(9 years, 5 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Baroness Young of Hornsey
“Legal liability for the beneficiaries of slavery
(1) The Secretary of State shall within six months of the coming into force of this Act make regulations to ensure that a person benefiting from an offence under section 1 or 2 of this Act committed by a third party shall have committed an offence where—
(a) the third party acted for that person’s benefit, and(b) that person’s lack of supervision or control made possible the committing of the offence by the third party.(2) Regulations under subsection (1) shall be made by statutory instrument and shall not be made unless a draft has been laid before and approved by each House of Parliament.”
Baroness Young of Hornsey (CB)
My Lords, first, I would like to thank Klara Skrivankova from Anti-Slavery International for her work on this issue. The proposed new clause requires the Secretary of State to bring forward measures along the lines set out in EU directive 2011/36/EU on preventing trafficking in human beings, which I mentioned at Second Reading a couple of weeks ago. The amendment is designed to penalise those individuals and companies that benefit from the use of slave labour in their business dealings. The amendment will make clear in the Bill that those businesses that benefit from slavery are legally liable and deemed to have committed an offence if a third party has acted for their benefit and that the third party’s offence was made possible due to a lack of control or supervision on the part of the person.
I shall give an example of what is meant here. In November 2012, the management of Carestel—a former motorway and airport caterer—was condemned by a Belgian court as accessory to the crimes of human trafficking and organised fraud. There were two defendants in the case. One was Charalampos who, as anticipated, did not appear in court. He has been awarded the contract to clean the petrol stations and directly employed the women involved. The other defendant was Carestel, which at the time was a substantial operator of motorway and airport services where the women were working. The conditions under which these eastern European women were employed as lavatory cleaners at petrol stations were all too shockingly familiar. They worked up to 17 hours a day, in appalling conditions and were paid well below the minimum wage at €3 an hour, all of which added up to what the court described as constituting modern slavery. Charalampos was accused of recruiting women on deficient contracts that allowed his company to circumvent Belgian employment laws, but, importantly in the context of this amendment, according to the prosecution he could not have continued his operation without the active co-operation of Carestel. So not only the subcontractor but also the main company was condemned, in spite of the latter’s defence of ignorance and in spite of it claiming not to have had any idea that its cleaners were trafficked and abused.
Of course we have Part 6 of the Bill and the transparency provisions are a good starting point, but without other provisions that would ensure penalties for non-compliance or for continually reporting that a company has made no improvement in its monitoring, it is hard to see how progressive change can be achieved in some businesses. There are no incentives for companies to work to improve conditions in the supply chain and, perhaps more tellingly, no deterrents or any actions that would discourage persistent attempts to thwart the intentions of Part 6. There is an absence of an enforcement mechanism in the transparency clauses too. This provision would reinforce the potential impact of the transparency provision, as would the civil liability clause to which we will come later.
In his letter to noble Lords responding to the issues raised about the Bill at Second Reading, the Minister stated:
“We expect compliance with this measure—
the transparency measure—
“to be driven mainly by consumer, investor and campaigner pressure. If businesses do not provide disclosures which demonstrate real action, it will be evident to both customers and shareholders who will apply pressure to the company to comply or do more”.
That is a fair question to ask of investors, shareholders and campaigners, who are categories of activists, but I am not sure that it is fair or realistic to expect hard-pressed consumers to track down the statements of all the companies that provide them with their goods and services. It would be a particularly onerous task for those who are enduring financial hardship, where their priority is to buy whatever is cheapest. When company executives begin to worry about being held liable, a real shift in attitudes and behaviour will occur.
At Second Reading, many noble Lords referred to the need to strengthen Part 6, which relates to transparency in the supply chain. This amendment would also be a safeguard for businesses that are trying to operate ethically and would give assurance that those that undercut them by drawing unfair advantage through using forced labour can be held liable. It is a measure designed to improve the ways in which we can, to appropriate the words of the Joseph Rowntree Foundation,
“disrupt the business of forced labour”,
and constitutes an effective step towards regulating slavery and forced labour out of the EU. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I welcome this amendment as an opportunity to look at the financial proceeds of this wicked crime. We will deal with this in subsequent groups and amendments, and I have no doubt that we will return to it at various stages on the way through. Amendment 30 allows us to debate how the Modern Slavery Bill will ensure that committing modern slavery offences does not benefit the offenders or third parties who either benefit or look the other way when these crimes are committed. It would place a duty on the Secretary of State to make regulations to ensure that legal persons benefiting from modern slavery offences or whose lack of supervision makes them possible will have committed an offence.
I greatly welcome the opportunity presented by the amendment to debate the role of legal persons, such as companies, in modern slavery. We will return to that subject in more detail—in particular, as the noble Baroness referred to, when we come to the section on supply chains. It is absolutely right that companies who profit from modern slavery can be held responsible, so it is right that the offences in the Bill can be committed by all persons, including legal persons. That means they can be committed by companies provided that the usual legal principles of corporate criminal liability apply. As the noble Baroness mentioned, companies can also be held liable under the civil law —such as negligence and proceeds of crime legislation—where they benefit from modern slavery committed for their benefit. Therefore, companies that make money as a result of modern slavery committed for their benefit can be deprived of those profits and pursued for damages by the victims. Article 5.2 of the EU trafficking directive does not require legal persons to be criminally liable; liability for the commission of offences by third parties that occur as a result of lack of supervision can be criminal, civil or administrative.
We are confident that currently—and under the Modern Slavery Bill—we are fully compliant with the requirements of the trafficking directive around the liability of legal persons. We want to make sure that we recover the ill gotten gains of slave-masters and traffickers. That is why Clause 7 subjects those convicted of slavery and trafficking to the most robust available asset recovery regime. That element of recovery of assets was also a provision of the Serious Crime Bill, part of the Proceeds of Crime Act, and all those provisions will of course apply in the case of modern slavery. It is absolutely vital that modern slavery should be viewed as no different from any other organised criminal activity in that where we can obtain the proceeds of that—so that criminals do not see the profits—and use it to help the victims of these evil crimes, that is what the Government want to do. We are satisfied at this stage that the law provides for that, as currently drafted in the Bill, but we have listened very carefully to what the noble Baroness has said and we will continue to review this in the light of that. Perhaps, therefore, the noble Baroness will feel able to withdraw her amendment.
Baroness Young of Hornsey
I thank the Minister for his reply and I am glad that he also said that this is still open to review. I agree with him that it complies to some extent with what we have to do and with all the other bits of legislation to which he has referred. However, it is a question that goes a bit wider than that and links it to the issue of transparency in the supply chain, which many people feel does not have any teeth—there are no sanctions and no real deterrence embedded in it. So to have something else in the Bill that would make a real statement about that would be very useful. None the less, I am happy to withdraw the amendment.
Lord McColl of Dulwich
“Paying for sexual services
(1) The Sexual Offences Act 2003 is amended as follows.
(2) For section 53A (paying for sexual services of a prostitute subjected to force etc) substitute—
“53A Paying for sexual services of a person
(1) A person (A) commits an offence if A obtains sexual services from a person (B) in exchange for payment—
(a) if the payment is made or promised by A; or(b) if the payment is made or promised by a third party.(2) A person guilty of an offence under this section is liable—
(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 3 on the standard scale, or both;(b) on conviction on indictment to imprisonment for a term not exceeding one year or a fine not exceeding the statutory maximum, or both.(3) For the avoidance of doubt, person B is not guilty of aiding, abetting or counselling the commission of an offence under this section.”
(3) The Secretary of State shall, at least once in every year, publish a strategy, to ensure that a programme of assistance and support is made available to a person who wishes to leave prostitution.”
Lord McColl of Dulwich (Con)
Amendment 31 would make it an offence to pay for the sexual services of a person. This is to address the demand for commercial sex, which feeds the trafficking of individuals, particularly women and girls, into and within the United Kingdom.
Both the Council of Europe convention and the EU directive on trafficking call for states to adopt measures to address the demand for exploitation that fosters trafficking. National referral mechanism statistics clearly demonstrate that since 2009 paid sex has consistently been the most prevalent form of exploitation experienced by victims of trafficking in the United Kingdom. It accounts for around 40% of victims and around 60% of female victims. The National Crime Agency strategic threat assessment of the nature and scale of human trafficking, published in September, reports victims being sexually exploited in brothels, in hotels, on the streets and in private residences. The NCA report is clear that of all forms of trafficking identified in this country, sexual exploitation is the most prevalent.
The Government have taken steps to address the demand for labour exploitation through the supply chains provision—which of course I completely welcome and support—but what are we doing to address the demand for sexual exploitation? In 2009 I supported the introduction of Section 14 of the Policing and Crime Act, which made it an offence to pay for sex with someone who is coerced. This might sound like the perfect solution but it has not worked in practice. Evidence of that was clear from those who contributed to an all-party parliamentary group inquiry, of which I was part, which ran from 2013 to 2014. We published our report in March this year and I encourage noble Lords to review its findings. The number of convictions under this offence has been very low. In 2012-13 there was not a single prosecution or conviction. This offence has not done what we hoped it would do.
In considering the law on prostitution our all-party group heard evidence that a Section 14 offence is complex and difficult to prove, and we concluded:
“There are inadequate deterrents for individuals controlling others in prostitution for gain and for those deriving demand from the sex trade. This promotes the UK as a lucrative destination for trafficking with the purpose of sexual exploitation, both domestically and internationally”.
I for one certainly do not want this country to be considered a lucrative destination for traffickers, and I am sure many noble Lords would agree.
I want to set out why I think Amendment 31 is the best option. In 2009 research in London with 103 men who buy sex, 77% of them agreed that a greater criminal penalty would deter them from purchasing sex, while only 47% said that they would be deterred by being required to attend an educational programme. There is strong international evidence that this offence can work, not only by reducing the instance of prostitution and deterring trafficking but, vitally, by creating a culture change, which is the main contributor to reducing demand.
Lord Browne of Belmont (DUP)
My Lords, I rise to support Amendment 31 tabled by the noble Lord, Lord McColl. First, I must offer my apologies to noble Lords that I was not able to be here for the Second Reading debate.
Trafficking of human beings is the worst form of commodification that there can be. It is a process that views a person as an object to be used to make profit, with no thought to the dignity and humanity of the person being exploited. Perhaps that commodification is expressed most starkly in sexual exploitation where a person’s body is purchased and used for the gratification of the buyer.
It is not sufficient to tackle trafficking and slavery by trying to increase the number of prosecutions for those offences, however vital that is. If we are truly to bring an end to slavery in the 21st century, some 200 years after abolishing legal slavery, we must look to address the root causes. We must not be shy of tackling difficult issues and making bold laws. The connection between prostitution and trafficking is one area where new thinking is required. I commend the noble Lord, Lord McColl, for being bold enough to ask the question of what we will do to reduce the opportunities for traffickers to profit from commercial sexual exploitation.
I should like to focus my comments on some of the arguments that are often made against proposals such as those contained in Amendment 31 and explain why I believe they are unconvincing. The first is the underground thesis. Those who oppose this approach to prostitution law regularly use one particular argument, suggesting that criminalising the purchasing of sexual services could drive prostitution underground, putting prostitutes at risk of harm and making it more difficult for them to seek help. At first sight this idea would be of great concern since the intention of the clause is to protect those in prostitution. However, on closer examination, these fears are not borne out.
First, prostitution can never entirely go underground. It is a system that requires buyers. Without buyers, prostitution will collapse. Therefore, those involved in or who control others in prostitution need to advertise publicly in some way. We already see this in local newspapers or on the internet. However the law changes, this connection with buyers still needs to be made, and if the average client can find an advert for sexual services, then so can the police. This underground argument has also been refuted strongly by the evaluation of the laws in Sweden and Norway.
The next argument that is often put up is concern about the impact on safety. The second part of this opposing argument suggests that it will make prostitution more dangerous. But the truth is that prostitution is already dangerous. Indeed, the Association of Chief Police Officers’ strategic guidance refers to research findings that people in prostitution are 60 to 120 times more likely to be victims of murder than the general population and also experience high levels of rape and physical assault. A paper produced for the Northern Ireland Department of Justice in 2011 states that many women in prostitution in Northern Ireland are subjected to extreme violence. A 2008 prostitution inquiry conducted in Sweden established that the claims made by opponents there about a worsening situation were baseless. Data from Norway show a decrease in severe violence against those in prostitution. The recent evaluation of the Norwegian law states that researchers did,
“not find any evidence of more violence against prostitutes after the ban on buying sex entered into force”.
Many opponents of the Nordic laws promote the decriminalisation model implemented in New Zealand. However, when they do they fail to acknowledge that the official review of that law heard that even five years after removal of all criminal sanctions relating to prostitution of adults, individuals still reported experiencing violence and fear. There is simply no way to get around the fact that prostitution is an inherently violent and harmful activity.
I must say that I agree with the Canadian Justice Minister, Peter MacKay, who said:
“The government does not accept the proposition that prostitution is inevitable and therefore that we must decriminalize and regulate it … On the contrary, the government maintains that prostitution’s inherent harms and dangers would only grow and be exacerbated in a regime that perpetrates and condones the exploitation of vulnerable individuals through legalized prostitution”.
Many critics of this approach have stated that it conflates human trafficking and prostitution which should be kept separate. I do not believe that it is a credible argument that prostitution and trafficking should be treated entirely separately. The fact is that for a significant group of people trafficked into and within this country, the purpose of their trafficking is exploitation through prostitution. Of course, I accept that not all people in prostitution are trafficked, but without addressing the demand that makes it profitable for people to traffic others for prostitution, this trafficking will continue. The laws we have at the moment are not acting as a deterrent. In contrast, in Sweden, which criminalised the purchase of sexual services in 1999, police report that the law acts as,
“a barrier that is preventing human traffickers and pimps from becoming established in Sweden”.
Trafficking statistics show that Sweden has a lower rate of trafficking than other neighbouring countries. Given such statistics, as well as the research cited by the noble Lord, Lord McColl, about the particular vulnerability of the majority of women in prostitution, I think it is an entirely legitimate aim to seek to reduce demand for prostitution.
The Lord Bishop of Derby
My Lords, I, too, would like to support my colleague from the Joint Committee, the noble Lord, Lord McColl, and I associate myself with the comments of the noble Lord, Lord Browne of Belmont. In the context of the Bill, this is to do with supply and demand, as we have heard. I will not repeat it, but it is well known that serious research into the Nordic model shows the effectiveness of this kind of legislation. A strong argument was aired briefly in the other place about the market and people’s freedom to work in ways they choose, but I want to draw briefly on my own experience to explore the myth that prostitution can be simply a marketable form of employment.
I have been involved in work with people engaged in prostitution, as well as those who work with them. It is evident that almost everybody who I have come across or who colleagues work with are pathetic, abused and often drug-centred young women. Earlier this year I came across a Thai woman who was being raped 10 times a day in a brothel in Kensington, not far from here. That is what being able to purchase sex is doing to people. A few weeks ago, I met a woman who said, movingly, that before she managed to escape from prostitution, she used to ask for drugs because the pain of servicing all those people was so intense. She requested drugs, and was supplied with them. Something that has not been said but which ought to be noted in this debate is that a lot of research shows that a high proportion of those who purchase sex from prostitutes are married men. What does that say about our understanding of family and relationships? There is a strong case for taking seriously the proposal of the noble Lord, Lord McColl.
I recognise that there might be some real politics in terms of where the amendment would fit in the Bill and how this kind of legislation might arrive at being effective, but I endorse the amendment because it asks the Government to do some form of review. It would be good to do some research to see whether this kind of legislation would reduce significantly the numbers of those in sexual slavery. Would it reduce the demand that is out there on the streets? Would it reduce the numbers who are trafficked into this country like the poor Thai woman I have just spoken about? She was brought here with the promise of a good job, and then she ended up in the appalling situation of being simply a commodity for people to buy at will. Such a review would gather information from the many people who work with those in the sex trade and could receive comments from the public. We could ask for the views of organisations like the Association of Chief Police Officers, which has been mentioned. There are many people in this area who have experience and who could help us to build up a picture that would show us the outcomes if we proceed in this direction.
The passion that unites noble Lords across the Committee on this Bill is to free victims from being abused and treated like commodities—and, in a sense, such cheap commodities. It would be wonderful if we could at least try to review the effect that this kind of legislation would have. Evidence from other parts of the world shows that when a Government are bold enough to adopt it, it has enormously positive social consequences as well as a massive impact on the evil of sexual trafficking.
Lord Deben (Con)
My Lords, I will refer to what happened in Ipswich on the terrible occasion when the murders of a series of young women hit the headlines. All of them were described in the press as prostitutes. In fact, they would be better described as drug addicts who had fallen into prostitution.
I am not sure that this is the right Bill to make these changes, or that they can be made in these circumstances, but I am sure that we ought to be clear about a different approach to prostitution from that which we have had before. In Victorian days, prostitution was thought to be appalling and the women were blamed. The men were rarely considered to be in any way guilty. The Victorian approach was that men were like that. I hope that we have reached a stage where we understand how wrong that was as an attitude. However, instead, I fear we are moving to the kind of approach that my noble friend Lord McColl pointed to, where other people are treated as things for the gratification of some and for the earning of money by others. That is the real issue and where the problem really lies. I liked the way in which my noble friend presented his amendment because it seems to me that he emphasised, very characteristically, the nature of the human being, the duty that we owe to human beings and the respect which we should have for all, whoever they may be and however unworthy others may think them.
The terrible events of Ipswich concentrated the minds of people locally in a way which has never happened before. It was very interesting to see how people who would historically have dismissed this as one of those things that was nothing to do with them thought much more seriously about the nature of this offence and the way in which it made a statement about our society and how we think of other people. I know that I would not carry the Committee with me if I were to go too far with these comparators, but I must say that I think we live in a society which treats human life in a most disgraceful way. We point at others outside this country and forget what happens here to babies and what we sometimes ask to happen to older people. We are not good at recognising the value of human life nor are we good at recognising that the greatest gift given to any human being is the part that we can play in creation. It is the gift. Therefore we ought to be particularly careful in any circumstances where human beings are not just trafficked but are degraded by those who treat them as if they were not human. That is the issue that we are concerned with tonight.
I do not think that it would be proper to make so sweeping a change in the context of a Bill which has a whole range of other things that it needs to do, but it would be unfortunate if the Government were to complete the debates on this Bill without giving a real undertaking that this issue will be properly investigated and brought back to Parliament so that we can make a proper decision on it. It is a big issue. We are, on this occasion, very much helped by the work that has been done in Scandinavia. We are not in the same position as we have been before. We have seen what happens when steps like this are taken. We should not delay in treating this seriously, but should do it in a proper format. I do not think that this Bill is the proper format, but I do not want the Government to go away saying it is not the proper format, full stop. I want them to say that it is not the proper format but that they will speedily bring legislation in front of this House, after proper consideration, in order that the House and the other place might consider how best to protect people from being treated as things.
Lord Hylton (CB)
My Lords, it has been well worth while staying on after dinner just to listen to a debate of this quality. The noble Lord, Lord McColl, has done a real service in bringing forward this amendment. I thought that his survey of the international scene was masterly.
I can understand that the Government may have reasons for not accepting the amendment as it stands, but I call on the Minister to give some detail about exits from prostitution for those who want to leave it. There must be many such people. In the past, Mr Gladstone was one of those who tried to help people to come out. That has been followed up by voluntary organisations and religious orders, which have provided help and care to those wanting to leave. What are the Government doing to make this easier and how are they enlisting local authorities and other organisations to this end?
Lord Rosser (Lab)
My Lords, our amendment is not as precise in the changes it proposes as the amendment moved by the noble Lord, Lord McColl of Dulwich. Our amendment provides for the Secretary of State to,
“undertake a review of the links between prostitution and human trafficking and sexual exploitation in England and Wales”,
and sets out the issues that must be considered in that review; namely,
“the extent to which the current legislation governing prostitution in England and Wales acts as an effective deterrent to demand for sexual services from exploited persons … the extent to which the current legislation governing prostitution in England and Wales enables effective enforcement action against those trafficking people for sexual exploitation; and … the extent to which alternative legal frameworks for governing prostitution adopted by other countries within the European Union, including Northern Ireland, have been effective at reducing sexual exploitation and the number of people trafficked for the purpose of sexual exploitation”.
Delving into the world of buying and selling sex reveals a complex web of abuse, control, money and power. Last year the Home Office estimated that the trade in the human trafficking of women to be sexually exploited in the United Kingdom was worth at least £130 million. One example was of a woman who came to our country from Uganda to get away from her abusive husband. She was told by a friend that he could find her a job in a catering company. When she arrived, however, she was driven to a house in Manchester, locked in a room, raped, beaten and forced into prostitution. After a few months, she managed to escape.
It has been estimated by the Home Office that 80,000 people in the UK, mainly women and girls, are involved in prostitution. The reality is that there are thousands of women in our country who are living in sexual slavery. They get there by different routes—pimped by people they know or trafficked by organised gangs—and many are extremely vulnerable, having been abused in the past. As the noble Lord, Lord McColl of Dulwich, said, a report published last summer by the Serious Organised Crime Agency showed that sexual exploitation was the most likely type of exploitation for people trafficked into England and Wales. There is growing evidence that many of those in prostitution began to be involved in this work before they were 18 and Home Office research has revealed that approximately 50% of women in prostitution became involved before reaching that age.
The physical and psychological consequences for those exploited through prostitution can be severe. The Journal of Trauma Practice found that once they have become embroiled in the trade, nine out of 10 women report wanting to exit but feel unable to so do. They do not know where to get support or do not believe that other work is available to them. The Home Office’s own figures suggest that more than half of the women involved in prostitution have been victims of rape or sexual assault.
We need to look at how countries elsewhere may have reformed their laws to protect women, developed effective exit strategies, reduced the number of people trafficked for sexual exploitation, reduced violence and reduced the market for buying sex, which traffickers and pimps exploit and from which they profit, as we know. That is why we have put forward this amendment to require the Government to carry out a detailed review, with the ultimate objective of seeking measures to keep more women safe.
Of course, we should not make changes without fully understanding the impact they might have. There are differing views on possible courses of action, as I am sure the noble Lord, Lord Browne of Belmont, would accept. We need to be sure that any changes will not push women into even more vulnerable and dangerous situations, and we need to consult and seek a wide range of views. However, we surely cannot continue as we are. This amendment, with the provision for a review of the links between prostitution, human trafficking and sexual exploitation, seeks to provide a considered and appropriate way forward. I hope it will find favour with the Government.
Baroness Butler-Sloss (CB)
My Lords, I waited until I had heard the noble Lord, Lord Rosser, before expressing any views on these amendments. I entirely understand the admirable motivation behind the proposal made by the noble Lord, Lord McColl, but one has to bear in mind that prostitution is one of the oldest trades over hundreds of years, if not thousands.
Something somewhat similar was proposed in the other place by Fiona Mactaggart MP. I certainly received a large number of e-mails about it from the various associations of women prostitutes. They were very much opposed to the sort of legislation which has now come before this House, although I understand that it is not exactly the same as that which was proposed by Fiona Mactaggart. Having said that, there is undoubtedly a real problem, because some of those who are prostitutes are certainly trafficked.
I recall going to a small town in Holland where, as noble Lords will know, prostitution is legal. I saw women sitting in the windows in what was quite a small town. The curtains were open if they were not working, and they were all on their mobiles talking to the pimps. There is no doubt at all, from what the local mayor told me when he took me round, that he knew that a large proportion of these women were actually trafficked, although they could not tell him that and they were all registered for business purposes, if you can believe that. He arranged for his staff to ask them whether they had come as victims of trafficking, but none of them would say so because they could not afford to do so.
There is a very major problem in this country, as well as in Holland and in other countries. I strongly support the amendment tabled in the name of the noble Lord, Lord Rosser. The time has come to look at prostitution right across the board, but particularly at its impact on women who come into this country—or are already in this country—who are in fact the victims of slavery, and who are not doing this work voluntarily.
Baroness Garden of Frognal (LD)
My Lords, I am most grateful to noble Lords for speaking so eloquently to Amendments 31 and 31A. I am grateful to my noble friend Lord McColl, who has given us the chance to look at this difficult and controversial issue of prostitution law. He highlighted the difficulties of exploitation and, indeed, the work of the APPG. Prostitution raises strong moral and ethical questions, but the Government’s overriding priority in this context is the safety of people involved in it. Existing legislation regarding buying and selling sex is already focused on minimising the harm and exploitation that can be associated with prostitution. Of course, not everyone involved in prostitution has made an independent and free choice to do so. We need the law to protect the vulnerable and punish the perpetrator, but when considering these amendments, we must consider carefully whether we are confident that they support the safety of the people involved in prostitution.
My noble friend set out the approach of Sweden and some neighbouring countries, often referred to as the “Nordic model”, which his amendments seek to emulate. We are also aware of recent legislative developments in Northern Ireland, alluded to by the noble Lord, Lord Browne. We are mindful of the reservations expressed by the Northern Ireland Minister of Justice about the value and effectiveness of this approach. This is of course a devolved matter, so it is for the Northern Ireland Assembly to take the approach that it feels is most appropriate for it, but we know that the Northern Irish Minister of Justice opposed the adoption of the Nordic model for the same reasons that the coalition Government oppose it: it is far from clear that the change would make a vulnerable group safer and may do the opposite. We certainly would not seek to create any unintended consequences that made life more difficult for the people involved in this difficult area. As the noble and learned Baroness, Lady Butler-Sloss, has indicated, submissions received from organisations such as Women Against Rape and the English Collective of Prostitutes have shown that such an approach can encourage the sellers and buyers of sex to operate further out of sight, exposing them to a greater risk of violence.
At this stage, we do not believe that there is sufficient evidence of the value of such significant changes to the legal and moral position of buying sexual services in reducing harm to those involved. We can well understand the principles behind my noble friend’s proposed amendments to the criminal law on prostitution. We have heard from around the Committee strong opposition to all violence against women and a common desire to protect them. However, as regards prostitution, it is important to reflect that there is an alternative view, as expressed by a variety of organisations that represent people involved in it. This challenges the position that all paying for sex is by definition violence. Before legislating, we should have a full debate on these important moral issues, as a number of noble Lords have indicated.
On exiting prostitution, raised by the noble Lords, Lord Hylton and Lord Rosser, the amendment also sets out a requirement to publish an annual strategy for assistance and support to those who wish to leave prostitution and it is absolutely right that they should be supported in doing so. The Policing and Crime Act 2009 took steps to improve the safety and support available for individuals involved in prostitution through the introduction of Section 17 engagement and support orders. That legislation provides the courts with an alternative to fining those convicted of loitering and soliciting: a requirement to attend meetings with a court-appointed supervisor. Engagement and support orders came into force on 1 April 2010. This is deemed to be an effective tool in providing support and access to services that might otherwise be out of reach, including medical care, housing and drug/alcohol dependency programmes. The right reverend Prelate mentioned the connections with other forms of drug and alcohol dependency. This is considered to be a more constructive long-term approach.
Such an approach is fundamental to our focus on minimising the harm that can be associated with prostitution. As such, it is part of our broader approach to violence against women and girls—an action plan that is kept under constant review. We support emphasis being put on supporting those who wish to exit prostitution, but legislation is not necessary to achieve this worthy aim.
Amendment 31A would place an obligation on the Government formally to review any links between prostitution and human trafficking and exploitation, including the legal frameworks around prostitution both here and overseas. Contributions to this debate have emphasised the importance of evidence and consultation. Legislation on this difficult and sensitive topic needs to be approached judiciously to ensure that our shared aim, harm reduction, is being served.
The coalition Government are committed to tackling all forms of violence against women and girls, and are pursuing a range of measures to improve protection, reporting, and prosecution. Our progress is constantly reviewed via the cross-government action plan on violence against women and girls. We are in regular dialogue with the relevant policing leads and the Crown Prosecution Service to ensure that legislation and its enforcement remain as effective as possible.
Lord McColl of Dulwich
I thank everyone for taking part in this splendid debate. The contributions have been outstanding. I am sure that this is not the Bill for putting this into law. However, there is no doubt in my mind that it eventually will become law. The wind of change is blowing through the western world—Sweden, Norway, Iceland, Northern Ireland, the Republic of Ireland, Canada and France. King Canute was not actually trying to keep the tide from coming in; he was trying to show his sycophantic followers that he was unable to do so. I beg leave to withdraw.
Lord Alton of Liverpool
“Proceeds of crime: MSV Fund
(1) The Secretary of State shall by regulations establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4.
(2) The MSV Fund shall receive no less than 50 per cent of any money recovered under a confiscation order.
(3) Subject to subsection (4), the proceeds referred to under subsection (2) shall be distributed by the MSV Fund as follows—
(a) 50 per cent of the proceeds shall be distributed as compensation to the person or persons identified as victims of slavery or victims of human trafficking;(b) 25 per cent of the proceeds shall be distributed to the charities or other organisations listed in the regulations, which provide services, assistance, support and protection to victims of slavery and victims of human trafficking; and(c) 25 per cent of the proceeds shall be distributed to the organisations listed in the regulations, whose purpose is to prevent slavery, servitude and forced or compulsory labour or to help to investigate or prosecute people who commit offences under this Act.(4) For the purposes of any distribution under subsection (3)—
(a) for victims of slavery or victims of human trafficking under paragraph (a), the monies paid—(i) shall be distributed equally between those persons who have been directly identified as the victims of slavery or victims of human trafficking to whom the conviction referred to under subsection (1) relates; and(ii) shall not be reduced or diminished by reference to any other compensation that such person or persons may receive from other sources, (b) for the charities and organisations referred to in paragraphs (b) and (c), the monies paid shall be distributed equally between those charities and organisations.(5) The regulations referred to in subsection (1) shall provide rules determining the composition, management and financial accountability of the MSV Fund together with such other provisions that the Secretary of State may consider necessary for the exercise of its functions.
(6) The Secretary of State must appoint the Commissioner as a member of the management board of the MSV Fund.
(7) Before making any regulations under this section the Secretary of State shall consult such persons as he thinks fit.
(8) Regulations under this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament.
(9) In this section—
“the Assets Recovery Agency” means the Agency referred to in section 1 of the Proceeds of Crime Act 2002;
“the Commissioner” means the Independent Anti-slavery Commissioner appointed under section 40;
“confiscation order” means a confiscation order under section 6 of the Proceeds of Crime Act 2002.”
Lord Alton of Liverpool
My Lords, Amendment 32 stands in my name and that of my noble friends Lady Cox, of Queensbury, and Lord Hylton. I thank them for their support for the amendment. I also thank the Public Bill Office of your Lordships’ House, which gave me a lot of help with the drafting of the amendment. The purpose of the amendment is to give the Secretary of State power by regulation to,
“establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4”.
If the amendment were to be incorporated in the legislation, it would enable the MSV fund to receive,
“no less than 50 per cent of any money recovered under a confiscation order. Subject to subsection (4), the proceeds referred to under subsection (2)”,
would then be distributed by the fund, with 50% of the proceeds given as compensation to victims, 25% distributed to the charities and other organisations listed in the regulations, and 25% distributed to the organisations whose purpose is to prevent slavery. I would have in mind, obviously, the police, but also others such as the Independent Anti-slavery Commissioner.
Modern slavery is very profitable. The International Labour Organization estimates annual profits from slavery to be around $150 billion a year. For example, a child trafficked and forced to pickpocket on the streets of London can, according to Anti-Slavery International, bring traffickers yields of £5,000 to £10,000 every month. Modern slavery is a high-profit, low-risk crime. Most of those involved escape justice and, even where there is a conviction, asset seizure is often considered too late in the process so the perpetrator has had a chance to move their assets elsewhere. Even where confiscation is made as part of the criminal proceedings, compensation is very rarely ordered.
The amendment would address this by bringing confiscation of assets and compensation to the very heart of the Bill and, in doing this, it would be similar to the United States anti-trafficking legislation. Confiscation has the effect of hitting the perpetrators where it hurts and its deterrent effect is potentially more significant than the threat of a long prison sentence, which can easily be avoided by entering a plea bargain. As the average prison sentence for modern slavery offences has been relatively low— around five and a half years—unless the perpetrator is stripped of their assets they can come out of prison and enjoy a luxurious life, while victims continue to suffer.
Restorative justice is also a function of compensation for victims and is the key to this amendment. By awarding damages to the victim, their suffering is acknowledged in a way that convicting the perpetrator rarely achieves. Victims who act as witnesses are of course often re-traumatized in the process. Furthermore, compensation gives victims stability and a chance to rebuild their lives. For example, one victim who was compensated has invested the compensation to pay for university education and is now pursuing a law degree.
I first raised the possibility of using confiscated assets to help victims and deter traffickers in 2002, during the passage of the Proceeds of Crime Bill. I argued that there were simply insufficient resources to adequately address a crime which, too often, was out of sight and out of mind. Yet even then, the United Nations had identified people trafficking as the fastest growing facet of organised crime and the third largest source of profit for organised crime, after the trafficking of drugs and firearms. At the time, the Government admitted:
“At present there is no specific offence of trafficking in human beings and so no data exist about the confiscation of assets of those engaged in this practice”.—[Official Report, 18/6/02; col. WA 70.]
My 2002 amendment called for the proceeds of trafficking to be channelled into the support of victims and the resourcing of a strategy to tackle this scourge at source. Supporting the amendments then and the use of confiscated assets to hit the traffickers where it hurts, the late Lord Wilberforce, a Law Lord and a descendant of William Wilberforce, described trafficking as,
“a pervasive crime committed in all kinds of areas by all kinds of people. It must be dealt with by a great variety of authorities”—
I repeat, a great variety of authorities—
“and police forces all over the country, many of which have no idea of the nature of the crime or the remedies available to deal with it”.—[Official Report, 25/6/02; col. 1225.]
Since 2002, the Government have been persuaded to develop the principle of confiscating assets which have been accumulated through the pursuit of crime. I strongly welcome this but it would help this debate if the Minister could describe what has been the experience of the Proceeds of Crime Act to date. It has been suggested that there may already be as much as £2 billion in uncollected POCA fines, so whether or not there is a dedicated dispersal fund, as the amendment would require, it would be helpful to know how the Government intend to improve the collection rate and what their estimate is of the sums currently outstanding.
Addressing Pope Francis at a Vatican conference on human trafficking held in April this year in Rome the Home Secretary, the right honourable Theresa May MP, said:
“Our efforts must also focus on going after the profits of those involved, and compensating victims with seized assets”.
The Bill itself recognises that the first call on seized assets should be to provide reparation to the victims of the modern slavery offence. Where there are seized funds left over, the Government say that they will benefit criminal justice agencies through the existing asset recovery incentivisation scheme. ARIS has the objective of providing all operational partners who use the asset recovery powers in the Proceeds of Crime Act 2002 with incentives to pursue asset recovery as a contribution to the overall objective of reducing crime and delivering justice. It is not, however, specifically targeted at tackling human trafficking and modern slavery. However, that scheme is not on a statutory footing, although some of the moneys distributed under ARIS are used to fund improvements in asset recovery capabilities and on community projects, and I welcome that. This amendment would create a statutory scheme.
Around £80 million was returned to operational partners from ARIS in 2013-14. The Minister might like to say how much of that money is used specifically to deter and bring to justice the perpetrators of modern slavery. I would also be grateful if he would quantify what he believes will be necessary to fund this ambitious legislation, otherwise it risks becoming yet another declamatory law which sounds good but can make little difference. Will he say how much money will be set aside to support this legislation? We all recall the Climate Change Act 2008, which imposed what was called a “legally binding obligation” for reduction of 80% of greenhouse gas by 2050. It was never made clear how it was to be done, who was to be held to account if this target was not realised and what punishments there would be.
The Child Poverty Act 2010 was not much better, requiring the elimination of child poverty by 2020. If the Bill is not to be added to the list of declamatory legislation which has inadequate resources attached to it to ensure its enforcement, we need to insist on ways of providing adequate resources. Although the Minister says that the Government are unconvinced about the need to ring-fence these assets for this dedicated use, he has indicated his willingness to discuss the amendment and said, in a letter to me:
“There is a great deal of common ground between us on the principles of how seized assets should be used, in terms of using the funds raised to compensate victims and support law enforcement agencies”.
I welcome that greatly.
The Government tend to suggest that the police is the agency which needs to be funded to bring perpetrators to justice. Of course, there is a lot in that argument. However, as the late Lord Wilberforce recognised, a great variety of authorities need to be involved and many, along with the police, are completely underresourced. At Second Reading, I highlighted the position of the Gangmasters Licensing Authority, established in 2006 in the aftermath of the tragic death of 23 Chinese cockle-pickers who died in Morecambe Bay, part of a criminal racket exploiting workers all over England, and estimated to funnel £1 million per day back to China.
In 2013, Professor Gary Craig of Durham University, working with the Wilberforce Institute for the study of Slavery and Emancipation and the Joseph Rowntree Foundation, published Forced Labour in the United Kingdom, a report which specifically said that the GLA was insufficiently resourced. The report found that:
“The scope of the GLA should be extended to cover all sectors using labour providers and greater resources should be available for the GLA to be able to fulfil its role effectively”.
The three-year study draws on data from legal, policy and regulatory bodies and calls for the Government to reconsider some key policies and take a broader view of the problem. The report also found that:
“Monitoring for severe labour exploitation is generally weak and needs to be strengthened”.
Professor Craig, who is professor of community development and social justice, says that workplace enforcement agencies are now doing fewer inspections, becoming focused on only the most serious offences rather than tackling all types of serious labour exploitation. Commenting on the scale of the problem he says:
“Criminal activity of this nature is difficult to monitor, but conservative estimates are that there are currently at least several thousand cases of forced labour in the UK and 880,000 across the European Union”,
and that those trafficked for labour exploitation would soon exceed those trafficked for sexual exploitation.
I turn to the need for public education, something which many noble Lords have raised today and which the Government acknowledge the need for. No one has said how that would be resourced. Professor Craig remarks that there is a “real problem” getting people to acknowledge not only that slavery exists in the UK, but that, as his research suggests, there may be upwards of 10,000 people at any one time in conditions which we would class as modern slavery. I noticed over the weekend that the BBC added another 3,000 to that number.
In addition to recommending the extension of the mandate of the GLA, providing powers of arrest and investigation, Professor Craig argues that the GLA should be able to keep fines to fund its work, adding that the resources directed to the GLA are totally inadequate. If the dedicated fund specified in the amendment were created, it could be used to extend the mandate and work of the GLA and other agencies involved in this most serious of crimes. The Independent Anti-slavery Commissioner, Kevin Hyland, has also said in an interview in the Sunday Times that the resources needed should be raised as a result of using the confiscated assets of funds that have been seized.
Lord Warner (Lab)
My Lords, if I may, for the convenience of the Committee, I will group my Amendment 33 with Amendment 32 as my amendment is meant to help fill the pot that the noble Lord, Lord Alton, wants to distribute. I am sorry that I did not group it at an earlier stage.
My amendment is much less ambitious than the noble Lord’s amendment. It follows on from an amendment that my noble friend Lady Smith moved to the Serious Crime Bill. I was a member of the Joint Committee on the draft Modern Slavery Bill. We were concerned to maximise the confiscation of resources from perpetrators of slavery that could go to help victims much more than had happened in the past. Indeed, the confiscation of criminal assets under SOCA had not been one of the most glorious bits of public administration in this country, as I think was recognised by the Government following a PAC report. Therefore, we need to strengthen this.
I am the first to recognise that the Government went some way towards meeting the recommendations from the Joint Committee in this area and I am very grateful to the Government for moving some way. For example, I am glad that the Government have reduced the legislative requirement for a restraint order from reasonable cause to believe to reasonable suspicion. However, I remain concerned that they have not gone further and accepted the committee’s recommendation to remove the test that there must be a risk of dissipation of assets before action is taken by the prosecutor. Frankly, the advice that the Home Secretary seems to have been getting on this issue is a bit fanciful. The characters we are talking about in this area have a track record of dissipating assets. They move very quickly when it is known that they are going to be charged and prosecuted. I think that hanging on to the idea that they need to be protected from gung-ho prosecutors by actually keeping the intention that they have to show that they will dissipate their assets is rather fanciful. The Government need to look again at that area.
I will not spend very long at this late hour talking about the areas where the Government said they were going to look further at two or three of the other recommendations in paragraph 210 on page 97 of the Joint Committee’s report. Rather than detain the House now, perhaps the Minister could write to us about how things have progressed in those areas that the Government were reviewing further.
What I want to do on this amendment is to persuade the Government that it would be useful to have a consultation to look further at strengthening the arrangements around this very technical area. I understand the difficulties of actually finding technical solutions and I am not someone who is going to try to move complicated technical amendments to the Bill at this late stage in its passage. However, I think the Government need to have another look at this so we can maximise the confiscation of assets to produce the kind of fund that the noble Lord, Lord Alton, is talking about. It is no good having a grand scheme for distribution if there is nothing in the pot to distribute. We have to work a lot harder. The kind of consultation that we are proposing in this amendment is meant to be helpful to the Government so that we can move on and strengthen this area of confiscation to the maximum advantage of victims.
Baroness Butler-Sloss
My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.
Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.
Baroness Hamwee (LD)
My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.
As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.
I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.
On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.
Lord Hylton
My Lords, I foresee that the Government may say that my noble friend’s Amendment 32 is too prescriptive, and that Amendment 33, tabled by the noble Lord, Lord Warner, is only consultative. I hope that they will not dismiss both of them on those kinds of grounds. It would be very helpful if they said to what extent they accept the principle behind them. While doing so, perhaps they could also say how the present law on criminal compensation could interact with these ideas.
Lord Rosser
My Lords, I will be brief in view of the time. It is vital that those who profit from modern slavery crime should know that their ill gotten gains can and will be confiscated, by extending Schedule 2 of the Proceeds of Crime Act 2002 to these serious offences. However, my noble friend Lord Warner has made the case for his amendment, with which I am associated, and for the consultation on a number of questions for which it provides, in the light of the weaknesses in the present arrangements. I will not go into those weaknesses; they were highlighted by my noble friend Lady Smith of Basildon during the debates on the Serious Crime Bill.
Victims of modern slavery should be compensated, but, as my noble friend Lord Warner said, money cannot go to victims if we are not recovering it from the perpetrators of the crimes. We need to strengthen and improve the present legal framework on the recovery of assets and the use of property derived from the proceeds of these crimes. This amendment, with which I am associated, provides for a consultation by the Secretary of State to do just this. I hope that the Government will feel able to give a favourable response.
Lord Bates
My Lords, I am grateful for the amendment moved by the noble Lord, Lord Alton, and grouped with the amendment spoken to by the noble Lord, Lord Warner. In many ways it might be easier if I sum up by taking the amendment of the noble Lord, Lord Warner, first, because it feeds into the principle of—if you like—the hopper, which then comes down to the general fund, which is the subject of the amendment of the noble Lord, Lord Alton.
I shall touch on a few things on the way through. The scale of the proceeds gained through this is widely acknowledged: the noble and learned Baroness, Lady Butler-Sloss, mentioned a figure she found on page 38 of the strategy document that we put out. We used a figure from the ILO, which estimates the global proceeds from this activity at about $150 billion. That equates to something like $34,800 per victim. So the amounts concerned—as we have heard all the way through—are very sizeable, and that is the underlying reason why organised criminals are moving increasingly towards the trafficking of human beings, rather than the drugs, guns and other weapons that we have seen in the past. It is because it is lucrative.
That is why we are absolutely determined that their financial resources—there is a financial motivation—ought to be the target of our activities. As my noble friend Lady Hamwee mentioned, this debate reflects a significant debate that we had on the Serious Crime Bill, where we talked about the process for doing this and inserted a legal test for obtaining such an order to be reasonable cause to believe that the alleged offender has benefited from his criminal conduct. The noble Lord, Lord Warner, was good enough to recognise that that was a step forward. There was a general feeling that if one applied for the restraint order or the freeze early in the proceedings, that could in some cases alert the perpetrators to the fact that there was an imminent investigation, and perhaps arrests, and that some of the jointly held assets might cause that to happen. That is not to say that this is our final position but it is something that we looked at very carefully before coming up with the current proposal.
The recovery regime, which has been strengthened in the Serious Crime Bill—your Lordships’ amendments to which are currently under consideration in another place—is aimed very much at increasing the resources recovered from organised crime. The noble Lord, Lord Alton, asked about the amount of funds that had been recovered. I think that in the order of £746 million worth of criminal assets have been seized across all four means of recovery, which is a record amount. We expect that to increase.
Noble Lords may also be interested to note that paragraph 4.32 of the strategy document states:
“Over £2 million has been recovered from slave drivers and traffickers in the past four years”.
Compared with the amount which has been earned, that is a pitiful and woefully low sum, and is why this legislation is before us to strengthen the law and to ensure that more assets are recovered. How is that to be done? I am not sure whether the noble Lord, Lord Warner, was at the Home Office when the Proceeds of Crime Act 2002 was going through.
Lord Bates
The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.
The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.
I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.
I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.
Baroness Butler-Sloss
Before the noble Lord sits down, I do not want to waste time, and I understand the point that the Minister is making about not alerting a potential trafficker so that he might skip the country, but what you can do, for instance, is get a without notice order in the civil court to freeze the assets and then arrest immediately afterwards. You do not have to alert the trafficker in order to freeze the assets. However, I am not sure that the powers for freezing assets would include people who are traffickers. That is the point that I want to put to the Minister.
Lord Alton of Liverpool
Before the Minister sits down, is he going to reply to my noble and learned friend first, or may I also put a point to him?
Lord Bates
I think that I am probably going to have to reflect on that point and come back to the noble and learned Baroness in writing, certainly before Report.
Lord Alton of Liverpool
I am grateful to the Minister. As a young Member of another place, I was once given the quite good advice always to beware Ministers when they are promising reviews, but in this case the Minister has said that the review is already under way. I am very grateful to him for saying that. He says that it is going to report in December. Will that be in time for us to be able to come back on Report acting on the outcome of the review? What is his estimate of the timetable?
Lord Bates
In the matter of the timetable and in many other matters I am grateful to have the Chief Whip, my noble friend Lord Taylor, on the Bench beside me. He has signalled his assent to the suggestion that this may be something where the report will be published, in all likelihood, before Report. Therefore, there will be an opportunity to revisit it then.
I should also say, as I have found the note, that the current distribution of the scheme provides that 50% of the proceeds go to the Home Office; 18.75% to investigation agencies; 18.75% to prosecution agencies; and 12.5% to HM Courts and Tribunal Service, which enforces the orders. That is the current distribution. I hope that is helpful.
Lord Alton of Liverpool
The noble Lord has been incredibly helpful to the Committee. It is very late and I do not intend to detain the Committee for long now. I simply want to thank my noble and learned friend, and thank the noble Lord, Lord Warner, for putting his argument so effectively. He is right that we have to generate the funds in the first place to provide the pots in order to do the things that the noble Baroness, Lady Hamwee, and my noble friend Lord Hylton all recognise need to be done. Indeed, the Minister himself has recognised that the principle behind this is not a bad one and is worth looking at further. He has engaged with the arguments in his usual courteous and characteristically helpful way. I am extremely grateful to him at this stage. We will see what the review holds and will keep open the possibility of coming back on Report if his noble friend is able to timetable events to ensure that the chronology works out that way. Having said that, I beg leave to withdraw the amendment standing in my name.
Lord Warner
“Recovering the proceeds of crime: consultation
(1) The Secretary of State shall consult on ways to strengthen and improve the legal framework in relation to the recovery and use of property derived from the proceeds of crime, which are recovered under the provisions of section 7.
(2) A consultation under subsection (1) shall include, but not be limited to—
(a) how to strengthen and improve the effectiveness of restraint and confiscation orders and in particular—(i) whether it should remain a condition of making a restraint order that there is a real risk that the defendant will dissipate his or her assets, and, if so, whether the burden should be reversed to require the defendant to show that he or she will not dissipate his or her assets;(ii) whether the costs recoverable by the defendant when an application for a restraint order is denied should be capped at legal aid rates;(iii) whether to provide the court with the power, when making an order, to require the defendant to disclose any interests, including third party interests, in realisable property;(iv) whether the court, when making an order, should be able to require the defendant to return to the United Kingdom any realisable liquid assets overseas;(b) how to improve the effectiveness of the United Kingdom’s mutual legal assistance arrangement with overseas jurisdiction in cases concerning the proceeds of crime; and(c) how to use the recovered proceeds of crime for the victims of modern slavery.(3) A consultation under subsection (1) shall end no later than 1 April 2015.”
Lord Warner
I wish to say briefly that I would like to withdraw Amendment 33 but want to register the point that the track record of confiscating assets from the proceeds of crime has not been a happy one. I want to keep open, until we have seen the review, whether we come back to the issue of a legal framework being looked at again and give the Home Secretary powers to take action if things do not work out as well as they might have done. I particularly want to consider the points made about civil orders by the noble and learned Baroness, Lady Butler-Sloss. There is a package of issues to which we may have to return on Report. Meanwhile, I beg leave to withdraw the amendment.
