Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, it is now 3.30 pm and, as is my wont at this time of the day, I advise the Grand Committee that, if there is a Division in the House, which I am told is unlikely, the Committee will adjourn for 10 minutes.
Revenue Scotland and Tax Powers Act 2014 (Consequential Provisions and Modifications) Order 2014
(10 years ago)
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Lord Wallace of Tankerness
That the Grand Committee do consider the Revenue Scotland and Tax Powers Act 2014 (Consequential Provisions and Modifications) Order 2014.
Relevant document: 9th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, in moving that the draft order laid before the House on 13 October 2014 be considered, I intend to provide the Committee with a brief summary of what the order seeks to achieve. The order is made under Section 104 of the Scotland Act 1998, which allows for necessary or expedient changes to UK legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Revenue Scotland and Tax Powers Act 2014, which for convenience I shall refer to as the 2014 Act.
The 2014 Act establishes Revenue Scotland as the tax authority with responsibility for devolved taxes and puts in place a framework that provides for a range of administrative functions that will apply to devolved taxes. That framework includes: the powers and duties of Revenue Scotland; the rights and obligations of Scottish taxpayers; how tax disputes will be handled; details of time limits, penalties and sanctions; the treatment of taxpayer information; and, provisions relating to tax avoidance. The 2014 Act also makes provision for Revenue Scotland to delegate some or all of its powers to Registers of Scotland in relation to land and buildings transaction tax, and to the Scottish Environment Protection Agency in relation to the Scottish landfill tax.
The order will give the 2014 Act full effect. It will establish Revenue Scotland as a part of the Scottish Administration in order that it will be accountable to the Scottish Parliament but independent of the Scottish Government. In order to tackle tax avoidance successfully, the order will make provision in relation to information sharing between Her Majesty’s Revenue and Customs and Revenue Scotland. Of course, any information that Revenue Scotland receives from HMRC will be treated as confidential protected taxpayer information, as provided for by Section 15 of the 2014 Act.
The order will also add Revenue Scotland and Registers of Scotland as prescribed persons to the schedule to the Public Interest Disclosure (Prescribed Persons) Order 2014 whilst adding “Scottish landfill tax” to the specified matters in respect of the Scottish Environment Protection Agency to ensure the same protection for whistleblowers who assist those bodies, under the Employment Rights Act 1996, as that afforded to whistleblowers who contact HMRC.
Additionally, this order will insert a reference to Revenue Scotland into the House of Commons Disqualification Act 1975 to disqualify members of Revenue Scotland from being Members of the House of Commons.
Yet again a Section 104 order demonstrates this Government’s continued commitment to working with the Scottish Government to make the devolution settlement work. I commend the order to the Committee. I beg to move.
Lord McAvoy (Lab)
My Lords, I thank the noble and learned Lord for his explanation and I thank his staff for making sure that I was briefed. I was indeed fully briefed, given the number of items that came my way, but they were all welcome—that is part of transparency.
I have nothing really to add to the clear explanation that the Minister has given other than to comment that this order demonstrates yet again how the 1998 devolution Act is working at a steady pace and with a common-sense approach, with things being devolved or retained as it makes sense to do so. The order also indicates a level of co-operation from the Scottish Parliament that its Members would perhaps do well to publicise more—there is not the friction or arguments every day of the week as might be suggested by some of the SNP people there. There is sensible co-operation, as the Minister has outlined, and this order has our full support.
Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2015
(10 years ago)
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Lord Wallace of Tankerness
That the Grand Committee do consider the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2015.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I will set out the situation in relation to the common agricultural policy— for convenience, I shall refer to it as “the CAP”—which this order seeks to address. Under the European legislation that governs the CAP, a “farmer” is defined by reference to a “holding” across the United Kingdom. However, farming businesses often do not fall neatly within Administration boundaries and, therefore, there are a number of businesses with land in more than one Administration within the United Kingdom. This means that the European regulatory reference to a “farmer” is not sufficient to identify those Scottish farmers over whom the Scottish Ministers should have administrative competence. This order will define a “Scottish farmer” as having land wholly or partly in Scotland. Collectively, those businesses with land in more than one Administration are known as “cross-border farmers”.
The system of agricultural support under the CAP was last reformed in 2003-04 to provide income support for farmers. Those arrangements were set out in Council Regulations (EC) 637/2008 and 73/2009. As part of those arrangements, the administrative responsibility for cross-border farmers needed to be resolved. Accordingly, two Scotland Act orders, the Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004, a Section 30 order, and the Scotland Act 1998 (Modification of Functions) Order 2004, a Section 106 order—I shall refer to them as the 2004 orders—facilitated the transfer of powers to Scottish Ministers so that they could administer subsidy claims for Scottish farmers. These orders also tied in with the UK statutory instrument, the Common Agricultural Policy Single Payment and Support Schemes (Integrated Administration and Control System) Regulations 2009—I shall refer to them as the IACS regulations—since the EU rules require claims for subsidy to be administered by a single competent authority.
However, the current CAP arrangements come to an end on 31 December this year. The latest reforms for direct payments to farmers under support schemes within the framework of the CAP are set out in Council Regulation (EC) 1307/2013, which includes repealing Council Regulations (EC) 637/2008 and 73/2009 with effect from 1 January 2015. Therefore, two new orders, in similar terms to the current 2004 orders, are required so that the Scottish Ministers can continue to administer claims as the competent authority under the IACS regulations in respect of cross-border farmers.
This order, to be made under Section 30(3) of the Scotland Act 1998, was laid before the House on the same day as its companion instrument, the Scotland Act 1998 (Modification of Functions) Order 2014, to be made under Section 106 of the Scotland Act 1998. The Section 106 order is subject to annulment and so is not being considered with this Section 30(3) order. However, to fully understand what Section 30(3) achieves, it is important that Parliament is aware of the Section 106 order and how the orders work together.
This Section 30(3) order will ensure that certain functions should be treated as functions that are exercisable in or as regards Scotland, making it clear that the Scottish Parliament has competence to deal with cross-border farmers. Then the Section 106 order will provide that those functions relating to cross-border farmers may be exercised separately by Scottish Ministers. Ultimately, the two orders will combine, in a similar way to the 2004 orders, to allow the CAP scheme management arrangements to continue when the new arrangements take effect from 1 January 2015. Thus, the Scottish Ministers will be able to continue to administer claims as the competent authority under the IACS regulations in respect of cross-border farmers.
As the noble Lord, Lord McAvoy, pointed out when he responded to the previous order, this demonstrates the Government’s continued commitment to working with the Scottish Government to make the devolution settlement work and is a necessary solution to ensure that the Scottish Parliament has the competence to deal with cross-border farmers. It is interesting that the previous order was under Section 104 of the Scotland Act and the one that we are dealing with now is under Section 30(3) and Section 106 of the Scotland Act. The next order relates to Section 111 of the Scotland Act. There is a whole series of instruments that are designed to ensure that the devolution settlement works properly. It is a tribute to officials not only in my department and the Scotland Office but probably in this case in Defra and the Scottish Administration, because I am aware of the close co-operation that there has been to bring these orders forward. The Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee considered this order on 26 November and the other place will consider it on 17 December. I commend the order to the Committee and beg to move.
Lord Purvis of Tweed (LD)
My Lords, I am most grateful to my noble and learned friend for a clear exposition of how this order will impact on the existing powers of the Scottish Parliament and use the good mechanisms of our constitutional arrangements to further strengthen the powers of the Scottish Parliament. Noble Lords will appreciate that, when I was a Member of that Parliament for Tweeddale, Ettrick and Lauderdale, I represented a number of cross-border farmers as a Borders MSP. There were always ongoing issues with regards to cross-border status.
My query is specific to the context of the radical proposal for land reform that has been outlined in general terms by the Scottish Government, but not in specifics yet. Is the order limited specifically to CAP processing or will it in any circumstances relate to the law of succession of title of cross-border properties? Is this all now within the scope of Scottish Ministers? One has not been able to read in any great detail about the land reform proposals with regard to laws of succession on title for farming properties and land. I wonder whether this will now be wholly for the Scottish Parliament to legislate on, or will that continue to be an area where there are legal aspects for those farming families or the land, both north and south of the border, that remain within the competences of the two Parliaments?
Lord McAvoy (Lab)
My Lords, once again, I thank the noble and learned Lord for his clear exposition of what is in front of us. If farmers were facing confusion, doubt or difficulties in any transactions, it is only right that that should be addressed. There are some questions as to why this took so long if those questions had always been raised; nevertheless, this is a good move because it is only right that any extra anxiety, worries or time-consuming matters are removed from farmers and small businesses. The noble Lord, Lord Purvis of Tweed, made an interesting point. I thought that he would keep his fire for the third item of business. I thought of raising the matter myself, but it goes beyond the scope of this order. Seeing that someone has raised that issue, perhaps the noble and learned Lord will give an answer.
Lord Wallace of Tankerness
My Lords, I am grateful to my noble friend Lord Purvis of Tweed for the point that he raises, but he will note that the order indicates that the specified functions under EU law relate to European Union implementation of the common agricultural policy. Therefore, the purpose of this order is to allow payments under the common agricultural policy and the IACS system to be made by one Administration within the United Kingdom rather than having a plethora of different applications. The order bears no relevance to issues related to succession and land on either side of the border—or for that matter in such situations in Wales or Northern Ireland. When it comes to matters of succession, the law would apply in the particular jurisdiction in which the land lies. I am not saying that there would not be a lot of political issues around that, but the purpose of this order relates to the making of IACS payments. I commend the order to the Committee.
Scotland Act 1998 (River Tweed) Amendment Order 2015
(10 years ago)
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Lord Wallace of Tankerness
That the Grand Committee do consider the Scotland Act 1998 (River Tweed) Amendment Order 2015.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments.
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, I beg to move that the draft order laid before the House on 20 October 2014 now be considered. I hope that it will be useful to the Committee if I provide some background information on the fisheries management arrangements that prevail in respect of the River Tweed, as well as a brief summary of what this order primarily seeks to achieve.
Freshwater fisheries management and conservation in Scotland is largely regulated by the Salmon and Freshwater Fisheries (Scotland) Act 2003, which I shall refer to as the 2003 Act. In September last year, an amendment to the 2003 Act came into force providing a new enabling power that allows the Scottish Ministers to create a regime for the tagging of salmon caught in Scotland. The new Section 21A of the 2003 Act provides the power to require salmon that are caught, and retained, to be tagged. The purpose behind the regime is to enhance existing conservation measures for wild salmon and to ensure that fish that are caught in Scotland and find their way to market are traceable.
Although fisheries management is generally devolved to the Scottish Parliament, separate arrangements prevail in respect of the Borders rivers, as these flow through both Scotland and England. Section 111 of the Scotland Act 1998 provides:
“Her Majesty may by Order in Council make provision for or in connection with the conservation, management and exploitation of salmon, trout, eels, lampreys, smelt, shad and freshwater fish in the Border rivers”.
For the purposes of Section 111, the Borders rivers mean the Rivers Tweed and Esk.
An order made under Section 111 in respect of the Tweed—the Scotland Act 1998 (River Tweed) Order 2006, which I shall refer to as the 2006 order—is currently in force and broadly replicates much of the 2003 Act. However, existing provisions in the 2006 order do not provide the necessary powers to create a tagging regime. Accordingly, this order amends the 2006 order to introduce a new enabling power to allow provision to be made for the tagging of salmon, which replicates the regulation-making power in Section 21A of the 2003 Act for Scotland.
As a regime for tagging salmon already exists in the Lower Esk in Scotland, by virtue of by-laws made by the Environment Agency, introducing a parallel regime for the River Tweed ensures that similar regulations are in place for all of Scotland’s rivers and will ensure that, when a salmon-tagging scheme is introduced in Scotland as a whole, that scheme can be replicated for the Tweed. The tagging regime that exists in the Lower Esk also exists in England. Therefore, the introduction of a parallel regime for the River Tweed ensures no gap in regulations. Again, this is a practical demonstration of the devolution settlement working and I again place on record thanks to officials in the respective Administrations for their co-operation in bringing this order forward. The Scottish Parliament’s Rural Affairs, Climate Change and Environment Committee considered this order on 19 November and the House of Commons will consider it on 10 December. I commend the order to the Committee. I beg to move.
Lord Purvis of Tweed (LD)
My Lords, I am sure that it is not a duty, if one has the title of “Tweed”, to speak in everything related to Tweed. Indeed, I am not entirely sure whether I should declare an interest, given the title that I have adopted. I shall not delay the Committee much further. In these matters, one tends to defer to the wise men and women of the River Tweed Commission. After communications with the commission and acknowledgement that this is an enabling power for Scottish Ministers to bring forward details of how it will operate, as part of the ability to promote and recognise the produce from the finest river in the United Kingdom, I see no reason why the Committee should object to this—although other noble Lords with greater affinities for lesser rivers may perhaps have an issue.
Lord McAvoy (Lab)
The local Liberals in the west of Scotland will be interested in the denigration of the great River Clyde, which provides employment for tens of thousands of people. I would not be so vindictive as to publicise it—or not much. Again, this is a common-sense measure. There is broad agreement on it and I do not think that anyone disputes that. I am sorry to have to say again—the Minister has already said it and I have said it—that it demonstrates that devolution works with common sense and that action can be taken quietly without any razzmatazz or publicity. The people of Scotland are well served by the 1998 Act and all its ramifications, which allow for measures such as this to take place in a businesslike manner. The order has our full support.
Lord Wallace of Tankerness
My Lords, I am grateful to the noble Lord, Lord McAvoy, for expressing that support. I just say to my noble friend Lord Purvis of Tweed, who would probably have participated when the 2006 order was going through the Scottish Parliament, that perhaps he should be thankful that our noble friend Lord Stephen, of Lower Deeside, is not here, as he may have had something to say about the quality of salmon in our Scottish rivers. I commend the order to the Committee.
Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order 2014
(10 years ago)
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Lord Wallace of Tankerness
That the Grand Committee do consider the Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order 2014.
Relevant document: 10th Report from the Joint Committee on Statutory Instruments
The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)
My Lords, in moving that the draft order laid before the House on 27 October 2014 now be considered, if it pleases your Lordships I will briefly put this Section 104 order in context before setting out what it does. The order is made under Section 104 of the Scotland Act 1998—indeed, in that respect it is similar to the first order that we debated in Committee this afternoon—which allows for necessary or expedient changes to legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Marriage and Civil Partnership (Scotland) Act 2014, which I shall refer to as the 2014 Act.
The order is additionally made under Section 259(1) of the Civil Partnership Act 2004. Section 259 of that Act provides for subordinate legislation to be made in the United Kingdom Parliament containing provisions in connection with civil partnerships. The order cites this power because it adds some consequential references in legislation to civil partnerships that were missed when the Civil Partnership Act was being implemented. Picking up those missed consequential references is clearly not done as a consequence of the introduction of the 2014 Act in Scotland. That is why the separate provision—namely, Section 259(1) of the Civil Partnership Act 2004—is cited.
The 2014 Act introduces same-sex marriage and religious and belief registration of civil partnerships in Scotland. It also allows transgender people who married in Scotland to stay married and obtain a full gender recognition certificate, and it makes other changes to marriage and civil partnership law in Scotland. The order updates existing United Kingdom legislation to give the 2014 Act full effect and ensures similar treatment for Scottish same-sex couples and transgender people across Great Britain. Finally, it also allows for same-sex marriages solemnised in Scotland to be recognised as civil partnerships in Northern Ireland.
The 2014 Act is broadly equivalent to the Marriage (Same Sex Couples) Act 2013, which introduced marriage of same-sex couples in England and Wales. That Act, which I shall refer to as the 2013 Act, is being implemented in phases. The first phase consisted of a number of instruments which came into force on 13 March 2014. The final phase of implementation consists of further affirmative and negative instruments primarily concerned with conversion of civil partnerships into marriage and enabling transgender people to remain married if they and their spouse wish. These will come into force on 10 December.
This Section 104 order makes very similar consequential provision for Scotland in relation to reserved matters, such as pensions, similar to that contained in both the first and second phases of implementation of the England and Wales legislation. This is because the 2013 and 2014 Acts enact similar propositions and give rise to similar consequential provision. The order makes consequential provision for same-sex marriages generally in relation to transgender people and provides for the changing of civil partnerships into marriages overseas.
The United Kingdom and Scottish Governments have worked very closely together on the implementation of the 2013 and 2014 Acts and the various subordinate legislation so that they work together as a package. For example, the orders which will implement the second phase of the 2013 Act also make certain consequential provisions for Scotland, including amendments to certain Armed Forces pension schemes, as well as the Royal Mail pension scheme and schemes relating to particular bodies carrying out functions in the area of transport.
Having set out the context and interaction with the implementation of the 2013 Act, I turn to the order itself and will say a bit more about its content. The order amends the Equality Act 2010 as it applies in Scotland to give protection to celebrants and others who do not wish to take part in same-sex marriage ceremonies and the registration of civil partnerships in a way that is appropriate for Scotland.
The order creates a statutory gloss which provides that references to “marriage” and related expressions in the reserved law of Scotland mean both opposite-sex and same-sex marriage, unless contrary provision is made. The order also disapplies that statutory gloss in certain circumstances and makes contrary provision to it.
The order makes provision for civil partnerships registered in Scotland to be changed into marriages overseas, either through UK diplomatic posts or through the Ministry of Defence and the Armed Forces. The order also makes provision so that same-sex marriages registered in Scotland are recognised as civil partnerships in Northern Ireland.
Moreover, with respect to provision relating to transgender people, the order establishes the alternative grounds for applications to the gender recognition panel by long-term transitioned people in a protected Scottish marriage or protected Scottish civil partnership who are resident in England or Wales. It makes provision so that the spouse or civil partner of a transgender person who is resident in England and Wales but who has obtained a gender recognition certificate under the 2014 Act can apply to the High Court in England and Wales or the High Court Northern Ireland to quash the decision to grant the application on the grounds that its grant was secured by fraud. It also ensures full recognition in England and Wales and Northern Ireland of transgender people who married or entered their civil partnership in Scotland and obtain a full gender recognition certificate under the 2014 Act.
The Scottish Government intend that their first conversions of civil partnerships into marriage will take place on 16 December; it is also intended that the first same-sex marriage ceremonies in Scotland will be able to take place on 31 December 2014. The order is part of the wider legislative programme to provide for the introduction of same-sex marriage in Scotland within this calendar year. In addition to the legislation taken forward in this Parliament, 11 instruments have been laid to date in the Scottish Parliament, and I understand that a possible 10 more are planned. As part of that programme, the order makes the changes to reserved law and the cross-border provision I described.
Yet again, and particularly in this case, the United Kingdom and Scottish Governments—Ministers and officials—have worked closely together to ensure that this complex programme of work has met its challenging timetable. The order demonstrates that the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work is bearing fruit. I hope that your Lordships will agree that the practical result of this continued collaboration is to be welcomed. The other place considered the order on 25 November. I commend the order to the Committee. I beg to move.
Lord Hope of Craighead (CB)
My Lords, I am very grateful to the Minister for his explanation. It is a very welcome measure, if I may say so, and I entirely endorse the point that the noble and learned Lord made about the degree of co-operation between those responsible for legislation north of the border and those responsible for legislation in the wider context of the United Kingdom. It struck me that the drafting, particularly of schedule 1, is of considerable interest—I think that part 1 has been very carefully crafted to make it clear that it deals with reserved matters only, in appropriate language, and does not encroach on matters that are the province of the Scottish Parliament. No doubt that is an example of the degree of co-operation between the two Administrations.
I also found it helpful to see the provisions in paragraph 3 of part 2 of schedule 1, which contains a set of definitions, particularly of the expressions “husband”, “wife”, “widower” and “widow” in the context of the measure. I think that the words as defined are now in quite common use, but it is helpful to see them set out in statutory form. I would be interested to know whether that has been done equally north of the border, but to see it in this measure, at least, is encouraging to those who wondered exactly how these expressions might properly be used.
For the main part, this is an excellent example of co-operation. I was going to ask whether the Scottish Government had been kept fully informed, but I take it from what the noble and learned Lord said that there is simply no question about it: they are well aware of this measure, and if further steps need to be taken by the Scottish Parliament or the Scottish Government to match what has been done here, they will certainly be taken.
Lord McAvoy (Lab)
My Lords, I again express my gratitude to the Minister for his exposition and I do not think that the issue needs any further comments. As a firm supporter of civil partnerships at the time and now, I think that what is taking place is common sense. It is also worth mentioning that many fears and doubts were expressed at the time about religious freedom, but thanks to that common-sense co-operation this order will also protect those of a religious background who do not wish to take part in same-sex marriage and the registration of civil partnerships. I was in favour of that protection then and I am in favour of it now. The order should alleviate fears held among religious communities that there is a slippery road to enforcement, as this makes it clear that there is not. That is to the benefit of everyone who has an opinion on this, no matter whether it is for or against same-sex marriages. This order gives assurance of security and protection, and I welcome that. Again, this is sensible, and co-operation such as this gives devolution a good name. We support the measure.
Lord Wallace of Tankerness
My Lords, I am very grateful for the support for this order expressed by the noble and learned Lord, Lord Hope of Craighead, and the noble Lord, Lord McAvoy. As has been said, it is a product of a considerable amount of work.
On definitions, I can assure the noble and learned Lord that I am advised that Section 4 of the 2014 Act has a similar table of definitions.
I can reassure the noble Lord, Lord McAvoy, that, as I said in my opening remarks, one of the functions of this order is to amend the Equality Act 2010, as it applies to Scotland, to give protection to celebrants and others who do not wish to take part in same-sex marriage ceremonies. I recall that I had some responsibility for this area of the 2013 legislation when it went through your Lordships’ House, and the Scottish Parliament has been equally concerned to ensure that proper protection is given.
Again, to reassure the noble and learned Lord, Lord Hope, I am sure that the Scottish Government still has to make some implementation orders, but equally the United Kingdom Government stand ready for any further measures. One would hope that the work has been done and that a pretty comprehensive approach has been taken, but obviously if, at some later date, things emerged that were not covered—indeed, part of this order deals with things that were not covered in the implementation of the civil partnership legislation—we would stand ready to undertake the necessary legislation to address that. On that basis, I commend the order to the Committee.
Compensation (Claims Management Services) (Amendment) Regulations 2015
(10 years ago)
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Lord Faulks
That the Grand Committee do consider the Compensation (Claims Management Services) (Amendment) Regulations 2015.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the Legal Ombudsman provides a route of redress for consumers where they have complaints about the service they receive from regulated legal service providers. There is no charge to consumers for bringing complaints with costs being met by the regulated businesses that fall within its jurisdiction.
Section 161 of the Legal Services Act 2007, once commenced, will extend the remit of the Legal Ombudsman to enable it also to deal with complaints about claims management companies regulated under the Compensation Act 2006. I know that noble Lords will welcome the Legal Ombudsman being able to deal with these complaints. The claims management sector has acquired a reputation for being somewhat unscrupulous as a result of a number of companies engaging in poor business practices. The Legal Ombudsman will provide a new avenue of redress for consumers of regulated claims management companies and will assist the Claims Management Regulator in driving out poor standards and practices in the market. The Legal Ombudsman has a greater range of redress powers, including the potential for awards of compensation which are not currently available.
The fees order enables the Lord Chancellor to impose fees on regulated claims management companies to recoup the costs of complaints handling by the Legal Ombudsman. It sets out the fees payable by regulated claims management companies for this purpose. These fees will be charged on a sliding scale based on the relevant turnover of the regulated claims management company. This will enable the Government to achieve full cost recovery without putting a disproportionate burden on small and medium-sized businesses. The Government will keep the fee structure under review and will consider making changes when more information is available on complaints volumes and the types of complaints that are being considered by the Legal Ombudsman. If this order is approved, we will commence Section 161. It is intended that the ombudsman will commence this new work on 28 January next year, subject to parliamentary agreement.
The amendments to the Compensation (Claims Management Services) Regulations 2006 make the current regulations compatible with the requirements of the Legal Services Act 2007. In order to enable the handling of complaints about claims management companies by the Legal Ombudsman certain changes must be made to the powers of the Claims Management Regulator. These include the removal of the regulator’s power to award redress, the removal of the power to review how a claims management company has dealt with a consumer’s complaint and amendment of the power to issue directions to a claims management company. The amendment regulations also allow for information sharing between the regulator and the Legal Ombudsman in specified circumstances, something that is particularly important in ensuring a robust regulatory regime.
In conclusion, it is right that the Legal Ombudsman’s costs relating to regulated claims management complaints are met by the claims sector in the same way as the costs relating to legal complaints are met by that sector. This fees order will achieve this. The amendment regulations make the relevant claims management regulations compatible with the Legal Services Act and in so doing allow for claims management complaints handling by the Legal Ombudsman. I commend the order.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for introducing these two orders, which, not surprisingly, we warmly welcome. They will allow complaints against CMOs to be taken to the Legal Ombudsman and will enable LeO to raise the necessary money to fund that. My only complaint, for which I gather I cannot get redress, is that it has taken rather a long time. It was actually August 2012 when this rather excellent policy decision was taken, and it was announced by the then Parliamentary Under-Secretary at the MoJ, Jonathan Djanogly. However, as the Minister said, it will not actually come into effect until 2015.
However, the Minister might not know that I have long form on this one. The initial delay after the policy was stated was, of course, not his department’s fault, but the fault of the Treasury, which raised umpteen issues about raising a levy to enable the cost to be met for the work that LeO did. It was therefore in my name that we tabled an amendment to the Financial Services (Banking Reform) Bill in order to implement that. It was an effective intervention by his predecessor, the noble Lord, Lord McNally, together with the noble Lord, Lord Newby that managed to finally unbundle all of this. That enabled the Government to produce the correct amendment, which appeared in the names of the noble Lord, Lord Deighton, and myself. That is why I am so happy that this is finally here today. It is a shame that it has taken so long: even that amendment was in December last year, so it has taken another 12 months for it come here. Given the role of the noble Lords, Lord McNally and Lord Newby, in this, perhaps we should call it the McNally/Newby amendment. It will be important for complaints about those companies, so we wish it well and wish LeO all haste and good work in taking on these complaints.
Lord Faulks
I am grateful for the noble Baroness’s comments. As she says, she clearly has form in this area and has made a contribution to the development of the approach to this issue. In fact, the existing arrangements allow for certain remedies that could refund fees and order that the work be redone if feasible and direct that an apology be made. However, this gives a much greater power to the consumer and it seems to us—and I pay tribute, as she does, to the noble Lords, Lord McNally and Lord Newby, in assisting in this—that it should be financed by those claims management companies and that the complaints are now properly directed to the Legal Ombudsman, who should be able to deal with them in the most effective way possible. I suggest that, while this new route is obviously a little bit late, it is nevertheless the right answer.
Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014
(10 years ago)
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Lord Faulks
That the Grand Committee do consider the Legal Services Act 2007 (Claims Management Complaints) (Fees) Regulations 2014.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014
(10 years ago)
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Lord Faulks
That the Grand Committee do consider the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Amendment of Schedule 1) (Advocacy Exceptions) Order 2014.
Relevant document: 13th Report from the Joint Committee on Statutory Instruments
The Minister of State, Ministry of Justice (Lord Faulks) (Con)
My Lords, the order before the Committee today amends Schedule 1 to the LASPO Act 2012 to maintain the status quo regarding the provision of legal aid for proceedings involving gang injunctions in respect of under-18s and to reflect the expansion of advocacy in special educational needs matters. It also ensures that advocacy is available for new proceedings created by the Anti-social Behaviour, Crime and Policing Act which are in the scope of the civil legal aid scheme generally by virtue of consequential amendments made by that Act to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. This order does not alter means or merits and does not bring any new matters within the scope of legal aid.
Before setting out further details about this order and why the Government are taking this action, I will briefly explain some background. Anti-social behaviour orders on application and anti-social behaviour injunctions will be replaced with “Injunctions” under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014. Legal aid for advocacy in respect of applications for anti-social behaviour orders under the Crime and Disorder Act 1998 is provided under the criminal legal aid scheme currently, but the Anti-social Behaviour, Crime and Policing Act 2014 brings all Part 1 injunctions within scope of the civil legal aid scheme. For under-18s, Part 1 injunctions, along with parenting orders made in respect of a youth subject to such an injunction, will be heard in a youth court and the route of appeal from the youth court is to the Crown Court.
Schedule 1 to LASPO sets out the matters on which civil legal aid is available. This is subject to the exclusions at Parts 2 and 3 of the schedule which detail the availability of advocacy. Because of the general exclusion of advocacy except for specified proceedings, it is necessary to add the relevant proceedings to the exceptions in Part 3 of Schedule 1, which will expand the scope of civil legal aid to include advocacy in these proceedings.
Section 18 of the Crime and Courts Act 2013 will amend Part 4 of the Police and Crime Act in relation to gang-related injunctions which concern persons under the age of 18 being heard in the youth court and not in the county court, which is where they are heard currently. As I previously mentioned, the appeal route from the youth court will be to the Crown Court. In order to enable civil legal aid for advocacy in such proceedings to remain available, it is necessary to add them to the list of exceptions for advocacy in the magistrates’ and Crown Courts in Part 3 of Schedule 1 to LASPO to reflect the change in venue for these proceedings.
Part 1 injunctions under the Anti-social Behaviour, crime and Policing Act are intended to address the same kinds of behaviour which are currently dealt with by anti- social behaviour orders and anti-social behaviour injunctions for which legal aid, including advocacy, is currently available. It is therefore reasonable that legal aid for the new injunctions, including related parenting orders, should be made available. That intention is achieved in part by the consequential amendment made to Schedule 1 to LASPO by the Anti-social Behaviour, crime and Policing Act.
However, the amendment made by that Act was partially defective as it failed to take account of an amendment to paragraph 7 of Part 3 of Schedule 1 to LASPO, which had already been made by the Crime and Courts Act 2013 (Family Court: Consequential Provision) Order 2014. It also did not include provision for advocacy in the Crown Court, which is necessary with regard to appeals. The order therefore provides for advocacy in both the magistrates’ court and the Crown Court in relation to injunctions under Part 1 of the Anti-social Behaviour, Crime and Policing Act 2014 and related parenting orders.
The order also seeks to maintain the availability of civil legal aid for under-18s in respect of advocacy related to injunctions to prevent gang-related violence. This is necessary in order to reflect the change of venue for such injunctions made by the Crime and Courts Act from the county court to the youth court, which is, as the Committee will know, a specialist type of magistrates’ court.
I now turn to advocacy in special educational needs matters. Part 3 of the Children and Families Act 2014 came into force on 1 September. Paragraph 96 of Schedule 3 to that Act makes amendments to paragraph 2 of Part 1 of Schedule 1 to LASPO in order to allow for the funding of civil legal aid services in special educational needs matters. However, as I have previously mentioned, Parts 2 and 3 of Schedule 1 allow for advocacy only in certain circumstances and the amendments made by the Children and Families Act do not allow for the availability of legal aid for advocacy in special educational needs proceedings in the Upper Tribunal.
The Government consider it appropriate that legal aid should be available for advocacy in the new special educational needs matters under the Children and Families Act before the Upper Tribunal. Advocacy is already available for similar proceedings arising under Part 4 of the Education Act 1996 and the Government therefore consider that it should be available for these proceedings. It follows that in order for advocacy for such matters to be in scope, an order under Section 9 of LASPO is required to amend Part 3 of Schedule 1.
With that background, I turn to the reason for the order before us today. The injunction under Part 1 will replace anti-social behaviour injunctions and anti-social behaviour orders. The new injunctions under Part 1 will combine the provisions of both previous orders. The order must be made to ensure that legal aid for advocacy is available for injunctions under Part 1 and related parenting orders.
Proceedings relating to gang injunctions have been moved from the County Court to the youth court due, as I said, to the consequential amendment made by Section 18 of the 2013 Act. Although it is yet to be commenced, in the interests of providing for advocacy in the youth court for such proceedings and in the Crown Court for related appeals, we must make appropriate provision in the order. In special educational needs matters, the Government consider it appropriate that legal aid should be available for advocacy in those proceedings.
In summary, in order to achieve the policy intention that I described, it is necessary to make an order specifying that advocacy for such proceedings is in scope of the civil legal aid scheme set out in LASPO. That is achieved by the order before the Committee today. I hope that noble Lords will welcome the order. It makes relatively minor but none the less important changes to the civil legal aid scheme which complement the wider changes made by the Anti-Social Behaviour, Crime and Policing Act 2014, the Crime and Courts Act 2013 and the Children and Families Act 2014. I therefore commend this draft order to the Committee and I beg to move.
Baroness Hayter of Kentish Town (Lab)
My Lords, I thank the Minister for moving and explaining the order. It is always rather worrying when one reads in a background note that, as became apparent in the words the Minister used today, an order that had gone through Parliament was defective. It is hard to know whether that was because the original LASPO Act was so badly thought out that it trickled down to the implementing measures, or because the Ministry of Justice had cut its staff to the bone and was asking too much or simply because it was careless. However, whatever the reason, with regard to this part of the order, will the Minister tell the Committee how many cases have had to be delayed as a result of the defective order or, more worryingly, how many have gone ahead without legal aid being available? Perhaps the legal aid should be used to draft rather better SIs in future.
I hope that the order will be passed today and go through the House and be implemented fairly rapidly because, as the Minister anticipated, we welcome its content. It will ensure that certain young people, particularly those with special educational needs or disability, and people involved in parenting orders will be able to be properly represented at magistrates’ and county courts and in the Upper Tribunal, thanks to civil legal aid being available.
I am sure that the Minister will know that we remain deeply concerned about the types of cases and the number of people affected by having to represent themselves in hearings because of the absence of legal aid. Apart from that policy decision by the Government, it is regrettable that under the Government’s LASPO Act nothing qualifies for legal aid unless it is made an exception. It is a very negative way of describing something. As the evidence today shows, it is rather short-sighted because it means that even quite administrative, de minimis or, in the words of the Minister, minor changes to legal aid, such as these, require affirmative statutory instruments. That does not seem the best way of ensuring that human rights are safeguarded in all our courts. The content today is to be welcomed, but some of the procedures and effects are areas for concern.
Lord Faulks
I am grateful to the noble Baroness for her comments on this. Clearly, I do not accept all that she says about the LASPO Act, which, in the Government’s view, was a necessary correction to reflect the amount of money that was being spent on legal aid. Some difficult choices had to be made, and of course the noble Baroness will remember that on page 5 of the Labour Party manifesto there was an undertaking to make savings in legal aid.
As the noble Baroness quite rightly said, there was an error in the drafting. These things happen. I do not know precisely who is to blame, but I assure her and the Committee that policy and legal teams within the Ministry of Justice are working together closely to put in place clear procedures to monitor all planned changes to legal aid in primary and secondary legislation to prevent any future possibility of conflicting amendments.
As to the noble Baroness’s question regarding how many cases have been affected by this, I am told that the answer is none. New cases in the youth court are possible only after Section 18 of the Crime and Courts Act 2013 is commenced. Current cases are in the county court, and legal aid is directly provided for such proceedings. I understand why the noble Baroness asks that question, but I am able to reassure her on that.
Following from that comes the question of why not very many gang injunctions have been issued as yet. It is a matter for local partners to consider the best way to prevent gang violence and support young people. These gang injunctions are relatively new. We know that local partners regard them as a useful tool, and there is more information and communication to ensure that they are appropriately and properly used. They have become an important, although not oppressive, part of the equipment to deal with the scourge of anti-social behaviour.
Therefore, I hope that I can assure the noble Baroness that this is a necessary change. It will regularise the position and ensure that legal aid is maintained as appropriate. There was an unfortunate slip. Fortunately, however, it has not resulted in any injustice. In those circumstances, I ask that the matter should proceed. I suggest that this is an appropriate amendment and that the special educational needs matters are uncontroversial.
The Deputy Chairman of Committees (Lord Geddes) (Con)
My Lords, the Minister, for quite explicable reasons, is not yet here for the Question for Short Debate. With apologies to those who are to take part in the debate, I suggest that the Grand Committee stands adjourned until—your guess is as good as mine.
The Minister appeareth—no sooner said than done.
Hospitals: Voluntary Sector and Emergency Readmissions
(10 years ago)
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Baroness Scott of Needham Market
To ask Her Majesty’s Government what assessment they have made of the role of the voluntary sector in reducing emergency re-admissions to hospital.
Baroness Scott of Needham Market (LD)
My Lords, it is about a year since I first tabled this Question for Short Debate. I was inspired to do so by reports from the Royal Voluntary Service which described the impact of its Home from Hospital schemes. I regret that, having waited all this time, the Motion was in the end tabled at very short notice, which prevented many Members who would have liked to participate doing so. Given that it appeared on the Order Paper only on Wednesday and that the speakers list was closed on Friday, that comes as no surprise. I am particularly grateful to both Front Benchers and my noble friend Lady Thomas, who will speak in the gap. For the record, I give an assurance that the modest speakers list does not reflect the level of interest in this matter.
I am not one of the usual contributors to debate on health matters, so I thought long and hard before venturing into this area, but I do know about the voluntary sector, and here I declare an interest as chair of the National Volunteering Forum, and it occurred to me that I should table the Motion precisely because I do not come at this from a health expert’s perspective. We have all agreed that the time for silos is over.
It seems a long time ago now, but in 2010, the Secretary of State for Health took measures to manage emergency readmissions, which had risen, in part at least, because hospitals were reducing the length of stay. Despite this, about 19% of emergency readmissions—about 190,000—occurred in 2012-13. The evidence shows that people from lower socio-economic and vulnerable persons groups are at a higher risk of avoidable emergency readmission.
The Government and the NHS have made a good start on getting to grips with this problem by creating individualised discharge plans and ensuring that hospital-led discharge teams provide continuity of care. Of course, the better the integration of primary, secondary and social care, the better the contribution by prevention, early diagnosis and self-treatment. However, as Simon Stevens noted in the NHS Five Year Forward View,
“voluntary organisations often have an impact well beyond what statutory services alone can achieve”.
Last week’s report on patient-centred care from the Royal College of General Practitioners makes specific reference to the role played by community groups and the voluntary sector in achieving self-management of health conditions. Also last week, the NHS published Stephen Bubbs’s report into the commissioning framework for people with learning disabilities and autism, in which he, too, notes the role played by the voluntary sector in the sort of community-based support which reduces both initial admissions and readmissions. It is an area that I am beginning to know well as a fairly new patron of ACE Anglia, which provides just that kind of advocacy and support to people with learning disabilities and autism living in my area. Of course, they are all right. Voluntary organisations can help with early intervention by spotting problems early on and by helping to join up fragmented services. They often bring specialised and local knowledge and, precisely because they are not from the statutory sector, they tend to be trusted.
Provision of hospital-to-home services in a range of contexts can often give patients the time and space they need to make a recovery and avoid readmission to hospital, with all the trauma that that entails. The British Red Cross gave an example of Mrs Jones, a widow in her mid-80s suffering from dementia. Discharged from hospital but needing treatment for a urinary tract infection, staff referred her to the BRC, which arranged for a volunteer to meet her in hospital and then visit her at home to make sure that she completed her course of medication. It ensured that the social services team was aware of her needs, and that she felt supported. She not only recovered well at home but, because of the ongoing support and encouragement she received, her quality of life actually improved on a long-term basis.
AGE UK Cornwall carried out a pilot scheme where volunteers worked closely with patients to identify their needs and offer support. It acted as a key link with the NHS and social services. Under that scheme, emergency readmissions were reduced by 25%. The Midhurst Macmillan Service is a specialist palliative care service covering a 400 square mile area of rural England across three counties. By offering a host of roles from shopping and gardening to emotional support for the patient and their family and liaison with the NHS, the scheme is aimed at reducing the number of hospital admissions. Although they are not strictly emergency readmissions, nevertheless, its work is very successful: 73% of its patients died at home or in a hospice rather than having to be admitted to hospital.
In its recent report, Going Home Alone, the Royal Voluntary Service highlighted its own scheme in Leicestershire which showed that a package of support reduced emergency readmissions by half, from 15% being readmitted in 60 days to 7.5%. It was not rocket science. Contact was made with patients before they left hospital, and someone went home with them and made sure that the house was warm and lit, and that some food was available. They offered support to collect prescriptions, make follow-on medical appointments and liaise with the statutory services. Many of these actions are so simple, but make so much difference. However, like many simple things, they are not always easy.
Like most other services, voluntary organisations have had to deal with funding cuts. In many cases, when they wish to bid to provide services, they are disadvantaged against the private sector because they want to provide decent terms and conditions for their staff and are not going to go down the zero-hours contract route. In some cases, these organisations simply lack the capacity to engage in complex and expensive tendering processes.
The reorganisation of health and social care at a local level has meant that new relationships between the sector and the commissioners have had to be developed. Some health and social care providers are simply not aware of the range and extent of the work of the voluntary sector in their area and so patients miss out on the support they can offer. Then there is the vexed question of substitution. Volunteers do not want simply to replace public services which have been cut, but want to add value.
What we are now calling austerity looks likely to be the new norm. It is hard to take that on board, but we should be planning for it. Government spending should be much less reactive and give some priority to preventive spending, which involves a genuine forward look at the likely impacts of spending decisions made now on outcomes in a decade hence. Policy and funding changes which push costs off into the future are no different from borrowing, and the sooner we understand that, the better.
I am looking forward to hearing from other Members about how we can better harness the collective strengths of the statutory services and the voluntary sector. The old dividing lines have become blurred and the picture has become more complex as a result, but the need has never been greater.
Baroness Thomas of Winchester (LD)
My Lords, I am very grateful to my noble friend for raising this important question. I am just very sad that we do not have a great raft of speakers because this is such an important subject, particularly the matter of the ageing society. That is going to happen more and more. Partners will be left on their own, and they do not always plan for it; they get to old age and find that they need a major operation and there is no one left in their families to care for them afterwards. If they are not given the right care after a stay in hospital, the next thing that happens is that they will be readmitted. I was struck very much by the case of my brother-in-law, who is 88 and on his own. He needed a major operation and had to have a stoma. This is quite a complicated thing for somebody of that age to cope with. Luckily, when he came out of hospital, he could board in a care home for a week and then he went to his daughter, who was nearby. So he has had very good care and very good neighbours. I am thinking of someone who is not in that position.
My noble friend and I were both at the event recently held by the RVS in the River Room here, at which it launched its report to which my noble friend referred, Going Home Alone. It was an absolutely brilliant campaign. For anyone who wonders what the RVS is, it is the WRVS without the W, because men are now admitted. It is worth saying that because I have tested it on people and they do not know what the RVS stands for.
It is worth reiterating what the RVS says are the six essentials, because, if it aims to reduce readmissions by half, it is worth the Government and local authorities taking them on board, along with others in the care business. The RVS says that, first, the older person must be told the plan for their return home from hospital. They must be accompanied before 10 pm to a “warm, well-lit house”, and they must be able to collect their prescriptions and get their follow-up appointments. After all, that is going to be one of the most important things. They may have forgotten what they were told in hospital, with all the trauma. Then someone must be there to help them shop so that they will not be hungry. They will be used to people doing things for them. They will be used to having meals provided and if meals are not provided someone will have to help them get ready meals. Finally, the RVS says that they need a friendly face to turn to for help. That is very important. Obviously, where there are family members and good neighbours, that is fine, but an awful lot of people in our towns and cities do not have such people. I suggested to the RVS that it might want to try a pilot in some areas where they are short of volunteers by putting a leaflet through everyone’s house. I have found that many people, particularly in my road in London, are only too happy to help if they know that help is needed. This could help in many areas where there is a great deal of untapped potential.
The Government should not leave it all to the voluntary sector; the voluntary sector should look to the Government for help, too. This could be a good partnership. I am pleased that it was raised by the RVS and that it has been raised today by my noble friend Lady Scott.
Lord Bradley (Lab)
My Lords, I congratulate the noble Baroness on initiating this debate. Although she said that it was put down some time ago, it could not be more timely with the discussions around the health service being so relevant at the present time, and particularly today. So, although there are few us here, as she pointed out, it is a part of a wider debate and conversation about the development of services within the National Health Service.
I have fond memories of the WRVS as a former MP. We were regularly asked to do, and willingly undertook, voluntary work with it in our local hospitals. Often it was one of the most pleasurable days of the year, going round the wards with tea trolleys and seeing day after day the commitment to and enthusiasm for supporting the professionals within that setting and ensuring a high-quality service to patients within those hospitals.
To add briefly to the context of today’s debate, I looked at the King’s Fund report of 2013, Volunteering in Health and Care. Securing a Sustainable Future, which states:
“The health and social care system is under extreme pressure to improve the quality and efficiency of services. To meet the challenges ahead, service providers will need to think differently about how they work and who they work with … One important group in these debates is the millions of people who volunteer in health and social care, in both the voluntary sector and within public services—an estimated 3 million people across England. These people”—
as the noble Baroness said—
“add significant value to the work of paid professionals, and are a critical but often under-appreciated part of the health and social care workforce”.
The King’s Fund research indicates that,
“volunteers play an important role in improving people’s experience of care, building stronger relationships between services and communities, supporting integrated care, improving public health and reducing health inequalities. The support that volunteers provide can be of particular value to those who rely most heavily on services, such as people with multiple long-term conditions or mental health problems”.
It suggests that, to achieve the best scenario, the critical role of volunteers in building a sustainable approach to health and social care must be acknowledged, and the research recognises five key areas, which I hope we can debate at a future time.
I just want to add topically that, as the noble Baroness pointed out, today the Government are responding to NHS England’s five-year forward plan. In the paragraph on encouraging community volunteering, they acknowledge the importance of volunteers, as I have just described, and they put forward examples of how those volunteers might be utilised most effectively. I hope that the Minister will comment on that. I do not want to stray into the response or the Statement that is to follow but I hope that there will be some recognition of the vital role of volunteers in this country.
As the noble Baroness pointed out, an excellent report on the Hospital 2 Home scheme was produced by the RVS a short while ago. It gave some interesting statistics about the scale of the issue, particularly regarding the over-75s. It is estimated that there are now 5.1 million over-75s in this country, up from 4.4 million in 2010, with there being an estimated 7 million by 2035. Forty-six per cent of those over-75s live alone, and 38% of 75 year-olds now return home from hospital—up from 10% in 2004. The RVS’s report was very timely in showing that a much greater number of over-75s go home from hospital and that they need support to ensure that they are not readmitted, as this debate is about. Before they are discharged, they often feel anxious and not ready to go home. That is often because they know that they are going home alone and that they will not get the support that they require to give them confidence, or may not get the immediate services that are required to ensure that they return home in a satisfactory way and are not looking for early readmission. Early readmission can be a consequence of that anxiety. I am not suggesting that no people in this age group will have to return to hospital, but let us see whether there is a mechanism to ensure that the services that are required to wrap around them at the point of discharge are most satisfactory.
From my experience of working in the voluntary sector with people with mental health problems—particularly those who come into contact with the criminal justice system—I have found that there is very poor evaluation of the cost benefits of the work of the voluntary sector. In the RVS report, it is estimated that savings on readmission are around £40 million a year but there is no solid evidence to support that figure. It is a very good estimation of what those savings can be but the Government should look rigorously at better models for considering outcomes and for assessing the real value to society of volunteers. As I said, from my work with the mental health and criminal justice system, I know that there is a paucity of information about the support that mentoring can give, for example, to people with mental health problems who may come back into the community from the criminal justice system. That value of that to society is completely underestimated. I am not comparing it directly with readmission to hospital but there is a great value to society to be had when we are talking about readmission to the criminal justice system as a result of not having that support. I urge the Government to look very carefully at how we can assess more effectively the savings that can be made through effective mentoring and the use of volunteers.
However, we should never presume that volunteers are in some way a cheap option within the development of public services. They have to be valued as part of the team, and we have to ensure that, when services are commissioned using the voluntary sector, the sector has sufficient support and infrastructure to ensure that it can be an effective part of service delivery. I am always concerned that, as we move into the new contracting arrangements within the commissioning of services, the value of volunteers or the voluntary sector is not adequately taken into account as those contracts are developed to ensure that the high quality and local nature of those services are properly recognised and become integrated into the way in which the 3 million volunteers so willingly give their time and expertise.
I again congratulate the noble Baroness on this debate, and the debate will go forward very effectively now because, as we struggle to ensure that we support people whatever their illnesses or age group, the voluntary sector will become an even more important part of our civic life.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I begin by thanking my noble friend Lady Scott for tabling this important topic for debate and for introducing it so ably. The Government appreciate, as all speakers have acknowledged, that voluntary and community sector organisations make a substantial contribution to the delivery of high-quality local health and social care services. They have a strong track record of designing, providing and supporting services, based on their insight into people’s needs, and they are often well placed to respond in a flexible way to those needs. Their unique understanding of local communities also means that they are ideally placed to reach those vulnerable and sometimes hard-to-reach groups that statutory organisations might struggle to reach.
Moreover, social action and volunteering contribute to every sphere of health and social care and are fundamental to building strong and resilient communities. For example, the Royal Voluntary Service—mentioned by my noble friend Lady Thomas and the noble Lord, Lord Bradley—is a charity that supports older people to live well at home, in the community and in hospitals. With a network of more than 40,000 volunteers nationally, the Royal Voluntary Service uses its strong community links as a platform to deliver a range of services that improve the hospital experience for older people and their relatives, reduce hospital readmissions by linking hospital and home-based services, contribute financially to patient and community services, and provide people with practical and accessible information about local services. These types of schemes can help to avoid unnecessary emergency readmissions.
The report mentioned by a number of noble Lords makes very interesting reading. The conclusion of the report is that, in the RVS’s estimation, this support could save tens of millions of pounds in public money. That needs testing, as the noble Lord, Lord Bradley, indicated, as there are a number of important assumptions underlying the figure that it quotes. Nevertheless, it points the way to the usefulness and value of the voluntary sector in all the areas that I have mentioned. There are many other voluntary sector organisations that do similar work—for example, Age UK.
I shall now set out the range of actions that the Government are taking to improve integration of care to ensure that people can receive the care that they need and avoid emergency admissions and readmissions, including through use of the voluntary sector. The better care fund is a £3.8 billion pooled budget between health and social care, with areas choosing to pool £1.5 billion extra to bring the fund to £5.3 billion. The vast majority of this is being spent on social care and out-of-hospital community health services, which aim to keep people out of hospital and support them to leave safely as soon as they are well enough to do so.
Underlying the new approach are improvements in seven-day working across health and social care to help quicker, more appropriate discharge from hospital. One of the metrics for the fund is the number of people supported to remain at home at least three months after discharge from hospital. Plans project that, over two years, 11,860 older people will be supported to remain at home at least three months after discharge from hospital. This equates to a 33.7% increase over two years. Schemes in plans typically focus on things such as increasing capacity in reablement or intermediate care services, or multidisciplinary emergency response teams, which focus on avoiding unnecessary admissions to hospital.
We know that the voluntary sector can also play an important role in providing advocacy to people who need it. One of the drivers for the better care fund is to stop people having to undergo multiple assessments and telling their story repeatedly. Having someone to represent them and to help them navigate their way through often confusing health and care services can be invaluable. For example, in Greenwich the hospital ward support scheme trains volunteers to engage with people in hospital to support them to do practical things such as maintaining hygiene or engaging in conversation. The scheme prepares people for discharge, with volunteers on hand to support those identified as socially isolated who will be leaving hospital. Doncaster’s better care fund plan sets out a comprehensive falls prevention programme, through which Age UK Doncaster is being commissioned to help increase physical activity levels in older adults to increase strength, stamina and flexibility. That reduces the risk of falls and fractures, which are a major reason for hospital admissions and readmissions.
As well as providing services directly, we know that the third sector is represented at the strategic decision-making level in better care fund planning, with Nottingham and Southwark being just two examples of the many areas with voluntary sector representatives as members of their integrated care programme boards, as well as the health and well-being board itself.
The £2 million social action fund has delivered improved engagement with the independent, voluntary and community sectors. Eight schemes are being funded, aimed at supporting frail and elderly people. The aim is to scale up and robustly test interventions that use social action to reduce demand on hospital services, with funded projects making their impact over the course of winter 2014-15. We hope to be able to mainstream the most successful interventions down the line, and all evaluations and learning will be shared widely with the sector. The projects will help develop the potential of services that use social action to help older people stay well, manage their conditions or recover from illness or injury, thereby reducing growing pressure on hospitals. Currently, such services are small in scale and piecemeal, and often are not robustly evaluated. By March 2015, the aim for each project will be to contribute to a significant impact in the local area over the winter of 2014-15, develop a robust evidence base on its effectiveness through evaluation by the Nuffield Trust, and lay the foundations for the service to continue and grow on a long-term basis.
I am conscious that I have mentioned only a very few of the many voluntary sector organisations that are relevant to this issue, focusing primarily on the generic services provided. There is also a wide range of different, more condition-specific services provided by the voluntary sector—for example, some of the support provided by charity helplines that enable people to manage their conditions at home. There are also the very important services provided by voluntary sector hospices that support people at the end of their life within their homes, thereby avoiding unnecessary hospital admissions.
I shall highlight one particular example of where I have observed fantastic contributions made by the voluntary sector. Last month, I visited a medical practice in Hertfordshire to see how the role of developing well-being services within local NHS communities works. The Wellbeing Service was developed in order to support patients’ physical, psychological and social needs through improved health and well-being. The practice has engaged with a number of voluntary organisations to help prevent readmissions. I was particularly struck by the help that the volunteers give patients in navigating their health journeys, and I commend their tremendous work on this.
The noble Lord, Lord Bradley, asked whether there would be any spend on the voluntary sector from the additional £700 million of winter funding. Planned spend by system resilience groups identified for voluntary sector organisations is approximately £3.9 million. Approximately 110 independent and voluntary sector schemes are planned across the country, covering the expansion of capacity to provide care at home, hospital-to-home aftercare, out-of-hours cover and beds in care homes, the community and hospices. These plans include voluntary sector providers referenced in plans, such as Age UK, the British Red Cross and various hospices and smaller providers. Many schemes are focused around helping with improved hospital discharges, support for patients on return to their homes, community care provisions, and longer-term work to reduce readmissions and prevent admissions in the first place. I think we can be encouraged by that picture.
I conclude by saying that I recognise that the voluntary and community sectors make a substantial contribution to the health and care system. This has been an excellent short debate. Like my noble friend, I regret that there have not been more speakers, but the issues raised by those who have spoken have brought to light what value is available from the voluntary sector in a range of fields in health and social care. I thank my noble friend for having given us this opportunity to look at those areas. I encourage commissioners to engage with voluntary sector organisations to understand the kind of support that they can deliver to prevent emergency admissions, looking at some of the excellent examples that we have heard about this afternoon.
House of Lords
Death of a Member: Baroness James of Holland Park
The Lord Speaker (Baroness D'Souza)
My Lords, I regret to inform the House of the death of the noble Baroness, Lady James of Holland Park, on 27 November. On behalf of the House I extend our sincere condolences to the noble Baroness’s family and friends.
HIV: Stigma
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Gould of Potternewton
To ask Her Majesty’s Government what plans they have to develop a campaign to address HIV stigma along the lines of the “Time to Change” campaign on mental health stigma.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, the Department of Health funds the Terrence Higgins Trust for the HIV Prevention England programme, which helps to tackle stigma by social marketing programmes and by working closely with HIV voluntary organisations. Implementation of the department’s framework for sexual health improvement, 2013, will help reduce the stigma associated with HIV and sexual health issues. Public Health England is supporting the development of the “People Living with HIV Stigma Index” in the UK.
Baroness Gould of Potternewton (Lab)
My Lords, maybe I shall not start by asking the question that might be asked, which is: what is the Minister’s secret? I could ask that in the name of Prince Harry, who wants to know what everybody’s secret is, in order to try to encourage people to be able to say, “Yes, I am HIV positive”. But that is not the question I am going ask the Minister.
I thank the noble Earl for his reply, and yes, there are some activities going on—activities which, I have to admit, are not extremely well funded. It seems to me that the success of the Time to Change campaign, which I am delighted by, shows that anti-stigma campaigns can be, and are, very successful. Does the Minister agree that HIV is the other health condition consistently faced with stigma and discrimination? Why has there not been proper resourcing and funding so that we can have a similar anti-stigma campaign, to ensure that there is prevention and a reduction in the number of people who have HIV?
Earl Howe
My Lords, there is certainly still too much stigma, although I believe opinion has moved in the right direction generally. The campaigns in the 1980s played a key part in providing information to the general public about AIDS and later HIV, but for some years it has, I think, been widely accepted that campaigns targeting groups at increased risk of HIV are more effective. That is why, for many years, my department has funded the Terrence Higgins Trust for targeted HIV prevention. HIV Prevention England, the unit set up by the Terrence Higgins Trust, is leading that, and is delivering innovative social marketing campaigns, including some mainstream advertising, on things like condom use and testing. There is also a DH-funded national programme, which has been successfully piloted with Public Health England.
Lord Fowler (Con)
My Lords, do we not need to fight stigma and discrimination overseas as well as at home? Around the world, some 18 million people have HIV and are untested, many because of their fear of discrimination. Given that many of them are in Commonwealth countries, should we not use all our influence to persuade such countries to follow policies of equal and fair treatment for all minorities?
Earl Howe
My noble friend, with his immense knowledge of this subject, is of course absolutely right. The 2011 UN Political Declaration on HIV and AIDS specifically includes a goal to eliminate by 2015 stigma and discrimination against people living with and affected by HIV through the promotion of laws and policies which ensure that human rights and fundamental freedoms are protected. Progress towards universal access cannot be made unless stigma and discrimination are tackled. They are a particular barrier with regard to the criminalisation of gay men and women, transgender people and sex workers. DfID is a constant champion of these groups internationally.
Baroness Brinton (LD)
My Lords, Prince Harry’s brave statement today to declare his secret reminds me of mine. A dear friend died of AIDS three decades ago. I cannot speak his name because to this day his family do not know that he had it. The point made by the noble Lord, Lord Fowler, is important, but we have children and young people in this country who are suffering from HIV and AIDS. What education is planned specifically for young people who are at risk, along with their school friends?
Earl Howe
My Lords, sex and relationship education plays an important part in exposing young people to the whole subject. Guidelines are available that schools must follow. They include sections on HIV and sexually transmitted diseases generally. As I say, secondary schools must follow those guidelines.
Baroness McIntosh of Hudnall (Lab)
My Lords, building on the question from the noble Baroness, Lady Brinton, does the noble Earl agree that stigma starts very young? It builds on attitudes that are adopted by young people. The importance of PHSE programmes in schools is therefore very great. In what ways are his department and the Department for Education working together to ensure that these programmes are delivered—not just that they are recommended, but that they are delivered? Does he further agree that it would be a good thing if they were a regular and statutory part of the curriculum?
Earl Howe
I shall expand on my previous answer. Sex and relationship education is compulsory in maintained secondary schools, although not in academies. All maintained schools and academies have a statutory requirement to have due regard to the Secretary of State’s sex and relationship education guidance, which dates from 2000, when teaching sex and relationship education. The guidance makes it clear that all such education should be age-appropriate and makes the following points about HIV and sexually transmitted infections:
“information and knowledge about HIV/AIDS is vital; young people need to understand what is risky behaviour and what is not; young people need factual information about safer sex and skills to enable them to negotiate safer sex … Young people need to be aware of the risks of contracting a STI and how to prevent it”.
They also need to know about the diagnosis and treatment of HIV and STIs.
Lord Roberts of Llandudno (LD)
My Lords, is this not the direction in which we need the devolved health commitment in Scotland, Wales and Northern Ireland to go? What co-operation is there between them and the English set-up through television programmes, advertising and in other ways? Is this not one of the areas where it is essential to have effective co-operation?
Lord Hunt of Kings Heath (Lab)
My Lords, the noble Earl made it clear in answer to my noble friend that academies are not subject to the core nature of the curriculum as regards sex and relationship education. As he will know, there have recently been a number of inspections by Ofsted that have shown up defects in the approach of schools to sex and relationship education. Surely that gives rise to concern that the issue of stigma is simply not being addressed properly in some schools. Is his department willing to take this up with Ofsted?
HIV: Late Diagnosis
(10 years ago)
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Baroness Prosser
To ask Her Majesty’s Government what action they will take in 2015 to support a reduction in late HIV diagnoses in England.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, late diagnosis of HIV in the UK is declining, but 42% of people were diagnosed late in 2013. This is still too high and that is why we continue to include it in the public health outcomes framework.
Implementation of the sexual health improvement framework in England will help to reduce late diagnosis. The Department of Health funds HIV Prevention England, which continues to promote HIV testing, including leading on National HIV Testing Week and piloting the use of self-sampling tests.
Baroness Prosser (Lab)
I thank the noble Earl for that reply. Even in areas of high prevalence of infection, research has found that only 30% of patients are being tested for HIV in line with national testing guidelines—for example, when registering with a GP or being admitted via a hospital’s general medical admissions. Will the Minister have discussions with the Local Government Association—the body, as he no doubt knows, which is now responsible for public health—and agree a strategy to increase routine HIV testing in those high-prevalence areas, in line with those guidelines?
Earl Howe
My Lords, local authorities have an important part to play in the battle against HIV and AIDS. They are mandated to commission open access sexual health services, and that means that people can self-refer to the service of their choice, regardless of its location. However, as the noble Baroness will know, this is an issue that goes beyond local authorities. The key message from National HIV Testing Week, which was last week, was that we should all take responsibility for reducing HIV transmission, and that those who feel they may be at risk should take an HIV test.
The testing taking place in sexual health clinics in 2013 was up on the year before. We are seeing very good work with, for example, African faith leaders, and we have also piloted national HIV self-sampling services, which undoubtedly have a great utility for those who are too embarrassed to go to a clinic.
Baroness Manzoor (LD)
My Lords, geographically the highest rates of late diagnosis of HIV were in the Midlands and the east of England with 52%, followed by the north of England with 42%, the south of England with 41% and London with 35%. In light of the announcement that was expected later in the week but which was made at the weekend by the Chancellor of the Exchequer—that there will be an additional £2 billion for the NHS—can my noble friend say whether community testing for HIV will be part of the money being spent?
Earl Howe
It is far too early for me to say how the new money will be spent. In any case, that has to be a decision for commissioners weighing up the healthcare priorities that face them. But the new money is excellent news for the NHS, and there will be a Statement later today about that.
Baroness Masham of Ilton (CB)
My Lords, how many undiagnosed people with HIV does the Minister think there are? Would it not be beneficial to have testing of HIV, TB and hep C all together to save money and to pick up more infections?
Earl Howe
I shall have to take advice on the second question posed by the noble Baroness, which I do not know the answer to. But in answer to her first question, an estimated 107,800 people were living with HIV in the UK in 2013, of whom 24% were unaware of their infection, remain at risk of infecting others and are unable to benefit from effective treatment. That is why it is so very important that we target the at-risk communities to urge them to get tested, either in a clinic or through self-testing kits, which are now legal.
Baroness Scotland of Asthal (Lab)
My Lords, I wonder if the noble Earl can help me as to what work is being done in relation to women who are suffering from partner violence. Your Lordships will know that 12% of those involved in intimate romantic relationships have HIV through partner violence. Will the noble Earl say what the Government intend to do about that?
Earl Howe
The noble and learned Baroness is absolutely right. Those who are at risk of partner violence are of course at greater risk of contracting a sexually transmitted disease. We know this to be true particularly in countries overseas. The work to combat domestic violence, which the noble and learned Baroness is very familiar with, continues. It is vital, not just in this area of work but more generally in the field of mental health, to ensure that women at risk of violence—particularly women—have a place of refuge and a source of advice.
Lord Hunt of Kings Heath (Lab)
My Lords, I am sure that the new money would be even more welcome if it had not consisted of quite a lot of old money rebadged. The noble Earl referred to the three-year HIV prevention campaign, which promoted testing and condom use. Perhaps I might ask him about how the campaign will go forward. Are the Government going to fund such a campaign and for how long, and can he say what proportion is going to be spent in the future compared with the past?
Earl Howe
My Lords, the Terrence Higgins Trust is the vehicle through which we conduct campaigns. Terrence Higgins has a three-year contract, which ends in March next year. We have yet to finalise all our spending commitments from April 2015. We expect that the funding for Terrence Higgins will have to be pared back by some measure because of the current funding constraints, but we are in discussion with Terrence Higgins about that.
HIV and AIDS: Vaccine
(10 years ago)
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Lord Collins of Highbury
To ask Her Majesty’s Government what assessment they have made of the progress in developing a vaccine in order effectively to address global HIV/AIDS.
The Parliamentary Under-Secretary of State, Department for International Development (Baroness Northover) (LD)
My Lords, today is, of course, World AIDS Day, and we have committed nearly £1 billion to tackling HIV through our programmes. There has been some progress on HIV vaccine research recently but no major breakthrough, although there are a number of promising research avenues. Expert opinion varies and it is not possible to say when a viable vaccine will be developed.
Lord Collins of Highbury (Lab)
I thank the Minister for that response. UNAIDS highlighted that only 24% of children living with HIV currently have access to HIV treatment. Given the clear need for more investment, will the Minister support the recommendation in the report launched today by the all-party group, Access Denied, to carry out an inquiry into alternative models of research and development investment, which separate the costs of R&D from the demands of profitability?
Baroness Northover
I will be speaking at the launch of that report later this afternoon, and no doubt we will have further discussions about it. One of the striking things about this is that in terms of research and development funding for new product development in 2012—the most recent figures available—33.6% went to HIV/AIDS, 17.1% towards malaria and 15% towards TB, so it is not a neglected area. But research into the vaccine is proving exceptionally difficult and the trials have proved disappointing. It is therefore necessary to move back to basic research and drive it forward that way. Meanwhile, a lot of effort is going into research and development on treatments. As the noble Lord will know, over the past decade there have been great advances in treatment. One of the key things, as my noble friend Lord Howe just indicated, is making sure that people know their status and are treated.
Lord Avebury (LD)
My Lords, I declare an interest as co-chair of the All-Party Group for Child Health and Vaccine Preventable Diseases. We understand that an effective vaccine against HIV/AIDS is still a long way off, but could my noble friend give us a progress report on two relevant product development partnerships that are funded by DfID? They are the International AIDS Vaccine Initiative, and the TB Alliance’s development of new drugs for TB patients who are also infected by HIV.
Baroness Northover
My noble friend rightly highlights the link between HIV and TB. The IAVI has developed new approaches to HIV vaccine research by focusing on the needs of developing countries and early-stage research. The TB Alliance has four combinations of drugs in late-stage development, and will soon launch a trial of a combination of drugs that are suitable for those who are co-infected with both diseases.
Lord Walton of Detchant (CB)
My Lords, does the noble Baroness accept that the major problem in identifying and preparing a vaccine against HIV is that the very term “HIV” stands for “human immunodeficiency virus”, and the consequence is that the virus itself disables the immune system to a very considerable degree? Since the discovery of a vaccine depends on stimulating the immune system to produce a vaccine, this is an exceptionally difficult and challenging scientific problem.
The Lord Privy Seal (Baroness Stowell of Beeston) (Con)
My Lords, it is the turn of the noble Baroness, Lady Kinnock, but perhaps all noble Lords would be brief so that we can hear as many questions as possible. We will hear from the noble Baroness and then from the noble Lord, Lord Brooke. We should have time for both.
Baroness Kinnock of Holyhead
My Lords, scientific innovation and generous funding have, as we know, eradicated smallpox and are now close to eradicating polio. We live in a time when a person who tests positive for HIV is no longer facing a death sentence, so we have clearly seen real progress. Yet 35 million people still live with AIDS, and without a vaccine I do not think that we will ever see the end of this epidemic. The interesting point is that donor Governments gave less financial support in 2013 than they had previously. Will the Minister join me in condemning these cuts in R&D, which is of course fundamental and essential? Will the Minister take action against EU member states and, indeed, the US Government, which reduced their funding in 2013?
Baroness Northover
The noble Lord, Lord Walton, indicated the real challenges here. This needs basic research, and the Medical Research Council and the Wellcome Trust are best able to assess what may have better prospects. They have stepped up their contributions.
Lord Brooke of Sutton Mandeville
My Lords, I declare an interest as I was the Civil Science Minister at the time when HIV came in. The late Lord Joseph and I had been advised by both the advisory board for the Research Councils and the MRC that there was no way in which research science could keep absolutely on the frontiers of all the subjects which were available to it. When HIV came in, they had to tell us that, unfortunately, research in virology had fallen back. Could my noble friend give us some indication of how far that setback has been repaired in the past 30 years, particularly given the salience of this issue in west Africa at present?
Baroness Northover
I just mentioned the level of research and development money going into product development for HIV. I expect the noble Lord will know that Imperial College is leading in this area. I visited the human immunology laboratory at Imperial, which is taking forward vaccine research in a number of different areas. The noble Lord will also know that the number of years it has taken to develop viable vaccines in various areas—10 years for measles, 16 years for hepatitis, 25 years for cervical cancer and 47 years for polio—bears out the particular challenge referred to by the noble Lord, Lord Walton.
Humanist Marriage
Lord Harrison
To ask Her Majesty’s Government when they intend to publish their response to their consultation on humanist marriage.
Lord Ashton of Hyde (Con)
My Lords, the Government have consulted on whether the law should be changed to allow legally valid humanist and, potentially, other non-religious belief marriages. We are considering the responses we received and the implications for marriage law and practice if a change were to be made. We plan to publish the Government’s response to the review before 1 January 2015.
Lord Harrison (Lab)
My Lords, given what now appears to be the insincere government pledge to see this legislation through before the next general election, will the Minister nevertheless acknowledge that what is being asked for in terms of solemnising humanist marriage is no more and no less than what is properly accorded to our Jewish and Quaker colleagues and to other belief groups? Does the proposal for humanist marriage not also conform to the families test of ensuring that all legislation and policy developed by the Government strengthens and develops strong and stable families?
Lord Ashton of Hyde
I do not accept that we have not done everything that we said we would do. During the passage of the Marriage (Same Sex Couples) Bill in 2013, it was agreed that there would be a consultation. That has taken place. It lasted for 12 weeks and the replies have come in. We agreed that we would provide an answer by 1 January 2015.
Lord Garel-Jones (Con)
My Lords, does the Minister agree that there is now overwhelming evidence that humanist marriages fulfil the Government’s new families test and that they support strong and stable marriages? For example, legalisation of humanist marriages in Scotland has led to a net increase in the number of marriages, and a quarter of belief-based marriages in Scotland are now conducted by the Humanist Society.
Lord Ashton of Hyde
My Lords, the Government take the issue very seriously, which is why they had a consultation that lasted for 12 weeks, from June to September this year. There were 1,901 responses. When the decision has been made, which will be by the end of this year—by 1 January 2015—we will see how seriously the Government have taken it.
Baroness Whitaker (Lab)
My Lords, can the Minister confirm that the responses to the consultation indicated overwhelming support for humanist marriages?
Lord Ashton of Hyde
No, I cannot confirm that. We are evaluating the responses and an official answer will be given by the end of the year.
Baroness Barker (LD)
Have the Government analysed the rate of humanist marriage in Scotland and in European countries? Have they formed an estimate of how many people in England would be likely to wish to avail themselves of the facility of humanist marriage?
Lord Ashton of Hyde
I can tell my noble friend that in Scotland there were 3,052 humanist marriages in 2012. There are estimated to be 600 to 800 humanist marriages which are not legally valid at the moment, although 80% have civil marriages as well.
Baroness Meacher (CB)
My Lords, when all that the proposal seeks to do is extend the current practice for Jewish and Quaker marriages to humanists, does the Minister accept that this is not a major change in the law? In view of the overwhelming support in the consultation for this change, would the Minister agree that there is no reason not to go ahead before the election?
Lord Ashton of Hyde
I do not know that there was overwhelming support. The responses are being evaluated at the moment, and there will be an announcement by the end of the year.
Baroness Thornton (Lab)
My Lords, I am not sure whether the Minister was in the House at the time but there was overwhelming support in both Houses of Parliament for the amendments. In July 2013, the noble Baroness the Leader of the House, who was then the responsible Minister, gave an assurance to the House that the orders enabling humanist marriages to take place would be laid well ahead of the general election. I would like the Minister to guarantee that that timetable could be met. Will the Government also recognise, as they did with the orders enacting same-sex marriage, that giving a timetable to those who are making arrangements to get married is rather important? Will the date when a humanist wedding is possible be in May, June or July, or at some other point next year?
Lord Ashton of Hyde
I cannot give that undertaking because the decision will be made by the end of the year and we will then have to see what is decided. At the moment, I cannot tell what that decision will be.
Baroness Butler-Sloss (CB)
My Lords, it seems to me that the Government have been rather slow with this. There was considerable discussion on the same-sex marriage Bill, when I spoke in favour of the humanists having marriage. We have so changed the concept of marriage that I cannot for one moment understand why we are not just getting on with it. I very much hope that the Government will pick this up and get to the right result, which is to give humanists a marriage before the next election.
Lord Ashton of Hyde
I do not accept, I am afraid, that we have been slow. We are doing what we said we would in the Act. We said that we would give an answer by 1 January 2015; that was in the legislation. We said that we would consult; we did, and that is what we are going to do.
Baroness Hussein-Ece (LD)
My Lords, is it not the case that thousands of people now opt for humanist funerals? Is this not simply about extending that freedom of choice for people to have a humanist marriage, should they wish?
Lord Ashton of Hyde
I think that there is a difference, both in law and fact, between a funeral and a marriage.
Lord Ashton of Hyde
There is probably a joke there somewhere. We did what we said we would do in the Act. We have consulted this year and agreed that we would come up with an answer by 1 January 2015. That was in the Act and that is what we are going to do.
Child Poverty Act 2010 (Persistent Poverty Target) Regulations 2014
Lord Bourne of Aberystwyth
That the draft regulations laid before the House on 16 October be approved.
Relevant documents: 10th Report from the Joint Committee on Statutory Instruments and 11th Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 25 November.
Modern Slavery Bill
(10 years ago)
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Lord Rosser
“Victims of modern slavery: general duty
(1) In interpreting the provisions of this Act, courts must have regard to the best interests of a victim of slavery, trafficking and exploitation.
(2) In exercising their powers and duties under the provisions of this Act, public authorities and the Secretary of State must have regard to the best interests of a victim of slavery, trafficking, or exploitation.
(3) In performing the duties under subsections (1) and (2), courts, public authorities and the Secretary of State must have particular regard to the personal circumstances of the victim including but not limited to—
(a) the victim’s age,(b) the victim’s gender,(c) the victim’s ethnicity and background,(d) whether the victim has a physical or mental disability; and(e) other relevant characteristics relating to the victim’s vulnerability.”
Lord Rosser (Lab)
My Lords, the amendment that I am moving proposes a new clause, right at the beginning of the Bill, which would place a duty on the courts in interpreting the provisions of the Bill to,
“have regard to the best interests of a victim of slavery, trafficking and exploitation”.
The new clause also requires public authorities and the Secretary of State, in exercising their powers and duties under the Bill, to have regard to the best interests, likewise, of a victim of slavery, trafficking and exploitation. The amendment then goes on to state:
“In performing the duties under subsections (1) and (2), courts, public authorities and the Secretary of State must have particular regard to the personal circumstances of the victim including but not limited to … the victim’s age … the victim’s gender … the victim’s ethnicity and background … whether the victim has a physical or mental disability … and other relevant characteristics relating to the victim’s vulnerability”.
Some references to examples of a victim’s personal circumstances and relevant characteristics are already found in Clauses 1 and 45.
The purpose of the amendment is to ensure that the Bill, whatever the intentions, does not appear primarily geared to increasing prosecutions, important though that is, but that it also places the victim and the best interests of the victim at the heart of the Bill. At Second Reading, the Minister described the Bill’s purpose as being to consign the crime of modern slavery to history. He said:
“It will ensure that we can effectively prosecute perpetrators, properly punish offenders and help prevent more crimes from taking place. It will enhance protection and support for the victims of these dreadful crimes”.—[Official Report, 17/11/14; col. 238.]
However, this aspect of support and protection for victims is not addressed in the Bill, which instead contains a clause—but not until Clause 48—requiring the Government, through the Secretary of State, to,
“issue guidance to such public authorities and other persons as the Secretary of State considers appropriate”
about the support that should be available to victims of slavery or human trafficking. Guidance is not the same as a commitment in the Bill to provide a laid-down, minimum level of support, for which some have called, and neither is it the same as placing a statutory duty on the courts, public authorities and the Secretary of State to have regard to the best interests and personal circumstances of a victim of slavery, trafficking or exploitation in interpreting and exercising their powers and duties under the Bill, as provided for in the new clause set out in this amendment.
The new clause, coming at the beginning of the Bill, makes it clear that it is the victims of these awful crimes, and their best interests and personal circumstances, which are at the heart of the Bill, and not just the process, important though it is, of pursuing cases to greater effect and with greater success through the criminal justice system. The impact of these crimes on the victims can extend way beyond the conclusion of any criminal prosecution. Unless we ensure that victims are at the heart of the Bill and that having regard to their best interests and personal circumstances will be a key issue for as long as necessary, with the impacts of these crimes, both physically and emotionally, being addressed, we will not get victims to come forward and provide the evidence to pursue successfully the prosecutions that will be necessary and needed if we are to make a significant and lasting impact on the incidence of modern slavery crimes.
As my noble friend Lady Kennedy of The Shaws reminded us at Second Reading, prosecutions are difficult to bring because,
“victims are in abject terror … Their fear is not just for their own lives but those of their children … of their parents, and of other people they love”.
My noble friend went on to say of victims:
“They know the consequences of involving the authorities. They are often also fearful of authority”.—[Official Report, 17/11/14; col. 291.]
Before a case comes to trial, many witnesses are found by their traffickers or family members are prevailed on to induce them to retract their evidence. There is a need to place victims and their best interests and personal circumstances at the heart of the Bill if we are to get successful prosecutions and get at the traffickers rather more successfully than we do now. Having regard to the best interests of victims and their personal circumstances is not simply something that we ought to do, powerful though that reason is, it is crucial to the delivery of the objective of the Bill, which, in his speech at Second Reading, the Minister said was to eliminate the crimes that constitute modern slavery.
Baroness Hamwee (LD)
My Lords, a focus on the victims is absolutely right. At this stage, though, I want to make a point that was made by others at Second Reading: we must be careful to avoid detracting from the concept of survival. I am trying to keep in mind in the Bill the imperative of badging trafficked and enslaved persons as survivors, if this is at all possible, rather than as victims, which has a rather more negative connotation.
This Bill has raised quite extraordinary passions. I am finding it one of the most difficult that I have ever dealt with in my time as a Member of your Lordships’ House, in part because of the technicalities that we are having to look at, I hope your Lordships will forgive me if, in my comments on this amendment, I focus on the technicalities.
I am not really clear what this amendment would actually achieve—and that leaves me rather concerned. How are best interests to be assessed; what standard does one apply? We are all accustomed to the principle of best interests in relation to children because that is linked with the listed rights of the child in the UN Convention on the Rights of the Child; but maybe when he responds the noble Lord can explain what is engaged by the principle in the case of an adult trafficked or enslaved or exploited? For instance, would it mean an automatic referral to the national referral mechanism even if the adult does not want that? That would obviously go against the trafficked person’s right to decide for herself matters relating to her, assuming there is no lack of capacity. I am sure that it is not intended to be paternalistic, but the intention seems to be to make decisions for or on behalf of the victim in the name of best interests when she herself may disagree with what is in her best interests.
Without losing focus on the victim—or as I say, survivor—if there is a concern that particular parts of the Bill lack a victim focus, which I have to say I think is the case, that is where we should focus our changes rather than on an umbrella clause. Maybe by the end of this debate I will be clearer as to what it means, but at the moment I think that it is unclear and therefore possibly a problem.
Lord Quirk (CB)
My Lords, I would like to just draw attention to a very small point in this amendment, which on the whole I fully support. The amendment before us today is an amendment of an amendment in which proposed new subsection (1) ends, “slavery or trafficking”. In the amended amendment that we have in front of us this afternoon, proposed new subsection (2) ends with, “slavery, trafficking, or exploitation”. That is unchanged from the previous one. However, proposed new subsection (1) says, “slavery, trafficking and exploitation”. Surely that is not meant and this proposed new subsection (1) should end with the same wording as subsection (2)?
Baroness Butler-Sloss (CB)
My Lords, this is an amendment which I have only just seen since I was out of the country until the early hours of this morning. I think that it is very interesting. This is an iconic Bill which has generated the most enormous amount of interest right across the country and internationally. Everybody, including myself, is being asked to speak on this Bill and it has got to be one of which the Government can be proud. I think that the Government should be proud of having the Bill as it is, but it could be better.
The criticism from NGOs, which may or may not be justified, is that this is a Bill for prosecution and conviction and not one for the welfare of those who are the victims of trafficking and slavery. If the Government accepted this amendment, they would have in the front of the Bill a clause that would put to rest what the NGOs are complaining about.
What worries me about the Bill is the prospect of the press supporting the NGOs when this Bill becomes law and saying that this is not the iconic Bill it is intended to be but is in fact rather a small Bill that deals with rather limited issues. The fact that that is not true does not stop that perception—and, as we all know, we live in a world of perception rather than reality.
This is a very clever amendment, if I may respectfully say so to the noble Lord, Lord Rosser, and the Government should look at it with enormous care and consider having it, or something like it, at the beginning of the Bill, while taking into account all the points that the noble Baroness, Lady Hamwee, made about it. I think that she is being somewhat overworried. Speaking as a former judge, nobody in the Family Division, the county court which tries the family cases, or the magistrates in the family proceedings court have the slightest difficulty in understanding what is meant by “best interests”. I would be astonished if those judges referred to in subsection (1) of the proposed new clause would have any difficulty in understanding that. Inevitably these would be seen as vulnerable adults, and “best interests” applies as much to vulnerable adults as it does to children.
The only point I will make, to take up what the noble Lord just said about the contrasts between subsections (1) of Amendment 1A and Amendment 1, where you have “and” in one and “or” in another, is that that is untidy. However, I am also concerned, as I said at Second Reading, about the word “exploitation”. If we are to have that word, it needs to be adjusted to a reference to whichever of the subsequent clauses deals with the definition of exploitation.
On the subject of those rather technical matters, this is a very interesting idea, and I urge the Government to look at it with great care. If they put something like this in, it would lay to rest the criticisms that the NGOs and then the press will make, which will have a devastating effect on what is a very good Bill. It would be very clever to put it in.
The Lord Bishop of Derby
My Lords, I echo what the noble and learned Baroness, Lady Butler-Sloss, said, and I welcome and endorse the Minister’s commitment to making this a victim-centred Bill. The key thing for me in this proposed amendment is the phrase “personal circumstances”. One of the facts that have come home to me very clearly in my work with victims and those who work with them is that this is not just about the terrible circumstances that somebody finds themselves in because they have been trafficked or enslaved. A very high proportion of those people start off, before they are ever enslaved, as vulnerable people—they have mental health problems, or are homeless, or have low self-esteem—who very easily get drawn into being dominated, trafficked and exploited. What is challenging, and what we should take seriously in the proposed new clause, is for the Bill to draw attention to the personal circumstances of each victim or survivor. In almost any case these people will be vulnerable and will need to be treated as we treat others, with our development of a safeguarding framework and proper procedures to care for those who need safeguarding.
Baroness Lawrence of Clarendon (Lab)
My Lords, I add my voice in support of Amendment 1A, which proposes a new Clause 1. All of us in your Lordships’ House and in the other place speak with one voice when we say that the intent of the Bill is good. We are as one in our agreement that the overarching ideal is to eradicate the festering sore of modern slavery from our society.
The reason we are gathered together on this is the outrage that burns within each of us that children can be spirited across borders against their will; that girls, boys, women and men are forced into sexual servitude; that some in our country have to work back-breaking hours for little or no pay, with the promise of only a beating if they try to escape; and that in this day and age, when so much progress has been secured, so many still live lives under the violent control of others, exploited for their labour and robbed of any free will or hope. However, it is not for our outrage that the Bill should exist. The current Bill suggests that our primary objective is to punish the perpetrators. While I understand that our first outraged impulse may be to punish the perpetrators in anger for their inhumanity, we must remember that we are acting for the humanity of the victims—for the thousands in this country and millions around the world who are locked away, isolated and invisible.
At Second Reading, I explained my view that all the people we represent in this country—whether they are born here or not—are our children. This perspective should set our standard for how victims should be treated: with compassion for their suffering and the will to give them a chance of a better future. It means, first, ensuring that victims are recognised and treated by public organisations, including the police, as victims, not criminals. This should be done not only out of compassion but from necessity, because without victims’ co-operation we will never secure the convictions we need to end modern slavery. It means putting their interests first in the process of tackling the perpetrators. As I mentioned earlier, Anthony Steen, the Government’s former special envoy on human trafficking, has made it clear that only a Bill with victims’ interests at its heart will be effective in enforcement. It means the Government considering the potential impact of their broader legislation, rather than instigating measures such as the 2012 visa changes for overseas domestic workers, which dramatically increased the risk of domestic slavery. It means the Government doing more, through the proposed anti-slavery commissioner and in partnership with other organisations, to help victims recover and build new lives of dignity and opportunity.
Saying this is not to suggest that we should not punish perpetrators: of course we must. It is to say that the overriding purpose of the Bill is to free those of our children who are enslaved and to work to ensure that there will be no more. The Bill is about them. That is why I support this amendment to create a new Clause 1. To repeat my words of two weeks ago, we must send a clear message to the boys, girls, men and women who are currently enslaved, living lives where hope becomes more distant and the future more bleak. We will not let you live lives without dignity, without rights, without a future worth living. You are our children, too. This amendment is one part of that message and it should have the support of this House.
Lord Mackay of Clashfern (Con)
My Lords, I underscore what the noble Baroness, Lady Lawrence, has just said about the reason for the Bill. However, one has to remember that the idea of introducing laws to enable prosecutions to take place is not primarily for the purpose of having prosecutions: it is for the purpose of preventing conduct that is subject to prosecution. In so far as it is successful, it will do that. The number of prosecutions that happen under an Act is not necessarily the best test of whether the Act has been successful. If the conduct which is penalised under the Act stops, that is the best kind of success you can have, and with no prosecutions at all you are even better off.
I entirely accept the view that the Bill should clearly be dealing with the complete amelioration of the tragic circumstances of those who are subject to slavery, trafficking or exploitation. However, I wonder a little about the way in which the proposed new clause is constructed. First, I entirely agree with the noble and learned Baroness, Lady Butler-Sloss, that judges of a Family Division know exactly what is meant by the “best interests” of the child in relation to disputes between parents about the child’s future. However, this is a more difficult issue. I shall make another point about that in a minute. To what extent does the court have power to determine the future circumstances of a victim of slavery, for example? That is a very important aspect of securing the best interests of the victim. I think we all would like to see the best interests of the victim secured but how you go about that, and which powers the court needs to secure that, is something we need to hear a little more about.
Secondly, I find it hard to distinguish between the circumstances in proposed new subsection (1) and those in proposed new subsection (2). I think that the court is a public authority. However, the power is based on interpretation by the court. The court has to interpret the provisions in such a way as to secure the best interests of the victim, whereas in proposed new subsection (2), it is a question of the public authorities and the Secretary of State, in exercising the powers given by the Bill and, ultimately, the Act, having the power to secure the best interests of the victim. I find it hard to know why that should be different and why proposed new subsections (1) and (2) should not have exactly the same framework. I do not object at all to the court being specially mentioned as one of the public authorities, but the powers conferred by proposed new subsection (2) would be better from the point of view of achieving the result in question.
There seems to be a somewhat unnecessary elaboration in proposed new subsection (3). It starts saying what the personal circumstances are but then gives up and refers to anything else that is relevant. Starting to make a definition that you cannot effectively complete strikes me as possibly unnecessary. If a new clause of this kind were to be incorporated, possibly with some elaboration, it may be wise to leave it at the personal circumstances of the victim.
Baroness Howarth of Breckland (CB)
My Lords, whatever the technicalities involved in placing a clause at the beginning of a Bill, I urge the Government to consider putting victims very much at the heart of this legislation. Unlike the noble and learned Lord, Lord Mackay of Clashfern, I was not in the House when the Children Act 1989 went through Parliament. However, I implemented the provisions of that legislation. Children were very much at the heart of that legislation and, because of that, work focused on children moved forward substantially. A similar situation has occurred with care issues. However, we know that despite that we have still not fully implemented the children’s legislation and much care legislation still waits to be addressed—never mind acted on—on the ground. Given the pressure on resources and the problems of implementation, which are myriad, I fear that unless victims are mentioned at the beginning of the Bill there will be no forward movement on this issue. The Minister may say that the Government have a plan to do that and many other things. However, placing victims firmly at the forefront of the legislation ensures that people’s minds are concentrated on them, particularly in local authorities, the police and other services. For that reason, I encourage the Minister to consider the amendment or, if not this one, something like it.
May I make one more point in response to something that the noble Baroness, Lady Hamwee, said? It is complicated with adults, many of whom, particularly those in the 19 to 20 age range who were taken into prostitution as young girls and some of whom have been seen as runaways for years—we are only just recognising what the runaway issue is—may say that they definitely do not want any intervention. But is it in their best interests? We all know that they will have been indoctrinated, groomed and terrified and we often have much more work to do to intervene with them. So it is not easy, but we need them right at the centre of this legislation.
Lord Harries of Pentregarth (CB)
My Lords, for the reasons that have already been stated, and another one, I think that the amendment would set the right tone at the beginning of the legislation. The noble Baroness, Lady Hamwee, thought that it might be more important to look in more detail at specific clauses to make sure that the victim—or the survivor, as she helpfully puts it—is to the fore, but I do not think that these two approaches are mutually exclusive. If we put this at the front, it will get the tone right.
The noble Baroness quite rightly posed the question of what difference this would make. It seems to me that it might make a difference in the way the police go about prosecuting. I take it for granted that they would already be sensitive to the victim and take into account their protection, safety, physical well-being and mental state. However, one can imagine a situation where people get so focused on prosecuting that all that gets slightly pushed to one side. Having something like this setting the right tone at the beginning and running through the Bill would ensure that that is counteracted.
I hesitate to trespass on or even say anything in relation to the ground covered by the noble and learned Lord, Lord Mackay, but would not the courts have to make decisions about which witnesses are called and how they are called? Is it not important, as they do that, that they should always bear in mind what is going to be in the best interests of the victim and not just focus on simply achieving a prosecution? For those reasons, and the other ones stated, I support this amendment.
Lord Tebbit (Con)
My Lords, not being a lawyer, I sometimes become confused by lawyers’ talk, although mercifully I am often saved from that by the words of the noble and learned Baroness, Lady Butler-Sloss, and my noble and learned friend Lord Mackay. That is why I sit here and listen. What worries me about this legislation in general, and what worries me even more about this amendment today, is that I have concerns about seeking to put into the same Act of Parliament the provisions to prosecute those who commit an act and the provisions to assist those who may be victims of such an act. I worry about the possible confusion here between the individual or individuals who are named in a particular prosecution against a particular individual or individuals and the interests of persons who are not among that group. Does the court have to take into account not just what has happened to persons A, B and C who are listed in the action against those who are being prosecuted but the possible effects on other individuals who are not so listed? They may conflict. There is not much provision here, it seems to me, for the court to resolve those conflicts.
Let me put it this way. It might be that in prosecuting one group of persons who have taken actions that are harmful to a particular group, another group may not merely be left out but could even be adversely affected. How does the court take that into account? What are we saying about these things? In most legislation it seems pretty clear, but it is only speaking about the acts of those who are arraigned before the court and their effect on the victims who are named. Is that the case with this legislation? It seems to be a bit fudgy, and this amendment would make it even fudgier.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Lord, Lord Rosser, for proposing the amendment and to all other noble Lords who have contributed to an interesting opening debate in this first day in Committee. I guess that we will return to many of these themes as we move through this, but this is also an opportunity to put our views on record. Those views are set out in the Modern Slavery Strategy that was published by my right honourable friend the Home Secretary on Saturday, in which she made it clear, in her opening remarks on page 5, that victims would be at the heart of all we do.
In many ways the debate highlights two different views. One says that we help the victims directly by looking after their welfare. We agree with that. The other view was set out eloquently by my noble and learned friend Lord Mackay when he said that you also aid the welfare of the victims by ensuring that there are fewer perpetrators. That point was also made by the noble Baroness, Lady Lawrence. We accept that, and all the way through this we will return, probably amendment by amendment, to this careful balance that exists between these two approaches.
Before turning to the specifics, I would make one point to the noble Lord, Lord Rosser, who probably did not mean it that firmly when he said that we were making up policy on the hoof. Sometimes when the Government listen and respond they are accused of making up legislation on the hoof, but when they do not listen they are accused of being intransigent and not responding. I am proud to be associated with this legislation because not only is it ground-breaking and leading the world in this type of legislation but it is being put through in an appropriate way after consultation with Members. It went through pre-legislative scrutiny, and I pay tribute to the work of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl in making refinements. It is worth putting on the record what has actually changed for victims as a result of that process.
The Bill itself changed quite dramatically before it was published. When it went through the House of Commons, we added specific changes on children and an enabling power for the Secretary of State to set up child trafficking advocates. There is a change in the slavery offence so that the court may have regard to the alleged victim’s personal circumstances, including age. A number of provisions in this amendment relate to Clause 1(4), which says that,
“regard may be had to any of the person’s personal circumstances”.
The right reverend Prelate the Bishop of Derby, who has immense experience and awareness in this area, talked about personal circumstances. Clause 1(4) mentions,
“age, family relationships, and any mental or physical illness”.
However, it is not limited to those, as it also refers to those,
“which may make the person more vulnerable than other persons”.
In other words, there is a catch-all element to Clause 1(4), in that regard may be had to a much wider group of circumstances. That is one change that was brought forward.
This has all been as a result of the parliamentary process. We have also introduced a statutory defence for victims who have been forced into criminality. Reparation orders have been introduced, to ensure that victims are properly compensated, and the Secretary of State is required to issue guidance to front-line professionals on identifying and supporting victims. Changes have been made to broaden the Independent Anti-slavery Commissioner’s remit specifically to include the identification of victims. Changes have been made all the way through, and there will be more changes. I shall not anticipate the details before your Lordships’ House reaches that point, but we have tabled government amendments, which will be debated in the next group, that seek to strengthen that element further.
In addition the strategy, as part of our response for victims, focuses on four elements: pursue, prevent, protect and prepare. The protect element is very important and has victims very much at its heart. We are also currently considering the review of the national referral mechanism for victims of human trafficking, which was published a few weeks ago. We are working our way through it, but one of the things that the review is considering is where victims’ interests lie and how we can strengthen their position.
I am struck by a few statistics that lie at the heart of this matter. The Modern Slavery Strategy sets out that in 2013 there were 226 convictions. However, the scale of the problem is much greater than that. Professor Bernard Silverman, the chief scientific adviser at the Home Office, estimates that the number of victims is more like 10,000 to 13,000. The scale is very wide, yet the number of prosecutions is very low in comparison. Through the anti-slavery commissioner, and all that we do, we are focusing on the victims, including by ensuring that the evil perpetrators of this crime are brought to justice and that the sentences available to the courts are increased from 14 years to life imprisonment. That is all directed towards that end.
The noble Lord, Lord Rosser, will respond to the precise technical questions about his amendment that have been so ably asked by my noble friend Lady Hamwee and the noble Lord, Lord Quirk, and others. Although we remain open, as we always have been, to ways in which we can strengthen protection for victims, I would not want to let this moment pass without pointing out that it would be wrong to think that without this amendment there would not be, running right through the core of the legislation, a belief that victims deserve the absolute protection of the Government.
Lord Rosser
I thank the Minister for his response. Having heard what he said, I am not quite sure what the difference between us is. The thrust of his answer appeared to be that the Government believe that giving support and protection to victims, and taking account of their best interests and their personal circumstances, are already covered in the Bill, in different clauses. Clearly, that view was not shared in the debate at Second Reading, because a number of noble Lords expressed their concern that the Bill appears to be geared too much towards the important issue, which no one denies, of trying to bring more of the perpetrators to justice and does not reflect the issue of providing support and protection for victims.
I repeat the point I made in moving the amendment: if we do not take steps to provide some support and protection for victims and recognise that we have to take account of their best interests and personal circumstances, we will find that they will not come forward to give the evidence that is needed in order to secure successful prosecutions. Once again, a number of noble Lords made that point at Second Reading. I do not see these as two separate issues: one of prosecuting the perpetrators and the other of giving support to victims to make sure that they feel able, willing and encouraged to give the evidence necessary to bring the perpetrators to justice. We have all spoken about the lack of prosecutions and some of the reasons why that has happened.
The purpose of the amendment is an attempt to address some of the concerns that were expressed at Second Reading, and I take very much on board what the noble and right reverend Lord, Lord Harries of Pentregarth, said about it setting the tone. I think that this amendment does seek to set the tone that if we are to have a successful Modern Slavery Bill which delivers on the objective of bringing perpetrators to justice, to which the Minister referred, we need to take a long, hard look at what we are doing for victims to encourage them to come forward and give evidence.
A number of comments have been made about the wording of the amendment. I do not wish to maintain that it is perfect; I am not a lawyer, and I am sure that it could be improved. But what I am not clear about is whether, from the Government’s point of view, the issue is that they do not like the wording of the amendment or that they do not like its basic objective, which is to raise the profile in the Bill of the importance of the approach to the victim. Once again, that is a point which was made by a number of speakers at Second Reading.
Frankly, in that sense I am disappointed with the Minister’s reply. If we could reach agreement that a clause along the lines set out in the amendment is needed and desirable, I for one would certainly not argue that it should be worded exactly as I have it here. I recognise from the comments which have been made that the proposed new clause could be improved or changed. If there was some general accord that we want an amendment along the lines of the objective of raising the profile of the victim for the reasons I have mentioned, then for me the wording is certainly not an important issue.
I accept, for example, the point made by the noble Lord, Lord Quirk. It is a valid one, not least because I cannot explain why the word “and” is used in one case and “or” in another. As I say, I am not concerned about defending to the death the actual wording of the proposed new clause. What I would like to see is some understanding that, with the assistance of the Government and of many noble Lords who have spoken, a clause could be produced that would receive wide support for both its wording and its objectives.
I am going to ask leave to withdraw the amendment, but perhaps I may say in conclusion that I think the Minister rather misunderstood what I was saying when I referred to things being made up on the hoof. I was referring to the comments made by the Victims’ Commissioner for England and Wales during the course of her contribution. She said that it was almost as though the physical, emotional and practical impact on those affected by the terrible crime of modern slavery has been forgotten in the drive to bring the perpetrators to justice.
The Minister’s response was quite rightly to compliment the noble Baroness, Lady Newlove, on the work she does as Victims’ Commissioner, but he then said that the newly appointed commissioner should address it and make recommendations. I may be wrong, but I did not get the impression that the Victims’ Commissioner was aware that she was going to be involved in addressing that and making recommendations. She made no reference to it in her contribution.
It was the part about the Victims’ Commissioner making recommendations which I felt was being made up on the hoof. It was not an adverse comment about the content of the Bill; I know that it certainly was not made up on the hoof. An awful lot of thought and care has been given to it, but there are areas—and I do not think I am the only one of this view—where it could be improved, one of which is the subject of this amendment. I am disappointed that the Minister has not felt able to make any move, not even to hold further discussions to see if a wording could be found that the Government would feel able to accept—but I note his reply and can only beg leave to withdraw the amendment.
Lord Mackay of Clashfern
I would very much like to see a good clause that envisaged the sort of considerations that the noble Lord, Lord Rosser, has mentioned. However, there are quite fundamental difficulties, notably what the noble and right reverend Lord, Lord Harries, said about the best interests of the victim, for example, on the question of which witnesses are brought or, indeed, on whether a prosecution is brought at all. I am not sure how far these two should be interrelated. This is a difficult issue and merits a good deal of consideration on how it is done. If the victim has a family in some country where the traffickers have power, it might be in the best interests of the victim for there to be no prosecution at all, for reasons of possible ramifications for the family. On the other hand, we do not want a position whereby it is possible, in some way, for people to prevent a prosecution by threatening the families of victims. That is the kind of difficult issue to be faced in relation to a clause of this sort.
Baroness Butler-Sloss
Following on from what the noble and learned Lord, Lord Mackay, said, might it be sensible to look at a further amendment on Report that does not involve the various issues pointed out by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Quirk? Could there be a short general clause about the purpose of the Bill being to look after the best interests of victims? The Minister has said that the best interests of the victims come into each of the clauses, but a very short clause of two sentences might perhaps set out the primary purpose of the Bill. Indeed, the Home Secretary has mentioned the victim focus in her introduction. I wonder whether that might be a way out of all the points we have been making.
Lord Rosser
I am more than happy to consider that. I think I have made clear that I am not going to any barricades over the wording of the amendment. It is more about trying to achieve an objective that, in my view and that of many others, improves the Bill for victims. I take on board the point made by the noble and learned Baroness, Lady Butler-Sloss. Would the Minister be prepared to have discussions which include all those who have spoken in this debate—if they wish to take part—on getting some wording into the Bill that might satisfy the Government as well as the other parties? I realise that the Government have their interests and reasons for taking the stance that they have, but the objective of us all is to improve a Bill which we all support and which we are not voting against.
Lord Bates
All the way through this, we have tried to listen very carefully to suggestions as to how the Bill can be refined in the way that we all want to go. Our starting point was very much one that we all recognised—that implicit in every strand, clause and subsection of the Bill is the victim’s interest—and that is repeated in the strategy. Whether there is a form of words that could be inserted which would answer the questions that are being asked here—simply to have a very clear statement—is something that we could look at. I am very happy to have a meeting between now and Report with the noble Lord, Lord Rosser, and other interested Peers to examine that.
Lord Rosser
I am very grateful to the Minister for what he said, which is most helpful. I really appreciate that and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I also have Amendments 3, 5, 6 and 100 in this group, all of which are directed to the best interests of the victim or survivor. I say to the noble and learned Baroness that I regard it as my job—and all our jobs—to worry. I accept that sometimes I worry a little too much but I doubt I will change that now.
As we have just been discussing, Clause 1 refers to a person’s “personal circumstances”. My amendment seeks to add “or characteristics”. The terms in parenthesis in Clause 1(4) are, in one case, a circumstance—“family relationships”—but others, such as illness, are more of a characteristic. Maybe they are circumstances as well, but I regard circumstances as being more external and characteristics as more about the person himself. I do not suppose that there is a neat or clear dividing line but I am concerned that “circumstances” may not be as broad as I would like it to be. If the Minister agrees, perhaps one can look at Clause 1(3) as well.
The list in parenthesis in Clause 1(4) is obviously not intended to be exhaustive—it starts “such as”—but it refers to “mental and physical illness” without mentioning disability. I am suggesting adding “or disability” because elsewhere in the Bill there is reference to both disability and illness. Obviously, they are not the same and inclusion here would avoid any doubt about that.
Perhaps this tips over into characteristics as well but in my view circumstances certainly include experiences, particularly a position into which a victim has been forced and has been found. Experiences go to make up the person, and if we are embarking on the sort of description that is included here, that is a term that also might be considered. To be appropriately broad, I am suggesting changing “such as” to “including”.
Perhaps I could take this opportunity to ask my noble friend whether in Clause 1(3), where it says:
“In determining whether a person is being held in slavery … regard may be had to all the circumstances”,
“may” means “shall”. What is the extent of the court’s discretion here? In particular, after having regard to all the circumstances, could the court determine that, despite other evidence, a case is not so extreme that it could be described as slavery? In adding these provisions to what is in the current legislation in Section 71 of the 2009 Act, I am not really clear what we are gaining. I suppose that, once the question about “may” or “shall” in Clause 1(3) has been answered, the same issue or something similar arises in Clause 1(4). Perhaps another way of putting this is to ask whether there have been difficulties in prosecuting under Section 71 that would have been addressed by having these two provisions, although my noble friend may not know the answer to this given the small number of prosecutions, to which he has referred.
This group also includes Amendment 100, which was tabled in my name. This amendment is rather different. It looks at a new offence of exploitation, and really does no more than just consider it. This amendment was also tabled in the name of the noble Baroness, Lady Young of Hornsey. I will not have been the only one who, in seeking to get to grips with these issues, has become interested in the ill treatment of labour in a much wider sense than we are dealing with in the Bill. There is a spectrum—or, as it has been termed, a continuum—from direct, decent work to slavery. This is very much a probing amendment. It would obviously not be appropriate to jump straight into a new offence without careful consideration and, indeed, without wide consultation.
The concept of a continuum is not mine. I was interested to read a report from the Joseph Rowntree Foundation by Klara Skrivankova, which talks about a continuum reflecting the real life experiences of workers whose employment relationships are not static. It discusses the variability in their working conditions resulting from the circumstances, their personal vulnerabilities and external pressures. The model of the continuum also considers the spectrum of substandard working conditions that might not constitute forced labour but are identified as underlying causes, and perhaps are on the way to forced labour. Putting it another way, such an offence would apply the convention according to modern standards.
This was particularly put into my head in conversations with Focus On Labour Exploitation—or FLEX—which is a small charity with a very big agenda. I discussed this very recently with a counsel who has undertaken many prosecutions in this area. Indeed, I recognise one of the case studies referred to in the strategy that was recently published. The first thing the counsel said was that to have such as offence, which was not as severe as forced labour, would make things easier for the Crown. There would be more guilty pleas. He immediately followed that by saying that it would take the heat off the victim. The jury would naturally think that a victim must be vulnerable, and the jury would not succumb to the tendency, which he has observed, to assume that forced labour requires violence.
The counsel also said that the maximum sentence of life imprisonment—although I am not arguing with that being provided for here—can be something of a deterrent to a jury, in his view. He compared this with rape. That carries high maximum penalties, but he believes that a jury has been unwilling to convict because it is worried about the penalty that might be imposed, which it thinks would be inappropriate.
In the same conversation, a psychologist said that there being a maximum sentence of life can be an enormous burden on a victim, who, in the very complex relationships that are created in such situations, may feel quite a responsibility to the slave master. The counsel with whom I discussed this even said that he thought that there would be no need to define exploitation because the best assessors of whether somebody had been exploited would be a jury. He compared it with affray, where a jury does not have a difficulty in assessing whether a reasonable person would fear for their safety on the streets.
I am suggesting in this amendment the instigation of a review, including of the legislation establishing the public authorities that I have listed—they are regulators but not only regulators, and are in a position to get a very good handle on what may be going on; for instance, on a construction site—and very wide consultation working towards a report. This may not be the way to word the amendment—I am sure that it is not—but, crucially, the Minister could tell us, even if not today, that the Government will consider this and take it on, and that it does not actually need to be in legislation. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, I shall speak to our Amendment 8 as well as to Amendment 100 and government Amendments 4, 7 and 101. As we consider the offences under Part 1, I thank all the organisations which have provided us with invaluable briefings and information, both written and oral, on what is perhaps the most important part of this Bill.
As discussed in relation to the previous group of amendments, it is imperative that victims are at the heart of the Bill. It is by giving them support and the knowledge that they can trust the people from whom they seek help that more of these inhumane crimes will be reported—I know that the Minister agrees with that. However, as we heard at Second Reading, far too few of the perpetrators are brought to justice—indeed, the Minister acknowledged the lamentable figures in his helpful letter of 25 November, for which I thank him.
As the newly published Modern Slavery Strategy makes clear, there are many more victims than were envisaged. This makes it even more essential that we get the offences right in order to get more successful prosecutions and ensure that there are no gaps or loopholes. While the Modern Slavery Strategy is of course very welcome and was eagerly awaited, I wonder whether it would have been sensible for the Government to delay its publication slightly until the legislative process had been concluded; for example, it rightly speaks of the work of the new anti-slavery commissioner, but his remit may well be amended during consideration of the Bill by this House. Will the strategy be amended if necessary to take account of any change in the Bill when enacted?
Amendment 8 would make it clear that the consent of a victim is irrelevant when it comes to an offence of slavery, servitude or forced or compulsory labour. I am grateful to the Minister for listening to concerns expressed at Second Reading, in the House of Commons and in the pre-legislative Joint Committee, and for bringing forward his amendment to this clause. When giving evidence to the draft Bill committee, Nick Hunt, director of strategy and policy at the Crown Prosecution Service, recognised that such a change was needed to put Clause 1 on a level footing with Clause 2, which our amendment seeks to do by using the same wording as in Clause 2.
Both our amendment and that of the Government will ensure that individuals who hold people in servitude, slavery or forced labour can be convicted, and that the emphasis and the spotlight in the consideration of the offence should be put on them and not on the victims. In his letter, the Minister states that the amendment,
“will clarify that a lack of consent is not required for the offence to be committed and that the court can consider the particular vulnerabilities of a child”.
This is true, but we believe that it does not obviate the need for a specific child-related offence. Indeed, Amendment 101 is also welcome in that it specifies that people under the age of 18 are children. However, the mere addition of the word “child” through Amendment 4 does not mean that these offences are now adaptable to suit the needs of child victims and to enable prosecutions of those who commit the offences of trafficking and exploitation against children. That is why we believe that there should be separate offences relating to children.
In relation to Amendment 100, which was spoken to by the noble Baroness, Lady Hamwee, and is also in the name of the noble Baroness, Lady Young of Hornsey, I agree that there should be a review of various aspects of the Bill—or Act—in due course. I think that one year is much too tight and I would say that “in due course” should be specified. Regarding what the noble Baroness says about the offence of exploitation, as will be clear from the next groupings, we believe that it is imperative that an offence of exploitation is put into the Bill now. If there were to be a review in a year’s time and the review concludes that there should be an offence of exploitation, it may then take a while for it to be introduced through legislation and, throughout all that time, there will be victims of exploitation and the perpetrators of the dreadful deeds need to be brought to justice. Therefore, we strongly urge the Government to ensure that the offence of exploitation is brought forward now. While I understand why the noble Baronesses have put forward Amendment 100, we do not agree with it. We think that it would delay a necessary step, which should be taken right now.
Lord McColl of Dulwich (Con)
My Lords, I welcome government Amendment 7, which provides clarity about the role of consent in the understanding of whether a person has been trafficked or not. I had the privilege to sit on the Joint Committee for the pre-legislative scrutiny process. During our hearings we received a good deal of evidence that the issue of consent in relation to the offences of slavery, forced labour and servitude in Clause 1 is rather problematic. The barrister Riel Karmy-Jones, who has extensive experience of prosecuting such cases for the CPS, told our committee:
“I think consent is an issue for clause 1 as well, because you do have people occasionally who are brought up in a position of servitude and know nothing else, and so effectively could be seen to be consenting to their condition”.
Another barrister, Peter Carter QC, who acted as special adviser to our committee, also raised concerns that consent was what he termed a “live issue” in Clause 1 by virtue of subsections (2) and (3), and especially in relation to children.
The reason that the issue of consent is problematic is because where a victim of slavery, forced labour or servitude appears to consent to their situation, perhaps by not running away, or where they are not physically restrained, police officers may incorrectly presume that such cases are not truly cases of forced labour, slavery or servitude. Some charities that work with victims have told me that misunderstandings and presumptions about what constitutes forced labour can mean that cases do not receive the serious treatment that they should. The charity Hope for Justice has told me that it commonly comes across a misunderstanding among police officers that,
“victims have to be locked up in order to be considered as being in forced labour”.
The issue of consent is not only a problem in relation to police investigations but can be used also by defence counsel to raise doubts in the minds of juries. Amendment 7 will make it clear for police officers, courts, lawyers and jurors that slavery, servitude and forced labour are complex situations, and that numerous factors can lead a person to consent to exploitation without necessarily meaning that the exploitation is not taking place. Those psychological barriers can be much stronger than any physical restraints, such as a locked door.
Threats to the individual victim or a family member can deter people from trying to escape, even if they have the opportunity. Fear of the authorities, of prison or of deportation—encouraged by those who exploit them—can prevent a victim seeking help. Debt bondage can cause a person to continue in a situation of forced labour or servitude without any restrictions on their freedom. Even where that debt is created by deception or fraud, a victim can be so desperate to pay back the money that they have been told they owe that they will consent to servitude or slavery. For other victims, their dependency on their exploiters, perhaps for shelter or food, however inadequate those might be, leaves them at risk and certainly in fear of facing greater destitution if they try to escape.
I welcome this amendment from the Minister, which will make it clear in the Bill that such consent need not necessarily preclude a finding on the basis of other evidence that a person has been held in slavery or servitude or required to perform forced labour. Doing so will make understanding the offence simpler for police officers and jurors and, as a result, aid successful prosecutions, which we all hope the Bill will help to promote.
I note, however, that Amendment 7 refers to the person’s consent to,
“any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour”.
Might the Minister consider a similar amendment to the Clause 2 offence, which presently addresses consent only in relation to a person’s travel and not the exploitation that they are put through?
Baroness Butler-Sloss
My Lords, I support Amendments 4, 7 and 101, which are government amendments. I am very happy to see Amendment 7 at the bottom of Clause 1, as it seems to make entirely clear the situation of consent in relation to children as well as to adults. I am also very pleased that under Amendments 4 and 101 it is made clear what a child is; that is, someone under the age of 18. That is a very useful bit of interpretation, so I strongly support the amendments. I think that I prefer Amendment 7 to Amendment 8, because Amendment 7 sets it out in rather more detail and therefore is preferable.
Baroness Young of Hornsey (CB)
I shall speak to Amendment 100, which is also in the name of the noble Baroness, Lady Hamwee. As both she and the noble Baroness, Lady Royall, were speaking, it struck me that this is something to do with the inadequacy of language, which may be stopping us getting across what we mean in that amendment. When we refer to exploitation it is about this idea of the continuum so, for me, the key phrase is in subsection (1)(c) of its proposed new clause. It says,
“and in particular whether there should be an offence of exploitation which does not amount to slavery, servitude or forced or compulsory labour within section 1”.
Although I hesitate to use such a term, we have really been talking about slightly lower level criminal offences. Organisations such as FLEX, which the noble Baroness mentioned, say that those offences tend to slip through the gaps a bit because they are seen as being not quite serious enough to go the whole way with the kind of sentences that are being proposed, and so on. That is really where the amendment sits.
I take the point about the one year. That is fair enough, were we to institute the proposed new clause, although it is obviously a probing amendment. There is a specific set of problems around the continuum of the seriousness of offences. I am not aware whether evidence exists about the extent to which persistent perpetrators of the offences we are talking about then escalate their criminality into much more serious offences; it would be useful to know whether it does. If so, it would be worth concentrating some effort on trying to root out these slightly lower level crimes. I support the amendment mainly to get some response from the Government, so as to get a sense of where they think some of these other types of offences might sit in relation to the Bill as a whole.
Baroness Howarth of Breckland (CB)
My Lords, I support the three government amendments and I shall also speak to Amendment 100. This is when, as the Minister said, we start to put victims at the centre of this legislation. The issue of consent is certainly a complex and crucial one, but we have managed to tackle the general concept in this legislation. It takes me back to wanting a general concept at the beginning of the Bill that sets the tone of the Bill. I thank the Government for using the age limit of 18. It would have been easy to take a different age limit, but we have established that 18 is the age at which children stop being children. We know that many of them are still extraordinarily vulnerable, but this legislation does say something about that.
I want to comment on the one-year period in the amendment of the noble Baroness, Lady Hamwee. I think that one year is quite a short time and that a review is essential. I hope that, because the Bill has been taken through its stages so well—unfortunately, I did not have the opportunity to speak at Second Reading, for a number of reasons—it would benefit from post-legislative scrutiny at a proper time, 18 months to two years on. We should set that into the legislation somehow, so that we are absolutely sure that we can look at this in detail. I think that a year is very short for something as complex as this and that a review is necessary.
Lord Bates
I am grateful to noble Lords for tabling amendments relating to the offence of slavery, servitude and forced or compulsory labour in the Bill, and raising the issue of whether a wider offence is needed. I reflected, ahead of Committee, on the definition of this offence and I will move government Amendments 4, 7 and 101 to clarify the offence and ensure it can clearly be used in cases where the victim is a child or vulnerable.
This offence will replace the existing offence of slavery, servitude and forced or compulsory labour set out in Section 71 of the Coroners and Justice Act 2009. This is an important offence which captures grave and often degrading behaviour. Under the Bill, the maximum penalty will be increased to life imprisonment. A person commits this offence if they hold another person in slavery or servitude or require another person to perform forced or compulsory labour. These terms are defined with reference to Article 4 of the European Convention on Human Rights. Through its decisions, the European Court of Human Rights has provided clear guidance on the meaning of these terms.
I am particularly concerned that our offences should be effective in the case of child victims, who are often very vulnerable. That is why, following the pre-legislative scrutiny report, we clarified the Clause 1 offence to make it clear that, when deciding whether an offence has been committed, the court can consider someone’s personal circumstances, including their age. Following Second Reading, I have considered the issue of child victims and very vulnerable adults further and I have tabled amendments that do more to ensure that the offences clearly cover their specific circumstances.
Government Amendment 4, for which I am grateful for your Lordships’ wide support, makes it absolutely clear that, when assessing whether an offence of slavery, servitude and forced or compulsory labour has taken place, the police, prosecutors and the courts can look at the particular vulnerabilities of children. I have also reflected on concerns that the Bill is not yet sufficiently clear on the meaning of “child”. For the avoidance of doubt, I have tabled government Amendment 101 to make clear that “child” refers to a person under 18, a point made by the noble Baroness, Lady Howarth, and very much part of the recommendations made by my noble friend Lord McColl and the noble and learned Baroness, Lady Butler-Sloss.
I also understand the concerns expressed at Second Reading in another place, and during the pre-legislative scrutiny committee’s inquiry, that there may be a perception that to achieve a successful prosecution will require evidence that a person has not consented to being held in slavery or servitude or required to perform forced or compulsory labour. That is a point that my noble friend Lady Hamwee made. In cases of children, there may not be clear evidence of lack of consent because adults often control children in subtle ways, and children may not even realise that they are victims. My noble friend referred to that often very complex relationship between the perpetrators and their victims. I want to ensure that law enforcement, prosecutors and the courts are clear that, in accordance with existing case law, the lack of consent is not an element of the offences in Clause 1 that has to be proved to secure a conviction, and therefore a person’s consent does not prevent a finding that the offence of slavery or servitude or forced or compulsory labour has been committed.
Government Amendment 7 makes sure that, even where a victim consented to the situation they were placed in, the court can find that the situation amounted to slavery, servitude or forced or compulsory labour. This applies explicitly to both children and adults. We want to protect children and very vulnerable adults from modern slavery. This is a point that my noble friend Lord McColl referred to in highlighting some of the circumstances, particularly debt bondage, that people are in.
I understand and share the sentiments behind the alternative Amendment 8, which was spoken to by the noble Baroness, Lady Royall, and would make consent simply irrelevant when determining whether a Clause 1 offence had been committed. However, we have not chosen to take that approach, for two reasons. First, in our view it would be inconsistent with the European Court of Human Rights case law, which is clear that consent can be considered when assessing overall whether forced or compulsory labour has taken place. Secondly, this approach could inadvertently actually make it harder to secure convictions, which none of us wants. In some cases the victim will clearly have refused to consent to their treatment in some way. In those cases their lack of consent will be relevant evidence for the court to consider, and may well help to demonstrate that the offence has been committed. This amendment would prevent a court from considering this evidence—something that none of us wishes.
My noble friend Lady Hamwee asked a very pertinent question, which sent a flood of notes back and forth to and from the Bill team, on whether the strategy document, on which the ink is yet to dry, is open to amendment. You could see officials wincing at the prospect, but this is something that needs to be kept under review. I refer my noble friend to Clause 42, which refers to the role of the anti-slavery commissioner and his requirement to produce strategic plans and annual reports; those reports will come before Parliament and we will have an opportunity to discuss them. I hope that in some way that goes to answering her question. I am grateful to her and my noble friend Lord Dholakia for tabling amendments that have allowed me to test out whether the wording in the offence around considering a victim’s circumstances and vulnerabilities works in the way that the Government have always intended.
I turn to a specific question asked by my noble friend Lady Hamwee. In Clause 1(4) we use the term “may”, and she asked whether it should be “may” or “shall”. “May” was carefully chosen in this context to give the courts the flexibility to exercise their judgment appropriately. There will be many circumstances in any case and some will not be relevant as to whether a Clause 1 offence was committed. The term “may”—rather than, for example, “shall”—was used to avoid a court having to consider every single circumstance in every single case, whether or not they are relevant. That was the purpose behind that.
Amendments 2, 3, 5 and 6 all relate to Clause 1(4), which specifies that, when determining whether a person has been held in slavery, servitude or forced or compulsory labour, regard may be had to any of the person’s personal circumstances which may make them vulnerable. I can reassure noble Lords that the subsection gives a non-exhaustive list of the kinds of personal circumstances that may be considered to make someone more vulnerable than other persons. This list is just to offer examples. The clause specifically states that,
“regard may be had to any of the person’s personal circumstances”—
some being mentioned in parenthesis—whether they are on that list of examples or not.
With this in mind, we do not think that we need to add further examples to that list which could risk creating the impression that it is supposed to be comprehensive. We are also confident that the phrase “such as” is sufficient to make it clear that this is a non-exhaustive list of examples, and have made this point clear in the Explanatory Notes.
The proposed new clause in Amendment 100 suggests that we place in statute a requirement for a review of a number of Acts of Parliament to look specifically at whether existing offences adequately protect victims of exploitation. We will turn to the detail of the Bill’s definition of exploitation in a later group. I welcome the sentiment behind this amendment. I have been looking carefully at the detail of the offences, as has the Minister for Modern Slavery and Organised Crime. We have been asking if there are examples of potential gaps in the law where conduct that amounts to modern slavery might not be appropriately criminalised. I must say that we have not yet identified substantial gaps, but I want to get this Bill right and remain very keen to hear about any problems which have been highlighted. The examples given by my noble friends Lady Hamwee and Lord McColl are very helpful in this regard and we will reflect on them.
I am also committed to keeping the effectiveness of this Bill—including the offences—under review after it becomes an Act. This will happen both through the work of the Independent Anti-slavery Commissioner and through post-legislative scrutiny. For this reason I do not believe that a review of the Acts listed in the amendment is necessary at this stage. However, I place on record in this House the Government’s commitment to providing post-legislative scrutiny on the Bill in the usual way within three to five years of Royal Assent, an issue raised by the noble Lord, Lord Alton, at Second Reading. The Government will consult the Home Affairs Select Committee on the timing of publication of the memorandum. In light of this assurance, I hope that the noble Baroness will feel able to withdraw her amendment and that noble Lords will support the amendments in my name. I beg to move.
Lord Hylton (CB)
The noble Lord has helpfully mentioned the issue of vulnerability. In relation to Clause 1(4), does being tied to one single employer not necessarily involve vulnerability?
Lord Bates
We will come back to this excellent question from the noble Lord, Lord Hylton. I will get some more guidance but I know we will be coming back to discuss this very issue on a later grouping—in fact, on some of the amendments which he has tabled. I will make sure we have a response to that by then.
Baroness Hamwee
My Lords, I thought that I would have to find about seven minutes’ worth of response so that we did not get on to the next group of amendments before 4.45 pm. However, I will take possibly more than one minute to respond. I am grateful to noble Lords for their comments.
As regards the 12 months, I had it in mind that a review should have taken place within 12 months, not that one should postpone it, but that is in a sense a detail as against the principle of whether there should be an offence that is less than slavery. The Minister said that the Government have been looking to see whether anything has slipped through the gaps, and he talked about—as I understood it; obviously I will read what he said—not criminalising lesser actions. My point is that we should look to see what lesser actions should be criminalised, and seek to consider a new offence.
On the Minister’s answer on “may” or “shall”—some noble Lords will go to their graves with “may”, “shall” and “must” written on their hearts, will they not?—am I therefore to understand that the court must consider the person before considering whether an offence has been committed? His answer seemed to indicate that, although again, one must read it properly. However, if that is so, and if the resilience of some people is such that the behaviour meted out to them could be considered not to be slavery, forced labour or servitude, is that consistent with the convention? I said that the Bill raises a lot of technical issues, and that is one of them.
On my smaller, and certainly shorter, amendments to Clause 1, and in reply to the noble Lord, Lord Hylton, my term “experiences” aimed to cover exactly the sort of experience he mentioned. However, of all those amendments, I would be concerned not to lose the one on “characteristics”, and if I had to pick one to come back to in order to pursue it further between now and Report, and possibly on Report, it would be that one. We will of course look at the question of an offence of exploitation later in our debate today as well. Whatever we end up with, I would certainly not wish to lose sight of that one. However, I beg leave to withdraw Amendment 2.
Lord Bates
Lord Bates
“(5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.”
Baroness Doocey
“Offence of child exploitation
(1) A person who exploits a child commits an offence.
(2) Where the exact age of the child cannot be determined, it shall nonetheless be an offence under subsection (1) to exploit a person if the accused believed, or had reasonable grounds for believing, that the person exploited was under 18.
(3) It shall be an offence even if there was no threat or use of violence, or other form of coercion, deception or any abuse of a position of vulnerability.
(4) Exploitation means the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
(5) A child may be in a situation of exploitation whether or not—
(a) escape from the situation is practically possible for the child; or(b) the child has attempted to escape from the situation.(6) Where the person exploited is a child, the consent or apparent consent to the exploitation of the child, or of any person having lawful authority over the child, is irrelevant.”
Baroness Doocey (LD)
My Lords, the amendment introduces a new, separate child exploitation clause aimed at filling the gaps which, despite the Government’s amendments, still exist in the Bill. Clause 1 requires evidence of slavery, servitude and forced or compulsory labour. However, force or compulsion should not be required in the case of children because a child can be controlled far more easily than an adult, and in many cases without direct force or compulsion. That is one of the reasons why we need a separate child exploitation clause. Clause 2 does not require just evidence of trafficking; it also requires proof that the trafficking took place with a view to exploitation. Proving that somebody was trafficked is difficult enough, but proving that they were trafficked with a view to exploitation is almost impossible, and proving both in the case of children, who are moved at the behest of adults, sets the bar far too high for the CPS to be able to prosecute.
There are a number of circumstances in which children are being exploited that would not be deemed offences under the Bill: children who had not been trafficked but had been sent out to the streets by family members to beg or to steal; children used to make multiple claims for benefit; children brought in from baby farms overseas to be illegally adopted. I shall give two examples of what is actually happening. When I was serving on the Metropolitan Police Authority, the police went into a house and found a young girl of about 12 years of age who was looking after three children under six. She was working from dawn to dusk: cleaning, cooking, washing, ironing, looking after the children. The bed was a mat by the fire. She had never been to school. The police removed her from the house and took her to social services. However, social services brought her back to the same house the next day, saying that compared to some of the children that they had pulled out of crack joints, she was living in the lap of luxury. The only thing the police could prosecute for was the fact that she had not been to school and they could not home-school her. Once the aunt and uncle—so-called—had promised to send her to school, they basically got off scot free, because there was no way the police could prove that she had been trafficked with a view to being exploited.
In another case, a girl of 12 was sold by her mother in west Africa to a woman who brought her to London to exploit her in domestic servitude. After about a year the woman’s next door neighbour started to ask questions about the girl: where she had come from, what she was doing. The woman immediately sold her on to another man, who also exploited her in domestic servitude. When the police were finally contacted, they said that they could not prosecute this man because he had not trafficked the girl into the country.
If either of these cases of exploitation happens after the Bill becomes law the authorities would still be unable to prosecute, because they would be unable to prove the trafficking element required under Clause 2. I am not alone in believing that a separate child exploitation clause is essential. The Joint Committee on which I sat, which scrutinised the Bill, recommended such a clause. The 41 NGOs which form the Refugee Council’s consortium, including ECPAT, the NSPCC, UNICEF and the Children’s Society, believe that such a clause is necessary. Leading barristers whose daily work is to prosecute these cases, several of whom gave evidence to the Joint Committee, also believe that the clause is necessary. The amendment that I propose makes it an offence to exploit a child, but it also defines that exploitation using the exact words of article 2 of the EU directive on human trafficking, by which our courts are already bound.
This amendment makes explicit the fact that a child cannot consent to their own exploitation and it removes the need to prove any threat, coercion or deception. The Government have tabled an amendment that says that consent is irrelevant for the offences in Clause 1. That is very welcome because it brings Clause 1 into line with the trafficking offence in Clause 2. However, it does not change the fact that we still need a separate exploitation clause, because in many cases exploiting a child will simply not meet the threshold required for slavery, servitude or forced or compulsory labour.
I cannot say with any certainty how many children are being trafficked and/or exploited in the United Kingdom today—no one can, because our system of justice has failed properly to recognise that such offences exist, let alone to investigate how often they occur. That is a sadly familiar tale, as we have seen recently in the evidence from the Jay report into child sexual exploitation in Rotherham. We must take the opportunity afforded by this Bill to provide a legal framework which offers the very highest standards of protection to children, recognising, as we do in so much other legislation, that children need a higher standard of protection than adults and, sadly, sometimes a higher standard of protection from adults. We need a specific offence of child exploitation to tackle the deficiencies in the Bill. If we do not get it, we will fail the many hundreds, if not thousands, of children who are exploited in our country every day. I beg to move.
Lord Rosser
My Lords, we have Amendments 24 and 26 in this group, which have a very similar theme to that of the amendment proposed by the noble Baroness, Lady Doocey.
The recent report on child sexual exploitation in Rotherham shocked a great many people, not least due to the extent of the abuse that had taken place. Approximately 1,400 children were sexually exploited over the full inquiry period from 1997 through to 2013. Victims were raped by multiple perpetrators, trafficked to other towns and cities in the north of England, abducted, beaten and intimidated. This was against a background in May this year of the case load of the specialist child sexual exploitation team being 51.
Many victims were unable to recognise that they had been groomed and exploited, and some blamed themselves for not just their own abuse but for what happened to other victims. Although there have been a small number of prosecutions for offences against individual children, many children refused to give evidence or withdrew statements as a direct result of threats, intimidation and assaults against them or their families. We have had similar cases in Oxford and Rochdale that the authorities concerned did not appear to pick up, perhaps because of a lack of awareness of the offence of child exploitation. That is a reason for wanting to see the specific offence of child exploitation as well as the offence of child trafficking included in the Bill.
Around a third of all known victims of modern slavery in the United Kingdom are children and the number is growing, not least because they are being specifically targeted due to their age and vulnerability. Yet according to Crown Prosecution Service data, there have been no cases where the victim was a child at the time of the prosecution since the introduction of Section 71 of the Coroners and Justice Act 2009 on slavery, servitude and forced or compulsory labour. The significance of this point is that the Section 71 offence appears to have been transposed into Clause 1 of the Modern Slavery Bill.
The Joint Committee on the Modern Slavery Bill recommended that an offence of child exploitation should be included in the Bill to make clear that child exploitation is even more serious than that of an adult and that consent elements can never be an issue for children. The Sexual Offences Act, for example, already accepts the principle of separate and more serious offences against those under 18. This Bill as it stands does not contain any explicit criminal offence of child exploitation. Our amendments make clear that children do not have the legal capacity to consent to any form of exploitation as recognised in international law and would increase the likelihood that many more of those who traffic, exploit and abuse children would be brought before the courts.
As has been said, children are also at a disadvantage when it comes to providing evidence since they do not usually understand that they have been trafficked or even understand what it means, let alone be aware of what kind of evidence is needed to pursue a prosecution in relation to being trafficked to a location or situation of exploitation. That will be particularly likely if parents or others close to the children concerned have been involved in the trafficking, with the result that while a child may be able to say what happened when they were exploited—through, for example, domestic servitude or prostitution—they are much less likely to be able to help in terms of the perpetrators of a trafficking offence.
It has already been said that since movement or travel is a key component of exploitation, the reality that children are often unable to explain who brought them to a particular house or location where they have been exploited—our amendments include examples of the many different forms of child exploitation—means that no prosecution happens.
Creating separate offences of child exploitation and child trafficking will help to overcome the significant and crucial problem in respect of children and help to achieve the objectives of the Bill, which are to reduce the incidence of modern slavery in its different forms and bring more perpetrators to justice. The separate offence of child trafficking will ensure that those involved in this equally awful activity can be brought to justice for this offence as well as for exploitation.
Baroness Kennedy of Cradley (Lab)
My Lords, I speak in support of Amendment 9 in the name of the noble Baroness, Lady Doocey. After sitting next to her for months in the work of the joint scrutiny committee, I feel that I can now describe her as my noble friend. Today I speak not only for myself but on behalf of my noble friend Lord Warner, who is unable to be in his place. I also support Amendments 24 and 26 in the name of my noble friend Lord Rosser.
Children who are victims of exploitation and trafficking need to be uppermost in our minds as we discuss the detail of the Bill. There is nothing more heartbreaking than seeing children—babies even—being abused for profit and personal gain: denied a childhood, denied an education and stripped of their life chances. Where better to start putting children at the heart of the Bill than Part 1, where we set out what we as a society find unacceptable?
As the noble Baroness, Lady Doocey, said, we should take the opportunity afforded to us by the Bill to give children the greatest protection we can and amend Part 1 to create a specific offence of child exploitation and a specific offence of child trafficking. This would make it explicit that this country will not tolerate such child abuse: that we have a national agenda to drive child exploitation off our streets and child trafficking out of our communities and country.
The amendments make clear and unequivocal our intent to prosecute those who traffic and exploit children. The noble and learned Lord, Lord Judge, said, when he gave evidence to the joint scrutiny committee:
“I think domestic legislation should say, ‘We mean this. It is defined as that’”.
I took this to mean that if we want our criminal justice system to drive up prosecution rates and convictions for child exploitation and trafficking, we need clarity of language. I believe that the amendments seek to give us that clarity. They are simple and direct and say exactly what we want to happen. If you exploit or traffic a child, you will be prosecuted.
The open-ended nature of Amendments 9 and 26 is also important. The evil ingenuity of the criminals who exploit children is truly shocking. As well as the prolific sexual exploitation we hear of, we have more babies being bought and sold; more children used to smuggle, produce and distribute drugs; and more child benefit fraud and street begging—to the extent where one child can make a gang around £100,000 a year.
The nature and types of exploitation that children are subjected to are continually evolving. We have recently seen increases in children being trafficked for the forced extraction of their blood and hair for rituals taking place here in the UK. Any definition of offences that we agree has to be as future-proof as possible so that, no matter how evil the mind of the criminal, the legislation will apply and protect.
Amendment 9 also makes it clear that, even if the exploiter has a lawful authority over the child, it is irrelevant. This is particularly important as children are sometimes exploited by their family members, and by members of their own community. The child may not even realise that they are being exploited. Some children may feel that their begging, for example, is contributing to the family finances and therefore are happy to do it and see it as part of their normal daily life. Making it clear that exploitation of a child is unacceptable, no matter who is asking them to do something, is absolutely essential.
Setting out a specific offence of child exploitation and child trafficking also makes it clear that an exploitative situation involving a child is distinct from one involving an adult, because a child can never consent to their own exploitation. Therefore, the evidential threshold for charging a person with child exploitation is lower, and proof should be easier as consent and compulsion need not be proved. Amendments that lead to a greater understanding of this lower evidential threshold among everyone involved in our criminal justice system, from judge to jury, will lead to more successful prosecutions.
Some have said that separate offences may complicate or confuse, but I have confidence that the professionals working in our criminal justice system will be able to cope with particular offences against children as well as the general offences. I think that separate offences would lead to less confusion, not more, and should not be either specific or general; they can and should be both. A specific child exploitation offence would also increase the focus on the non-sexual forms of child exploitation and help ensure that all forms of child exploitation are prosecuted. It will also raise awareness of non-sexual forms of child exploitation across the criminal justice system.
Child trafficking is on the rise and child exploitation is on the rise. The nature of both is constantly evolving. Specific offences in these areas are necessary. They will drive up prosecutions and help the system always see children as victims whom we need to protect. I hope that the noble Lord, Lord Bates, will reflect on the debate and the serious points made here today. If he is unable to agree anything regarding the amendments today, I hope that he will facilitate more discussion between now and Report for us to further discuss the points raised in the amendments.
Lord Patel (CB)
My Lords, I rise briefly to support the amendment of the noble Baroness, Lady Doocey, to which I have put my name. The reason why I strongly support it has been given by some of the noble Lords who have already spoken. We have evidence that the current levels of prosecution for trafficking children are woefully low. In fact, they are negligible. The Minister might correct me by giving me the exact number of prosecutions.
We also know that children face many different kinds of abuse and exploitation at the hands of traffickers, and that they represent a quarter of all known victims of modern slavery. The government amendment to Clause 2 is limited to consent to travel, which is not part of the international definition of trafficking. It is the exploitation itself to which the child cannot consent, not the level of travel. I am concerned that this will serve only to create further confusion over what ought to be a simple definition of child trafficking.
The noble Baroness, Lady Doocey, referred to the evidence in the Rotherham cases, among others, and demonstrated practitioners’ continued confusion over the consent of child victims of exploitation and society’s failure to prosecute those who abuse children. A child exploitation offence would contain a simple definition of child exploitation that includes the range of exploitation that children face. Some of it has already been mentioned by the noble Baroness, Lady Kennedy. A separate offence of child exploitation would help to bring abuses to prosecution and conviction. Therefore, I support the amendment. However, I intend to listen to the other arguments, particularly those of the noble and learned Baroness, Lady Butler-Sloss, who is about to speak, who may have a different opinion.
Baroness Butler-Sloss
My Lords, I would like to inject a cautionary note to this debate. Like everyone else in this House, I clearly support the concept that children should not be held in slavery, forced into labour or any other of the ways in which they may be either trafficked, using the English definition of trafficking and not, as has just been said, the European definition of trafficking, which does not require movement.
However, I am not satisfied that any of these amendments is necessary. The two illustrations given by the noble Baroness, Lady Doocey, were, of course, under the old law. In my view, government Amendments 4 and 7, already approved by this Committee, and government Amendment 13, which I would be astonished if the Committee did not approve, already carry Clauses 1 and 2 along the road to including children with adults—none of whom require consent. The idea that the standard for children should be different from that for adults is, if I may respectfully say so, wrong. Neither children nor adults who are enslaved or held in compulsory labour or servitude are required to consent. The government amendment to that effect has already been passed. Children and adults are in the same position.
We should also bear in mind the fact that the sentence for traffickers and those who enslave is already up to life, so there will not necessarily be a longer sentence because children are involved. The judge will have the opportunity to say, “This is a sentence for life”. He or she can say, because an adult is involved and the circumstances are not so serious, “I will give 14 years”, or, because a child is involved, “I will give life”. So there is no need for a different provision for children.
There are dangers with the word “exploitation”, which—despite the admirable subsection (4) of the proposed new clause—is capable of being taken too broadly. What the cases we have heard about, both at Second Reading and today, show is an appalling lack of good practice—and what we need to do is improve the practice of dealing with children. That requires training but it does not require extra legislation. To add that to what is already in Clauses 1 and 2 would be repetitive. I believe that the Government have gone far enough, with the amendments that they have tabled, to cover all sorts of slavery and exploitation that happens to children as well as adults.
Lord James of Blackheath (Con)
I shall speak to Amendment 29. First, I should declare my interests. I am the son of a couple who met as children in an orphanage, and my father was put to work as an unpaid kitchen boy for 11 years at Quaglino’s nightclub in London, in return for the orphanage being paid £1 a month for his services. That seems to me to fulfil a pretty good definition of slavery. But if he was standing here instead of me, he would say, “No, it was the best thing that ever happened to me—because I got fed better there, in the restaurant, than I did in the orphanage”. But it was slavery, and that sort of thing does not get a reference anywhere, because we are talking so much about sexual and perversion issues, not about that simple level of labour. But it was so, and it was wrong. I am assuming that we are safe in thinking nothing like that could happen today, so we do not need to cover it—but I do not think that it should pass without at least a thought and recognition, in memory of my father.
Secondly, I want to explain why Amendment 29 is here at all. It is outrageous that any Government should introduce a Bill that criminalises a whole sector of wrongdoers, while not accepting that the same strictures should apply to themselves and their own performance and behaviour. People would respond to that idea by saying, “But the Government don’t traffick children”. In fact, we have been serial offenders for the past 233 years. The first instance occurred in 1678 when, at the request of the Quaker colony in Maryland, we sent 82 children taken directly off the streets of Shoreditch as a gift to the colony, which had lost all its children in a raid by the Native American Indians. This consignment was put together by the mayor and aldermen of London, and shipped out from Rotherhithe. The instructions to the captain of the boat were that he had to bring back a cargo of tobacco to pay for the whole expedition; they were not doing it for free.
In the late 1780s, with the threat of Napoleon coming up, we moved to a position of systematic, government-sponsored trafficking of children to America on the grounds that, “If we are to be overrun by Napoleon, let’s send our children abroad”; and we did, in their thousands. Later, in the 19th century, we have the extraordinary episode of no less a person than Dr Thomas Barnardo, who enjoys near saintly status in this country, taking steps to ascertain how many children each of the Australian states would like if he could provide them. And provide them he did, in their thousands. It is hard to see where he got them from, but I suspect they were the overspill from his own institutional orphanages—in which case that was slavery to make space for more orphans, I suppose. But it was wrong and it was done without any authorisation.
The Lord Bishop of Derby
My Lords, I stand as an Anglican priest alongside the noble Lord, Lord James. We need to be reminded of that harrowing sequence of stories because they illustrate how easily children are exploited, even within the establishment and among the powers that be. I put my name to Amendment 9 and, at this stage, I want to endorse the points made by my colleagues on the Select Committee, the noble Baronesses, Lady Doocey and Lady Kennedy, based on the evidence we heard. I, too, found it very persuasive.
I am delighted that the Government have moved considerably in putting children more strongly in the wording of the Bill. As the noble Lord, Lord Rosser, said, there is precedent for specifying children, in the Sexual Offences Act. In response to the noble and learned Baroness, Lady Butler-Sloss, I would say that, clearly, we need improved training and practice. My point is that making children specific in this way will draw attention to the kind of training and practice that needs to be developed.
I endorse the importance of making children specifically visible in this legislation. There is a great temptation in our culture to treat children as young adults. From a very early age, they are economic agents and they dress as though they are 20 years older than they are. It is very easy for children to get lost in the whirl of society. We have heard the references to the terrible cases in Rochdale and other places. To protect children, it may be important to make them visible in legislation in a way that draws attention to their childlikeness. That would encourage the law, its practice and its training to take seriously the gravity of this offence.
Baroness Howarth of Breckland
My Lords, I would ask for some clarification. I am becoming very confused about the difference between the idea of slavery and trafficking and that of child neglect and exploitation, which we have been dealing with for many years through general children’s legislation. Listening to the noble Baroness, Lady Doocey, describe her cases, as an ex-director of social services and a social worker, I am appalled that action was not taken. However, I know that it is difficult to work between the criminal and the civil law. Under civil law, social services will act to remove a child and protect it, while at the same time trying to act through the criminal law against the perpetrators. There may be a gap there. Others have worked for years trying to ensure that those things hold together, but that is different from having a new piece of law about exploitation that then overrides the existing provisions in children’s legislation. Is the Minister prepared to look at this, maybe with lawyers, to see whether there is a gap in children’s legislation which this could plug and whether we are not being firm enough about practice and training?
We have seen what happened in Rotherham. In talking to the police this morning at a round-table meeting following the work that the all-party parliamentary group did on children and the police, it was quite clear that they have learnt a great deal and are moving in their practices and procedures. We will see change there. I would like to ensure that similar change happens in local authorities because, although there is good practice, as a former local authority worker I am sometimes appalled and ashamed at what we do about poor practice. I have two questions for the Minister. First, is there a gap? Secondly, what are the Government doing to ensure that everyone is encouraged to practise within the existing law to the highest possible standards?
Baroness Hamwee
My Lords, “cautionary” strikes the right note. I am glad that the noble and learned Baroness added to my lexicon. I was searching for the right term and I share her caution.
The EU Rights of Victims of Trafficking in Human Beings, which was published last year, makes it clear that:
“The child’s best interest shall be a primary consideration and shall be assessed on an individual basis”.
That reflects the directive, which refers to a child-sensitive approach but does not provide for a separate offence relating to children. It deals with penalties and special treatment but makes it quite clear that children are within the overall offence. The noble and learned Baroness also referred to the issue of consent, with which we have just dealt.
The forms of exploitation that are listed in the amendments and about which we have heard today are absolutely abhorrent, but I am one of those who are concerned that we do not inadvertently weaken the position in looking after children. In its pre-legislative scrutiny of the Bill, the Joint Committee on Human Rights refers to,
“the Optional Protocol to the Convention on the Rights of the Child”,
and says what a shame it is, in effect, that the Government have not responded to that in time for the detail of the response to feed into the Bill. Having made that criticism and referred to that more up-to-date piece of work, the committee goes on to say that although it is “sympathetic”, it recognises that,
“there is considerable evidence to support the Government’s view that there is likely to be a serious practical problem in prosecuting child-specific exploitation and trafficking offences”,
for the reasons that it sets out in the report. I, too, take the Government’s—and indeed the DPP’s—point about proof of age. Age may be an aggravating factor that will go to sentence, which is how I think it should be dealt with.
Reference has been made to article 2 of the directive. Indeed, as has been said, the amendment quotes from article 2. However, as I read it, those words are there not as a stand-alone offence but, in effect, to define exploitation in the context of trafficking for exploitation. Those words are in article 2.3, although the offence is in article 2.1. We will come on to this, and I am prepared to at least be persuaded that we have not got the definition of trafficking wrong. There is a lot of concern that trafficking, as it is dealt with in Clause 2, is not spelt out sufficiently extensively. Article 2 of the directive uses terms including “harbouring” and “reception”, which might answer at least one of the examples that we have heard about. The description of exploitation in article 2 is not there, as I read it, as a separate stand-alone offence.
I cannot let this go without echoing the points that have been made about both practice and training. They are not central to these amendments but, my goodness, they are central to the whole way in which, as a society, we respond through a number of different agencies—and indeed as individuals—to the abhorrence of slavery and trafficking.
Lord Bates
My Lords, I thank my noble friends Lady Doocey and Lord James of Blackheath, and the noble Lord, Lord Rosser, for moving and speaking to their respective amendments. In this group of amendments, I will spend most of my time addressing the arguments made by my noble friend Lady Doocey, with which we are very familiar. I do not mean that in a sense that is in any way derogatory. I realise how passionately she feels about this, and she has been consistent from the period of pre-legislative scrutiny, when she served as a distinguished member of the committee on the draft Bill, which did so much good work. The noble Baroness consistently argued for this specific offence. I hope she might accept in return that, if there were a convincing case and the Government felt that there was a gap that needed to be filled, and given our track record of making changes in this area, we would move to support this without hesitation. At the moment, we are waiting for the evidence that this is the case.
I want to deal with some of the points that have been made and the case studies that have been given today. The offences provided for in the Bill have been changed three times already, especially those regarding children, who are particularly vulnerable in the circumstances of modern slavery, as was said by the right reverend Prelate the Bishop of Derby. We made changes after the Bill was published, following pre-legislative scrutiny. We made changes in Committee in another place after debate there, and today I moved amendments in the previous group to highlight this.
Our debate on this important issue effectively centres on whether this specific offence is needed, or whether it is already covered. There is then a second set of arguments about whether, given some of the practicalities surrounding securing a conviction in this area, we might end up in the perverse situation—which none of us wants—where it is more difficult to secure a conviction than would be the case using the general provisions in the Modern Slavery Bill or in other legislation.
It is important to remember that we have not just one but a number of relevant pieces of legislation for tackling this sort of child exploitation, as was alluded to by the noble Baroness, Lady Howarth. We have the Sexual Offences Act 2003, relating to sexual exploitation, and we have the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. We have Section 71 of the Coroners and Justice Act 2009, which was referred to by the noble Lord, Lord Rosser. Perhaps I may consider that particular Act, because we looked at it following our discussions in the interregnum between consideration of the Bill on Second Reading and the start of Committee stage. As to whether the slavery offence in Section 71 has been used, the Crown Prosecution Service has given us the example of a woman who was sentenced to seven years’ imprisonment for attempting to sell her baby for £35,000. She was convicted of conspiracy to commit child cruelty and of holding another person in slavery under Section 71 of the Coroners and Justice Act 2009. An agent who acted as a broker was sentenced to nine years’ imprisonment for the same offences, so this legislation is being used.
I return to a point that I make no apologies for repeating time and again: this is not a finished document. To use a phrase that was first used in another context by my noble friend Baroness Hamwee, we are lifting the stone to find the full scale of the horrors that lie beneath. We then need to try to work together to see how we can begin to tackle it. The noble Lord, Lord Patel, made the point that the number of prosecutions is woefully low. We absolutely agree: the number of prosecutions is woefully low compared to the number of victims we know or suspect to be out there.
That is why we are trying to come forward with measures that make this easier for children. We want to give them protection and advocates, and ensure that they have special circumstances. If they come forward in court, there are statutory defences. There are ways in which they can present their evidence in court, either by Skype or behind a screen, and there are ways in which their identity can be protected. We are all looking to find these ways. We are working with the Crown Prosecution Service and the Director of Public Prosecutions and finding out what they need to do the job that we are asking of them: to increase the number of prosecutions so that there are fewer victims of these cases.
I turn to a few of the examples that were raised. I want to underscore the simple argument that I made at the outset. My noble friend Lady Doocey asked about children who are exploited or forced to beg, and this point was also raised by the noble Baroness, Lady Kennedy. The amount of money that can be secured through this is extraordinary. One can see why that crime, heinous though it is, is being committed in such an evil way by organised criminals. If a child is used for begging, this could constitute child cruelty contrary to Section 1 of the Children and Young Persons Act 1933. This offence is committed when a person with responsibility for a child aged under 16 wilfully ill treats or neglects them, and it is punishable by up to 10 years’ imprisonment.
Another example that was given was the exploitation offence of a child being used for benefit fraud. If a child was trafficked for benefit fraud, that benefit fraud would be a relevant exploitation and this would constitute an offence under the Bill. It could form part of a slavery and servitude provision, to which we have already referred. If trafficking was not involved, someone who used a child to obtain benefits would be found guilty of an offence under the Fraud Act 2006 and would be liable to a maximum penalty of 10 years’ imprisonment.
Herein lies another point of which we are conscious, as the Director of Public Prosecutions and the Crown Prosecution Service certainly are too. This is that because we are now increasing the maximum sentence from 14 years to life imprisonment, there is clearly a variation between the types of appalling treatment of children we are seeing. We need to consider whether trying to prosecute somebody who has exploited a child for benefit fraud under that type of clause would lead to the conviction that we all want. I am not arguing that this is happening, but the Crown Prosecution Service tells us that it could potentially happen. My noble friend Lady Doocey mentioned children being brought into the UK from so-called baby farms, which is another heinous activity. However, this practice would involve illegal adoption, which is prohibited under the Adoption and Children Act 2002.
We have said all the way through this that there are many offences, and many avenues that are available for prosecutors to pursue. However, we all acknowledge that, at present, prosecutions are not happening to the level that we want to see. To return to the point made by several noble Lords, that is why we need to increase awareness of the problems that are happening. We are seeing that happen through television advertisements and, not least, through the publicity that has been given to the proceedings in your Lordships’ House. It is also happening through the excellent work of NGOs and charity groups outside your Lordships’ House. These groups are drawing attention to the fact that this crime actually happens here, which was the title of the Centre for Social Justice report that started people thinking about this term of “modern slavery”.
The argument is not that the law is deficient in remedies or provisions that can lead to prosecution but that we need to encourage the police and responsible authorities to bring such prosecutions. Page 13 of the report on the national referral mechanism highlighted where the referrals came from. I was shocked to see that the proportion of cases coming from local authorities, which are often the first to come into contact or suspect that there might be an issue, was very low—at 9%. Non-governmental organisations, the work of many of which has been referred to, were responsible for referring 21% of cases, with the police referring 25% of cases. An Independent Anti-Slavery Commissioner who would carry weight and gravitas and understand the issue, and who could make sure that all authorities were fully aware of their responsibility and of the warning signs to look for in child exploitation, would seem to me the right track to head down.
I am not saying that we are at this point ruling out a new offence in perpetuity or even in the very short term. We have said that we will go back to the Crown Prosecution Service, the DPP and the National Crime Agency, which is taking an increasing lead in this area, and say, “Listen, what is your experience? Does this need to be tightened? Does it need to be strengthened? Can you bring forward the prosecutions?”. We will try to get that review undertaken before Report, so that, should my noble friend wish to come to your Lordships’ House at that point, we might have more information available.
The new clause proposed by my noble friend Lord James in his Amendment 29 seeks to address behaviour related to the movement of children where there is no parental or guardian consent for doing so. I recognise that there are a number of scenarios where a child could be removed and placed in residence away from their parent or guardian without their consent, and not always with the apparently beneficial effect that my noble friend referred to in his father’s case. The Bill focuses on the high-harm crime of human trafficking, where a person is moved with a view to exploiting them. In cases where a child has been moved without the consent of parents or guardian, but where there was no intent to exploit the child, the individual who has moved the child may be charged with illegal adoption, immigration offences or kidnapping, depending on the facts of the case.
We want to keep these matters very much under review. We have questions based on the availability of evidence and still have some time between now and Report to review that. We will continue to be open to that and will look forward to looking at it again at that point. In the mean time, I ask my noble friend to consider withdrawing her amendment at this stage.
Baroness Kennedy of Cradley
My Lords, before the Minister sits down, perhaps I may seek clarification on one point. One of the reasons for introducing the Modern Slavery Bill was a desire to have in one place all the offences that relate to slavery and servitude. In his response to the gaps identified by the noble Baroness, Lady Doocey, he referred to other Acts—which are therefore not in the same place. If the objective of the Bill was to get clarity and to put all the legislation in one place, is that not a strong argument for the review and for separate offences? From the Minister’s answer, it sounded like the gaps identified are not covered by the Bill.
Lord Bates
It is an argument not so much for the amendment as for the Bill. The argument for the Bill bringing together in one place all the offences relating to modern slavery, trafficking and exploitation is something with which we all agree. We are discussing whether there should be a specific child exploitation offence, which, as the noble and learned Baroness, Lady Butler-Sloss, highlighted, raises particular issues in relation to the Bill, but the whole purpose of the Bill is very much what my noble friend seeks, which is to bring the offences into one place, to provide one strategy and then to make sure that those who are responsible get out there and go after the people who commit these appalling crimes.
Lord James of Blackheath
I am prepared not to press my amendment provided that the Minister can confirm to me that he is satisfied—he may do it outside this meeting if he will—that the moral hazard of allowing any form of institution to sweep away the flotsam and jetsam by sending them abroad is outlawed by this Bill.
Lord Bates
Yes, I would be happy to do that. Perhaps the best way of doing so would be in writing to my noble friend. My noble friend has done a service to the Committee by reminding us of this country’s dark history regarding certain aspects of child exploitation, and it behoves us to have an element of humility when we look at other countries in that regard. I am happy to undertake to write to my noble friend.
Baroness Doocey
My Lords, I am very grateful to all noble Lords for their contributions to this debate. It is an emotive topic, which absolutely everyone around the Committee wants to get right. We are all on the same side; this is not a question of one person versus another.
I feel strongly that we need a child exploitation clause. I have no doubt about that but will deal with a couple of points. The Minister gave an example of where the CPS had prosecuted somebody who was begging. I can give the Minister a number of examples where the CPS has not prosecuted in the case of begging, because it was advised that it was not possible to do so. The Minister also said that bringing babies into this country from baby farms with a view to illegal adoption would, under our laws, be illegal. I do not think that anyone would disagree with that, but you would have to find the people who had adopted those children illegally, and unless you did, how on earth could you prosecute them? We need to stop it happening. The Minister also said that it would be necessary to encourage the police to prosecute, but I worked with the Metropolitan Police for eight years and do not believe that they need any encouragement to prosecute. What they need are the tools of their trade in order to do so.
I certainly would not consider trying to argue points of law with the noble and learned Baroness, Lady Butler-Sloss, and other noble and learned legal eagles, because I do not know the law. However, what I do know is that every single NGO that works on the ground with children says that what we have at the moment is not working. In this Bill, we have a cut-and-paste from lots of other Bills, putting it all in one place. But there is a major gap in the lack of a child exploitation clause, because it is not possible to prosecute somebody for exploiting a child under the Bill unless you can also prove that they were trafficked with a view to exploitation.
Lord Alton of Liverpool (CB)
Before the noble Baroness goes any further, I wish to reinforce the point that she made. She referred to the work that she has done with the Metropolitan Police. I suspect that she will have seen the debate in another place that took place on 4 September. I will cite the quotation given during that debate from a chief inspector of the Metropolitan Police who pointed out the flaws of the current proposals from a prosecution perspective. These were his words:
“If I was reading this from a lay perspective, I would not read into this Bill that a child begging, or using children to obtain fraud which is to their detriment, or putting a child out on the street to steal for sometimes 12 to 18 hours a day is trafficking and exploitation”.
Is that not the main thrust of the argument of the noble Baroness and why, between now and Report, we need to take very seriously the amendment that she has moved?
Baroness Doocey
I am grateful to the noble Lord, Lord Alton, for that interjection, which is very timely and demonstrates clearly the points I am trying to make. The other important point is that almost every senior barrister working on these prosecutions, whether advising the CPS or the police, takes the view that it is absolutely vital to have a separate child exploitation clause. Therefore, I am pleased that the Minister has said that the Government are willing to see more evidence, which we will make sure is provided, and to look again at this, because I have absolutely no doubt that we need it as a matter of urgency. How many times have we heard about a major scandal, where we then have a major investigation and hear lessons have been learnt, only to find a couple of months later that something very similar happens? Lessons are not learnt. Let us legislate to make sure not just that there is the corporate memory that is needed but that we can actually prosecute people for this.
Baroness Howarth of Breckland
Is the noble Baroness absolutely convinced—because she sounds as though she is—that simply having a new law on the statute book will change this? We have a plethora of laws on the statute book at the moment and children languish in situations of neglect and exploitation—a range of different situations—simply because there is poor practice, a lack of resources and a total lack of understanding. Does she really believe—she probably does but needs to convince me—that another statute will actually change all that?
Baroness Doocey
Yes, the answer is that I do. The reason I do is because everyone who works with children and works in this field on a daily basis, and whose job or life is about trying to deal with child exploitation, believes that it will make an enormous difference. Therefore, I have no need to be convinced because I am utterly convinced. However, having listened to the Minister say that the Government are listening and are perhaps willing to moderate what they are going to do, I am happy to beg leave to withdraw the amendment.
NHS: Five Year Forward View
(10 years ago)
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The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I shall now repeat a Statement made earlier this afternoon by my right honourable friend the Secretary of State for Health about the NHS. The Statement is as follows.
“I wish today to make a Statement about the future of our NHS, one that I hope everyone in this House will welcome. In October, NHS England and its partner organisations published an ambitious Five Year Forward View that was welcomed across the political divide. Today, I will announce how the Government plan to implement that vision.
Our response has four pillars. The first pillar is to ensure that we have an economy that can pay for the growing costs of our NHS and social care system: a strong NHS needs a strong economy. Some have suggested that the way to fund extra cost pressures is through new taxes, including on people’s homes. However, through prudent economic policies, the Government can today announce additional NHS funding in the Autumn Statement without the need for a tax on homes. The funding includes £1.7 billion to support and modernise the delivery of front-line care, and £1 billion of funding over four years for investment in new primary care infrastructure. That is all possible because under this Government we have become the fastest growing economy in the G7.
The NHS itself can contribute to that strong economy in a number of ways. It is helping people with mental health conditions to get back to work by offering talking therapies to 100,000 more people every year than four years ago. But the NHS can also attract jobs to the UK by playing a pivotal role in our life sciences industry. We have already attracted £3.5 billion of investment and 11,000 jobs in the past three years, as well as announcing plans to be the first country in the world to decode 100,000 research-ready whole genomes. Today, I want to go further by announcing that we are establishing the Genomics England Clinical Interpretation Partnership to bring together external researchers with NHS clinical teams to interpret genomic information so that we go further and faster in developing diagnostics, treatments and therapies for rarer diseases and cancers. Too often, people with such diseases have suffered horribly because it is not economic to invest in finding treatments. We want the UK to lead the world in using genetic sequencing to unlock cures that have previously been beyond our reach.
The second pillar of our plan is to change the models of care to be more suited for an ageing population, where growing numbers of vulnerable older people need support to live better at home with long-term conditions like dementia, diabetes and arthritis. To do that, we need to focus on prevention as much as cure, helping people to stay healthy without allowing illnesses to deteriorate to the point where they need expensive hospital treatment. Some have argued that to do that we need to make clinical commissioning groups part of local government and force GPs to work for hospital groups. Because this would amount to a top-down reorganisation, we reject this approach. We have listened to people in the NHS who say that more than anything the NHS wants structural stability going forward, and, even if others do not, we will heed that message.
We have already made good progress in improving out-of-hospital care. This year, all those aged 75 and over have been given a named GP responsible for their care, something that was abolished by the previous Government. From next year, not just over-75s but everyone will get named GPs. Some 3.5 million people already benefit from our introduction of evening and weekend GP appointments, which will progressively become available to the whole population by 2020. The better care fund is merging the health and social care systems to provide joined-up care for our most vulnerable patients. Alongside that, the Government have legislated, for the first time ever, on parity of esteem between physical and mental health. To deliver world class community care, we will need much better physical infrastructure. Today, I can announce a £1 billion investment fund in primary and community care facilities over the next four years. This will pay for new surgeries and community care facilities in the places where people most want them: near their own homes and families. These new primary care facilities will also be encouraged to join up closely with local jobcentres, social services and other community services.
Additionally, from the £1.7 billion revenue funding we are also announcing, we will make £200 million available to pilot the new models of care set out in the Five Year Forward View. To deliver these new models, we will need to support the new clinical commissioning groups in taking responsibility, with partners, for the entire health and care needs of their local populations. So as well as commissioning secondary care, from next year they will be given the opportunity to co-commission primary care, specialist care, social care, through the better care fund and, for the first time, if local areas want to do it, public health. The NHS will therefore take the first steps towards true population health commissioning, with care provided by accountable care organisations.
A strong economy and a focus on prevention are the first two pillars of our plan. The third pillar is to be much better at embracing innovation and eliminating waste. We are making good progress in our ambition for the NHS to be paperless by 2018, and last month the number of A&E departments able to access summary GP records exceeded a third for the first time, while from next spring, everyone will be able to access their own GP record online. However, today, I want to go further: £1.5 billion of the extra £1.7 billion revenue funding will go on additional front-line activity. To access this funding, we will ask hospitals to provide assured plans showing how they will be more efficient and sustainable in the year ahead and deliver their commitment to a paperless NHS by 2018.
We also have to face the reality that the NHS has often been too slow to adopt and spread innovation. Sometimes this is because the people buying healthcare have not had the information to see how much smart purchasing can help contain costs, so from next year CCGs will be asked to collect improved financial information, including per-patient costings.
The best way to encourage investment in innovation is a stable financial environment, so I can today announce that the Government, in collaboration with NHS England, will give local authorities and clinical commissioning groups indicative multiyear budgets as soon as possible after the next spending review. We expect that NHS England and Monitor will follow this by modernising the tariff to set multiyear prices and make the development of year-of-care funding packages easier.
The NHS also needs to be better at controlling costs in areas such as procurement, agency staff, the collection of fees from international visitors and reducing litigation and other costs associated with poor care. I have announced plans in all these areas and we will agree the precise level of savings to be achieved through consultation with NHS partner organisations over the next six months. That will lead to a compact signed up to by the department, its arm’s-length bodies and local NHS organisations, with agreed plans to eliminate waste and allow more resources to be directed to patient care.
The final pillar of our plan is the most important and difficult of all. We can find the money, we can support new models of care, and we can embrace innovation, but if we get the culture wrong, if we fail to nurture dignity, respect and compassionate care for every single NHS patient, we are betraying the values that underpin the work done every day by doctors and nurses throughout the NHS. We have made good progress since the Francis report, with a new CQC inspection regime, six hospitals being turned round after being put into special measures, 5,000 more nurses on our wards, the My NHS website and 4.2 million NHS patients being asked for the first time if they would recommend to others the care they received.
In the next few months, however, we will go further, announcing new measures to improve training in safety for new doctors and nurses, launching a national campaign to reduce sepsis and responding to recommendations made in the follow-up Francis report, tackling issues around whistleblowing and the ability to speak out easily about poor care.
Under this Government, the NHS has, according to the independent Commonwealth Fund, become the top-ranked healthcare system in the world. In 2010, we were seventh for patient-centred care, and we have now moved to top. Under this Government, we have also become the safest healthcare system in the world. But with an ageing population, we face huge challenges.
How we prepare the NHS and social care system to meet those challenges will be the litmus test of this Government’s ambition to make Britain the best country in the world to grow old in. We are determined to pass that test and today’s four-pillar plan will help us to do just that. Our plan will need proper funding, backed by a strong economy, so I welcome yesterday’s comment by Simon Stevens that when it comes to money,
‘the Government has played its part’.
However, we also need ambitious reforms to the way we deliver care, focusing on prevention, innovation and a patient-centred culture that treats every single person with dignity and respect—proper reforms not as a substitute for proper funding but as a condition of it, with a long-term plan for the economy and a long-term plan for the NHS. I commend this Statement to the House”.
My Lords, that concludes the Statement.
Baroness Wheeler (Lab)
My Lords, I thank the Minister for reading out the Statement. This weekend, a 16 year-old girl in need of a hospital bed was held for two days in a police cell because there was not a single bed available for her anywhere in the country. As we have warned before, this is by no means an isolated example. The BBC reported on Friday that seven other people had died recently waiting for mental health beds, and it is not just mental health. Last week, we were told of a stroke patient being ferried to hospital by police on a makeshift stretcher, made from blinds in his house, and who later died. This was one of a number of alarming reports of people waiting hours in pain and distress for ambulances to arrive.
To listen to the Statement today, you would have no idea that any of this is happening. That is the problem. Nothing the Minister has said today will address these pressures ahead of this winter. On mental health, does the Minister not accept that there is an undeniable need to open more beds urgently to stop appalling cases like the one at the weekend? What assessment has he made of the ability of the ambulance service to cope this winter and is there a case for emergency support on top of what has been announced? This Statement offers no help now to an NHS on the brink of its worst winter in years.
However, there is another major problem with the Statement. This weekend’s headlines promised £2 billion extra for the NHS but the small print revealed that it is nothing of the sort. It is interesting to note that the figure of £2 billion has not been used in the Statement today but is what the NHS is being led to believe it is getting. Will the Minister confirm that £700 million of the £1.7 billion that he talked about is not new money but already in his budget? A few weeks ago, his department told the Public Accounts Committee that it expects to overspend this year by half a billion pounds. If this is the case, would the Minister care to tell us where this £700 million is coming from and what services are being cut to pay for it? At the weekend we exposed NHS England’s plans to cut the funding for clinical trials, which would have affected thousands of very poorly patients. Is this one of the planned cuts to pay for this? Will the Minister now guarantee that funding for research and clinical trials will not be cut?
Not only is the £700 million recycled; we gather that another £1 billion will be funded from cuts to other departments. The Institute for Fiscal Studies has warned of “staggeringly big cuts” to local government in the next Parliament. The NHS Confederation has said that:
“If additional NHS funding comes at the expense of tough cuts to local government budgets, this will be a false economy as costs in the NHS will rise”.
Have the Government not learnt the lessons of this Parliament, namely that the NHS cannot be seen in isolation from other services and that cutting social care only leads to extra costs for the NHS?
Figures released on Friday revealed record numbers of older people trapped in hospital because the care was not there for them at home. This is the human consequence of the severe cuts to social care in this Parliament, and it is clear that the Government are preparing to do the same again in the next. Hospital A&Es have now missed the Government’s own target for 71 weeks running. Cancer patients are waiting longer for treatment to start. Everyone is finding it harder and harder to see a GP. Is it not the case that most of what the Government have announced will go to patching up the problems they have created, leaving less than a quarter for the new models of care outlined in the NHS Five Year Forward View? The reality is that what has been announced provides nothing for the NHS now, is not what it seems and, because of that, will not be enough to prevent the NHS tipping into full-blown crisis if the Government are re-elected next year.
It is impossible to see how the Government can find any more for the NHS than this because they have prioritised tax cuts for high earners and have not yet found the money to pay for those. That explains the desperate attempts to inflate these figures and make them sound more than they are. I ask the Minister: is it not the case that, to deliver the Five Year Forward View, the NHS needs truly additional money on the scale that Labour is proposing—an extra £2.5 billion over and above everything that he has promised today—and an ambitious plan for the full integration of health and social care?
The Government have said that they would be the Government who cut the deficit, not the NHS, but it is this Health Secretary who has created a deficit in the NHS and it is because of that deficit that cancer patients are waiting longer, A&E is in crisis and children are being held in police cells, not hospital beds. The reality is that the Statement has nothing of comfort to offer to these patients.
Finally, I want to comment on the terrible irony of the reference in the Statement to the Government rejecting the top-down reorganisation approach. The Statement says that the Government,
“have listened to people in the NHS who say that more than anything the NHS wants structural stability going forward”.
I am sure that the House would be very pleased to hear how the Government consider their £3 billion, top-down reorganisation has delivered structural stability and whether, with hindsight, the Minister can admit that the money would have been much better spent on improving patient care.
Earl Howe
My Lords, I normally thank the Opposition spokesmen for their comments, but that was an absurdly negative response, if I may say so. It does the noble Baroness no credit to do that amount of shroud-waving. She knows perfectly well that the case that she has put is grossly overegged. Yes, of course, the NHS is under pressure; we all know that. There is rising demand on a scale that we have never seen, but it ill befits the party opposite, which agrees that more money is needed for the NHS, to take issue with the money that we are announcing today. I would have hoped that she would have welcomed that, but she has not.
I shall answer the noble Baroness’s questions about where the money has come from. We never pretended that the whole £1.95 billion was new money. Some £550 million comes from reprioritised programme work that we have reallocated from the department; £150 comes, similarly from work that NHS England has reprioritised. So the Treasury is providing an additional £1 billion of funding; the department, as I say, is doing its bit; and the Treasury is also providing additional funding of £1 billion over the next four years, to support investment in out-of-hospital infrastructure and facilities. The £700 million that the Treasury is not providing as new money is made up of savings from a number of programmes which come to a natural end in 2014-15. There are back-office savings and there is contingency funding which is no longer needed. These savings have been found without impacting on existing front-line services, so this funding provides a genuinely additional boost to the NHS.
As for the Treasury’s new money, £1 billion from the forex fines will fund the £1 billion fund over four years to invest in out-of-hospital infrastructure, but the Government’s tight financial management has seen departments continue to exceed savings targets. Historical underspends have been quite considerable. The largest were generated by the Ministry of Defence, the Department for Education and the Department for International Development. These underspends demonstrate the Government’s firm grip of the public finances and continued improvements in spending control and financial management. They allow us to be confident in reallocating spending within the overall totals for 2015-16 to priorities in the health service.
The noble Baroness mentioned mental health. We remain committed to investing in mental health services. The Deputy Prime Minister will be making a full announcement soon, outlining how we will invest an additional £45 million on mental health services. As for the current year, to which she also referred, we have already made significant additional funding available for the NHS this year to support winter and system-resilience planning and to tackle long waits for operations. Robust plans are in place to maintain and improve NHS performance through the rest of this year and we are confident that the NHS will live within its budget this year.
The noble Baroness also mentioned social care and the pressures on those services. Through the better care fund we are moving to a position where we see health and social care no longer as separate budgets and services, but rather as the same thing—a position the patient and carer have been in for a number of years. Any investment in the NHS will provide benefit to social care and, as the Five Year Forward View sets out, the NHS will take decisive steps to break down the barriers in how care is provided between health and social care. This funding will help kick-start that.
As for the noble Baroness’s final barb about the Government’s reforms, I put it to her that the NHS is now set fair to work with the system that we have established. In other words, we have established a system that has health and well-being boards looking at the health priorities of a whole area, with clinicians embedded in that prioritisation process, commissioning for the health needs of an area, and public health centred on local authorities, which many regard as its natural home. We have clinical leadership in those clinical commissioning groups, something we did not have before these reforms, and we have saved a packet of money. The noble Baroness referred to the £3 billion cost of the reforms. That figure is fiction, as I am sure she knows because I have said it many times. The gross cost of the reforms was roughly £1.5 billion. During this Parliament, we will be saving, net, £4.9 billion as a result of the reforms, with £1.5 billion recurring year after year. This is a massive boost to front-line capacity in the NHS and nobody should forget that. This was a set of reforms designed to benefit patients and, by that measure, I put it to the House that it has succeeded in spades.
Lord Willis of Knaresborough (LD)
I thank my noble friend for repeating the Statement. I echo the point that, while many of us on all sides of the House may have disagreed with some of the structural changes in the Health and Social Care Act, the last thing the health service wants is another structural reorganisation. The plan by the party opposite to scrap the Health and Social Care Act is a real worry to many professionals. I say to my noble friend that no matter how much money the Chancellor promised today, it will not be enough to meet the demands of a changing healthcare system, where we are seeing, year on year, because of the success of the NHS, people living longer and with lots of different comorbidities.
I have a concern about the Statement. I actually think that Simon Stevens’s report is an excellent report and one that should have united this House rather than dividing us. After all, his pedigree comes from working with the Labour Party on the early reforms in the last Parliament. What really worries me is that neither in Simon Stevens’s report, nor in the Statement, is there a mention of the other crucial element, which is the workforce. The workforce and, indeed, the work of Health Education England, is not even worth a mention in the Statement—yet it is the 500,000 nurses and the 1.4 million care workers who bind the health and care system together and who will deliver the integrated health and social care which all of us in this House want to see.
Will my noble friend make it clear today that no savings will be made by reducing Health Education England’s budget? Will he state clearly that there will be investment in the skills of our staff in order that Simon Stevens’s plan actually works and that we can make it a realisation rather than a hope?
Earl Howe
My noble friend is absolutely right. One of the critical elements of the Five Year Forward View is to ensure that we have the right number of staff with the right qualifications in the right places. While Health Education England is the body charged with ensuring that that happens, it is up to us in government to ensure that there is adequate funding to enable it to do that. I can assure my noble friend that Ministers are very clear that Health Education England should be fully supported to deliver the programme that it has mapped out for itself. That programme is an exciting one. It involves more doctors and nurses in training over the next few years. Our ambition is to see by 2020 an extra 10,000 people working in primary care, for example—and that is only one detail.
As a result of the Government’s reforms to the health service, we have been able to afford a large number of extra posts in front-line care, including doctors and nurses in both primary and secondary care. We have done that by reducing the number of administrators in the system—20,000 fewer than there were in 2010. My noble friend is right to draw attention to this issue; it is one that is very much in our focus.
Lord Liddle (Lab)
My Lords, pursuing the point about the integration of health and social care—I declare an interest as a member of Cumbria County Council—we in Cumbria face a situation where already our budget has gone down by over £100 million, we face another £80-odd million of cuts in the next four years, and this does not take account of the cost of the tax reductions that the Conservative Party is promising. The numbers of staff will have declined by 2,500 from 2010 to 2017, out of a staff of about 8,000. In this situation, it is impossible to protect social care. It is interesting that the Government are promising a longer-term perspective on health funding. Does this perspective apply to social care funding as well? What guarantees are the Government able to give that they will continue to fund local councils adequately in order to meet the rapidly growing demands of social care?
Earl Howe
My Lords, the noble Lord makes a very good point. It is for precisely that reason that we have looked at the mechanism that we have called the Better Care Fund to bring together budgets for health and social care. It will amount in practice to a transfer of funding into social care from the NHS. We are clear that that is the best way in which we can realise the vision that we have set, which is a preventive one for people—in other words, to forestall admissions to hospital.
Local government is feeling the strain—I do not seek to deny that—but so are many other areas of our national life. Up to now, the Better Care Fund aside, we have found an extra £1.1 billion from the NHS budget to bolster local authority budgets, and we are maintaining public health allocations at the same figure as before, so no cuts there. I realise that the strains are considerable and that local authorities are having to find ingenious ways of moving forward, but I am encouraged by the Better Care Fund plans that are coming forward; they look credible and exciting in terms of the quality of care that local authorities are now looking at.
Lord Walton of Detchant (CB)
My Lords, it may be thought inappropriate that someone of my age should comment upon what is called a forward view but which is in fact a five-year plan. Having said that, I have listened carefully to the Statement repeated by the Minister with his characteristic lucidity and authority, and although I have heard many five-year plans discussed by Governments of all parties over the past 66 years since the NHS began, I think that there are features of this one that are quite important, not least the crucial importance of integration between medical and social care. Will the additional funding that the Minister announced be capable of introducing and maintaining a seven-day week in the NHS, in the community and in the hospitals, which has been long awaited? That is a very important point.
I welcome what the Minister said about developments in the training of healthcare professionals; that is a crucial point at this stage in NHS development. I also welcome what he said about developments in biomedicine. In what way are the Government going to be able to handle the many new orphan and ultra-orphan drugs that are now coming on stream for the treatment of rare diseases, as a result of research in the NHS, which are going to be extremely costly? Is this going to be handled by NICE or do the Government have any specific plans regarding that problem?
Earl Howe
My Lords, I thank the noble Lord, Lord Walton, for his welcome of the Statement and indeed of the Five Year Forward View, which I think commanded a great deal of support from many quarters. He asked about the seven-day working plans for the NHS. Part of the Better Care Fund plans involves local areas committing, in one form or another, to seven-day working. Unless we have seven-day working in hospitals, we cannot hope to achieve the smooth and timely discharge of patients. That means a change in approach by a number of professionals. It does not mean that every professional will need to work seven days a week—no one has ever suggested that—but it means a shift in approach by social services, and by consultants in hospitals, in a way that in some areas we have not seen. In other areas this is already happening, and we can build on those models.
On the noble Lord’s question on biomedicine and orphan drugs, he is of course as well informed as he always is on these matters. Orphan drugs, as and when they come forward, can indeed be expensive, particularly if they are termed a stratified medicine applicable to only a narrow cohort of patients. In those instances we will expect NICE to make an assessment of these high-cost, low-volume treatments under its new methodology for those drugs. NICE is already engaged in a number of work streams in those areas. It is right that we take that approach. We have to have some methodology that commands confidence, to ensure that the NHS receives treatments that are not only clinically effective but provide value for money.
Lord Cormack (Con)
My Lords, I thank the Minister and congratulate him on what he has said. However, does he not accept that at the end of five years, welcome though this new injection of money is, there will be even greater demands and greater needs? Will he reflect on the debate introduced last year by the noble Lord, Lord Patel, where almost every speaker from all sides of this House indicated that there is a need for a plurality of funding if our National Health Service is to avoid further problems and disasters? Will he therefore reflect on the wisdom of establishing, with all-party support, a royal commission on the funding of the NHS that can look at everything and rule nothing out? If we are to have a world-class service through this century, we cannot resort to sticking plasters from time to time; we must have a new model of funding.
Earl Howe
My Lords, my noble friend, as ever, has rightly identified the likelihood of greater and greater demands on our health service over the coming years. Certainly, building a non-partisan consensus is something to be desired regarding the way that we fund our health service. Having said that, I can tell my noble friend that there has been no thinking whatever on the part of Ministers to depart from the current model of funding for the NHS. We believe passionately that the NHS should be free at the point of use, regardless of ability to pay. That is one of the core principles on which the NHS has been founded since 1948 and it is paid for out of general taxation. While I take on board my noble friend’s desire to look afresh at this area, I think that we have some way to go before cross-party talks need to take place. We are clear that we can proceed on the current basis.
Lord Davies of Stamford (Lab)
The noble Earl has always taken a very serious attitude towards his ministerial responsibilities and he has just spoken about the desirability of moving to an all-party consensus on health matters. Does he not therefore rather regret, in retrospect, that the Government decided to spin this announcement, leaking it in advance of the Statement in the House of Commons and putting it about that there was £2 billion of new money for the NHS—the implication being that this was the result of more buoyant government revenues because of a higher growth rate? In fact, it is nothing of the kind as the noble Earl has now revealed to the House. It is roughly £1 billion being reallocated within the NHS budget and £1 billion being reallocated from other department budgets, including from defence where there has been underspend, which is very damaging to this country’s interest. Would it not have been better, and easier to develop a consensus in this country—to which the noble Earl quite rightly looks forward—if in fact the Government were slightly more straightforward and candid with the public over announcements of this kind?
Earl Howe
I do not think one can develop a consensus prior to a government Statement—that is probably wishing for the moon. The charge that the noble Lord levels against the Government is also, if I may say so, misplaced. We have never pretended that all the money being announced today is new money. I do not seek to suggest that, as I have already explained. As regards the timing, I think it is standard practice for key elements of the Autumn Statement to be trailed ahead of the formal announcement. However my right honourable friend the Chancellor will confirm everything we have said today in the Autumn Statement on Wednesday, and that is as it should be.
Baroness Masham of Ilton (CB)
My Lords, the Minister has not said anything about specialised units. I declare an interest as president of the Spinal Injuries Association. Spinal units are vitally important when patients need treatment, yet some spinal units have cut the services of physiotherapists and occupational therapists, who are vital for rehabilitation. The answer is always, “It is up to the trusts”. The trusts can be wrong and in this case they are. Can the Minister give an assurance that there will be enough trained doctors, nurses and therapists for the next five years in spinal units?
Earl Howe
My Lords, I will have to take advice about that question. What I can say is that we now have in place a system of workforce planning that is better than its predecessor. I do not think there can ever be such a thing as a perfect system of workforce planning. We now have a national body, Health Education England, that is responsible for making sure that we have adequate numbers of professionals with the right skills. However, we also have local education training boards whose members include representatives from the acute trusts. It is up to those boards to make clear what the requirements are for trained staff and feed those requirements up to Health Education England so that planning over the coming years can be done in a rational and sensible way. I would expect that spinal units should make their case in that fashion so that if there is a need for physiotherapists in spinal units, and those physios are—for any reason—not available, then they will come forward in adequate numbers in years to come.
Lord Patel (CB)
My Lords, the Minister started his Statement by saying that the Government recognise the importance of life sciences in both economic growth and in delivering mental health care. Of course, I would agree with that and I take it from the Statement that the Government therefore have no intention of cutting the budget of either clinical or medical research in the spending review to come. I welcome the suggestion that the Government will recruit more people to decode genetic information. Of course, we will need that if we are to develop better biomarkers or drugs for treatment, but the personalised medicine that would lead to is expensive and the budgets it will require will be far greater that what we have now.
I also welcome the idea that we integrate the care of patients and do not have a demarcation between primary care, community care and hospital care, but the model that he suggested might not quite do that. He might like to reassure us that the model he has in mind is of complete integration of care, otherwise we will not win the battle for better care for people suffering from long-term conditions.
The comment about future budgets requires a greater debate. I have read the review in detail and it is a bold statement to say we can conduct a five-year review of healthcare without any further restructuring. I, for one, do not mind some restructuring if it will lead to better delivery of healthcare.
Earl Howe
I think that the restructuring the Government believe is necessary is the restructuring of the delivery of care and the culture, as the Statement made clear. What we do not think necessary is a restructuring of the architecture of the National Health Service. That has been done and, as I have said, we are set fair for the future. As regards integration, will it be complete integration? “Integration” is a word that is bandied about and it will mean different things in different areas, depending on what is necessary. We are clear that the better care fund plans, for example, which focus on this idea of integration, should most definitely involve the acute sector and social care along with primary and community care, and in many cases other disciplines as well. Pharmacy, for example, has a major part to play in reducing unplanned hospital admissions and I could cite many other professional disciplines. It depends on what each area requires.
I cannot give an answer on the research budget in the next spending review because that spending review will be conducted by the next Government, whoever they will be. Meanwhile, we are clear that the research budget is an absolutely essential part of the NHS’s future ability to provide quality care for patients over the long term. As the noble Lord knows, we have protected that budget during this Parliament.
Modern Slavery Bill
(10 years ago)
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Lord Bates
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
The noble Baroness, Lady Goudie, has caught us slightly on the hop with her amendments, so we have got to government Amendment 13. This is one of a number of amendments I have tabled to ensure that we are clear and consistent in showing that the offences in the Bill are effective for children. The amendment makes clear that the consent of a victim to their travel is irrelevant, regardless of whether they are an adult or a child. This reflects the fact that many adult victims of trafficking believe, for example, that they are travelling into the UK to do a job or for a better life, and so they consent to that travel without knowing the severe abuse which may lie ahead of them. This provision has been in the Bill throughout, but we thought it helpful to spell out that it applies to all people, including children.
I now turn to a number of amendments further on which relate to trafficking. The approach we have taken in the Bill in defining trafficking reflects the same broad approach that has been taken in our legislation since trafficking was first created as an offence here in 2002, an approach that is tried and tested and well understood by law enforcement. I acknowledge the real concerns that defining the offence differently in the Bill would add unnecessary confusion for law enforcement and prosecutors, who understand and use the trafficking offence, when we want them to focus on gaining more convictions in practice. When giving evidence to the Public Bill Committee in another place, the Director of Public Prosecutions highlighted that the offences in the Bill are clearer than the alternatives which the pre-legislative scrutiny committee suggested.
Both alternative approaches to defining trafficking also, probably inadvertently, could make prosecution harder than under the offence as set out in the Bill, because they seek to tie the conduct element of the offence to the specific means set out in the EU directive. There is no requirement for any particular means to be involved in the conduct element of the offence in the Bill or in existing law, so replacing this approach with an exhaustive list which indicates the means through which someone may be trafficked would have a narrower effect than the current provision. I doubt that anyone would want to see that happen. That relates to Amendment 13, which stands in my name. I am happy to respond to other amendments as they are spoken to by other noble Lords. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, I am grateful to the Minister for moving his amendment, which I am happy to support, but I wish to discuss some profound changes in relation to the offence of trafficking and will therefore speak to Amendments 23 and 25. Our opposition to Clause 3 standing part of the Bill is of course consequential on those two amendments.
Amendment 23 aims to delete the current definition of human trafficking and insert a new one based on international definitions, while Amendment 25 would create a separate offence of exploitation to ensure that a conviction can still happen without the element of travel. We have a unique opportunity here to strengthen the law, with a view to protecting victims and to securing more prosecutions. The fact there are so few prosecutions shows that the current definitions do not work, although I well understand the view expressed earlier by the noble and learned Lord, Lord Mackay, that the Bill must be a means of prevention, not just a means to more prosecutions.
I do not understand why the Government have decided, as the noble Baroness, Lady Doocey, said earlier, to copy and paste existing offences into this new Bill. If the offences have not worked in the past, I do not believe that they will work after the Bill has been enacted. At Second Reading, various examples were given by my noble friend Lord Tunnicliffe—more have been given today—of perpetrators who should have been prosecuted but who were either not prosecuted or prosecuted for lesser offences. In the discussion on the last group, the Minister said that we must not make it more difficult to secure prosecutions, which of course I agree with, that we need to increase awareness, which is absolutely right, and that we need more training, which I certainly agree with. Given that in debates on other Bills we have talked about the need for training, but it has simply not happened, I wonder whether in due course we should make certain sorts of training mandatory. However, that is for another day. Notwithstanding those facts, even if there were increased awareness and better training, it would not be enough, although I note that the noble Lord will have further discussions with the DPP and CPS between now and Report.
Baroness Hamwee (LD)
My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.
However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.
Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.
The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.
I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.
I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.
I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.
I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.
Baroness Butler-Sloss (CB)
The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.
We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.
Lord Deben (Con)
My Lords, I want to underline what the noble and learned Baroness has just said for a particular reason. The Government have been keen on saying that, in accepting the European arrest warrant, they want to make clear that they will not allow it to be used for offences committed in other countries which are not offences here. In those circumstances it is most important that we get the offences here right in parallel with what is an offence in another country. It is that point which I think the noble and learned Baroness has put her finger on and it is that which we have to get right.
I question the Government’s view on the restriction of the European arrest warrant. However, if they want to do that, they have to make sure that we do not find ourselves in a position where we have ill defined a particular offence so that it does not operate in the way we would like it to do in any complementary legislation in other countries. I hope that my noble friend will consider this suggestion very carefully, probably not at this moment, but between now and the next stage of the Bill, as it is worth trying to get this matter right.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will comment on a slightly wider point and back up my noble friend on the definitions of trafficking and exploitation. She spoke about the benefits of having stronger definitions of trafficking and exploitation and referred to the comment of the noble and learned Lord, Lord Mackay, that stronger definitions could lead to the prevention of trafficking and exploitation. I will add that a benefit of having clear and strong definitions is in the identification of trafficking. Here I am talking specifically about identification when one is in court.
As noble Lords may know, I sit as a magistrate in both adult and youth courts. I have sat in youth courts on quite a few occasions where a young person has been brought in for either pickpocketing or shoplifting and a man is sat at the back of the court who we are told is the young person’s uncle. We have received training on what to do when our suspicions are raised with regard to the status of the person sitting at the back of the court, who is there supposedly in the interests of the youth appearing before it.
I know that the YOTs, the probation service and the police have also received training on this matter. It is important that we have clear identification and that the courts can act quickly when they think this issue is being raised, because when one is actually going through the court process, one does not have very long to identify potential victims of either trafficking or exploitation. Therefore, it is important that this definition is as clear as possible and is well known by the various agencies that deal with young people—and not so young people—who may have been trafficked.
Lord Bates
My Lords, I thank the noble Baroness, Lady Royall, for speaking to the amendment and, as is so often the case, expressing sentiments and views which are shared on all sides of the Committee. It is perhaps not unusual that we are rehearsing some of the general principles discussed on previous groups of amendments. It is interesting to note that paragraph 2.3 at page 15 of the Modern Slavery Strategy document underscores the point made by the noble and learned Baroness, Lady Butler-Sloss. It states:
“However, we also know that a high number of victims are UK nationals, including children. Not all victims of modern slavery are trafficked across the border. We know that the internal trafficking of victims to other parts of the country takes place, and other forms of modern slavery take place that involve no movement of the victim at all”.
My noble friend Lord Deben made a very interesting point. We want to see the Palermo Protocol used as a basis for harmonisation. The Palermo Protocol sets out an international definition of trafficking in persons as,
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
That definition is relevant to the point made by my noble friend Lady Hamwee. She asked about a particular set of circumstances. I will look at that case study. Case studies are extremely helpful in this world, because they provide us with an opportunity to explore the options. All case studies will be matters for the police, the Crown Prosecution Service and ultimately the courts to adjudicate on. I would certainly have thought that the individual to whom she referred would, at a minimum, be caught by Clause 4, “Committing offence with intent to commit offence under section 2”. It states:
“A person commits an offence under this section if the person commits any offence with the intention of committing an offence under section 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section)”.
I will be happy to come back to this and look further at it, but that is my initial thought in relation to that question.
I turn to the specifics of the amendment and some of the questions which were raised. The alternative trafficking offence set out in Amendment 23 also removes the reference to travel. I fully appreciate the intention behind the amendments. However, I am confident that the language used in Clause 2 is already entirely consistent with the EU directive—the point made by my noble friend Lord Deben. The offence of arranging or facilitating the travel of another person with a view to exploitation includes all the ways through which human trafficking may be committed, as set out in the Palermo Protocol and EU directive, to which I have already referred. Those international instruments are explicitly concerned with human trafficking. The serious evil they rightly identify is trafficking and clearly trafficking involves some element of movement or travel of the victim.
The noble and learned Baroness, Lady Butler-Sloss, referred to Clause 2. I must pay tribute to her incredible sharpness of mind, despite her having flown in from sub-Saharan Africa and arrived at something like 5.30 this morning. I just got the train down from Newcastle and I have to say that I am feeling a little bit groggy. I think that probably reflects the difference in mental capacity between the two of us, but we will carry on. In Clause 2, we have already responded to concerns during pre-legislative scrutiny and made clear on the face of the Bill that a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words which are used in the protocol.
The noble Baroness, Lady Royall, asked specifically whether we needed a general exploitation offence, because forced begging is not covered in the offences of the Bill. Forced begging is an offence under Clause 1 as it amounts to forced or compulsory labour and therefore our view is that it would be caught by that.
My noble friend Lady Hamwee asked whether the trafficking offence covers incitement of the victim to travel to a particular location, which was the example that was given. The trafficking offence can cover inciting a victim to travel somewhere with a view to exploiting them—for example, the perpetrator telling a victim to meet them at a particular time and in a particular place with a view to exploiting the victim. There is no requirement that the perpetrator physically moves the victim. Any kind of arranging or facilitating their travel is enough.
In the case of grooming a victim for use in prostitution or for rape, as in my noble friend’s example, then telling the victim to meet them at a hotel—to hang out, as she asked—would certainly be covered by the trafficking offence. Inciting a victim for prostitution is a form of exploitation under Clause 3 and such conduct is an offence under Part 1 of the Sexual Offences Act 2003. As I referred to from the strategy document, any arranging or facilitating a victim’s travel, including travel within the UK, for that purpose will amount to an offence under Clause 2.
My noble friend also asked whether the trafficking offence covers all the acts proscribed in Article 2.1 of the EU trafficking directive. The UK is fully compliant with all our international obligations in relation to human trafficking, including in relation to the EU directive. It is not inconsistent with the international instruments to retain the concept of travel in the offence. Our offences, ever since they were created, have had that element. The international instruments are explicitly concerned with human trafficking. The evil that we are trying to tackle is trafficking and clearly trafficking involves some element of movement and travel of the victim. Following pre-legislative scrutiny, we took the opportunity to make clear in Clause 2(3) that a person may,
“arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”.
The words reflect those used in Article 2.1 of the EU directive. Therefore, we do not think that there is a need for a specific reference to Article 2, as suggested by the noble Baroness.
Baroness Royall of Blaisdon
I believe that the noble Lord’s amendment will come before mine in the pecking order. I want to make two points. Of course, I hear what he says about the views of the DPP, but a huge number of lawyers and other people involved in the system are looking at these issues, including charities and various organisations. They are all deeply concerned that notwithstanding the fact that we have this plethora of laws at the moment, as was said at Second Reading, the UK Human Trafficking Centre last year identified 2,744 victims of trafficking, including 600 children. Yet, since the introduction of that offence there have been no prosecutions when the victim was a child, and there have been very few prosecutions at all. I agree with the noble Lord that awareness training is terribly important but there must be something wrong with the current offences if they cannot be used to prosecute people who are perpetrating the most evil of crimes. Therefore, I ask him to look at this again.
In relation to the definition of trafficking, I listened carefully to what the noble Lord said, but it would be very good if he could respond on Report to the points made by the noble and learned Baroness, Lady Butler-Sloss. I still think that there is something missing, and it is not in the Bill that we are absolutely in tune with our European partners. That needs to be on the face of the Bill. I would be content with that in terms of human trafficking but I certainly want to come back to the issue of an offence. We have to do something about getting more prosecutions for these heinous crimes.
Baroness Hamwee
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Baroness Hamwee
The Minister used the term “incitement”. That is why I picked it up.
Lord Bates
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.
Lord Hylton
“Access to employment tribunals
It shall be an offence to deny access to an employment tribunal to a person entering the United Kingdom on a visa restricting the person to a single employer.”
Lord Hylton (CB)
My Lords, I will refer briefly to Amendment 94, to which I have added my name. That goes to the root of the problems of foreign domestic workers in the United Kingdom. Amendments 28 and 95, which are both in my name, and in this group, try to improve the nuts and bolts of the situation as it presently is here.
I submit that it is a fundamental right of all employees in this country, whether citizens, residents or visitors, to have access to an employment tribunal if they have serious complaints about working conditions or pay. At Second Reading I raised the cases of foreign domestic workers whose visas tie them to a single named employer. They are usually resident on the employer’s premises and are thus wide open to exploitation. In too many cases, their passports are removed and they are confined to the house or allowed out only under close escort. In such circumstances, they cannot get essential legal advice and they cannot reach a tribunal. The result is that serious exploitation, maltreatment and non-payment of wages go unpunished.
I detailed at Second Reading some of the abuses recorded over many years and I will not repeat them now. Since then I have heard nothing from the Home Office about better protection and remedies. I have therefore tabled Amendment 28 to make it an offence to deny access to a tribunal to anyone on a restricted visa. Perhaps the proposed offence should be wider still. It may be that I should have specified penalties for summary trial and on indictment. That is something to which we can come back at a later stage. Meanwhile. I commend the amendment.
I should also speak to Amendment 95 in this group, which also relates to something I said at Second Reading. There have been a few cases where embassies or foreign diplomats have failed to observe best practice in relation to their domestic workers, who are often recruited overseas. Some cases may not have reached legal decision, and in others, enforcement may have failed—in both categories because of diplomatic immunity. In my understanding, such immunity is given for the protection of diplomatic functions and not as a cover for employment malpractice. I was therefore encouraged to read in the Irish Times of 26 November that an employment appeals tribunal in Dublin awarded €80,000 each to three Filipino women against an ambassador and his wife. The women had been paid less than the national minimum and their conditions were described as “horrific”. If this can be done in Ireland, it should be possible here.
Lord Rosser (Lab)
My Lords, the noble Lord, Lord Hylton, has undoubtedly drawn attention, as he did at Second Reading, to the abuse of people who are under tied visa arrangements. We await with interest the Government’s response to the points that he has made. We are associated with Amendment 94, which will be debated much later, to which the noble Lord, Lord Hylton, has added his name, along with the noble Baroness, Lady Cox, and the noble Lord, Lord Alton of Liverpool, as well as my noble friend Lady Royall of Blaisdon. The amendment seeks to insert a new clause entitled “Protection from slavery for overseas domestic workers”, which would enable such workers to change their employment and not remain under the tied visa arrangements. That is the goal that we, and perhaps the noble Lord, Lord Hylton, and others, seek to achieve. Amendment 94 will be debated later. For the moment, we await the Government’s response to the two amendments to which the noble Lord has spoken.
Lord Alton of Liverpool (CB)
My Lords, I would very much like to support my noble friend Lord Hylton, and I follow the noble Lord, Lord Rosser, in his support for Amendments 28 and 95. The noble Lord, Lord Rosser, has rightly reminded us that when we get to Amendment 94 there will be a chance to have a wider debate about the whole question of the overseas domestic worker visa.
Many of us would say that the subject of denying someone the right to go to an employment tribunal—that is what my noble friend’s Amendment 28 specifically deals with—is a sort of curtain-raiser to the debate that will come later. Enabling migrant domestic workers to change employer, to apply to renew their visa annually if in full-time employment, and to have the right to go to an employment tribunal, would be a significant step towards preventing abuses against migrant domestic workers, including forced labour for their employers, and would enable them to seek redress without fearing deportation from the United Kingdom.
My noble friend Lord Hylton has a long and honourable record of raising this question for all the years that I have been in your Lordships’ House, so it comes as no surprise to me that he has tabled these amendments. He is not, of course, alone in raising this question. Amnesty International UK, the Anti Trafficking and Labour Exploitation Unit, the Anti-Trafficking Monitoring Group, Human Rights Watch, the Immigration Law Practitioners’ Association, Kalayaan and Liberty are among those who support moves in this direction.
Evidence since the introduction of the tied ODW visa in 2012 demonstrates how the current tied visa system facilitates the abuse of migrant domestic workers in the UK and therefore undermines the objectives of this timely and very welcome Bill and the Government’s efforts to fight modern slavery. Because of its deleterious effects, the 2012 decision, whether it was made wittingly or otherwise, is something we need to return to in the course of our deliberations, to see what we can do about it.
The Joint Committee on the draft Modern Slavery Bill identified the 2012 policy as having,
“unintentionally strengthened the hand of the slave master against the victim of slavery”,
and said:
“Tying migrant domestic workers to their employer institutionalises their abuse”.
The Joint Committee on Human Rights reported that it,
“regards the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers, particularly as the pre-2012 regime had been cited internationally as good practice, and recommends that the Bill be amended to reverse the relevant changes to the Immigration Rules and to reinstate the pre-2012 protections in the Bill”.
We have heard a great deal already today about the importance of having what my noble and learned friend Lady Butler-Sloss described earlier as flagship legislation. I know that it is the Government’s wish that this should be seen as an international gold standard piece of legislation that others will be able to imitate, and that they hope it would be capable of implementation worldwide. But that is in doubt unless we put right this defect that was incorporated into our legislation. I recognise that it may not be possible to do that today, but I hope that when the noble Baroness replies to the debate she will indicate to my noble friend that we will continue to discuss this issue to see what we can do to remedy something that was done in 2012 and has, wittingly or unwittingly, brought about these consequences. One of those consequences is, as is highlighted in Amendment 28, that people are prevented from having access to employment tribunals.
Baroness Hamwee
My Lords, one of the things that has struck me in our discussions about the rights of overseas domestic workers is the importance of enabling them to enforce their rights. That is what the amendment aims to do. This should not need saying, but it has come through to me very strongly that we need to give people the tools and make sure that they are available.
The Earl of Sandwich (CB)
My Lords, I have been trying to think of the adjectives that would best describe my noble friend’s amendment, and I have come up with “reasonable”, “ingenious” and “brave”. It is reasonable because we all feel indignation about this issue; there is no question about that. It is ingenious because I think my noble friend is anticipating the result of Amendment 94. We must not be drawn into that today, but it will be interesting to see whether this presents a way out for the Minister in relation to Amendment 94; I hope it does not. The amendment is brave because my noble friend is trying to tackle the question of diplomatic immunity. I think that the Government would like to do that on many fronts at the moment. My noble friend is to be commended.
Finally, I have to say that the Bill does nothing to release domestic servants from their bondage. They are, fundamentally, in this Bill, so I do not know—the Minister may like to reflect on this—why this category has somehow been left out or gone unnoticed. We will wait and see how the Bill can correct the situation at a later stage—but this amendment is a very clever alternative.
Baroness Garden of Frognal (LD)
My Lords, I am grateful to the noble Lord for tabling these amendments, and I echo the comments about his distinguished record on such matters. I thank, too, the noble Lords, Lord Rosser and Lord Alton, my noble friend Lady Hamwee and the noble Earl, Lord Sandwich, for their comments.
These amendments raise the important issues of ensuring equal access to employment tribunals, and of diplomatic and state immunity, with particular reference to overseas domestic workers. I welcome the opportunity to reaffirm the Government’s commitment to protecting individuals who have come to work in the UK as overseas domestic workers—or indeed in any other capacity —who, while they are here, are subjected to abuse. I know that Members of the Committee feel strongly about this. The Government share the commitment to ensure that no individual in this country is subjected to abuse and exploitation.
Holding anyone in modern slavery is totally unacceptable. Overseas domestic workers, like anyone else, deserve protection from modern slavery, as well as support and help if abuse takes place. The Government intend that the Bill should give that protection to all victims, regardless of who they are, why they are in the UK and for whom they are working. This intention must none the less take account of this country’s existing international obligations, and I will address the point concerning immunity in a moment.
The Committee will wish to know that overseas domestic workers, in common with any other employee in the UK—irrespective of whether they can switch employers or not—already have the right to access employment tribunals and the courts, where the tribunal or the court has jurisdiction.
Perhaps I may turn to the new clauses tabled by the noble Lord. Amendment 28 would create an offence where a person whose visa restricts them to a single employer is not permitted to access an employment tribunal. Employees and workers in this country, including people from overseas who are working legally in Great Britain, are entitled to the rights and protections of our employment law. If those rights are breached, the individual can bring a claim to the employment tribunal. Access to employment tribunals is a matter of law and it is for the tribunal to decide whether it has jurisdiction. An employer therefore cannot dictate whether someone working for them can bring a claim, as this is not in the employer’s control. They also cannot decide when the tribunal has jurisdiction to process the claim, so the offence created by Amendment 28 is unnecessary and would have no impact on employers. Where diplomatic or state immunity applies, this operates in relation to the offence, so it would also have no effect.
The Government take seriously the ability of individuals to access the justice to which they are entitled and fully support the aims that the noble Lord is trying to achieve. I can reassure the Committee that the current system of dealing with complaints in relation to employment rights is generally available to those legally working in the country. Noble Lords may be interested to know that we are currently trialling a system at Heathrow Terminal 5 whereby employees are handed a card about knowing their rights, and with numbers to call. We shall be monitoring how helpful and effective the trial proves to be.
The effect of Amendment 95 would be to disapply state immunity in respect of the enforcement of judgments against diplomatic missions where the judgment is made under the proposed Act. I noted the noble Earl’s comment that the words, “reasonable”, “ingenious” and “brave”, might be applied to this amendment. Immunity from jurisdiction is a well established principle of customary international law. The fact that this is a principle of customary international law means that the UK is bound by it. The aim of the amendment appears to be to remove in certain circumstances the immunity from enforcement jurisdiction. This could put the UK in breach of international law, and I do not believe that that is the intention of the noble Lord. The Committee will understand the need carefully to consider the implications of this amendment.
It may be helpful to explain the role that diplomatic immunity plays in cases of alleged mistreatment of overseas domestic workers and the measures that are in place to deal with such allegations. Diplomatic immunity is an important part of a package of principles within the Vienna Convention on Diplomatic Relations that are designed not to benefit individuals, but rather to ensure the efficient performance of the functions of diplomatic missions. They provide diplomats with necessary protections from the authorities in the receiving state to enable them to carry out their functions effectively. They work on the basis of reciprocity, and if UK diplomats are to be protected overseas, it is important that the UK respects the law of immunity as regards diplomats serving here. The Vienna Convention on Diplomatic Relations requires all diplomats to respect the laws and regulations of the receiving state. This applies to the terms and conditions of employment for all domestic staff, which employers have to agree with their workers in accordance with a prescribed template before the worker applies for an overseas domestic worker visa to come to the UK.
The Foreign and Commonwealth Office treats any allegation of mistreatment of domestic workers in diplomatic households very seriously. Few such allegations are brought to the FCO’s attention by the police, and when they are, the FCO liaises as necessary with the relevant diplomatic mission, UK Visas and Immigration and the UK Border Force to work for an appropriate response. If an allegation of mistreatment requires further investigation by the police, the FCO will request from the diplomatic mission concerned on behalf of the police a waiver of the diplomat’s immunity, and failure to provide a waiver may result in the FCO demanding the immediate withdrawal of the diplomat. It is not appropriate to seek to impede the operation of or amend the State Immunity Act 1978 or the Diplomatic Privileges Act 1964 through the creation of criminal offences or exceptions in the Modern Slavery Bill without reference to the underlying legal obligations they reflect.
Overseas domestic workers should feel confident that if they are abused while they are in the UK, they can come to the authorities and will be treated and supported as victims. However, I do not believe that these amendments would add to the existing protections, or that they are appropriate having regard to our existing international obligations. I am confident that the current legislation covering employment, the measures in this Bill and the measures the Government are looking at to enhance protections for overseas domestic workers represent the best way of tackling any abuse of such workers. We are working to see that they are implemented. Given this response, I hope that the noble Lord will feel free to withdraw his amendment.
Lord Hylton
My Lords, I am extremely grateful to the four noble Lords who have spoken in favour of my first and, to some extent, the second amendment. I think I can reasonably claim that Amendment 28 has received support from all around the Committee. I was glad to hear from the Government that they believe that overseas domestic workers on short-term visas deserve protection. However, I fail to see how the Bill increases any protection, which at the moment is to a very large extent lacking. Will Clause 3(2) give additional grounds for prosecuting those who exploit and abuse their domestic staff?
Further to that, the noble Baroness referred to the card that is supposed to be given to overseas domestic workers before they leave a foreign country to come here. While that may be helpful to some extent, particularly if the card spells out what the minimum wage levels are in this country, it would be stronger still if a model contract was in existence. This is a point on which I have already written to the noble Lord, Lord Bates. A model contract would give both the employer and the employee a much better idea of what we expect to happen when they both come to Britain.
If the Government could give me some encouragement that it would be possible to have a meeting on these subjects between now and Report, I would be somewhat readier and more willing to withdraw the amendment.
Baroness Garden of Frognal
Perhaps I may say to the noble Lord that, yes, indeed, a further meeting would certainly be possible. The card that is handed out states what the minimum wage should be and that workers should have a written contract of terms and conditions. Moreover, there are emergency numbers that can be called. These are elements of information which should be helpful, but obviously the question then is getting workers themselves into a position where they are able to access and implement the information.
Lord Hylton
My Lords, it would be a great help to everyone concerned if there could be a model contract, but with the encouragement I have been given by the Government, I beg leave to withdraw the amendment.
Electoral Conduct
(10 years ago)
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Lord Alderdice
To ask Her Majesty’s Government what is their assessment of the Report of the All-Party Parliamentary Inquiry into Electoral Conduct, and its various recommendations.
Lord Alderdice (LD)
My Lords, as a result of the Fixed-term Parliaments Act, we know that it will be five months until the next Westminster election. Those of us who observe the culture and feel of politics also know that this election will find immigration as one of the top priorities and concerns of the voters and therefore of the political parties. When there is this degree of polarisation in politics, not just in this country but much more widely, one cannot but be concerned that the conduct of the next election may not particularly distinguish politics in this country. That is because of the possibility that, in the conduct of the election, some of those involved—whether in newer or more traditional political parties—might expose many of our people to unseemly conduct, behaviour and remarks. It therefore seemed to me appropriate to ask Her Majesty’s Government what their response is to the All-Party Parliamentary Inquiry into Electoral Conduct, which was chaired by Labour’s Natascha Engel MP, chair of the Backbench Business Committee in the other place.
It may be helpful to your Lordships’ House if I reprise the history of this report. Back in 2005, John Mann, the chair of the All-Party Parliamentary Group against Antisemitism, commissioned a report on anti-Semitism in elections, because there had been a number of complaints. The report was produced in 2006. There were some 35 recommendations. In particular, the report suggested that the Electoral Commission should draw up a contract of acceptable behaviour outlining the duty of all election candidates to exercise due care when addressing issues such as racism, community relations and minorities during political campaigning. In the Government’s 2007 response to that inquiry, they advised that the matter was one for the Electoral Commission. However, in its submission to the inquiry, the Electoral Commission advised the panel that it believed that codes beyond the reach of the law were unenforceable. The committee essentially concurred with this.
As time went on, John Mann was increasingly frustrated by the lack of action on the basis of that report. It was clear that there was reason to be worried about racism, sexism, homophobia and discrimination against candidates on the basis of their mental health. He commissioned an inquiry that would go much more widely into all aspects of electoral conduct where these matters might arise. I declare an interest, as one of the Members of your Lordships’ House who took part in that inquiry. It had participation from across our parties in the two Houses. Its aim was to investigate electoral conduct with a focus on discriminatory behaviour, to assess current rules, to uncover models of good practice and to make recommendations for change. At all times, we were explicitly clear that we did not seek to inhibit freedom of speech. The report included 11 obvious and self-evident basic principles for free speech in campaigning, which drew heavily on the report of my noble friend Lord Lester of Herne Hill, Political Speech and Race Relations in a Liberal Democracy, produced in the early 1990s. Its principles still stand.
The response to our call for evidence was strong. We secured 50 responses from a wide range of concerned parties including, but not limited to, domestic and international elections agencies, the police, academics, trade unions, councils, elected officials, community groups and leading NGOs. We held two oral evidence sessions. At these we heard disturbing stories of racism from former Minister Parmjit Dhanda and the honourable Member for Ilford North, Lee Scott MP. We also heard from political parties including UKIP, the SDLP and the Liberal Democrats. In fact, all the political parties represented in Parliament, with the exception of Respect, submitted evidence.
When our report was published in October 2013, it received public praise from the Speaker, the Prime Minister, the Deputy Prime Minister, the President of the Liberal Democrats, the Chairman of the Conservative Party, the General Secretary of the Labour Party and key stakeholders. So there was a good deal of encouragement, but it seems to me that it is now time to ask Her Majesty’s Government what their response is.
There were four main areas, the first of which was policing, regulation and the law. The response from the Association of Chief Police Officers was extremely positive. It already had a strong set of plans and a good programme and it wrote to advise that it would be implementing nearly all our recommendations. However, we found that, while in many ways there was sufficient legal provision to address incidents of racism and discrimination in UK elections, the law was underused or, perhaps in some situations, misunderstood. We recommended that some of the language of electoral law might be updated. We were advised by the Law Commission that it was undertaking a consultation on such a change. It wrote to tell us that our recommendations would help in the design of its consultation. It would be helpful if my noble friend the Minister could indicate whether the Law Commission has made any representations to the Government.
The Commission for Racial Equality had been very helpful in producing guidance and demystifying the law in the past, but the successor body, the Equality and Human Rights Commission, had perhaps been less impressive in that regard. However, at our urging a meeting was held between the Minister, Helen Grant, the EHRC and the committee chair Natascha Engel. The Minister said that an application for funding from the EHRC would be carefully considered, because the EHRC had said that it would have to access a project fund if it was to be able to take forward work on electoral conduct and on a guide for local authorities, as that was outside its core business plan. It would be helpful if my noble friend could update us on the progress of that bid and any consultations that there have been.
Press and advertising are another key element of the problem. We addressed concerns about discrimination in the media, having heard evidence of homophobia, racism and anti-Semitism. Under the former Press Complaints Commission code, if a group of, for example, Muslims was subject to alleged discrimination, an individual from that group would be required to complain under clause 1—accuracy—of the code and not under the relevant part on discrimination. The committee saw this as illogical and outdated. Since the inquiry, we have made representations to the Editors’ Code of Practice Committee. At the end of September, we were told that updating the code would be a key priority for the newly formed Independent Press Standards Organisation. We believe that attempts to secure a sensible balance between the defence of freedom of expression and the protection from discrimination should be possible. It would be helpful if my noble friend could reassure me that Ministers will reiterate these concerns to IPSO.
Another concern is the development of new communications media, which enables broadcasting on the internet, and, of course, the use of Facebook, Twitter and so on. This is a challenge for us all and the issue was raised by the Committee on Standards in Public Life. I declare an interest as a member of the Committee on Standards in Public Life. In its 13th report, Command Paper 8208, on party funding, the committee expressed a concern about the impact of new media that went beyond the question of funding. Do the Government have any thoughts on this issue?
The key agents in elections are the political parties themselves. In order to ensure that there is appropriate behaviour, a draft framework has been put together for the parties. We will continue to seek cross-party agreement. This is something with a historic precedent. In the 1990s, the three major parties at that time agreed a compact on how they would behave, which was subsequently extended to the nationalist parties. Now, however, we are in a situation where there are even more parties which are significant in the electoral process and which may be considered significant in this matter. If my noble friend the Minister could take back the group’s shared, cross-party desire for a draft framework agreed by the various parties, and for the Government to encourage the parties to reach such an agreement, it would be most welcome.
Finally, we registered a concern, which was also mentioned by the Committee on Standards in Public Life in its report, that non-party campaigning groups may become an increasingly significant aspect of elections in this country, as they have in the United States of America. The Committee on Standards in Public Life was looking at this question particularly in terms of party funding, but we believe that the ability of parties to depend on third parties to behave in a way that would not direct opprobrium and guilt towards the official party but would nevertheless be inappropriate behaviour is a significant dilemma. We would welcome an indication from my noble friend the Minister as to whether this is an issue that the Government are also monitoring and addressing in the upcoming elections. It is timely for the Government, having had the report for about a year, to now give us a response. In view of the upcoming election, such a response would be very welcome.
Lord Lexden (Con)
My Lords, I can hardly conceive of circumstances in which I would find myself seriously at odds with my noble friend Lord Alderdice. No one has a fuller understanding than my noble friend of the situation in Northern Ireland and of how stability can be preserved there. I almost invariably agree with his views on the affairs of the Province, in which I take a particular interest, and I am largely at one with my noble friend again this evening.
The report before us is a formidable document, based on wide inquiry and careful research. It is all the more persuasive because it does not overstate the problems with which it is concerned. In paragraph 9, for example, the report makes it clear that,
“the UK is not out of step with international good practice. Taking a wider view, the UK is also performing well in a European and global context”.
The report’s introduction emphasises the overwhelming importance of preserving free speech. It endorses the fine description of free speech produced some years ago by my noble friend Lord Lester of Herne Hill, to which my noble friend Lord Alderdice referred. The report reminds us that,
“free speech must not be misused in the name of political freedom or prejudice and intolerance as a political weapon to instigate hatred”.
The report is a balanced and measured document, which keeps the issues of discrimination and racism in proportion but rightly recalls some truly dreadful incidents, to which my noble friend has already referred, that have occurred at recent elections. They remind us that everything possible must be done to diminish the possibility of similar occurrences in future. No one should be satisfied with anything other than the highest standards of electoral conduct in all parts of our country.
Of course, that expectation is a comparatively modern phenomenon in British electoral history. Until the late 19th century, rowdiness, riot and rudeness were the chief characteristics of British elections. Disraeli had to endure unbridled anti-Semitism in the 1830s and 1840s before he became the representative of the comparatively well behaved and courteous electors of Buckinghamshire, although he rather enjoyed answering back his would-be tormentors from the hustings.
The days of uncontrolled misconduct are firmly over and none mourn their passing. Nevertheless, elections are and will always remain highly charged occasions in which strong feelings will be vigorously expressed, often in indecorous language. The report fully accepts that. Its aim is to prevent the kind of crude, base insults and racial intolerance which have on some recent occasions inflicted appalling distress on candidates and their families, undermined good community relations and damaged the reputation of British democracy. Now the very rapid expansion of social media, particularly since the last election, creates new and formidable challenges, to which my noble friend Lord Alderdice also referred.
In those respects, the coming election—now just a few months away—will be a testing time. We need to consider strengthening our arrangements to guard against the extreme campaigning, to which the report refers in paragraph 38, which has the potential to “fracture communities”. The recommendations it makes to try to avoid such an eventuality require the most careful consideration by the Government and political parties.
It is more than a little disquieting to find in the report considerable disappointment with the Equality and Human Rights Commission. In the report’s summary, it is described as having,
“neglected its responsibilities and lost some of the good practices carried out under its former guise as the Commission for Racial Equality”.
There are more strong words of criticism in paragraph 23 of the report. The report’s first and most important recommendation is that,
“the EHRC produce a plan for engaging in work on electoral conduct and specifically that it continues to update and issue the election toolkit which embodied good practice, providing clarity in what can be complex legal and procedural matters”.
In other words, the all-party inquiry is very strongly of the view that the EHRC should do at the next election what its predecessor body did in the past.
Since the report was published, those involved with the all-party inquiry have continued to express concern about the approach of the EHRC. Critics give the impression that in the absence of the kind of EHRC initiative they believe to be necessary, standards of electoral conduct may be seriously impaired. But there are some who seem to take the view that the role of the EHRC has been largely superseded by the Electoral Commission. This is an issue that needs to be clarified and resolved.
Clear codes of conduct, such as that produced by the Electoral Commission and agreed with the Statutory Parliamentary Parties Panel, have in the past few years come to occupy a significant place in the arrangements designed to combat discrimination and racism. The political parties produce internal codes of their own. The report contains a number of proposals to secure more effective enforcement of those codes through training, disciplinary action and other means, such as a common framework accepted by all parties for reporting discrimination during elections.
The list of recommendations directed at the political parties is a long one and perhaps there is a danger of seeking an unduly elaborate set of requirements. It is hardly realistic, for example, to imagine that party officials would be able to vet every single leaflet before it is issued during the coming campaign. What is important and pressing, surely, is that the parties make their codes crystal clear as the election approaches, and explain how they will be enforced.
I have ceased to be involved with the central organisation of the Conservative Party—no longer known as Conservative Central Office but as Conservative Campaign Headquarters. In the tightly organised era of Mr Lynton Crosby, there is unlikely to be any lack of resources to ensure adequate training for candidates and agents or for the enforcement of a rigorous code of conduct. The Conservative Party makes no secret of its intention to mount a hard-fought, remorseless campaign at a time of heightened concern about race relations. That makes it more important to keep standards of conduct high and to bear down heavily on any breaches of them in a manner that commands public confidence. The same, of course, goes for the other parties.
We know that the Electoral Commission’s essential role in this area is much valued by the political parties. The commission is in the process of revising and updating its code of conduct for campaigners. It is a pity, perhaps, that the commission does not seem to have supplied a background briefing note for this debate. It would be hard to overestimate the advantages of having one single code of conduct to which all parties fully subscribe in place of the present plethora of individual party documents. Perhaps the time has now come to consider that. When the inquiry into electoral conduct was announced last year, Mr John Mann MP, the chair of the All-Party Parliamentary Group against Anti-Semitism, said that he hoped to see considered thought given to a transparent, workable and enforceable framework on electoral conduct which can be agreed by the political parties. Surely that is a goal worth striving to achieve.
Lord Rennard (LD)
My Lords, I begin by thanking my noble friend Lord Alderdice—who, as he said, was a member of the all-party inquiry into electoral misconduct—for bringing these issues to the attention of the House as we approach the next general election, as well as local elections in much of England next May. This is therefore a very timely debate.
I was pleased to be able to provide evidence informally to the inquiry, based on my experience of involvement in election campaigns over more than 40 years, since I first became an active member of the Liberal Party as a teenager in the 1970s. I believe that the inquiry raised important issues for debate and action. I also thank John Mann and his assistant Danny Stone, who I met, for their work in initiating this, and also for the earlier report by a cross-party group of MPs concerning anti-Semitism.
The inquiry chaired by Natascha Engel helped to illuminate continuing problems with prejudicial behaviour, such as discriminatory language, in the conduct of our elections. I believe that the most blatant use of discriminatory language by candidates from the major and most established parties in this country is fortunately now very rare. However, all the major parties had severe embarrassment in the past. I remember being personally very deeply unhappy and distressed about the use of the phrase “secure family background” in the Liberal Party leaflet for the Brecon and Radnor by-election of 1985, in which neither of the other two major candidates were married. My late noble friend Richard Livsey had to apologise immediately for a leaflet that he had had no involvement whatever in producing.
When I took overall responsibility for parliamentary by-elections for the Liberal Democrats a few years after this incident, I helped to ensure that we took great care in those campaigns to avoid even the kind of unconscious discriminatory language that could otherwise have slipped through. However, it is not possible for a national party to monitor every leaflet produced at local level. In 1993, I was enraged when some of the literature that my party produced for a council by-election in Tower Hamlets was clearly pandering to racism. It was also clear in that campaign that Labour literature had had the effect of boosting the BNP vote, enabling a BNP councillor to be elected. This controversy led Paddy Ashdown, who was then the leader of my party, to ask my noble friend Lord Lester of Herne Hill to conduct an investigation and to produce a report. I believe that what he said in his report, Political Speech and Race Relations in a Liberal Democracy, was very pertinent to this inquiry. He wrote:
“The right to free and unfettered political speech and debate is fundamental to democracy”.
However, he added the important rider:
“Whilst essential to political speech and public debate, free speech is not an absolute right without limits. Other fundamental values must be of equal value, including the unequivocal commitment to the principles of religious and racial acceptance and cultural diversity in an atmosphere of tolerance and respect”.
This inquiry sought to address the problem of how to deal with people when they go beyond the tolerant norms of society and, often, beyond the scope of what the law can allow in a civilised society, because to do so unfairly demeans others and may incite hatred, or even violence.
One of the most shocking cases of such behaviour that I have come across in recent years was during a council by-election in the London borough of Waltham Forest. One of the sitting Liberal Democrat councillors was in an openly gay relationship, but the Labour candidate in that campaign put around false rumours that he was a paedophile. There were no leaflets, but the rumours were effectively spread by word of mouth. As a result the councillor was harassed, his property was attacked and he lost the election to the candidate who spread the vile rumours.
After the election, some of the truth came out when local residents who were aware of the real facts revealed what they had been told and identified the source of it. The new Labour councillor was prosecuted, convicted and forced to stand down. The Liberal Democrats won the by-election that followed, but by then our shattered ex-councillor had been forced to leave the area. Such legal action will always be rare, and it could not provide proper redress in this case.
I have described this particularly unpleasant incident in order to highlight my belief that the greatest responsibility must be on all the political parties to take sufficient care in their approval of candidates, so that none of them could behave as this particular Labour candidate did. All parties must make it plain to all concerned that such behaviour is not remotely acceptable, that candidates and those working for them should be governed by proper codes of conduct, and that they may also be subject to prosecution.
The point was well made in the inquiry that, while the major parties may have greatly improved their assessment, approval and training of parliamentary candidates, generally they lack the resources to do this sufficiently well at local level. The task of vetting local council candidates is generally done by volunteers. The inquiry report calls for funding from the Equality and Human Rights Commission to provide support, training and guidance to the parties about non-discriminatory campaigning. I believe that it could again undertake some of the useful work that was done by the Commission for Racial Equality, with which I have worked previously.
However, a significant problem is one of resources for the parties themselves. If we are to improve the quality and diversity of candidates standing for public office at all levels, and to ensure that they behave as they should, there is also a case for public funding to assist parties with the tasks of identifying, approving and training candidates at different levels to prevent such problems occurring.
When problems do occur, legal remedies may apply in the most serious cases. Candidates always have the protection of the law in relation to defamation, but legal routes are neither quick nor affordable for most people. Candidates and agents should in future be rather wary after the case brought by my friend Elwyn Watkins against Phil Woolas at the last general election. The election court that met in the Oldham East and Saddleworth constituency after the 2010 general election agreed that false statements had been made by Mr Woolas, who was thereby disqualified from Parliament and a parliamentary by-election took place. The court case revealed that the intention of the then Labour agent—now, I am told, a member of UKIP—had been to,
“make the white folk angry”.
The court was able to obtain and to see the chain of e-mails within the Labour campaign that revealed a blatant attempt to appeal to racism. As a result, an MP was disqualified from public office and the costs to him and the Labour Party may well have been in excess of £1 million.
Serious malpractice therefore still exists, but my own conclusion is that the major responsibility for dealing with it must lie with the political parties. They must make sure that their agents and organisers are fully aware of their responsibilities, both legally and according to appropriate codes of conduct, and that they are subject to party discipline.
As Natascha Engel concluded in the debate on the report in the other place:
“I hope we can foster an atmosphere of fairness so that we fight elections on policy, not on personality or people’s sexual orientation or religious or ethnic background”.—[Official Report, Commons, 7/5/14; col. 102WH.]
The political parties have a responsibility to promote these values. I hope that government and all appropriate independent bodies will work with all the parties and help them to do just that.
Baroness Thornton (Lab)
My Lords, I join other noble Lords in congratulating the noble Lord, Lord Alderdice, on putting down this Question for debate and thank those Members of the House who have taken part in the inquiry and have spoken today.
As we have all agreed, the report that they have produced is an excellent document, and its recommendations give all political parties and the Government issues to reflect on. The need to address the recommendations and conclusions of the inquiry is as urgent as other noble Lords have said, as we are coming up to the general election. As my honourable friend Sharon Hodgson said in the debate in May in the Commons, we support the report’s recommendations.
As noble Lords have said, the inquiry was chaired by my honourable friend Natascha Engel. In addition to the noble Lord, Lord Alderdice, it also included my noble friend Lord Beecham among its members. I was very struck, as were other noble Lords, by some of the things that are in the report. Natascha Engel said in that debate:
“Our inquiry found that people in some areas were not putting their names forward as candidates out of fear for their lives, which happened across the board. Whether the tensions were religious, ethnic or based on their sexuality or gender, we found that people who would have been good candidates for elected office at any level were not putting their names forward”.—[Official Report, Commons, 7/5/14; col. 97WH.]
I think that we would agree that this is unacceptable in a modern UK and a modern, mature democracy.
We can all cite, as did the noble Lord, Lord Rennard—although I notice that he cited only Labour cases—examples of malpractice.
Lord Rennard
I referred also to the Liberal campaigns in the Brecon and Radnor by-election and in Tower Hamlets. I was not being one-sided. I cited examples of bad practice by both my party and the noble Baroness’s.
Baroness Thornton
I accept that rebuke, although I have to say that the noble Lord went into some detail.
I remember being Harriet Harman’s “minder”—as they are called these days—during a by-election in 1982. She was pregnant with her first child, and the Liberal candidate, who is now a Member of your Lordships’ House, used the fact that she was pregnant all the way through the campaign as an argument for her not being fit to be an MP. As we all know, Simon Hughes has apologised for the campaign that was mounted against Peter Tatchell, the gay rights campaigner, during the by-election in Bermondsey. We all have issues that need to be addressed. Even today, none of us can cease to be vigilant as party politicians to ensure that every single word that we utter and every single word that is printed in our name is appropriate.
I say to the noble Lord, Lord Lexden, that, as far as I can tell—and it was certainly what I was taught as a Labour activist and someone who has run lots of elections—that you have the responsibility to make sure that every single word that is published and every single leaflet that is put out in the name of your party is proper and correct, and does not contravene any rules. That is difficult, and people will make mistakes, but there is no doubt where the responsibility for those things lies. It is true that we have a proud history in the UK of fair and free elections with proportionate regulation, and broad agreement that discrimination and racism have no place in society in general, and certainly not in our democratic processes. However, as we all have agreed, we know that racist, homophobic and other discrimination takes place during election campaigns.
The committee produced a series of recommendations and we give our full support to those, tackling, as they do, discrimination as it affects our democratic process. Like other noble Lords, I am puzzled as to why the Equality and Human Rights Commission has to be urged in the way it is being in this report—and by noble Lords—to produce a plan for engaging with electoral conduct, which is clearly an excellent idea. It would pick up on the work carried out by the former CRE. This should be done as a matter of course. It makes sense that the EHRC, the Electoral Commission and the police should work together to make sure that the guidance produced for our elections and election procedures is clear; makes it easy for people who are running elections, particularly in local elections where it is being done by volunteers; makes it clear what our responsibilities are; but also tells everyone how to deal with issues of redress.
Since the political parties’ annual briefing from ACPO and the Electoral Commission focusing on voter fraud takes place, the report is right in asking: why not expand that sort of event to include discrimination? I think the Electoral Commission trialling an online briefing for candidates seems an excellent idea and, where possible, should be integrated into the work political parties are undertaking with their candidates. However, as the report rightly points out, it is new parties, as the noble Lord, Lord Rennard, mentioned, and independent candidates, who are the ones who may not know their responsibilities and what they should or should not say. Of course, parties from a racist background are the ones we need to be particularly wary of and which need to be watched most carefully.
All police forces appoint a single point of contact for matters concerning electoral fraud. This has proved invaluable. Expanding that role and appointing a second officer may be one way to deal with these issues. One of the other issues not referred to in quite the same way in the debate is the code for parties to work within concerning non-broadcast media. While it is the case that generally parties and candidates have behaved responsibly, surely there will be those who have pushed the boundaries. What does the Minister think should happen in those cases?
I turn to new media. We face an election where social media and online campaigning will be present in a way that it never previously has been in our general elections. I remember a few years ago being targeted by the online discussion in our local newspaper in Bradford—I think it was by UKIP, to be honest—in a vile and horrible way. The problem was that the newspaper was not mediating the online discussion properly. When eventually it was pointed out to the editor that they had a responsibility not to allow people to be vilified in this fashion on the website of their newspaper, they took action. Multiply that by hundreds and hundreds of other incidents and I think all noble Lords would agree that we potentially have some very serious problems.
It will take concentrated and co-ordinated action to deal with such issues. I believe the Government have a responsibility to make sure that those things are pulled together. Every single political party has a responsibility, as the noble Lord, Lord Rennard, said, for the behaviour of its own candidates. Certainly in the Labour Party we take this extremely seriously: we have no hesitation in referring people to our disciplinary committee. We carry out the appropriate punishments, including expulsion from the party, and occasionally involve the police. We have no doubt that those are our responsibilities as a political party, but also that we all need to work together to ensure that our free and fair elections continue to be so.
Lord Wallace of Saltaire (LD)
My Lords, we are all aware of the difficulty of distinguishing between free speech, robust campaigning and incorrect and improper speech. I think all noble Lords in the debate have taken part in some fairly robust campaigns. The first campaign I took part in, in 1970, had National Front candidates. To say the least, they stretched the boundaries of acceptable campaigning in a whole range of ways. The Liberals in Huddersfield did our best to stand up to them. We were complimented by our Conservative and Labour counterparts for so doing. They were not quite so explicit but they captured more votes; that is always part of the delicacy of campaigning. We have to remember that the electorate do not solely consist of liberally, openly and tolerantly minded people, which means that the sort of robust campaigning we are talking about often has real appeal and gains great political dividends. When she presented this report in a Commons debate, Natascha Engel said:
“We tried to achieve balance in our report”—[Official Report, Commons, 7/5/14; col. 98WH]—
between “where … robust political campaigning” ends and discrimination begins. That is the problem we all have.
All parties have suffered embarrassing moments, usually from local election candidates and campaigns but sometimes also from parliamentary candidates and campaigns. As has been said in the debate, all parties have done their best to tighten up their procedures: to produce internal codes of conduct and to vet, assess and train their candidates and agents in advance. That does not always succeed and there are occasions when our local representatives slip beneath the standards that we would like. We are also aware that there are parties outside what one might call the consensus of established parties. We are going to have an election in which there will be a large number of candidates from a range of different parties, some of which will not want to accept the current consensus. They will decry what they will call political correctness and wish to be politically incorrect. We are going to have to cope with that when the next election comes along but it is much easier to cope with through the established procedures when conventional methods of campaigning take place, through leaflets and so on.
The new media, all the way from telephone canvassing through to the internet, with Twitter and so on, are much more difficult. In one of the seats where I was campaigning in the last election, I was very conscious that telephone canvassing appeared to be putting out messages that the Liberal Democrats were in favour of uncontrolled immigration into this country. That message was clearly coming back at us in the last week on the doorsteps; it clearly came, I suspect, from a script provided by one of the other parties for telephone canvassing. Of course, that is very difficult to get hold of and when you then move on to social media, we are all familiar with the internet trolls who exist and the dreadfully negative comments that are attached to so many of the media areas that we see. How you get hold of those politically minded internet trolls is, again, going to be very difficult for us all.
The noble Lord, Lord Alderdice, has done us a good favour by raising a range of questions. Let me try and answer the government questions because, of the 30 recommendations in this report, only five were really addressed directly to the Government. Some were directed to the parties themselves; others were to the Law Commission, the EHRC, the Electoral Commission and so on. On the question of issuing a voluntary code of advertising, the Government are certainly prepared actively to encourage political parties themselves to agree such a code. Recommendations 25 and 29 suggest that the requirement for an imprint for parties and non-party campaigners should be extended to incorporate online and other election communications. We are certainly willing to look at that. The Electoral Commission is of course directly responsible for looking at such issues but it will be very complex to devise workable rules that would extend to online materials, let alone in primary legislation. That is part of what we are all going to have to struggle with in this coming campaign.
Recommendation 27 suggests that non-party campaigners in local campaigns should register with the returning officer and submit spending returns. We went through the issue of non-party campaigns on the transparency of lobbying Act. I bear the scars of that Act, during the passage of which a number of non-governmental organisations refused to accept that there were real problems with non-party campaigning groups and that we needed to take a degree of action to limit them, as the Act has now done, in spending limits and in requiring them to retain receipts for expenditure, both nationally and within constituencies.
Recommendation 28 proposes that non-party campaigners be required to maintain a database of election campaign literature to assist the police when accusations of misconduct arise. That would be ideal, although I am not entirely sure that every established political party maintains a correct library of all the leaflets that they have put out.
I now address some of the other issues touched on. There are recommendations to parties on the diversity of candidates—women, the disabled, ethnic minorities. My party has had a particularly worthwhile scheme, led by my noble friend Lady Brinton, who I am happy to say has just been elected our party president, to encourage candidates from those groups. I have no doubt that the other two parties have been doing the same—indeed, the evidence is there in some of those elected last time. It is very important that all the parties—at least, all the three parties—now have clear internal codes and elements of training for candidates and agents.
I turn to the EHRC, which has been criticised. First, the EHRC is not the CRE; it has a more limited remit. Some of the areas where the CRE worked are now being managed by the Electoral Commission and a number of these are matters for the police. We are all aware that there have been concerns that the police, in past election campaigns, have not treated allegations of this sort with sufficient attention. I am very glad that this report has drawn attention to the need for ACPO to pay much more attention to problems of electoral fraud and campaigning of the sort which we have seen evidence of in parts of London and elsewhere in recent years. Certainly, from my limited experience of talking to police in Yorkshire and elsewhere, the police are now more aware of this as a problem, so we hope that there will be greater attention to this in the coming campaign.
The noble Lord, Lord Lexden, suggested that a single code of conduct would be better than a proliferation of different party codes. I have to say, speaking on behalf of the Government, that that is a matter for the parties to agree among themselves. The Government should not interfere too sharply in what parties do among themselves, but it is something we encourage the parties to talk further about. On the question of guidance for campaigners from the Electoral Commission, I say that the Electoral Commission will be publishing its guidance in time for the 2015 election, and the chair of the commission has written to Natascha Engel to say that it will engage with those parties which are not part of the statutory parliamentary parties panel on the form of this guidance. We are all conscious that five, six or seven significant parties will be fighting a wide range of constituencies in the coming election, so we need to engage with a wider number of participants.
The EHRC is now looking at how best to update its guidance on elections for local authorities and other organisations for use in 2015. That is thought to provide the sort of guidance that others have been asking for.
On the question of the role of IPSO, clause 12 of the editors’ code of practice, which is administered by IPSO, deals with discrimination. It is vital that editors adhere to the code at all times, not just in elections, and we look to IPSO to ensure that the code is obeyed by the media during the course of the campaign.
Lastly, I touch on the role of the Law Commission. The commission will be publishing a consultation setting out its proposals for electoral reform early this month, with a report to be published with recommendations in the summer of 2015, which thus will not be of use to us in this coming election but means that we are moving forward for the campaigns after that.
The Government are extremely grateful for this report because it raises a whole set of questions that all parties need to think through. I hope that this conversation will continue and that all those who are consulting on this, with the Electoral Commission and elsewhere, will ensure that the three parties we now refer to in some ways as the established parties, and indeed which UKIP loves to accuse of being the established parties, will draw in others as well—the regional parties, the other national parties—to ensure that we have a robust but clean campaign and do not stretch the boundaries of free speech too far.
Modern Slavery Bill
(10 years ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Young of Hornsey
“Legal liability for the beneficiaries of slavery
(1) The Secretary of State shall within six months of the coming into force of this Act make regulations to ensure that a person benefiting from an offence under section 1 or 2 of this Act committed by a third party shall have committed an offence where—
(a) the third party acted for that person’s benefit, and(b) that person’s lack of supervision or control made possible the committing of the offence by the third party.(2) Regulations under subsection (1) shall be made by statutory instrument and shall not be made unless a draft has been laid before and approved by each House of Parliament.”
Baroness Young of Hornsey (CB)
My Lords, first, I would like to thank Klara Skrivankova from Anti-Slavery International for her work on this issue. The proposed new clause requires the Secretary of State to bring forward measures along the lines set out in EU directive 2011/36/EU on preventing trafficking in human beings, which I mentioned at Second Reading a couple of weeks ago. The amendment is designed to penalise those individuals and companies that benefit from the use of slave labour in their business dealings. The amendment will make clear in the Bill that those businesses that benefit from slavery are legally liable and deemed to have committed an offence if a third party has acted for their benefit and that the third party’s offence was made possible due to a lack of control or supervision on the part of the person.
I shall give an example of what is meant here. In November 2012, the management of Carestel—a former motorway and airport caterer—was condemned by a Belgian court as accessory to the crimes of human trafficking and organised fraud. There were two defendants in the case. One was Charalampos who, as anticipated, did not appear in court. He has been awarded the contract to clean the petrol stations and directly employed the women involved. The other defendant was Carestel, which at the time was a substantial operator of motorway and airport services where the women were working. The conditions under which these eastern European women were employed as lavatory cleaners at petrol stations were all too shockingly familiar. They worked up to 17 hours a day, in appalling conditions and were paid well below the minimum wage at €3 an hour, all of which added up to what the court described as constituting modern slavery. Charalampos was accused of recruiting women on deficient contracts that allowed his company to circumvent Belgian employment laws, but, importantly in the context of this amendment, according to the prosecution he could not have continued his operation without the active co-operation of Carestel. So not only the subcontractor but also the main company was condemned, in spite of the latter’s defence of ignorance and in spite of it claiming not to have had any idea that its cleaners were trafficked and abused.
Of course we have Part 6 of the Bill and the transparency provisions are a good starting point, but without other provisions that would ensure penalties for non-compliance or for continually reporting that a company has made no improvement in its monitoring, it is hard to see how progressive change can be achieved in some businesses. There are no incentives for companies to work to improve conditions in the supply chain and, perhaps more tellingly, no deterrents or any actions that would discourage persistent attempts to thwart the intentions of Part 6. There is an absence of an enforcement mechanism in the transparency clauses too. This provision would reinforce the potential impact of the transparency provision, as would the civil liability clause to which we will come later.
In his letter to noble Lords responding to the issues raised about the Bill at Second Reading, the Minister stated:
“We expect compliance with this measure—
the transparency measure—
“to be driven mainly by consumer, investor and campaigner pressure. If businesses do not provide disclosures which demonstrate real action, it will be evident to both customers and shareholders who will apply pressure to the company to comply or do more”.
That is a fair question to ask of investors, shareholders and campaigners, who are categories of activists, but I am not sure that it is fair or realistic to expect hard-pressed consumers to track down the statements of all the companies that provide them with their goods and services. It would be a particularly onerous task for those who are enduring financial hardship, where their priority is to buy whatever is cheapest. When company executives begin to worry about being held liable, a real shift in attitudes and behaviour will occur.
At Second Reading, many noble Lords referred to the need to strengthen Part 6, which relates to transparency in the supply chain. This amendment would also be a safeguard for businesses that are trying to operate ethically and would give assurance that those that undercut them by drawing unfair advantage through using forced labour can be held liable. It is a measure designed to improve the ways in which we can, to appropriate the words of the Joseph Rowntree Foundation,
“disrupt the business of forced labour”,
and constitutes an effective step towards regulating slavery and forced labour out of the EU. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I welcome this amendment as an opportunity to look at the financial proceeds of this wicked crime. We will deal with this in subsequent groups and amendments, and I have no doubt that we will return to it at various stages on the way through. Amendment 30 allows us to debate how the Modern Slavery Bill will ensure that committing modern slavery offences does not benefit the offenders or third parties who either benefit or look the other way when these crimes are committed. It would place a duty on the Secretary of State to make regulations to ensure that legal persons benefiting from modern slavery offences or whose lack of supervision makes them possible will have committed an offence.
I greatly welcome the opportunity presented by the amendment to debate the role of legal persons, such as companies, in modern slavery. We will return to that subject in more detail—in particular, as the noble Baroness referred to, when we come to the section on supply chains. It is absolutely right that companies who profit from modern slavery can be held responsible, so it is right that the offences in the Bill can be committed by all persons, including legal persons. That means they can be committed by companies provided that the usual legal principles of corporate criminal liability apply. As the noble Baroness mentioned, companies can also be held liable under the civil law —such as negligence and proceeds of crime legislation—where they benefit from modern slavery committed for their benefit. Therefore, companies that make money as a result of modern slavery committed for their benefit can be deprived of those profits and pursued for damages by the victims. Article 5.2 of the EU trafficking directive does not require legal persons to be criminally liable; liability for the commission of offences by third parties that occur as a result of lack of supervision can be criminal, civil or administrative.
We are confident that currently—and under the Modern Slavery Bill—we are fully compliant with the requirements of the trafficking directive around the liability of legal persons. We want to make sure that we recover the ill gotten gains of slave-masters and traffickers. That is why Clause 7 subjects those convicted of slavery and trafficking to the most robust available asset recovery regime. That element of recovery of assets was also a provision of the Serious Crime Bill, part of the Proceeds of Crime Act, and all those provisions will of course apply in the case of modern slavery. It is absolutely vital that modern slavery should be viewed as no different from any other organised criminal activity in that where we can obtain the proceeds of that—so that criminals do not see the profits—and use it to help the victims of these evil crimes, that is what the Government want to do. We are satisfied at this stage that the law provides for that, as currently drafted in the Bill, but we have listened very carefully to what the noble Baroness has said and we will continue to review this in the light of that. Perhaps, therefore, the noble Baroness will feel able to withdraw her amendment.
Baroness Young of Hornsey
I thank the Minister for his reply and I am glad that he also said that this is still open to review. I agree with him that it complies to some extent with what we have to do and with all the other bits of legislation to which he has referred. However, it is a question that goes a bit wider than that and links it to the issue of transparency in the supply chain, which many people feel does not have any teeth—there are no sanctions and no real deterrence embedded in it. So to have something else in the Bill that would make a real statement about that would be very useful. None the less, I am happy to withdraw the amendment.
Lord McColl of Dulwich
“Paying for sexual services
(1) The Sexual Offences Act 2003 is amended as follows.
(2) For section 53A (paying for sexual services of a prostitute subjected to force etc) substitute—
“53A Paying for sexual services of a person
(1) A person (A) commits an offence if A obtains sexual services from a person (B) in exchange for payment—
(a) if the payment is made or promised by A; or(b) if the payment is made or promised by a third party.(2) A person guilty of an offence under this section is liable—
(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 3 on the standard scale, or both;(b) on conviction on indictment to imprisonment for a term not exceeding one year or a fine not exceeding the statutory maximum, or both.(3) For the avoidance of doubt, person B is not guilty of aiding, abetting or counselling the commission of an offence under this section.”
(3) The Secretary of State shall, at least once in every year, publish a strategy, to ensure that a programme of assistance and support is made available to a person who wishes to leave prostitution.”
Lord McColl of Dulwich (Con)
Amendment 31 would make it an offence to pay for the sexual services of a person. This is to address the demand for commercial sex, which feeds the trafficking of individuals, particularly women and girls, into and within the United Kingdom.
Both the Council of Europe convention and the EU directive on trafficking call for states to adopt measures to address the demand for exploitation that fosters trafficking. National referral mechanism statistics clearly demonstrate that since 2009 paid sex has consistently been the most prevalent form of exploitation experienced by victims of trafficking in the United Kingdom. It accounts for around 40% of victims and around 60% of female victims. The National Crime Agency strategic threat assessment of the nature and scale of human trafficking, published in September, reports victims being sexually exploited in brothels, in hotels, on the streets and in private residences. The NCA report is clear that of all forms of trafficking identified in this country, sexual exploitation is the most prevalent.
The Government have taken steps to address the demand for labour exploitation through the supply chains provision—which of course I completely welcome and support—but what are we doing to address the demand for sexual exploitation? In 2009 I supported the introduction of Section 14 of the Policing and Crime Act, which made it an offence to pay for sex with someone who is coerced. This might sound like the perfect solution but it has not worked in practice. Evidence of that was clear from those who contributed to an all-party parliamentary group inquiry, of which I was part, which ran from 2013 to 2014. We published our report in March this year and I encourage noble Lords to review its findings. The number of convictions under this offence has been very low. In 2012-13 there was not a single prosecution or conviction. This offence has not done what we hoped it would do.
In considering the law on prostitution our all-party group heard evidence that a Section 14 offence is complex and difficult to prove, and we concluded:
“There are inadequate deterrents for individuals controlling others in prostitution for gain and for those deriving demand from the sex trade. This promotes the UK as a lucrative destination for trafficking with the purpose of sexual exploitation, both domestically and internationally”.
I for one certainly do not want this country to be considered a lucrative destination for traffickers, and I am sure many noble Lords would agree.
I want to set out why I think Amendment 31 is the best option. In 2009 research in London with 103 men who buy sex, 77% of them agreed that a greater criminal penalty would deter them from purchasing sex, while only 47% said that they would be deterred by being required to attend an educational programme. There is strong international evidence that this offence can work, not only by reducing the instance of prostitution and deterring trafficking but, vitally, by creating a culture change, which is the main contributor to reducing demand.
Lord Browne of Belmont (DUP)
My Lords, I rise to support Amendment 31 tabled by the noble Lord, Lord McColl. First, I must offer my apologies to noble Lords that I was not able to be here for the Second Reading debate.
Trafficking of human beings is the worst form of commodification that there can be. It is a process that views a person as an object to be used to make profit, with no thought to the dignity and humanity of the person being exploited. Perhaps that commodification is expressed most starkly in sexual exploitation where a person’s body is purchased and used for the gratification of the buyer.
It is not sufficient to tackle trafficking and slavery by trying to increase the number of prosecutions for those offences, however vital that is. If we are truly to bring an end to slavery in the 21st century, some 200 years after abolishing legal slavery, we must look to address the root causes. We must not be shy of tackling difficult issues and making bold laws. The connection between prostitution and trafficking is one area where new thinking is required. I commend the noble Lord, Lord McColl, for being bold enough to ask the question of what we will do to reduce the opportunities for traffickers to profit from commercial sexual exploitation.
I should like to focus my comments on some of the arguments that are often made against proposals such as those contained in Amendment 31 and explain why I believe they are unconvincing. The first is the underground thesis. Those who oppose this approach to prostitution law regularly use one particular argument, suggesting that criminalising the purchasing of sexual services could drive prostitution underground, putting prostitutes at risk of harm and making it more difficult for them to seek help. At first sight this idea would be of great concern since the intention of the clause is to protect those in prostitution. However, on closer examination, these fears are not borne out.
First, prostitution can never entirely go underground. It is a system that requires buyers. Without buyers, prostitution will collapse. Therefore, those involved in or who control others in prostitution need to advertise publicly in some way. We already see this in local newspapers or on the internet. However the law changes, this connection with buyers still needs to be made, and if the average client can find an advert for sexual services, then so can the police. This underground argument has also been refuted strongly by the evaluation of the laws in Sweden and Norway.
The next argument that is often put up is concern about the impact on safety. The second part of this opposing argument suggests that it will make prostitution more dangerous. But the truth is that prostitution is already dangerous. Indeed, the Association of Chief Police Officers’ strategic guidance refers to research findings that people in prostitution are 60 to 120 times more likely to be victims of murder than the general population and also experience high levels of rape and physical assault. A paper produced for the Northern Ireland Department of Justice in 2011 states that many women in prostitution in Northern Ireland are subjected to extreme violence. A 2008 prostitution inquiry conducted in Sweden established that the claims made by opponents there about a worsening situation were baseless. Data from Norway show a decrease in severe violence against those in prostitution. The recent evaluation of the Norwegian law states that researchers did,
“not find any evidence of more violence against prostitutes after the ban on buying sex entered into force”.
Many opponents of the Nordic laws promote the decriminalisation model implemented in New Zealand. However, when they do they fail to acknowledge that the official review of that law heard that even five years after removal of all criminal sanctions relating to prostitution of adults, individuals still reported experiencing violence and fear. There is simply no way to get around the fact that prostitution is an inherently violent and harmful activity.
I must say that I agree with the Canadian Justice Minister, Peter MacKay, who said:
“The government does not accept the proposition that prostitution is inevitable and therefore that we must decriminalize and regulate it … On the contrary, the government maintains that prostitution’s inherent harms and dangers would only grow and be exacerbated in a regime that perpetrates and condones the exploitation of vulnerable individuals through legalized prostitution”.
Many critics of this approach have stated that it conflates human trafficking and prostitution which should be kept separate. I do not believe that it is a credible argument that prostitution and trafficking should be treated entirely separately. The fact is that for a significant group of people trafficked into and within this country, the purpose of their trafficking is exploitation through prostitution. Of course, I accept that not all people in prostitution are trafficked, but without addressing the demand that makes it profitable for people to traffic others for prostitution, this trafficking will continue. The laws we have at the moment are not acting as a deterrent. In contrast, in Sweden, which criminalised the purchase of sexual services in 1999, police report that the law acts as,
“a barrier that is preventing human traffickers and pimps from becoming established in Sweden”.
Trafficking statistics show that Sweden has a lower rate of trafficking than other neighbouring countries. Given such statistics, as well as the research cited by the noble Lord, Lord McColl, about the particular vulnerability of the majority of women in prostitution, I think it is an entirely legitimate aim to seek to reduce demand for prostitution.
The Lord Bishop of Derby
My Lords, I, too, would like to support my colleague from the Joint Committee, the noble Lord, Lord McColl, and I associate myself with the comments of the noble Lord, Lord Browne of Belmont. In the context of the Bill, this is to do with supply and demand, as we have heard. I will not repeat it, but it is well known that serious research into the Nordic model shows the effectiveness of this kind of legislation. A strong argument was aired briefly in the other place about the market and people’s freedom to work in ways they choose, but I want to draw briefly on my own experience to explore the myth that prostitution can be simply a marketable form of employment.
I have been involved in work with people engaged in prostitution, as well as those who work with them. It is evident that almost everybody who I have come across or who colleagues work with are pathetic, abused and often drug-centred young women. Earlier this year I came across a Thai woman who was being raped 10 times a day in a brothel in Kensington, not far from here. That is what being able to purchase sex is doing to people. A few weeks ago, I met a woman who said, movingly, that before she managed to escape from prostitution, she used to ask for drugs because the pain of servicing all those people was so intense. She requested drugs, and was supplied with them. Something that has not been said but which ought to be noted in this debate is that a lot of research shows that a high proportion of those who purchase sex from prostitutes are married men. What does that say about our understanding of family and relationships? There is a strong case for taking seriously the proposal of the noble Lord, Lord McColl.
I recognise that there might be some real politics in terms of where the amendment would fit in the Bill and how this kind of legislation might arrive at being effective, but I endorse the amendment because it asks the Government to do some form of review. It would be good to do some research to see whether this kind of legislation would reduce significantly the numbers of those in sexual slavery. Would it reduce the demand that is out there on the streets? Would it reduce the numbers who are trafficked into this country like the poor Thai woman I have just spoken about? She was brought here with the promise of a good job, and then she ended up in the appalling situation of being simply a commodity for people to buy at will. Such a review would gather information from the many people who work with those in the sex trade and could receive comments from the public. We could ask for the views of organisations like the Association of Chief Police Officers, which has been mentioned. There are many people in this area who have experience and who could help us to build up a picture that would show us the outcomes if we proceed in this direction.
The passion that unites noble Lords across the Committee on this Bill is to free victims from being abused and treated like commodities—and, in a sense, such cheap commodities. It would be wonderful if we could at least try to review the effect that this kind of legislation would have. Evidence from other parts of the world shows that when a Government are bold enough to adopt it, it has enormously positive social consequences as well as a massive impact on the evil of sexual trafficking.
Lord Deben (Con)
My Lords, I will refer to what happened in Ipswich on the terrible occasion when the murders of a series of young women hit the headlines. All of them were described in the press as prostitutes. In fact, they would be better described as drug addicts who had fallen into prostitution.
I am not sure that this is the right Bill to make these changes, or that they can be made in these circumstances, but I am sure that we ought to be clear about a different approach to prostitution from that which we have had before. In Victorian days, prostitution was thought to be appalling and the women were blamed. The men were rarely considered to be in any way guilty. The Victorian approach was that men were like that. I hope that we have reached a stage where we understand how wrong that was as an attitude. However, instead, I fear we are moving to the kind of approach that my noble friend Lord McColl pointed to, where other people are treated as things for the gratification of some and for the earning of money by others. That is the real issue and where the problem really lies. I liked the way in which my noble friend presented his amendment because it seems to me that he emphasised, very characteristically, the nature of the human being, the duty that we owe to human beings and the respect which we should have for all, whoever they may be and however unworthy others may think them.
The terrible events of Ipswich concentrated the minds of people locally in a way which has never happened before. It was very interesting to see how people who would historically have dismissed this as one of those things that was nothing to do with them thought much more seriously about the nature of this offence and the way in which it made a statement about our society and how we think of other people. I know that I would not carry the Committee with me if I were to go too far with these comparators, but I must say that I think we live in a society which treats human life in a most disgraceful way. We point at others outside this country and forget what happens here to babies and what we sometimes ask to happen to older people. We are not good at recognising the value of human life nor are we good at recognising that the greatest gift given to any human being is the part that we can play in creation. It is the gift. Therefore we ought to be particularly careful in any circumstances where human beings are not just trafficked but are degraded by those who treat them as if they were not human. That is the issue that we are concerned with tonight.
I do not think that it would be proper to make so sweeping a change in the context of a Bill which has a whole range of other things that it needs to do, but it would be unfortunate if the Government were to complete the debates on this Bill without giving a real undertaking that this issue will be properly investigated and brought back to Parliament so that we can make a proper decision on it. It is a big issue. We are, on this occasion, very much helped by the work that has been done in Scandinavia. We are not in the same position as we have been before. We have seen what happens when steps like this are taken. We should not delay in treating this seriously, but should do it in a proper format. I do not think that this Bill is the proper format, but I do not want the Government to go away saying it is not the proper format, full stop. I want them to say that it is not the proper format but that they will speedily bring legislation in front of this House, after proper consideration, in order that the House and the other place might consider how best to protect people from being treated as things.
Lord Hylton (CB)
My Lords, it has been well worth while staying on after dinner just to listen to a debate of this quality. The noble Lord, Lord McColl, has done a real service in bringing forward this amendment. I thought that his survey of the international scene was masterly.
I can understand that the Government may have reasons for not accepting the amendment as it stands, but I call on the Minister to give some detail about exits from prostitution for those who want to leave it. There must be many such people. In the past, Mr Gladstone was one of those who tried to help people to come out. That has been followed up by voluntary organisations and religious orders, which have provided help and care to those wanting to leave. What are the Government doing to make this easier and how are they enlisting local authorities and other organisations to this end?
Lord Rosser (Lab)
My Lords, our amendment is not as precise in the changes it proposes as the amendment moved by the noble Lord, Lord McColl of Dulwich. Our amendment provides for the Secretary of State to,
“undertake a review of the links between prostitution and human trafficking and sexual exploitation in England and Wales”,
and sets out the issues that must be considered in that review; namely,
“the extent to which the current legislation governing prostitution in England and Wales acts as an effective deterrent to demand for sexual services from exploited persons … the extent to which the current legislation governing prostitution in England and Wales enables effective enforcement action against those trafficking people for sexual exploitation; and … the extent to which alternative legal frameworks for governing prostitution adopted by other countries within the European Union, including Northern Ireland, have been effective at reducing sexual exploitation and the number of people trafficked for the purpose of sexual exploitation”.
Delving into the world of buying and selling sex reveals a complex web of abuse, control, money and power. Last year the Home Office estimated that the trade in the human trafficking of women to be sexually exploited in the United Kingdom was worth at least £130 million. One example was of a woman who came to our country from Uganda to get away from her abusive husband. She was told by a friend that he could find her a job in a catering company. When she arrived, however, she was driven to a house in Manchester, locked in a room, raped, beaten and forced into prostitution. After a few months, she managed to escape.
It has been estimated by the Home Office that 80,000 people in the UK, mainly women and girls, are involved in prostitution. The reality is that there are thousands of women in our country who are living in sexual slavery. They get there by different routes—pimped by people they know or trafficked by organised gangs—and many are extremely vulnerable, having been abused in the past. As the noble Lord, Lord McColl of Dulwich, said, a report published last summer by the Serious Organised Crime Agency showed that sexual exploitation was the most likely type of exploitation for people trafficked into England and Wales. There is growing evidence that many of those in prostitution began to be involved in this work before they were 18 and Home Office research has revealed that approximately 50% of women in prostitution became involved before reaching that age.
The physical and psychological consequences for those exploited through prostitution can be severe. The Journal of Trauma Practice found that once they have become embroiled in the trade, nine out of 10 women report wanting to exit but feel unable to so do. They do not know where to get support or do not believe that other work is available to them. The Home Office’s own figures suggest that more than half of the women involved in prostitution have been victims of rape or sexual assault.
We need to look at how countries elsewhere may have reformed their laws to protect women, developed effective exit strategies, reduced the number of people trafficked for sexual exploitation, reduced violence and reduced the market for buying sex, which traffickers and pimps exploit and from which they profit, as we know. That is why we have put forward this amendment to require the Government to carry out a detailed review, with the ultimate objective of seeking measures to keep more women safe.
Of course, we should not make changes without fully understanding the impact they might have. There are differing views on possible courses of action, as I am sure the noble Lord, Lord Browne of Belmont, would accept. We need to be sure that any changes will not push women into even more vulnerable and dangerous situations, and we need to consult and seek a wide range of views. However, we surely cannot continue as we are. This amendment, with the provision for a review of the links between prostitution, human trafficking and sexual exploitation, seeks to provide a considered and appropriate way forward. I hope it will find favour with the Government.
Baroness Butler-Sloss (CB)
My Lords, I waited until I had heard the noble Lord, Lord Rosser, before expressing any views on these amendments. I entirely understand the admirable motivation behind the proposal made by the noble Lord, Lord McColl, but one has to bear in mind that prostitution is one of the oldest trades over hundreds of years, if not thousands.
Something somewhat similar was proposed in the other place by Fiona Mactaggart MP. I certainly received a large number of e-mails about it from the various associations of women prostitutes. They were very much opposed to the sort of legislation which has now come before this House, although I understand that it is not exactly the same as that which was proposed by Fiona Mactaggart. Having said that, there is undoubtedly a real problem, because some of those who are prostitutes are certainly trafficked.
I recall going to a small town in Holland where, as noble Lords will know, prostitution is legal. I saw women sitting in the windows in what was quite a small town. The curtains were open if they were not working, and they were all on their mobiles talking to the pimps. There is no doubt at all, from what the local mayor told me when he took me round, that he knew that a large proportion of these women were actually trafficked, although they could not tell him that and they were all registered for business purposes, if you can believe that. He arranged for his staff to ask them whether they had come as victims of trafficking, but none of them would say so because they could not afford to do so.
There is a very major problem in this country, as well as in Holland and in other countries. I strongly support the amendment tabled in the name of the noble Lord, Lord Rosser. The time has come to look at prostitution right across the board, but particularly at its impact on women who come into this country—or are already in this country—who are in fact the victims of slavery, and who are not doing this work voluntarily.
Baroness Garden of Frognal (LD)
My Lords, I am most grateful to noble Lords for speaking so eloquently to Amendments 31 and 31A. I am grateful to my noble friend Lord McColl, who has given us the chance to look at this difficult and controversial issue of prostitution law. He highlighted the difficulties of exploitation and, indeed, the work of the APPG. Prostitution raises strong moral and ethical questions, but the Government’s overriding priority in this context is the safety of people involved in it. Existing legislation regarding buying and selling sex is already focused on minimising the harm and exploitation that can be associated with prostitution. Of course, not everyone involved in prostitution has made an independent and free choice to do so. We need the law to protect the vulnerable and punish the perpetrator, but when considering these amendments, we must consider carefully whether we are confident that they support the safety of the people involved in prostitution.
My noble friend set out the approach of Sweden and some neighbouring countries, often referred to as the “Nordic model”, which his amendments seek to emulate. We are also aware of recent legislative developments in Northern Ireland, alluded to by the noble Lord, Lord Browne. We are mindful of the reservations expressed by the Northern Ireland Minister of Justice about the value and effectiveness of this approach. This is of course a devolved matter, so it is for the Northern Ireland Assembly to take the approach that it feels is most appropriate for it, but we know that the Northern Irish Minister of Justice opposed the adoption of the Nordic model for the same reasons that the coalition Government oppose it: it is far from clear that the change would make a vulnerable group safer and may do the opposite. We certainly would not seek to create any unintended consequences that made life more difficult for the people involved in this difficult area. As the noble and learned Baroness, Lady Butler-Sloss, has indicated, submissions received from organisations such as Women Against Rape and the English Collective of Prostitutes have shown that such an approach can encourage the sellers and buyers of sex to operate further out of sight, exposing them to a greater risk of violence.
At this stage, we do not believe that there is sufficient evidence of the value of such significant changes to the legal and moral position of buying sexual services in reducing harm to those involved. We can well understand the principles behind my noble friend’s proposed amendments to the criminal law on prostitution. We have heard from around the Committee strong opposition to all violence against women and a common desire to protect them. However, as regards prostitution, it is important to reflect that there is an alternative view, as expressed by a variety of organisations that represent people involved in it. This challenges the position that all paying for sex is by definition violence. Before legislating, we should have a full debate on these important moral issues, as a number of noble Lords have indicated.
On exiting prostitution, raised by the noble Lords, Lord Hylton and Lord Rosser, the amendment also sets out a requirement to publish an annual strategy for assistance and support to those who wish to leave prostitution and it is absolutely right that they should be supported in doing so. The Policing and Crime Act 2009 took steps to improve the safety and support available for individuals involved in prostitution through the introduction of Section 17 engagement and support orders. That legislation provides the courts with an alternative to fining those convicted of loitering and soliciting: a requirement to attend meetings with a court-appointed supervisor. Engagement and support orders came into force on 1 April 2010. This is deemed to be an effective tool in providing support and access to services that might otherwise be out of reach, including medical care, housing and drug/alcohol dependency programmes. The right reverend Prelate mentioned the connections with other forms of drug and alcohol dependency. This is considered to be a more constructive long-term approach.
Such an approach is fundamental to our focus on minimising the harm that can be associated with prostitution. As such, it is part of our broader approach to violence against women and girls—an action plan that is kept under constant review. We support emphasis being put on supporting those who wish to exit prostitution, but legislation is not necessary to achieve this worthy aim.
Amendment 31A would place an obligation on the Government formally to review any links between prostitution and human trafficking and exploitation, including the legal frameworks around prostitution both here and overseas. Contributions to this debate have emphasised the importance of evidence and consultation. Legislation on this difficult and sensitive topic needs to be approached judiciously to ensure that our shared aim, harm reduction, is being served.
The coalition Government are committed to tackling all forms of violence against women and girls, and are pursuing a range of measures to improve protection, reporting, and prosecution. Our progress is constantly reviewed via the cross-government action plan on violence against women and girls. We are in regular dialogue with the relevant policing leads and the Crown Prosecution Service to ensure that legislation and its enforcement remain as effective as possible.
Lord McColl of Dulwich
I thank everyone for taking part in this splendid debate. The contributions have been outstanding. I am sure that this is not the Bill for putting this into law. However, there is no doubt in my mind that it eventually will become law. The wind of change is blowing through the western world—Sweden, Norway, Iceland, Northern Ireland, the Republic of Ireland, Canada and France. King Canute was not actually trying to keep the tide from coming in; he was trying to show his sycophantic followers that he was unable to do so. I beg leave to withdraw.
Lord Alton of Liverpool
“Proceeds of crime: MSV Fund
(1) The Secretary of State shall by regulations establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4.
(2) The MSV Fund shall receive no less than 50 per cent of any money recovered under a confiscation order.
(3) Subject to subsection (4), the proceeds referred to under subsection (2) shall be distributed by the MSV Fund as follows—
(a) 50 per cent of the proceeds shall be distributed as compensation to the person or persons identified as victims of slavery or victims of human trafficking;(b) 25 per cent of the proceeds shall be distributed to the charities or other organisations listed in the regulations, which provide services, assistance, support and protection to victims of slavery and victims of human trafficking; and(c) 25 per cent of the proceeds shall be distributed to the organisations listed in the regulations, whose purpose is to prevent slavery, servitude and forced or compulsory labour or to help to investigate or prosecute people who commit offences under this Act.(4) For the purposes of any distribution under subsection (3)—
(a) for victims of slavery or victims of human trafficking under paragraph (a), the monies paid—(i) shall be distributed equally between those persons who have been directly identified as the victims of slavery or victims of human trafficking to whom the conviction referred to under subsection (1) relates; and(ii) shall not be reduced or diminished by reference to any other compensation that such person or persons may receive from other sources, (b) for the charities and organisations referred to in paragraphs (b) and (c), the monies paid shall be distributed equally between those charities and organisations.(5) The regulations referred to in subsection (1) shall provide rules determining the composition, management and financial accountability of the MSV Fund together with such other provisions that the Secretary of State may consider necessary for the exercise of its functions.
(6) The Secretary of State must appoint the Commissioner as a member of the management board of the MSV Fund.
(7) Before making any regulations under this section the Secretary of State shall consult such persons as he thinks fit.
(8) Regulations under this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament.
(9) In this section—
“the Assets Recovery Agency” means the Agency referred to in section 1 of the Proceeds of Crime Act 2002;
“the Commissioner” means the Independent Anti-slavery Commissioner appointed under section 40;
“confiscation order” means a confiscation order under section 6 of the Proceeds of Crime Act 2002.”
Lord Alton of Liverpool
My Lords, Amendment 32 stands in my name and that of my noble friends Lady Cox, of Queensbury, and Lord Hylton. I thank them for their support for the amendment. I also thank the Public Bill Office of your Lordships’ House, which gave me a lot of help with the drafting of the amendment. The purpose of the amendment is to give the Secretary of State power by regulation to,
“establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4”.
If the amendment were to be incorporated in the legislation, it would enable the MSV fund to receive,
“no less than 50 per cent of any money recovered under a confiscation order. Subject to subsection (4), the proceeds referred to under subsection (2)”,
would then be distributed by the fund, with 50% of the proceeds given as compensation to victims, 25% distributed to the charities and other organisations listed in the regulations, and 25% distributed to the organisations whose purpose is to prevent slavery. I would have in mind, obviously, the police, but also others such as the Independent Anti-slavery Commissioner.
Modern slavery is very profitable. The International Labour Organization estimates annual profits from slavery to be around $150 billion a year. For example, a child trafficked and forced to pickpocket on the streets of London can, according to Anti-Slavery International, bring traffickers yields of £5,000 to £10,000 every month. Modern slavery is a high-profit, low-risk crime. Most of those involved escape justice and, even where there is a conviction, asset seizure is often considered too late in the process so the perpetrator has had a chance to move their assets elsewhere. Even where confiscation is made as part of the criminal proceedings, compensation is very rarely ordered.
The amendment would address this by bringing confiscation of assets and compensation to the very heart of the Bill and, in doing this, it would be similar to the United States anti-trafficking legislation. Confiscation has the effect of hitting the perpetrators where it hurts and its deterrent effect is potentially more significant than the threat of a long prison sentence, which can easily be avoided by entering a plea bargain. As the average prison sentence for modern slavery offences has been relatively low— around five and a half years—unless the perpetrator is stripped of their assets they can come out of prison and enjoy a luxurious life, while victims continue to suffer.
Restorative justice is also a function of compensation for victims and is the key to this amendment. By awarding damages to the victim, their suffering is acknowledged in a way that convicting the perpetrator rarely achieves. Victims who act as witnesses are of course often re-traumatized in the process. Furthermore, compensation gives victims stability and a chance to rebuild their lives. For example, one victim who was compensated has invested the compensation to pay for university education and is now pursuing a law degree.
I first raised the possibility of using confiscated assets to help victims and deter traffickers in 2002, during the passage of the Proceeds of Crime Bill. I argued that there were simply insufficient resources to adequately address a crime which, too often, was out of sight and out of mind. Yet even then, the United Nations had identified people trafficking as the fastest growing facet of organised crime and the third largest source of profit for organised crime, after the trafficking of drugs and firearms. At the time, the Government admitted:
“At present there is no specific offence of trafficking in human beings and so no data exist about the confiscation of assets of those engaged in this practice”.—[Official Report, 18/6/02; col. WA 70.]
My 2002 amendment called for the proceeds of trafficking to be channelled into the support of victims and the resourcing of a strategy to tackle this scourge at source. Supporting the amendments then and the use of confiscated assets to hit the traffickers where it hurts, the late Lord Wilberforce, a Law Lord and a descendant of William Wilberforce, described trafficking as,
“a pervasive crime committed in all kinds of areas by all kinds of people. It must be dealt with by a great variety of authorities”—
I repeat, a great variety of authorities—
“and police forces all over the country, many of which have no idea of the nature of the crime or the remedies available to deal with it”.—[Official Report, 25/6/02; col. 1225.]
Since 2002, the Government have been persuaded to develop the principle of confiscating assets which have been accumulated through the pursuit of crime. I strongly welcome this but it would help this debate if the Minister could describe what has been the experience of the Proceeds of Crime Act to date. It has been suggested that there may already be as much as £2 billion in uncollected POCA fines, so whether or not there is a dedicated dispersal fund, as the amendment would require, it would be helpful to know how the Government intend to improve the collection rate and what their estimate is of the sums currently outstanding.
Addressing Pope Francis at a Vatican conference on human trafficking held in April this year in Rome the Home Secretary, the right honourable Theresa May MP, said:
“Our efforts must also focus on going after the profits of those involved, and compensating victims with seized assets”.
The Bill itself recognises that the first call on seized assets should be to provide reparation to the victims of the modern slavery offence. Where there are seized funds left over, the Government say that they will benefit criminal justice agencies through the existing asset recovery incentivisation scheme. ARIS has the objective of providing all operational partners who use the asset recovery powers in the Proceeds of Crime Act 2002 with incentives to pursue asset recovery as a contribution to the overall objective of reducing crime and delivering justice. It is not, however, specifically targeted at tackling human trafficking and modern slavery. However, that scheme is not on a statutory footing, although some of the moneys distributed under ARIS are used to fund improvements in asset recovery capabilities and on community projects, and I welcome that. This amendment would create a statutory scheme.
Around £80 million was returned to operational partners from ARIS in 2013-14. The Minister might like to say how much of that money is used specifically to deter and bring to justice the perpetrators of modern slavery. I would also be grateful if he would quantify what he believes will be necessary to fund this ambitious legislation, otherwise it risks becoming yet another declamatory law which sounds good but can make little difference. Will he say how much money will be set aside to support this legislation? We all recall the Climate Change Act 2008, which imposed what was called a “legally binding obligation” for reduction of 80% of greenhouse gas by 2050. It was never made clear how it was to be done, who was to be held to account if this target was not realised and what punishments there would be.
The Child Poverty Act 2010 was not much better, requiring the elimination of child poverty by 2020. If the Bill is not to be added to the list of declamatory legislation which has inadequate resources attached to it to ensure its enforcement, we need to insist on ways of providing adequate resources. Although the Minister says that the Government are unconvinced about the need to ring-fence these assets for this dedicated use, he has indicated his willingness to discuss the amendment and said, in a letter to me:
“There is a great deal of common ground between us on the principles of how seized assets should be used, in terms of using the funds raised to compensate victims and support law enforcement agencies”.
I welcome that greatly.
The Government tend to suggest that the police is the agency which needs to be funded to bring perpetrators to justice. Of course, there is a lot in that argument. However, as the late Lord Wilberforce recognised, a great variety of authorities need to be involved and many, along with the police, are completely underresourced. At Second Reading, I highlighted the position of the Gangmasters Licensing Authority, established in 2006 in the aftermath of the tragic death of 23 Chinese cockle-pickers who died in Morecambe Bay, part of a criminal racket exploiting workers all over England, and estimated to funnel £1 million per day back to China.
In 2013, Professor Gary Craig of Durham University, working with the Wilberforce Institute for the study of Slavery and Emancipation and the Joseph Rowntree Foundation, published Forced Labour in the United Kingdom, a report which specifically said that the GLA was insufficiently resourced. The report found that:
“The scope of the GLA should be extended to cover all sectors using labour providers and greater resources should be available for the GLA to be able to fulfil its role effectively”.
The three-year study draws on data from legal, policy and regulatory bodies and calls for the Government to reconsider some key policies and take a broader view of the problem. The report also found that:
“Monitoring for severe labour exploitation is generally weak and needs to be strengthened”.
Professor Craig, who is professor of community development and social justice, says that workplace enforcement agencies are now doing fewer inspections, becoming focused on only the most serious offences rather than tackling all types of serious labour exploitation. Commenting on the scale of the problem he says:
“Criminal activity of this nature is difficult to monitor, but conservative estimates are that there are currently at least several thousand cases of forced labour in the UK and 880,000 across the European Union”,
and that those trafficked for labour exploitation would soon exceed those trafficked for sexual exploitation.
I turn to the need for public education, something which many noble Lords have raised today and which the Government acknowledge the need for. No one has said how that would be resourced. Professor Craig remarks that there is a “real problem” getting people to acknowledge not only that slavery exists in the UK, but that, as his research suggests, there may be upwards of 10,000 people at any one time in conditions which we would class as modern slavery. I noticed over the weekend that the BBC added another 3,000 to that number.
In addition to recommending the extension of the mandate of the GLA, providing powers of arrest and investigation, Professor Craig argues that the GLA should be able to keep fines to fund its work, adding that the resources directed to the GLA are totally inadequate. If the dedicated fund specified in the amendment were created, it could be used to extend the mandate and work of the GLA and other agencies involved in this most serious of crimes. The Independent Anti-slavery Commissioner, Kevin Hyland, has also said in an interview in the Sunday Times that the resources needed should be raised as a result of using the confiscated assets of funds that have been seized.
Lord Warner (Lab)
My Lords, if I may, for the convenience of the Committee, I will group my Amendment 33 with Amendment 32 as my amendment is meant to help fill the pot that the noble Lord, Lord Alton, wants to distribute. I am sorry that I did not group it at an earlier stage.
My amendment is much less ambitious than the noble Lord’s amendment. It follows on from an amendment that my noble friend Lady Smith moved to the Serious Crime Bill. I was a member of the Joint Committee on the draft Modern Slavery Bill. We were concerned to maximise the confiscation of resources from perpetrators of slavery that could go to help victims much more than had happened in the past. Indeed, the confiscation of criminal assets under SOCA had not been one of the most glorious bits of public administration in this country, as I think was recognised by the Government following a PAC report. Therefore, we need to strengthen this.
I am the first to recognise that the Government went some way towards meeting the recommendations from the Joint Committee in this area and I am very grateful to the Government for moving some way. For example, I am glad that the Government have reduced the legislative requirement for a restraint order from reasonable cause to believe to reasonable suspicion. However, I remain concerned that they have not gone further and accepted the committee’s recommendation to remove the test that there must be a risk of dissipation of assets before action is taken by the prosecutor. Frankly, the advice that the Home Secretary seems to have been getting on this issue is a bit fanciful. The characters we are talking about in this area have a track record of dissipating assets. They move very quickly when it is known that they are going to be charged and prosecuted. I think that hanging on to the idea that they need to be protected from gung-ho prosecutors by actually keeping the intention that they have to show that they will dissipate their assets is rather fanciful. The Government need to look again at that area.
I will not spend very long at this late hour talking about the areas where the Government said they were going to look further at two or three of the other recommendations in paragraph 210 on page 97 of the Joint Committee’s report. Rather than detain the House now, perhaps the Minister could write to us about how things have progressed in those areas that the Government were reviewing further.
What I want to do on this amendment is to persuade the Government that it would be useful to have a consultation to look further at strengthening the arrangements around this very technical area. I understand the difficulties of actually finding technical solutions and I am not someone who is going to try to move complicated technical amendments to the Bill at this late stage in its passage. However, I think the Government need to have another look at this so we can maximise the confiscation of assets to produce the kind of fund that the noble Lord, Lord Alton, is talking about. It is no good having a grand scheme for distribution if there is nothing in the pot to distribute. We have to work a lot harder. The kind of consultation that we are proposing in this amendment is meant to be helpful to the Government so that we can move on and strengthen this area of confiscation to the maximum advantage of victims.
Baroness Butler-Sloss
My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.
Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.
Baroness Hamwee (LD)
My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.
As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.
I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.
On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.
Lord Hylton
My Lords, I foresee that the Government may say that my noble friend’s Amendment 32 is too prescriptive, and that Amendment 33, tabled by the noble Lord, Lord Warner, is only consultative. I hope that they will not dismiss both of them on those kinds of grounds. It would be very helpful if they said to what extent they accept the principle behind them. While doing so, perhaps they could also say how the present law on criminal compensation could interact with these ideas.
Lord Rosser
My Lords, I will be brief in view of the time. It is vital that those who profit from modern slavery crime should know that their ill gotten gains can and will be confiscated, by extending Schedule 2 of the Proceeds of Crime Act 2002 to these serious offences. However, my noble friend Lord Warner has made the case for his amendment, with which I am associated, and for the consultation on a number of questions for which it provides, in the light of the weaknesses in the present arrangements. I will not go into those weaknesses; they were highlighted by my noble friend Lady Smith of Basildon during the debates on the Serious Crime Bill.
Victims of modern slavery should be compensated, but, as my noble friend Lord Warner said, money cannot go to victims if we are not recovering it from the perpetrators of the crimes. We need to strengthen and improve the present legal framework on the recovery of assets and the use of property derived from the proceeds of these crimes. This amendment, with which I am associated, provides for a consultation by the Secretary of State to do just this. I hope that the Government will feel able to give a favourable response.
Lord Bates
My Lords, I am grateful for the amendment moved by the noble Lord, Lord Alton, and grouped with the amendment spoken to by the noble Lord, Lord Warner. In many ways it might be easier if I sum up by taking the amendment of the noble Lord, Lord Warner, first, because it feeds into the principle of—if you like—the hopper, which then comes down to the general fund, which is the subject of the amendment of the noble Lord, Lord Alton.
I shall touch on a few things on the way through. The scale of the proceeds gained through this is widely acknowledged: the noble and learned Baroness, Lady Butler-Sloss, mentioned a figure she found on page 38 of the strategy document that we put out. We used a figure from the ILO, which estimates the global proceeds from this activity at about $150 billion. That equates to something like $34,800 per victim. So the amounts concerned—as we have heard all the way through—are very sizeable, and that is the underlying reason why organised criminals are moving increasingly towards the trafficking of human beings, rather than the drugs, guns and other weapons that we have seen in the past. It is because it is lucrative.
That is why we are absolutely determined that their financial resources—there is a financial motivation—ought to be the target of our activities. As my noble friend Lady Hamwee mentioned, this debate reflects a significant debate that we had on the Serious Crime Bill, where we talked about the process for doing this and inserted a legal test for obtaining such an order to be reasonable cause to believe that the alleged offender has benefited from his criminal conduct. The noble Lord, Lord Warner, was good enough to recognise that that was a step forward. There was a general feeling that if one applied for the restraint order or the freeze early in the proceedings, that could in some cases alert the perpetrators to the fact that there was an imminent investigation, and perhaps arrests, and that some of the jointly held assets might cause that to happen. That is not to say that this is our final position but it is something that we looked at very carefully before coming up with the current proposal.
The recovery regime, which has been strengthened in the Serious Crime Bill—your Lordships’ amendments to which are currently under consideration in another place—is aimed very much at increasing the resources recovered from organised crime. The noble Lord, Lord Alton, asked about the amount of funds that had been recovered. I think that in the order of £746 million worth of criminal assets have been seized across all four means of recovery, which is a record amount. We expect that to increase.
Noble Lords may also be interested to note that paragraph 4.32 of the strategy document states:
“Over £2 million has been recovered from slave drivers and traffickers in the past four years”.
Compared with the amount which has been earned, that is a pitiful and woefully low sum, and is why this legislation is before us to strengthen the law and to ensure that more assets are recovered. How is that to be done? I am not sure whether the noble Lord, Lord Warner, was at the Home Office when the Proceeds of Crime Act 2002 was going through.
Lord Bates
The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.
The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.
I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.
I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.
Baroness Butler-Sloss
Before the noble Lord sits down, I do not want to waste time, and I understand the point that the Minister is making about not alerting a potential trafficker so that he might skip the country, but what you can do, for instance, is get a without notice order in the civil court to freeze the assets and then arrest immediately afterwards. You do not have to alert the trafficker in order to freeze the assets. However, I am not sure that the powers for freezing assets would include people who are traffickers. That is the point that I want to put to the Minister.
Lord Alton of Liverpool
Before the Minister sits down, is he going to reply to my noble and learned friend first, or may I also put a point to him?
Lord Bates
I think that I am probably going to have to reflect on that point and come back to the noble and learned Baroness in writing, certainly before Report.
Lord Alton of Liverpool
I am grateful to the Minister. As a young Member of another place, I was once given the quite good advice always to beware Ministers when they are promising reviews, but in this case the Minister has said that the review is already under way. I am very grateful to him for saying that. He says that it is going to report in December. Will that be in time for us to be able to come back on Report acting on the outcome of the review? What is his estimate of the timetable?
Lord Bates
In the matter of the timetable and in many other matters I am grateful to have the Chief Whip, my noble friend Lord Taylor, on the Bench beside me. He has signalled his assent to the suggestion that this may be something where the report will be published, in all likelihood, before Report. Therefore, there will be an opportunity to revisit it then.
I should also say, as I have found the note, that the current distribution of the scheme provides that 50% of the proceeds go to the Home Office; 18.75% to investigation agencies; 18.75% to prosecution agencies; and 12.5% to HM Courts and Tribunal Service, which enforces the orders. That is the current distribution. I hope that is helpful.
Lord Alton of Liverpool
The noble Lord has been incredibly helpful to the Committee. It is very late and I do not intend to detain the Committee for long now. I simply want to thank my noble and learned friend, and thank the noble Lord, Lord Warner, for putting his argument so effectively. He is right that we have to generate the funds in the first place to provide the pots in order to do the things that the noble Baroness, Lady Hamwee, and my noble friend Lord Hylton all recognise need to be done. Indeed, the Minister himself has recognised that the principle behind this is not a bad one and is worth looking at further. He has engaged with the arguments in his usual courteous and characteristically helpful way. I am extremely grateful to him at this stage. We will see what the review holds and will keep open the possibility of coming back on Report if his noble friend is able to timetable events to ensure that the chronology works out that way. Having said that, I beg leave to withdraw the amendment standing in my name.
Lord Warner
“Recovering the proceeds of crime: consultation
(1) The Secretary of State shall consult on ways to strengthen and improve the legal framework in relation to the recovery and use of property derived from the proceeds of crime, which are recovered under the provisions of section 7.
(2) A consultation under subsection (1) shall include, but not be limited to—
(a) how to strengthen and improve the effectiveness of restraint and confiscation orders and in particular—(i) whether it should remain a condition of making a restraint order that there is a real risk that the defendant will dissipate his or her assets, and, if so, whether the burden should be reversed to require the defendant to show that he or she will not dissipate his or her assets;(ii) whether the costs recoverable by the defendant when an application for a restraint order is denied should be capped at legal aid rates;(iii) whether to provide the court with the power, when making an order, to require the defendant to disclose any interests, including third party interests, in realisable property;(iv) whether the court, when making an order, should be able to require the defendant to return to the United Kingdom any realisable liquid assets overseas;(b) how to improve the effectiveness of the United Kingdom’s mutual legal assistance arrangement with overseas jurisdiction in cases concerning the proceeds of crime; and(c) how to use the recovered proceeds of crime for the victims of modern slavery.(3) A consultation under subsection (1) shall end no later than 1 April 2015.”
Lord Warner
I wish to say briefly that I would like to withdraw Amendment 33 but want to register the point that the track record of confiscating assets from the proceeds of crime has not been a happy one. I want to keep open, until we have seen the review, whether we come back to the issue of a legal framework being looked at again and give the Home Secretary powers to take action if things do not work out as well as they might have done. I particularly want to consider the points made about civil orders by the noble and learned Baroness, Lady Butler-Sloss. There is a package of issues to which we may have to return on Report. Meanwhile, I beg leave to withdraw the amendment.
