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Persons subject to this status may be required to observe conditions which “relate to” residence, employment, occupation or reporting, and would allow several of the conditions to be attached to control orders under Section 1(4) of the Prevention of Terrorism Act 2005. The person would also be potentially subject to electronic monitoring or tagging, and failure to comply with any of these conditions may result in a criminal conviction and a sentence of up to 51 weeks’ imprisonment. These conditions may last indefinitely and may be applied not only to the person himself, but to his spouse and children, making them subject to the hardship of special status through no fault of their own, contrary to Article 3 of the Convention on the Rights of the Child. One lawyer with whom I discussed this effect called it “grotesque”, and I agree.

Worse, the ability to rebut the presumption that a designated person is a “danger to the community”, as in Section 72 of the NIA Act, is to be set aside, so the Afghan hijackers whose conviction was quashed by the Court of Appeal in its judgment of 6 June 2003, and who were found not to be a danger to the community or the security of this country and therefore not caught by the exclusion of Article 33(2) of the Refugee Convention, are still liable to designation. There is no independent review mechanism to oversee the use made by the Secretary of State of these extensive powers.

The Government have deliberately persisted in conduct which they knew was unlawful and then come to Parliament seeking to change the law so as to validate the past illegality and allow them to persist in the same conduct in the future; we hope that your Lordships will reject their impudent proposals. The prime duty of Parliament, as we heard earlier today, is to uphold the rule of law and not to acquiesce meekly when Governments twist it to match what Prime Ministers say they are going to do, without reflection, in the heat of the moment. These costly and far-reaching clauses, offering no protection to the public, should be removed from the Bill.

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6.54 pm

Lord Faulkner of Worcester: My Lords, there are many aspects of the Bill on which I am tempted to speak, but I intend to confine myself this evening to Clauses 123, 124 and 125 in Part 7, those dealing with street offences. I start by expressing my disappointment that the Government have not taken this opportunity to carry out a comprehensive reform of the law on prostitution, which everyone who studies the subject agrees is long overdue. They are instead proceeding in what must be seen as a piecemeal way. The best government publication on the subject in recent years is Paying the Price, published in 2004, and it is worth reminding ourselves what it said about street-based prostitution. Paragraph 1.6 reads like this:

We have to bear in mind that the street-based sector represents only about 15 per cent of the total of perhaps 80,000 sex workers, a statistic which is either ignored or misunderstood by a number of politicians and others who comment on these matters.

In Paying the Price, serious consideration was given to the possibility that local authorities would be allowed to sanction red-light toleration zones, with sex workers licensed and regular health checks introduced, an approach followed in a number of other countries, including Australia and Holland. These are worth looking at, as is the kind of decriminalisation introduced in New Zealand. Paying the Price was a real step forward, and it was the hope that legislation to implement its proposals would not be long in coming, but unfortunately we are still waiting, because this Bill is certainly nowhere near that.

As your Lordships may be aware, I have raised some of these issues in the House on a number of occasions over the past seven years. I first did so during the passage of the Criminal Justice and Police Act 2001, which strengthened the law on carding—placing cards advertising sexual services in phone boxes. Sections 46 and 47 of that Act had the effect of making it harder for women working in the relative safety of their own flats to advertise for clients, with the consequence that many were tempted to resume soliciting on the streets, where the risk of serious assault is many times greater. I pointed out that research carried out by the Economic and Social Research Council among indoor and street-working prostitutes in three British cities found that women working on Glasgow’s streets were six times more likely to be violently attacked by clients than those working indoors in Edinburgh, and four times more likely than indoor workers in Leeds.

In a debate on sentencing initiated by the most reverend Primate the Archbishop of Canterbury in March 2004, I described for the House what happened when I was invited by the Metropolitan Police in January of that year to join its street offences and

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juvenile protection unit on patrol in Brixton. The officers were conducting a four-week intensive campaign on street soliciting. The evening started with a briefing at a police station in Camberwell, two walls of which were covered with photographs of prostitutes known to work in the area. I was told that it was certain that a number of those women would be arrested for soliciting during the night—and that was exactly how it turned out.

One of them was a 23 year-old woman known as Judy. As a known prostitute, she was arrested walking down a side street in a red-light district of Brixton. She had a string of convictions for soliciting and a reputation for never appearing in court unless taken straight there from a police cell. She worked in the sex industry to fund her cocaine habit. I found it particularly disturbing that no one appeared to make any attempt to get her off drugs. Instead, she was in a cycle of soliciting, arrest, a court appearance, a fine, and then more soliciting to pay the fine and buy the drugs. That evening made a profound impression on me, and since then I have tried to judge the various proposals that have emanated from the Government and other well meaning bodies for dealing with street prostitution on whether they are likely to be of any real value or help to women like Judy.

I have read with great care the Hansard reports of proceedings in another place on this Bill, and particularly the debates in Committee on the clauses dealing with street offences. On Second Reading on 8 October, John McDonnell, MP for Hayes and Harlington, articulated the concerns of the Safety First Coalition, which is a remarkable group of individuals and organisations including religious groups such as Zacchaeus 2000, as well as the Royal College of Nursing, the National Association of Probation Officers and the English Collective of Prostitutes. Their stance is supported by medical consultants and the British Psychological Society, using practitioner knowledge and evidence from the top medical and legal journals.

The coalition came together following the murders of the five young women in Ipswich, to put forward the point of view that everyone deserves to be safe, regardless of gender, race, occupation or lifestyle. This received widespread support from the people of Ipswich, who rather than blaming such women themselves believe that everything possible should be done to ensure their safety in future. The coalition organised a well attended meeting in Committee Room 10 last Wednesday. A number of Members of your Lordships’ House were there to hear unanimous criticism of the clause, which, to quote from its briefing,

On the surface, Clause 124 may appear a well meaning effort to get people out of the sex industry. I respect my noble friend Lord Hunt for putting forward that point of view in his opening speech. Indeed, it is linked to a proposal in Clause 123 to do away with the term “common prostitute”, which dates back to the Vagrancy Act 1824. That is long overdue. Yet what chance is there that women such as Judy, to whom I referred a moment ago, would ever turn up for these rehabilitation sessions? The answer is almost none at all. Have we forgotten what we know about

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addiction? Compulsion does not work, and the person must be willing and supported in order to be able to change her life.

The Safety First Coalition believes that a failure to appear would lead to a summons back to court, possible imprisonment for 72 hours and that,

This is clearly a view with which the Joint Committee on Human Rights concurs, in its paragraph 155 on page 117, as the noble Baroness, Lady Stern, pointed out in her brilliant speech a little earlier. In other words, this measure could increase the criminalisation of consensual sex with the effect that, instead of seeking help to get out of the sex industry or deal with a drug dependency, it would be driven further underground. Driving prostitution underground is guaranteed to increase sex workers’ vulnerability to rape and other violence, as violent men would know that the risk of arrest deters sex workers from reporting assaults.

The truth is that recent piecemeal legislative changes mean that we now have some of the most punitive laws on prostitution anywhere in the world, particularly given the increasing numbers of anti-social behaviour orders being directed at women working in the sex industry who then end up in prison for breach of the orders. The female prison population has doubled in the past 10 years and, while we do not know exactly how many women are there for offences relating to prostitution—via the breach of an ASBO or the non-payment of a fine which would have originated from soliciting—the number seems substantial. This is a grave situation, especially when we consider that many are young and in need of support, and may be mothers who are then separated from their children. At the same time, we are doing little to “design out” the vulnerability of sex workers, which criminologists show we can, or to tackle the influence of pimps on those women.

I also regret that this Bill does little to address the fundamental reasons why young women—some young men, too—go into prostitution in the first place. We undoubtedly need extra resources to address practical needs such as housing, debt, a viable income and drug addiction treatment.

I would like to be able to say that these clauses were extensively debated in the other place, before they came up to us here. Sadly, that was not the case, as the noble Lord, Lord Henley, pointed out in his opening speech. The longest debate in the other place was whether Britain should adopt the practice adopted in Sweden of criminalising the purchase of sexual services but not their sale. I do not intend to take up the House’s time tonight by debating what has been happening in Sweden, but I counsel my noble friend that there are as many or more powerful arguments against doing what Sweden has attempted as there are for trying it. I for one will certainly oppose such a proposition if it comes before us during the later stages of this Bill.

Finally, bearing in mind that we are promised a substantive piece of legislation reforming the law on prostitution in the next Session—David Hanson, the

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Prisons Minister, is on record as saying this—it would be better to drop Clauses 123 to 125 and Schedule 25 from this Bill now. I hope that there will be substantial support for this point of view in all parts of the House, and I intend to table amendments in Committee which will do that.

7.06 pm

Lord Elystan-Morgan: My Lords, in the context of Punch’s famous cartoon of the curate’s egg, this Bill is partly good. I would go further: it is in most parts good and wholesome. It has been attacked for being a ragbag. That was the expression used by the noble Lord, Lord Thomas of Gresford. Yet he then suggested half a dozen other ragbag provisions that should be added to it. It is, of course, a miscellaneous provisions criminal Bill. All criminal Bills, with few exceptions, are miscellaneous provisions Bills. The condemnation of the noble Lord, Lord Henley, and the noble and learned Lord, Lord Mayhew, that there is a lack of theme to the Bill does not demolish it completely. The late Winston Churchill once growled at a waiter who had presented a blancmange before him, saying “Take it away, it has no theme”. Miscellaneous provisions Bills, by definition, cannot have themes, so should not be judged by that yardstick or measure—no more, for example, than a road traffic Bill should be. It involves so many different and disparate matters that it is essential, if one is to take advantage of legislation passing through the House, to add all manner of disparate parts to it.

I have two general comments. First, we appreciate that for the past 40 years Parliament has suffered a surfeit of criminal justice legislation. This, we are told, is the 39th Bill of a criminal nature to be introduced in the past 10 years. The noble Lord, Lord Thomas of Gresford, gives a higher figure and he may very well be right. We appreciate that the law must change with changing events, and change swiftly. Nevertheless, the pace of change in relation to legislation has been wholly excessive. Her Majesty’s loyal Opposition need take no comfort from that. They need not dress themselves in any white sheet of purity because their fecundity regarding criminal justice legislation over the 18 years preceding 1997 was, if anything, greater than the record of the present Government.

There seems to be a mentality which suggests that once a criminal justice Act has been in existence for a period of time, one should, at best, tinker with it and, at worst, take it to pieces. Both the Offences Against the Person Act 1861 and the Theft Act 1968—I had the privilege, as a Minister in the Home Office, of taking the 1968 Act through the other place—are, with very few exceptions, as fresh, as useful and as competent today as the day on which they received Royal Assent. The fact that something is ageing and aged does not mean that it has to be thrown away. Perhaps I should declare an interest because of my age. I feel, mischievously sometimes, that as an obverse to the Bill of Rights of the late 17thcentury, there should be a provision that Parliament should not be allowed to pass more than one criminal justice Bill per annum.

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The second matter I wish to refer to is the most vicious of vicious circles in the relationship between the volume of criminal justice legislation and the apprehension of the public in relation to their safety from crime. Parliament rolls out criminal justice Bill after criminal justice Bill; the public are incensed to believe that their position is becoming more and more desperate. As the public take up such a position, more and more criminal justice Bills come through Parliament. You may say, “Hold on. A dread of crime is, after all, a legitimate and natural reaction in any civilised community. Why should people not feel shock and horror at young people being knifed and shot on their streets? Why should the weak, the aged, the infirm and the otherwise wholly vulnerable not feel terror at the prospect of being robbed or burgled? Why should not society feel abhorrence in relation to the scourge of drugs, especially among young people?” That is not my case. Anyone who does not react to those fears would be callous and indifferent. But when you have a situation of near hysteria in society, when the community seems to be saying, “We are engulfed by a tidal wave of crime and the courts, the police and Parliament are impotent to protect us”, that is the point at which we have to consider the viciousness of these vicious circles.

In the past 10 years crime has decreased in Britain by about 35 per cent. I agree that it may, to some extent, very well be part of a general trend, as the noble Lord, Lord Thomas of Gresford, said. In the preceding 18 years, crime doubled. One would have thought, therefore, that there might have been some prospect of one graph line going down and being roughly tracked and paralleled by the other graph line—but they are moving in wholly different directions. As was suggested by my noble and learned friend Lord Lloyd of Berwick, that may have a great deal to do with the editors of tabloid newspapers. I think it has something to do also with ruthless and unprincipled political propagandism, but that is a matter for another day.

There are many measures in the Bill that I support. I commend, on the whole, the provisions for the rehabilitation of youths. There are difficulties, which no doubt will be discussed in detail in Committee, but I particularly welcome the activity aspects of a rehabilitation order and the fostering provisions, which are imaginative and link up with the more general law relating to children and young persons. It is a step forward to seek that ASBOs for young people should be reviewed every 12 months. That is a progressive and intelligent development.

On pornography, it is only right that we should tighten the law in regard to its most scurrilous and dangerous form, if only to protect people from being murdered in sadistic sexual cases where the stimulation seems to come from such sources.

I greatly welcome the protection that is specifically spelt out for NHS personnel and NHS premises.

There will no longer be the threat that highly dangerous criminals might, theoretically, have to be released at a much earlier date than anticipated in the light of the totality of their sentence. This was brought to light in the Cardiff case about a year ago when the Home Secretary of the day, to his great discredit, attacked

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the learned judge who was simply carrying out the letter of the law and could not have passed any other sentence. In that connection, I make a plea for judges to be trusted and not to be shackled. Four hundred years ago, Lord Bacon said that if justice had a voice it would be that of an English judge. Provided the English judge is not confined to Anglo-Saxons, I believe that that principle still holds good in our day and age.

On Clause 42 and the self-defence provision, that is intended to be declaratory of the current law, and nothing else. Some suggestion has been made in the debate that it extends the law to some extent, but I doubt whether that is the case. In 1984, in the case of Gladstone Williams, the Court of Appeal made it perfectly clear that an honest belief, albeit an unreasonable belief, held by the defendant was good enough. That was repeated in a number of other cases over the next two or three years, particularly in the case of Beckford, a Privy Council case, in 1988.

I would quarrel with the wording of the provision because it relates to the defence of self-defence. Self-defence is not a defence; it is a matter that the prosecution has to expunge beyond reasonable doubt. I hope that it will be reworded to remove that mythology.

I end on a theme to which I have returned on many occasions over the past few months—the question of the prison population. I have no doubt but that the Government have striven manfully to increase the number of prison places; I have no doubt that the Carter report, in advising—and that advice has been accepted by the Government—that there should be 6,500 extra places by 2012 is sound, with a further 5,000 to come onstream. We now have 81,000 prisoners in our prisons, which are bursting at the seams. We are imprisoning more people and, as my noble friend Lady Stern pointed out, more children than any other country in western Europe. We will never be able to build ourselves out of this problem. There is only one way we can tackle the problem, and that is by sending fewer persons to prison. You may say that is impossible. It is not. Our citizens are no more wicked, no more predilected to crime than the citizens of Germany, France, Italy, Spain, Greece and the other European countries. We have to inculcate, in one way or another, a different culture with regard to sentencing.

7.20 pm

Lord Graham of Edmonton: My Lords, I very much appreciate what has just been said and the fine manner in which the noble Lord’s fine speech ended by concentrating on the prison population.

I declare three interests. The first is that more than 20 years ago I was proud to be the parliamentary consultant to the Prison Officers’ Association. The second is that I had the great honour last year to be made a life member of that organisation, to add to a life membership of my own trade union, the National Association of Co-operative Officials. The third is to reveal that one of my proud possessions is a slate from the roof of Strangeways prison, Manchester, inscribed with the words, “To Lord Graham of Edmonton, a true friend of the POA”. I am very proud of that; it signifies the work I have done for the association.

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The House will appreciate that, having declared those three interests in this matter, I have what is called “form”. I do not resile from revealing that to the House. Society rightly incarcerates those found guilty of crimes, some of a heinous nature, to spend time locked up away from the outside world. Many of them, men and women, seek to serve their time without aggravation or violence. Sadly, there are others who continue behind bars their lifestyle of violent behaviour. Who faces them 24 hours a day, dealing with their hatred, their violence and their terror? With respect, it is not the judges, the juries, the police, the public, the media or the man in the street; it is the dedicated men and women who serve within our prisons—and who also serve a sentence themselves because they are locked inside as well.

Prison officers deserve our gratitude for facing as humanely as possible those whom society puts behind bars. They are entitled to our support and do not deserve to be denied justice and equity, especially by a Labour Government. I appreciate what the noble Lord, Lord Stoddart, said on that point. The crux of my argument today lies in the issues that on 9 January in another place formed what was then called new Clause 36 but now forms Clauses 189 and 190. Clause 189(1) says,

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