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The noble Lord, Lord Borrie, demolished the amendment very effectively and said that the real issue was whether Clause 13 should stand part of the Bill. That is the real force of the arguments of the noble and learned Lord, Lord Lloyd, and the noble Lord, Lord Pannick, although I note that they expressed support for the amendment. There are powerful arguments on their side. I should like at least to put the other point of view, although I am sure that the Minister will do it far better, with the advice that is available to him.
In a sense, this is not quite a strict liability-it is a semi-strict liability. First, the man has chosen to pay for sex. The starting point is not somebody innocently caught up, which is where the case of the person who found that a lodger was smoking cannabis behind a locked door is not an exact analogy. We are starting with someone who is paying for sex. It may be that behind this, as the noble Lord, Lord Borrie, suggested,
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To use the Minister's phrase when he responded to the previous debate, the issue turns on whether we need a whole culture shift in the area of prostitution. I think that the Government take the view that we do. There is a growth in prostitution and those who are engaged in it are now increasingly exploited in the most dreadful way. The noble and learned Baroness, Lady Butler-Sloss, gave a vivid illustration of that earlier. In fact, the girl to whom the noble and learned Baroness referred had in all but name been raped. Think how we in this country regard rape. A lot of the prostitution that occurs in this country is in all but name rape. In those circumstances, I think that the Government are right to say that something has to be done-something which targets the worst examples and aims to achieve a culture shift.
Notwithstanding the powerful arguments of the noble and learned Lord, Lord Lloyd, and the extremely learned noble Lord, Lord Pannick-I respect them hugely as lawyers and normally agree with everything they say-on this matter I think that the balance comes down in favour of the Government.
Lord Desai: When you say that a person is paying for sex, you are already presuming his guilt. That is the problem. It is not an offence in this country thus far to pay for sex with a consenting partner. Therefore, if you say, "Ah, but this man has paid for sex, therefore the rest follows", you have to be very careful. Some of us may not like prostitution and would like to reduce it, but moral considerations are moral considerations and legal considerations are legal considerations, and we are here passing a law.
However, I do not think that his argument is entirely convincing. I would not want to say that we presume the guilt of any man who pays for sex but any person paying for sex needs to take extreme care to make sure that they are not complicit in the exploitative activities to which we have referred. I do not think that it is a presumption of guilt; it is a presumption of extreme care on the part of somebody paying for sex.
There are strong arguments on both sides. I admire the Government's courage for taking this matter on. It comes down to whether we need that culture shift. At the end of the day, that is what determines whether we allow a strict liability provision-it is whether the issue is such that unless we do, we will not address it. Whether Clause 13 stands part of the Bill or not, without the strict liability provision, it will be a dead duck.
Baroness Butler-Sloss: I had not intended to speak on this part of the Bill, because I so profoundly agreed with the noble and learned Lord, Lord Lloyd of Berwick, and the noble Lord, Lord Pannick, that I did not think that I could add anything useful, but I am impelled to my feet by what the right reverend Prelate
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However, to take part of the problem and use a strict liability clause to do it is anathema to most people and not just to lawyers. One has to be very careful in either House of Parliament to approve of strict liability, despite what the right reverend Prelate said-I respect his view but, in my view, he is wrong. A strict liability clause is such a serious matter that one has to be very careful. To use it as part of a culture change seems not to meet the problem. The Government have to nail their colours to the mast and say whether it is wrong for men to pay for sex or only for some men to pay for sex with women who are trafficked. Those men are not all that evil; it is the traffickers who provide the women and, particularly, the children. The Government criminalise the children under 18 at the moment, and will continue to do so unless the relevant amendments are put through-I may not be able to be here for those. I hope that the Government will listen on children under 18. They say that they are victims, but they can also be criminalised and prosecuted. To go for the men in part of it is not to meet the problem. If it is a question of a culture change, the Government should nail their colours to the mast and get on with it.
Lord Brett: I thank noble Lords who have contributed to this debate. Perhaps I may begin by responding to the points of the noble and learned Baroness, Lady Butler-Sloss, and of the right reverend Prelate the Bishop of Chester. The right reverend Prelate said that it is a culture shift. We are not saying that consensual sex between a man who pays for it and a woman who is happy to receive money and is not trafficked or coerced in any way is illegal. This is not a campaign to outlaw prostitution; it is a campaign to persuade men to desist from exploiting women who are victims of trafficking or coercion. The provision will therefore be an amber flag or a red flag, signalling to people to think long and hard about it.
I shall speak to all the amendments in this group, Amendments 46, 50, 57 and 60. Much has been said about the difficulty of getting a prosecution, even using Clause 13, complete with its strict liability. However, the strict liability aspect, which makes it illegal to pay for sex with someone who is subjected to force, deception or threat, is likely to have the effect of reducing demand. If men know in advance that if they are found to have been with someone who is in that situation, they are liable for a fine in court and a criminal record.
The amendments would make it a requirement of the offence that the sex buyer knew, or ought to know, that the person whom they had paid for sex had been
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If a mental element was added to the offence, the defence would be available, and would be highly likely to be used, that the person did not know. It would also increase the need for victim testimony, which we wish to avoid given the trauma that trafficked women already experience. Furthermore, many people who have been forced, threatened or deceived in prostitution are vulnerable and inevitably subject to pressure. They may be pressurised to say that they had not been forced even though they had. The Government are attempting in this part of the legislation to make it clear that men should think long and hard about the form of prostitution they are getting involved in.
The risk of responsibility should rest with the payer to ensure that he does not pay for sex with someone who has been forced, threatened or coerced. It should not be a defence for the payer simply to say, "I did not know that the prostitute was forced, threatened or deceived". He knows that if he pays for sex he runs the risk that the person may be subject to exploitative conduct and that he is fuelling the demand for prostitutes and trafficking for such purposes. Indeed, he is lining the pockets of traffickers and pimps exploiting prostitutes for their own gain.
We know that some people involved in prostitution are in the most desperate circumstances-we have heard about it in this debate-and are exploited tremendously by those seeking to gain from their involvement in prostitution. We want to ensure that sex buyers consider the circumstances of the prostitute and that such prostitutes are protected by the law so far as is possible. If a sex buyer proceeds with the transaction without being sure of the circumstances, they also should face the consequences.
To support the legislation, we shall run a public education campaign aimed at making people aware of the reality of life for many prostitutes and the potential consequences of paying for sex with someone who could have been coerced into providing sexual services. This is one of the recommendations of the tackling demand review. Together with the offence introduced by Clause 13 and the other recommendations of the review, it will form part of the cultural shift that we hope to achieve by creating greater responsibility on the part of the sex buyer.
We were obviously aware of the concerns about Clause 13 that were raised by the Joint Committee on Human Rights. I have no doubt that your Lordships would find it helpful if I set out our response to those concerns.
Baroness Hanham: Can I be absolutely clear about this? I have already made it clear that I am not a lawyer, so I speak for somebody who saw this clause and said at once, "This is way outside what seems to me to be the normal process of law in this country". Is the Minister saying that the particular action of a man having sex with a prostitute is so serious that, by all definitions, he has no defence whatever, even if he has no means of finding out whether somebody has been trafficked? That seems so far away from a court of law being able to listen to, balance and weigh the arguments and understand where there is a defence and where there is not. This is so far away from that that one has to ask whether this offence is so much more serious than any of the others-we have been quoted some-that one has to take away all possibility of a defence. We need an answer to that.
The Earl of Onslow: That was not the question asked. The question was whether the offence is so serious that it overrides all the points made by my noble friend and the noble and learned Lord, Lord Lloyd. The Government cannot see, understand or grasp the majesty of the defence and liberty of the subject and the rule of law when they introduce a clause such as this. It is a disgrace.
Lord Brett: I note the ability and agility of the noble Earl to get to his feet before I have completed the answer and dealt with the point. I was dealing specifically with the point relating to the human rights element, and the point that the noble Baroness raised. It is a question of the degree of seriousness. We can take the examples that we have heard in this debate today of women who are raped, terrified and mistreated. In a situation where a person has an opportunity not to pay that person and not to go to that brothel but also has a liability if they do so-and it turns out that the woman is in those circumstances-we are simply saying that the buyer has to take part of that responsibility. It is a matter of judgment of some contention, as we have heard in this debate, whether that is something that noble Lords wish to see placed in this part of the Bill.
Baroness Miller of Chilthorne Domer: The Minister is talking about a woman who has been raped, but that would be covered by the law of rape. We are-or I certainly am-still struggling with the fact that we have legislation in place, whether for trafficking, rape or violence against women, which allows a defence. Why is this so different? I agree that it is abhorrent if a client rapes a woman, and lots of prostitutes are subjected to violence. There are courses of action that can be taken within the law against them.
Lord Brett: I shall complete the answer and take the noble Baroness's point on board. First, we are satisfied that the Clause 13 defence complies both with the European Convention on Human Rights and the principles of common law. We do not accept that Article 8, which is about the protection of a person's private and family life, includes the right to pay for
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The issue with rape and prostitution is that rape is, of course, very difficult to prove, but here is a situation where a coerced prostitute is being exploited both by the person paying for the sex and, more particularly, by the trafficker or brothel owner. In that context, we seek the culture shift that says that someone using a prostitute in a brothel must take note that, if he does so, he will automatically be guilty if he finds afterwards that the person he has been with is coerced.
Lord Brett: It is not analogous to an educational programme at all. The educational programme is in the endeavour, in the event of this becoming law, that people who are in the situation of using prostitutes have knowledge in advance of what the situation is and what the law is. That is the educational element.
The Human Rights Committee suggested that the offence is not sufficiently certain. We disagree; we believe that the clause is clear. If a person pays for sex with someone who has been subject to force, threats or deception, they will commit an offence. If someone intends to pay for sex and has any doubt whether a prostitute is being controlled for gain, they can choose not to pay for sex with that person. It is important to make the distinction between legal and factual certainty; it is important that the offence is legally certain so that the person knows that, if all the factual elements of the offence occur, they will commit an offence. It may be difficult to know whether all the factual elements will occur in a particular case. However, this situation exists in other areas of criminal law. If an offender punches someone, intending to cause an injury, whether that person commits common assault, assault occasioning actual bodily harm or grievous bodily harm will depend on the nature of the injury that results, which that person may not have been able to judge in advance when throwing the punch.
The amendments that we made in another place help to clarify the scope of this offence and will, therefore, make clearer the circumstances in which it will be illegal to pay for sex with a particular person. That will help people to regulate their behaviour accordingly; consequently, for reasons that I have just set out, we believe that the strict liability aspects of this offence can be justified.
I acknowledge the concerns of noble Lords. We have set out what we believe is the way to go forward. I noted the comments of the noble Lord, Lord Baker. While I found them patronising, I welcome the wisdom within them. I have to explain that the Attorney-General is not here today because she could not be here.
The noble Lord, Lord Pannick, posed a question to which there is not an answer-namely, looking for alternative areas that would qualify, such as the child under 13. It would be sensible to take away all the points that have been made in what has been a very full debate. The only hopeful note that I heard was when the noble and learned Lord, Lord Lloyd of Berwick, said that there were only three lawyers in the Committee; I thought that that was less than normal. I take the point made in his contribution and that of the noble Lord, Lord Pannick. It would be sensible for us to take back without commitment all the contributions in this debate and look again at the whole area of proposals.
The Lord Bishop of Chester: I hope that the Minister, in offering to take this away for legal consultation-although I entirely accept the very serious legal points made earlier-will remember that there is also an important moral point here, which needs to be weighed with the legal point. If a man has sexual relations with a woman who has been coerced, forced, threatened or whatever, the moral status is akin to rape. That is the serious moral issue lying behind the difficult legal judgment that the Government face. I hope that both issues will be taken away from this debate, not only the narrow legal point.
Lord Desai: Before my noble friend replies, I add one element that is not moral but may be more economic. My noble friend uses the word "exploitation". Normally the consumer is unable to exploit; the producer may exploit the consumer, but it is very difficult for the consumer, with monopoly power, to do that. The Government want to punish the consumer for having exploited, because the exploiter is the producer whom the Government cannot catch. So it seems that if you catch the consumer you will by implication catch the person who is the real criminal. That is a bizarre way of doing business.
Lord Brett: My noble friend is a distinguished economist, but I do not necessarily accept on this occasion that it is not exploitation. Someone who goes with a prostitute who says, "By the way, I am not here because I want to be here-I am trafficked", and chooses to ignore that is clearly exploiting the individual. We are not seeking to punish the customer as such; we are trying to educate him so that he knows in law that he will commit an offence. That is the basis on which we go forward. I take entirely the point made by the right reverend Prelate; we will look at the situation in the round, without commitment to change, to see how we look at the matter with the advantage of having had a very full and well argued debate in several quarters. That is why I invite the noble Baroness to withdraw the amendment.
Lord Pannick: I ask the Minister a non-legal question, because I do not want to irritate the noble Lord, Lord Baker. The Minister said at the beginning of his reply that this is not a campaign to prohibit men from paying for sexual services but one to get men to desist from paying for sex with trafficked women. When the Minister goes away and thinks about this again will he think how that campaign, as defined by him, is really being advanced if the man is committing a criminal offence, even if he does not know-and he could not know, reasonably-that the woman has been trafficked? That is the point.
Lord Brett: I take on board the noble Lord's point as requested. "Trafficked" in that sentence is shorthand. In the clause we are looking at "coercion" and "trafficked" as a group, not simply at those who have been subject to trafficking.
Lord Maclennan of Rogart: Will the Minister undertake to provide the Committee with the legal representations that he has received to make such a fundamental change to the law? Will he also undertake to indicate the view of the professional organisations involved with the law, and, indeed, to list all the indications he has received? He keeps referring to "we" as being determined to do this, but so far the only authority he has mentioned in the debate backing his view is one Conservative Member of the House of Commons.
Lord Brett: First, the "we" is not the royal "we" but the governmental "we"-we in government. There is no intention to relate it to membership of this House. On the noble Lord's second point, I cannot provide the legal advice received.
Baroness Hanham: I thank all those who have taken part in the debate. I am extremely grateful to the lawyers here who have been able to support the amendment, or at least the elements of the amendment that we put forward. I am also aware that the Minister may have wished that he was somewhere else, as I know that it was wished to bring the Attorney-General in so that she could stand up to our noble friends and explain at some length and in some detail how this clause and this aspect of it has come about. The Minister might have been quite interested if he had seen the faces around the Committee as he gave his explanation of how this offence came about and how the campaign might develop as a result of it.
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