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I made clear from the outset that I had no interest in the moral or the campaign aspect. I said that I was interested wholly and entirely in the justice aspect. There have been many contributions from around the Chamber. I have not yet heard of one solid area where a defendant has no defence against something about which he can reasonably have no knowledge. If the Minister takes this away, this is the area that must be explained. It has to be explained why this offence, apart from the myriad offences that we have in this country, is so awful that it can have no defence. What is a person going to do? Is he going to go into a brothel and say, "Hello, just before we have sex, have you been

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trafficked? If you have I am going to have to go away again because I'm going to be prosecuted if somebody comes in". We have to get real about this. We have to be very sure that we do not muddle up a moral campaign with justice against somebody who is going to appear in a court of law and not be able to say anything in their own defence.

We have rehearsed all this as much as we can. Both Ministers have to listen very carefully. My noble friend Lord Baker asked whether Clause 13 was relevant. We may come to that. We need to look at this. Trying to discourage an action that a majority of people are totally against may be laudable but it is quite outside the terms of the law and the legal way of going about things. I do not think we can have that.

Baroness Miller of Chilthorne Domer: Will the noble Baroness echo the request made by my noble friend Lord Maclennan that, before Report, the Minister gives the House the advice that he asked for?

Baroness Hanham: If the Minister can do that, it would be extremely helpful.

I am sure that the Government are going to have to think very carefully about this. I hope that perhaps they will have second thoughts about this aspect. I accept the point made by the noble Lord, Lord Borrie, that my amendment may be deficient to some extent but, if this clause is going to go ahead, something like this has to come about. I shall see it come about at the next stage if something better does not appear in the mean time, like the Government having better thoughts about it. I thank everybody for their contributions. I beg leave to withdraw the amendment.

Amendment 46 withdrawn.

Amendment 47

Moved by Lord Brett

47: Clause 13, page 15, line 36, leave out "used force, deception or threats" and insert "engaged in exploitative conduct"

Lord Brett: I shall also speak to Amendments 49, 51, 52, 55, 58, 59, 61, 62 and 64 in the name of my noble friend Lord West, and resist Amendment 48.

As the Bill passed through another place there was considerable debate over the potential scope of Clause 13. I am not sure, not having been present, whether it was a greater or a lesser debate in intensity and range of views than that we have had in the past hour or so. It is fair to say that there was a large degree of consensus on the need to ensure that those who had been forced or coerced into providing sexual services to a sex buyer were given the full protection of the law. There was recognition that this is what we are trying to achieve with this offence. The Government are grateful for the constructive votes taken thus far.

We responded to many of the concerns raised, particularly the fear that Clause 13, as originally drafted, was too wide and that its definition could go beyond the exploitative and coercive circumstances which the offence was intended to cover. It was suggested that it would also cover those who pay for sex with someone who had freely chosen to work in prostitution under the limited direction of a madam. We do not wish such circumstances to be covered by the offence. Therefore,

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to address this concern directly we have made amendments in another place to clarify the scope of the offence. These amendments make clear that the offence will cover those who pay for sex with someone who has been subject to force, deception or threats by another person acting for or in the expectation of gain.

However, in making these amendments we recognise the need to ensure that they do not limit the protection offered by this offence too much. We do not wish the offence to apply only to those who have paid for sex with someone who has been subject to physical force or threats. It is important that we recognise the psychological pressure that can be used to coerce someone into prostitution, and the effect that this can have on people who may be vulnerable. For example, a person seeking to involve another person in prostitution, or maintain their involvement in prostitution, may threaten to report that person to the immigration authorities if they know that person to be here illegally, possibly because they have been trafficked; or threats to withdraw emotional or practical support may be used and may have a particularly pernicious effect on those who are in a weak position compared to the person making the threats or otherwise coercing the prostitute.

To ensure that these circumstances are covered by the offence, subsection (4) currently states:

"For the purposes of this section 'force' includes coercion by threats or other psychological means including exploitation of vulnerability".

That wording was inserted by a Back-Bench amendment, which we accepted on Report in another place on the basis that the Government would tidy up the wording by amendment in this House. Consequently, we have introduced Amendments 47, 49, 51, 52, 55, 58, 59, 61 and 62, which will ensure that Clause 13 makes it an offence for a person to pay or promise payment for sex with a prostitute if a third person has engaged in exploitative conduct of a kind likely to induce or encourage the prostitute to provide the sexual services for which the sex buyer has made or promised payment. Under Amendments 52 and 62 a person engages in exploitative conduct if he or she,

This wording will replace that used in subsection (4).

I turn now to Amendment 48, which has been tabled by the noble Baroness, Lady Hanham, and the noble Viscount, Lord Bridgeman. This would remove the requirement for the third party who had been responsible for the force, deception or threats to be acting for or in the expectation of gain for himself or another person. It would appear, at least theoretically, to allow the offence to apply to a wider set of circumstances as it would not be necessary to establish that the third party had acted in order for himself or another to benefit financially. While there is an argument that it should be illegal to pay for sex with anyone who has been subject to force, threats or deception, regardless of whether such behaviour is motivated by financial gain, financial gain is a significant element of the exploitation that we are trying to target with this offence. The offence is aimed at those who create a financial incentive for traffickers and pimps to coerce or deceive people into providing sexual services as a prostitute.

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Reducing such demand therefore reduces the financial incentive for people to act as traffickers or otherwise coerce people into prostitution. The same does not apply where the third party is not acting for gain.

We do not consider it likely that there would be many circumstances in which someone would behave in this way without the expectation of gain, although admittedly it is not inconceivable. I am therefore grateful to the noble Baroness and the noble Viscount for raising the issue. However, I hope they appreciate that, for the reasons I have set out, we are not inclined to accept Amendment 48.

The amendments that we have tabled are an attempt to recognise the range of circumstances in which people are coerced into prostitution and to ensure that no vulnerable person who has been coerced into providing sexual services is excluded from the protection offered by this offence.

At the same time, it is important that the scope of this offence is clear. We are grateful for the constructive attempts that have so far been made to ensure that this aim is achieved. It has inevitably been a dynamic process involving close scrutiny and reflection, but we believe that these amendments will help us strike the right balance. They address many of the views expressed in the other place and will ultimately ensure that the offence achieves its aim of protecting vulnerable people coerced into prostitution by tackling the demand for such prostitutes. I beg to move.

Baroness Hanham:As the Minister said, I tabled Amendment 48. I am extremely grateful to him for answering it before I have spoken to it. That is perhaps an unusual way of doing things. I have heard the response and perhaps he would like to hear what the amendment is about.

The Government have tabled a number of amendments further amending their definition of what constitutes exploitation. The number of amendments that they have brought forward to this clause indicates just how difficult it is to express clearly what is to be considered unacceptable, and what is to be considered acceptable.

The drafting of this clause is fundamental to the eventual implementation of this offence, and I am not sorry that the Government are taking some care over it. But let us go through it. We started at "intentionally controlled for gain"; then we moved on to,

in the expectation of gain; and now we are looking at "engaged in exploitative conduct" in the expectation of gain.

My amendment in this group probes why the question of gain is a material one in this offence. Off the top of my head, I cannot imagine a circumstance when exploitative behaviour is ever engaged in without gain to the exploiter, but even if such a situation existed, I cannot see that the question of whether there was gain matters one bit to the punter receiving the sexual services. Though the punter may very likely not know it, the prostitute involved is still being forced, threatened or deceived.

This point has been put forward by Justice, which considers the expectation of gain irrelevant. I was going to ask the Minister whether he agrees with

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Justice that this offence should be targeted solely on the exploitation of the prostitute, but I think that he may have already answered me. For the interests of Hansard, however, perhaps he would like to answer me again.

6.45 pm

Baroness Butler-Sloss: It gives me some pleasure to be able to commend the Government for this group of amendments, particularly the words "engaged in exploitative conduct". I have already declared an interest in relation to the All-Party Parliamentary Group on Trafficking, which is one of the areas where we learn from the police, and indeed from those who are trafficked, the wide variety of ways in which people may be exploited. As I think the Government understand, I entirely disapprove of Clause 13-I do not think that it should be in the Bill. However, if it is to be there, I very much commend the fact that the words have been given this much broader meaning. I also support the amendment tabled by the noble Baroness, Lady Hanham.

Lord Desai: I shall make a third attempt at this. This time, since I am going to support my noble friend, he might like what I say, although I am not changing my text.

By adding the words about exploitative acts and gain from exploitative acts, my noble friend has made the distinction that I was trying to make. Exploitation consists of the producer who hires the worker making a gain. The consumer may valorise that exploitation by buying the product or service but the consumer does not actually exploit. That is the point that I was trying to make.

Let us consider the very sad case of the Chinese workers who died in Morecambe Bay. They were trafficked and worked as winkle-pickers or whatever it was. Somebody was going to make a material gain from having trafficked them. If they had not died, the person who bought what they had collected from the sea would have been guilty of buying something produced by trafficked labour. It would be very sad if that person was prosecuted for, as it were, valorising the exploitation of Chinese workers.

The same applies here. Someone is hiring women to supply a service for his or her gain. Someone goes and buys the service, not necessarily knowing the nature of the supply. I think that we should concentrate on the supplier and punish him for doing this for gain rather than punishing the consumer, who need not know that he has bought a dodgy service. I welcome the amendment.

Baroness Miller of Chilthorne Domer: In so far as we still have to discuss Clause 13, because we have not yet decided to get rid of it, I think that the government amendments move in the right direction by expressing at least some intentionality. However, although they are a move in the right direction, I am not suggesting to the Minister that we are any nearer to supporting Clause 13 as it stands, particularly in view of the previous debate. We will come back to this in the debate on clause stand part.

Lord Brett: I appreciate the contributions made and the support for the government amendments with which we are seeking to improve the legislation. It is

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true that sometimes you are criticised for not listening and changing your mind and sometimes you are criticised when you do listen and change your mind. That in a sense is why this House has improved much legislation over the years by giving it greater scrutiny than that provided in another place.

I am not sure that I can add anything to what I said before about Amendment 48. As I say, we think that the use of financial gain is an important element in two ways. First, it is unlikely that there would be exploitation without financial gain. Secondly, it partly explains what we are seeking to do to protect the vulnerable women who are coerced or trafficked. They are trafficked for the financial gain of others, rather than themselves. We want the punters, as we colloquially call them, to understand why we are seeking changes of behaviour on their part, so that they do not seek to go with people who are coerced and they understand the difficulties of people in that situation. We have heard that a high percentage, in some cases 90 per cent, of prostitutes in major cities in Britain, not just in London, are suspected of being trafficked or certainly brought to this country with promises of financial gain.

Baroness Miller of Chilthorne Domer: I am sorry to interrupt the Minister, but this is one of the key issues for a number of us. Where has the Minister received that evidence from? On a previous amendment, I quoted to him very recent research, which I am sure he will look at. Where is he getting that figure of 90 per cent from? The noble Baroness, Lady Stern, and I visited Soho in preparation for this Bill. That was not what we saw. He may have been offered completely different evidence, but the evidence that we had did not come anywhere near showing rates of around 90 per cent-quite the reverse. The rates were probably between 10 and 15 per cent. I do not want to trade percentages with the Minister when there is no evidence, but I wonder where his evidence base has come from.

Lord Brett: I am sure that it would be more accurate to say "up to 90 per cent". The right reverend Prelate earlier mentioned figures in respect of prostitutes in London that included a very high element of trafficked women. I agree with the noble Baroness that it is not worth trading statistics. I will settle for saying that a substantial number of women in prostitution in this country are trafficked from abroad. We know that the figures on trafficking are horrendous enough not to have to worry too much about the statistics.

The Earl of Onslow: The Minister first said that the figure was 90 per cent and then said that he would trade that for "substantial". Basically what he means is, "I haven't the faintest idea what the percentage is". That is sloppy thinking at its worst. Will he please go and find out or ask his officials, who might have some idea?

Lord Brett: The noble Earl is correct about sloppy thinking. I have heard that in this Chamber, but not only from these Benches. I will indeed take his suggestion and seek harder evidence. The noble Baroness mentions evidence from research of which I have no knowledge. I agree that it is sensible at least to try to discover the scale of the problem. I will seek to provide that information to the noble Earl and send a copy to the Library.

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Baroness Butler-Sloss: Before the Minister sits down, I should like to give him a little moral support. My understanding from the work of which I have learnt is that a substantial number of women are trafficked for prostitution from outside the United Kingdom. Also, a number of women are trafficked within the United Kingdom. Therefore the figures are perhaps greater than the noble Baroness, Lady Miller, suggested in her challenge.

Baroness Hanham: This has been an interesting little exchange, not all of it about the amendment. I am grateful for the contributions. Despite what the Minister said, I think that we will still disagree on whether gain is an important element. At the end of the day, the Minister has decided on a different approach. I accept that this is a difficult area and that is what we have ended up with. We may want to come back to the point about expectation of gain in due course, depending on what is decided on Clause 13. I just urge caution on the figures, because I have read a lot of briefings; they are all different and the figures depend on which ones you take on board.

The Lord Bishop of Chester: Perhaps I may put it on the record that I said that four out of five women-80 per cent-engaged in prostitution in London were foreign nationals. I did not say that they were trafficked, but it is safe to assume that a fair percentage of them may well be trafficked. Those figures come from a 2004 report by the POPPY Project, an organisation that works with such women.

Baroness Hanham: One of the dangers of this discussion is that the figures vary depending on who you are talking about, the evidence you are reading and where that comes from. No doubt the Minister will come back to us on where he received his information from. It is very likely that I will return to the amendment if Clause 13 returns to us. We may have more discussion on that shortly.

Amendment 47 agreed.

Amendment 48 not moved.

Amendment 49

Moved by Lord Brett

49: Clause 13, page 16, line 1, leave out "acted" and insert "engaged in that conduct"

Amendment 49 agreed.

Amendment 50 not moved.

Amendments 51 and 52

Moved by Lord Brett

51: Clause 13, page 16, line 6, leave out "used force, deception or threats" and insert "engaged in exploitative conduct"

52: Clause 13, page 16, line 7, at end insert-

"(2A) C engages in exploitative conduct if-

(a) C uses force, threats (whether or not relating to violence) or any other form of coercion, or

(b) C practises any form of deception."

Amendments 51 and 52 agreed.

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Amendment 53

Moved by Baroness Hanham

53: Clause 13, page 16, leave out lines 8 and 9

Baroness Hanham: We come to the last of the specific concerns that we and the interested organisations have with this offence-the level of fine that the Government consider appropriate to impose on a person found guilty of paying for sex with an exploited prostitute, without any element of defence.

Unlike the noble Baroness whose amendments are grouped with mine, I have not selected an appropriate level that I think this offence warrants, for the simple reason that it all depends on whether the Government accept our arguments on the question of strict liability. That will determine which way this goes. If we win our argument on strict liability, I would agree entirely that the level of the offence should be raised significantly to reflect the severity of the crime. If there is no strict liability, there will be a serious offence for which there is a defence.

The ridiculously low level of the proposed fine shows just how weak this offence will be if it is implemented in its current form. The Government's insistence on a strict liability offence means that those who actively seek out trafficked prostitutes or those who simply do not care that the prostitute is clearly exploited can receive a fine of only up to £1,000. In most cases it will be less.

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