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Lord Lucas: The difficulty I have with this subsection is that it does not add anything. If somebody is doing something in the expectation of gain, surely the word "expectation" in the original clause covers anything that might be added by subsections (3)(a) and (b) in Clause 60.

Lord Falconer of Thoroton: Subsection (3)(b) states that gain covers,

"the goodwill of any person which is or appears likely, in time, to bring financial advantage".

This provision has been included to cover those situations in which one person may undertake an activity in the hope that it will please somebody else. I do not have recent and detailed recollection of "The Apartment", but from the way in which the noble Baroness described it, the provision would cover precisely that situation where someone will, in time, return the favour, which is likely to bring financial advantage. For example, a person causes a child to become a prostitute in order to please the pimp who will derive an income from the child's involvement in prostitution in the expectation that in the future, the pimp may give him a share of those profits, a supply of drugs, or access to other child prostitutes.

I appreciate that in some cases there may be evidential problems about proving that goodwill, as defined, was the motivation behind such behaviour, but I would resist removing the ability to prosecute for this type of situation because in other circumstances it might be possible to meet the evidential requirements. There may, for example, be evidence of a defendant having told a third party of his motivation for causing the prostitution.

The noble Lord, Lord Lucas, asked whether the paragraph adds anything to the basic offence to which it refers. Yes, it does, because it is wider than the terms of the basic offence. There will be prosecutions in which goodwill can be a possible factor. On that basis, I resist the amendment, which I accept was a probing amendment.

7 p.m.

Lord Lucas: If that was the Government's intention, why do we have the second part of paragraph (b)? Why not simply leave it as,

"the goodwill of any person"?

The second part of paragraph (b) merely refers back to the gain that is already covered in the original offence, and limits it. I could understand it if it referred only to goodwill, which would expand the offence—but the

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offence is cut back to a gain of a financial advantage. The financial advantage is already there in the original offence.

Lord Falconer of Thoroton: It is needed, because goodwill is at one remove from a specific financial advantage.

Lord Lucas: I still cannot see why goodwill is limited by the wording that it should lead to a financial advantage. If one does the godfather a favour, one may not know of what kind the benefit will be. It may be a benefit to some other member of one's family at some other time and in some other form completely. Why limit the goodwill to financial gain for oneself, especially given that that is already in the original offence?

Lord Falconer of Thoroton: The reason why the whole sentence is there is because it is one remove from "gain". The word "goodwill" is limited as it is because, if we did not limit it at all, it would be so vague as not to have any definition at all.

Baroness Walmsley: I thank the noble and learned Lord the Minister for his reply. However, I do not know whether he realises that he has just described a whole lot of offences of possibility.

Earlier in our discussions on this Bill, we were a little concerned about the possibilities of "thought" offences in relation to Internet grooming. I am satisfied that that is not the case. However, the offences that the noble and learned Lord has just described involve the possibility that the person gaining the goodwill might, at some unspecified time in the future, in some unspecified manner, actually gain in some way from the activity concerned. That is far too vague for any kind of criminal offence.

I shall read with great interest what the noble and learned Lord said, but it is something to which I may want to return. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Falconer of Thoroton moved Amendment No. 317:

Page 28, line 2, at end insert "(including sexual services)"

On Question, amendment agreed to.

Clause 60, as amended, agreed to.

Lord Bassam of Brighton moved Amendment No. 318:

After Clause 60, insert the following new clause—

"EXTENSION OF GENDER-SPECIFIC PROSTITUTION OFFENCES
Schedule (Extension of gender-specific prostitution offences) (extension of gender-specific prostitution offences) has effect."

The noble Lord said: The new offences to tackle prostitution and child pornography contained in Clauses 54 to 59 replace some of the existing offences relating to prostitution. For example, Section 30 of the Sexual Offences Act 1956 relates to a man living off the

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earnings of prostitution and Section 31 relates to a woman exercising control over a prostitute. However, they do not replace all existing prostitution legislation.

The provisions relating to kerb crawling and loitering and soliciting for prostitution, among others, are remaining on the statute books. That is because the area of prostitution itself, rather than the exploitation of people through prostitution, fell outside the remit of the sex offences review, which recommended a further review of matters related to prostitution. We have debated that point this afternoon. However, we are taking the opportunity to rectify one of the fundamental flaws with existing legislation—its gender specificity.

Much existing prostitution legislation is framed in terms of men committing offences against female prostitutes, whereas male and female prostitutes can both be exploited by someone of their own sex or of the opposite sex. The current framing of the law is outdated and government Amendment No. 318 introduces a new schedule—in government Amendment No. 362—to gender-neutralise the legislation.

Section 36 of the Sexual Offences Act 1956, which relates to permitting premises to be used for prostitution; Sections 1 and 2 of the Street Offences Act 1959, which relate to loitering and soliciting for the purposes of prostitution, and application to a court by a woman cautioned for that; and the provisions in the Sexual Offences Act 1985 relating to kerb crawling, are all made gender neutral by these government amendments.

The structure of the offences and the penalties for the offences remain unchanged, but the amendments mean that we are able to prosecute offenders of either sex, committing offences against victims of either sex. That is important.

The offences in the Sexual Offences Act 1956 relating to brothels are not included in these amendments. Although they are gender specific, since brothels refer only to places where female prostitutes work, we do not need to gender neutralise these offences, as Section 6 of the Sexual Offences Act 1967 applies the same provisions as the brothel offences to premises resorted to for homosexual practices. It is therefore unnecessary to include them here.

I urge the Committee to accept these amendments.

Also grouped with the amendment are the amendments tabled by the noble Lord, Lord Lucas. It might be convenient if I addressed his amendments now.

Amendment 362A seeks to remove the term "common prostitute" from the offence in Section 1 of the Street Offences Act 1959, which relates to loitering or soliciting for the purposes of prostitution. However, the term "common" in the expression "common prostitute" is important. The performance by a woman of a single act of lewdness with a man on one occasion for reward may be sufficient to make the woman a prostitute, but it does not make her a

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"common prostitute" for the purposes of the Section 1(1) offence. It has been held that a common prostitute is a woman,

"who is prepared for reward to engage in acts of lewdness with all and sundry, or with anyone who may hire her for that purpose".

Amendment 362B would remove the ability for the courts to apply anti-social behaviour orders against prostitutes convicted for an offence under Section 1 of the Street Offences Act 1959. ASBOs are not a punishment or penalty. Their purpose is rather different, as they are designed to protect individuals and, perhaps more importantly, communities from behaviour that causes harassment, alarm or distress. It is the responsibility of a court to determine whether an order should be made in any individual case. The police have discovered that using ASBOs against prostitutes, who can, unquestionably, cause harassment, alarm or distress to residents of an area, can act as a deterrent to others. The use of ASBOs on prostitutes in Lambeth for example has lead to a very noticeable improvement on Brixton High Street. We think it important that the facility to apply the order is retained and, for those reasons, we resist the amendments.

Lord Lucas: I shall speak to the two amendments tabled under my name. As regards Amendment No. 362A, I shall take into account the Minister's comments on the nature of the offence when I read Hansard, and shall decide what to do next. However, I shall describe the particular ill that I am aiming at.

The common practice is for a prostitute who is caught by the police to be cautioned. As the Minister will know, there is no court appearance and no easy appeal in such a case—it is just something that a person does in order to get out of custody. When that person has been cautioned twice, if she then comes up in court again, she is referred to as a "common prostitute" and is two-thirds of the way to conviction. She is labelled as a common prostitute in court when she has never been convicted of a prostitution offence. That is what I was seeking to avoid, but I understand from the Minister's remarks that I have gone broader than that without meaning to.

I shall consider the matter again, but I should very much appreciate the Minister's views on whether labelling people in such a way before conviction is really something that we wish to continue to do.

My second amendment seeks to address a specific issue. When we dealt with the laws on street prostitution, I thought we decided that we were not going to imprison prostitutes—we were not going to stuff them into prison—for the ordinary run of street offences. However, that is what ASBOs are being used for. They are being used to imprison people for prostitution offences. That is undesirable. The problem is caused not by the use of ASBOs as a technique, but by the targeting of ASBOs, or the breach of them, to imprison prostitutes. I thought that we had got away from that in the earlier Acts and had decided that that was not what should be done. That is the ill at which I am aiming. I appreciate that I may not have a sufficient understanding of the operation of ASBOs to have aimed precisely right. However, I should very much like to achieve a resolution that ensures that

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Parliament's clear intention of not imprisoning prostitutes for these types of offences is adhered to in practice in relation to ASBOs.

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