Leading article: Prostitution - a tricky street for the law to walk

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The Independent Online
Even if what he has to say about the legalisation of brothels was wrong-headed - and it wasn't - the chief constable of West Yorkshire is right to be speaking out. The way the police are organised in England is, administratively speaking, a mess: they are neither an integral part of elected local government nor are they a direct responsibility of the Home Office. Yet as long as we have a system in which chief constables are allowed to respond to varying circumstances of their force areas, we need them to engage with issues on the basis of their particular experience. That is why Keith Hellawell is worth listening to.

The West Yorkshire force polices the cities of Leeds and Bradford, where prostitution is a big business. Mr Hellawell's call for legalisation of group prostitution carries the weight of experience. But is his remedy right for, say, a more rural area? Would the chief constable of Devon and Cornwall agree? The chief constable of Lancashire, Pauline Clare, does agree. We need such debate informed by local experience - such as that of Edinburgh and the Lothian police who, tacitly, have instituted a regime of licensing saunas and massage parlours, knowing they are used for prostitution. Circumstances and local opinion differ. Ultimately prostitution may be something best regulated locally, a matter for by-laws rather than the law.

Yet it is an issue which, like the consumption of drugs, regularly generates more heat than light, and produces severe cases of historical amnesia among those determined to weigh present-day habits in the scales and find them wanting. It is the kind of issue journalists need only wave within harrumphing distance of the Tory backbenches in order to elicit a clear, vigorous and completely irrelevant response. Sir Ivan Lawrence, chairman of the House of Commons Home Affairs Committee - well, his name only has to be mentioned and readers can guess the rest: moral fabric ... wrack and ruin ... holding the line.

Prostitution poses problems, however, for prelapsarians, especially those who hold up Victorian society as a model of order and discipline. Historians estimate there was then a lot of it about, and not just in garrison towns. In the last century too, child prostitutes gathered in central London.

The fact of prostitution, which has existed in most urban societies, tells us little about the moral health of the nation. But it does pose local questions suitable not for moralising rhetoric but for the practical world of urban administration. There are three priorities here. One is to minimise the public nuisance that prostitution can become if it is concentrated in particular areas. Another is to minimise the elements of exploitation and criminality that inevitably accompany the selling of sex. And so, the third is to establish an enforceable legal regime.

At present a prostitute working the streets is breaking the law. However, because most police forces - rightly - do not see the sex act as inherently criminal, not a lot is done by way of enforcement. She (we make the gender specific because that is how things are in most cities) tends to gravitate towards certain sections of the city and may, with her clients, start to cause a nuisance - sex leaves a litter, kerb-crawlers are a traffic hazard and may cause offence to women who happen to live in the area. In Birmingham and Nottingham communities have felt themselves under assault.

If a prostitute works from a house or flat or other premises, the act becomes legal. But when she joins with others to work in the comparative safety of a brothel, that's illegal. Keith Hellawell says this logic is cock-eyed; he argues that prostitution is best regulated indoors, in brothels. He has both history and recent Scottish experience on his side. Closed or semi-open "houses" are an old element in urban life and if they worked in Elizabethan London and Jacobean Edinburgh, there is every reason they ought to work nowadays. What Edinburgh District Council has done is in effect to establish such semi-open houses. We need more experience of them but we can, temporarily, conclude that the law's existing ambiguity allows a reasonable local solution to an age-old problem.

Many police forces have, in practice, gone far to decriminalise prostitution. But there are limits to this kind of turning a blind eye. Not all chief constables are cool rationalists: it is not that long since Manchester was policed by the zealous moralist, James Anderton. Some degree of consistency is needed, which is why - once there is a reliable body of practical experience such as Edinburgh's - this is a matter to be turned over to the Law Commission for speedy review. There is enough evidence from opinion polls that the public takes a healthily pragmatic view of the balance of interests here and would favour Mr Hellawell's approach. Some people will dislike Mr Hellawell's assumption that the demand for female prostitutes will continue at or above present levels. It may indeed be a sad commentary on the maladjustment of gender relations in general. But it is a valid assumption all the same.

The question is not whether we "approve" of prostitution or not. It is rather whether the ambiguous and confusing legal regime surrounding that disliked activity can be rationalised without appearing to condone or promote it. The law, at least in our kind of society, is not synonymous with morality - which very phrase begs the question whether there is a single, majoritarian attitude on anything. What the law has to do is penalise conduct which harms other people in obvious ways. To go much further is to run the risk of another kind of harm, which is as historically widespread as prostitution itself - oppression by an over-mighty state.