Policing and Crime Bill

Public Bill Committee, 5 February 2009.

Nicholas Winterton (Conservative, Macclesfield)

I welcome all hon. Members to the sitting. This is an early start. Some of us have made it and others have not. I congratulate the Committee on making good progress on Tuesday afternoon. I am confident that we will make further constructive progress today.

Clause 5

David Ruffley (Conservative, Bury St Edmunds)

It is early in the morning, hence my uncharacteristic lack of sharpness. I will redress that temporary deficiency by opening in a positive spirit on clause 5, the subject of which is collaboration. The Committee will be happy to know that the Minister and I agree on the principles that the clause will bring into effect. The Government and I believe that it will improve the quality of policing across the board. With your permission, Sir Nicholas, I think that it is worth spending some time in the clause stand part debate airing the recent history of collaboration and what the clause will do to take the argument forward. The clause has new and interesting powers, which I will ask the Minister about.

In September 2005, Her Majesty’s inspectorate of constabulary published a famous report, “Closing the Gap: A Review of the ‘Fitness for Purpose’ of the Current Structure of Policing in England and Wales”. Primarily and importantly, it examined the provision of protective services known in the trade as level 2 services. To some minds that is a sloppy shorthand, but I will use level 2 interchangeably with protective services to ensure that the Committee is not detained for too long. Those services relate primarily to serious and organised crime, child protection issues, terrorism and so forth. That important report came to the conclusion that

“when viewed from the context of the range of challenges and future threats now facing the service and the communities it polices, the 43 force structure is no longer fit for purpose. In the interests of the efficiency and effectiveness of policing it should change. Whilst some smaller forces do very well, and some larger forces less so, our conclusion is that below a certain size there simply is not a sufficient critical mass to provide the necessary sustainable level of protective services that the 21st century increasingly demands.”

At about the same time, the Bichard report into the Soham murders highlighted the ineffective co-ordination between police forces in tackling cross-border crime, which had the tragic consequences that we all recall. In 2006, the chairman of the Association of Police Authorities, Bob Jones, wrote:

“unequivocally that there is a gap in the capacity and capability of the service to tackle adequately level two criminality”.

He aired that view at some length in volume 12 of “Policing Today”.

In short, there is a general consensus across the tripartite structure that there are gaps at level 2. The consequences that flowed from HMIC’s report “Closing the Gap” ended in a recommendation that the then Home Secretary, the right hon. Member for Norwich, South (Mr. Clarke), took forward with a plan for force amalgamation. I shall not detain the Committee with, in my view, the unfortunate history of that Government initiative for merger, because now is not the time to go over old, controversial party political ground, and it would detract from the import of what is immediately at issue in the clause, which is collaboration.

However, it is important to understand the failed attempt to close the level 2 gap. It is up to all politicians of good will who want a sister service to do the job better to work out what we can do as a country to close that gap. It is impossible to envision a Government, whether the current Administration or an Administration of a future stripe, in the near or medium-term future, returning to the suggestion that there should be forced amalgamations or mergers whereby nine or half a dozen strategic forces are compelled to merge. For example, Cheshire constabulary would be stripped of its cap badges and independence and put into a north-western strategic force. That proposal was proffered by the then Home Secretary, following the report to which I referred. Unambiguously, it is not on the Conservative party agenda, whether in Opposition or should we be in Government, to revisit such matters.

It is worth repeating that there will be no mergers from us. I accept that the Minister will have his own views, but my understanding is that Her Majesty’s Government are not seeking to rerun the failed attempt at force merger. That is why the solution proffered by the clause must be seen as a direct response to the fact that we need an answer, although we do know that merger is not that answer.

After that brief historical reminder, I shall move to collaboration. On 17 July 2007, the Minister’s predecessor announced that 22 bids for demonstrator status had been received from which a total of 10 demonstrator sites collaborating on matters ranging from back-office services to serious organised crime had been selected. On 12 December 2007, the then Minister with responsibility for policing said that those initiatives had been selected from 22 bids to provide a balanced programme throughout England and Wales to explore and develop the models of collaboration between forces that can deliver vital level 2 services.

Above all, I emphasise that I am not advancing a dry argument about organisational structures and the process of machinery. Why was the collaboration process moved forward by the then Minister? He was right to stress that it was to protect the public more effectively and efficiently. His colleagues at the Home Office were also right to say that collaborative working was a key part of a national programme that the Government wanted to take forward and that it had the support—as it does now—of her Majesty’s Opposition. It was done in consultation with the Association of Chief Police Officers and the Association of Police Authorities. The selected demonstrator sites were offered £3.7 million of Home Office funding to contribute to the start-up costs and to cover the evaluation process managed by the National Policing Improvement Agency, which I should say, parenthetically, I find from my work on the Front Bench is an admirable organisation. It gives valuable advice to Her Majesty’s Ministers and to shadow Front-Bench Home Office Ministers.

Vernon Coaker (Labour, Gedling)

I thank the hon. Gentleman for that remark. If a problem emerges, everyone says that it should be given to the NPIA, which—under Chief Constable Peter Neyroud who runs it—works exceptionally hard. Sometimes it is criticised because it goes into difficult areas. It is good that he congratulates it and I join him in doing so.

David Ruffley (Conservative, Bury St Edmunds)

I am grateful to the Minister. I wish to go further. This is in order, Sir Nicholas. You are a very strict Chairman and we all admire you for that. I shall talk of the NPIA for a minute in the context of its being an important part now of the collaboration that I hope will happen more often if this clause is enacted.

Picking up on the Minister’s point, some people in ill-informed quarters, who are not as familiar with policing as the Minister and my shadow Front-Bench colleagues, consider it fashionable to call the NPIA a quango, which is a term of abuse quite often used by the media and some politicians. The NPIA is not in my view a quango. It is a high-quality organisation which acts in the public interest, not just by giving confidential and private advice at a high level to Ministers. It has always been available to hon. Members, certainly in my party and, I fancy, in the Liberal Democrat Opposition. That is part of the ethos of British policing. It has been refreshing in my 18 months as shadow Minister to see on a day-to-day basis, with one or two very rare exceptions, that party politics is really of no interest to the policing community. It wants effective solutions and it looks to Parliament and Ministers and even shadow Ministers to advance the effectiveness of British policing, to give the police and the whole policing family the tools needed to do the job, and collaboration is one part of it. The NPIA is important and we respect and value the work it does.

The NPIA is part of the monitoring process looking at the progress of collaboration and the tangible benefits that it can bring. The NPIA has to ensure that the shared knowledge—the success of certain collaborations—is spread more widely to parts of the country where that collaborative process is perhaps not known. So the NPIA is important in our deliberations and in the development of this policy should this clause be enacted.

The current legislation relating to collaboration agreements is set out in section 23 of the Police Act 1996. Under this section, two or more chief officers may—subject to the approval of the relevant police authorities—make collaboration agreements between their forces in the interests of the efficiency or effectiveness of policing. In addition, two or more police authorities may make collaboration agreements for the provision of premises, equipment or other material or facilities. A collaboration agreement under the existing legislation may be varied or determined, as one might expect, by a subsequent agreement. The Secretary of State has the power, after considering any representations made by the parties concerned, to direct those parties to enter into a collaboration agreement or an agreement to vary or determine an existing agreement.

It might be useful if I illustrated what the concept of a collaboration agreement means in the real world. I shall refer to two examples of collaboration agreements that I have been briefed on. However, because I have chosen these two specific examples does not mean that they are the only ones in England and Wales, nor does it mean that they are necessarily the best, or examples of collaboration that have yielded the biggest financial benefit so far—they are merely the two examples that I am familiar with.

After the Committee, I shall be looking at other examples of collaboration around the country. For the moment, I draw the Committee’s attention to the five east midland forces: Derbyshire, Leicestershire, Lincolnshire, Northamptonshire and Nottinghamshire. They have a history going back to 2001, when the east midlands special operation unit was formed to create one of the largest and most significant collaborations in the country. The collaboration of those forces goes well beyond special operations and the unit that was set up in 2001. The five forces also collaborate in areas relating to state management, fleet management, training of officers and staff, and procurement. They work together operationally in areas even more specific than that, such as water search, air support, hostage and crisis negotiation and firearms. Additionally, Derbyshire is a lead force for the east midlands counter-terrorism intelligence unit.

The collaboration is overseen by a collaboration board, comprising the chairs of the five police authorities that I referred to, and the five chief constables. This is important, because it goes to the heart of my earlier remarks about the need for specificity in collaboration agreements. It is not just on a nod and a wink; if these things are to work they need to be properly nailed down in writing and a clear government structure put in place. That is why the experience of the east midlands collaboration is worth studying.

There is a further oversight of collaborative work through the east midlands police authorities joint committee, which has the delegated powers of a police authority when overseeing collaborative activity between those forces. In addition to that oversight, the east midlands region maintains a central collaboration programme team which is led at chief officer level. The team exists to promote collaboration and manage the region’s collaboration programme. The programme is set out in a collaboration plan, which I believe is a first in England. That programme has a strategic element to it and a plan of work. The three workstreams that are currently in play relate to building capacity and capability, and to improving productivity, which will always be a remorseless and ceaseless search for many years to come. The search for greater productivity in our public services is a never-ending war. No Minister will ever be happy with the productivity levels that he sees in any force; there is always room for improvement. Thirdly, they relate to putting in place the structures relating to information technology, to human resources and to finance, which will support better collaboration.

The east midlands chief constables and police authorities are proud of the proactive approach to collaboration that they have taken. One reason why this clause, with its new powers—I will get on to them in a minute—is important is because not every part of England and Wales is as proactive as the east midlands. At the moment, collaboration operates in an unsatisfactory patchwork quilt way, which is what the clause seeks to remedy. East midlands police authorities give two reasons why they have been specially proactive. They say that it is a direct response to the operational risks identified in the HMIC “Closing the gap” report, to which I referred at the start of my remarks. Its main author, Sir Denis O’Connor, described the region as the most at risk in the country as far as protective services were concerned. Therefore, forces in the east midlands have a particular reason for wanting to get on with collaboration.

Moreover, the collaboration approach in the east midlands is a response—this is important—to the financial position facing those police authorities and forces in the region. The five authorities stated that over the three-year period 2010-11, they received—and will receive—£57 million less in Government grant than the raw funding formula indicated that they should get. We touched on that matter yesterday in the police grant debate, so I will not divert into a repetition of the floors and damping arguments. It is well-rehearsed argument because some police authorities feel aggrieved. If I can continue the grown-up and consensual relationship that I currently have with the Minister, I will say that it is not a problem that will go away with a change of Government. Under the current damping arrangements, there are winners and losers, and there are no easy solutions to that that will please every police authority or force. It is a technical issue that admits to no party political fiddling—if I can put it that way. There are Conservative and Labour areas that do better than they should under the current grant arrangements, and there are Labour and Conservative authorities—[Interruption.] The Minister points to his own in Nottinghamshire. There are authorities which are, in their view, disadvantaged and do less well than they should. When I say that, I mean that they do less well than the raw application of the formula grant suggests.

Sally Keeble (Labour, Northampton North)

I understand that this is not a debate about police funding or police performance, but I want to put on record the fact that having looked closely at such matters over the past 10 years I can say that some of the hon. Gentleman’s statements are quite misplaced. In Northamptonshire, although the pattern has been up and down, the authority has received substantial financial assistance, and great assistance in the form of interventions from the Home Office with which to support improvements in its performance. Without going into the whole debate, I just wanted to put that fact on the record.

Nicholas Winterton (Conservative, Macclesfield)

Before the hon. Gentleman replies, let me say that although the hon. Lady was quite right to say that the clause is not about funding, she was quite correct to intervene because her county was mentioned. I trust that if the hon. Gentleman responds, he will be brief.

David Ruffley (Conservative, Bury St Edmunds)

I will be brief. I bow to the hon. Lady’s greater knowledge of Northamptonshire, but she should understand that my facts come from the police authorities. They have written to me, and I merely cite what they say [Interruption.] I will not take a further intervention. I hear what the hon. Lady says but she should speak to the collaboration board in her region if she has—[Interruption.] She is talking from a sedentary position. In good faith, I did not seek to make a party political point—quite the reverse. I was saying to the Minister that this does not permit a party political argument. I was repeating a briefing from the collaboration board and if the hon. Lady does not like that, I suggest that she write to the board, and look at Hansard to see what I have said. [Interruption.] She continues to chunter away from a sedentary position, which is desperately unhelpful in what has, until now, been a mature debate. If she has a problem, she should write to the collaboration board.

I come now to the second example, which is the collaboration between Kent and Essex. This is something that is seen to be radical and innovative in the policing community, I have spoken to Ministers about it, and a lot of people are looking at it.

Mr. Simon Burns (West Chelmsford) (Con) rose—

David Ruffley (Conservative, Bury St Edmunds)

I am happy to give way to the hon. Gentleman, who represents the fair town of Chelmsford.

Simon Burns (Conservative, West Chelmsford)

It is in the county of Essex, which my hon. Friend mentioned. I wish to reinforce what he has said. The work done between Essex and Kent is extremely innovative. It is going extremely well and is an example that others should study and contemplate following.

David Ruffley (Conservative, Bury St Edmunds)

My hon. Friend is entirely right. I have had occasion to visit his constituency; I have been to his road at least twice. From my discussions with him, I know that he keeps a weather eye on the policing in a town that he not only represents, but lives in. He is very much part of his community. He is right to point out that the chief constable of Essex, Roger Baker, is a proselytiser of great ability, who speaks to Members of all parties about how more efficiencies can be squeezed out of existing police budgets. That is very much what collaboration, if done well, is about.

As chief constable, Roger Baker has a policy of, among other things, ensuring that his officers attend all crimes. That objective is being delivered on. He also has a policy in the Essex police authority, which is integral to what he is doing, of opening police stations for longer. That is not explicitly part of the collaboration agreement, but the delivery of those two objectives—longer opening hours for police stations and more police stations open; and more officers attending crimes—is possible only if there is an increase in officers on the front line. He and the police authority explain that it is only because of collaboration that they get more officers back on to the front line. Resources are freed up from the back office and other parts of the organisation and can then be redeployed for front-line activities, to deliver those objectives.

In the Essex experience, collaboration is a means by which more officers can be returned to the front line. Collaboration is not some dry, dusty and dull subject—if done right, it can deliver what we all want. Whatever one’s political persuasion, however perverse and muddle-headed a politician might be, who on earth could conceivably object to more front-line policing, because that is clearly what the British public want? The man and woman on the street want to see more visible policing. They want attendance at crimes, if they are unfortunate enough to be a victim of crime. They want to see a police officer—they do not necessarily want just have a chat on the phone with someone when they ring 999, but to see an officer as a result.

The specifics of the collaboration agreement with Kent constabulary are as follows. I have had the benefit of discussing what that means in practice with the excellent chairman of the Essex police authority, as well Chief Constable Baker, on more than a couple of occasions. In April 2007, Essex and Kent police authorities and forces agreed to collaborate in what they described, rightly, as a ground-breaking initiative to enhance the service to the communities in both their counties. In order to oversee and manage the collaboration, the two police authorities established a statutory joint committee and delegated most of their functions to it to facilitate expeditious and effective decision making. In any collaboration agreement, decision making is always at issue. If there are lots of individuals and more than one force—by definition, a collaboration cannot take place in one force, but needs two, or five, as in my earlier example from the east midlands—one can imagine that there will be tensions or differences of emphasis about how decisions should be made, such as about serious organised crime, across forces. Each force would have its particular interests and its own patch to defend, which is understandable. However, in collaboration agreements, by definition, there has to be a bit of give and take. When decisions are taken, they have to be taken effectively. There has to be give and take because, at the end of the day, only one decision can be taken, so delegation is an important part of the process.

In the Kent and Essex collaboration, the purpose of the strategic mandate for the collaboration programme is

“to engage in full collaboration on Operational Functions and Support Services, whilst maintaining operational independence”.

Since January 2008, 14 reviews across those areas have been completed, identifying £2.7 million of savings, of which £1.8 million are recurring capital savings. The two forces have agreed to create a single procurement department, using a collaborative shared service agreement—the first such venture in UK policing on that particular scale, I am informed. What do we mean by “services” and “procurement”? I am advised that those words can relate to training, human resources and personnel development, administration, finance, major crime, firearms—a large number of operational activities.

The Audit Commission carried out a governance review of the Kent-Essex collaboration. The findings were extremely positive:

“Essex and Kent Police Authorities have established a vibrant and effective collaboration partnership which is providing considerable financial and performance benefits to both forces. Leadership and governance is strong, and programme management robust.”

I shall not detain the Committee with details of the other drives for efficiency that Essex constabulary and police authority have established, because the savings that they want to achieve over a three-year period far exceed the figures that I quoted, which were specific to the collaborations in hand. A wider programme in Essex is delivering bigger savings, but as I wish to remain in order I will confine my remarks to collaboration.

The two examples that I gave of collaboration are not the only ones, but they give the Committee a flavour of what is possible. Not all police authorities and areas are as proactive those two, so why is the Minister introducing the clause and why are Her Majesty’s Opposition supporting it? Sir Ronnie Flanagan discussed the need for new powers last year in his admirable review of policing. In recommendation 11, he said:

“The Home Office should include in its forthcoming Green Paper consultation”—

that refers to the consultation last summer—

“on the establishment of a service-wide consistency of the implementation of standard systems and processes. The Green Paper should also specifically consult on the issue of whether the Home Office should mandate regional collaboration on issues such as procuring IT systems, air support, fleet, uniform etc.”

The necessary levers and incentives to drive forward collaboration are important and the Government rightly said that they wanted a clearer legal framework that would underpin joint working and collaboration in future. In response to Sir Ronnie’s proposal, they sensibly said that they would bring forward legislation to deliver a new improved framework. In the Green Paper, the Government said:

“We will also continue to seek opportunities to reward and recognise collaboration.”

I particularly want to ask the Minister about that, so my first question in this clause stand part debate is will he give us a sense of what the rewards are? In my common-sense reading, that does not refer simply to the new legislative framework in the clause, but implies that they will reward and recognise collaboration. Is it a financial incentive? What kind of recognition are we talking about? It is important, because the police service says, “This collaboration is all very well, Mr. Ruffley, and we know that you support the Government in driving forward collaboration, but there are lots of problems with it”. I am sure that that point has been put to the Minister by members of the police service.

I shall not detain the Committee with a debate about precept equalisation, which reared its ugly head in the strategic merger debate. Among the many reasons for the forced strategic mergers failing is that, in many cases, police authorities with different precept levels could not agree about how precept equalisation should work if a constabulary was abolished and merged into a bigger strategic force. I am not making a party political point—it is a technical issue that does not permit an easy or simple solution. In that context, police authority members and members of the police service ask whether it is worth their while to join collaboration agreements when the business case might not be good.

Responses to the Green Paper from outside bodies were interesting. ACPO said that collaboration agreements should be determined by chief constables and police authorities with minimum input from Home Office Ministers. It suggested that mandated collaboration from the Home Secretary, which is permitted by the clause, should come about only after the trigger of serious inadequacies in level 2 provision are highlighted by an inspection by Her Majesty’s inspectorate of constabulary.

When the Minister and the Home Secretary consider whether to exercise the power of mandation, must they have regard to an inspection report from Her Majesty’s inspectorate of constabulary or could they take the decision to mandate without that evidence? What evidence will Home Office Ministers turn to, if any, when deciding whether to mandate a collaboration agreement and set of arrangements in any part of the country? To ram this point home, we must tease out the basis on which mandation might occur. What are the parameters within which Ministers will exercise their powers under the clause?

The ACPO response to the Green Paper, published in 2008, states:

“Chief Constables and Police Authorities should be the determinant figures in the first instance for collaboration opportunities. The assessment of potential for further regional collaboration should rightly remain as part of the remit of HMIC, who have a clear role to challenge inadequate or disproportionate approaches based upon local challenges and circumstances. This view will need to be taken across regions not just police forces. It must be risk based and not formulaic.”

The Minister must answer that point from ACPO. I, too, say that it must not be formulaic. The response continues:

“For these reasons ACPO feels the use of powers available to the Home Secretary should be the exception and only implemented where HMIC identify clear gaps that are not being addressed.”

It is not just ACPO that wants the terms of the power in the clause to be teased out. The APA would prefer what could be described colloquially as a carrot approach:

“If partners are reluctant to collaborate this will usually be for good reason and may not be identifiable through a quantitative analysis, for example where organisational cultures were deemed to be incompatible. The preferred approach should remain to encourage voluntary collaboration through putting in place a package of levers and incentives”.

I do not agree with the position that voluntary collaboration should be tried again. It has been in force since the collapse of the strategic merger project. We need the power to mandate because, in the view of Ministers and shadow Ministers, voluntary collaboration has not been proceeded with rapidly enough.

I conclude my remarks—[Interruption.] If the hon. Member for Stourbridge wants to contribute to the debate or intervene, I am happy for her to do so rather than have her muttering from a sedentary position.

When I asked about collaboration in the evidence session last week, Sir Norman Bettison pointed out that the first problem is that the current 43 forces have differential and variable costs, so collaborating on an issue is rarely a fair and equitable discussion. He said that the second problem is the variability in the vision of priorities. In other words, forces have different operation and policing priorities. The third problem that arises in relation to arrangements is what he refers to as the “net donor syndrome.” In that context, he said:

“Every individual force and authority imagines that they will contribute to a collaboration and that they will be a net donor. If I were chief or chair of a big force, I might consider that my current assets would be diluted. If I were chief or chair of a smaller force, I might consider that my contribution would be sucked into the bigger metropolitan forces.”——[Official Report, Policing and Crime Public Bill Committee, 27 January; c. 8, Q8.]

We have an important new power in the clause. Some concerns have been expressed by ACPO and the APA. They are not ones that I share, but they raise an important question: what financial levers or inducements might be available to accompany and supplement a mandation from the Home Office? Moreover, in exercising such a mandation, what do Ministers think that they will be considering, and will it be an adverse report across a sub-region by HMIC that informs their decision to mandate? It is on that note of questioning and probing that I conclude my remarks.

Nicholas Winterton (Conservative, Macclesfield)

Before I call the next speaker, may I say that the Chairman of the Committee is a servant of the Committee? He or she has the responsibility to ensure that all matters are debated. I say to the Opposition spokesman that I have been advised—unofficially of course—that we hope to get to the end of part 1 this morning. We have had a speech that has lasted 48 minutes. We have about 35 minutes before we must adjourn. The Committee must appreciate that all hon. Members should have an opportunity to participate. If we continue at this rate, we will not make much progress with the Bill. That is a comment to all hon. Members and I hope that it is heeded.

Paul Holmes (Liberal Democrat, Chesterfield)

I will be brief, Sir Nicholas. Everyone involved agrees that collaboration makes sense in a lot of circumstances, whether it is back-room procurement, payroll or the purchase of uniform. I am referring to all the things in which economies of scale can save money, whether it is on the joint provision of an expensive service such as the force helicopter in Derbyshire and Nottinghamshire, or on serious crime issues and terrorism. Everyone sees the sense of collaboration. Without going over Tuesday’s debate on this issue, I will say that I am still astonished that the Government feel that they need to give themselves the power to interfere quite so much in the process of collaboration—either to force it to happen or to limit it. The issue that we discussed on Tuesday was that, if more than six police authorities want to collaborate on a matter, the Secretary of State must give permission for them to do so. If seven, eight or nine police authorities and chief constables decide that they want to work together on something, why, when all those hurdles have been passed, do the Government feel that they must have the last say? That seems strange and I would appreciate some elaboration from the Minister. Do the Government fear that if 10, 15 or 20 forces collaborated, there would be a danger of a national police force? That would seem strange, given the Government’s efforts to force mergers and create larger police forces over the last couple of years.

I do not think that this phrase has passed my lips before, but it is worth listening to the wise words of the previous police Minister in the debate on the police grant last year. He said of the Government:

“We made quite a serious mistake throughout the debate on mergers—which we were halfway through when I took over this role—when we assumed that we were at ground zero and that there had not been any real degree of collaboration or significant cross-force work in the past. There had been, and that should have been recognised.”—[Official Report, 4 February 2008; Vol. 471, c. 677.]

As we have heard today and on Tuesday, there are good examples of collaboration. The Minister says that the east midlands forces in his area of Nottinghamshire and mine of Derbyshire are shining examples. Will he give specific examples of areas that are so far behind the curve that the Government think they need the power to force collaboration? Will he also give examples of the grounds on which they would want to stop collaboration?

Magistrates have raised the concern that if there is more police collaboration on certain issues across force borders, there may be more instances like the Redknapp case in which the City of London police issued a warrant to search properties in another force area. Will that happen more often if there are more collaboration agreements? Is that desirable? Should it be the magistrate or district judge in the force area where the search will take place who issues the warrant as a matter of course, or could it be done by the magistrate or district judge in the area of a collaborating force that wants to search out of force area?

Vernon Coaker (Labour, Gedling)

Good morning, Sir Nicholas, and everyone on the Committee. I will make a couple of general remarks before speaking on the clause. I will bear your comments in mind, Sir Nicholas.

The merger debate is relevant to the clause because although mergers have gone off the agenda, the problem that they were trying to solve has not. That is the important point in this debate, and some good points have already been made. Whatever the rights and wrongs of mergers, a problem was identified by HMIC, and the Government came up with a solution that could not command the support that it needed to go through. Since then, police forces, Government Members and Opposition politicians have been wrestling with the question of what is the right solution.

I do not wish to be party political but, contrary to the comments that this is a damp squib of a Bill, the quality of our Committee debates has demonstrated that, far from not saying much about police reform, the Bill will make quite significant reforms that build on those currently taking place. Those of us who understand police reform can see that. We had excellent debates on police accountability and the senior appointments panel, and we are having another on police collaboration.

The hon. Member for Bury St. Edmunds is right that collaboration is fundamental to the future of policing in this country. We simply have to get this right. The problem with the mergers debate was that, rather than trying to deal with the problem, the issue became taking police away from communities. The collaboration proposals demand that we get away from the idea that there is a choice between local, regional and national. People on the street know that what happens in local areas is influenced by how police forces in a region deal with regional crime, and by how national crime is dealt with. Drugs appear on a street in my community, or in any Member’s community, because of regional organisation or national gangs. Tackling that through effective law enforcement at all levels is one way to improve community safety. Perhaps it is not a false choice, but it is a choice that cannot be made. Policing at every level is crucial—from the neighbourhood to the local to the regional to the national level.

We were left saying, “The merger debate went away, so what do we try to put in its place?” Through the measures that have been taken, we have tried to encourage and push for collaboration. It is perfectly reasonable to say that significant improvements and changes have been made across the country regarding collaboration. We can all pay tribute to the different steps that have been taken. The debate has moved on and is now much more mature because it is not about, with respect, defending or protecting individual police forces in Cheshire, Nottinghamshire, Suffolk or Devon and Cornwall. It is about ensuring that those forces work together to be as effective as possible in delivering crime and harm reduction in their own communities. So, we have good examples of current collaboration—the hon. Gentleman gave a couple.

It may help the Committee if I state a fact about finance, to show some of the progress that has been made. These figures are only indicative, but initial scoping work by HMIC on subsidiarity has found that police spend on collaboration has more than doubled since 2005-06, from just over an estimated 4 per cent. of overall police spend to some 10 per cent. in 2008-09. Some of that has obviously come from Home Office funding, but much has come from individual police forces. So steps are already being taken by police forces to improve collaboration and to tackle some of the problems that they see.

You might be interested to know, Sir Nicholas, that in Cheshire an improved response to serious and organised crime is being delivered through a joint serious and organised crime unit with Lancashire and Merseyside. That is being enhanced in 2009-10 with £1 million of matched funding for the whole of the north-west region, to deliver a regional capability for tacking serious and organised crime. The West Mercia force—the hon. Member for Bromsgrove is a member of the Committee but she is not here—is working with the other forces in the region to develop an infrastructure to maximise intelligence opportunities for tackling serious and organised crime.

Every region has a regional intelligence unit. In Wales they have the Tarian project, which is making a significant difference, and in my region we have the east midlands organised crime unit, which I have had the pleasure of visiting. Things still need to be done, but that is an excellent example of what can be done. As an aside, the co-location of the counter-terrorism intelligence units is interesting. When I visited the east midlands organised crime unit, I opened the counter-terrorism intelligence unit there. The problem is that, while we can point to good examples around the country—for instance, where serious crime and firearms are being dealt with well—we have to find a better way to ensure greater consistency of approach and a greater sense in every area of the country that such crime is being tackled.

I see the clause injecting some pace and momentum into the process. That is what is needed, frankly. We all agree—there is no one in Committee who says that we are opposed to greater collaboration or that it is not a good thing to do. Go to individual police forces, and they say the same thing. Go to individual police authorities, and they say the same thing. Everyone agrees that it is something that we should do and that it will make a difference. However, we have to give greater clarity in the legislative framework—that is what the clause provides in the legislation—but also to inject some momentum as we go forward. I will answer a couple of the specific points and leave mandation until later.

The hon. Member for Bury St. Edmunds talked about the issue of rewards and incentives. I do not mean this as a “money does not matter” remark, but we should not underestimate the impact of the clause. That we have now clearly, legislatively, set down a framework in which we expect police force and police authority collaboration will make a significant difference to the terms of the debate. That is one of the things that will help. That is what police authorities and forces have said to us—they lack that certainty of a legislative framework allowing them to collaborate. The legislation will make a significant difference.

As well as that, the efficiency savings that can be generated will themselves be something. The savings will not be clawed back, but can be reinvested into the police force and used in that area. We have provided initial funding for sites, encouraging them to start on particular projects, and we can—it is probable that we shall—look at that, to see whether we can help with start-up costs or have some pump-priming money to begin the process. That may be one of the ways that we try to do that. One of the problems with pump-priming money, however, is that it is not money for ever. The money is to start things. One of the problems with pump-priming money sometimes is that people see it as money that should become part of their core budget. However, sometimes there is a way of saying that we can and should provide it. Using that money is an important possibility.

Bearing in mind the strictures, let us look carefully and quickly—I want to come to mandation as a particular thing at the end—at the ability of police forces to collaborate, so that they can come to an agreement on the joint discharge of functions by members of police forces, or on members of a police force being provided to another force. To overcome some of the problems of direction and control, the collaboration has to be laid down in an agreement. As hon. Members know, only mutual aid, which works particularly well, is currently sorted in that way. However, there are other ways to tackle things.

We clearly delineate—this is important—between a police force agreement, which deals with the operational functions of police forces, and police authorities. We try to ensure the delineation between police forces and authorities, which was the purpose of that amendment in our deliberations on Tuesday. That is an important distinction, which we need to bear in mind. If we look at police force collaboration agreements and what becomes possible, that clarifies it. With respect to police authorities, the hon. Member for Bury St. Edmunds clearly laid out what can be done and the functions that could be taken forward, such as premises, equipment, staff services and facilities.

It must be right that we improve the procurement of certain equipment and services, whether it be uniforms or police cars. I do not want to take away from the discretionary powers, but police forces believe that they should be able to do better in the purchasing of some equipment and save money. We all know that, if we bulk buy, we save a significant amount. We hope that the clause will put a sense of urgency and momentum into what people regard as common sense.

The clause lays out clearly how to reach agreement about pay and the accountability arrangements. We have said little about that, but such matters are an interesting follow-on from Tuesday’s debate on accountability. In respect of greater collaboration arrangements, the challenge is what accountability arrangements are put in place for the joint workings when people are moving across borders. We argue that the public should have a greater say in neighbourhood policing, what happens in the local area and the regional delivery of some services and police functions. How does a member of the public decide whether the local police force is dealing effectively with tackling gun or drug crime?

I have tried to get to the nub of the problem, and the hon. Gentleman made an important point about mandation. I accept that the hon. Member for Chesterfield will not agree, but mandation is a last resort. The whole purpose of the clause is not to force police authorities down a particular route. We are not saying that we have a preconceived idea about how they should collaborate but that, in certain circumstances, it is surely in the interests of the delivery of those services for there to be greater collaboration.

The hon. Member for Bury St. Edmunds asked about evidence. That is the crux of the matter because, at the moment, police authorities and chief constables clearly need to be consulted. If the hon. Member for Chesterfield were Home Secretary and was in a region where four chief constables agreed on a matter and one did not, or three chief constables agreed on something and two did not, would he allow that to continue or say, as the Home Secretary, that he has responsibility to take some action? That judgment has to be made. Mandation allows in certain circumstances—as a last resort—that it is in the interests of the public in that area and the delivery of the functions of the police or the police authority for a collaboration agreement to be made.

The hon. Gentleman’s specific point was about the role of Her Majesty’s inspectorate of constabulary. I have asked Denis O’Connor to advise us on the issue and to examine where decisions are best made and what collaboration there could be, and to give us advice on what we should be looking for. When we receive that advice, we will have to see how it matches and incorporates itself into the mandation powers in the Bill.

David Ruffley (Conservative, Bury St Edmunds)

In what time scale will Sir Denis give that advice? Are we talking about weeks or months?

Vernon Coaker (Labour, Gedling)

My understanding is that we will receive that advice next month—March. When I have looked at the report, I shall talk to Sir Denis O’Connor about what is or is not appropriate. I do not know what the report will say, but I am sure that the deliberations will be helpful to the Committee. The hon. Gentleman was going down the same route as me—if we are going to mandate, we cannot do it on a whim, we need evidence and having that evidence will be helpful.

What would the hon. Member for Chesterfield do if Her Majesty’s inspectorate said that in the interests of effective police delivery in an area there should be greater collaboration? We all know the local reasons that sometimes occur, and they are not always positive. We would have no power under the hon. Gentleman’s proposals to do anything when the inspectorate said that collaboration was needed to deliver police functions effectively and efficiently. I do not believe that that position is tenable. The powers are not to be used as a first resort, but should certainly be available as a last resort.

Paul Holmes (Liberal Democrat, Chesterfield)

I would still appreciate some elaboration on the conflict. The Minister has said that there will be situations in which the local people do not agree and the police authority says that it does not want to collaborate, but they will be forced to because the Secretary of State knows better. Equally, if seven police authorities do want to collaborate, the Government have given themselves the power to say no. Why do the Government not trust local police authorities, which they want to be more powerful, more accountable and to have greater responsibility for funding? It is yes on the one hand and no on the other.

Vernon Coaker (Labour, Gedling)

All the way through this we have been talking about voluntary collaborations and agreements. It is for local people, local police authorities and local police forces to decide on the best way forward, so, far from showing a lack of trust, it shows a great deal of trust. All we are saying is that we should have a reserve power, if, despite all the advice received, the local area refuses to go down that route. It is a reserve power and would be used as a last resort.

I have highlighted the major points. The measures will inject real pace and momentum. Since I have had responsibility for policing, I have been saying that this is important. Neighbourhood policing and collaboration agreements are crucial to delivering what we call the level 2 function. It is not dry, dusty tinkering, as the hon. Member for Bury St. Edmunds said, it is a fundamental attempt to bring about something that we have been wrestling with since the mergers debates. As I said at the beginning, mergers were off the agenda because we could not deliver them, but the problem that they were trying to solve is still with us. The measure is a radical and bold attempt to work with police forces, communities and police authorities to deliver the collaborative agreements and the change needed to deal with what we all recognise is a real problem.

Clause 7

Vernon Coaker (Labour, Gedling)

I beg to move amendment 3, in clause 7, page 9, line 35, leave out ‘(“the authorising force”)’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss Government amendments 4 to 18.

Vernon Coaker (Labour, Gedling)

The amendments replicate for Scotland what the clause does for England and Wales, where the matters are reserved, and it is within the powers of the UK Government to do so.

David Ruffley (Conservative, Bury St Edmunds)

We are now back on track, as you would wish, Sir Nicholas and I have just one question. The clause relates to authorisation under the Regulation of Investigatory Powers Act 2000. Can the Minister, for the benefit of the Committee, tell us why the Government did not seek to take the opportunity in this clause to look at the RIPA codes? The Minister will be aware of the debate—his predecessor was certainly well aware of it—which concerns the fact that RIPA is an important means of making sure that the authorisation that officers seek, when they carry out surveillance, is done in a way that civil rights are protected. We understand that.

However, many representations were made to his predecessor and have been made to me. I shall give just one example. Over two years ago, the Police Superintendents Association made representations in writing to the Home Office, the nub of which was to amend the RIPA codes to say that in a set number of examples—it came up with up to 20—an authorisation under RIPA would not be necessary. To give a flavour of that, it suggested that the RIPA codes should be amended in the following, stylised example. At the moment, if a police officer had intelligence, anecdotal or otherwise, that youths were breaking into cars parked in a particular supermarket car park on a Sunday, in order to survey that event by hiding behind a wall, under a strict interpretation of RIPA 2000, that officer would have to get written authorisation for that surveillance.

That was one example where the Police Superintendents Association indicated that the RIPA codes should be re-written to create an exemption. That is a current issue. When I last raised it with the Minister’s predecessor in Westminster Hall last year, the Minister said that this problem—I paraphrase—had been dealt with. It is clear that what he said in Westminster Hall was not the understanding that serving officers had of the operation of the RIPA regime and seeking authorisation. They were seeking a re-writing of the RIPA codes to make exemptions. Officers said the problem was still current. The Minister’s predecessor was wrong to say there was no concern. I wonder, in the light of that, why the Home Office or its advisers did not see fit to touch on that in the police reform part relating to authorisations necessary for surveillance in the context of RIPA, which is the subject of this clause.

Paul Holmes (Liberal Democrat, Chesterfield)

It has been suggested—the Minister says, unkindly—that the Bill is a rag-bag, that it is legislation for the sake of it. One issue that has perhaps been missed and which the opportunities of this clause could have dealt with is the concern about the over-extension of the number of people who can use the powers under RIPA. When RIPA was introduced, nine organisations could use its powers. By last year it was 792 organisations, including 474 councils. In the last year, the police and law enforcement agencies made 19,000 applications to use the powers of RIPA and councils and other departments made 12,500 applications. At that rate, it will not be long before councils, Government Departments, civil servants are making more use of this than the law enforcement agencies that it is designed for. We have had examples of councils using the powers to try to monitor dog fouling, people who may or may not be lying about where they live so they can get access to schools and that sort of thing. I know the Government have recently said to councils that they should not be doing this, but when powers are created they will be used. This has happened with counter-terrorism legislation where police use it to arrest people who are legitimately protesting at an arms fair or heckling at a Labour party conference. If powers exist, people will use them. Do the Government intend to look again at the workings of RIPA—the way it has extended into so many non-law enforcement agencies—and alter legislation to deal with that?

Vernon Coaker (Labour, Gedling)

I commend all Members of this Committee tomorrow to read the House of Lords report—I gave evidence to the Select Committee—which deals with many of the matters raised by the hon. Gentleman, in particular the inappropriate use by local authorities of powers under RIPA. That is being looked at.

In direct answer to the point from the hon. Member for Bury St. Edmunds, we are looking at the statutory codes of the covert surveillance and human intelligence services and we will be putting out revised codes of practice for public consultation in the not too distant future. The hon. Member will then be able to look at those and comment. That work is being taken forward and I hope that reassures him.

Clause 8

Nicholas Winterton (Conservative, Macclesfield)

I welcome hon. Members to the afternoon sitting of the Public Bill Committee on the Policing and Crime Bill. If I look a little weary before the end of our sitting, that is because, having left this room at 10.30 am, I was in the Chamber until 12.15 pm and in my office from 12.20 pm until 12.55 pm, when I had to come back to Committee. I have not had any refreshment, so I am sure that members of the Committee will make my job easier.

Vernon Coaker (Labour, Gedling)

On a point of order, Sir Nicholas. Would you like someone to fetch you a cup of tea?

Nicholas Winterton (Conservative, Macclesfield)

That is a very kind suggestion, but I am a strict Chairman of the traditional sort and do not permit hot drinks to be consumed when the Committee is at work. I thank the Minister for his sympathy and assure him that it is much appreciated.

Clause 11

David Ruffley (Conservative, Bury St Edmunds)

It would be helpful if the Minister could describe what procedures he envisages a Home Office Minister directing in accordance with the clause. In last week’s evidence session, I gave a specific, practical example and asked about a direction that a national suite of crime recording forms be imposed on chief constables. As the Committee will be aware, the police have to fill in a large number of forms in respect of any crime that takes place.

In his interim report of September 2007, although not so much in his final report of February 2008, Sir Ronnie Flanagan drew attention to the concept of the nationalisation of crime forms, something on which Her Majesty’s Opposition have mused. Can a Minister, under the power vested in him or her under the clause, direct that chief constables adopt a standard set of forms across the range of offences? The various forms associated with the manual of guidance are customised. For example, MG forms have a slightly different format for Cheshire constabulary from those used in Suffolk or Hampshire. Not only am I a veteran with experience of reading written briefs, but I recently spent a day at Basingstoke police station and a day at Ipswich police station. I read case files of common assault and domestic violence, and noted that the set of forms in Hampshire was radically different from the set of forms in Suffolk for the same crime. We are about to reach the end of part 1 and will soon be coming to the meat of part 2, but before we do so, will the Minister give us some examples of the directions in which a Minister might wish to participate? Would they include the imposition of a national suite of forms?

Vernon Coaker (Labour, Gedling)

My direct answer to the hon. Gentleman about whether the clause could be used to change or standardise forms is yes, we could do that if we chose to do so. To repeat our discussion this morning, what we try to do all the time is to move towards a position in which people did that voluntarily. We would only wish to intervene as a last resort, and examples would include a whole range of procedures and processes—police IT systems, service procurement and other back-office processes. At present, regulations can only be made for all forces, and they can be made in support of joint operations. The proposed change allows regulations to be made for smaller numbers of forces, which will give provide greater flexibility to what we may or may not require forces to do. I hope that answers the hon. Gentleman’s question.

Clause 13

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I beg to move amendment 81, in clause 13, page 13, line 27, leave out ‘for gain’.

Nicholas Winterton (Conservative, Macclesfield)

With this it will be convenient to discuss the following: amendment 79, in clause 13, page 13, line 29, after ‘A’, insert ‘intentionally’.

Amendment 27, in clause 13, page 13, line 30, after ‘(B)’, insert

‘, or knows that another person has made or promised payment for such sexual services,’.

Amendment 28, in clause 13, page 13, line 31, leave out paragraph (b) and insert—

‘(b) any of B’s activities relating to the provision of those services are procured by a third person through the use of or threat of the use of force or coercion or B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation) which together shall mean “controlled” for the purposes of this section, and

(c) either—

(i) A does not reasonably believe that any of B’s activities relating to the provision of those services are controlled, or

(ii) A is reckless as to whether any of B’s activities relating to the provision of those services are controlled.’.

Amendment 67, in clause 13, page 13, line 31, before ‘any’, insert

‘A knows or is reckless as to whether’.

Amendment 82, in clause 13, page 13, line 32, leave out ‘for gain’.

Amendment 83, in clause 13, page 13, line 32, at end insert ‘, and

(c) A knows, or is reckless as to whether, any of B’s activities relating to the provision of those services are intentionally controlled by a third person.’.

Amendment 68, in clause 13, page 13, line 33, leave out subsection (2).

Amendment 29, in clause 13, page 13, line 36, leave out paragraph (b).

Amendment 84, in clause 13, page 13, leave out lines 36 and 37 and insert—

‘(b) whether A is aware of the identity of C.’.

Amendment 30, in clause 13, page 14, line 1, leave out subsection (3).

Amendment 85, in clause 13, page 14, leave out lines 1 and 2 and insert—

‘(3) An activity is “controlled” by a third person (C) if—

(a) B participates in the activity because of the use or threat against B or another person of one or more of—

(i) violence,

(ii) blackmail,

(iii) unlawful detention, or

(iv) other reprisal;

(b) C intentionally exercises control over the activity; and

(c) C is aware, or ought to be aware, of a relevant circumstance in paragraph (a) above.’.

Amendment 80, in clause 13, page 14, leave out lines 1 to 4 and insert—

‘(3) An activity of B is controlled by a third person (C) if—

(a) C’s behaviour in relation to that activity involves—

(i) compulsion, coercion, intimidation or force directed against B or any other person, or

(ii) regular instruction or direction, or

(b) if B reasonably believes that C’s behaviour includes that described in paragraph (a).

(4) A person guilty of an offence under this section is liable—

(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding the statutory maximum, or both;

(b) on conviction on indictment to imprisonment for a term not exceeding 3 years.’.

Amendment 31, in clause 14, page 14, line 11, after ‘B’, insert

‘, or knows that another person has made or promised payment for such sexual services,’.

Amendment 32, in clause 14, page 14, line 12, leave out paragraph (b) and insert—

‘(b) any of B’s activities relating to the provision of those services are procured by a third person through the use of or threat of the use of force or coercion or B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation) which together shall mean “controlled” for the purposes of this section, and

(c) either—

(i) A does not reasonably believe that any of B’s activities relating to the provision of those services are controlled, or

(ii) A is reckless as to whether any of B’s activities relating to the provision of those services are controlled.’.

Amendment 33, in clause 14, page 14, line 17, leave out paragraph (b).

Amendment 34, in clause 14, page 14, line 19, leave out subsection (3).

May I be as helpful as possible to the Committee? I appreciate that the clause is an important feature of part 2. I would be inclined to permit a stand part debate, as long as hon. Members speak specifically to the selected amendments, rather than going wider and discussing the general principles of the clause. With that understanding, I can give a commitment to permit a stand part debate if one is requested. I have already been advised by the hon. Member for Oxford, West and Abingdon that he would like to discuss the principles in a stand part debate, which is a rational and constructive way of discussing this important clause.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is a pleasure to be more actively engaged in scrutiny of the Bill. I am delighted that the Committee has made such good progress, and I hope not to stand in the way of progress this afternoon.

There are clearly disagreements about the provisions, but we can all agree that the intention behind the Government’s proposals is a good one. However, there are many issues about the impact, effectiveness and unwanted side effects of the provisions, as well as the evidence and consultation behind them. Those are matters for a stand part debate and, given that you will look kindly on a request for one, Sir Nicholas, I intend not to raise questions in this part of the debate about the general approach of a clause 13 offence seeking to tackle demand, or about the impact, effectiveness and side effects of the clause, as well as about consultation and the evidence base. We can talk about the large number of amendments that seek to probe the intentions behind the clause or, in some cases, to improve it. I understand that the Minister and the hon. Member for Bury St. Edmunds agree with that divide, which will hopefully enable us to have a more constructive first debate, followed by one in which there is clear division on the second point. I shall only raise general points now if they are strictly necessary for the discussion of the amendments.

The amendments fall broadly into three groups. Although there is large number of them, they overlap. Rather than go through the amendments in my name and that of my hon. Friend the Member for Chesterfield in order, I thought I would discuss them in groupings. I am more than happy to accept interventions when I describe the impact of the amendments, if hon. Members think that I have got it wrong or missed something. First, the amendments are broadly on the question of strict liability—that is, whether there is intention or not. Secondly, the definition of “controlled for gain”, which constitutes part of the offence, and is probably the most important issue, although they are all important. It is the issue on which there may be some common ground. Following the evidence session, we understand that the Government may be prepared to look at whether there are ways of making absolutely clear what we are talking about.

Included in this group is a series of amendments that tackle miscellaneous issues, such as what the penalty should be, particularly if the offence is not a strict liability one; whether the offence is committed by the person who pays or by the person who uses the paid-for sexual services; and issues related to the geographical scope and jurisdiction of the offence. I accept that not all the amendments in my name are perfect—I speak only for myself—or legislation-ready. They are probing amendments, as this is the first of many stages in which this part of the Bill will come under serious scrutiny. May I say at the outset that regardless of how dismissive the Government are of the amendments, they will not provoke me into seeking to divide the Committee. I hope that that is helpful, because we are seeking to establish the intention behind the provisions.

As I say, I recognise that the intention behind the clause is honourable, as it claims to deal with the question of prostitution involving trafficked women and coerced women, forced prostitution, and exploitative prostitution. There is no difference, I think, between any of the parties represented in Committee about how much we want to abolish such forms of prostitution and get rid of them. They are a breach of human rights—I serve on the Joint Committee on Human Rights—and it is very clear that we should have little tolerance of any coercion, where there is no willingness on the part of the prostitute. Part of the argument we can have on clause stand part is whether an offence like this effectively deals with that problem. We will touch on that when we discuss strict liability. I hope that that is understood and that we are not in the business of debating whether there is a commitment on anyone’s part to deal with, get rid of and punish those responsible for forced prostitution in all its forms.

Turning to the amendments dealing with strict liability, which include amendments 67 and 83 in my name, and amendment 29 in the name of the hon. Member for Bury St. Edmunds. These amendments try to argue with the point raised in subsection (2 ) of proposed new section 53A, which states that it is irrelevant

“whether A is, or ought to be, aware that any of B’s activities are controlled for gain.”

Amendment 29 seeks to remove those words.

Amendment 67 contains the words:

“A knows or is reckless as to whether”.

I accept that the amendment might read better—and this is why I do not think that it is perfect—if it contained the words, “known or ought to have known”. That is probably a better way, in this sort of legislation, of considering the question of whether we should have something that is either strictly intentional and includes a degree of recklessness, or is an issue of strict liability.

In her evidence, Shami Chakrabarti from Liberty helpfully set out the hierarchy of intention down to strict liability. Essentially—I am not quoting her directly—at the top end, it was a strict intentional offence. Coming down the scale, it was an intentional offence including a situation in which the perpetuator blinds themselves to the consequences of their action. Further down, there are forms of subjective recklessness: we are not doing a reasonableness test, so it is harder to commit the offence. In a case of subjective recklessness, someone does not think rationally about the consequences of what they are going to do—for example, if they throw a stone over a wall, knowing that there is a greenhouse on the other side, they do not intend to break the glass, but just do not consider the consequence of what they are going to do.

In cases of objective recklessness, which is similar to a form of negligence, a reasonable person would have foreseen the action. Further down the line, there is strict liability. The amendments are aimed at getting rid of strict liability, because there are real problems with it. First—and we heard from lawyers who gave evidence to us—it is wrong in principle to have strict liability offences outside the narrow area of regulatory offences, in which regulatory bodies say that if these are the facts, regardless of whether somebody intended to commit an offence, an offence has been committed. In principle, that is an inappropriate measure for matters to do with sexual offences or personal matters of this nature.

There were attempts to make gross indecency—then a homosexual offence— and age-of-consent offences offences of strict liability. In even more conservative times than those we live in today, there were strong objections to there being strict liability offences in those situations because of the danger of someone being misled or blackmailed. Those two go together, of course, and I do not think the question of blackmail has been brought up in connection with the clause. It is quite possible for someone who is prepared to be exposed as someone who uses the services of a prostitute—and therefore not blackmailable in that sense—to be blackmailable on the basis that a third party later claims that they committed an offence, even though they were led to believe as part of the entrapment that they had definitely not done so, and they took care to establish that they were not committing that offence. It would help them if they could be confident that they had any kind of defence against those facts. Under the provision as drafted by the Government, there is no such defence, and therefore there exposure to blackmail is possible. Blackmail is an offence in itself, regardless of whether people think that those individuals deserve to be blackmailed. Blackmail is not to be encouraged or assisted by legislation, but the chances of blackmail may increase under the Bill.

The Bill does not allow for a penalty to be imposed that matches the offence. The position with strict liability offences is that it is impossible to impose a custodial sentence, as I understand it, because of human rights issues. There must be some form of fairness in the trial and possible defences, before someone can be locked up for strict liability offences. That means that the Bill will capture—and perhaps it is designed to capture—a man who knowingly have sex with a woman who has been forced into prostitution, and knowingly has sex with a woman who is not therefore giving consent to that act, as coercion completely vitiates consent. That is rape, and even if people do not feel that rape could easily be proven, it is certainly a serious matter if someone knowingly has sex with someone against their will because they have been coerced or intimidated. However, to punish that with a maximum fine of £1,000 does not fit the purpose. If one could have an offence that was intentional, or even objective recklessness—that is the provision that I am offering the Minister—one could have custodial sentences to match the offence. One would not be dealing with people who were misled or made a simple mistake or had no good reason to believe that there was coercion and that the consent was not valid.

That brings me on to another reason why strict liability offences are not appropriate in this area. They do not achieve what the Government would otherwise achieve by having a more directed, restricted offence. If the Government accept that prostitution is with us, and they are not criminalising all prostitution—all the buying and all the selling related to prostitution—it must be a public policy aim to direct as much demand as possible, and I will come onto enforcement in a moment, into the “acceptable” end of the prostitution marketplace, where there is no coercion, sexual enslavement, intimidation or exploitation by third parties such as pimps gaining from it. In those conditions, women who are engaged in prostitution receive no benefit from it, but are essentially forced by circumstances to do something for which they are not getting a return.

We do not have to get into a debate about whether all prostitution is always exploitative—I use that term in the sense that I have just described—and how to make a distinction between that and the type of prostitution where the woman is in charge of her arrangements, is making a return, has a choice about which clients she accepts, what she performs and the price she charges. There is clearly a distinction. If the Government intend—as I believe they should—to push the demand, such as it is, into that area and therefore reduce demand in the area that we all find unacceptable, it would be wise for the punter’s offence to be committed in the circumstance in which we want to diminish the market, and not the other. That is only logical. The Government will be frustrated in what they are seeking to do, and they have blinded themselves to that eventuality by not including such provision.

My proposals measure would also allow our precious enforcement resources to be directed towards the unacceptable, outrageous offences. I was going say the “mischief”—a term we use in law—but it does not describe the abominable nature of the offences. If there is such an offence—we are debating amendments in relation it, so it is clear we can envisage circumstances in which there will be one—we would like the police to chase after men who are going to end of the market where prostitutes are exploited as I have described and are forced, intimidated or coerced. I would be grateful if the Minister responded to the points of principle I have raised about the drawbacks of a strict liability offence.

As I have said, my amendment deals with recklessness and I am happy for that to be understood as “ought to have known”, which is common in other areas. That is pretty wide—it goes wider than simply strict intention—and would require men who use the services of prostitutes to be clear, and seek to be clear, that there is no intimidation, coercion or control for gain, particularly if they are going back to the same women. We will have a debate later about how we define that. If such men fail to take straightforward steps or find themselves giving money to a man rather than to the woman herself or if there is any sign that the woman in unwilling, the offence might have been committed.

The measure gives a man who is charged a defence, which is right according to the rule of law, but it also enables the penalty to be much more serious. What I have proposed in my formulation in amendment 80, as a consequence of its no longer being strict liability, is that the offence is triable on indictment, with a maximum penalty of £5,000 if it is heard in the magistrates court, and that it should have a term of imprisonment “not exceeding 3 years.” If the Minister were to say, “Well, if we’re going to have a strict intention offence, it should be seven years as some of these offences are,” I am happy to consider that. The point is that that would be a far greater deterrent to men, and therefore a far greater restraint on this evil trade, than that currently in place. The man would be genuinely deterred and the police could enforce the legislation in a directed way in these areas.

Roberta Blackman-Woods (Labour, City of Durham)

The hon. Gentleman is making an interesting argument. Will he reflect on the fact that the Bill tries to shift the responsibility for using the services of a prostitute who has been forced into prostitution, for which there might be a range of reasons, from the prostitute to the man who purchases her services? It tries to do that in a way that is not overly complex, but what he is arguing for would introduce an area of complexity in relation to what is and is not “reckless”.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I accept the hon. Lady’s point. Providing a defence, and providing extra criteria that must be met before an offence is committed, would change the offence from a simple one of strict liability, as the Bill proposes, to one that, for the reasons I have given, I might consider supporting. Her point about transferring some of the onus for dealing with the problem on to men is an issue to be discussed in the stand part debate, so I shall not respond directly to it now, except to say—this is relevant to the amendments—that the Government have advertised this offence as dealing not only with trafficking, but with the wider exploitation of women through the use of force or intimidation.

All I ask is that a distinction be made between that sort of prostitution, when men know that it is happening, and cases in which men do not know that it is happening.

My final argument of effect is that we should rely more on men to report the fact that women are being coerced, intimidated or forced. The Minister for Security, Counter-Terrorism, Crime and Policing knows that I have made this point before, in previous exchanges on the Joint Committee on Human Rights, in which he did not take the position that he is taking now. There have been campaigns on this issue in other countries, and I suspect that if we had a proper campaign, using public money better to educate people about the fact that there is trafficking and exploitative prostitution, through which women are essentially being raped—I have no problem with using that terminology—more punters would be aware of the problem and would be prepared to report it. We know that from examining the websites of punters—men who use prostitutes.

Punters will feel less likely to report those situations if they are then prosecuted regardless of the circumstances. As far as I can tell, if they have paid, they have already committed an offence regardless of whether they have had sex. What if they pay and have sex, but find out the woman’s situation later, after she has got the money? That is often how prostitution works, particularly with women who are forced into it.

In order not to be intimidated or violated by their pimps, those women have to get the clients and the money, so punters might not find out about their situation until afterwards. By then, the punters will have committed an offence, unless the measure is changed to say that they knew or ought to have known about the situation. Do the Government propose to provide prosecutors and the police with a statutory guide saying that they should not prosecute cases in which such a report has been made? That might ameliorate the problem, but I have seen no sign, either on Second Reading or during our debates in the evidence sessions, that that is going to happen.

If we want men to report such cases, we have to give them a defence. Otherwise, they will not report, or trust that they can do so. If we want them to give evidence at some point, and make charges stick against the slippery pimps and traffickers who are prosecuted too rarely in this country, we do not want them to report anonymously, and we must encourage them to come forward.

Other countries have a hotline—not a general one, but a specific one—for men to report trafficked women. I have been to Italy to see that. Such a hotline could also be used to report other forms of controlled prostitution in which force, intimidation and coercion are used. I understand that 60 per cent. of the calls to that national 24-hour hotline come from men who use prostitutes, some of whom have fallen in love with a particular prostitute. That might seem curious to us, but it can happen when someone goes back to the same person.

Other men feel sorry for the women, feel guilty or want to help them for some reason. In the context of there being routes out of prostitution, given the residence permits and reflection periods in that country, it is highly attractive for men to do that because it enables them to keep in contact with the relevant woman, if she is willing to do so, although who knows how often she is willing? So, elsewhere, 60 per cent. of calls—thousands of calls—are from men, whereas in this country there are vanishingly few.

When we discussed this issue in the evidence sessions, the POPPY project claimed that 22 men—I think that meant as few as 22 men—had reported and therefore played a part in rescuing such women. I made the point that, by doing so, they were preventing those women from being raped several times a day for weeks and months. They were preventing huge numbers of offences and I do not think that that was properly taken on board, because our witness said that in all those cases it was alleged by the woman that the man had sex anyway, before making the report. I think that the Minister for Security, Counter-Terrorism, Crime and Policing made that point as well—certainly in debate, perhaps on Second Reading.

On the basis of those cases we do not know whether the men knew in advance or were told afterwards because, as reported in that evidence, they had sex and then made the report. In many cases, a man will suspect the situation only after they have had the service for which they have paid. A lot of prostitution is criminalised here, and exchanges, arrangements and liaisons are furtive, and there is not that opportunity for negotiation and discussion—one of the problems with the Government’s approach—so that is likely to happen. I hope that I have responded to the point raised by the hon. Member for City of Durham as to why strict liability would be counter-productive in helping to track down this mischief.

There is an interesting debate to be had around the definition of “controlled for gain”. In a sense, it is a separate issue from the one of strict liability and I hope that we can isolate it in our discussions accordingly. As set out in the clause, there is a lack of definition of the term “controlled for gain”. There is no definition of “control” in statute, and the meaning of “for gain” comes from section 53 of the Sexual Offences Act 2003, as it amends the Street Offences Act 1959. We do not have a difficulty with understanding what the “for gain” aspect of the phrase means.

Section 53 of the 2003 Act, under the heading “Controlling prostitution for gain”, states:

“A person commits an offence if—

(a) he intentionally controls any of the activities of another person relating to that person’s prostitution in any part of the world, and

(b) he does so for or in the expectation of gain for himself or a third person.”

Section 54 defines “gain” as:

“(a) any financial advantage, including the discharge of an obligation to pay or the provision of goods or services (including sexual services) gratuitously or at a discount; or

(b) the goodwill of any person which is or appears likely, in time, to bring financial advantage.”

There is little debate and contention over the definition of “gain”, but “control” is simply undefined. That leaves it, first, to case law, and, secondly, to policing practice. Into that, it leaves it to the jury.

With such a broad offence, including strict liability, is it wise for Parliament not to be clearer at this point? That is not a criticism of what the Government did in 2003. However, we are where we are with this offence, which, if it is enforced, is going to capture many people. Is there not an opportunity for us to set Parliament’s intention out, here in statute, to guide juries and the higher courts on appeal? That is good practice and I hope the Minister will consider doing it, even if he does not agree with my prescription.

What does case law say about what “controlled for gain” means in that situation? The one case, which may be the only one so far of an offence of controlling a prostitute “for gain” under the 2003 Act that has gone to appeal on the grounds of that definition, is Massey, which has been referred to already. The question there was what “control” meant. There was some criticism of the judge in the first instance case in relation to his direction to the jury, but that is not material to the outcome of what the Court of Appeal said. What the Court of Appeal said is important because it is where I hope we will find common ground:

“‘Control’ includes but is not limited to one who forces another to carry out the relevant activity.”

So, if we want to stick to Massey—I am not sure that we do, and there are various amendments that do not stick to Massey—I accept that we do not have to stick to forcing. It could go wider than that.

The Court of Appeal said:

“It is not necessary or appropriate for us to seek to lay down a comprehensive definition of an ordinary English word.”

I think that the inference is that it might be for someone else to do that, and we are that party.

The Court of Appeal went on to say:

“It is certainly enough if a defendant instructs or directs the other person to carry out the relevant activity or do it in a particular way... There may be a variety of reasons why the other person does as instructed. It may be because of physical violence or threats of violence. It may be because of emotional blackmail, for example, being told that “if you really loved me, you would do this for me”... It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile.”

It goes on to talk about the person being controlled being younger and “immature” and the other person being “older”.

So, we must consider the question whether that definition, as the Court of Appeal has it, always covers an exploitative situation, as I hope we would want it to cover an exploitative situation if we were to have such an offence. The Court goes on to say:

“The Concise Oxford Dictionary defines ‘in control of’ as ‘directing an activity’. It defines the noun ‘control’ as ‘power of directing, command’. By contrast, it does not include the words ‘compel, force or coerce’, although they would doubtless be forms of control.”

So, the question is whether the guidance in Massey is enough for us to rely on in terms of our intention that this new offence will be policed, whether it is enough in relation to the police and men who might want to seek to avoid committing the offence knowing what to do, and whether it is enough for prosecutors and for judges in directing juries. I suggest that it is not enough, and I have already said that I think that the guidance should be defined. Also, I would like to talk through the three versions that have been tabled in amendments.

Amendment 28 was tabled by the hon. Member for Bury St. Edmunds. I hope that he will not mind if I comment on it now, because it is convenient to do so and I do not wish to misinterpret what he is seeking to do. It has significant merit because it says that if the Government want to tackle trafficking—a lot of this debate has been about the disgraceful and abominable crime of trafficking women for sexual exploitation—why not have the trigger of the offence being circumstances or facts that would amount to an offence of trafficking, as well as

“the use of or threat of the use of force or coercion”.

So that version is wide, it deals with trafficking, force and coercion, and I like what it seeks to do in that regard.

There is a good argument for that version. I am sure that the hon. Gentleman will make this point too, but in response to that the Government needs to explain what they seek to capture that is not captured beyond that definition. We can then have a useful debate.

In order to frame other alternatives, I thought it worthwhile to table two other versions. One came from Justice, which is a respected legal human rights organisation that gave evidence to us, and is in amendment 85. It requires that

“An activity is ‘controlled’ by a third person (C) if—

(a) B participates in the activity because of the use or threat against B or another person of one or more of—

(i) violence,

(ii) blackmail,

(iii) unlawful detention, or

(iv) other reprisal;

(b) C intentionally exercises control over the activity; and

(c) C is aware, or ought to be aware, of a relevant circumstance in paragraph (a) above.’.

That version also has merit, partly because it has clearly been drafted by someone who can draft, unlike, I suspect, my own attempt, which I will come on to. It covers that part of trafficking without requiring that any trafficking offence be covered that involves:

(i) violence,

(ii) blackmail,

(iii) unlawful detention, or

(iv) other reprisal;”

Of course, “other reprisal” could include—in my view, it must include—the threat to report someone to immigration officers if they are in the country illegally, or the threat to withhold their fix of drugs if they are a drug-dependent prostitute. So “other reprisal” can cover many areas, short of threats of violence or threats of blackmail. The reprisal might be emotional blackmail. The definition is wider than it might first appear. It takes a different approach from requiring the circumstances to be those where a trafficking offence may be committed. Perhaps a combination of these two might capture even more than this does, without capturing what we would not want it to.

Sally Keeble (Labour, Northampton North)

In my constituency there have been a number of incidents of trafficked women—or of women whose route into prostitution and into the UK was blurred. Does the hon. Gentleman accept that if he defines this too closely, particularly regarding trafficked women, he could exclude a number of women whose activity is controlled? They may have entered into prostitution by another route; they may have come in for servitude, or as unaccompanied minors, or thinking that they are going to work in a massage parlour—that was a notorious case in my constituency. Therefore, it is important that the definition be left reasonably wide in order to catch the issue of controlling a woman for gain.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I agree and I think amendment 28 does that. If the hon. Lady reads its wording—the hon. Member for Bury St. Edmunds can defend his own amendment, I am sure—it is not just

“B has been the subject of trafficking arrangements by a third person which would constitute an offence by such third person under section 57 (trafficking into the UK for sexual exploitation), section 58 (trafficking within the UK for sexual exploitation) or section 59 (trafficking out of the UK for sexual exploitation)”.

There is an “or” before that. Those services have been procured by

“a third person through the use of or threat of the use of force or coercion”.

The definition is already wide.

I understand that the hon. Lady would want it to be even wider because we want to capture things that are not direct force, coercion or trafficking offences. There may be merit in that. That is why I explained that amendment 85 would appear to be wider because if women are being exploited in prostitution it implies that if they do not do what they are told there will be a reprisal. That is covered by subsection (3)(a)(iv) of amendment 85. I agree with her and I saw the Minister nodding. I am prepared to accept that we need to have a wide definition of controlled or controlled for gain.

Also regarding amendment 85, there are two reasons why “for gain” has been deleted. One could argue that we want to make this an offence even if there is no financial gain; some people control prostitution in an exploitative way just for the sake of it because they are evil characters. It is unfortunate, then, that the Government’s approach requires there to be the financial element. One could argue that that is the case in the 2003 offence. While they are concerned about circumstances where there is not obvious financial gain, why is it tied to profit? Why is it not tied to the unacceptable, criminal, evil behaviour of coercion? There are some bad people and some mad people involved in this business and profit may not always be a factor.

The other reason for taking out the “for gain” in one of the preparatory amendments to this one, is to prevent confusion between the 2003 offence—which deals with controlling for gain and also controlling child prostitutes—and a new offence. It would be awkward if “controlled for gain” was the same wording in each offence but defined differently for that particular Act, part or section.

If there is common ground and the Government accept that there is merit in amending the definition used for controlling prostitution in sections 52 and 53 of the 2003 Act, do we use another word instead of “control” so that it is clearly made separate?

The final option on redefinition of “controlled for gain” is that set out in amendment 80. My amendment tries to make the Massey position statutory—I do not think it would, frankly, so I am not claiming that it is brilliant, but the Committee will see the direction of travel. The amendment says that an

“activity of B is controlled”,

meaning, again, that the definition does not require the profit element to be met,

“by a third person (C) if...C’s behaviour in relation to that activity involves...compulsion, coercion, intimidation or force directed against B or any other person”—

clearly, families can be intimidated or have force threatened against them, requiring person B to act in the way desired—

“or...regular instruction or direction”.

No one will be happy with that, because of people who do not want the legislation to include women working together.

I want to make it absolutely clear that I am desperate not to include women working together. My aim is to make this offence not deal with women working together, perhaps in a co-operative, with one person organising them, saying, “You go with this person,” “We have this one,” “You go with that one,” “This is the time that you will do it” or “This is your shift.” That person could be a madam, if you like, who may well be paid for the work and may be responsible for dispersing the total income. I do not have a great knowledge of how the business works in this area, so I hope that hon. Members will forgive me if I do not describe every particular situation, but that is what I want to avoid.

I was rather hoping that “regular instruction or direction” could be read as “to be exploitative”, but we may need further amendment. We are talking about a pimp, boyfriend or drug pusher who is saying, “You do this. That is where you are going tonight, with him. I’ll pick you up in due course. There we are.” That is what I am prepared for the legislation to capture. That was clearly felt in the Massey case—the defendant, the prostitute, alleged that she was in that position. She was found by the jury and by the Court of Appeal to be in that situation, with the boyfriend acting in that role.

I am told by representatives from the GMB, the International Union of Sex Workers and the English Collective of Prostitutes, and individuals who e-mailed us or made specific submissions through the scrutiny unit—that the current lack of definition of “controlled for gain” means that the section 53 definition is currently being used against women in brothels working together with a madam, maids and security. I am not suggesting that the current definition includes maids and mere security—employees of the prostitutes, essentially—although I know it has been claimed. I am claiming that the current definition is being used to arrest and could be used to close brothels—we shall come on to debate those later clauses—and that is not satisfactory. The definition fails the critical test that the Government ought to be setting for themselves of finding ways to make the market, as it exists, as safe and non-exploitative as possible, and to make as small and as deterred as possible the exploitative, unpleasant, unacceptable and worse end of the market. I am inviting the Government, by tabling my amendment, to have a look at my proposed subsection (3)(a)(ii), to see if there is another way of describing “controlled for gain” that would specifically exclude women working together.

I want to finish by making two suggestions. Statute could exclude women working together, as long as all the people involved are providing the service and that there is not someone who is not doing it—a pimp, who is getting someone else to do the sex and just taking the money. One could capture that, specifying it as an exception. The Minister could even come back and consider guidelines for police and prosecutors dealing with such a situation. We want to hear something so that we can, at least, have an exchange.

An alternative is to recognise that in Massey we would not have had that conviction without the prostitute herself making the complaint and giving evidence. The problem with this offence, because it is strict liability and because of the undefined nature of “control”, is that it does not require B to make any complaint against C. In a situation in which women are working together for mutual security and protection, including having someone in charge of the money to dole it out and make the arrangements, they are unlikely to complain. If we could find a formulation that would require there to have been a prosecution or an affidavit from B, we could argue that the demand offence would be met. Even though I do not like the approach, as you will hear me argue under the clause stand part debate, the Government are determined to find a way in which to deal with the matter, a problem that I am struggling with.

I wish now to deal with the miscellaneous issues that I mentioned earlier. I am grateful to the Committee for bearing with me. I have dealt with the penalty. It is wrong to be limited to a fine, when the offence would catch men who knowingly rape women because they do not give consent, and the men know that they are not giving valid consent. A penalty is unacceptable. It would be okay if the Government were to say, “Don’t worry, we will use the crime of rape more. We are confident that we can do that and that there will be more rape convictions, as a result.” However, in our exchanges, Ministers have been honest and said that it is extremely difficult to use rape. It is hard enough to use rape and increase the conviction rates, and I share the Government’s commitment to improve the situation. The fact that it is difficult means that they are not getting the real mischief, which is men who cannot be prosecuted for rape and who escape with £1,000 fine. That would not even meet the Harman test, if I can call it that.

While going over matters and the representations that I have received with some advisers, I was interested in who the clause will actually affect. It seems to cover the person who makes the payment, not the person who has the sex, so A commits the offence if they make or promise payment for the sexual services—not to him or her, but in general. If someone pays for me to have sex with a woman, is it the person who pays on the telephone with a credit card who is liable rather than the person who has sex? I presume that that is the case by design. If so, it will not be an effective deterrent if it is known that, as long as the person who has sex is not paying in cash, but someone else pays by card over the telephone in advance, that person will not guilty ab initio of the offence. The Government are creating a loophole that undermines the design of the provision. I would be interested in the Minister’s response. As long as he has understood my argument, I shall not labour the point.

I am interested in what the Minister is getting at in respect of jurisdiction. New section 53A states that

“where in the world the sexual services are to be provided and whether those services are provided”

is irrelevant. Will he explain the purpose behind those words and say why the provision is drafted in such terms? It could be possible, by virtue of amending the schedule 2 offences of the Sexual Offences Act 2003 under section 72, to list the offence as one that has wide jurisdiction. At present, section 53—the controlling provision—does not fall under section 72 of the 2003 Act, so it does not mean that a UK resident or citizen can be prosecuted for committing the offence anywhere in the world. I am sorry if I have not made myself clear. The problem is due not to my briefing, but my own writing—it is a doctor’s issue.

I should be grateful if the Minister would explain why he has taken the unusual step of stating that something is irrelevant? If something is irrelevant, it need not be stated, but should be part of the offence. What is he trying to capture? If someone from this country pays by credit card on the telephone for a service to be provided, even to them in another country where prostitution is lawful, even if it is controlled for gain in a modest sense—let us take Holland, where force and coercion is not tolerated—would that be an offence here? If so, strange as it may seem, is that compatible with our obligations to free commerce in the European economic area?

Secondly, how does the Minister envisage this operating? I presume he is envisaging preventing me from paying a prostitute and then taking her to Paris—if one has money and it is that sort of prostitute, I suppose—where that prostitute is subject to control for gain. I presume that is what the Minister is trying to capture. If so, that is legitimate: one should not be able to buy it here and then commit sex—if hon. Members will excuse the expression—outside the country. But I am not sure whether the provision he sets out in new section 53(2)(a) goes further than that.

More could be said about the framing of these clauses, but I have had a good innings and am grateful to members of the Committee for their patience. I hope that the way in which I have tried to separate out the issues has been helpful. I very much look forward to the contribution from the hon. Member for Bury St. Edmunds and, indeed, the Minister and other hon. Members.

Several hon. Members rose—

Nicholas Winterton (Conservative, Macclesfield)

Before I call the next speaker, I remind hon. Members that they can speak not only to the lead amendment, but also to the amendments in the names of the hon. Member for Bury St. Edmunds and the hon. Member for Hornchurch.

David Ruffley (Conservative, Bury St Edmunds)

Many of the points I wished to make have already been made by the hon. Member for Oxford, West and Abingdon. Let me say at the outset that Her Majesty’s Opposition are supportive of the general thrust of this clause. We do not intend to seek to divide the Committee on the amendments to which I am about to speak; they are probing amendments.

The amendments in my name and that of my hon. Friend the Member for Hornchurch, and, indeed, that of the hon. Member for Oxford, West and Abingdon address two questions, and they have both been alluded to. The first is the question of whether strict liability is the correct mode of reducing demand for sex in the circumstances set out in this clause. Amendments 28 and 29, in particular, speak to that. The second question is whether the demand for sex is sufficiently properly defined so far as the “controlled for gain” language is concerned.

The amendments, if applied, mean that person A commits an offence if he or she makes or promises payment for the sexual services of a prostitute B, if those services were procured through force or coercion by a third person, or if B had been the subject of trafficking arrangements as defined by sections 57 to 59 of the Sexual Offences Act 2003. I will not detain the Committee talking about the issues that Government Members had; they would argue that that was insufficiently wide in ambit. The hon. Member for Northampton, North made her point in that respect. The demand for some specificity is behind our amendment. The eagle-eyed among members of this Committee will instantly note that there is an extraneous “not” in the drafting of amendment 28. I am not quite sure how that crept in.

The appropriateness of the strict liability offence has been discussed by the hon. Friend the Member for Oxford, West and Abingdon and also in the evidence session, so I will not rehearse the arguments. Suffice it to say that I have just one question for the Minister. When the drafting of the clause was undertaken, what discussions did he or his colleagues and officials have in respect of drafting either a recklessness test, intent test or a greater negligence test, rather than a strict liability test, which is, of course, what the clause ends up with? What process was gone through before strict liability was chosen rather than the alternatives listed in the amendment standing in my name?

I should like to move on to those parts of the amendments that address the “controlled for gain” question, eloquently outlined by the hon. Member for Oxford, West and Abingdon. I will not rehearse the questions about whether maids or receptionists and so forth will be caught by the clause as drafted, as I assume that the Minister will reply to that automatically. However, I want to finish my remarks by making two points.

First, there has been a lot of concerned lobbying by those who represent and try to support vulnerable women who are victims of the sex industry. The UK Network of Sex Work Projects points out that a “controlled for gain” measure is already present in the 2003 Act. It observes that that extant provision is rarely used. I therefore pose the following question to the Minister: how many proceedings, in respect of control for gain in the 2003 Act, have been brought before the courts? It will be useful to have a quantum so that we can understand how frequently the existing legislation, albeit in a slightly different context—the “controlled for gain” language, however, is deployed—how has been used, and whether the police see it as a useful measure to crack down on circumstances in which individuals are controlling sex workers for gain. That is a point of information for the Committee, so that we can understand how the existing law operates.

The English Collective of Prostitutes has made representations, along with a host of similar groups, to Committee members. The ECP asked the question, “Controlled by whom for whose gain?”. It made the obvious point: to what extent will certain individuals—for example, a co-worker, who is also a prostitute perhaps working in the same premises, a maid, or a partner of a woman who provides some kind of assistance, perhaps even watching after their safety—be caught by the wording, “controlled for gain”? Armistead made a similar point in its representations.

I conclude by confirming the importance of the Regina v. Massey judgment of 2007, and the part of that judgment that the hon. Member for Oxford, West and Abingdon read out in relation to emotional blackmail and so on. The relevant part of the Court of Appeal judgment ends as follows:

“It may be because the defendant has a dominating personality and the woman who acts under his direction is psychologically damaged and fragile. It may be because the defendant is an older person and the other person is emotionally immature. It may be because the defendant holds out the lure of gain, or the hope of a better life. Or there may be other reasons.”

We all understand the list that their lordships were enumerating, but I am not clear about the phrase:

“Or there may be other reasons”.

Is it the Minister’s view that the “other reasons” will cover what could be called the ancillary group of individuals—receptionists, maids, drivers—associated with a woman who has been trafficked? Might those “other reasons”, which their Lordships do not bother to enumerate, include the lists that the hon. Member for Oxford, West and Abingdon and I have gone through, of people who are not coercing, or threatening, the prostitute in question but are merely ancillary to the activity, because they are maids, receptionists, drivers and so on? Will the Minister respond to those questions and give some clarification on that point? I repeat that the broad motive—and, we hope, the effect of the clause—is something with which Her Majesty’s Opposition concur. Probing amendments are exactly that—they are designed to tease out answers to the questions that I have posed.

Dr. Harrisrose—

Nicholas Winterton (Conservative, Macclesfield)

It would be normal to call the Minister, but that does not prevent the hon. Gentleman from coming back.

Alan Campbell (Labour, Tynemouth)

It is a pleasure to serve under your chairmanship, Sir Nicholas, as we approach what the hon. Member for Bury St. Edmunds described as the meat of part 2 and clause 13. I am minded to accept interventions, if anyone wishes to make one.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise to you, Sir Nicholas—you were quite right procedurally. It has just been pointed out to me that I did not mention in my speech the amendment that inserts the word “intentionally” before “makes or promises payment”. I apologise, but I missed it out. I should like the Minister to respond, because it covers a situation in which someone thinks they are paying for a lap dance, for example, but they are offered the extra—they are not asked to pay for it, and they had not intended to make that payment. Would that situation be covered? I wanted to make sure that I was complete in what I addressed.

Alan Campbell (Labour, Tynemouth)

There are many amendments in the group, and I wish to address each of them. I hope that I can follow the broad approach adopted by the hon. Member for Oxford, West and Abingdon in grouping them together in themes. In response to his earlier remarks, it is not my intention to dismiss the arguments that have been made. This has been an extraordinarily thoughtful debate, and I accept the starting point is one of great common ground on the measure.

We have to make sure that the legislation is effective and that it works in the way in which we intend it to work. I intend to try to answer hon. Members’ questions, so I am delighted to be able to answer a direct question from the hon. Member for Bury St. Edmunds, about how many prosecutions there have been under the section entitled “Controlling prostitution for gain” in the Sexual Offences Act 2003. There were three in 2005; 11 in 2006; and 24 in 2007.

David Ruffley (Conservative, Bury St Edmunds)

I do not know if other members of the Committee share my surprise at what appears to be an extremely low number of court proceedings. This is not meant in any sense as an attack on the Government, because that piece of legislation is sensible and, to my recollection, we supported it. Would the Minister care to comment on the number of offences, and does he think that that is particularly low? Whether or not he thinks it is low, does he think that enforcement is at the level at which it should be nationally, since that important offence was put on the statute book? Fewer than two dozen seems a remarkably small number to me. If that is anything to go by, the new offence created by the clause could affect very few women.

Alan Campbell (Labour, Tynemouth)

It demonstrates the fact that it is enforceable, and that it is possible to bring prosecutions. There are also other prosecutions that could be brought in the sort of circumstances that we are talking about. The hon. Gentleman will be aware of the prosecutions that have been brought against people who traffic women for sexual exploitation. I think that there were 92, if memory serves, in recent years.

It is important to remember, when looking at either of those numbers, that prosecution often depends on the evidence available, the particular offence for which the prosecution is brought and the inclination of the CPS and the police to get a prosecution for the most serious offence they can. Although we should pay attention to the numbers, we have to put them into the proper context.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I will go into this question in more detail in the stand part debate, but can the Minister tell us whether he has any information about how many of those prosecutions were made thanks to the offence being brought to the attention of the authorities by the client or punter? It is possible that they would be deterred by the provision from aiding in bringing even that small number of prosecutions.

Alan Campbell (Labour, Tynemouth)

I am not sure whether I will be able to furnish the hon. Gentleman with that information by the time of the stand part debate or outside the Committee. I am not even sure whether we can furnish him with the information or whether it is held in the form he is asking for. I shall return to the hon. Gentleman’s earlier point about the role of men who do seek help, or inform the appropriate authorities where they believe that a prostitute has been trafficked or is being held or controlled for gain.

Before I do so, I shall address the amendments dealing with strict liability. Amendments 29, 33, 68 and 84 would have the effect of removing subsection (2)(b), and would therefore remove the strict liability aspect of the offence. Amendments 67 and 83 would replace the strict liability element of the offence with a requirement that the sex buyer must know or be reckless as to whether the prostitute he pays for is controlled for gain or not.

Without straying into issues we will deal with in the stand part debate, I stress that the strict liability element of the offence is one of the key aspects of what the Government are seeking to do in the measure. It is, in our view, the most effective way of ensuring that those who pay for sex consider the circumstances of the prostitute who will be providing sexual services. It places the risk on the sex buyer of paying for sex with someone who is being controlled for gain. That is the fundamental point. The aim of the offence is to shift the emphasis and to start to take greater action against those who contribute to the demand for prostitution—a point well made by my hon. Friend the Member for City of Durham. The alternative approaches proposed in the amendments would, in our view, be much less effective in achieving that. Indeed, by removing strict liability, the amendments would significantly weaken the offence.

Having to prove intention or recklessness, which would be the effect of amendments 67 and 83, would make the offence more difficult to enforce, given the difficulties of proving intention or recklessness when the offence is likely to have been committed behind closed doors and in private. It would be more likely to require testimony from the prostitutes themselves, requiring them to go through the burden of attending court to give evidence.

The hon. Member for Oxford, West and Abingdon asked about precedents for strict liability offences. I draw his attention to one precedent, which is certain sexual offences against children under 13, such as the rape of a child under 13, under section 5 of the Sexual Offences Act 2003. Under the Act, a person is guilty of an offence if they have sex with a child under 13, whether or not they know that the child is under 13. The offence is one of rape whether or not the child indicates consent. There are precedents for measures such as these.

The hon. Gentleman also asked about public awareness and, in particular, whether we could have some kind of anonymous tip-off system, perhaps a phone line. I remind him that we have Crimestoppers, which is a way of giving information to the police about a whole range of crimes, including the ones that we are talking about. However, I recall from the evidence sessions that I undertook to look at this, to see what more we could do.

The hon. Gentleman was concerned about men who face a dilemma if they believe a woman has been trafficked or is controlled for gain—whether they should report it, even though they might be guilty of an offence. Part of the hon. Gentleman’s argument referred back to the evidence of the POPPY project and the 22 men who pointed the prostitutes whom they believed may have been trafficked or controlled for gain in the direction of the POPPY project. As far as I recall the evidence, the important point is that the men knew that the women had been trafficked or were controlled for gain, but they had sex with them anyway. I interpreted that as their going ahead, despite their realisation, and having sex. That takes us to the nub of the problem—whether a man who believes, or has evidence, that a woman has been trafficked or is being controlled for gain will go ahead and have sex with that woman.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

If I remember correctly—I made an effort to remember, because I was concerned about the portrayal—what the POPPY project know, what we hear third hand, not even second hand, is that the men had sex with the women. We do not know that the women told the POPPY project that the men knew; all we know is that the women told the project that the men had had sex with them—as I said, it is quite possible that the men might have realised after they had had sex, and they did not know before they had sex. Dealing with third-hand judgments is not something of merit, either for the Minister or for me.

Alan Campbell (Labour, Tynemouth)

Yes, I accept that. I do not want to labour the point, but I would question why men in such circumstances pointed the women towards the POPPY project in the first place. Whether the men had sex before or after they reached their conclusion, why would they say to the women that that was the best direction for the women, unless they were concerned about the very things that we are talking about with this offence?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I discussed the evidence with the International Union of Sex Workers and others, and I am told that what often happens in such circumstances is that men get to know a woman by going back to them on several occasions. They have a regular, and they develop a “relationship”. In that context, the woman feels able to tell them, or the men who develop feelings beyond mere sexual lust inquire or raise concerns. Clearly, on a repeat visit, they will already have had sex with the woman. That does not mean that at the time they knew that, and were therefore committing what would be an intentional form of offence, like rape.

Alan Campbell (Labour, Tynemouth)

I understand the hon. Gentleman’s point very well—and this is a fine line that we are seeking to draw—but I would approach it from a different angle. In such circumstances, it would be up to the Crown Prosecution Service to decide whether it would prosecute. It is not impossible to envisage a situation in which, had a man acted as the hon. Gentleman suggested, he might be treated differently from someone who was, or should have been, aware of the facts but carried on regardless. There is an element of redress that could be available in those circumstances.

Dr. Harrisrose—

Alan Campbell (Labour, Tynemouth)

I shall take one more intervention, but then I must get on.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I am conscious that I am intervening, but this is helpful, rather than me coming back at the end, and then the Minister coming back. I asked whether he might go further than what he has just said, or whether he would leave open the option of going further and offer some form of guidance to go with the Bill when it becomes an Act, so that men would know the situation in advance. If he wants to encourage men to come forward, it would help if there was a backstop—if men knew, or at least had a good idea, that they would not be prosecuted when they had done the right thing.

Alan Campbell (Labour, Tynemouth)

I was intending to come back to the issue of guidance. I hesitate, and would advise caution, because at the end of the day we are talking about men who will have committed an offence, albeit a strict liability offence—they will have committed an offence if they have purchased and had sex with a woman who is controlled for gain or who has been trafficked.

Whether through guidance or anything else, we should not be sending out a message that there is a way around this—that a man could, for example, have sex with a woman who was trafficked or controlled for gain and be allowed to reduce the severity of the offence he has committed, as long as he points her in the direction of help afterwards. We have to be careful before we go down that route. I take the hon. Gentleman’s point, but I want to make some progress.

Amendment 84 would not go quite as far as the other amendments in relation to strict liability. It would remove subsection (2)(b), and thereby the strict liability element of the offence. However, it would ensure that it was irrelevant that the person paying for sex, A, knew the identity of the person, C, responsible for controlling the prostitute, B. We are clearly in agreement with that aspect.

We do not think it should be necessary to establish whether the client was aware of the identity of the person responsible for controlling the prostitute. We believe that our clause already covers that; indeed, it goes further. For the reasons that have been outlined, we do not wish to limit the offence by accepting amendment 84 so that it would be valid defence for someone to say that he or she did not know the prostitute was being controlled for gain.

Amendment 79 also relates to the level of knowledge, on the part of the person paying for sex, necessary for an offence to be committed. It would ensure that an offence was committed only when someone had intentionally paid or promised payment for the sexual services of a prostitute. We have no difficulty in principle with that, but we do not feel it necessary to add the word “intentionally”. It is implicit in the wording of the new offence that the buyer must intentionally pay for the sexual services of the prostitute. He cannot pay for the sexual services if he does not intend to do so.

I want to turn to amendments relating to “controlled for gain”.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

That is the point I made in my first intervention, rather than in my speech, and I apologise again for that. I would accept that point normally, but what if the man intends to pay for something else and does not realise that he has in fact paid because he has paid for six lap dances or paid for something that he does not realise is a sexual service, but accepts it when it is offered? Does the Minister intend the clause to cover that? Is he confident that it is covered? He may not be able to answer me now. If it is not his intention that it will be covered, should he not include the word “intentionally” to make it clear?

Alan Campbell (Labour, Tynemouth)

No. We are of the view that the clause will cover the circumstances we are talking about. We are confident of that. We do not believe that the word “intentionally” ought to be there and, apart from anything else, we believe that it would make such a thing more difficult to prove.

I want to discuss the issue of “controlled for gain”. Moving away from strict liability and turning in particular to amendment 68, which in addition to removing subsection (2)(b) and the strict liability element would also remove subsection (2)(a), clause 13 makes it an offence to pay for sex with a prostitute who is controlled for gain, even if the sexual services are ultimately provided outside England and Wales.

I want to be clear on this point: we do not want people in this country to pay in England and Wales for sex with a prostitute who is controlled for gain, even if that prostitute is living elsewhere in the world. In particular, we do not want people to get round the offence by making a payment here and then travelling to, for example, Scotland to obtain sexual services. That does not mean—I hope this goes some way toward responding to the point that the hon. Gentleman has made—that the police will target people who travel to, for example, the Netherlands and pay for sex in that country, provided that both the payment and services are obtained abroad, but it is important that the potential loophole that the amendment would create is not opened up. We fear that that would be the consequence of amendment 68.

The hon. Gentleman went on to make a point that, in all honesty, I am not sure I understood: what would happen if one procured the services of a woman in this country, paid money and took her to Paris, where she was somehow controlled for gain? The point is whether she is controlled for gain when the payment or the promise of it is made. I cannot envisage a situation in which that control for gain would be absent on this side of the channel, but when they arrived in Paris circumstances would somehow change.

Simon Burns (Conservative, West Chelmsford)

I want to get this straight. The Minister might know that in Nevada prostitution is legal and, I think, there are some state-run brothels, which means by definition that the people working in them are controlled. Does that mean that if someone from England or Wales goes on holiday to Nevada, visits one of those establishments and pays at the time for sexual services, they will not be covered by the Bill and will not be committing a criminal offence?

Alan Campbell (Labour, Tynemouth)

The answer is no. The issue is prostitutes who are controlled for gain, and I am not sure that that is the situation in Nevada. Presumably state brothels there do not condone control for gain and do not traffick women in.

Simon Burns (Conservative, West Chelmsford)

I am not a lawyer, so I may be confused. What I mean about controlled for gain is that if prostitutes are working for the state of Nevada, one might argue that they are in effect controlled by another body. If, then, one was paying them, although that is legal in Nevada, would one be committing an offence under the Bill?

Alan Campbell (Labour, Tynemouth)

I think the answer is that we are confusing two issues. The situation to which the hon. Gentleman refers is more akin to having a receptionist or maid, or someone who caters for the prostitute’s safety. We do not believe that those people will be caught up in this offence, so that situation will not arise. I will return to that.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

It is clear that if someone pays here and takes the woman who is controlled for gain here to Paris, that should be covered by the offence, however we define it. In Nevada, there is someone running the brothel and making a profit by controlling the women—they are employees. Even in Holland, where things are less formal than that, there is control for gain. I think the Minister means that if someone pays here and has sex there, it is covered but will not be enforced—it will not be a police priority. Also, under the Bill, if people pay there, have sex there and the “controlled for gain” provisions are met, they will be covered, even if for practical or policy reasons that is not a priority. If that is not the case, will he explain?

Alan Campbell (Labour, Tynemouth)

The point about paying or promising payment here and then travelling abroad to secure sexual services is to avoid people using a loophole to get round our legislation. Clearly, if people do such things in this country and not abroad, they are committing an offence. What is the difference, then, if they pay or promise to pay in this country and then go abroad intending to do it anyway?

I do not want wrongly to recall what the hon. Member for West Chelmsford said, but he cannot have it both ways. I think he referred in the evidence sessions to different jurisdictions and different laws relating to prostitution abroad. He cannot now say that we should have a legal system here that penalises people who go abroad to procure sex and who make or promise payment while they are in another country. That is not what we mean. We are referring to when people pay or promise to pay in this country and then go abroad and access the service, knowing that that is how they will avoid the law.

If there are trafficked women in a Dutch brothel, and someone from this country is on holiday in Amsterdam and pays for and procures sex there, that and the issue of the trafficked women in those brothels is a matter for the Dutch authorities, not for this offence.

I now turn to amendments 28, 30, 32, 34, 80, 81, 82 and 85 relating to the definition and scope of the term “controlled for gain”. They clearly recognise that the aim of the new offence under clause 13 is to ensure that those paying for sex with vulnerable people involved in prostitution, through trafficking or other forms of exploitation, either desist from such activities or face criminal sanctions. That is the right approach and it will help to protect those vulnerable people who, under the control and direction of another, have little choice but to continue their involvement in prostitution.

“Controlled for gain” is the most appropriate term to cover the circumstances that we want the offence to deal with and which would allow its most effective enforcement. The term is used already under the Sexual Offences Act 2003 and, as such, there is already case law that helps to define the term. As has been referred to, the Court of Appeal in R v. Massey explained that the term should be given its ordinary dictionary meaning.

There is no doubt that the word “control” covers those who have been forced, coerced or compelled to provide sexual services as a prostitute. We also accept that the term goes wider than that. In the Massey case, for example, there was no need to show that the boyfriend accused of controlling prostitution for gain used physical violence to control his girlfriend’s work as a prostitute, although the girlfriend had made that allegation. The Court accepted that sex workers are often vulnerable young women with disturbed backgrounds who have never known a stable relationship or respect from others, and are therefore prey to pimps and those who seek to exploit them, albeit such exploitation may not necessarily involve intimidation or force. It is those people whom we want to protect, but the amendments would be in danger of excluding them.

On the other hand, it is important to make it clear that the offence will not go as wide as some are claiming. For example, we do not believe that a prostitute who employs a receptionist to arrange her appointments will be considered controlled for gain, as some have suggested, nor do we consider that a prostitute who arranges for a security guard to protect her will be controlled for gain. That does not accord with the ordinary meaning of “controlled”.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

What the Minister said about scope is helpful, although not a surprise. It was made clear on Second Reading that the Bill is trying to capture not receptionists or maids, but traffickers and pimps—even pimps who are not overtly violent or threatening, as in the case of Massey. I accept that, but what about a madam? I have asked that key question before and I shall go on asking it until the Bill receives Royal Assent. With a madam, women can work together and be together for security. Is it the Minister’s intention that the police should go for the person who is taking money, making a profit and organising with the willing co-operation of the women in such arrangements? We need clarification.

Alan Campbell (Labour, Tynemouth)

I want to come back to the issue of women working together, which the hon. Gentleman has raised on two occasions, after which we can perhaps discuss madams.

I want first to talk about enforceability. We have looked at several examples of how the current offence of controlling prostitution for gain is used, and it is clear that, in practice, it is being used as part of anti-trafficking operations and against those complicit in a level of coercion. We shall continue to work with the Association of Chief Police Officers and the Crown Prosecution Service to ensure that they are aware of the “mischief” that the new offence is aimed at, but the term “control” does not need to be explicitly restricted in the way suggested by the amendments.

I recognise the concerns about the use of the term “controlled for gain” as a means to define which prostitutes the offence is specifically aimed at protecting. I regard the amendments as a constructive attempt to address such concerns and I am grateful to members of the Committee for their approach to such issues, but we do not believe that the amendments are the most effective way to ensure that the offence targets those who pay for sex with those particularly vulnerable prostitutes whom we wish to protect.

Amendments 28, 32 and 85 would require the prosecution to prove that force or coercion was necessary to make the prostitute engage in a specific transaction or, in the case of amendments 28 and 32, that the prostitute was trafficked. The term “control” is wider than the circumstances covered by most of the alternatives that have been suggested by way of amendment, in that it does not require the prosecution to prove an absence of free will on the part of the prostitute. This is to ensure that we cover those who may have initially agreed to be trafficked into the country or have submitted to a certain degree of direction or management by their pimp, but only because they have very limited choices—for example, because the pimp also supplies them with drugs, on which they are dependent. My hon. Friend the Member for Northampton, North made a valuable intervention in regard to this and I thank her for that.

The problem with using the term “trafficked” to try to cover the voluntarily trafficked prostitutes, is that if a woman was trafficked, it would forever more be illegal to pay to have sex with her, even if, however unlikely such a scenario may be, she escaped the traffickers and found work outside of prostitution, but at some point in her life decided to return to work as a prostitute. By putting “trafficked” in there as a label, it is our view that it would forever more be illegal to pay to have sex with that woman and therefore would fall out of the original intention of what we are trying to do.

Amendment 85 tries to broaden the offence by using the term “other reprisal”. However, we are not clear what would count as a reprisal. Having tried to tighten up the definition, our concern is that a term such as “reprisal” would open up the door again. For example, is a “reprisal” intended to cover a prostitute who knew she would be refused drugs by her pimp if she did not engage in prostitution according to the instructions he gives her? There is a lack of clarity on that point, and, given that we do not believe that we need to define “control” or “controlled for gain” more than we have done, we are inclined to reject the amendment.

In tabling amendment 80, the hon. Member for Oxford, West and Abingdon appears to recognise the need to cover circumstances beyond coercion and compulsion. In defining “control” as activity involving

“compulsion, coercion, intimidation or force”

or “regular instruction or direction”, the amendment covers most of the activity that we believe would be within the scope of the term “control”. However, we do not believe that the requirement for “regular instruction or direction” is helpful. What matters is whether the prostitute is being directed to such a degree that she would be viewed as controlled in relation to the provision of the sexual services to the particular buyer, whether or not this occurs with any degree of regularity.

I return here to the point that the hon. Gentleman made about women who work together. We accept that, for safety, prostitutes sometimes work together. I re-emphasise the point that he allowed me to make earlier, which is that the measure is not directed at the receptionist, the maid, the security person, or any other woman working with another prostitute, where they are working together for reasons of safety. It is difficult to envisage a situation where a madam—I am not sure what the hon. Gentleman’s definition of a madam is—would fall under the definition of “controlled for gain” that this offence would be based upon. If we are talking about someone who arranges the appointments, shares the venue, ensures that the prostitutes are safe—the things that we are talking about that we are confident are not covered by this offence—we believe that the definition “controlled for gain” would not extend to include the situation that he is talking about. However, he has asked whether or not there would be further guidelines and explanation on this. Let me take this away and look at it. I suspect that the hon. Gentleman will continue to have concerns about this.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

What the Minister says is very helpful and I thank him for that. However, I do not think that there is a gap, because he has intimated clearly what is not covered—maids, receptionists and women working together who help each other. In an earlier remark, he mentioned security and identified what he would like to be covered, including pimps who withhold drugs and so on, even in cases where it is not necessary to prove that there is no free will. I am prepared to accept that although I did not say that I would.

However, the madam situation is somewhat difficult under those circumstances and the Minister ought to go further. This is about someone, often a woman, who may not be a prostitute herself but who is saying, “You do this as that is how we organise our business, you do that. I am going to take a cut, this is your cut.” People agree to work under that arrangement—it is similar to that of employer and employee. Financial gain is clearly involved, but arguably the part about control should exclude a consensual employer-employee formal relationship. That needs clarification, preferably in statute, but otherwise in guidance.

Alan Campbell (Labour, Tynemouth)

Let me take this away and look at it again. My initial reply is that it would depend greatly on the relationship between the madam and the prostitute. If the hon. Gentleman is talking about a situation where the prostitute is guided in terms of a place to ply her trade, arrange the diary of clients and ensure that she is safe, that is one thing. If he is talking about coercion, intimidation or threats from a madam, that is clearly different. We are not talking about that situation. I give the hon. Gentleman a commitment that I will take that matter away and look at it to see if we do need further clarification.

Sally Keeble (Labour, Northampton North)

I wonder if I could urge caution the other way. If the argument about manipulation and control is about consent, it is not possible for somebody to assign their consent to have sex with somebody to a third person. That is where I think that the position of the madam is not acceptable. One cannot have an employer-employee relationship over decisions regarding consent to have sex. I take an opposite view to the hon. Member for Oxford, West and Abingdon.

Alan Campbell (Labour, Tynemouth)

That illustrates exactly how difficult this is. I know what is at the heart of the concerns raised by hon. Member for Oxford, West and Abingdon, and indeed all our concerns. As I said, I will look at this matter. However, I would also caution against seeing this as an employee-employer relationship. It has been put to me by prostitutes that every relationship—not only those between prostitutes and their clients, pimps and madams—is in someway exploitative. We have to draw the line somewhere and we are confident that this is the right place for it to be. However, I give the hon. Gentleman a commitment to look again at that specific point.

James Brokenshire (Conservative, Hornchurch)

I have one narrow point of qualification. If there is a prostitute whose activities are in part controlled for gain although not wholly and exclusively, how would the clause operate? Is it captured because of the wording surrounding any of the activities relating to the provision of those services or, in specific circumstances, would the court need to be satisfied that the prostitute was controlled for gain in that individual case?

Alan Campbell (Labour, Tynemouth)

I am not sure of the answer to that question. Again, I will look at it. To some extent, this will be defined by the individual circumstances of the case, and the courts will have a part in framing the answer that the hon. Gentleman seeks. I am not sure whether he had a particular example in mind of how a prostitute could at some point be controlled for gain while not controlled for gain at some other point when she is plying her trade.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

The hon. Member for Hornchurch makes a useful point. I thought that was covered. Suppose a woman works for herself as a call girl some of the time, but in a brothel the rest of the time. The brothel circumstances would be such that they would be controlled for gain and we would all agree that they were because there was an aggressive, intimidating pimp there. I understood that the reference in proposed new section 53A(1)(b) to

“any of B’s activities relating to the provision of those services”

refers to those specific services that have just been paid for or for which payment has been promised rather than those general services that they are buying. That is probably the point that needs to be clarified. It is possibly ambiguous.

Alan Campbell (Labour, Tynemouth)

I thank the hon. Gentleman because he more or less did my job for me there in clarifying that point. I was going to make the point, but I will take guidance on this, about the circumstances when the payment and the act took place. There may well be a difference between the two, but let me come back to him on that because it is a good point.

Amendment 80 also provides that it is necessary to prove that the controlled prostitute reasonably believed that she was subject to coercion and the like. That puts a significant degree of importance on the prostitute’s belief, which is not appropriate. It should be necessary only to establish objectively that a prostitute has been subject to what amounts to violence or blackmail, for example. The approach adopted by amendment 80 has particular dangers when it is used in relation to people who have been subject to violence or blackmail, and who may not recognise the fact they have been manipulated and controlled, or who may be under significant pressure to say they have not been subject to violence. We believe that the court is already comfortable with the term “controlled for gain” and how it has been interpreted because that was a key part of Massey, which we keep coming back to for reference.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Will the Minister clarify which bit of amendment 80 he was concerned about? If it was the proposed new subsections (3)(a) and (b), they are preceded by an “or” and that covers the circumstances where the impression is given that she is controlled and therefore behaves in that way. It is an option, not an “and”.

Alan Campbell (Labour, Tynemouth)

I will come back to the hon. Gentleman on that point before I conclude my remarks. I recognise the concerns that have motivated these amendments and welcome the constructive attempts to clarify the definition of “controlled for gain”, albeit a difficult task. I hope that my remarks have provided clarity and that hon. Members will not feel that they have to push these amendments.

I turn now to other amendments in this group that would remove the phrase, “for gain”, as well as amendments that raise issues not specifically relating to the definition of control. Amendments 82 and 83 would remove the term “for gain”. While the other amendments appear to be an attempt to narrow the scope of the offence, that would allow it to apply in a wider set of circumstances. It would not be necessary to establish that the prostitute was being controlled in order for another person to benefit financially.

While there is an argument that it should be illegal to pay for sex with anyone who has been forced or coerced, regardless of whether that coercion was motivated by financial gain, we believe that financial gain is a significant element of the exploitation we are trying to target with the offence. If we are to maintain the term “controlled” without further definition, as we intend, then it will be necessary to retain the term “for gain” to ensure that the scope of the offence is not too wide, and is consistent with the existing offence of controlling prostitution for gain. For example, we would not want to criminalise a sex buyer who paid for sex with a prostitute if that prostitute had followed the instructions of a friend in providing sexual services for payment, where that friend had no view to profiting personally from the advice and instructions provided.

I turn now to the question of the penalty. In addition to defining the term “control”, amendment 80 would provide a maximum penalty of three years’ imprisonment for the offence, which would be a significant increase on the maximum penalty in the current provisions, which is a fine of £1,000. This is no doubt related to other amendments tabled by the hon. Member for Oxford, West and Abingdon, which would remove the strict liability element of the offence. As I have indicated, we do not intend to remove the strict liability element of the offence. Therefore, it follows that a custodial sentence would not be appropriate, and, if my memory serves me correctly, Liberty appeared to agree with that in its oral evidence. A fine would also be consistent with similar offences such as kerb crawling or the new offence of soliciting, which the Bill introduces.

Amendments 27 and 31 attempt to ensure that if a person engages in sexual activity with a prostitute “controlled for gain”, knowing that that has been paid for by somebody else, they would be covered by the offence. We believe that clause 13 already covers that conduct. Subsection (2)(a) specifies that it is irrelevant whether the sexual services are provided, so simply by paying for sexual services a person has committed the offence. They do not have to have bought the sexual services for themselves. If another person receives sexual services, which someone else has paid for, they are likely to be guilty of aiding and abetting the offence covered by clause 13. The aim of ensuring that people do not avoid committing this offence by allowing others to pay for sexual services on their behalf seems clear, and it is certainly an aim that we share, but we do not believe the amendment is necessary to achieve it. The conduct that the hon. Member for Bury St. Edmunds is concerned about is already covered by the offence. I hope that that clarification is helpful and persuades him that amendments 27 and 31 are unnecessary.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

A very interesting point is raised by the amendments tabled by the hon. Member for Bury St. Edmunds, as he identified the offence of aiding and abetting. Is it aiding and abetting, or is it encouraging or assisting, as in the framework and language of sections 44 to 46 of the Serious Crime Act 2007? Some provisions in that Act replaced those in the Criminal Justice Act 2003, and I am not sure which relate to the offence. Is the prostitute aiding and abetting in any of these circumstances? How would someone who has had sex that has been paid for by someone else be aiding and abetting the offence? That is a prior offence. It might be hard to argue that that is aiding and abetting or encouraging or assisting as it is after the fact of the offence.

Alan Campbell (Labour, Tynemouth)

I am advised that aiding and abetting is best used to describe this. I shall consider the hon. Gentleman’s comments in light of the important points made by the hon. Member for Hornchurch. On the question of whether the person would be committing an offence because they had sex with a prostitute paid for by another person, the clause seeks to get at those who have sex with prostitutes who are being “controlled for gain” or have been trafficked, so I am not sure that I see the circumstances in which the person who had paid for the services but not used them entirely lets the person who has gone on to use those service off the hook.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

Advice may be coming the Minister’s way and I am sorry if I was not clear enough about this point in my speech—indeed, I may not have covered it. I thought that it was obvious from the wording of proposed new section 53(A)(1) that the offence is making or promising payment. I can see that the services do not have to be provided—that is covered by proposed new subsection(2)(a)—but that does not mean that if somebody else pays for me and I go, I am committing any offence or that I am even aiding and abetting the offence. Could the prostitute who does the deal with the person who pays be charged with aiding and abetting? Potentially, that could further criminalise women. It is not clear, and the Minister may want to reflect on how it could be made clear, if he does not intend further to criminalise women.

Alan Campbell (Labour, Tynemouth)

It is not our intention to criminalise women in that situation. If a woman has been trafficked for sexual exploitation, it is clear that the person who trafficked her has committed an offence. We are adding to that the strict liability offence of paying for sex with that woman. In such situations, if a woman has been trafficked for sexual exploitation, she is not a criminal, but a victim.

David Ruffley (Conservative, Bury St Edmunds)

I want to focus on the point made by the hon. Member for Oxford, West and Abingdon. It has been suggested that somebody who makes payment but does not consume the sexual services might be aiding and abetting. However, that is not the case. I would be grateful if the Minister could clarify that an offence is committed only if somebody makes or promises payment for sexual services, irrespective of whether that person consumes the sexual services himself. The question for us is, if somebody has made the payment and not consumed the sexual services, what offence is committed by the consumer of the sexual services that have been paid for by the third party? Is it aiding and abetting or some other offence? It is certainly not any offence under the Bill.

Alan Campbell (Labour, Tynemouth)

It is clear that the person who pays for sex is committing the offence that we are talking about. It is our view that the person who does not pay or who has the payment made on their behalf, but has sex with that person is aiding and abetting the offence.

James Brokenshire (Conservative, Hornchurch)

I hear what the Minister has said about the aiding and abetting offence. Will he consider my point because of the need or desire of the Government to put this issue beyond doubt? It is a relevant and important issue. If we accept the general argument on demand, the situation should be made clear for somebody who has not paid but is effectively blind, reckless or is not thinking about the services they are using. A stark message should come from the Bill that that sort of activity is equally criminal and should not take place.

Alan Campbell (Labour, Tynemouth)

I am grateful to the hon. Gentleman. It serves us all well to be absolutely clear on this point, so I will look at the issue of who has committed the offence and what the offence is. I will write to the Committee on that.

David Ruffley (Conservative, Bury St Edmunds)

The Minister is being generous in considering these points. May I ask him to do something over and above writing to the Committee? We have a serious problem with the drafting. Would it not be better if he tabled a Government amendment in these proceedings or on Report to change the wording in lines 29 and 30, so that the clause states that the offence is committed not only if an individual makes or promises payment for the sexual services of a prostitute, but if an individual consumes, takes advantage of or enjoys the sexual services of a prostitute that have been paid for by another individual? That should be in the Bill, otherwise to find the offence that is committed by someone who enjoys the services of a prostitute but does not make payment, we will have to go to other pieces of legislation or common law that relate to incitement or aiding and abetting. Surely that offence should be in the Bill? The Minister should consider not merely writing to Committee members, but tabling an amendment. That should not be difficult. There is no point of principle that Ministers should object to.

Alan Campbell (Labour, Tynemouth)

There is no point of principle to which I am objecting. I am saying that there are two parts to my response. First, I have undertaken to look at this measure. The advice I have received is that the matter is covered. I am happy to explain what we find from that investigation to the Committee. If we find that there is a problem, as the hon. Gentleman suggested, we would seek to address it. It is in no one’s interest to have an offence that creates loopholes and opportunities for people to get round it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I urge the Minister to be cautious. May I tell the hon. Member for Bury St. Edmunds that if the offence remains one of strict liability and the criteria for its being committed are too broad, I would not like it to be said that I urged that the net be cast wider to include a party who had no knowledge of the payment being made, or if they had knowledge, should not be found guilty on the strict liability test that the person is making the payment. Arguably, that is the operative moment of the case. It may not be aiding and abetting that can be prayed in aid here. It may be conspiracy—“will you pay for me?”—but that is a separate matter. I urge the Minister not to widen this clause any further at my behest.

Alan Campbell (Labour, Tynemouth)

That is why we will look at it. I have given that undertaking and, if necessary, we will bring forward some proposal. I can assure the hon. Gentleman that in the process we will not bring guilt on him.

David Ruffley (Conservative, Bury St Edmunds)

I take the point that the Minister is to take this away, so my question seeks not to dwell on that, but rather to understand the offence of aiding and abetting. What is the source in law for that offence, as it is not in the Bill?

Alan Campbell (Labour, Tynemouth)

That can be part of our coming back to the Committee.

I appreciate and understand the need to be clear about the circumstances covered by the term “controlled for gain”. I hope that in our lengthy deliberations, where we have had useful discussion backwards and forwards, I have sufficiently persuaded hon. Members of the advantages of the term that we are proposing to use over their amendments. I also hope that I have stressed the importance we place on the strict liability aspect of the offence and the need to retain the ability to prosecute, even where sexual services are obtained outside England and Wales. I hope that hon. Members, in accepting that reasoning—albeit with the caveats we have agreed to and the need to look again at some of these issues—are reassured sufficiently not to press their amendments.

Nicholas Winterton (Conservative, Macclesfield)

We have had a lengthy and useful debate. Clearly, the hon. Member for Oxford, West and Abingdon will have an opportunity to respond and no doubt will indicate what he wishes to do with the lead amendment, but the general thrust of the clause and in particular all the amendments have been dealt with in great detail.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I certainly agree that we have had a full debate on these amendments, due in no small part to the willingness of the Minister to engage with us in a meaningful way. I am grateful that he has done so. He has taken interventions. He has tolerated my missing one of my amendments in my opening remarks and he has offered to come back to us entirely appropriately at the right moment. It does take both sides for that to happen. That means that when we have a clause stand part debate we can talk about the general issues and we do not have to refer, except in passing, to the nature of strict liability and so on.

I need to respond to a few of the points the Minister has made and will do so briefly. He answered the question raised by the hon. Member for Bury St. Edmunds on the small number of prosecutions. It is a small number and some may well have come from anti-trafficking measures where there was not enough evidence to use the trafficking offences—appropriately, I am not criticising—and therefore “controlled for gain” section 52 offences have been identified. Nevertheless, even in the most recent years, there have been fewer than two dozen. I agree that information is not readily available on how many of those prosecutions have relied on punters tipping off the police or providing evidence, but that is one example of where research could have been done to identify that information, because the numbers are small. I shall come back to that in the clause stand part debate.

The Minister defended strict liability by saying that that is the best way of doing things because it places the risk on the people who are responsible for the demand. I think it would be more effective, as well as better public policy and better law, to place the responsibility on men in relation to having sex with someone against their will, where they are controlled or coerced, even within the wider definition, rather than just placing on them the risk of being guilty of an offence when they are ignorant of the circumstances or have been deceived regarding control of the prostitute. I shall come back to that point in the stand part debate, but I wanted to point out that I do not accept his analysis. We will also come back to whether the proposals would be less effective if the offence were not one of strict liability. I accept that that is another issue for the stand part debate.

On the Minister’s argument that there is a precedent for strict liability in the offence of having sex with a child under the age of 13, may I say that he has not given the full story? Section 47 of the Sexual Offences Act 2003 states:

“A person (A) commits an offence if...he intentionally obtains for himself the sexual services of another person (B),”

and

“before obtaining those services, he has made or promised payment for those services to B or a third person, or knows that another person has made or promised such a payment,”

and either

“B is under 18, and A does not reasonably believe that B is 18 or over,”

or

“B is under 13.”

That is how strict liability is affected when there is a five-year error—I do not use that term to exculpate anyone who has committed that offence—in the reckoning of the girl’s age if the defence is wheeled out that she looked 19. So, it is reasonable to say, when there is a difference of five years, between the ages of 13—so it is 12, actually—and 17 years, 11 months and however many days, that the offence is not one of strict liability but one of a form of recklessness. The same thing occurs in other parts of the legislation.

That is the case with child prostitution, and I should think that there is a stronger case for having a strict liability offence for child prostitution, if one has to rely on it in recognising that there is limitation in sentencing, although I note that when B is under 13, the offender is not faced only with a fine—so that is considered proportionate. If strict liability is not appropriate for an offence of having sex with a child prostitute, I am not convinced that it is appropriate for an offence of having sex with someone who is controlled for gain—at least in more marginal cases, such as Massey and beyond, in which force, intimidation and coercion are not used. I do not accept that argument, but I do not want there to be unpleasantness between the Minister and me on that point. We will come back to the hotline and crime busters in the clause stand part debate.

I asked the Minister whether the CPS could have discretion, to which he replied that that would send out the message that—I hope that I am not misquoting him, because he makes a fair point—as long as men who commit an offence point people in the direction of help, they get off the hook. That would be the effect of putting that into statutory guidance, but it would be worth it because it is far more important to prevent multiple rapes from occurring every day. We could do almost anything to get that advantage, even if it meant that men were encouraged to come forward on the basis that if they co-operated, they would not be prosecuted for this, more minor, offence. I would rather stop the gang rapes and prosecute the pimps and traffickers than prosecute one person for this minor—in terms of penalty—offence. We would still have the aim, because the law would be in statute, of having the deterrent effect which the Minister believes works but which I do not. However, I will come back to that in the clause stand part debate.

On amendment 79, the Minister said that he felt that the word “intentionally” was unnecessary in respect of the payment. His also argued that he did not want to make the case more difficult to prove. However, I am still concerned about the measure in the context of the example I gave in which someone who is not paying for sex is penalised. We could discuss whether lap dancing and table dancing constitute sexual services—they do not do so under the Bill—but what happens if someone is paying for those services and does not intend to pay for sex with a prostitute, but nevertheless gets it as a good customer? That should be addressed.

The Minister went on to deal with the question of anywhere in the world. I think I understand his position, but I would be grateful if he could confirm my understanding, which is this: for the offence to take place, the payment has to occur here—that is the root of the offence—regardless of where the sexual services take place. Therefore, clearly, paying here and taking a prostitute abroad would be covered under the provisions. I do not object to that. I also accept that if a person pays on a credit card from here to another country, an offence has taken place regardless of whether the services are ever delivered, as long as it comes under “controlled for gain”.

However, my concern is a situation in which an activity that comes under our definition of “controlled for gain”, be that relating to a pimp or madam, is legal in another country such as Holland. The payment is made here and the services obtained there. The Minister went as far as to say that it would not be a high priority for the police to enforce that sort of thing, but I would be grateful if he could confirm whether it would be an offence. If it is not illegal to have sex with a prostitute who has a madam in, say, Holland, should it be an offence, on strict liability, to pay for it in this country? I accept that the Minister has already made his contribution, but I would be grateful if he could deal with that question in correspondence, even if it is to say that I have got it completely wrong.

Simon Burns (Conservative, West Chelmsford)

Something else just occurred to me. If the hon. Gentleman’s analysis is right and if it is confirmed by the Minister, would an individual who pays for sex in Amsterdam using a British credit card fall foul of the law, considering that the actual physical payment will be made in this country?

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I do not know the answer to that question, and neither does the Minister. Hopefully an answer will come, either later in the debate, in correspondence, or during the next debate. He should answer that question especially if there is no easy answer.

On “controlled for gain”, I am grateful for the Minister’s engagement in the debate and that he understood the spirit in which hon. Members tabled amendments. It is important that he has clarified that, in his view, mere receptionists, maids and security guards, who undertake no controlling activities, are not covered. I think we agreed in an earlier exchange that the role of a madam could vary, so the facts could lead the question because the madam could be aggressive and intimidating.

We all accept intimidation, force and coercion, but the question of direction and instruction remains, because to run a tight shop doing something that is unlawful, people have to be quite brusque sometimes. I think the test is whether the prostitute agrees to the structure and arrangement of the control. That does not mean that there is carte blanche or that control is always acceptable, but it takes account of a situation in which a prostitute is agreeable to the structure, and has consented by saying, “Yes, I understand that I will be taking these instructions.” As long as there is provision to deal with trafficking, or force and coercion and forms of reprisal, that test could be a way forward. Liberty has made such a proposal, but we will not be able to deal with it today.

Mr. Peter Lodder QC gave evidence to the Committee. An offer was made to him to consult, and he told me that he is more than willing to meet or write to any of us to offer his thoughts as a practising criminal barrister with an interest in such things. He did not agree with everything that I asked him in the evidence session, so he is not necessarily on my side of the argument.

The Minister objected to amendment 27, which was moved by the hon. Member for Bury St. Edmunds, because he said that trafficking is a “was” situation. He recognised that there may be circumstances—bizarre though it seems—in which, the trafficking having been done, the person was no longer controlled. That problem could be remedied if the amendment was redrafted to say that the offence is still extant. Perhaps that might be tackled.

I am prepared to recognise that Massey did not require that due consent was not given. My instruction and direction were an attempt to recognise that. I would be grateful if a way could be found to deal with the “madam” point to protect women whom we should encourage to work together to get rid of drug pushers and pimps from their business.

The hon. Member for Northampton, North said that even if the arrangement is purely consensual and the prostitute is happy to have an employer who can sort out the finances and organise the security and business, they cannot be instructed to have sex with someone because that gets rid of their consent. I accept the point. The instruction I was talking about was a person perhaps being allocated to someone if they were willing. It is essential in prostitution that, up to the very last point, women should have the freedom to consent.

I am grateful to the hon. Lady for giving me the opportunity to clarify the fact that what I was referring to was instruction around the arrangement of the business, not the instruction—regardless of whether they like it or not—to have sex. I entirely agree with her about the nature of consent.

One question that was not addressed was whether, in any circumstances, the prostitute, in negotiating the payment, would be guilty of aiding and abetting. The old language of “assisting” and “encourage” was used, I think from the Criminal Justice Act 1967, although I do not know as I am not a lawyer. I would be grateful if that was clarified. Potentially, the prostitute is guilty of such a charge, but I can understand why the Minister does not want that prosecuted. Nevertheless, if the police see such an offence, they might want to get the numbers up, which is a worry.

Finally, there is the question of “for gain”. The Minister explained why he did not want to lose those words and gave one example of a friend who says, “You have sex with that person,” even though they were not doing it for gain.

There are other circumstances that I raised to which the Minister did not respond—for example, a boyfriend who, just for the hell of it, is making someone have sex and payment is given to someone else. I think that it is necessary to capture that behaviour, even under section 52 of the 2003 Act, because that talks about “for gain”. Therefore, even though this whole construction of “controlled for gain” was not recognised by my party in 2003, it could do with revisiting now, especially given the Government’s determination to crack down on abusive prostitution situations. I ask him to reflect on that.

We have had an extensive debate and I am grateful to the Minister for the points that he made and his offer to communicate with us further.

Nicholas Winterton (Conservative, Macclesfield)

I ask the hon. Gentleman to resume his seat. If he catches my eye again, I will call him.

David Ruffley (Conservative, Bury St Edmunds)

Very briefly, I want an acknowledgement from the Minister that he will take the following point on board when he goes away. The more I look at the offence before us, the more I see that, on a strict construction, it involves someone who makes or promises payment. That is the offence. It is not clear that someone has to consume the sexual service. We understand that.

However, I struggle to understand the point in relation to someone who does not make the payment, but none the less enjoys the sexual services, because A, who makes the payment, has decided to do so on his behalf. How does aiding and abetting relate to the offence of making payment? I can envisage a situation in which the consumer of the services, who is not paying for those services, is stony-broke. In what sense, therefore, can he aid and abet the making of a payment?

I am genuinely puzzled about why the Minister alights on aiding and abetting as the offence committed by someone who consumes sexual services without paying for them. Is it aiding and abetting, or might it be conspiracy? Might it be something else? Under strict construction, someone who is stony-broke cannot aid and abet an offence, if that offence is the making or the promise of a payment. The offence is quite unconnected with the individual consuming the sexual services.

Simon Burns (Conservative, West Chelmsford)

I shall give my hon. Friend another example that might, to him and me, seem bizarre: some fathers, when their sons reach the age of 18, will spend the money for their son’s benefit, as a birthday present.

David Ruffley (Conservative, Bury St Edmunds)

I take the point; that is a useful intervention. It is said by historians among us that that is what old Joe Kennedy did for Jack Kennedy—

Nicholas Winterton (Conservative, Macclesfield)

Order.

David Ruffley (Conservative, Bury St Edmunds)

In any event, I take my hon. Friend’s point. I do not wish to detain the Committee, but the Minister needs to explain aiding and abetting in the example given. I am not sure why he alighted on that specific offence, rather than conspiracy or anything else. A full explanation is required.

Lynda Waltho (Labour, Stourbridge)

The hon. Gentleman talked about fathers, but I understand that some mothers do the same. I think that Coleen Nolan, from the Nolan Sisters, paid for her son, or said that it would be a good 18th birthday present for him. Might the extension not be “and/or consumes” the service? Surely, that would be a way round the problem.

David Ruffley (Conservative, Bury St Edmunds)

I am grateful to the hon. Lady for that intervention. She agrees that we are trying to tighten up the clause, in a helpful way, so that it catches those who should be caught, and she is entirely right, but I hope, too, that Labour Members will accept that we are widening the provision, although probably in a way that the hon. Member for Oxford, West and Abingdon thinks is not appropriate. Nevertheless, I am sure that we all give thanks to him; his contributions have teased out many important questions. However, the possible avoidance, under the strict construction of the clause, needs to be considered.

It is greatly to the Minister’s credit that he will take this away and give us a full explanation. I am concerned about the aiding and abetting provision, because it does not seem to bite on the offence. At the moment, merely making a payment, regardless of whether sexual services are consumed, is an offence. On that note, I plead for a full explanation from him.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

In response to that last point, I disagree with the hon. Gentleman in only one respect, although I am grateful to him for his kind words. The modern language for “aiding and abetting” is “encourage and assist”. That is the language in sections 44, 45 and 46 of the Serious Crime Act 2007, under which this might well fall. Clearly, if someone says, “Look, pay for me, will you? I’ve got no money and I want to use this prostitute,” it is encouraging an offence. However, the question is whether strict liability should be transferred to the person who consumes even if they do not encourage. I think that the Minister has in mind offences of payment committed in this country.

Then there is the problem that if we added “consumes”, as the hon. Member for Stourbridge suggests, to the top criteria, that would make it difficult for the provision to bite if the consumption took place abroad, unless that was one of the offences in the 2003 Act that was made cross-jurisdictional. Some of them are, but I believe that those relating to sections 52 and 53—we are debating proposed new section 53A—are not.

In any event, we look forward to the Minister’s response and I am grateful to the hon. Member for Bury St. Edmunds for clarifying the fact that I am not an enthusiast for widening the provision any further. I feel guilty for having contributed to the finding of a potential loophole that the Government might close. Having said all that, I beg to ask leave to withdraw the amendment.

David Ruffley (Conservative, Bury St Edmunds)

My comments will be exceedingly brief because we have had an incredibly full debate. I wish merely to make the following points by way of summary.

I hope that Ministers will keep a keen eye on the enforcement of the clause, should it be enacted, because the answer that the Minister gave on the number of proceedings in relation to the “controlled for gain” legislation in the 2003 Act struck me as extremely low. That led me to think of two possible reasons. The first is that the police do not have enough resources to enforce. I do not know whether that is the case, but it is one logical possibility. The second possibility is that the prosecution in relation to that legislation—or, indeed, this legislation—might not be able to meet the burden of proof. That point was raised by many witnesses.

Release, in particular, is worried about enforceability. It said that

“the prosecution would never be able to meet its burden of proof. This would be compounded by the difficulties already faced by sex workers during the investigation process where they often receive poor service or little respect from the investigating officers”.

I hasten to add that I do not know whether that is true. I am merely suggesting that that allegation is being made. Release goes on to say that

“when they are witnesses in court their credibility is impugned through the adversarial process—this makes them unlikely to support prosecutions and”

makes it

“unlikely for a conviction to be obtainable under the proposed offence.”

Although it is a strict liability offence, Release seems to be making the point that there will have to be some evidential input from a prostitute and it suggests that that might not be forthcoming, so I still think that the whole question of enforcement is very much a live one.

As Her Majesty’s Opposition have made clear, we still believe that the clause should go through, because one has to start somewhere in choking off demand. I wish that to be clearly placed on the record, because the Opposition have strong views—views at least as strong as those of Ministers and Government Members. However, there is a question whether this law will be enforced. That is my first point on clause stand part.

My second point—the final one, so that we can make progress—has been raised by many witnesses who have written to us and whom we heard from last week. They talk about the good intentions of the clause, but say that it might, if enacted, be counter-productive, in that it might drive vulnerable women sex workers “underground”—that is the word used. The briefing from the vicar of St. Bride’s, who is a doughty supporter and giver of pastoral care to prostitutes in central London, expressed those sentiments. I am not saying that the Government were not trying to do the right thing, but it might lead to some women leaving brothels where they might enjoy relative safety at the moment and being driven underground.

James Brokenshire (Conservative, Hornchurch)

My hon. Friend made an important point about enforcement, but does he agree that on the issue of demand we are talking about changes in behaviour and attitude? It has been said quite strongly that we need to focus on education to change attitude and that legislation of itself is not necessarily the most effective way to address that.

David Ruffley (Conservative, Bury St Edmunds)

I agree with my hon. Friend, but it is not a case of either/or. In an attempt to curb criminality, the legislation must start somewhere and, of course, education must be complementary and supplementary.

The Government mount many campaigns to publicise Home Office policies, not all of which I agree with. All Governments do so, particularly in relation to reckless driving on the roads and breaches of the Highways Acts. We have all seen advertisements that warn members of the public of the danger of drink driving and how serious criminal offences can be committed if individuals who drink over the limit get behind a car and injure people. They could face custodial sentences.

It occurred to me listening to the debate that, if successive Governments rightly mount campaigns to stamp out the criminality of reckless driving, for example, perhaps a campaign of some description might be mounted to spell out to men primarily—it will be men—that, if they do not heed the new strict liability law, not only will they be guilty of perpetrating the vile trade of human and sexual trafficking, but there will be penalties for them for the first time under British law. That suggestion was prompted by my hon. Friend the Member for Hornchurch. Many witnesses were concerned about enforcement, so will the Minister consider my proposal? I am not suggesting that he commits himself to a spending pledge, but I wonder whether he considers that the new offence is sufficiently serious and will have a high enough profile to be the subject of a Government information campaign, as reckless drink-driving is.

Vernon Coaker (Labour, Gedling)

We should not let this moment pass without reflecting on what is happening in Committee Room 11 today. We have seen a seismic shift. The Government are introducing a strict liability offence under clause 13, which the Opposition spokesmen have said that they will not oppose. We are debating how to make the clause effective. That is a phenomenal change, as the Government, in the broadest sense, are looking at how to deal with the problem that we have been wrestling with for decades, indeed centuries.

I do not want to over-egg matters, but when people look back they ought to reflect sometimes on moments such as this. What is happening in Committee represents a fundamental shift and change in how this country is seeking to look at the whole issue. To be fair to all members of the Committee, that deserves to be put on to the record.

David Ruffley (Conservative, Bury St Edmunds)

I am most grateful to the Minister and I absolutely agree with his sentiments, but none of us in Committee yet know—only time will tell—whether the enforceability problems that many witnesses and some Committee members see will be overcome successfully. The jury is out, but we travel hopefully, those of us who would see the clause pass into law. The Minister was entirely right in what he said. However, it remains the case—this is not a proviso or a conditional comment of any kind—that good law has to be tightly drafted. If there is any suggestion that it is not operating as it should or is not as effective as it should be, or, let us not forget, if injustices are being committed because of the construction of the words or of how judges or prosecuting authorities interpret the words, it behoves any Government to revisit the measure. Bad law ends up being no law at all. On that note of positive support for what Ministers are trying to do, I conclude my remarks.

Sally Keeble (Labour, Northampton North)

I want to bring out some of the points that are particularly important and good in the clause. Both Opposition parties are being a little mealy-mouthed, because the clause deals with the worst mischief in prostitution. I draw from the outstanding work done by SWAN, which is a project supporting street workers in Northampton, and from the contact that I have had with trafficked women and women who at various times have been involved in prostitution. I want to make just three points.

First, it is absolutely right that this should be a strict liability offence. That says a lot for the Government’s support for vulnerable and exploited women. It does not mean that the men do not have defences to put up if they are prosecuted. There is a whole variety of defences, some of which we have heard here—they did not pay, someone else paid for them, they did not intend to pay or they did not have sex, which is always one of those defences that men put up. Having been a juror in a rape case, that was one of the defences, which, completely implausibly, the man ran. However, he did use it.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I would like to stress to the hon. Lady that proposed new section 53A(2)(a) is very clear that it is irrelevant whether those services are provided. I do not disagree with what she said about how that might be a rubbish defence in rape, but the fact that you did not have sex at the outset is definitely not a defence.

Nicholas Winterton (Conservative, Macclesfield)

Order. I did not have sex at all—you may talk about the hon. Lady or an individual, but not the Chairman. If you use “you”, you are referring to me.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I apologise, Sir Nicholas, for implying that you, at least in this instance, were the person involved. I was talking about “you” in the sense of “one”, and I shall be very careful in future discussions not to impugn your behaviour in any way.

Sally Keeble (Labour, Northampton North)

I take the point, but if the facts of what happened are in dispute, that can certainly be disputed. The man cannot use as a defence issues about the status of the woman, which is absolutely right. The status of the woman, if she is controlled, is an objective fact, and it seems quite wrong that that should be used as a defence.

My second point concerns the trafficking issue, which is also right—it is not mentioned in the measure. Some of the other descriptions of women are not mentioned. One reason is that it seems to create two categories of prostitutes—a prostitute controlled for gain who has been trafficked, and a prostitute controlled for gain who has not been trafficked. That would be completely wrong. If it is wrong to control prostitutes for gain, that should apply no matter how the woman ended up in prostitution.

Secondly, we sometimes have very stereotyped ideas about trafficked women. Some women conform to the stereotype of women who are smuggled in in gangs, brought in on lorries, kept in particular houses or moved around the country, and sold and resold. However, I have spoken to a number of women and children who have been trafficked, and it is clear that they do not all fit into that stereotype. Some are brought in ostensibly for one reason and slip into prostitution; some think that they are coming in for a different reason. Some of the lines are blurred. If the offence was specifically about trafficked women, enforcement would be extraordinarily difficult. It would be necessary to prove some tight circumstances.

My concluding point is that it is right not to dwell too heavily on the type of coercion that the women are under. There was an extraordinary case in my constituency very soon after I was elected—hon. Members might remember it because, unfortunately, it was one of our colleagues who was caught in a brothel. A number of my constituents came to see me and they were absolutely clear that the women in the massage parlour were being coerced. They were outraged at what had happened. Some people had certain attitudes to prostitution, but they were more concerned about the fact that the women were being held there improperly, that their passports had been taken away and they were not being provided with much money, and that the people using their services were making a nuisance driving round the area in cars.

When the police duly carried out a raid, the attitudes of the women themselves were quite different. If we had to rely on the views of the women as to the level of coercion it might be hard to prove an offence. The Government are right to say that if prostitutes are being controlled for gain, whether or not they consent to that and it is seen as an employer-employee relationship, it is not acceptable by the standards of our society. Whatever the deal is, it is not acceptable for women to be treated in that way.

As I am sure all members of the Committee know, some prostitution involves women who have been brought in from other countries where they have had abysmal rights and have been abused. It might therefore appear to some—not all, but certainly some of them, as it did in the case I mentioned—that they are not getting a bad deal over here. It is important to assert that if a woman is being controlled for gain, that is wrong and is a strict liability offence. We should not have to prove issues about trafficking or levels of coercion. This is an important clause and will go far in resolving some of the long discussions that have taken place about the rights and wrongs of prostitution.

I look forward to the measure being on the statute book and being implemented. There is much more to be done in dealing with prostitution. That includes the kind of work carried out by SWAN which looks at the risks faced by prostitutes and the health services required, and tries to find them alternative livelihoods so that they do not have to rely on prostitution and can move out and find something else to do. This is an important clause, and I commend the Government on introducing it.

Several hon. Membersrose—

Nicholas Winterton (Conservative, Macclesfield)

I call Dr. Evan Harris, but I can assure the hon. Member for City of Durham that I have noted that she wishes to contribute to this stand part debate.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

I fear and regret that consensus must stutter to a halt at this point. If my colleagues and I believed that, unamended, the offence would be effective in reducing harm, improving the safety of women, reducing demand in general and demand for the unacceptable, forced prostitution about which we are all concerned, and effective in helping to bring to book traffickers and those who, through violence and intimidation, oppress women in the sex industry, we would support it. Furthermore, if I thought that it would not do any harm and was worth a try, I would also be minded to support it. But I do not support it, because, in its current form, it is bound to do more harm than good, and I hold that view in all sincerity. I do not suggest that colleagues, including Conservative Members, support it despite knowing that; they clearly take a different view based on their view of the evidence. I hate to use the word evidence, however, because it elevates the information that we have been given to a state that it does not deserve.

I shall explain why the measure will not work and why it will be counter-productive, in the hope that others in the House hear the views of myself and my hon. Friend the Member for Chesterfield, because we appear to be outnumbered in this Committee. If the Government had accepted that strict liability was the wrong approach, and if it was clear that the offence would be targeted at the abuse of prostitution, I might recommend to my colleagues that we support it, even though we are dubious about tackling demand, because it cuts off reporting and, therefore, involves paying a much higher price. Sadly, the Government are not minded to restrict the measure to intention or recklessness, and their definition of control for gain is still too widely drawn.

The safety of the women concerned is the top priority, and the test is whether this clause or the others in this part include good evidence that has been published, peer reviewed and commented on, and whether everyone agrees, or a strong case has been made, that such measures will make women safer. I do not think that that case has been made.

I am determined to help the Committee to deal with the matter by the end of play today. That may not be possible, but I am not going to string this out. In order to make progress now, I shall deal with increased criminalisation during stand part debates on other clauses, but I do not want it thought that everything I say now is my entire argument—on even this measure. So, safety is the top priority, but I have not seen any evidence, let alone any good evidence, and there has been no consultation. The people who are affected by the measure should have been consulted, in particular. That includes the punters, whatever our view of them, and the women—they are mainly women—whose services they buy.

Do we provide an alternative? Is the measure part of a coherent package that provides, for example, funded exit strategies? Is there any evidence of support from sex workers, themselves? Even if they are not being exploited, they know about the situation better than others, and they feel strongly about it. The English Collective of Prostitutes and the International Union of Sex Workers really want the oppressive, exploitative and abusive prostitution rackets to end; they do not have any interest in such pursuits. There is also the absence of a proper public education campaign to go with the provisions in the clause.

In the absence of all that, it is very hard to see how a rational legislator—especially one who wanted to submit the propositions of the Executive to due scrutiny—could enthusiastically support the measure, even if they are sympathetic to it, as the hon. Member for Bury St. Edmunds says he is.

None of those provisions have been met to my satisfaction or, indeed, have even been attempted to be met. Secondly, is there evidence that tackling the demand will work to reduce the demand? Doing so is incidental if the prostitution continues and if women are still abused and oppressed, but they have more idle time between seeing clients. Is there any evidence that the provisions will have any impact whatsoever? I have not seen any evidence that the measures will work to reduce demand. It would take huge amounts of enforcement to do that, and unless the Government want to give the false impression that one is at serious risk of being prosecuted, is it worth the enforcement time?

We have precious few enforcement resources, and they must be directed towards the abusers of prostitutes, not towards enforcing the strict liability offence of dealing with someone who makes payment for someone who is controlled for gain. There is a big difference between those two. If the police in my area are picking up clients instead of pimps and traffickers, and there are tiny numbers of prosecutions despite the efforts of the police, that is an indication that there is plenty more enforcement to be done. If that is any indication to go by, giving the police other options to prosecute without clear evidence that it will improve the situation—not just hope that it will—is a real problem that prevents one from supporting the clause.

In addition, my main concern is that the measure will be counter-productive to the interests of women. That applies to all the clauses, but in the interests of time I will not go into all my arguments on that because there are better clauses in relation to which I can do so. Anything that drives women and prostitution further from the law creates real problems. In the remaining time, I will deal with the issue of the evidence because the Home Office report “Tackling the Demand for Prostitution” claimed that there was a literature review on the subject commissioned by the Home Office. In what I suspect is a standard letter that was sent to another Member from the Minister—I was sent it by the person who wrote to the hon. Member—he said:

“The review involved key stakeholders and practitioners, including the Police and the Crown Prosecution Service as well as organisations supporting individuals involved in prostitution.”

We have had a number of representations both through the scrutiny unit and directly to ourselves from organisations involved in working with people from prostitution, including the national sex worker project people, who co-ordinate a whole load of people who do not agree with that. I fear that they might have been left out or ignored in that review.

Work undertaken as part of the review included an assessment of relevant academic research. Where is that assessment? Well, it is referred to on page 11 of the review:

“A rapid evidence assessment (REA) of research available on sex buyers, conducted by the University of Huddersfield to be published shortly.”

That was in November. I have already expressed my utter dismay about that matter to Ministers and, in fairness, the hon. Member for Gedling regretted that it had not been published and said that he could not understand why. However, I have also expressed my regret to the Government’s chief scientific adviser and all Ministers who say that they have an evidence-based policy, because they gave an undertaking in response to the Science and Technology Committee’s report on evidence-based policy making that evidence would mean evidence—not assertion, unpublished and unpeer-reviewed work, but proper evidence. Otherwise, it is even worse than having non-evidence based policy because it pollutes the language.

We cannot even see the terms of reference of that evidence assessment—let alone what it says. We do not know whether it has been peer-reviewed or what all the other academics—other than the people at the university of Huddersfield—think of it. Other academics might say, “This is an excellent systematic review; actually it looks as if the evidence is pointing in this direction.” However, if we cannot see that, asserting that there was any attempt to get relevant academic research or assess it is meaningless. I am shocked and appalling that the Government are relying on something that is not published and even if it had been published, it was not peer-reviewed—especially if that does not represent the consensus of academics, who do not have a vested interest.

The UK national sex workers project group has sent us a memo setting out its concern about inadequate and selective evidence. I am conscious of the time and look to you for guidance, Sir Nicholas. It was not my intention to take the debate beyond 4 o’clock, and the Minister and the hon. Member for Bury St. Edmunds might still have to respond.

Nicholas Winterton (Conservative, Macclesfield)

I am a servant of the Committee and am in its members’ hands. It is not for me to advise members whether the matter should be concluded this afternoon. The hon. Gentleman is aware that one member of the Committee wishes to speak, albeit briefly I understand, and clearly the Minister might want to say a few words in response. I hope that that advice is helpful.

Evan Harris (Liberal Democrat, Oxford West and Abingdon)

During your helpful comments, Sir Nicholas, I had an indication from the Government of what might happen. It is clear, sadly, that we will not finish the clause stand part debate today, and I regret my part in that, but I will attempt to finish my remarks today and I understand that the Government Whip might catch your eye to move the adjournment at 4 o’clock.

The UK national sex workers project group mentioned the inadequate and selective evidence and questioned the numbers that have been provided by the Home Office in its 2003 estimate—we will discuss that further in future debates. The Minister, the hon. Member for Gedling, will know that when the Joint Committee on Human Rights, of which I am a member, conducted our inquiry into trafficking, which I had suggested, we questioned the figure for the number of women being exploited. Even if there were 100 women, or only one woman, who was trafficked, forced to become a sex slave or was being forced and intimidated, that would be too many.

If the efficacy of the offence is predicated on the number of prostitutes in that position, and therefore the number of people who might reasonably be at risk from a strict liability offence, the Government could have provided us with more information on the numbers. I do not know how many men in Britain use prostitutes, on average, each night, but I suspect that it is in the tens of thousands. I suspect that it is not as many as in Italy and I do not know why that should be the case—perhaps the religion of the country produces a behaviour in men, but I do not understand that. Estimates have been made of the extent of prostitution across Europe, and there are particularly problems in particular countries. Nevertheless, the figure is high.

I do not know whether the Minister envisages that 10,000 men a night could be at risk of committing that offence and that the police will pick them up. If it is 10,000, and if the number of prosecutions is as low as it is for the offences that have been on the statute book for three years, men will understand that they have a one in 10,000 chance of being prosecuted. I am not sure that that achieves the purpose of the measure, and it is difficult to know without having the data on which the Government based their numbers.

It is the view of the International Union of Sexworkers—I have met many people who work in the industry at such meetings—that the draft legislation and all its clauses will increase the vulnerability of people in the industry. No matter how well intentioned it is, it will tend to drive the industry back underground, which makes the vulnerable people involved in the industry more vulnerable. While we might like to think that it will help, there is no evidence that it would. People in the sex industry assert—I accept that they are only assertions—that it will make matters worse, and I do not see why they should have a vested interest in that if they are not being controlled, as many of them are not. I believe that it will aid traffickers and those who control prostitutes by deterring some of the people who know where the offences take place from reporting them.

I would like to live in a society in which men or users, if they encountered prostitutes being controlled against their will, would report it and be encouraged to do so. The proposal sends the opposite message before that technique has even been tried. I accept that the numbers are currently low, based on what we have, but the approach has never been tried.

Finally, there is the question of blackmail, which was not addressed but is a point I raised when discussing the amendments on strict liability. It was not a point that the Minister responded to, but there are men who have sex with male prostitutes who could take the money, have sex, claim that they are controlled for gain—the people who run those rackets are not stupid—and then threaten to expose the individual concerned and report them to the police, not only for having sex with prostitutes, but with rent boys and homosexuals as well. When considering legislation such as this, we must recognise that that might create more offences and damage without the evidence that it is solving the problem it seeks to solve.