Advertising of Prostitution (Prohibition) Bill [HL]

Lord Davies of Stamford Excerpts

Friday 23rd October 2015 Lords Chamber

[Lord Davies of Stamford (Lab)]

My Lords, I start by saying that I totally share the horror of the noble Lord, Lord McColl, and the whole House, at the ideas of violence, exploitation—I think that he had in mind living off immoral earnings—intimidation and, although he did not mention it, rape, having sexual intercourse without consent. These are real horrors. We have pretty strong laws against them with pretty strong penalties, but if the noble Lord can make out a case to strengthen the penalties or enforcement, I may well be with him. I do not think that he has made a case that the solution is to criminalise prostitution itself. I am quite certain that he has not made a case that the right way to criminalise prostitution is to do it on the back of this Bill, which is ostensibly about something else.

In my view, legislation should always be open, overt, frank and transparent. It should not be carried surreptitiously, casually on the back of some other Bill. It is very important that the whole House, the other place and the public have a chance to think through the long-term consequences of new legislation, particularly radical legislation of the kind that the noble Lord proposed in his introductory speech, which is criminalising prostitution itself. A lot of perverse consequences would flow from that. The noble Lord shakes his head, but we must be in a position to consider those consequences specifically in relation to the proposal that he has now made to the House to abolish prostitution, not the proposal in the paper that he has put forward, the Bill, which is simply to criminalise advertising for prostitution purposes. There is a lack of frankness in that approach of which I strongly disapprove.

My view about legalising or criminalising prostitution is, above all, based on a fundamental principle, which is that set out so lucidly by JS Mill 150 years ago, which I think is dear to the hearts of everybody who believes in freedom. That is that the state should not restrict the freedom of any citizen except to the extent required to protect the freedom of others. It flows directly from that that acts in private between consenting adults are no concern of the state or of the law. You violate that principle at your peril.

I recognise that virtuous and respectable people, in the interests of reforming society, as they see it, are always trying to encroach on that principle. The worst case was the introduction of the legislation in the 1880s criminalising homosexuality, which continued on our statute book for 80 years. In my view, we should never have violated that principle. I would be against it even if the pragmatic arguments ran in the other direction, but actually, I see several pragmatic arguments which run very much against the idea of criminalising prostitution. In the time I have, I will mention just three.

One is a definitional problem, whether it has to be dealt with by Parliament or by the judiciary in the courts. I fear that it does not sound very romantic or edifying to say so, but I suspect that quite a lot of relationships—far more than we like to think—have some element of material interest in them. It would be extremely difficult to decide whether the material or monetary interest was decisive in one particular case. The law would make an awful fool of itself if it specified that if you hire someone for sex for a night or a weekend, you are committing a criminal offence, but if the relationship, including the financial relationship, continued for months or years, you are not—in other words, that a crime, if continued long enough or repeated frequently enough, ceases to be a crime. That would be a novel jurisprudential notion.

Equally, the law would be pretty stupid if it ended up specifying that if you pay for sex with money—cash or specie—it is a criminal offence, but if you pay by means of a diamond brooch, it is not. The law would be held up to equal ridicule and there would be a considerable sense of injustice if you targeted the poor prostitute and perhaps the relatively poor client of the poor prostitute and left the wealthy man and the successful and wealthy courtesan to enjoy themselves without let or hindrance. That would be a mistake. So the definitional problems are real, and the noble Lord needs to address them, if he wants to take further his project of abolishing prostitution by law.

Then there is the issue of the strain on the criminal justice system and particularly the police. We know that the Government are cutting police numbers in drastic fashion, which I personally think is an utterly irresponsible policy that we and even they will ultimately regret. That aside, can you imagine what would happen if the police had responsibility for chasing up every act or alleged act of prostitution in this country? Here for once I do feel that I am not speaking alone. I should be very unamused if I was told by the police that they did not have time or resources to investigate the burglary of my house because they were launched on a much more exciting case, because Snooks was alleged to be having sex with Fifi and money might be changing hands. We want to think very carefully about that aspect as well.

Thirdly, there is the whole issue of the prohibition effects. We all know what prostitution is conceptually. The exchange of money for sex or sex for money is the confluence of two powerful forces in human nature: the desire for sex and the desire for money. If there are more powerful forces in human nature, I am not quite sure what they are, and if you try to dam the tide against them you may have some very perverse effects. The Americans did that with prohibition, but I fear that the two forces that I have just mentioned may be even more ubiquitous and powerful than the desire for alcohol. So you get the same effects; you create a whole new seam of rich potential profits for criminals involved in the intermediation which obviously would be necessary if you criminalised prostitution. It is quite easy to envisage all sorts of opportunities for criminal activity, racketeering and so forth, such as happened under prohibition.

If you prohibit by law something that has been going on for a long time and for which there is a structural demand and existing supply system—we are told that it is quite pervasive; I have not seen these websites myself but I have heard about them and I gather that there are an awful lot of them—you will force a raft of people overnight to change their habits or give up their livelihoods or become criminals. There are enormous social implications from doing that which have to be thought through. None of this has been thought through on this occasion.

Finally, there is one extraordinary anomaly—an ironic contradiction at the heart of the noble Lord’s Bill. He set out his intention essentially to defend women in this matter, and I have some sympathy with that: but he then brings forward a Bill that criminalises advertising. But advertising is always paid for by the supplier, not the customer, and the suppliers on these occasions are largely women. So the only people who would suffer criminal sanctions as a result of the Bill becoming law, if it ever did, would be the females involved in prostitution, and not the males. That seems to me an extraordinarily perverse outcome, and I hope that the noble Lord will think a little bit further about this Bill before taking it further.

[Lord McColl of Dulwich]

Before the noble Lord sits down, could it be by some unimaginable stretch of the imagination that he has come into the wrong debate? We are not talking about criminalising prostitution—we are talking about advertising.

[Lord Davies of Stamford]

The noble Lord’s Bill, as I have just said, talks about advertising—but, as I have also said, it seems not to be his real agenda. He made it clear in his own introductory remarks that what he intended to do was to abolish prostitution, and that this was just one of several legislative instruments that he has had in mind with that particular intention. I do not think that he can get away from the fact that his introductory speech was all about criminalising prostitution and that that was his preferred solution to the problems of violence and exploitation which he started off with.

[Lord McColl of Dulwich]

The noble Lord reminds me very much of part of the Queen’s speech—I refer to the Queen’s speech in “Hamlet”, when she says:

“The lady doth protest too much, methinks”.

[Lord Davies of Stamford]

The noble Lord has brought forward a Bill which is a bit of a false prospectus. If he had talked about advertising, we would all understand that we were simply limited to talking about advertising. In actual fact, every economic activity involves advertising, because every supplier has to have some way of communicating with his customers or potential customers. So you could say that if you ban advertising you ban the activity that is advertised, anyway. We did not get into any of that at all, and I think that—

[Baroness Butler-Sloss]

My Lords—

[Lord Davies of Stamford]

I shall give way in just one second, after I finish my sentence. The noble Lord has brought forward a bill of goods that is not exactly, when you open up the content, what you find on the label outside.

[Baroness Butler-Sloss]

Before the noble Lord sits down, perhaps I may calm this a little. I have absolutely no intention of supporting the abolition of prostitution for a number of practical reasons. It is one of the oldest businesses in the world, and it is likely to go on regardless of what Parliament might say. I am here today, when I would much rather be at home, to support a Bill which deals exclusively with advertising. I did not really hear a word in what the noble Lord said about advertising and its evils in relation to victims of trafficking and sexual exploitation. That is my line, but the noble Lord, for some reason—and I found it very difficult to understand what he was saying—seems to think that support for the Bill is support for the abolition of prostitution. They are separate subjects in today’s debate.

[Lord Davies of Stamford]

When I read the Bill, I thought that it was slightly curious because, for the reasons I have just set out, if you succeed in abolishing the right to advertise, you kill the economic activity underlying it—and therefore, surreptitiously, there might be an intention to abolish prostitution, not directly by coming to the House with an explicit Bill to do that but indirectly as a result of the Bill before us.

I have to say in all honesty that the introductory speech of the noble Lord, Lord McColl, confirmed me in my suspicion that that is his long-term agenda—but we shall all have to read Hansard and make our own judgment on the matter.

--- Later in debate ---

[Lord McColl of Dulwich]

My Lords, I thank all those who have taken part in this debate and the Minister for his kind remarks about me. However, I should like to draw attention to the amazing work that has been done by the noble and learned Baroness, Lady Butler-Sloss, the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Morrow. A big team has been at work.

It has come through clearly in this debate that advertising facilitates the exploitation in prostitution of people who are trafficked and some who are not. I shall not respond directly to the remarks made by the noble Lord, Lord Davies, because they do not relate to this Bill. However, I should like to address briefly one point that he raised. He suggested that my Bill will further criminalise women who are placing adverts. The Bill was drafted with the intention, courtesy of Clause 1, to address those who facilitate and publish the advertising, such as newspapers and website operators. I shall certainly look into the question further and if I receive legal advice that Clause 1 could be interpreted to apply to an individual placing an advert rather than only to the entity publishing it, I shall certainly look into bringing an amendment in Committee.

[Lord Davies of Stamford]

I was guided in my remarks by the phrase in the first line of the noble Lord’s substantive Bill:

“A person who publishes or causes to be published”.

It seems to me that inevitably the supplier of prostitution services would be causing to be published any advertisements that appeared on her behalf.

[Lord McColl of Dulwich]

I shall certainly take legal advice about that and see whether we can tighten things up later on.

The Minister referred to the importance of minimising the harm of prostitution and I agree that we want to do all we can to reduce the harm experienced by people in prostitution. Indeed, that is the aim of reducing demand. By addressing the proliferation of advertising and reducing the demand it fuels, we can reduce levels of prostitution and thereby reduce the harm that is caused.

We should of course be working with the police, the courts system, the NHS and social services to try to prosecute those who commit acts of violence against people in prostitution and to help people access support to exit prostitution and build a new life for themselves. However, unless we address the demand, for each person who is assisted out of crisis, another will take their place. We need to look at the bigger picture.

I find myself in a rather difficult position because there is much I would like to respond to but we are out of time. I should like to put on record that I completely reject the suggestion that the Bill is unenforceable or that it will make life more dangerous for people in prostitution. I feel very frustrated that time does not allow me to explain why.