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Lord Faulkner of Worcester: It would be very churlish of me not to express my deep thanks to the Government for doing exactly what I asked them to do at Second Reading and at successive meetings with Ministers from the Ministry of Justice and the Home Office. I particularly thank my noble friend Lord Hunt of Kings Heath, but his colleagues in the other place, who listened very carefully to what we had to say, also deserve our thanks. We were opposed to the inclusion of these clauses, except for the provision of the relation to the common prostitute, which we welcomed in the original Bill. I imagine that when there is a substantive review of the law on prostitution in the next Session, we shall see that phrase removed. I would also have wanted a debate on the definition of a brothel, which was the subject of my Amendment No. 136, but I shall not be moving that because of the Government’s decision to withdraw the three clauses.

I thank, too, my three noble friends from other Benches, the noble Baronesses, Lady Howe of Idlicote, Lady Stern and Lady Miller of Chilthorne Domer, who put their names to the amendments that I tabled and to the proposal that these clauses should not stand part of the Bill. It is very good when the Government listen to reasoned argument and a very strong submission from outside this Chamber, and I thank them for that.

Lord Judd: As someone who very strongly wished to support the amendment moved by the noble Baroness, Lady Miller of Chilthorne Domer, I join the chorus of appreciation. My noble friend and the Government have yet again demonstrated that they do listen and that when there is profound anxiety they try to respond. That is altogether wholesome and I put my good will towards the Government on record.

Lord Henley: As we understand it, the Government are removing Clauses 123 to 125, which deal not with prostitution at large but with one aspect of prostitution—street offences—which in short terms we could refer to as, for example, the four or five drug addicts who were killed in Ipswich but not the wider issue of prostitution as a whole. Do I take it, therefore, that the Government will come back to that wider issue later when they have a report from the tripartite ministerial group that went to Sweden the other day? In my day, one Minister normally went abroad to look at these things; now, we understand, one Minister has to be escorted by another Minister and they need another Minister as a chaperone to go with them.

Lord Hunt of Kings Heath: It was cross-departmental.

Lord Henley: Oh, it was cross-departmental work. It seems a very extraordinary way of dealing with things. However, that is on the wider question of prostitution. No doubt the Government will be able to respond to that issue in due course.

We are grateful to the Government for withdrawing these three clauses. The noble Lord, Lord Judd, for whom I have a great deal of respect, says that they are withdrawing them because they have listened to him

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and taken notice of what he said. I wonder whether the Government could respond by confessing that they have withdrawn them because, as with so much of this Bill, they are running short of time and have withdrawn this and other aspects to get it on the statute book earlier than they originally hoped. I do not know why the Minister is smiling at me. However, I would be grateful to the Government for some comment on that point and on the more general point of what they propose to do about the wider issue of prostitution and not only the simple issue of street offences.

Lord Ramsbotham: I suspect that other noble Lords have, like me, received a large number of documents, comments and letters from people all around the country about this particular part of the Bill. One document, which I suspect others have not had, is a remarkable brief from a very brave young woman called Laura Seebohm. She is working on a programme in Newcastle upon Tyne with women involved in prostitution. Not only is it an immensely humane and brave document, it contains an enormous amount of wise advice about what these people need to help them break out of the situation they find themselves in—which does not include imprisonment for breach and such matters. I hope that the Minister will allow me to pass this document to him so that he can make use of it with his colleagues in conducting the examination which, I hope, will accompany the withdrawal of these clauses.

Lord Bassam of Brighton: As my noble friend Lord Hunt of Kings Heath announced last week, we have somewhat reluctantly agreed to withdraw Clauses 123 to 125 and Schedule 25 in order to facilitate the speedy passage of the Bill, to ensure that the Bill is in good order and because everyone recognises that we need to work to a timetable if we are to ensure good order in the prison estate. The removal of these clauses in no way indicates a lack of commitment from the Government to tackle issues relating to prostitution head on. I do not think that there is a will in the Committee to avoid the issues: the issue at heart here is to ensure that we deal with these things in a sensible, timely, proportionate and, having listened to what the noble Lord, Lord Ramsbotham, said, well-informed way. We remain fully committed to legislating to remove the stigmatising and outdated term “common prostitute” from the statute books and to reframe the offence of loitering and soliciting. We also remain committed to providing a new court disposal to help those convicted of loitering or soliciting to break the cycle of offending and to develop routes out of prostitution. There is a degree of consensus that that is a highly desirable policy objective.

The noble Lord, Lord Henley, referred to the visit last year of my honourable friend Vernon Coaker and others to Sweden. He said he thought that it was unusual for two or even three Ministers to go abroad to investigate issues such as prostitution. However, I read Alan Clark's diaries and learnt from those that it was not uncommon for Ministers when the Conservative Party was in Government.

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Lord Henley: I have a great deal of respect for the Minister and I, too, found Alan Clark's diaries extraordinarily amusing, but are they the principal source of his knowledge about how we behaved when we were in Government between 1979 and 1997?

Lord Bassam of Brighton: I do not know about that, but they were a jolly entertaining source and a damn good read. Anyway, Alan Clark informs us in some of his diaries that it was not uncommon for more than one Minister to go abroad. The important work that Vernon Coaker and others are undertaking is to review the policy area. The Government recognise that there is considerable support for us to do more to tackle demand and its impact on trafficking. That review is scheduled to last approximately six months. All Governments undertake reviews and look again at policies, and it is sensible from time to time to do so.

We will look to reintroduce the legislative changes in Clauses 123 to 125, along with any others that are necessary following the review into tackling demand, as soon as parliamentary time allows. In the mean time, we will continue to encourage services and schemes that seek to divert individuals away from the criminal justice system and into routes out of prostitution. Government Amendments Nos. 178ZA, 178AA, 180ZA, 180E and 180Fare consequential amendments relating to the withdrawal of Clauses 123 to 125.

I thank the noble Baroness, Lady Miller, for raising the issue. We certainly recognise its importance, as she does in her amendment. I thank the noble Lord, Lord Judd, and others who contributed to the debate on the background to this issue and assisted us in reaching a position that enabled us to bring forward these amendments. We have had some further discussions with the police. They are concerned about some of the amendments that have been tabled and their potential impact on our ability to safeguard young people. That is important and we need to listen carefully to those views and representations.

We must be careful not to be seen in any way to be condoning prostitution involving under-18s. For that reason, we need to reflect further on this particular proposal, whose aims we share and with which we have some sympathy. Many noble Lords should be congratulated at this point in this series of discussions and debates. I am grateful to all those who have contributed and who have been supportive. I trust that the noble Baroness will withdraw her amendment, understanding as she does the position that we have reached.

6.15 pm

Baroness Miller of Chilthorne Domer: I thank the Minister for those statements. In withdrawing my amendment, I say again that when the Government bring back this legislation they should look at the example from New Zealand which we certainly heard a lot about. Three Ministers may have visited Sweden but none visited New Zealand to see whether decriminalisation was effective. That gap does the Government discredit in looking at this issue. I hope that the intervening time will allow the Government

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to draw from those examples if not to visit New Zealand, which I hope a Minister will bother to do.

I completely agree with the Minister's comments about under-18s. However, I did not hear him mention the important issue of brothels. We will not press our amendment, but the Minister and his department made a commitment to redefine “brothel”. There are some serious issues around trafficked women but, at the same time, women who are running brothels responsibly say that two or three individuals can work safely together, not on the streets but with decent health provision and in safety. That is an important issue and the Government have to address it.

On 9 January 2007, the Home Office confirmed that no consultation had taken place although an announcement was to be made. This legislation has been introduced and then withdrawn so I hope that the Government will take the time to think not only about addressing street offences, but what they are going to do. In the mean time, brothel owners are being prosecuted, so this difficult situation is continuing.

Lord Bassam of Brighton: In my haste to bring this discussion to a conclusion, I omitted to say a word or two about brothels. To clarify that, I understand the argument made by the noble Baroness and we did indeed make those observations. It remains part of a co-ordinated strategy. That is why we want to consult further before any legislative changes are brought forward. We believe it would be wrong to pre-empt the demand review by consulting on the change to the definition of “brothel” now but we shall come back to the issue once the review is completed. I believe that makes for a more coherent approach that is plainer to all.

Baroness Miller of Chilthorne Domer: I thank the Minister very much for that clarification. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 135 not moved.]

Clause 123 negatived.

Clause 124 negatived.

Schedule 25 negatived.

Clause 125 negatived.

[Amendment No. 136 not moved.]

[Amendment No. 136A had been withdrawn from the Marshalled List.]

Clause 126 agreed to.

Schedule 26 [Hatred on the grounds of sexual orientation]:

Lord Thomas of Gresford moved Amendment No. 136B:

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The noble Lord said: We move to the offence of hatred on the grounds of sexual orientation. Our amendment seeks to define the word “threatening” in subsection (1) of the proposed offence. “Threatening” appears in the original Act in relation to religious hatred but “threatening” here in relation to sexual orientation should be extended, so that there can be no doubt about it,

What is the purpose of this amendment? We are concerned about the suggestion very frequently made by the British National Party and others that homosexuality and paedophilia are directly connected and that a person who is homosexual has a propensity to be a paedophile. As your Lordships are aware, there is no evidence whatever to that effect. Accordingly, we wish to extend the protection that is given by this schedule to avoid that imputation whether it is express—that is, whether it is asserted—or implied because a homosexual who hears someone saying that he is a paedophile may be in considerable danger. Those around him may decide that he should be attacked. I need not go into too much detail about the ways in which homosexual people have been attacked to the point of being beaten to death. We must avoid adding fuel to that fire by suggesting that a person is a paedophile simply because of his sexual orientation. The law should protect a person in that position. I beg to move.

Lord Waddington: While it is very easy to understand why the noble Lord, Lord Thomas of Gresford, was moved to put down this amendment, it must be wrong to state in a statute that any and every reference to the possibility of there being a connection between sexual orientation and a propensity to commit child sex offences must be treated as a threat when in the particular circumstances it obviously may be nothing of the sort. Imagine a scenario of four people, perhaps academics, talking among themselves about the nature of paedophilia. One—let us assume entirely misguidedly— says there is evidence that paedophilia is more likely to be found among homosexuals. It is absurd to say that although the proposition was put forward in the most moderate terms and the proposal was based on an honest belief, the words must be treated as a threat when clearly they were nothing of the sort. In other words, it must be bad law to have a definition of a threat that covers things which clearly are not threats.

Of course, I recognise that the offence requires intent but that is beside the point. We are talking here about the definition of threatening words or behaviour. We must not make bad law and wrongly define as a threat something that may be nothing of the sort. So I hope that we will not spend very long on this amendment, although I well understand the reason why it was put down and the very real mischief to which the noble Lord, Lord Thomas, referred.

Lord Thomas of Gresford: The noble Lord is right to say there may be circumstances where an association between homosexuality and paedophilia is made that

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do not amount to a threat, as we would think of it. However, it can very easily be a threat, as I am sure the noble Lord understands and accepts. The protection from prosecution on the basis to which the noble Lord referred is that the consent of the Attorney-General is required to a prosecution. Clearly, the innocent discussion to which he referred would not form the basis for a prosecution to which the noble and learned Baroness the Attorney-General—whom I am pleased to see in her place—would respond.

There is a problem to be dealt with because, as the noble Lord rightly says, the association between homosexuality and paedophilia may not be a threat in itself but it can be. It is for the Attorney-General to decide on the facts of a case whether it should be the subject of a prosecution.

Lord Monson: I, too, sympathise with the purpose of the amendment of the noble Lord, Lord Thomas. However, is it not the case that as many boys as girls are victims of paedophiles, if not more so, and yet the overwhelming majority of those who perpetrate paedophile crimes are men? Does this not suggest that there is a tendency among paedophiles towards homosexuality, compared with the proportion in the population as a whole? Perhaps the noble Lord would like to comment on that.

Lord Thomas of Gresford: On the contrary, I am not suggesting that there is any association at all. However, the charge that they are paedophiles is frequently made to incite violence against homosexual people. This amendment would guard against using that association as a threat.

6.30 pm

Baroness Butler-Sloss: My understanding, having done some reading on this, is that boys are as much at risk as girls, but there is nothing to show that those who offend, who are largely men, are men who incline towards homosexuality. People who have had heterosexual relations are also paedophiles.

The Lord Bishop of Chester: I entirely share the intention of the mover of the amendment, but the question is whether and why one should single out this form of threat and put it in the Bill. Once you start to do that, you lose the whole basis on which the legislation has been framed, which is to allow context. Words which in one context can be non-threatening in another context can be very threatening. It seems to me that the law is precisely framed as proposed to allow the court to judge context. Once you start to spell out context, you get into the sort of difficulties that are being alluded to.

There is an interesting parallel here, because the law as proposed is modelled on the offence of incitement to religious hatred. Because of well-publicised cases of the abuse of children by clergy—I am glad to say not mainly clergy of my denomination or of this country—and because of that association in the news, clergy not uncommonly get that sort of abuse hurled at them. I have known it myself. Simply because of wearing a dog collar, someone makes that sort of allegation. I

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find that very distasteful, but I would not want that to be used as the basis of a criminal prosecution. It seems to me that that is going too far, and I would not want that to happen. Because these offences by their nature are so contextual, it seems to me that once you start to spell out the context, you wrap the thing up in an inappropriate way.

Lord Mayhew of Twysden: I listened with care to the response of the noble Lord, Lord Thomas, to the point at the heart of my noble friend Lord Waddington’s amendment; namely, that we must not legislate to declare a threat something that in some circumstances cannot be a threat. To that, the noble Lord, Lord Thomas, responded that the safeguard lies in the requirement for the consent of the Attorney-General to a prosecution.

I am very hesitant indeed about placing on the Attorney-General the function of a jury in deciding whether in a particular scenario a threat is a threat. My understanding of the function of the Attorney-General, when given the discretion of the character that we are talking about, is whether a prosecution would be in the public interest, not to undertake the function of a jury in deciding whether a fact or a component of a complaint of a charge is present. I speak with some hesitation about this, having just heard the noble Lord, Lord Thomas. That would be my anxiety.

Earl Ferrers: A number of noble Lords have said that they quite understand what the noble Lord, Lord Thomas, is getting at. I am afraid that what the noble Lord, Lord Thomas, has suggested is rather alarming. He has said that there may be many cases where people will make remarks like this one and they need not be threatening, but that there are some cases when they might be threatening and therefore that it would be a good thing to have this clause in the Bill. I find it frightening because you will end up with people being too frightened to say anything. It is not a question of an argument going up to the noble and learned Baroness the Attorney-General; it is a question of a person being frightened and alarmed at the prospect of possibly going to court and possibly going to jail for saying something in a perfectly innocent way. I think that we are getting ourselves into far too much of a straitjacket by trying to determine the whole way through life what people must say and what people must not say and what they can and cannot do. To accept the amendment would be a retrograde step.

Lord Hunt of Kings Heath: In a sense, this is a prelude to our next debate. I have some sympathy with the noble Lord, Lord Thomas, in raising this matter, where allegations have been made by organisations and papers suggesting that homosexuals must all be paedophiles and therefore should be treated as criminals. The noble Lord is right to raise that as a matter of concern and to understand that for the gay community that can be very divisive and can generate fear and hostility. Where I do not agree with him is on the necessity for his amendment, for the reasons that the noble Lord, Lord Waddington, suggested.

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