HC Deb 13 July 1977 vol 935 cc645-59

In the third column of the Second Schedule to the Sexual Offiences Act 1956, in relation to solicitation by a man (section thirty-two), for "years" there shall be substituted "three months", and for "six months" there shall be substituted "three months."—[Mr. Abse.]

Brought up, and read the First time.

Mr. Abse

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it is proposed to take new Clause 20—Imprisonment for Soliciting—and Government Amendment No. 150.

Mr. Abse

I shall seek to put this as succinctly as I can. I owe an apology, first, to the hon. Member for Rushcliffe (Mr. Clarke) whom I accused of delaying matters. I did not appreciate that he was not his usual bumbling self but was filibustering. I shall not follow his example.

I wish to put to the House that there is a need for this clause which is to reduce the maximum penalty for importuning from the two years at present provided to three months. It will be recalled that during Standing Committee, the Government accepted an amendment to reinstate the right to trial by jury for this offence. In doing so, the Committee, while trying hard to reach a conclusion which they felt protected the liberty of the subject by insisting on trial by jury, restored, I suspect inadvertently, the previous maximum penalty of two years' imprisonment, so that the present position in the Bill is that two years is the maximum penalty but there is a right to trial by jury. The clause seeks to restore the reduced maximum of three months while retaining the right to trial by jury.

It should not be necessary for me to seek to persuade the Minister of State of the need for this to be done, for in eloquent terms the Minister of State in the House of Lords stated the case for the reduction of this penalty. Lord Harris said that in the view of the Government—I trust that it is still their view— the high penalties are not justified either when compared with the penalties for the existing offence of soliciting by female prostitutes…or in the light of present-day attitudes of society towards homosexuality".[official Report House of Lords, 14th March 1977; Vol. 380, c. 1360.) The Home Office working party on vagrancy and street offences, having gone into the matter, specifically recommended that the maximum penalty for importuning should be reduced to three months. That view was adopted by the James Committee and has since been adopted by the Government.

The Committee also gave its attention to the right of a man charged with importuning to be able to go for trial by jury. An individual might feel particularly hard-pressed by the idea that he should be so charged and might want his right of trial by jury, but it would seem quite wrong and harsh that, because the overwhelming majority of people charged with the offence are content to have the case decided in the magistrates' court, there should fall upon them the possibility of having a two-year sentence.

If the preoccupied Minister of State could spare me a few minutes, I will put to him the straightforward question which one is bound to ask. Having accepted the view of the working party on vagrancy and street offences, having accepted the recommendation of the James Committee, and having explicitly stated through the Minister of State in the House of Lords that it was desirable that the penalty should be reduced, why is it that the penalty of three months is not now in the Bill?

It should not be necessary, surely, to point out, as was pointed out years ago in the Wolfenden Report, that For the most part those convicted of importuning are in no sense male prostitutes: they are simply homosexuals seeking a partner for subsequent homosexual behaviour. In other words, the Wolfenden Committee found that male importuners, unlike most prostitutes, were not necessarily out for financial gain, and that, even in those case involving an element of prostitution, the sanction of imprisonment is surely pointless and runs counter to the statements of successive Home Secretaries that imprisonment should be reserved for those for whom imprisonment is really necessary. How can imprisonment for importuning be justified on that criterion?

I am sure that all hon. Members have at some time in their lives been solicited by a prostitute. This may be a little vexatious and be dismissed, but we are not all excessively concerned about such an incident. It has never fallen to me to be solicited or importuned by a man in this country, but if it occurred I am quite sure that it is not the sort of behaviour—even if found to be momentarily vexatious—that should attract a penalty of two years. That is a pointless sentence. To lock up in all-male prisons men convicted of homosexual soliciting is surely like punishing a male heterosexual kerb-crawler by confining him to a harem. The value of imprisonment in such cases is, to say the least, doubtful.

Surely it would be much wiser to turn our eyes away from heavy sentences of this kind and to concentrate rather on the lines recommended by the Department of Health and Social Security's working group on homeless young people, which was set up following the Yorkshire Television documentary "Johnny Go Home". Instead of two-year sentences, we need youth advisory centres, more training and advice for unskilled young people and an adjustment of priorities, within expenditure limitations, to accommodate all young people at risk. Such a constructive preventative approach would be far more beneficial than the futile and negative imposition of prison sentences. It is absurd to put such people in prison: it does not benefit them, it disturbs other prisoners and creates more work for already overburdened staff.

New Clause 20 would abolish imprisonment for soliciting. I do not share the enthusiasm for the Wolfenden Report as a progressive document. The Act based on its recommendations about street prostitution has driven women off the streets and into the hands of souteneurs, shady landlords, night club owners with criminal records, doubtful hoteliers and miserable taxi drivers and porters. The whole procedure has bean institu- tionalised, apart from a miserable remnant still on the streets. The squeamish public have had their way, the women have fallen into the hands of parasites and a whole apparatus has been erected to provide these services, especially for tourists.

Those being sent to prison are not the successful prostitutes but almost always the miserable remnant still on the streets. The survey of Holloway Prison by Professor Gibbons of the Institute of Psychiatry found that 15 per cent. of prostitutes had a history of mental breakdown, 25 per cent. of attempted suicide, 25 per cent. of alcoholism, 25 per cent. of addiction to other drugs and 25 per cent. of a variety of other physical diseases, many of which antedated their prostitution.

2.45 a.m.

Prison has no rehabilitative value for these prostitutes. The Home Office working party on the Street Offences Act said that it did not consider that prison had a rehabilitative value sufficient to warrant making it available to these people. What other argument can be advanced for this futile exercise of keeping these women in prison at a cost of£80 a week to the taxpayer? No governor of Holloway has ever thought it desirable or helpful.

The only other argument that I have heard is that the threat of imprisonment can make the offender more willing to accept probation. The Home Office working party commented that it did not think that imprisonment was necessary to motivate prostitutes to accept probation, nor did it think that any prostitute would be prepared to accept it simply to avoid imprisonment. Therefore, probation officers do not agree with that argument.

I know that there are hon. Members who, unlike me, believe in the Street Offences Act. Without going into the history of it, I should point out that it would be quite wrong to suppose that if we stopped imprisoning them there would be any question of successful prostitutes returning to the streets. Unfortunately, the successful prostitute is well integrated into the institution that has resulted from the Street Offences Act. Some say that the price is worth it in order to clear the streets. I am not arguing for or against that. I am simply pointing out that in view of their set-up there is no likelihood of successful prostitutes returning to the streets to ply their trade.

The most miserable and wretched prostitutes are on the streets, and it does not become us, at a time when our prisons are overcrowded, and our prison officers over-burdened to dump these people on them. The prison officers resent it deeply. Something should be done by supportive work outside in hostels and by social work. It is a stupid, miserable exercise to send these prostitutes to prison, and it cannot be justified.

I appeal to the Minister of State to return to what was said by the Minister of State in another place—that the imprisonment of men should be for three months only, and that women should not be imprisoned at all. We should show that we are a civilised society and that we recognise that these wretched creatures are inadequates who lack intactness. Surely there is another response.

Sir David Renton (Huntingdonshire)

I want to speak mainly about New Clause 20, but I shall comment on New Clause 19 in passing.

The hon. Member for Pontypool (Mr. Abse) obviously has given a great deal of thought to this matter, but perhaps he has overlooked the fact that the maximum sentence that the courts can award is intended to cover only the worst cases. It is not necessarily intended to be the usual or typical kind of sentence.

In the case of male importuning, I think that unfortunately we have to contemplate, the possibility that there are obnoxious and vicious adult men who will persistently importune teenage boys. As a last resort prison may be necessary to deal with such cases. I do not say that imprisonment for a period as long as two years would be necessary, and indeed the present situation would be worsened if there were many people of that sort who were put in prison for a long time, but I feel that we must keep imprisonment as a sanction. I have an open mind about the maximum length of sentence, but we should think carefully before we change our law on that score.

In regard to New Clause 20, I would point out that 22 years ago I had the somewhat unhappy responsibility of pilot- ing the Street Offences Bill through its Committee stage, and indeed I had to deal with all its stages before it went on the statute book. I thought that the hon. Member for Pontypool was somewhat inconsistent when he appeared to praise the Wolfenden Report as a great social document and then, in the next breath, condemned the Street Offences Act—an Act which to a great extent was based on the Wolfenden recommendations.

Mr. Abse

The right hon. and learned Gentleman must have misheard me. I said that that document was not as progressive a document as was popularly believed. I did not make the point that he attributed to me. I was seeking to show that there were aspects of Wolfenden as translated into the Street Offences Act that were far removed from being progressive recommendations.

Sir D. Renton

I must have misheard the hon. Gentleman. I thought I heard him say that he praised that report in most respects. However, I accept what he has now said. But I must beg to differ from him. The Street Offences Act was a successful exercise since it got the women off the streets of our cities without filling the prisons.

Based on the Wolfenden recommendations, it had a careful structure. It was intended to deal with women as individuals stage by stage as the situation required. The first stage was undoubtedly one which would commend itself to the hon. Gentleman because it consisted of mere cautioning and putting the girl or woman in touch with a welfare officer on the first occasion on which she was identified by the police as soliciting on the streets as a common prostitute. There is no doubt that in a proportion of cases the art of redemption was successfully practised at the earliest stage on the first occasion.

If that and counselling failed, the girl had to be brought before the court. On the first occasion she was given a modest fine, and the maximum fine laid down in the legislation was£10. On subsequent occasions, if the girls persisted, she could be fined£25. As far as I know those limits have not been increased as a result of inflation—although they might properly be increased, bearing in mind the enormous incomes that—according to what we read in some newspapers—these women make.

The hon. Member for Pontypool is now suggesting that the ultimate sanction of prison should be removed. The Act has stood the test of time well and the careful adjustment of stages for dealing with the problem has proved to be effective and not too harst. There is no question that many of these girls go to prison. In view of the success that the Act has had, not only in getting the girls off the street but in reducing the numbers of them entering that sort of traffic, it would be a mistake to disturb matters now.

I doubt whether this could be proved statistically but my hunch is that the permissive society, which did not exist in 1959 when the Street Offences Act was passed to the extent it does now, has caused the demand for prostitution to fall considerably. I doubt whether it is now the great social problem that it then was. With respect to tine hon. Member for Pontypool, I doubt whether prostitution is much tinged with the particular aspects that the hon. Member for Pontypool deplored—and that we should all deplore if they existed. We should leave well alone in this matter. I therefore hope that the Government will resist the new clause.

I want to make a point about Government Amendment No. 150. In a Bill that deals mainly with England and Wales we are seeking to amend a purely Scottish Act—Sexual Offences (Scotland) Act—and that is the sort of thing that we should not do. The Committee on the Preparation of Legislation made a strong recommendation that we should not tag Scottish provisions on to Bills based on English law, whether criminal law or any other. The Government are quite right to move the amendment because it pro tanto reduces the amount of interference there will be with Scottish law. However, I was surprised to find in the schedules a series of amendments to Scottish law. I hope that the Government will take note of what I have said about the undesirability of the practice.

Mr. Kilroy-Silk

I was surprised to hear the right hon. and learned Member for Huntingdonshire (Sir D. Renton) say that the permissive society has led to there being fewer professional prostitutes. I have not noticed so many enthusiastic amateurs taking their place. There may be fewer women on the streets and fewer prosecutions, but there has been a great growth in massage parlours and escort agencies, some of which, I suppose, are respectable. I have no direct knowledge, but many of them are frequently alleged to be covers for prostitution. Perhaps the hon. and learned Gentleman has been misled by the growth of the so-called permissive society into believing that prostitution as an occupation had disappeared. It has not. It has gone to other quarters.

3.0 a.m.

Sir David Renton

I make no complaint of the fact that the hon. Gentleman was not here 22 years ago, but I can assure him that, on the advice of the Home Office at that time, we knew of all sorts of undercover organisations as well as of the women on the streets.

Mr. Kilroy-Silk

Of course, there always have been such organisations and there always will be while prostitution remains illegal. There was a similar situation with prohibition in the United States.

I support the new clauses. It seems wholly inappropriate to punish with imprisonment a male homosexual or a prostitute for soliciting. Both are likely to be among the more socially inadequate and sad cases. Neither would appear susceptible to the alleged deterrent effect of prison and both would benefit more from a more welfare oriented scheme than from the harsh and, in terms of what it achieves, pointless punishment of imprisonment.

Most prostitutes in prison have some defect, whether mental, physical or social and whether involving drug dependency, alcoholism or any other factor that contributes to their general inadequacy. They are certainly not the successful prostitutes. I should have thought that the right hon. and learned Member for Huntingdonshire would take that point. We are catching the male homosexuals and female prostitutes who are not successful. The people with more discreet access to what they want, the high-class call girls and those using the massage parlours and escort agencies, are not caught except when there are occasional and well-publicised raids on such premises. It is the least successful, the least adroit and the least articulate who are caught and punished.

It is clear that prison is not a deterrent to soliciting in public. That is indicated by the fact that the prostitutes in Holloway Prison are the same women on a continual merry-go-round of in prison one week, out the next and back in prison the week after. This should raise doubts about the efficacy of the whole notion of the deterrent and rehabilitative functions that are alleged to be among the purposes of prison. Prison has no rehabilitative value for prostitutes. Even the Home Office Working Party on Vagrancy and Street Offences that, I admit, recommended the retention of imprisonment, said in its 1974 report: We do not consider that any rehabilitative value it might have is a sufficient reason for making it available. It is usually the least successful prostitutes who get sent to prison—a prostitute who becomes successfully established is less likely to have to ply her trade in the streets—and their problems are so great that it is difficult to do anything to help them in a short period in prison.…The prison service does not see itself as having a useful rehabilitative role to play. So what is the point of having imprisonment as a punishment for this offence? As it clearly does not deter, what is society doing by imprisoning people that we all regard as socially inadequate and certainly not successful?

Mr. Hooley

There seems to be a fallacy in my hon. Friend's definition. By definition, if there is any deterrent effect, those who are deterred do not get into prison at all. Therefore, my hon. Friend is missing a whole category of people who might be deterred by the existence of punishment. Because punishment exists they do not drift into the recidivist category to which my hon. Friend is referring, and which I do not dispute.

Mr. Kilroy-Silk

That applies to the whole area of crime and punishment, but it is intangible. That is one of the arguments in favour of the potential deterrent effect of a number of things. We do not know the figures for those who have been deterred from committing an offence because of the possibility of punishment. We do, however, know that those who come into the net of our statistics—and in this context we are talking about those prostitutes who are regularly sent to Holloway—are not deterred. There might be others, but we do not know. No one can produce proof of the number of people who are deterred from committing offences because of the existence of penalties. We know that those who are recidivists in this category of prostitutes and male homosexuals who solicit are not deterred.

I believe that in dealing with both male and female soliciting much more emphasis must be placed in the future than has been the case in the past on helping younger boys and girls who are at risk, where soliciting might be the result of difficulties in coping with other problems. Various voluntary organisations have pioneered informed counselling services for young people at risk. In London, important preventive work is being undertaken by voluntary organisations, such as the Soho Project which seeks to work with young people newly arrived in the city, to ensure that they do not meet the temptations and dangers that might lead them into the kind of life, and therefore the offences, that we are considering here.

What is required is a much more vigorous and speedy development of the kind of services recommended by the DHSS working party on homeless young people. That working party, which was set up following the revelations of the Yorkshire Television documentary "Johnny Go Home", recommended the development of short-term hostels and longer-term accommodation for both boys and girls entering the capital, often from broken homes, often at risk, and susceptible to all kinds of temptations and dangers.

The working party also recommended that information services should be set up, and that there should be youth advisory centres, increased employment training and advice for young people. A clear adjustment of priorities was recommended within the present limitations on public expenditure to accommodate the problems and requirements of young potential offenders.

Unfortunately, little has been done to implement the recommendations of that working party, either by the DHSS or by the Home Office. We are waiting for the information booth to be established at Euston station. This was tentatively promised by the Home Secretary to myself and many other deputations from the Campaign for the Homeless and Rootless.

If we are serious about tackling this problem, it is far more sensible, and in the end far more successful, to deal with the causes rather than, as we are now doing, very often too late, with the symptoms. If we took more preventive measures to try to eradicate the causes of the diseases that we are discussing. it would not be necessary for my hon. Friend the Member for Pontypool (Mr. Abse) and I, and others like us, constantly to call for tte ending of imprisonment for such offences. If we still had to imprison people, perhaps there would be fewer of them. Certainly we should have a far more efficient way of trying to deal with what I think we all agree are not necessarily evil individuals, although some of them may be. In the main they are sad and rejected members of society who need help rather than punishment. For that reason alone I support the new clauses.

Sir M. Havers

I shall take as little time as I can, and certainly not 15 minutes—as was taken by the hon. Member for Pontypool (Mr. Abse). I think that the issue may be dealt with much more shortly.

Why do we have sentences of imprisonment for either of these offences? The answer must be that imprisonment is considered to be a deterrent. If that be accepted, what is the evidence that there has been any abuse? I have not heard one case cited or read of one case in which unfair use of the maximum sentence has been made by a judge. As has been said, there must be an ultimate sanction for someone who persists in breaking the criminal law, especially when, as in the first instance, the corruption of teenagers is involved, or, as in the second instance, offensive conduct is involved that is repugnant to those who pass about the streets of London.

There have been occasions—I expect many hon. Members have experienced it—when a man is walking down a street with his wife or another female companion and prostitutes behave in a way that creates the greatest possible offence to both the man and his companion.

Miss Joan Lestor (Eton and Slough)

I accept what the right hon. and learned Gentleman says about offence, but why has no one mentioned the offence that can be caused to women by men who engage in kerb crawling, or inviting women to take part in prostitution? That activity takes place in many parts of London, and it seems that such men are never arrested or in trouble.

Sir M. Havers

The answer is that that activity has nothing to do with the clauses or amendment to which I was trying to devote my attention.

The behaviour that I was describing can be extremely offensive. There may be occasions when such conduct is persistent for various reasons. It may be that the person is deprived or of limited intellect, but we must have regard to those who are the victims of such conduct.

If there had been abundant evidence that the use of the maximum terms of imprisonment had been abused, I should be quick to support the hon. Gentleman, but there is no such evidence. No one has sought to advance that argument. However, there must be occasions when it is necessary for the ultimate penalty to be used, even if on rare occasions, to deal with special occasions that are offensive to everyone. For those reasons, having kept my remarks to the shortest possible time, I suggest that we resist both amendments.

Mr. Fairbairn

I shall confine my remarks to Government Amendment No. 150. A number of important issues are raised because this is essentially an English Bill dealing with English matters, yet inappropriately there are slipped into it various Scottish matters.

First, I pay tribute to my right hon. and learned Friend the Member for Huntingdonshire (Sir D. Renton), who not only brought that fact to my attention but has given us such a distinguished report on what is the proper procedure for legislation between our two systems of law.

It is abominable—I can put it no lower —that there should be slipped into an English Act that has nothing to do with the law of Scotland changes in an Act that was passed only seven months ago—namely, the Sexual Offences (Scotland) Act. I do not approve of many of its provisions. 3.15 a.m.

For the Government to have the effrontery to propose amendments to what they legislated for Scotland so short a time ago, and then, in the name not of the Lord Advocate, who has not the decency to be present and is even paired tonight, but of the English Secretary of State for the Home Department, who has nothing to do with the law of Scotland, to withdraw them without reason is a matter that the House should not disregard in view of the report of the Committee of which my right hon, and learned Friend the Member for Huntingdonshire was the distinguished chairman. That is not the way to legislate.

If Scotland has a separate Sexual Offences Act, which was passed into law so short a time ago, whatever its faults, is it not wrong that the Government, in the absence in Committee of the Lord Advocate and in the name of the English Home Secretary, who happens to be Welsh and who, whatever his many benefits, is presumed to be ignorant of the law of Scotland, should first propose and then withdraw an amendment without explanation?

Perhaps the Minister of State does not understand. Amendment No. 150 seeks to withdraw the amendment that was previously before the Committee. The Sexual Offences (Scotland) Act 1976, Chapter 67, had its penalties allegedly changed in Committee, and now, without explanation, it is to be unchanged.

Schedule 10, page 87, starts "After item 19". I do not know what item 19 is. There is no item 19 in the Sexual Offences (Scotland) Act 1976. There is no schedule with 19 items. What is item 19 meant to be? I do not understand to what it refers. It has nothing to do with the Act that it is supposedly amending. What is item 19?

I hope that the Minister understands it. I certainly do not understand it, and no one I have consulted understands it. What does "After item 19" mean? There is no item 19 in the Act that the English Home Secretary is seeking to amend and over which he has no jurisdiction in the absence of the Scottish Law Officer, who is entitled to be in the House but who has not had the courtesy to come when the law of his country relating both to jurisdiction and to sentence—the hon. Member for Pontypool (Mr. Abse) knows my feelings on these matters—is being discussed. This is a most important matter.

Therefore, we have this absurd schedule which states "After item 19", which refers to nothing. It is not in the original Act, it is not in the Bill, and it is not in the amendment. It provides: For the words from 'shall be liable' onwards substitute 'shall he liable, in respect of an offence under paragraph (a)". That refers to a male person who

  1. "(a) knowingly lives wholly or in part on the earnings of prostitution, or
  2. (b) in any public place persistently solicits or importunes for immoral purposes,
shall be liable on conviction on indictment to imprisonment for a term not exceeding two years or on summary conviction to imprisonment for a term not exceeding six months". The original Act provides that any male who knowingly lives wholly or in part on the earnings of prostitution shall be liable to that punishment, and any male who solicits persistently for immoral purposes, whether, presumably, for female or male immoral purposes, shall be subject to the same punishment. In the original Act there was a punishment which was restricted to summary procedure in the summary court. I do not know whether the Minister understands the procedure in Scotland. The summary court means the sheriff court and "on indictment" means in the High Court. The penalties depend upon the court to which the case is taken and upon the procedure which is used.

Under the amendments which are now apparently to be withdrawn, not only was the penalty altered for the second offence without reference to the first, but it is not stated what is the basis upon which it would be competent to try a case in the sheriff court or the High Court and whether under summary or solemn procedure. It is an offence to this House that a Bill which deals essentially with the law of England should suddenly float off into the law of Scotland—

Mr. Hooley

The hon. and learned Gentleman has said that 14 times.

Mr. Fairbairn

Yes, and I shall say it the 15th, 16th and 17th times—

Mr. Deputy Speaker (Mr. Bryant Godman Irvine)

Not if the hon. and learned Member has any respect for the Chair.

Mr. Fairbairn

If people care to make cynical and sedentary interruptions they must take the consequences, and perhaps the consequences will be that I shall say the same thing again and again until the Government get this matter right.

Mr. Mikardo

On a point of order, Mr. Deputy Speaker. Is it in order for an hon. Member to go on saying the same thing again and again and again?

Mr. Deputy Speaker

I gave the hon. and learned Gentleman an indication that such a course would not be approved.

Mr. Fairbairn

I am obliged to the hon. Member for Bethnal Green and Bow (Mr. Mikardo) for saying what he had to say again and again and again in order to demonstrate that repetition would not be in order.

It is, however, important that we should not have to discuss amendments of this kind in the absence of the Law Officers and when the Ministers proposing the amendments are not in charge of Scottish legal matters.

Sir David Renton

Perhaps I can assist my hon. and learned Friend by pointing out some strange drafting. Page 87 of the Bill, to which the amendment refers, contains a table, and that is part of Schedule 10. The beginning of the schedule is on page 80, and that is headed,

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