendments because they would make it more difficult for the courts and they move away from the fundamental issue that a child below this age is being abused anyway. Looking for evidence of gain, fear, force or fraud is a diversion for the courts. A crime has been committed and it should be dealt with as such.
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