Jacqui Smith has watered down prostitution legislation

Joan Smith: The home secretary's changes to the policing and crime bill
stops short of offering effective protection to British prostitutes

Failing governments, populated by ministers who have been making headlines for all the wrong reasons, are not in the best position to press ahead with radical legislation. So I'm not surprised that the home secretary, Jacqui Smith, has watered down a crucial clause in the policing and crime bill, which is about to receive its third and final reading in the House of Commons. In its original form, the bill would have created an offence of buying or attempting to buy sex from anyone "controlled for gain by a third party", challenging the widely held view that prostitution is always a victimless transaction.

The proposal caused outrage, but it also exposed a paradox at the heart of the argument that prostitution should be legalised. Central to the legalisation claim is the idea that most women enter prostitution voluntarily, that they make a good living from it – better than stacking shelves in Tesco's is the patronising example that's usually trotted out – and encounter violence only rarely.

This is the "fairtrade" position, championed by the English Collective of Prostitutes, and it gets almost reverential attention from some columnists and commentators. What they don't explain is this: if this benign view of prostitution in the UK is accurate, why should punters be worried about a law that would have applied only to a tiny minority of women who have been trafficked or are under the control of pimps?

If the vast majority of women who sell sex are self-employed businesswomen, who see only the men they choose, are able to insist on safe sex at all times, have no drug or alcohol problems and have never met a pimp, most men who pay for sex had nothing to fear from Smith's original proposal.

Her watered-down version has replaced "controlled for gain" with "subjected to force, deception or threats", which will make it easier to prosecute men who buy sex from trafficked foreign women but gives less protection to British women. Pimps use many different forms of control, including supplying or withholding drugs, and it's hard to see many men who pay for sex with women who have been abused, though not trafficked, being prosecuted under a new law that leaves so many grey areas.

After the pummelling she's had in recent weeks, I can see why Smith has chosen to go for a less controversial option; just about everyone agrees that women who sell sex should be protected from violence, so the government can say it's addressing a problem without ruffling too many feathers. In that sense, the legislation is a victim of the near-paralysis and timidity that descends on governments in trouble, as this one so obviously is.

But it's a lost opportunity, and one that may not come around again for quite some time if a Conservative administration replaces Labour at the next general election. Politicians on the right are inclined to listen to commentators who claim that buying sex is a human right. As Labour ministers tacitly acknowledged before they took fright, what that can amount to is insisting on a right to abuse.