In commenting on the responses to my post on prostitution and the Policing and Crime Bill, McDuff has written: “This comment thread is, in fact, bloody excellent. How such a thing can happen on the internet is beyond me.”
I rather share his positive evaluation. The post has attracted some insightful comments, including from people who may otherwise not have made their views known. I have found the comments extremely helpful. I certainly agree with those who argue that the provision of the Bill making it an offence to use prostitutes who have been coerced into prostitution by a third party, and making it a strict liability offence (that is, it is not a defence to argue that one did not know the person was coerced), constitutes bad law. It can be counter-productive, sets a bad precedent in respect of strict liability, and – as one senior lawyer said to me – won’t work.
The House returned to the provision at Report stage of the Bill. The Liberal Democrats tabled an amendment to remove the strict liability element. They also put down a motion, debated at the same time, to delete the whole clause. There were some powerful speeches in favour of the amendment, not least from senior lawyers, Lord Thomas of Gresford and Lord Pannick. In replying to the debate, the Attorney General, Baroness Scotland, made what one lawyer described to me as “a jury speech”: it was an emotional appeal to safeguard vulnerable people, but without actually engaging with the amendment.
I was present for the discussion and was ready to vote for the amendment. There was support for it from cross-benchers such as Baroness Stern and Baroness Howe of Idlicote as well as from the Opposition Front Bench. At the end of the debate, Baroness Miller of Chilthorne Dormer, on the Liberal Democrat Front Bench, rose to reply and then, amazingly, said that she did not not intend to push it to a vote. She then asked leave to withdraw the amendment. Some of us objected, preventing it from being withdrawn. However, it was clear when the question was put that there was little chance of winning: the Government was opposed to the amendment (as were some Conservative back-benchers and some cross-benchers) and, given Baroness Miller’s comments, the Liberal Democrats would presumably have abstained. With hindsight, though, I would have preferred a vote, if for no other reason than to get my position on the record.
The clause thus escaped unscathed. My view is that it is bad law and that, if anything, we should be moving instead in the direction of decriminalisation suggested by several of those who contributed to the post.
At street level, punters and working girls are quite clearly stating this law is unworkable by the Police. The Police must presumably know or fear a crime is being committed in relation to coercion or force and these circumstances are quite rare despite the heart tugging stories being told to the law makers. How many times has a court drama played out betwixt two that each blamed the other.
To charge the punter with an offence it will be necessary to prove the girl was forced or coerced. This proof has been difficult to assertain in the very few actual cases of traffickers and would require inordinate resources.
The Courts I feel would have difficulty with this law, thankfully they seem far more fair and unbiased than our politicians.
Decriminalisation was indeed put by the present Government sometime ago. However since Harriet Harman took up her position things have changed. One wonders if indeed HH has the makings of another Mary Whitehouse, stifling modern opinion in favour of Victorianism which only hid the sordid side behind a thin veil.
This legislation will not help prostitutes, it will do little to help the minute amounts of trafficked/forced/coerced women either. It will if used unwisely by Police forces, perhaps pushed by ministers into using it, ruin lives and not harm the traffickers who can already be bought to justice by existing law.
Despite the heart tugging stories, that remain untested and figures that have been proved to be quite wrong this ridiculous part of the bill looks like becoming law. Legal minds consider it unworkable, as do the people it concerns. We await with eagerness its testing in a Court of Law.
The Lords, I believe, did hear from many inside the sex trade in emails and on previous blogs. These included lots of the working girls. Did the Lords receive crys of help from those being forced/coerced ?
It will seem quite ironic that these ladies will be paying, by way of tax, for the system to try to make them unemployed.
I can’t quite understand why Baroness Miller withdrew the ammendment; her comments leave that far from clear.
It does irritate me when amendments are withdrawn avoiding even the opportunity for a vote in the Lords. Though I suppose the next time we have sanctimonious remarks about fair trials from those who backed out of opposing this amendment we’ll be able to tut tut with justice!
Carl Holbrough probably asks the right question as to whether the courts – the other half of the ‘legislative branch’ (post ECHR & judicial review) – will water this down.
McDuff: Godwin’s Law!
You can’t call Godwin’s Law on a Metagodwin.
I think in your position, Lord Norton, I would feel entirely the same way. Whilst I can see some obvious pressure on proposers of amendments to withdraw rather than press matters to a division once it is clear their proposal is something of a non-runner (especially when the proposer has a series of further amendments on the same Bill), I do feel that there should be a simple way for members such as yourself and others to formally record their positions.
Divisions seem to take Westminster an infernally long time in this day and age, when it should be possible for them to be achieved electonically within a few seconds. One of the reasons why BBC Parliament is not exactly top of the viewer ratings?
I, too, was delighted by the quality of the thread, though I rather think the ‘Aye’ lobby was still preoccupied with your lap dancing post. It was, indeed, very pleasant to see so many able new contributers.
There are a great many frustrated UK academics studying this area of human activity: sociologists, criminologists, philosophers, social geographers, psychologists, to name but a few of the many disciplines involved. Their work seems sadly totally ignored or sidelined by a Home Office preoccupied with ‘sending out the right message’, pleasing the frenzied radical feminists of London, and – above all – how things might play with the media.
The media, that is, not the public in England and Wales, who display far more tolerance towards sex work than either the Taliban, the Home Office, Al Qaeda, or, of course, the US State Department.
Nearly 60% of us think prostitution is a perfectly reasonable choice that women should be free to make, according to a Government poll in June last year. While 47% believed it should legal to pay for sex, only 36% thought it shouldn’t.
The poll included Scotland, which is highly prohibitionist, even though it is no lopnger withiun Westminster jurisdiction. Taken together with a Politics Show poll for the BBC some months earler, it is clear that prohibitionists tend to be disproportionately either young (aged 18-24); or Scottish; or members of the socioeconomic groups D or E.
The frustrations felt by the few reformers Marsham Street had at the time of Payling the Price – the Government’s original consultation document on prostitution – were ably expressed by Katherine Raymond, former special advisor to David Blunkett, at the time of the Ipswich killings (Dec 2006):
“The problem is that current strategy on prostitution was forensically examined just two years ago. I helped prepare a government paper called ‘Paying the Price’ which described our laws as ‘outdated, confusing and ineffective’, and called for people’s views on legalised brothels, registration for prostitutes and local-authority sponsored red light zones. But it did not work in the way we had hoped. In Whitehall, only a handful of politicians and officials wanted the report to see the light of day. At the Home Office we were divided between those eager to publish – and be damned if necessary – and those wanting the whole issue to go away.
“In the end, and despite opposition from a No 10 terrified of a hostile media response, the ‘damned’ won, not least because the then Home Secretary, David Blunkett wanted what he called ‘a grown-up debate’. In January this year the government finally came up with a watered-down series of proposals that took a small step in the right direction – a change of rules allowing prostitutes to work together, a crackdown on kerb crawlers and new methods to help women addicted to class-A drugs. Almost a year later, even these mild measures have not been enacted.”
http://www.guardian.co.uk/commentisfree/2006/dec/17/comment.politics3
And now, four years later, where are we?
A link to a report that I presume the Government had, and ignored, before proceeding with the bill.
http://www.londonmet.ac.uk/research-units/iset/projects/esrc-migrant-workers.cfm
Carl Holbrough (above)states “Legal minds consider it unworkable, as do the people it concerns. We await with eagerness its testing in a Court of Law.”
Unfortunately I cannot see how a conviction under clause 14 will escape the clutches of the case of Storkwain[1986]HL , probably the worst decision the House of Lords ever made.
I`ve only briefly looked at Storkwain[1986]HL so forgive me if my opinions are incorrect regarding SL (strict liabilty)
In that case it was clear that the product supplied was a prescription only product and that SL applied. It,in my opinion, was wrong to convict when a forged document was taken in good faith.
Regards Clause 14, this is dissimilar, insomuch that the act committed is not prohibited and without evidence that the WG (Working Girl) had/is being forced or coerced no law has been broken. To enter the premises where the act(sex) had taken place, presumably, the Police would need grounds that a crime was/is/has been committed.
WG`s are generally averse to Police and it is unlikely that they would state they were being forced or coerced. Even more so if they actually were and in fear of someone, which is quite rare.
Research backs up the fact that a large majority of these women do it of their own volition. Neither the research or facts have actually been listened to by the Government in this instance, they have set their own agenda.
I don`t think that Storkwain does set a precedent but I am no lawyer.
Thanks for the further comments. In the light of the debate, as well as the contributions to this blog and my discussion with legal experts, I have little doubt that it constitutes bad law. I am sorry we were not able to get rid of the clause and revisit the issue in a more sensible and considered manner. I take the point, made well by stephenpaterson, about the extent to which the issue is determined without taking into account a wide range of available evidence. As a general point, I think we need to be pressing much more for evidence-based measures, rather than Bills being brought forward as part of the ‘something must be done’ approach.
Lord Norton’s depiction of the parts of the bill referring to prostitution as ‘bad law’ and in particular his summing up remark – “I think we need to be pressing much more for evidence-based measures, rather than Bills being brought forward as part of the ’something must be done’ approach” epitomise the whole problem.
The history of legislation concerning prostitution in the United Kingdom (depicted in detail in the works of Judith Walkowitz, Julia Laite and Helen Self) is a sorry one, that is largely symbolic rather than instrumental law.
Its current incarnation very much reflects the impact of neoliberalism and social control which now forms the core of New Labour’s approach to criminal law and conditional citizenship. The alleged need for such state intrusion is usually derived from moral panics which depict a purported urgency of crime control playing on public demand for security. This in turn facilitates considerable expansion of the rhetoric and instruments of neoliberal social control (Mariani 2001).
I agree with De Belinda Brooks-Gordon, who in her briefing on this bill states that the next step is an arms length Royal Commission. The history of inquiries in this area of law has been that governments almost invariably recommend further coercion while independent inquiries recommend the opposite.
The deaths of five young women in Ipswich in 2006 as a result of police actions should have been a wake up call to the Government, instead we are left with yet more repressive legislation despite evidence that it is the violence of the state and stigma that causes the problems associated with sex work.
In the words of Professor Michael Bayles “the legal moralist principle is not one a reasonable person can accept. It would involve the loss of liberty for no other benefit than the satisfaction of knowing that others act as one who shares the popular morality thinks proper”.
References
Bayles M. Legislating morality. Wayne Law Review 22(3) March 1976 759-80
Brooks-Gordon B. Policing and Crime Bill 2009 and Sex Work. October 2009
Laite JA. Prostitution in London 1885-1930. Ph D Thesis, Cambridge 2008
Mariani P. Overview: Law, order, and neoliberalism. Social Justice 28(3) 2-4, 2001
Self H. Prostitution, Women and Misuse of the Law: The fallen daughters of Eve: Routledge, London 2003
Walkowitz JR. Prostitution and Victorian Society: Women, class, and the State. Cambridge 1980
Walkowitz JR. City of Dreadful Delight: Narratives of sexual danger in late-Victorian London. University of Chicago 1992
I note that the incoming Government is promising a Repeal Act covering assorted restrictive laws passed by the outgoing administration. This is cheering news.
What are the chances of getting the Strict Liability offence struck off the statue book, at the least, of having it amend so as to apply only where the client should have known that the girl was forced, coerced etc., or where he acted with demonstrable recklessness?