Modern Slavery Bill
(9 years, 11 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
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.