(9 years, 11 months ago)
Lords ChamberRead Hansard Text Read Debate Ministerial Extracts
Lord Warner
“(1) The Commissioner must encourage best practice in—
(a) the prevention of modern slavery;(b) the identification and protection of victims;(c) the prosecution of perpetrators of modern slavery;(d) the promotion of co-operation and partnerships to meet paragraphs (a) to (c).”
Lord Warner (Lab)
My Lords, I rise to move Amendment 66 and speak to Amendment 68 in this group. I am pleased to see that the noble Lord, Lord Bates, has been in his place for some time. No doubt he will have noted the warm words given to his colleagues from another department about the concessions granted during consideration of the Consumer Rights Bill in this House. I am sure that he will want to be no less able to receive such tributes from us all at the end of this particular Bill.
Amendment 66 would remove subsections (1) and (2) of Clause 41 and replace them with a broader, more ambitious and clearer description of the functions of the anti-slavery commissioner. These changes are more in keeping with the advice in the report of the Joint Committee on the draft Bill, of which I was a member, based on the evidence that we received. We received a very large amount of evidence on this issue, particularly from those rapporteurs and quasi-commissioners in other countries with long experience of working in this sphere.
My Amendment 66 proposes that the wording of the Joint Committee’s own draft Bill, at Clause 33(1) on page 28 of the Joint Committee’s report, should be used in place of the Government’s approach. Amendment 68 elaborates that role internationally and in terms of partnership working. There is a fundamental difference between the Joint Committee’s view of the anti-slavery commissioner’s role and that of the Government. As the Home Office Minister told us rather graphically in oral evidence—captured in paragraph 156 of the committee’s report for those who wish to see it in all its glory—the commissioner was intended to be,
“the person who put the rocket up the law enforcement agencies”.
Thankfully, she did not go into more detail on how that might be done.
The Joint Committee’s approach was to define the role rather less colourfully but more broadly. Based on the evidence from overseas, particularly that from the highly effective Dutch and Finnish national rapporteurs, we saw the commisioner’s role as covering what we called the three Ps of combating modern slavery: prevention, protection and prosecution. To these we added a fourth P: partnership. As we said on page 84 of our report:
“It is essential that the Commissioner is empowered to work with national and international partners and to promote and facilitate domestic and international collaboration on the part of others”.
My Amendment 66 is broadly drawn and enables the commissioner to undertake the four Ps that I have mentioned. My Amendment 68 makes the international dimension explicit and makes clear that the commissioner is not restricted to the enforcement agencies as to where he distributes his “rockets”, to borrow Karen Bradley’s terminology.
I recognise that this more widely drawn role may well not commend itself to Home Office Ministers and officials. However, I would ask them to go back and read, or reread, the evidence given to the Joint Committee from experienced overseas equivalent commissioners. The unanimity of view among those witnesses was astonishing. Perhaps I may give the House a few examples from that evidence specifically on the importance of the role of embracing protection of victims. The US Ambassador-at-Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca, emphasised the indivisibility of protection, prosecution and prevention. The Dutch rapporteur said:
“Protecting victims and prosecuting criminals are two sides of the same coin”.
These witnesses found it strange that we should be going to all the trouble of fashioning a Modern Slavery Bill and then appointing an anti-slavery commissioner with such a narrow remit. The Modern Slavery Bill evidence review has recommended that the commissioner should,
“represent and give a voice to the concerns and best interests of victims and survivors of modern slavery”.
The UN High Commissioner for Refugees concurred.
Despite this evidence, the Home Secretary has chosen to draw the remit narrowly in the present draft of Clause 41. Even though the victims are mentioned in Clause 41(1)(b), it is only in terms of “identification”. There is nothing about their protection in the commissioner’s role, as the Joint Committee clearly recommended in paragraph 160 of its report. As we said there: this,
“is fundamental to achieving the Government’s aim of improved law enforcement”.
If the commissioner is to be given a wider role, as the amendments in this group all propose, he clearly has to have the freedom to decide the priority for his work within the budget available to him and to expect his reports to be available promptly to Parliament. That is why we had what I suggest was the forceful discussion on his independence during our previous Committee day, and why I and others will be challenging the Home Secretary’s control in the next group of amendments. These groups of amendments are all of a piece; they are all about the independence of this commissioner including a wide brief that will enable him to help the country to combat trafficking and exploitation of victims, both here and abroad. The Home Secretary really has to think again on these issues if she wants the kind of world-class Act which she claims will result from this Bill to be a reality. I beg to move.
The Lord Speaker (Baroness D’Souza)
If this amendment is agreed to, Amendments 66A to 67ZAA cannot be called by reason of pre-emption.
Lord Patel (CB)
My Lords, I shall speak to the group of amendments that stand in my name, starting with Amendment 66A. As the noble Lord, Lord Warner, has already said, many of the amendments in this group and in subsequent groups are of a piece. There will therefore no doubt be some duplication in the comments that we make. We have already discussed issues related to the independence of the anti-slavery commissioner on previous amendments in Committee. None the less, I ask the leave of the House to repeat some of the points.
Two themes have been much repeated by the Government in connection with this Bill and their wider intentions in the fight against modern slavery: first, that the victims must be at the heart of the Bill in everything we do; secondly, that the Bill would make the United Kingdom a world leader in tackling modern slavery. Sadly, as it stands, the Bill does not live up to these aspirations. One way in which it falls short is in the provisions for the anti-slavery commissioner. Despite the addition of the word “independent” in the title, the commissioner currently has neither the independence nor the remit to be world leading. Moreover, Clause 41, which sets out the commissioner’s remit, has nothing to say about the protection and support of victims, as the noble Baroness, Lady Newlove, who was in her place just now, reminded us at Second Reading. Many noble Lords made these points at Second Reading. Leaving aside the Front Benchers, of the 29 speakers, 19 drew attention to the commissioner and among these, there was near unanimity that the Bill provided neither the requisite independence nor remit. Calls to address that came from across the House.
In opening the Second Reading debate, the Minister said:
“The commissioner’s role is set out in a similar way to other commissioners”.—[Official Report, 17/11/14; col. 239.]
I wonder: which other commissioners? Certainly, the role is not set out in a similar way to that of the Children’s Commissioner for England or that of her counterparts in Northern Ireland, Scotland or Wales. These commissioners are not controlled by their respective government departments in the way that is done in the Bill, particularly in Clauses 41 and 42. Those clauses give power to the Home Secretary to edit the anti-slavery commissioner’s report and to approve, and by implication disapprove, his strategic plans. They also give similar powers to the Department of Justice in Northern Ireland and to the Scottish Ministers.
The amendments to Clause 42 in my name give us an opportunity to consider these unusual restrictions on the commissioner. Amendments 72ZA, 72B, 72C, 73A, 74A, 74B, 74C and 74D would remove from the Home Secretary the role of approving the commissioner’s strategic plan. Surely, setting his own strategic plan, without interference or the need to have approval from the Home Secretary, is the least we should expect of an independent commissioner. Why does the Bill empower the Home Secretary to give or withhold approval for the commissioner’s strategic plan? How is such a power compatible with a truly independent commissioner? My Amendment 74E would remove the power given to the Home Secretary and her counterparts in Northern Ireland and Scotland to remove material from the commissioner’s annual report. The amendment removes the final four subsections of Clause 42. These subsections allow material to be removed from the commissioner’s annual report on the grounds of the interests of national security, jeopardising the safety of any person and the risk of prejudice to the investigation or prosecution of an offence.
Baroness Cox (CB)
My Lords, I rise to speak to Amendments 67, 72, 73, 74, 77 and 105, which seek to incorporate into the Bill the international dimension of modern slavery, which is currently missing—as has been highlighted by other noble Lords—although it was highlighted by the Home Secretary in the foreword to the Government’s recently published and very helpful Modern Slavery Strategy. The Home Secretary rightly emphasised that,
“we must step up the fight against modern slavery in this country, and internationally, to put an end to the misery suffered by innocent people around the world”.
The Home Office press announcement regarding the publication of the Bill on 10 June 2014 claimed:
“The Bill reflects the Government’s determination to lead the global fight against modern slavery”.
Modern slavery is, by its very nature, a global issue, which no one Government can tackle alone. This was reflected in another welcome statement by the Home Office in July this year in Modern slavery: How the UK is leading the fight:
“The new Modern Slavery Bill will be amongst the first Acts in the world specifically tackling modern slavery and reflects the Government’s determination that the UK lead the global fight against this evil”.
I was therefore encouraged by the Home Office announcement regarding the Modern Slavery Strategy. It is very positive and states:
“The strategy also underlines the government’s commitment to not only tackle modern slavery in this country but around the world. It sets out ongoing work to tackle international modern slavery crime at source by working with law enforcement, civil society organisations and governments overseas. This will include an annual identification of priority countries, which will include both those from which significant numbers of victims are trafficked to the UK, as well as additional countries that suffer disproportionately from a high incidence of modern slavery, and individually tailored plans for each”.
To see this global dimension featured in the strategy is a very welcome commitment.
However, the Bill as it stands falls far short of these commitments to fulfil an international remit. It currently focuses specifically—and importantly—on various forms of slavery within the UK. Clearly, the very important issue of supply chains addresses an international dimension of exploitation and servitude related to UK-based companies. I strongly support the measures relating to this problem in the Bill and the amendments under discussion in your Lordships’ House to strengthen these provisions. However, apart from these measures, there is currently nothing in the Bill that recognises and begins to address the many other forms of slavery around the world in many different countries. It is therefore important to highlight the scale and scope of the continuation of this barbaric practice.
The International Labour Organization estimates that there are at least 21 million people in slavery in the world today. Other estimates put the figure much higher. Even if we did manage to stop all the trafficking of people into the UK, does this mean that such people would not still be trafficked? We would be likely to have displaced the problem elsewhere. Those people would still be very vulnerable to being trafficked elsewhere or exploited in another form of slavery.
In my humanitarian work with victims of oppression I have personally met many hundreds of victims of modern slavery and heard first-hand the heart-wrenching stories of the anguish of physical torture, humiliation and hopelessness, often lasting for many years. For some, their loved family members are still missing and enslaved. I have met and talked to many hundreds of former slaves from South Sudan and the Nuba mountains abducted into slavery by the Government of Sudan, using slavery as a weapon of ideological warfare. I have heard first-hand the heartbreaking stories of many victims of forced labour and sexual slavery in Burma; children abducted and forced to become child soldiers by the infamous Lord’s Resistance Army in northern Uganda; and victims of bonded labour and enforced so-called temple prostitution in India. In this context, I would like to record my deep appreciation of organisations such as the Dalit Freedom Network UK and Anti-Slavery International for their immensely important work, reflected in their comprehensive briefings.
Baroness Butler-Sloss (CB)
My Lords, I support Amendment 66, in the name of the noble Lord, Lord Warner, partly because I was a member of the pre-legislative scrutiny committee. The noble Baroness, Lady Cox, is right to say that there should be at least some reference to overseas: we should not be seen as looking at slavery exclusively within the United Kingdom. How far that should go, through high commissions and embassies, is probably a matter for Government to look at, but I think there should be some reference. I shall also speak about Amendments 67ZC and 68ZA, both of which are in my name.
I went to the European Commission anti-slavery trafficking meeting this morning as the first speaker. One of the other speakers, apart from the Minister in the Commons, Karen Bradley, was Kevin Hyland, so I took the opportunity to ask him how he sees his role. He has just sent me a long e-mail, which I shall summarise. He sees himself as exercising a very large degree of freedom. He sees himself as independent. He says that victims are at the forefront of his plans. He is very concerned about wrongful arrest, particularly of children. He is making a survivor of human trafficking one of the panel of the group that he is using. He is recruiting a policy lead externally, by advertisement, with the agreement of the Home Office; so the number 2 will come from outside, with experience of NGOs, experience on the NRM and experience of supporting victims.
The Bishop of Bath is advising Kevin Hyland on the ecumenical response, in relation to all faiths. He has a group of lawyers to look at issues and best practice. He has a group from the NHS working to look at health issues and he has asked business leaders to form another group, all of them being there to advise him. He sees his office as independent. I must say, regardless of what the words are, listening to Kevin Hyland today I was enormously heartened by what he had to say. This does not mean that we should not put the words to the deeds, but we actually have the deeds. I thought that the House would like to know that, and I thought that it was very good news.
I will add a few things to the duties of the commissioner. My Amendment 67ZC deals with the supply chain. It is splendid—the Government are to be congratulated on it; they talk about the necessity for companies to check right down the ladder and to write reports. However, nothing at the moment in that part of the Bill says who should monitor it. My amendment would allow the commissioner to have oversight and a monitoring role. I also suggested, perhaps slightly cheekily, that he should have the power to impose penalties. I am not sure whether the commissioner will have that power, but we have not yet heard from the Government who will impose penalties if companies are not prepared to obey Clause 51.
It is very important that the commissioner should receive copies of the statements required from commercial organisations so that he can check on what is going on. The commissioner seems to be the ideal person to know what commercial organisations are doing on the ground, which their reports will have to state. Of course, if they do not like doing the reports, he could be the person to pick up the phone to say, “Why haven’t you done it?”.
The other point, which is perhaps not of the most immediate importance but which is a crucial part of any commissioner’s job, is the collection of data. It is quite interesting that as far as I can see, so far in this Bill nobody has a duty to collect data. We know that the human trafficking organisation in Birmingham does not consider itself to be the data collection organisation. Now that we have the NRM report from Jeremy Oppenheim, entirely new groups will deal with that, according to the Government, who I believe say that they accept the report on the NRM. However, there will be about eight of those panels, and at the moment there is nothing to show who will collate the data on who the victims are, what is happening to them, where they come from, and so on, and the commissioner is the obvious person to do that. Therefore I would like to see those amendments in the Bill.
Baroness Royall of Blaisdon (Lab)
My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Rosser. In doing so, I also warmly welcome the other amendments in this group. We certainly subscribe to the evidence-based views of the Joint Committee on the role of the commissioner, as do other noble Lords who have spoken this afternoon. I also find of great interest the amendments from the noble Baroness, Lady Cox, on the international aspect, and I would certainly like to see that explored further.
The commissioner’s role, set out in Clause 41, is narrowly centred on promoting good practice in law enforcement and the identification of victims, which in practice also involves law enforcement agencies to a large degree. That focus on prosecutions and investigations has been emphasised by the appointment of a police officer as the commissioner-designate. Of course I note what the noble and learned Baroness, Lady Butler-Sloss, said, and warmly welcome that the commissioner-designate is determined to be independent and all the various aspirations that she cited, and that he will take advice from a very wide circle of people. However, it should not be up to the judgment of that one man to decide what his remit is and how he acts. It is extremely important for the future—for future commissioners and Home Secretaries—that the definition that we consider fitting should be in the Bill.
The limited remit of the commissioner reflects the fundamental flaw in the original draft of the Bill, which has been ameliorated to some extent already, although there is further to go: namely, the absence of measures to meet the needs of victims. Our Amendment 67ZAA seeks to widen the remit of what the commissioner must encourage in relation to good practice. The Government have raised concern that there should be no overlap with the work of the Victims’ Commissioner. However, like the noble Lord, Lord Patel, we believe that is not beyond the two commissioners in question—and I am delighted that the noble Baroness is in her place—to set clear protocols to guarantee smooth and constructive working.
Baroness Hamwee (LD)
My Lords, I have Amendment 67F in this group but, before I discuss it, I should say how much I agree with the thrust of everything that has been said this afternoon. I tabled some amendments which we discussed at the end of our proceedings last Wednesday, which went in the same direction as many of the amendments in this group. It is perhaps as well that the group was not made even longer by having those amendments in it.
The noble Lord, Lord Warner, asked why we should go to all this trouble and then constrain the commissioner’s remit and role. That seems to me to go absolutely to the heart of the issue. The commissioner should be able to take a holistic—I do not much like that word—viewpoint of everything that is going on that relates to trafficking. The issues are very complex and interrelated and our understanding of them is developing fast, so the commissioner should be allowed the scope that the commissioner designate has clearly identified. However, as others have said, we should not leave it to him to find ways round the legislation, as it were, which is what it sounds as if he is seeking to do, although I am sure that he would not put it that way.
Moreover, I wonder whether the Secretary of State should have a power to redact passages from reports in the interests of national security. I am not sure whether I am right about this, but I could not find a similar power for the Secretary of State in respect of the reviewer of terrorism legislation, where you would think that would certainly be needed. I think what this boils down to is that we have to respect the fact that the commissioners who are appointed will be entirely sensible.
My amendment picks up the point about data collection and would insert a power to collect, compile, analyse and disseminate information and statistics. The Government’s response to the report of the pre-legislative scrutiny committee, which argued for the ability to deal with data, did not, as far as I could see, address that. As Governments always do, they said that the scrutiny was welcome. However, the point was also picked up by the Joint Committee on Human Rights, which commented:
“National human rights institutions … generally do not have the Ombudsman-type power to take up individual cases, but they do have a significant role in collecting data in order to monitor the State’s performance in observing the rights of individuals”.
If I can put it less assertively, may I ask my noble friend whether he can confirm that research, which is mentioned in the clause, covers the points which I have included in my amendment? Even if the role is restricted to enforcement, which I very much hope it is not, data collection is important in enforcement. Enforcers need to know what they are up against. I also ask my noble friend whether the Government will be producing a data-sharing protocol, which is recommended in the review of the NRM. There will be another point on data later, but if the Minister is able to answer, that would be interesting.
Baroness Lister of Burtersett (Lab)
My Lords, I rise in support of these amendments aimed at strengthening and broadening the remit of the anti-slavery commissioner, which is very much in the spirit of the recommendation put forward by the Joint Committee on Human Rights, of which I am a member. The JCHR concluded that the commissioner’s mandate,
“remains weak … and narrowly focused”.
Following questioning of the Government, the committee accepted the need to avoid any overlap or confusion with the role of the Victims’ Commissioner—I see that the noble Baroness is in her place—but we said that we did not consider this to be an inevitable result of broadening the role beyond its narrow focus on law enforcement.
Amnesty made the point in its briefing that the Home Secretary has emphasised the need for a co-ordinated and holistic approach, mentioned by the noble Baroness, Lady Hamwee, to tackling modern slavery. It said that this is why it is so important that the commissioner is properly resourced and empowered to look fully across the piece. I agree with that.
The JCHR recommended that the Government should follow the model of the Office of the Children’s Commissioner, which the noble Lord, Lord Patel, has talked about. When we discussed this at our last sitting, I commended the Government for having strengthened the position of the Children’s Commissioner and made it a much stronger body than it was. That was very much to the Government’s credit, although I would add that the Minister mentioned on Wednesday the fact that the Children’s Commissioner is housed in a Department for Education building, as if that meant that it was fine for this commissioner to be. The JCHR strongly recommended against that, because it impinges on the commissioner’s independence—but that is by the by.
Despite having set up this very good model of the Office of the Children’s Commissioner, the Government deliberately decided not to pursue that model for the anti-slavery commissioner. They then pointed out that this was reflected in the much smaller budget for this commissioner than for the Office of the Children’s Commissioner. I could not help but wonder whether this was partly about trying to save money. Are they trying to have an office of the anti-slavery commissioner on the cheap? The old proverb about a ha’p’orth of tar came to mind.
I want to return to a question I asked the Minister at our previous sitting, when perhaps I did not make myself fully clear. I asked the Minister why the Government do not see the anti-slavery commissioner primarily as part of the human rights machinery, as they told the JCHR. The Minister replied that the commissioner,
“is not a national human rights institution as defined under the Paris principles”.—[Official Report, 3/12/14; col. 1382.]
However, he agreed that it would play a key part in improving our human rights response to tackle modern slavery. In my speech last week I quoted from the exchange between Humpty Dumpty and Alice in Lewis Carroll, on how we understand the meaning of words. When I reflected on the Minister’s reply to me, I rather felt as though I had walked through the looking-glass. It was, of course, perfectly open to the Government to make the anti-slavery commissioner compliant with Paris principles. That was a political decision and choice. However, they chose not to.
So let me rephrase my question. Why did the Government choose to make the anti-slavery commissioner not compliant with the Paris principles? That is: why do they believe it should not be part of the human rights machinery—not why it is not technically part of the human rights machinery—when we are all agreed that it has this key role in improving our human rights response to modern slavery? I am baffled, I have to say.
Baroness Howe of Idlicote (CB)
My Lords, I support the principle contained in Amendments 66, 67ZA and 67ZAA, but also most, if not all, of the amendments that have been spoken to, all of which are immensely important to the debate. I also congratulate my noble friend Lady Cox on what she had to say, because that dimension clearly is important and needs to be taken fully into consideration.
It is essential that the commissioner’s role engages with the experience of victims, and in particular that he should have the authority to take a leading role in promoting best practice and the highest possible standards in the care that victims are given. There are two very clear reasons for this. First, I believe that we have a duty to protect and support victims of these terrible crimes. I will speak more about how I think we need to strengthen the Bill in that regard when we reach Part 5. To see that that duty is effectively carried out, there needs to be some form of oversight—someone to champion the cause, not of individual victims, but of all victims. Good practice in how to provide support and care to victims needs to be shared with other organisations that fulfil the same role. We need someone who can independently identify that good practice and help to disseminate those models or skills to the wider network of organisations involved in this support work. The recent review of the NRM was a welcome development, but ongoing monitoring of support that is able to pick up examples of especially good care provision and identify where things need to be improved should be much more effective. I understand that there are probably some assessment processes built into the contract for providing the victim support programme, but in reading the NRM review and the report of the Joint Committee on the draft Bill I feel that there is a vital co-ordinating and monitoring role that the commissioner could and should play in this regard.
The second reason why I support these amendments is that it is well known that victims who are well supported make better witnesses in police investigations and court proceedings. It therefore seems to me that, since Clause 41 requires the commissioner to promote good practice relating to investigations and prosecutions, he may well need to encourage practice that promotes the needs of the victim as a witness. Yet, by not giving him authority to promote good practice in the support and protection of victims, he will only be able to look at improving the way that law enforcement agencies treat victims in the course of investigations or court cases, not the wider structure of support. This seems to be very short-sighted and could possibly limit the commissioner’s effectiveness.
In conclusion, I find that it is rather disappointing to discover that the role is purely focused on operational improvements in law enforcement. The title “anti-slavery commissioner” conjures up images of a much more holistic and comprehensive approach to addressing modern-day slavery in our nation. I urge the Government to accept the principle of Amendments 66, 67ZA and 67ZAA and many, if not all, of the others that have been mentioned today, and expand the role of the commissioner to include oversight of support and protection of victims.
Lord Deben (Con)
My Lords, I declare an interest as chairman of a company which, in working with companies on their corporate responsibility, has to look at ways to eradicate modern slavery in their supply chains. One therefore has some direct understanding of the problems that the commissioner will face. I associate myself with the generality of the arguments put forward, particularly those of the noble Lord, Lord Patel, and the noble Baroness who spoke so movingly earlier on. It is obviously difficult to get the balance right and none of us should ignore the fact that, if you are not careful, you have a commissioner who is commissioner for everything. The Government are trying to ensure that the commissioner has a series of priorities and deals with things sufficiently narrowly so that he is not pushed all over the place. I understand the Minister’s problems, but I suggest that there are some elements in what has been said which may not have been adequately presented in the wording of the amendments but which the Government might like to look at to see whether they can bring forward amendments themselves to cover some of the central issues.
The first of these was raised by the noble Lord, Lord Warner, who pointed to the fact that the international implications of what we are doing here must not be ignored. Modern slavery is not a national activity: of its nature, it has international ramifications. We may well not want to put in the Bill that the commissioner may work with high commissioners, ambassadors and the like all over the world, but we must have something which would make it impossible for people to object if the commissioner, in his work, were to reach out beyond the shores of the United Kingdom. Otherwise, I do not believe that he can achieve what the Bill intends.
They may not be the ways of doing it, but the kinds of implication which the noble Baroness, Lady Cox, put forward have got to be thought of seriously by the Government. In practical terms, you may be working with a British company but, in order to give advice on its corporate responsibility, you have to deal with some possible slavery situation far away. If you were restricted in not being able to be in touch with, deal with and discuss with people in those countries, you would not be able to do your job properly. That is an important parallel with the commissioner.
Secondly, independence is a vital part of this. I am very excited about the Bill: it is another of those occasions when Britain has taken a significant step ahead of very many other countries. As chairman of the Climate Change Committee, I see a sort of parallel to this. We are doing something of real value to the world as a whole. Drawing from my experiences with that committee, it is of considerable importance to your independence that you are seen not as a departmental subject but as open to advising the Government as a whole. I therefore hope that the Government will look again at exactly how the terms of the relationships between the Home Office and the commissioner are drawn. This is not because I think that either this Home Secretary or this commissioner will find it difficult to work together. It is that we are not legislating for this Home Secretary or this commissioner; we are legislating so that the office of commissioner shall develop in the way that offices develop in the context of different personalities in the Home Office and as commissioners.
Therefore, I hope that the Minister will think seriously about whether there are ways to make sure that the independence of the commissioner can be seen to be clear even in those countries where the idea of independence is quite difficult—which brings me to the core of this argument. We are of course legislating for Britain but we know that we may well be legislating in a way that will be copied by others. Indeed, Ministers have been very clear in saying that they hope that this will be copied by others. It is true that we will not deal with modern slavery unless it is copied by others.
The Government need to be very careful about assuming that, if you have the relationship which at the moment is adumbrated in the Bill, people will understand that the commissioner is as independent as he actually is. The wording about redaction and the like can easily be adapted by those countries where what that would mean would be that the commissioner would not be independent at all but would be the subject of whatever is their equivalent of the Home Secretary. One thing that we need to be careful about here is not to feel that other people carry with them the cultural understanding that we have when we talk about independence and know that that independence will in our system be properly respected. When my noble friend replies, I hope that he will not say, “Well, we all know that it will all be independent and perfectly all right”. Even if we knew that, the Bill will not be seen by others in the context of that knowledge. Therefore, getting the wording right and making sure that the independence is clear is crucial.
As chairman of the Climate Change Committee, I have to say that it is extremely helpful to be able to point to the Act and say, “I am doing this because the Act tells me not only that I have a right to do it but that I have a duty to do it”. That is important because the choice of what you do does not of itself imply a political or other bias. I am now about to start on the report which will assess the success of the Government in mitigation and adaptation, which will come out in the middle of next year. No one can say that it will come out in June because I have chosen the moment in order to inform some possible new Government; it comes out in June because the Act says that it has to come out in June. That gives enormous independence, because it makes sure that the choice cannot be cast into dispute.
My worry about the way in which this commissioner’s job is placed is that, at the same time, it appears to restrict him and not to give him sufficiently strong direction for him to be able to say, “I have done this because the Act requires me to behave in this way”. So I suppose that I am asking the Government particularly to listen to today’s debate and to say to themselves, “Are we sure we’ve got this balance quite right? Can we take from what has been said today a sufficiency of advice and information to rewrite this part of the Act in order to make the amendments perhaps not as extensive or as detailed as has been suggested but to make such amendments as will ensure that what the commissioner says he wants to do will be absolutely congruent with what the Act says he ought to do?”.
Otherwise, if from the beginning he does what the noble and learned Baroness, Lady Butler-Sloss, reports that he intends to do, there is ground for arguing that that is in some sense outwith the scope of the Act. I have a very simple worry, and I ask my noble friend to accept it entirely in this spirit: it is that this great démarche—this Act of such importance—might find itself in this kind of argument, which is the last thing we want, very early on in its implementation.
Lord Browne of Belmont (DUP)
My Lords, I have just a few remarks to make on Amendment 67AA, tabled by the noble Lord, Lord Rosser, and the noble Baroness, Lady Royall. These amendments all seek to remove the restrictions placed on the commissioner in respect of the ad hoc reports that he may write. As has been said before in this House, the independence of the commissioner is key to his effectiveness and his credibility among civil society and with colleagues in similar roles in other countries. The ability to report on any pertinent matter as the commissioner sees fit is a vital part of building that independence.
I wish to highlight one aspect of the restrictions that particularly concerns me. Changes were made to the definition of a “permitted matter” on which the commissioner could make ad hoc reports in order to allow the commissioner’s work to be extended to Northern Ireland and to Scotland, with devolved Ministers having a significant role in relation to the commissioner’s work alongside the Home Secretary. I welcome the inclusion of these references to the devolved Ministers as I believe it will make a contribution towards the separation of the commissioner from government priorities. However, in making this change, the ability of the commissioner to make reports on his own initiative has been further restricted, and that concerns me greatly.
In the Bill that was introduced to Parliament in June, a “permitted matter” under this clause was defined as a matter on which the Secretary of State had authorised the commissioner to report, or which was contained in the commissioner’s current strategic plan and therefore previously approved by the Secretary of State under the mechanism for approving those plans; whereas we now see that Clause 41(4)(a) states that a,
“‘permitted matter’ means a matter which—
(a) the Secretary of State”,
or the devolved Ministers,
“have asked the Commissioner to report on”,
or a matter in the pre-approved strategic plan.
In adding these references to the devolved Ministers, “authorised” has become “asked”. No longer can the commissioner initiate an idea for a report outside of the strategic plan and seek the authorisation of the relevant Minister to make the report—and one might consider even that to be rather restrictive. Under the present clause, the commissioner can report matters that are not included in his plan only if the Home Secretary or the devolved Ministers ask him to make such a report. In my opinion, it would have been possible to amend the text of the Bill to include references to the devolved Ministers without further narrowing the commissioner’s capacity to initiate reports. I believe that this additional restriction is most unfortunate and I would urge the Minister to look again at this part of the clause.
Baroness Hodgson of Abinger (Con)
My Lords, we all recognise that the work and functions of the commissioner are of paramount importance to make the role effective. Because victims are often trafficked from other countries, I support the view that surely it is important that the commissioner is able to work and co-operate with people and bodies abroad, as suggested by the noble Baroness, Lady Cox, in her Amendment 67.
Amendment 68, tabled by the noble Lord, Lord Warner, talks about,
“engaging with international commissioners or equivalent persons”.
The sharing of best practice and the findings of similar bodies in other countries would be of mutual benefit in trying to stop this heinous practice. At Second Reading I spoke about the role of the commissioner in providing a central resource to gather data and information, to monitor trends, and the impact of policies and legislation. Working with people in other countries would greatly facilitate that work. Amendments 72 and 73, tabled by the noble Baroness, Lady Cox, would include the involvement of our embassies and high commissions. That would have the effect of ensuring that they are aware of what is going on in the countries they serve in and guarantee that modern slavery is on their radar.
Widening the remit of the annual report in Amendment 74 would mean that what is happening in the UK is set in a global context. That is because bringing trafficking and slavery to an end cannot be done by one country alone. We are thus going to have to work closely with other countries and we need to monitor and understand what is happening across the world so that abolition can really be tackled. I look forward to hearing from my noble friend the Minister about this.
One of the criticisms made of the Bill at Second Reading was that it is focused too much on targeting traffickers and not enough on helping victims. It is terribly important that victims who have suffered so much are supported in the best way possible, as has already been mentioned by the noble Lord, Lord Patel, and others. Victims of trafficking are surely special cases. By the fact that they are trafficked, these victims often have no home in this country and are in a foreign land, and perhaps they do not even speak the language. They probably have no money and only the clothes they stand up in. They need special support and assistance if we are to ensure that, having been freed, they have choices about how to move forward in their lives. If the anti-slavery commissioner is not focused on the support of victims, I believe that a strong and special mechanism must be put in place for that. I hope that my noble friend will give further consideration to this aspect so that we can ensure that those who have fallen victim to being enslaved have the best chance of putting their lives together again in the future.
Baroness Kennedy of Cradley (Lab)
My Lords, I rise to speak in support of Amendments 72, 73 and 74 in the name of the noble Baroness, Lady Cox. Her amendments rightly seek to ensure that the Bill has an international remit by providing that our diplomatic missions across the world have a duty to engage with foreign Governments and international NGOs on human trafficking and slavery, that the anti-slavery commissioner has a duty to receive those reports and learn from and act upon them, and that through the annual plan, Parliament can debate them. Having each embassy and high commission produce an annual report on government action to fight slavery and trafficking would mean that there will be more thorough research into slavery across the world. It will mean greater dialogue with a wide variety of world government officials, NGOs, journalists, academics and survivors. It will mean that the issue of slavery and trafficking will rise up the world’s political agenda.
Through these annual reports, the UK will be fulfilling an important global leadership role. Involving embassies and high commissions in preparing annual reports about trafficking and slavery in its areas of operation is not new. The US has been doing it for the past 14 years —since 2001 it has produced a Trafficking in Persons Report—and the UK should do the same. I ask the Minister why the UK cannot do the same. The more information we collate and share across the world, the better our national and international responses will be. Having official reports on an annual basis which set out the scale of the problem in each country, the forces that lead to the slavery, the conditions that need to change to fight the slavery and what works best to tackle the root causes of slavery, protect the victims and prevent it from happening in the first place, will lead to the global solutions we need to eradicate this global problem. There is much we can learn from around the world.
Although I welcome the notes in the Modern Slavery Strategy that modern slavery will be included in the country’s annual plan, those embassies target only a small number of countries. If we can increase embassy engagement throughout a wider group of countries we can learn much more. For example, a pilot project conducted in the Netherlands offers specialised assistance and shelter to male trafficking victims. There is also a partnership with the Government of Norway whereby caseworkers in the field are using mobile technologies in Uganda to collect information about the protection needs of young trafficked children. In Austria, youth public awareness campaigns about local trafficking are taking place through school exhibitions and the provision of resources for teachers.
In this way, the annual reports would play a key role in shaping the debate and have a positive contribution to our ongoing dialogue here in the UK. As well as being a valuable source of information, these reports would also prove very useful for NGOs and civil society. They would serve as an additional tool for advocacy and a benchmark for evaluation. They would allow NGOs and others to build stronger relationships with high-level policymakers across the world. The reports would also, I hope, allow us to hear more clearly the international voices of survivors. There is much that we can learn from survivors. They know better than anyone what Governments need to do to identify and protect those who are enslaved and to bring to justice those who are responsible.
Finally, one particular feature of the US Trafficking in Persons Report which I think we should replicate here is the annual recognition that it gives to individuals around the world who have devoted their lives to fighting human trafficking. This year, among others, they honour a former orphan from the Democratic Republic of the Congo who has spent his life providing support for vulnerable children; a leader of 75 front-line anti-trafficking workers in northern India; a director of a centre for victims in South Korea; and the first trafficked victim in Peru to face her traffickers in court. These are inspirational people working day in, day out to fight slavery and trafficking, deserving of international recognition but not wanting it. For them, having British embassies and, through them, the British Government take an active interest in their work, listen to their survivor stories and learn from their work, are recognition enough. We should give it to them. I therefore hope that the Government will support the amendment in the name of the noble Baroness, Lady Cox.
Lord Hylton (CB)
My Lords, I have listened to the debate on this group of amendments, and I agree very much with the noble Lord, Lord Deben, and with a number of previous speakers. I do not know to what extent the Foreign and Commonwealth Office was consulted during the drafting of the Bill, but even at this stage I think it should be consulted.
I am glad that Clause 51 is in the Bill, but it must inevitably bring in an international dimension—and who else will deal with that dimension if not the commissioner?
It would be most helpful if the Minister could say that he will take away all these amendments and come back with appropriate government ones on Report. If such government amendments could be published at least a few days in advance of Report, that also would be very beneficial.
Lord Judd (Lab)
My Lords, it would be inconceivable to move forward with this legislation without an international dimension to the Bill. As somebody who has worked in international work professionally for much of my life, it seems to me that there are two fundamental points to be made about this. The first is that the issue with which we are dealing is international by definition, and therefore the response has to be international. We cannot be as effective as we should be unless we are taking that into account and making it central to our whole approach.
There is the whole psychological and social dimension as well. When dealing with youngsters in this incredibly traumatic and sensitive situation, not to have a relationship—and a growing relationship—with those grappling with the problem internationally calls into question how far we will be able to understand the background and underlying issues in the context of a particular child. This is a challenge to humanity and the response has to be by humanity overcoming national frontiers and borders, and making sure that we work with those who care and are putting their whole lives into tackling this problem, not working quite separately from them.
Baroness Newlove (Con)
My Lords, I ask the Minister to listen to some of the views in your Lordships’ House in respect of the support for victims. As the Victims’ Commissioner for England and Wales, I welcome much of what is in the Bill and, as I mentioned at Second Reading, I look forward to working with the anti-slavery commissioner at an early stage to ensure consistent, co-ordinated and high-quality support for victims of trafficking. It seems that as it stands, the Bill considers the needs of victims to be mainly in securing successful prosecutions of the perpetrators. While I want to see the guilty convicted and punished, I want the Bill to go further for victims of trafficking by helping to ensure that they are helped to recover and supported in leading fulfilling and healthy lives.
We in your Lordships’ House have all been shocked to learn about the experiences of some of the victims of trafficking. We have heard about the physical, sexual and emotional abuse and about almost unimaginable cruelty, so we should understand that helping victims to recover cannot be achieved in a matter of weeks or months. It may take a number of years, or indeed a lifetime. Yet I have seen for myself that with the right support, victims can be helped on to a recovery journey and to get on as best they can. We must not stop the support for victims of trafficking when a court case is over; we must consider them as a traumatised human being, not simply as a means to secure a conviction. That is why I want to work with the anti-slavery commissioner; I want to ensure that the victims of these terrible crimes can access good-quality services for as long as they need them.
I had a very helpful meeting with my noble friend the Minister last week to discuss these issues and I would welcome meeting the anti-slavery commissioner soon. We considered a number of options which may come under the duty to co-operate in the Bill. We could have a memorandum of understanding to make sure that there is nothing specific between the victims’ commissioner and the anti-slavery commissioner. We could specify in more detail how the commissioners could work together regarding the commissioning and quality of services, and the provision of services for victims. We could also have the two commissioners co-operating by agreeing in letters to work together to make sure that we support the services of victims.
What matters to me most is not how this co-operation is achieved but that it is achieved. As victims’ commissioner, I want all victims to have a voice and for them to be helped to recover from their ordeal. The quality and duration of the help they need should be determined by their needs and not by the type of crime they have suffered. The criminal justice system should expect to fit around the victim instead of the victim fitting around the system, as is the case today. As I said at Second Reading, I look forward to meeting the anti-slavery commissioner to consider some of these options, but I ask the Minister to look at how the support of victims is going to be carried forward. We need this Bill and we welcome it but as victims’ commissioner I meet many victims and we have to support them through the lifetime of their journey to make them better people and to give them healthier lifestyles.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, it is a privilege to be able to respond to this extraordinarily high-quality debate. It is a large group of 26 amendments and there have been 15 excellent speeches. In the time permitted it will perhaps not be possible to go into every detail but I assure noble Lords we will—as we have done throughout—pay considerable attention to all the points made very powerfully and eloquently during this debate and seek to respond to them as we go through the remaining stages of the legislation in your Lordships’ House.
I will try to direct as many of my remarks as possible to addressing the many specific points that were made. The noble Lord, Lord Warner, began in good style by asking me to reflect on the previous legislation which had just secured its passage through your Lordships’ House, and invited me to think about whether we ought to be as accommodating of amendments. I want to put on record that the Government continue to amend and refine this piece of legislation in the light of our own experience and consultations but also in the light of the comments made and the concerns expressed by Members of your Lordships’ House and, indeed, the other place. As evidence of that I was just calculating that there are 16 government amendments in the Marshalled List today and there will be many more to come.
We have seen the Bill strengthened to include child trafficking advocates. There have been changes with regard to the victim’s personal circumstances, including their age. There is a statutory defence—which was a major change—and reparation orders to ensure that victims are actually compensated. Identification of victims has become part of the commissioner’s remit and the commissioner’s independence has been put in the Bill. We have had a new clause on supply chains, which was introduced in the other place. We have had a requirement on child trafficking advocates to act in the best interests of the child. We have introduced a statutory defence for victims. We have introduced an amendment so that a lack of consent is not required; it applies to all children. I do not mean to be tedious and to test the patience of your Lordships’ House but I put on record that the Government have engaged with people across the House, recognising that this is a landmark—or démarche as my noble friend Lord Deben put it—piece of legislation. We all want to make sure that we get it absolutely right.
As the starting point of an excellent contribution, the noble Lord, Lord Warner, referred to pre-legislation scrutiny in refining this legislation. It identified four elements—prevent, protect, prosecute and partnership. It is no coincidence that when the modern day slavery document was produced just before Committee in this place we identified four elements—prevent, protect, pursue and prepare. They broadly followed that line of alliteration highlighted in the previous Bill and in the previous consideration of this, so that is part of what we are trying to do.
The noble Lord, Lord Patel, said that he was very concerned about redaction, essentially. That is a key concern that a number of noble Lords have referred to. He wondered how this fitted in with other commissioners and whether it was going to be singled out and limit the effectiveness of the designated Independent Anti-slavery Commissioner. I draw noble Lords’ attention to Clause 41(6)(a), (b) and (c). That is not simply carte blanche to say that matters can be redacted from the report that may lead people out there to question its independence and authority. There are very specific instances that would be given where, for example, something,
“would be against the interests of national security, … might jeopardise the safety of any person in England and Wales, or … might prejudice the investigation or prosecution of an offence under the law of England and Wales”.
When I say England and Wales, I mean simply that the Bill goes on to reference Scotland and Northern Ireland after that.
I know that my noble friend Lady Hamwee asked whether this was required under the independent reviewer of terrorism legislation provision. That is the case; the Secretary of State must be satisfied that it will not prejudice criminal proceedings. Then there is the Independent Chief Inspector of Borders and Immigration. If the Secretary of State thinks the content is undesirable for reasons of national security or might jeopardise individual safety, then information can be redacted under those very narrow and specific circumstances. It was actually with regard to the latter case that we sought to draw the wording for this part of the Bill from the latest piece of legislation that we had. It has very specific elements in it.
With regard to the location of the commissioner, I am aware of the view that he should perhaps sit outside the Home Office; we had that debate, and a number of noble Lords said that. Physically, he sits outside the Home Office in Globe House, with the Independent Chief Inspector of Borders and Immigration. It was interesting to talk to Kevin Hyland last week. We went through the comments that had been made in Committee on Wednesday. He expressed the view that being attached to the Home Office, rather than standing alone, helped his case. He coined a phrase to me, which he gave me permission to use, that if he were on his own it would be a bit like being a corner shop trying to take on Tesco, although I suggested that we use the word “Sainsbury’s” just in case that was not appropriate. The point is that he would be a small, independent operator seeking to battle in the marketplace with a major government department. The fact that he carries the weight behind him of one of the major offices of state seems to him to help rather than hinder his case.
Those sentiments were backed up by the conversation that Kevin Hyland had with the noble and learned Baroness, Lady Butler-Sloss, at the meeting this morning of the European Commission, where he seemed to reiterate that he felt that he was given a degree of independence to operate as he saw fit. Linking back to the conversation we had on Wednesday in Committee, he also made the point that he felt he had freedom to appoint from outside the pool of the Home Office. I have since sought clarification of that and that is the case. I can inform your Lordships’ House that he is at liberty and not restricted to drawing from the Home Office. He might draw from there some of his more junior roles, but the request was that the senior roles should be ones that he appoints and that they should be people who he wants to head up particular elements. Therefore, I was heartened that some of the appointments he was discussing were at a senior level but from outside.
Baroness Royall of Blaisdon
In terms of independence, the point was made very forcefully by the noble Lord, Lord Deben, and others, that it is not a matter of personalities. The commissioner-designate is clearly a jolly good chap and all that but this is not about him. This is about the role of the commissioner, how the role is seen by other countries, and the ability of the commissioner to interact with other agencies both here and abroad. Therefore, I ask the noble Lord to address that point. Might it also be possible for him to organise a meeting with the commissioner-designate for all Peers who might be interested?
Lord Warner
When the Minister replies to my noble friend, could he say how what he said about Kevin Hyland’s views squares with Clause 40(4), which makes it very clear—if I understand the English in the Bill—that the Secretary of State is in the driving seat on the staff made available to the commissioner? If I may put this rather unkindly to the Minister, he may be dropping the commissioner who has been appointed somewhat in the cart, in that it may convey to your Lordships’ House that this man actually is a creature of the Home Office rather than the other way round.
Lord Bates
I certainly would not want to do that. I agree that there should be a meeting. I would be very happy to facilitate that meeting, perhaps between conclusion of Committee and Report. My reading of Clause 40(4) is that, as these appointments are within the Home Office and as the Home Secretary has made this a personal passion, then clearly from a procedural point of view there ought to be a sign-off from the Secretary of State to those positions. That would seem eminently sensible in the sense that they are accountable to your Lordships’ House, delivering on the strategy before us.
Lord Warner
I want to press this point with the Minister as we are in Committee. Is he saying then that other commissioners in the Home Office or outside, such as the Children’s Commissioner, get sign-off from the departmental Secretary of State before they appoint people?
Lord Bates
On that point, one of the things I was coming to in my rather conciliatory wind-up at the end—but I will bring it forward if I can—was to say that of course we are open to ensuring that, in the words of the noble and learned Baroness, Lady Butler-Sloss, the words match the deeds. If refinement is necessary to communicate what is happening—namely, that we have an Independent Anti-slavery Commissioner who is appointing his staff, in whom he has confidence, and setting up his operation in a way that he sees fit and will be held accountable for—then we will continue to look at that.
The noble Baroness, Lady Cox, reminded us of the global dimension. Again, that is extremely important and we are mindful that we need to look at ways in which that could be strengthened. In the strategy document—the noble Baroness referred to this element, as did the noble Baroness, Lady Kennedy of Cradley—we have strong sections on page 54, from section 6.9 on, which talk about country plans. I know the point was made that these country plans ought to cover all countries, all high commissions and all embassies. However, with limited resources, we want to make sure that at least those countries that we are all aware must be at the vanguard in stopping the trafficking and tackling the problem are the ones that we direct resources to. I am delighted to see on the Front Bench my noble friend Lady Anelay, who will confirm that we have a number of projects, though the FCO and DfID, working on tackling modern-day slavery in India, Bangladesh and west Africa under the Work in Freedom programme working in partnership with the ILO. Those projects are also working with girls and women in south Asia and in the Middle East in the domestic worker and garment manufacturing sectors. Therefore, those are specific projects that we are doing.
Does more need to be done? Yes. I recognise in particular the noble Baroness’s deep expertise in this area and long track record, as she very kindly gave me a copy of her latest book, This Immoral Trade. I was particularly struck by some of the chapters where she had taken direct verbatim evidence from people who had been victims in South Sudan and Uganda. There were some inspirational stories as well, such as the young man who had gone on to compete in the Olympics, despite having been trafficked as a young boy. Therefore, I am aware of the need for us to go further. I think that that will be something that can be included in the anti-slavery commissioner’s strategy and plan. In fact, we would like to see that enhanced and expanded.
We have also experienced over the past few days the major conference that took place at Lancaster House, addressed by the Home Secretary and the Independent Anti-slavery Commissioner designate. It was attended by 30 countries of the Santa Marta group—a group set up by the Home Secretary with other countries to try and get a more co-ordinated and robust international response. I hope that noble Lords will feel heartened by that. I can also advise noble Lords that, ahead of their next meeting next year, the group of 30 countries working hand in hand in this area, in partnership with the churches, including the Vatican and the Bishops’ Conference, have identified how this can be prosecuted further. They indentified four topics to work on: exploiting technology to tackle the problem; education and raising awareness among professionals, particularly with children; increased engagement with the diplomatic community and embassies; and the fact that new models of exploitation continue to emerge. That is the working task of the Santa Marta group. I would certainly be happy to facilitate a meeting and engagement between that working group of the Santa Marta group and noble Lords with an interest in that area.
Regarding the comments raised by the noble and learned Baroness, Lady Butler-Sloss, about the supply chain, I am getting briefing on that coming through to me, but it may well arrive in time for our next day in Committee on Wednesday, when we will look at the supply chain in more detail under Part 9.
The noble Baroness, Lady Royall, to whom I pay tribute for her long track record in this area, asked about, among other things, the operation of the interdepartmental ministerial group on modern slavery. I can confirm that the Home Office chairs that group and it works closely with the Foreign and Commonwealth Office and DfID, as would be expected. The Ministry of Justice, in which the Victims’ Commissioner my noble friend Lady Newlove is located, the Department for Education, where the Children’s Commissioner is represented, the Department of Health, the Department for Work and Pensions, the Attorney-General and the Department for Business, Innovation and Skills all take part in that cross-departmental group.
My noble friend Lady Hamwee asked for specific information on data sharing. Clause 41(3) sets out a non-exhaustive list, simply giving some examples of what the commissioner may do. The commissioner may already collect statistics if he feels it would be useful to him. Indeed, this is also covered by the express reference to research in Clause 41(3)(c). We are therefore not convinced that we should seek to insist that the commissioner focus on collecting statistics, given that the interdepartmental ministerial group on modern slavery is already formally tasked with reporting on trafficking statistics. Indeed, statistics are also a major element of the Review of the National Referral Mechanism for Victims of Human Trafficking, which has already been referred to. Section 9 highlights “Data and Intelligence” and the changes that should be made there. There are several recommendations on page 58 on data and intelligence gathering. The Home Secretary has already said that she accepts in principle all the recommendations.
The noble Lord, Lord Patel, asked whether the redaction of reports is different for the Children’s Commissioner. The Independent Anti-slavery Commissioner will be able to require law enforcement agencies to provide sensitive information concerning ongoing investigations into modern slavery offences. This may include information on law enforcement criminal investigation capabilities. The redaction powers are there to ensure that matters of important public interest are not inadvertently put at risk. We would not expect the Children’s Commissioner to request sensitive operational material, but this may be an important part of the anti-slavery commissioner’s role. We have therefore included the redaction power in the Bill.
My noble friend Lady Hamwee asked whether this works across the independent reviewer of terrorism legislation. I reassure my noble friend that the independent reviewer of terrorism legislation also has safeguards built into the legislation regarding reports. The Secretary of State must be satisfied that a report will not prejudice criminal proceedings, as set out in Section 36 of the Terrorism Act.
My noble friend also asked about introducing data-sharing protocols. The Home Secretary has agreed in principle all the recommendations in the national referral mechanism review. They included data-sharing protocols.
The noble Baroness, Lady Lister, was probably having another go at trying to get an answer, so I hope that this is a more satisfactory response. The focus of the commissioner is to drive improvements in the operational response to tackle modern slavery. On the ground, the Government expect that in pursuance of this objective there will be significant human rights benefits. However, the Government are confident that it is not necessary to create a national human rights institution like the Equality and Human Rights Commission in order to achieve this goal. I hope that goes somewhere. Perhaps when she reads it in Hansard, it might help. If not, then of course the opportunity to come back is there.
Lord Warner
My Lords, the last part of the Minister’s remarks was, I think, the most helpful. We have heard some extraordinarily powerful speeches this afternoon, particularly from the noble Lords, Lord Patel and Lord Deben. The Minister said he would reflect on those views. The mood of the House is very clear across the Benches that the remit of the anti-slavery commissioner needs to be widened and the shackles of the Home Office need to be loosened in the Bill. I noticed, slightly twitchily, that the Minister talked about the modern slavery strategy almost, on occasion, as a kind of substitute, avoiding memoranda of understanding—devices, I would suggest, for avoiding making some of these changes to the Bill. I think that most noble Lords who spoke this afternoon expect the Minister to come back with some changes in the Bill about the remit of the anti-slavery commissioner. As long as the Minister is clear about that, I am very happy to withdraw my amendment.
Baroness Garden of Frognal (LD)
My Lords, I shall speak also to Amendments 70, 71, 75 and 76 in this group. I suspect that this group will not detain your Lordships to quite the extent that the first group did. As noble Lords will be aware, when the Bill was introduced in June, the remit of the Independent Anti-slavery Commissioner was limited to England and Wales. After very constructive discussions with the devolved Administrations, the Government brought forward amendments in another place to extend the remit of the commissioner to cover the whole of the UK, subject to the approval of the Scottish Parliament and Northern Ireland Assembly.
The amendments I propose today are technical changes to ensure that the limited and specific redaction powers in relation to reports made by the commissioner fully reflect responsibilities within the Scottish Government. These amendments make it clear that, where a report may inadvertently prejudice the prosecution of an offence under the law of Scotland, the Lord Advocate is the appropriate person to remove the necessary material from the report. We have worked closely with the Scottish Government to extend these measures and are content that the commissioner will still work effectively with this amended redaction power.
A supporting memorandum of understanding will set out the timeframes around the exercise of the redaction powers to ensure that there is no undue delay in the publication of the commissioner’s reports. Given that these amendments support the UK-wide remit of the commissioner, I hope that the House will support them. I beg to move.
“( ) The Lord Advocate may direct the Commissioner to omit from any report before publication any material whose publication the Lord Advocate thinks might prejudice the prosecution of an offence under the law of Scotland.”
Lord Warner
Lord Warner
My Lords, I shall speak also to Amendments 72D, 73B, 74AA, 74CA and 74DA in my name. These amendments are all designed to give the anti-slavery commissioner greater freedom of manoeuvre in dealing with the Home Office and to prevent endless procrastination over the release of reports submitted to the Home Secretary and the Home Office, particularly if they contain what I would call “unacceptable messages”. We have been over this ground in both sets of amendments at some length. This is all of a piece with some of our earlier discussions. We have certainly seen in real life how reports of other independent sources of inspection or advice can—how can I put it?—languish in government department in-trays. Some of these amendments attempt to address real issues.
I accept that my amendments are pale imitations of the more radical amendments moved and discussed by the noble Lord, Lord Patel, in the previous group. I would certainly withdraw some of mine if the Government were moved to accept many of his. That is not bargaining across the Table but a statement of fact; the noble Lord has some very powerful amendments which deliver more effectively than my amendments. I do not always travel hopefully about whether Home Office Ministers in this place are able to deliver changes, so I shall press on with my more limited amendments.
Amendment 72ZZA requires the commissioner to produce a three-year plan, not just a one-year plan. That enables him—sensibly, I think—to plan ahead for a reasonable period of time. Amendment 72B removes the detailed control of the Home Office over the plan, as prescribed in Clause 42(4), (5) and (6). These seem totally superfluous, given that Clause 42(1) already gives the Home Secretary the power of approval over the strategic plan. Why do we need these extra, more detailed control methods, other than to demonstrate what we have said for some time about the Bill: that it too often finds ways of controlling the room for manoeuvre of the anti-slavery commissioner?
Amendment 73B removes the detailed Home Office control over the nature of the commissioner’s annual report by removing Clause 42(9). It is another attempt to loosen the shackles, in the phrase I used earlier. Amendments 74AA, 74CA and 74DA are designed to ensure that Ministers do not delay in laying the commissioner’s annual report before Parliament, the Scottish Parliament and the Northern Ireland Assembly. They all require the annual report to be laid within a month of receipt by the particular Ministers.
These amendments are in the best interest of the commissioner’s independence and safeguard the position of Parliament and the Northern Ireland Assembly. We have to remove some of these controls in order to give the commissioner more freedom of manoeuvre and to ensure that important reports are not delayed in reaching Parliament and public scrutiny. I beg to move.
Baroness Hamwee
My Lords, I have Amendments 73ZA and 74ZA in this group and it would be very odd if I did not agree with the noble Lord, Lord Warner, given the debate we have just had. I do not think that I need to lay it on with a trowel. However, I will use this opportunity to refer to the duties of the independent reviewer of terrorism legislation, because Section 36 of the Terrorism Act 2006, to which my noble friend referred, has a mere six subsections, and that is it—and he gets on with it. I have still not been able to find the constraints on his report, which would take the form of redactions, to which my noble friend referred. However, as I said, I can understand the need for them for the commissioner as well as for the reviewer.
Lord Bates
My Lords, I thank the noble Lord, Lord Warner, and my noble friend Lady Hamwee for tabling their respective amendments. The provisions that we have put in the Bill enable the commissioner to produce strategic plans and to report in a way that will make a real difference to the fight against modern slavery. Those are important and necessary aspects of the role.
Amendment 72D would remove subsections (4) to (6) of Clause 42, which set out what the plan involves. Removing those subsections would weaken the effect and focus of the plan. It is important that the commissioner sets out a clear plan of action for the time period they specify. The commissioner will be best placed, in consultation with the Secretary of State, to determine what should be in the plan and the period of the plan. Removing those subsections would also seriously weaken the constructive and collaborative relationship we want to establish between the Secretary of State and the commissioner, because the amendment would also remove the provision which permits the Secretary of State to propose modifications to the plan for the commissioner’s agreement.
I fully understand the intention behind this amendment and the concern that the independence of the commissioner should be guaranteed. However, I should set out at the start of my contribution why the provisions in the Bill which relate to the plan take the right approach. If the Independent Anti-slavery Commissioner is to make a real difference on the ground, it is important that he should have a constructive relationship with the Secretary of State. In that way, even if the commissioner’s reports are highly independent and very critical, there is a good chance that they will be implemented and make a real difference, not only through the Secretary of State but through the interdepartmental ministerial group.
The provisions in relation to the commissioner’s strategic plan and reports reflect that. It is the commissioner who prepares the strategic plan. He defines his own role: setting out priorities, objectives, areas he will report on and other activities he will undertake. It is the commissioner who decides how long the plan should last, between one and three years. There is then an opportunity to ensure that there is effective collaboration with the Secretary of State and the devolved Administrations through the process set out for the Secretary of State to approve the plan after consultation with the devolved Administrations. That ensures that the commissioner’s work will properly cover the whole of the UK and that it respects devolution settlements. However, the Secretary of State cannot rewrite the plan. She can approve a plan only where any changes are made with the agreement of the commissioner, so the principle of the independence of the commissioner is respected at all times.
Amendment 73B is consequential on Amendment 72D and removes what the annual report must include. Although I appreciate why the noble Lord has tabled such an amendment, it would not help the commissioner to focus on his key priorities. It is important that the plan indicates what the commissioner will do and the report provides an assessment of how the commissioner has undertaken the activities proposed in the plan. That would mean that the report is not structured or focused on tackling the issues that have been collectively identified as priorities.
Amendment 72ZZA seeks to require the commissioner to prepare a three-year plan as soon as reasonably practicable after their appointment. The commissioner can already prepare a three-year plan under the existing provisions. However, the commissioner may wish to draft a plan for a shorter time period, particularly when first in the role, which is why the provisions enable the commissioner to produce a plan that is between one and three years in length. That gives the commissioner the flexibility to decide the period of any plan, based on what he proposes to deliver in that specified time period and having regard for any other relevant factors.
Amendment 73ZA in the name of my noble friend Lady Hamwee seeks to require the commissioner to report on the voluntary sector’s role in relation to providing protection and support for victims and to make recommendations. I have made it clear that the commissioner will set the strategic plan, in consultation with the Secretary of State, and that the plan will be focused on delivering the commissioner’s key aims; namely, to encourage good practice in the prevention, detection, investigation and prosecution of modern slavery offences and the identification of victims.
At this point I join my noble friend in paying tribute to the remarkable work that the charities and NGOs which operate in this area have done over very many years. In many ways this has come to the fore. It has been picked up as an issue by government and is now in the public square. However, long before it arrived there, many of the NGOs and charities to which my noble friend referred had been doing invaluable work in looking after the broken lives that are the result of these crimes.
I firmly believe that the commissioner in setting out his plan will have full regard to the voluntary sector. The noble and learned Baroness, Lady Butler-Sloss, referred to her conversation with Kevin Hyland, who talked about the importance of NGOs and said that he would perhaps draw someone into his senior team who has a significant and respected NGO background to underscore the importance of partnership in that work. I firmly believe that the commissioner should develop his plan first and I am not convinced that it would be helpful to his independence to dictate very specific areas that he should include at this stage.
Amendment 74ZA seeks to require the commissioner to report on the extent to which he has undertaken activity in providing information, education or training. Of course, that is exactly the type of information that we would expect the commissioner to include in any annual report, as well as the other things he may do in pursuance of his functions as set out in Clause 41(3). However, it is not necessary to specify that the commissioner must report on this particular aspect over and above the other things he may do. In addition, we should not stipulate to such an extent the things that the commissioner must report on. That is exactly the type of constraint we are seeking to avoid.
Finally, Amendments 74AA, 74CA and 74DA require the Secretary of State, the Department of Justice in Northern Ireland, and the Scottish Ministers to lay any strategic plan or annual report they receive from the commissioner as soon as reasonably practicable and no later than within one month of receiving it. Again, I fully accept the intention behind these amendments—to get the reports and plans laid quickly—but they are not needed. The pre-legislative scrutiny report raised this concern. The Government responded positively by altering the Bill so that the annual report has to be laid as soon as is reasonably practicable, as was the Government’s intention in any event. In addition, to support the laying of the strategic plans and annual reports produced by the commissioner, we will be developing a memorandum of understanding between the Secretary of State, the Department of Justice in Northern Ireland and Scottish Ministers to ensure that plans and annual reports are laid promptly and simultaneously, following receipt from the commissioner. This is an area on which all the Administrations agree so that Parliaments and legislatures can undertake scrutiny of them.
In responding, I should deal with the point raised by my noble friend Lady Hamwee about Section 36 of the Terrorism Act 2006. With regard to redaction under subsection (5):
“On receiving a report under this section, the Secretary of State must lay a copy of it before Parliament”
as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings. That is the only element there.
With those comments and assurances, and in the spirit in which I dealt with the previous group of amendments—that we remain open to considering all the comments made—I ask the noble Lord to withdraw his amendment.
Lord Warner
My Lords, I accept the emollient way in which the noble Lord has responded. We seem to be making progress. When I tabled these amendments I recognised that they were makeweights to the rather wider, more sweeping amendments that were in the previous two groups. As the noble Lord goes away and reflects, he should look again at the evidence to the Joint Committee from the overseas rapporteurs. It shows a level of trust between the rapporteurs and Parliament and Government that does not require Government to specify in enormous detail, in primary legislation, how people are going to behave. If he looks at that, he will see why I tabled these amendments. In that spirit, I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
“( ) The Lord Advocate may remove from an annual report any material whose publication the Lord Advocate thinks might prejudice the prosecution of an offence under the law of Scotland.”
Baroness Hamwee
Baroness Hamwee
My Lords, I have two short amendments in this group. I will come back, outside the Chamber, to just what Section 36 says. I am not taking issue with the substance, in any event.
Amendment 76A would delete Clause 43(4). The clause is about the duty to co-operate with the commissioner. It provides that complying,
“does not require or authorise any disclosure of information which contravenes any other restriction on the disclosure of information (however imposed)”.
Looking at Clause 43(4) alongside Clause 43(3), which provides that disclosure,
“does not breach any obligation of confidence”,
I would like to ask my noble friend why one is accepted by the legislation and the other is not. Why does data protection, as I assume it is, apply but not confidential—I am not sure about privileged—information?
My second amendment, Amendment 77A, is quite different, but it is to enable me to ask a question. Clause 43(6) refers to regulations being allowed to be exercised by Scottish Ministers and by the Department of Justice in Northern Ireland. I have suggested that the Welsh Assembly Government be added to the list in order to ask my noble friend about the question of health. Health, after all, is one of the issues to which we need to have regard when we are looking at the needs of people who have been trafficked or enslaved. This seems to me very relevant. I do not know whether it is intended that Wales should come under Clause 43(6)(c), as “any other public authority”—I think that they might be a bit insulted if that were the case—or whether I have got it wrong that health is not intended to be covered in all of this. I beg to move.
Lord Bates
My Lords, I am grateful to my noble friend for moving this amendment and I will try to deal with the questions of clarification that she raised.
The effect of Amendment 76A would be to permit public authorities to provide information to the commissioner where it would otherwise contravene restrictions on the disclosure of information, other than those as a result of an obligation of confidence under the common law. Therefore, public authorities would, for example, be obliged to disclose information to the commissioner where such a disclosure would otherwise be restricted by statute or order of the court. While we want to ensure that the commissioner is able to gain access to information from relevant authorities to improve the UK’s response to modern slavery, in doing so we must ensure that we are not requiring those authorities to provide information in breach of existing restrictions on information sharing or permit authorities to disregard court orders, although we recognise that a balance has to be struck.
For this reason the public authorities and officials have been given a certainty that they will not be breaching any obligation of confidence under the common law when providing information to the commissioner. We consider that this subsection ensures that we achieve the right balance between respecting existing information safeguards and ensuring that the commissioner has the necessary powers to carry out the role effectively.
My noble friend’s Amendment 77A seeks to create a power for the Welsh Government to specify which Welsh public authorities are required to co-operate with the commissioner. The Welsh Government play a key role in the UK’s effort to tackle modern slavery. They are active participants in the interdepartmental ministerial group on modern slavery, and we have worked innovatively and determinedly to raise awareness of modern slavery and improve the response in Wales. We have worked closely with the Welsh Government on the development of the Modern Slavery Bill.
The focus of the commissioner’s work, and indeed of this entire Bill, is to combat crime and protect its victims, which are non-devolved matters as regards Wales. Engagement with Welsh authorities by the commissioner would seek to deliver on these objectives and any infringement on those authorities’ devolved functions is entirely incidental to, or consequential on, this purpose. It is therefore wholly appropriate, and consistent with the devolution settlement for Wales, for the Home Secretary to specify that a Welsh public authority is required to co-operate with the commissioner without the need for regulations made by the Welsh Government.
The Welsh Government have been regularly consulted on the role of the commissioner and it is worth nothing that they have not requested the inclusion of a regulation-making power within this clause. We will, of course, consult fully with them before specifying Welsh public authorities in regulations. I pay tribute to the good co-operation which is already taking place between the Welsh Government and the UK Government in relation to modern slavery issues.
Given this explanation, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I will, of course, do so. I felt that the response to Amendment 76A was more about “the what”, which I think I understand, than “the why”. However, I do not want to comment further without having had the opportunity to read what my noble friend had to say.
I am not sure that I am persuaded about Wales but that is perhaps not a discussion for now: we may have other opportunities to do so. I will think about that further and perhaps have a word with my noble friend about it. I beg leave to withdraw the amendment.
“( ) the person is aged 18 or over when the person does the act which constitutes the offence,”
Baroness Garden of Frognal
My Lords, in moving government Amendment 78, I wish to speak also to government Amendments 79 to 84 in this group. I thank noble Lords for tabling Amendments 80A, 82A, 83A and 84A, which are also in this group, and which all relate to the statutory defence for victims.
Since Second Reading, we have reflected on the specific circumstances of child victims who commit offences as a direct consequence of their slavery or trafficking situation, and that is why I am moving these government amendments. They remove the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation.
Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective through the use of prosecutorial discretion by the CPS, backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process. The Director of Public Prosecutions issued revised guidance earlier this year to prosecutors, setting out clearly the policy on non-prosecution of victims.
However, the pre-legislative scrutiny committee heard significant evidence that victims, including child victims, were still being prosecuted for crimes committed while being trafficked or enslaved. The committee looked at the arguments carefully and on balance recommended the creation of a statutory defence as an added protection for victims. The pre-legislative scrutiny committee also recognised that there are risks involved in the radical step of a new defence. There is a need for appropriate safeguards to ensure that a new defence is effectively applied and is not open to abuse—for example by organised criminals, even if they have once been trafficked themselves. There is a delicate balance to be struck here and we want to get that balance right.
To be effective, the defence must work effectively for both adults and children who may commit an offence while in a slavery or trafficking situation. We have listened carefully to parliamentarians and NGOs which have raised the particular situation of children. To that end, government Amendments 78 to 84 remove the requirement for a child victim to prove that they were compelled to commit an offence. This will ensure that, regardless of whether a child felt compelled to commit an offence, they will be able to invoke the statutory defence when the offence was committed as a direct consequence of their trafficking or relevant exploitation. The other aspects of the test for the defence will remain, notably that a reasonable person of the same age and in the same situation as the child would have no realistic alternative but to commit the offence.
We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality. I am confident that the defence as drafted will protect those people, while at the same time ensuring that criminals acting on their own volition cannot use a protection for the most vulnerable to get away with their crimes.
I look forward to listening to the debate as noble Lords move their amendments and will respond to those in due course. However, I hope that the House will support these government amendments, which improve protection for child victims. I beg to move.
Baroness Kennedy of Cradley
My Lords, I shall speak to Amendments 80A and 82A.
I very much welcome the Government including a non-prosecution defence in the Bill. It is right to target the real criminals who wallow in the wealth that they have made from exploiting the vulnerable. They have to be stopped from getting clean away. A non-prosecution defence for victims is critical to achieving this. Not only will it protect the human rights of adults and children and stop them being punished for the crimes of their traffickers and slave masters, it will ensure from the outset that victims are seen as witnesses to enable the successful prosecution of traffickers and slavers, so that the real criminals are brought to justice.
I also welcome the government amendments to remove the element of compulsion before the non-prosecution defence can apply for children. Where my position differs from that of the noble Baroness is that my Amendments 80A and 82A seek to remove the inclusion of a “reasonable person” test before the non-prosecution defence applies to adults and children. I shall explain as simply as I can why I think it is necessary to remove this “reasonable person” test for adults, and particularly why it has to be removed for children.
First, the addition of a reasonable person test is an extra hurdle for a non-prosecution defence that does not exist in international law. Article 8 sets just two tests for a non-prosecution defence to apply: that a person’s involvement in criminal activities needs to be compelled and a direct consequence of their being trafficked. Clause 45 therefore goes beyond what we need to do to bring the UK into compliance with our international obligations. To quote Parosha Chandran, an expert barrister in the field of human trafficking, its inclusion is “a potentially unlawful tier” that does not exist in Article 8 of the EU directive on human trafficking.
Secondly, the UK has many joint investigations with police forces in other countries. This is necessary because the organised criminal networks we all seek to prosecute operate transnationally. For example, a gang may force trafficked victims to steal from museums in London, Florence, and Paris, and threaten to harm their families if they do not do so. In this situation, Article 8 would be correctly and swiftly applied in France and Italy. Therefore, the victims would be free from the risk of prosecution and would be able to stand as credible witnesses in the criminal prosecutions of the organised criminal network which trafficked them. However, if the authorities in France and Italy asked for the assistance of the UK in approaching trafficked victims who committed robberies in London in order for them to give evidence against the network, the reasonable person test would mean that the UK could not give any guarantees in this regard. The UK would be forced to say that the trafficked victims would be acquitted only if the jury accepted that the conditions of the test were satisfied. Have the Government considered how the inclusion of this test may impact on our cross-border operations to ensure that traffickers are prosecuted?
Amendment 82A seeks to remove the reasonable person test for children. The particular vulnerabilities of children have been discussed many times in this House throughout our discussions on the Bill. Children specifically should not have to satisfy a reasonable person test before a non-prosecution defence applies for three reasons. First, the addition of a reasonable person test goes further than our own existing law for children. In the landmark case of R v L and others the Lord Chief Justice and his colleagues pronounced that only two questions must be addressed for the non-prosecution principle to apply to child victims: age and the criminal offence need to be,
“consequent on or integral to the exploitation”.
This is mirrored in the current CPS legal guidelines on human trafficking as regards children, where it states:
“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking”.
This guidance does not put a third legal reasonable person test into the guidelines after that landmark case. The CPS guidelines repeat the two tests necessary for a non-prosecution defence to apply, namely age and if the offence is directly due to the trafficking. So if Clause 45 is passed unamended, it will go further than our existing law and our obligations under international law. Therefore, when the CPS guidance is rewritten following the passage of this Bill, it will end up being tougher than it is now. The reasonable person test keeps the compulsion test in, but in a different form of words. It will lead to more prosecutions being sought, not fewer.
Lord Rosser (Lab)
Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.
The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.
On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.
Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.
Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.
One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.
Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?
Baroness Hamwee
My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:
“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—
the context of human rights—
“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.
I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their contributions to the debate, and I am grateful that they felt able to welcome the government amendments.
I turn to the amendments tabled by the noble Baroness, Lady Kennedy of Cradley. As she set out, Amendments 80A and 82 would remove the “reasonable person” test for children and adults. Whenever any statutory defence is created, we must be very careful to ensure that the line is drawn in the right place so that the people who need it can access it, but also to avoid unfairness or injustice to potential victims of serious crime and to prevent the defence being abused by those seeking to escape justice.
The noble Baroness raised concerns that the reasonable person test would breach EU directive requirements, which would make it difficult for us to work in cross-border operations. However, it does not place the UK in breach of the directive. As the pre-legislative scrutiny committee identified, the UK is already compliant with all its international obligations. The test will have no impact on cross-border operations. However, I note what she said, and the comments of my noble friend Lady Hamwee and the noble Lord, Lord Rosser. Perhaps we can agree to discuss this again before Report.
The reasonable person test is an objective test. The “no realistic alternative” formulation in the reasonable person test came directly from the case law that the noble Baroness mentioned. In response to the noble Lord, Lord Rosser, on whether the reasonable person would be someone who has suffered the same sort of experiences, that is indeed how that would be applied in these cases. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances. Such a defence may not be justified in every case. For example, the courts have consistently ruled that the defence of duress can never apply in cases of murder. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but society. An objective test plays a crucial role here: allowing a prosecutor or jury to consider all the circumstances, while also considering the accused’s characteristics, such as age and the other characteristics set out. We consider that removing the objective test would leave the defence dangerously broad.
Turning to Amendment 84A, which deals with Director of Public Prosecutions’ guidance on non-prosecution of victims, the Code for Crown Prosecutors is issued by the Director of Public Prosecutions. It gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code requires the prosecutor to complete two stages: is there sufficient evidence to provide a realistic prospect of conviction, and is a prosecution required in the public interest? It is not the case, and never has been, that just because there is sufficient evidence to bring a prosecution the public interest will require one. That discretion is a vital protection and helps avoid unnecessary or unjust prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures, which includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law or any other changes and is published on the CPS website.
Lord Rosser
Before the noble Baroness sits down, I referred in my contribution to the evidence from the Poppy Project of the 55 women who have been helped in the past year. They were identified as trafficking victims only once they were in prison, usually on remand.
Am I to take from the Government’s response to Amendment 84 that they are now satisfied that with the Bill they have put measures in train to prevent that kind of situation arising? The purpose of our amendment was to say that the prosecution had to be reviewed at the top level, by the Director of Public Prosecutions, before going to trial. Referring to the DPP issuing the guidance was an attempt to stop that kind of situation arising. If the Government are saying that they are satisfied that what they are doing will also address the situation to which I referred, I would be grateful to have it confirmed and on the record.
Baroness Garden of Frognal
The noble Lord is right in saying that the measures we have put in train should avoid that situation arising again. We are seeking to identify the victims before prosecutions are brought, to ensure that all the relevant evidence is there and that all the concerns about their situation are brought to the fore in any legal case.
Lord Alton of Liverpool (CB)
I am very grateful to the noble Baroness for the responses she gave to the noble Lord, Lord Rosser, and the noble Baroness, Lady Kennedy. She will have seen the representations by the Refugee Children’s Consortium, which refer to the link between the compulsion test and the reasonable test. Specifically, it says:
“Now the compulsion test no longer applies to children, the reasonable person test in relation to children is obsolete and should also be removed”.
As the noble Baroness goes away to reflect on the points made in this very helpful debate, will she promise us that she will look specifically at the representations made by the consortium?
Baroness Garden of Frognal
My Lords, we will, indeed, look at them very carefully because it is important to get this right.
“(4A) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.”
“relevant characteristics” means age, sex and any physical or mental illness or disability;”
Baroness Kennedy of Cradley
In Schedule 3 there are very serious, violent crimes listed and it is understandable why they have been included. However, there are over 130 different offences to which the non-prosecution defence will not apply and along with the very serious—murder and rape—there are offences relating to immigration, criminal damage and theft. Schedule 3 has ramifications for victims, so the offences listed, and the existence of such a schedule, should not become law without a debate in this House. We should probe a little deeper and consider five issues with the Schedule.
First, does such a list help the trafficker? Evil minds work in evil ways. To a trafficker, Schedule 3 could be an escape strategy. It has been described, by Parosha Chandran, an award-winning human rights barrister, as a traffickers’ charter. It is a list of crimes that traffickers know the state will prosecute for—they just need to find victims to do them—and traffickers will make sure that victims know that the state will prosecute for those crimes. Will the Schedule therefore have the unintentional effect of dangerously exacerbating the vulnerabilities of those who are already enslaved or trafficked and lead them to become involved in more serious crimes?
Secondly, does such a list lead police and prosecutors to stop looking for the signs of slavery and trafficking for these offences? Despite clearly listing the offences most frequently committed by enslaved and trafficked adults and children, the guidance we already have has not been effective in stopping victims being prosecuted and convicted for these offences. There are a number of examples where no police investigation into the victim’s situation, as a trafficked or enslaved person, has taken place and the victim has been wrongly imprisoned. Even when crimes are flagged as frequent crimes of trafficked victims in the CPS guidance, there is still little or no investigation. So a list of crimes specifically for non-prosecution may never lead to an investigation into the trafficked or exploited situation of the victim. This means that, once again, the traffickers get clean away.
Thirdly, does such a list contain the right offences? As pointed out in the other place, the impact assessment of this Bill states that Schedule 3 is drawn from Schedule 15 to the Criminal Justice Act. However, immigration offences are in Schedule 3 but not in Schedule 15. As Michael Connarty MP rightly asked, how can we deny a trafficked victim the right to a statutory defence because they resist arrest? We know that children especially—and adults too—are suspicious of authority, because the traffickers have made them that way; they are scared and do not understand the language. Should this offence be included?
Fourthly, the crime that a victim is typically forced to commit today is not what they may be forced to commit tomorrow. Even though there is provision in the Bill for Schedule 3 to be reviewed, this takes time. In this time, victims are being criminalised by our system and the traffickers are making their escape.
Finally, the facts are established for each individual case, no matter what the crime. If a crime is committed, whether or not it is listed in Schedule 3, the police will investigate and the CPS will still consider whether the evidential threshold has been met, whether it is in the public interest to prosecute and whether the non-prosecution defence applies. If the police and CPS can satisfy themselves that they can secure a conviction by being able to prove their case beyond reasonable doubt, they will proceed to prosecute—whether the offence is listed on Schedule 3 is immaterial, as the child or adult will be prosecuted. If the offence is serious it would, inevitably, be in the public interest to prosecute. Why is the list of exceptions necessary? In Committee in the other place, Peter Carter QC, said:
“I think legislating by list of exceptions is a recipe for disaster and confusion”.—[Official Report, Commons, Modern Slavery Bill Committee, 21/7/14; col. 36.]
I agree. I beg to move.
Baroness Hamwee
My Lords, I support the points made by the noble Baroness, who has pointed to unintended consequences, among other matters. This is a list of the most serious offences and there has not been much consideration of offences which may very often be committed in the context of trafficking. The noble Baroness rightly referred to the violation of immigration law. We heard this afternoon of an instance of false information relating to travel documents. To my mind—I am completely unbiased of course—this sort of thing is entirely understandable.
Looking at the list, I was interested in the inclusion of Sections 1 and 2 of the Bill, when we know that some victims of trafficking and slavery are forced into positions where they act on behalf of their own slave-masters in carrying out some of the acts which are comprised in those offences. But that is no different in substance from the concerns that the noble Baroness has raised about other matters. I share that concern. I do not think that by including the list we are doing anything other than creating difficulties for ourselves in applying the non-prosecution provision.
Baroness Butler-Sloss
My Lords, it is entirely understandable that Schedule 3 should be part of the Bill. It is important that the serious offences should not be included in a defence. However, listening to what the noble Baronesses, Lady Kennedy and Lady Hamwee, said, and looking through Schedule 3, it seems to me that a great deal of it is utterly unnecessary. I remember discussing this with the former Attorney-General, Dominic Grieve, at a time when he was eventually agreeing that there should be a defence at all. He said that Schedule 3 would apply and I cheerfully said, “Yes, of course it will apply”, but I did not read all the way through. It was not until this version of the Bill came, with all these exceptions to the defence, that one sees that this really goes beyond what is necessary, as the noble Baroness, Lady Kennedy, has put out extremely effectively. As the noble Baroness, Lady Hamwee, says, that may be a problem.
I would have thought that this was absolutely a situation in which the Government, with the assistance of the Director of Public Prosecutions, could sort the wheat from the chaff. A great deal of these offences are not applicable or appropriate for victims of slavery, although they are entirely appropriate in other areas of criminal law where you should not have a defence on these issues. The Government should look at this and consider whether they want the whole of Schedule 3.
Lord Rosser
My Lords, I, too, would like to raise one or two questions about Schedule 3, since my noble friend Lady Kennedy of Cradley has given us the opportunity to consider it.
As I understand it, under Clause 45, a victim is not guilty of an offence only if they have done the act which constitutes the offence because they have been compelled to do that act, the compulsion is attributable to slavery or the relevant exploitation and a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to doing that act. If the victim has managed to meet these requirements, Clause 45(1) still does not apply if the offence committed is listed in Schedule 3, which, as has already been pointed out in another way, extends to six and a half pages of offences. Some are easily understandable for being on that list, such as murder, manslaughter and kidnapping, but others are not so obvious bearing in mind the requirements under Clause 45 that the victim will already have had to meet in order to use Clause 45 as a defence.
In view of that, how does the Minister justify the need for such an extensive list of offences for which a victim can be found guilty even though they have met the three requirements to which I have already referred under Clause 45(1)? How and against what criteria was this list of offences compiled? To look at one example, included in the list is an offence under Section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state, which is an offence one might normally associate with a trafficker rather than the victim. Is there evidence that victims of trafficking are committing this offence of assisting unlawful immigration to a member state unrelated to their being trafficked themselves? If there is, is it also appropriate that they could be found guilty of such an offence, despite meeting the requirements in respect of compulsion and the reasonable person test under Clause 45(1) to show that they cannot be guilty of an offence unless it is listed in Schedule 3?
Lord Alton of Liverpool
My Lords, like the noble Lord, Lord Rosser, I am puzzled by this. In Part 5, Clause 45(1) seems clearly to set out, in paragraphs (a), (b) and (c), under what terms prosecution would ensue or not ensue. As the noble Baroness, Lady Kennedy of Cradley, has rightly told us, the danger with lists is that there may well be things that have not been included on the list that might in due course pertain. I simply ask what may be an entirely innocent and naive question: why is it not possible to put in the Bill a generic term rather than having to have all these details in the legislation?
Baroness Garden of Frognal
My Lords, I thank the noble Baroness, Lady Kennedy, for tabling Amendment 83A and for asking whether Schedule 3 should stand part of the Bill, which relate to the offences excluded from the statutory defence for victims. I also thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alton and Lord Rosser, for their contributions.
As we have previously discussed, Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. As we discussed in the previous group, this builds on the existing use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process.
Noble Lords questioned how Schedule 3 was drawn up. It was drafted very carefully in consultation with the DPP and CPS. As the noble Lord, Lord Rosser, mentioned in his previous intervention, it is very important that we get involvement from the DPP and CPS in drafting these pieces of legislation. As I have said, it was with approval and consultation that this list was drawn up. There is a need for appropriate safeguards to ensure that a new defence is applied effectively and is not open to abuse, for example by organised criminals, even if they once have been trafficked themselves. There is a delicate balance to be struck and we want to get that balance right.
Amendment 83A, together with the suggestion that Schedule 3 should not stand part of the Bill, would mean that the defence could apply to any offence, including serious sexual and violent offences such as murder and rape. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances and it will not always be the case that a defence is justified. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but also society. As we developed the statutory defence, our approach was always to ensure that we covered the types of offences often committed by those who are enslaved or trafficked. We have taken detailed advice from the Crown Prosecution Service on this point. As I have mentioned, the offences listed in Schedule 3 reflect those discussions and discussions with the DPP.
The defence is therefore designed to provide an effective protection against prosecution in the types of circumstances that actual victims of modern slavery find themselves in—for example, cannabis cultivation. The list of excluded offences in Schedule 3 can be amended by statutory instrument if experience shows the offences listed are not right and fail to protect vulnerable victims. But, in order to avoid creating a dangerous loophole for serious criminals to escape justice, we think it is right that the defence is not available in the cases—mainly serious sexual and violent offences—as listed in Schedule 3. This does not mean that a victim who commits a Schedule 3 offence in a modern slavery context will automatically face prosecution. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so. It is right that in very difficult cases involving very serious crimes, including rape and murder, the Crown Prosecution Service carefully considers both the victim of trafficking and the victim of a very serious crime, and seeks to act in the public interest.
I understand the concern of noble Lords that victims should not be inappropriately criminalised; we agree on that, but that is why we are strengthening protections for victims in the Bill. We must be careful, however, that we do not create a loophole for very serious criminals. In the most serious cases, it is right for the CPS to use its discretion—and I emphasise that there is always discretion in these cases—to act in the public interest, based on the specific facts of the case. We are, of course, open to further discussion before Report, but I hope that these assurances will enable the noble Baroness to withdraw her amendment.
Lord Rosser
My Lords, I ask the following question seriously and not frivolously: if this has been the subject of discussion with the DPP, is it therefore the case that there are already examples of victims of trafficking having committed all those offences listed in Schedule 3?
Baroness Garden of Frognal
No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.
Baroness Butler-Sloss
Looking at paragraph 33 of Schedule 3, I think that the last three offences seem improbable for somebody who is compelled to act as a slave: “exposure”, “voyeurism” and “sexual penetration of a corpse”. I do not really see that those three are likely to arise in the circumstances of a victim of slavery.
Baroness Garden of Frognal
My Lords, I think, perhaps, that we will need to discuss this further before Report, because, as I said, this list was drawn up in consultation with the DPP and the CPS. I presume there was a reason for putting those particular items there; it is subject to review and the discretion of the people concerned.
Baroness Kennedy of Cradley
I thank the noble Baroness for her reply and the way in which she has responded. I hope she will reflect on the points made by many noble Lords. We would welcome the opportunity for further discussion on this point. If the CPS has discretion—as it always does in all cases—on the threshold of evidence brought to it by the police, I do not see why a schedule of this detail is necessary. Though it is open to amendment, the time it would take for a statutory instrument to go through this House would be time spent by a victim in the criminal justice system; the trafficker would get clean away. The most serious might still need to be included on a list, but the unintended consequence that may arise by us producing something of such length and detail is that we end up with a traffickers’ charter—a recipe for disaster, as described by a barrister and QC. Obviously, I will withdraw the amendment today, but I welcome the further discussion that the noble Baroness has offered before Report. I beg leave to withdraw the amendment.
Lord Bates
“Civil legal aid for victims of slavery
(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (availability of civil legal services) is amended as follows.
(2) In Part 1 (services), after paragraph 32 insert—
“Victims of slavery, servitude or forced or compulsory labour32A (1) Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where—
(a) there has been a conclusive determination that the individual is a victim of slavery, servitude or forced or compulsory labour, or(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.(2) Civil legal services provided in relation to a claim under employment law arising in connection with the conduct by virtue of which an individual who is a victim of slavery, servitude or forced or compulsory labour is such a victim, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative. (3) Civil legal services provided in relation to a claim for damages arising in connection with the conduct by virtue of which an individual who is a victim of slavery, servitude or forced or compulsory labour is such a victim, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative.Exclusions
(4) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
(5) Sub-paragraphs (2) and (3) are subject to—
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3, 4, 5, 6 and 8 of that Part, and(b) the exclusion in Part 3 of this Schedule.Definitions
(6) For the purposes of sub-paragraph (1)(b) there are reasonable grounds to believe that an individual is a victim of slavery, servitude or forced or compulsory labour if a competent authority has determined that there are such grounds.
(7) For the purposes of sub-paragraph (1) there is a conclusive determination that an individual is or is not a victim of slavery, servitude or forced or compulsory labour when a competent authority concludes that the individual is or is not such a victim.
(8) For the purposes of this paragraph “slavery”, “servitude” and “forced or compulsory labour” have the same meaning as they have for the purposes of article 4 of the Human Rights Convention.
(9) The “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4 November 1950, as it has effect for the time being in relation to the United Kingdom.
(10) The definitions of “competent authority”, “employment”, “employment law” and “personal representative” in paragraph 32(8) also apply for the purposes of this paragraph.”
(3) In Part 3 (advocacy: exclusion and exceptions), in paragraph 13 for “or 32(1)” substitute “, 32(1) or 32A(1)”.”
Baroness Garden of Frognal
My Lords, I shall speak also to Amendment 102. The Government recognise the importance of providing victims of modern slavery with appropriate protections and support. Currently, victims of trafficking are able to apply for civil legal aid for advice and representation in relation to certain immigration matters and damages and employment claims arising from their trafficking exploitation under paragraph 32 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Following the pre-legislative scrutiny committee’s recommendation that victims of slavery should be provided with enhanced access to legal assistance, the Government committed to extending this provision to cover victims of all forms of modern slavery; that is what these amendments seek to do. I know that there is significant concern across this House that victims should receive appropriate access to legal aid, so I hope that noble Lords will agree that this measure is both necessary and welcome. I beg to move.
Baroness Butler-Sloss
I congratulate the Government on that; I think it is splendid.
Lord Alton of Liverpool
I add my congratulations to those of my noble and learned friend. The Government have listened to the representations that have been made and their response is to be greatly welcomed.
Lord Hylton
Following those congratulations, it appears to me that Amendment 85 is, on the face of it, desirable. Is it the Government’s intention that the provision will apply to overseas domestic workers in this country? If that is the case, how will such people get access to the benefit of this proposed new clause? In particular, how will they get access if they have already been deprived of their passport by their employer, if they are locked in by the employer or if they happen to be working seven days a week and perhaps 16 hours or more a day? These are very important and relevant questions, and I look forward to a response.
Baroness Garden of Frognal
They are indeed very important and relevant questions. We shall be coming on to this issue in a later group of amendments, so I suggest that we take up the debate on this topic with the later group of amendments that is related to these particular workers.
Lord Patel
Lord Patel
I add my congratulations on the previous amendment, which was brought by the Government. There are some questions to be asked, and the noble Lord, Lord Hylton, addressed one of them, but there will be others that we will come to later. Meanwhile, I will address my Amendment 85A, along with Amendments 86A, 86B, 86C, 86D, 86E, 86F and 86G. My name is also on Amendment 86, under that of the noble Lord, Lord McColl. I am grateful to the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Judd, for putting their names to my amendment.
I will be brief because I see this as an exploratory or probing amendment, depending on the answers that I get from the Minister. I, of course, welcome Clause 47, which introduces an enabling provision for child trafficking advocates. In the light of the government amendment that we just agreed, we will see whether the legal assistance also applies to advocates. This is a significant and welcome step forward to protect child victims of trafficking. My amendment seeks to raise the issue of another extremely vulnerable group of children who, under current legislation, would miss out on the valuable support of an independent advocate to act in their best interests.
Amendments 85A and 86A to 86G would widen the scope of child trafficking advocates to provide advocates for all separated children. It is the separated children who are my concern. This is important for two reasons. Awarding an advocate to all separated children is, in my view, the only way to ensure that all trafficked children are awarded an advocate who can deal with the problems around identifying the victims of trafficking. Separated children are extremely vulnerable and need someone in this country to defend their interests. I can illustrate this with one real example. Let us call the child T for the sake of anonymity. The case study was provided at my request by the Children’s Society.
T is a 14 year-old boy who was referred to the Children’s Society by a walk-in health centre. At the time of referral, T was living with an older couple and some other young people, none of whom were related to him. He had come to the UK two years previously but had never regularised his immigration status, registered with a GP or attended a school. He was made to do all the cleaning and cooking in the house in exchange for his accommodation. The Children’s Society immediately realised that he had been trafficked, so the charity contacted the local authority as a matter of urgency.
Despite all efforts, the local authority and the local police were not sufficiently aware of the London Safeguarding Children Board’s guidance on working with trafficked children, and delayed prioritising the case with the degree of care it needed. The young person escaped from the family and ended up going missing, but due to the trusting relationship that he had built up with his project worker, he made contact again. The project worker went to pick him up and requested social services to arrange an emergency foster placement, which they agreed to do on the same day.
T is now in foster care and has started school. Timely access to education was something that the society had to advocate for strongly since none of the professionals involved seemed to know that an undocumented child is in fact required by law to attend school. T was referred to an immigration solicitor, who is helping him with his asylum claim and court order referral to the national referral mechanism for victims of trafficking. T was granted a “reasonable grounds” decision and is now taking part in social activities in a regular boys’ group. The key message of this case is that the help of a trusted, independent adult to ensure that children such as T can access vital services is needed for the welfare of these children and to ensure that they are recognised as the victims of trafficking.
I will focus in more detail on the problems of identifying victims of trafficking. Trafficked children are frequently not identified as such when they first enter the country. They may not acknowledge or disclose that they have been trafficked for some time. This is because of the level of exploitation they may have suffered at the hands of atrocious criminals, and they may even have been trafficked by a family member. Having an independent legal advocate will help to ensure that more children are identified as trafficked and then receive the support and services they are entitled to.
Separated children are extremely vulnerable. We all know the importance of having someone who is looking out for their best interests. However, many of these children have fled war, persecution and torture; they may have become separated from or even abandoned by their parents and carers once outside their country of origin. They are often physically and emotionally scarred when they enter the country. An independent legal advocate would support them while they overcome the language and cultural barriers, and help them to exercise their rights by holding local agencies to account. Without advocates, these children often end up living outside the system, destitute and homeless, and denied the safety and support they need and are entitled to as children.
Finally, there are financial benefits from providing advocates for all separated children. Research by the Children’s Society and UNICEF has found that for every £1 spent on service provision for three years, as much as £1.25 can be saved. This increases to £2.40 once the financial benefits for separated children who reach adulthood at the age of 18 are factored in. I will welcome the Government’s response to this amendment and their view on whether the evaluation of the ongoing pilot of child trafficking advocates will address the problems of identifying the victims of trafficking and review whether advocates should be provided for all separated children. I beg to move.
Lord McColl of Dulwich (Con)
My Lords, I shall speak to Amendments 86H, 103 and 104. Along with colleagues from all parties, I have been proposing the introduction of child trafficking advocates under a variety of different names since I first introduced my Private Member’s Bill on human trafficking in 2011. Since then your Lordships have consistently supported this measure as I, with others, have tabled proposals on several occasions over the past three years. Indeed, the clause in the Bill before us today is a direct result of the support shown by this House for the child trafficking guardian amendment to the then Immigration Bill, which was won by a majority of 98. I also recognise the degree to which the Government have moved their position from initial opposition to where we are today, and I am grateful to successive Ministers for taking the time to listen to these debates and engage constructively with the issue and with your Lordships’ concerns.
I warmly welcome the amendments made in the other place to give a stronger commitment to the introduction of child trafficking advocates and in setting out clearly that advocates must always act in the best interests of the child. These demonstrate the Government’s continued openness to listening to the concerns regarding this clause. and I very much hope that the Minister will continue in that vein as he responds to my amendments today.
I know that the Minister will say, as he did at Second Reading, that because there are pilots of child advocates going on around the country in 23 local authorities, we cannot take any further action on advocates during the passage of the Modern Slavery Bill. I support the trials to look into the practicalities of delivery, but I would respectfully disagree with the Minister on the point of substance. I believe that the trials should not hinder us from doing our job to provide the best framework for victims and that we should set out in statute a definition of the powers and functions of an advocate.
Before I explain my amendment, I would like to draw the attention of noble Lords to a significant change in the landscape both practically and politically that has come about since we last debated this matter in April. On 20 October, the Northern Ireland Assembly voted to create a system of guardians for trafficked children in the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, introduced by the noble Lord, Lord Morrow. The relevant clause in that Bill contains on the face of the legislation a full statement of the functions of the role, which are similar to those set out in Amendment 86H. I want to clarify for your Lordships that this provision, which was mentioned by various speakers at Second Reading, has been introduced without any sort of pilot scheme being run in Northern Ireland. In his closing speech at Second Reading the Minister said that the Home Office,
“will learn from that”—
the pilots—
“and on that basis set out in regulations what those responsibilities should be. That is exactly the same as what has happened in Northern Ireland”.—[Official Report, 17/11/14; col. 323.]
I am sure that the noble Lord was aware that there have been no pilots or trials in Northern Ireland; I am not implying that there were and I wanted to clarify the point.
I turn now to Amendment 86H. I am very grateful for the support of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I have tabled this amendment with their support because I believe that Clause 47 needs to be strengthened to ensure that the advocates are equipped and empowered to be effective in this vital role, to make sure that the clause meets international best practice and that it fulfils the intentions of this House, which were made clear in the Immigration Bill vote in April. It is my opinion that, without Amendment 86H, Clause 47 falls short of these objectives.
Baroness Butler-Sloss
My Lords, I have put my name in support of these amendments in the name of the noble Lord, Lord McColl of Dulwich. He and I have battled for three years—he having taken the lead—and this is a great moment. The Government are to be congratulated on Clause 47. They are to be congratulated on going as far as they have, but they have not gone far enough.
One of the most important points made by the noble Lord, Lord McColl, was on the child advocate having an absolutely clear statutory position. I remember discussing this with representatives of Barnardo’s who had had to work from time to time with local authorities on children in whom they had an interest and who found that some local authorities would not help them because they had no statutory power. This is a serious matter. You have to be able to say to a local authority, “You’ve got to give this to me”, and not, “Please would you mind giving it to me?”. It is a crucial distinction. In Clause 47(4), to which the noble Lord referred, the fact that it says:
“The Secretary of State may make regulations about functions”,
and about,
“requiring public authorities to co-operate with, and provide information to, child trafficking advocates”,
is not good enough. The word has to be “must”; “may” will not do.
As the noble Lord, Lord McColl, also pointed out, certain basic things are to be found in our Amendment 86H, the majority of which have to be in primary legislation. However, I can see that much of Amendment 86 could be done by regulation. It seems to me that the Government should go away and have a look at these two amendments. Some provisions could appropriately be made by regulation but the really important ones need to be made in primary legislation to give the child trafficking advocate the jurisdiction, to use a legal word, or actual control over what they wish to do for the child by working with local authorities, the police and other agencies, including the National Health Service. They would need to have the right to require those agencies to provide them with documentation and information about the child who is a trafficked victim. Other than that, each of these agencies may, and probably would, be very difficult about supplying the information. That information is crucial for the advocate, who should be there from the beginning of the identification of the child to the moment when the child is settled. With these amendments tabled by the noble Lord, Lord McColl, three years on from when we started, we have got a long way, but the Government need to listen to see that it is not quite sufficient. We need to give the child trafficking advocate the powers as well as the duties.
My last point is about the power to appoint and instruct legal representatives. It is also absolutely crucial to give that child trafficking advocate the powers that these children—mainly brought over from other countries, although there are also some internal children—actually need from them. For those reasons, I strongly support these amendments. As I say, some provisions could be in regulation but there are basic points that have to be in primary legislation.
Baroness Lister of Burtersett
I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.
The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,
“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.
We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.
I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.
Baroness Kennedy of The Shaws (Lab)
My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.
I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.
I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.
I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.
Baroness Howe of Idlicote
My Lords, clearly things have moved on a little since we debated the Immigration Bill on 7 April. Nevertheless, there is clearly a long way to go. I am particularly grateful to the noble Lord, Lord McColl, who I thought made a brilliant speech, and to the other noble Lords who signed this amendment and again brought this issue before your Lordships’ House with Amendment 86H. I am pleased to support them.
While I welcome the action of the Government in trialling the delivery of a child trafficking advocate system, I am disappointed that they are not being bolder in their statement of the principles that would underpin the role of the advocates. I agree with the Joint Committee on the draft Bill, which said that pilots are not,
“a substitute for a statutory advocacy scheme”.
Since that report, the UN Committee on the Rights of the Child has recommended that the UK prioritises,
“the appointment of a competent and statutory guardian as expeditiously as possible to safeguard the best interests of the child during the criminal justice process and ensure that a child victim is referred to asylum-seeking or other procedures only after the appointment of a guardian”.
There are many pages of recommendations from well established and respected international organisations on how a guardian advocate system should function, which would allow us to set out a framework that could be adopted by the Bill.
Baroness Hodgson of Abinger
My Lords, trying to give protection to trafficked children is such an important part of this Bill. I add my congratulations to my noble friend Lord McColl on his excellent Amendment 86H, which would do much to help trafficked children. There are many excellent additions, and I shall touch on some that I consider particularly important.
I agree with the noble Baroness, Lady Kennedy, that it is very important that the advocate is appointed as soon as possible; the sooner that they can start getting to know the child and gaining their trust, the more effective they will be. I support the advocate having powers to appoint and instruct legal representation, as that will ensure that the child’s outcome is best protected.
With reference to establishing contact with the child’s family where the child so wishes and it is in the child’s best interests, I wonder who in this instance judges what is in the child’s best interest. I suspect that most children who are trafficked are probably old enough to have a view on what they want, and it is incredibly important that they are listened to and weight given to those views.
With reference to the appointment of the advocate coming to an end when a child reaches 21, although that is technically adulthood it is still a very young age to be left on your own, perhaps in a strange country and away from any family, not being proficient in English and having gone through all the desperate trauma of being trafficked. Perhaps in this regard the wishes of the child could be considered as to whether they would like some further support from the advocate or to be given a mentor until the time when they feel they can cope on their own.
With regard to a durable situation being found for the child, children need to be returned to their homes wherever possible. I was very moved by the statistic that 60% of the trafficked children put into care abscond and often fall back into the hands of their traffickers. This means that often they are very unhappy being put into care. As we know that generally the outcomes for children in care are very low, returning children to their families wherever possible is surely the right thing to do.
Lord Browne of Belmont
My Lords, I am pleased to speak in support of Amendment 86H in the name of the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I am sure that other Members of this House will want to thank the noble Lord and the noble and learned Baroness for their persistence and perseverance in repeatedly bringing the need for a child advocate for trafficked children before this House.
As we look today at Clause 47 of this Bill, which in some ways makes provision for child trafficking advocates, I am sure we can agree that we have come a long way on this subject from 2011. I am aware that the Government seek to justify the rather weak nature of the clause on the basis that they want to wait for the conclusion of the advocate trials before providing more detail. In some ways I think this argument stands up to scrutiny but in others I have to say that I find it wanting. No doubt important things will be learnt from the trials that will inform practical questions regarding matters such as implementation, but I do not accept that that should be used as a reason for not providing a clear and up-front statutory definition of the role of the advocate. It seems odd that we should sign up to the name “child trafficking advocate” in the Bill without signing up to a proper definition of the role.
There are at least two major problems. First, in terms of the basic definition of a child trafficking advocate, the definition is set out in numerous international best practice documents and confirmed by our own experience. The Still at Risk report, for example, recommends that an independent trusted adult should be appointed as soon a trafficked child comes to that authority’s attention. Amendment 86H makes it clear that this should happen. The Still at Risk report also says that that person,
“would ensure that all potential victims of trafficking are able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes they are engaged in”.
I am very supportive of the principle of setting out the functions of the advocate in the Bill, as exemplified in Amendment 86H.
It is significant that this same definition and approach are also reflected in all the relevant international best practice documents developed by the EU, UNICEF and the UN. For example, the UNICEF guidance states:
“The role of a guardian is to be an advocate for the child in a wide range of discussions and decisions about what should happen to the child, in particular to ensure that the decision-making process primarily considers the best interests of the child. The role is also to be a link between the child and the various agencies the child comes into contact with, to ensure the child is kept informed of any relevant developments with respect to him or her, and to accompany the child in a physical way, in particular when she or he is moved between various places”.
It is also essential that the role of the advocate should be recognised by other public authorities, otherwise, as the noble Lord, Lord Henley, said just over three years ago,
“it risks creating confusion for children if plans for their care are not effectively co-ordinated”.—[Official Report, 25/11/11; col. 1282.]
The second reason for my belief that this is not a strong enough clause as it stands is observing the debate on guardians that has occurred over the past few months in Northern Ireland, which the noble Lord, Lord McColl, has referred to. Noble Lords may be aware that the noble Lord, Lord Morrow, has introduced a Bill on human trafficking to the Northern Ireland Assembly. He is sadly not able to give his own wisdom to the House today, as he is in Northern Ireland speaking on other matters on human trafficking before the Assembly. The key point is that, in another part of the United Kingdom, a clearly independent adult will be appointed to a child who has been or who is about to be referred to the NRM or to a separated child. That adult, an independent guardian, will be trained, qualified and supported in that role and the functions are set out in statute in Clause 21 of the Northern Ireland Bill, which will very soon now become law. That person needs to ascertain and communicate the views of the child, represent them, and liaise with other organisations involved in their care and making decisions in relation to the child—for instance, a court or tribunal. They will assist the child to obtain legal advice, keep the child informed about relevant proceedings, contribute to a plan for the long-term welfare based on an individual assessment of the child’s best interests, accompany them as necessary, and work to establish contact with the child’s family where it is in their best interests.
Interestingly, the Department of Health, Social Services and Public Safety may add to their functions as necessary by order so that if new functions arise they can be added. I suggest that this freedom to adjust provides a crucial model for the United Kingdom Government given that, on the one hand, it is simply not credible to include a child trafficking advocate provision in the Bill without a proper definition—especially when, thanks to domestic and international best practice, the definition is clear—yet, on the other hand, adjustment may be desirable in the light of the experience of the trials. It provides a mechanism whereby we could give child trafficking advocates a proper definition but not remove scope for that definition to be amended, although I stress that I think the real usefulness of the trials will pertain to practical matters of implementation rather than that of definitions. If I were to add anything to Amendment 86H, it would be the power to make such additions to the list of the advocates’ functions.
The other thing I should note about the Northern Ireland definition, like that of proposed new subsection (8) in Amendment 86H, is that it makes plain that other persons or bodies providing services or taking decisions about the child have to recognise the role of the guardian and provide the guardian with relevant information so as to allow the guardian to carry out their role effectively. In contrast, Clause 47(4) only enables the Home Secretary to issue regulations to this effect if she so wishes. It seems to me that the provision of child trafficking guardians in Northern Ireland goes much further than the current proposals in Clause 47. The reason we are rightly concerned to help victims of trafficking is because they are, without doubt, among the most vulnerable people in our society and that vulnerability is greatest when dealing with children.
Given their greater vulnerability, it seems very odd that the Government should have included such a weak clause in the Bill. While I am happy to celebrate that Northern Ireland will provide the best protection for child victims in the whole of the United Kingdom, it pains me to consider the many trafficked children in England and Wales who will not benefit from this greater protection. I am not satisfied with this, and I very much hope the Government will not settle for such an inequality. The good news is that Amendment 86H closes the gap. I very much hope that the Minister will accept it.
Baroness Hamwee
My Lords, the determination of those who have pursued this cause is admirable. The noble Lord and the noble and learned Baroness are a formidable pair. I simply want to comment on one point in Amendment 86H, about legal representation. From my—now not very current—experience as a solicitor, I well know the importance of being able to take clear or reasonably clear instructions, and to be able to rely on those instructions. I take the point about the voice of the child but I do not think that that is inconsistent with the role of representatives.
The Earl of Listowel (CB)
My Lords, in recent years three children took their own lives after spending a night in a police cell. They were 17 year-olds and, under current legislation, they could be kept in police cells overnight—if they had been 16 that would not have been allowed, but as 17 year-olds, they were. One of them was Kesia Leatherbarrow. Her mother is a teacher. She leads the maths department in her school. Her father is the deputy head of a local school. Those children had parents to advocate for them, parents who were passionate to see that what happened to their children did not happen to other children. Through their advocacy they managed to persuade the Government to change the law so that in future 17 year-olds will not be placed in custody overnight.
I hope I can also express my thanks to the noble Lord, Lord McColl, and my noble and learned friend Lady Butler-Sloss for their hard work and determination over years to bring about the change that we are seeing today. I also thank the Government for working with them and for their constructive engagement in making this the best possible arrangement for these young people, so that while they may lack parents they have the advocates they need to have the best chances in their lives.
I support these amendments. I particularly add my support to the amendment tabled by my noble friend Lord Patel to extend this to all unaccompanied children. This June, thanks to the kind help of the Children’s Commissioner for England, I and some colleagues had the pleasure of meeting five young men from Afghanistan. They had all arrived here as unaccompanied children. One young man was doing extremely well in his studies and spoke with great gratitude of the help he had received. Another had spent time in a mental hospital. His health had been wrecked as a result of the lack of support he had received. I hope your Lordships will agree that we should take steps to ensure that all separated young people have the best help as early as possible so they can do well and not fall. I hope this will be changed as soon as possible. I recognise that the Government have come a long way, but I hope they will give this very careful consideration.
Baroness Royall of Blaisdon
My Lords, I rise to support Amendments 103 and 104 and to speak to Amendments 86 and 86H, to which I have put my name.
The noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, have been veritable champions of these young vulnerable people and it is thanks to them—I have to say, with our support—that the Government have got far as they have. Of course I welcome Clause 47 and the government amendment that was introduced in the other place—but, as so many have said, we have not quite got there yet, but I have no doubt that we will.
Throughout the passage of the Bill, my colleagues in the Commons, together with some other Members of the House of Commons, consistently argued that unless advocates are given legal powers they will not be able to act effectively in the child’s best interests and truly protect trafficked children. We have a great example before us tonight. It was mentioned by several noble Lords. I pay tribute to the noble Lord, Lord Browne, and to the noble Lord, Lord Morrow, who introduced the Bill in the Northern Ireland Assembly. I hope that our Government will ensure that the laws pertaining to trafficked children are the same throughout the United Kingdom. It is very important and I very much hope we will follow their excellent example.
If we are truly to deliver for these most vulnerable of children, we must ensure that advocates have legal authority to act for the child in cases where they lack the legal capacity to do so. We want guardians to be able to instruct solicitors on their behalf and represent the child’s best interests. Advocates must also have the power to compel local authorities to take action where a child is not receiving the services and support to which they are entitled, such as appropriate accommodation. We also want the UK to be brought into line with its obligations under the Council of Europe convention and, as has been said, under the anti-trafficking directive.
Evidence resulting from the work and experience of members of the Refugee Children’s Consortium and from research commissioned by the Home Office and conducted by the Children’s Society and the Refugee Council demonstrate that local authorities often fail to understand, prioritise and adequately respond to trafficked children’s needs. This too often results in these vulnerable children falling through the gaps, as has been said, being housed in inappropriate and unsafe accommodation, such as bed and breakfast, and receiving inadequate adult and financial support.
Those most closely involved also find that the only way to force local authorities to act is litigation, or the threat of it. A legal advocate with powers to compel the local authority to act is therefore vital if we are to ensure that these children are correctly assessed and get the services to which they are entitled. Evidence from the evaluation of the Scottish guardianship pilot found that because guardians did not have legal powers and were not on the same statutory footing as local authority staff, they sometimes struggled to ensure that local authorities provided trafficked children with the correct services, and that because the service had no statutory footing the guardians found themselves having to negotiate, and sometimes renegotiate, the position in order to assist the young people with whom they worked. We have that very fine example before us. We know that it did not work in Scotland, so please let us act now to ensure that it works when we introduce these advocates.
Giving advocates legal powers to instruct solicitors would not conflict with the local authority, which remains responsible for the welfare and safeguarding of the child. The Northern Ireland Assembly’s amendment to its Human Trafficking and Exploitation Bill 2014 puts child trafficking advocates on an equal footing with the local authority and states that local authorities must recognise and pay due regard to the functions of child trafficking advocates. That is another fine example to be followed. The Northern Ireland Bill even has the wording right.
I urge the Government to support this amendment, or something very similar, in order to ensure that advocates have legal powers and that trafficked children are entitled to the support and protection that they deserve, because they deserve no less.
Lord Bates
My Lords, on that last point, the remarks on Northern Ireland of the noble Baroness, Lady Royall, we are, I am sure, as one. We recognise that we are moving. The general consensus, if I may try to sum up the debate, is that progress has been made and we have come a long way, to quote the noble Lord, Lord Browne, and the noble and learned Baroness, Lady Butler-Sloss, but perhaps there is further to go. Well, we still have more stages in the consideration of this legislation.
I come to some general remarks. I join nearly all noble Lords in the debate on these amendments in paying tribute to my noble friend Lord McColl for his determined and—I am tempted to say, as a former member of the Government Whips’ Office—unyielding advocacy on behalf of children, going back to the Immigration Bill, but also his own Private Member’s Bill. It has been an example of how it is possible, from the Back Benches, to make significant, important changes to government legislation.
I urge my noble friend, in saying this, to recognise that we have in front of us something that is not timid or weak. Such terms have been used a few times during our discussion. I totally accept that that is how parliamentary discussion and scrutiny should work: the Government give a bit and then people say, yes, thank you—17 year-olds, legal aid—but can we have some more? I understand that, but there is an audience outside this place who needs to have some confidence that we have before us something that is robust and that they can act upon. Yes, okay, the Independent Anti-slavery Commissioner may not have everything spelt out to the last letter as far as your Lordships would like, but the fact is that he is there, he has a vital role to play, and others should work with him to ensure that victims are identified and perpetrators prosecuted. With child-trafficking advocates, again, we may not have everything spelt out to the letter in the Bill, but the reality is that we do have a provision there.
We have heard a lot about the “mays” in Clause 47, but there are some “musts” as well. For example:
“The Secretary of State must make such arrangements as the Secretary of State considers reasonable to enable persons (“child trafficking advocates”) to be available to represent and support children who there is reason to believe may be victims of human trafficking”.
In the next subsection,
“the Secretary of State must have regard to the principle that, so far as practicable, a child should be represented and supported by someone who is independent of any person who will be responsible for making decisions about the child”.
Also, of course, in Clause 47(6):
“The Secretary of State must, no later than 9 months after the day … report on the steps the Secretary of State proposes to take in relation to the powers conferred by this section”.
So there are “musts” there.
I shall deal with some specific points put before us. The issue of support and protection for victims of child trafficking is of the utmost importance across the Floor of both Houses of Parliament. I share the aim of providing a bespoke support system for this most vulnerable group of children. I am dedicated to ensuring that these children receive the support and protection they deserve after the nightmare of their traumatic experience of being trafficked and exploited.
Before I continue, I assure noble Lords that, although modern slavery is a devolved matter, we continue to work closely with the devolved Administrations on the issue. We are fully abreast of the similar provisions which the noble Lord, Lord Browne, in particular, referred to in respect of Northern Ireland, as well as the Scottish guardianship service, and we are learning from these. We continue to maintain our positive partnership with the Welsh Government on this matter. We have listened intently to the debate on the issue of child trafficking advocates. Amendment 86 seeks to extend the provision to child victims of slavery and sets out in detail the minimum responsibilities of child trafficking advocates.
In that context I will set out the Government’s approach to achieving the best result for child victims of trafficking. We are trialling child trafficking advocates. The trials are being delivered by Barnardo’s across 23 local authorities in England and are now well under way, having started in September, with a growing number of children receiving the services of a specialist advocate.
Lord Alton of Liverpool
My Lords, rather in parenthesis, a few moments ago the Minister introduced a new component into the debate when he talked about the financial implications that might be involved were we to support the amendment of the noble Lord, Lord McColl. Can he give us a figure? He has talked about the financial implications and must have some idea of what the cost might be. I was surprised to hear that argument being produced in your Lordships’ House. Does he have a figure that he can share?
Lord Bates
I think that what I am getting at there is self-evident. If you extend the service of child trafficking advocates, clearly there is a cost implication. I was not suggesting at any stage that that was in any way an argument for or against. I was simply saying that it ought to be taken into account before we embark on an extension of the scheme. I am happy to write and come back on that, with further information about the basis of our assessment.
On the points made by my noble friend Lord McColl, it is intended that the functions and role of advocates in any national scheme will be set out in regulations. This will give the advocates the desired legislative basis without forcing us to make decisions about their role prior to the outcome and evaluation of the ongoing trial. The Delegated Powers and Regulatory Reform Committee accepted our approach—a point I have already made. We accept that a different approach has been taken in Northern Ireland, where an advocates scheme has not been trialled prior to setting out details of it in the Bill. It is our position, however, that the detail of advocates’ roles covered in the Northern Ireland Bill can be covered in our regulations, should this be supported by the findings of the ongoing trial. This takes in the point made by the noble Baroness, Lady Royall, when she said that there was a description effectively set out in the Northern Ireland legislation; that could be taken into account. We know that the pre-legislative scrutiny committee acknowledges that there is no one-size-fits-all in terms of advocacy schemes.
This is worth underscoring briefly. We accept that this is not a homogeneous group. This is not a group of people who have had similar experiences or who have similar needs. They are a very heterogeneous group and have different needs that must be addressed. That ought to be taken into account. The report highlighted that the Scottish system, which works very well without any legislative basis, would not necessarily translate well into England and Wales because of the different circumstances regarding trafficked children in different areas.
While we are concerned about child victims of modern slavery, the current trial and the provision in the Bill are focused on a particularly vulnerable group—namely, trafficked children. We know that trafficked children need to receive consistent support and protection to avoid them going missing and being retrafficked. We agree with my noble friend that the Bill is not the appropriate place for measures to extend the provision of advocates to all unaccompanied children, given its specialist focus on modern slavery.
I have dealt with the points raised in particular by my noble friend Lord McColl. I am aware that other points were raised. As I said when we discussed previous amendments, we will reflect on those points very carefully. I am sure that my noble friend Lord McColl, who accurately anticipated my response to his amendment, will probably tell us that he wants to revisit this issue later in our proceedings—which of course is his right. Perhaps in the interim we could have more discussions about how we can ensure that these child trafficking advocates work in the best way possible. We might also be able to share some interim findings from the trial that started in September, which would help inform the debate. With those assurances, I ask the noble Lord to consider withdrawing his amendment.
Lord Patel
My Lords, I pay tribute to my friend, the noble Lord, Lord McColl, and to the noble and learned Baroness, Lady Butler-Sloss. I paid tribute to them at Second Reading but do so again. We all know how hard both of them, particularly the noble Lord, Lord McColl, have worked for years for this Bill.
I thank those who supported my amendment—namely, the noble Baronesses, Lady Lister of Burtersett and Lady Kennedy of The Shaws, and the noble Earl, Lord Listowel. I understand the difficulties of including all separated and unaccompanied children in the Bill. However, I was trying to emphasise that we have enough evidence to suggest that separated children are very much at risk and often end up being trafficked or becoming involved in modern slavery: for example, the example I gave of child T. It would be a great shame if a Bill on modern slavery ended up excluding this group of very vulnerable children, for whom we have to find a solution in due course. However, I recognise the complexity of involving all unaccompanied children.
As the Minister rightly said, the central amendment in this group is Amendment 86H under the lead name of the noble Lord, Lord McColl. My name was added to that amendment, but the vagaries of communication over the weekend and of the printing of the Marshalled List meant that it was not included.
In summing up, the Minister said it was likely that the noble Lord, Lord McColl, would wish to revisit the issue. I noted that the noble Lord nodded enthusiastically, so the Minister was left in no doubt that he and those who support the amendment, including me, will return to it at a later stage.
The vagaries of the House procedures do not allow the noble Lord, Lord McColl, to thank all those who supported him, but I do so on his behalf. With that, I beg leave to withdraw the amendment.
Baroness Hamwee
“Assessment of victims
A person suspected of being a victim of an offence under sections 1 or 2 shall be assessed psychologically during the investigation of the offence.”
Baroness Hamwee
My Lords, I have Amendments 86J, 86K and 86L in this group. Amendment 86J seeks to insert a new clause. I contacted a member of the Bar who practises in this area and asked him whether the provisions available to protect and support victims in court and in their dealings with the police were adequate, even if they were not always well used. In other words, should we be thinking of anything to go in the legislation or is it really a matter of guidance and practice? He came straight back to me with the thought which I have incorporated in this amendment.
Of course, protection in court is very much a matter of practice, in line with some legislation and with guidance. The practice needs a foundation. This would be a foundation for something quite wide. My counsel friend said:
“Every other measure follows from an assessment and those presenting a case will do so fully informed if they have the psychological assessment”.
The victims of slavery and trafficking are so very unlike others. There are many issues that befall them and their presentation in court is difficult. My counsel friend believes, as is obvious, that an assessment should be mandatory.
This is not about referral to the NRM; it is about investigation and prosecution as well as support. An assessment may say that there is nothing too much to be concerned about, but it may say that this individual is very damaged, very vulnerable and that the best way to investigate is as follows. Or, in court, someone with the appropriate knowledge can say, “The victim giving evidence is not able to articulate what, from my work with him, I believe he is feeling. A different line of questioning may be appropriate”. This is not just about support; it is also about the resilience to give evidence and to assist the police, and resilience in proceedings.
My other two amendments can be put very briefly. The first adds a reference to consultation to Clause 48 —the Secretary of State’s guidance on the items listed. I am suggesting that this should be after consultation. I hope that my noble friend will be able to reassure me that it will be after consultation. The second amendment—in order to get the grammar right, it requires a few more words—essentially changes “determining” to “identifying” in Clause 48(1)(c)—the arrangements for identifying whether a person is to be treated as a victim of slavery or trafficking. This is to probe whether this provision is about the NRM, where the term “determination” is used, but so is the term “identifying”. Determination has a whiff of formal proceedings which may be wider than the Government intend. As I say, this is a probing amendment.
Amendment 86M is probably the central amendment in this group and I do not want to steal any thunder by speaking to it, save to say that it is an extremely important amendment and I am very glad that it has been tabled. If we are establishing rights for victims, the logic is that those with the power to grant or deny the right must also be held to account—and that would be via a right of appeal. My first amendment is 86J and I beg to move.
Lord McColl of Dulwich
My Lords, I am pleased to introduce Amendment 86M in my name, that of the noble Baroness, Lady Howe, and that of the noble Lord, Lord Judd. I am grateful for the input of the charities involved in its development, including CARE, ECPAT and the Anti-Trafficking Monitoring Group.
The amendment deals with what is, for me, a foundational aspect of any modern slavery Bill worthy of that name, yet it is not adequately provided for in the current draft. The Bill will be the foundation of legislation for all action on modern-day slavery for decades to come. As such, it must have the victims at its heart and make proper provision for them. I welcome the addition of Part 5 following the recommendations of the pre-legislative scrutiny by the Joint Committee on the draft Bill, of which I was privileged to be a member. However, I feel that Clause 48, which provides a mechanism for guidance on identifying and supporting victims, does not go anywhere like far enough to ensure that the Bill is victim-focused.
I thank the Minister for his comments in his letter sent to Peers following Second Reading, sharing the concern that we provide victims with the services that they need. I am pleased to know that the Government are considering the recommendations of the review of the national referral mechanism and hope that this will lead to a significant improvement in the identification of victims and the provision of support services. However, I do not share the view implied in the Minister’s letter that legislating for the NRM will make the system inflexible, nor do I believe that legislation is a distraction from the process of improvement.
In my opinion, Amendment 86M provides a much needed statutory foundation for operational and structural improvements, in response to the critique of victim identification and support in the review. The flexibility of guidance can be useful in responding to changing circumstances, but guidance is not the place to establish fundamental principles. It is my view that the fundamental principles for identifying victims and providing them with support and assistance should be laid out in legislation. Amendment 86M lays out these core principles. The clause relates broadly to two issues: first, the processes around identifying victims; and secondly, supporting victims—how long we should support them and with what types of services.
Let me first turn to the matter of identifying victims. Amendment 86M addresses the fundamental principle that the formal process for identifying victims and conferring on them a certain status that makes them eligible for services and support needs to be transparent through proposed new subsections (1) to (4). During our scrutiny of the draft Bill, the Joint Committee heard evidence from many NGOs that, because the national referral mechanism is established only in policy and guidance, there is a lack of transparency about decision-making. Anti-Slavery International described this as leading to,
“arbitrariness of application and access for victims”.
The 2013 report from the Anti-Trafficking Monitoring Group, Hidden in Plain Sight, indicates that existing guidance relating to processes under the NRM does not seem to be consistently followed, which gives me great cause for concern over the Government’s proposal that guidance under Clause 48 will be sufficient to ensure the correct operation of the NRM process.
I welcome the review of the NRM that has been undertaken and I am pleased that the Modern Slavery Strategy states that the Government are giving serious consideration to its recommendations for a radical restructuring of the process. However, I believe that any such restructured process should ultimately be established in regulations. This was also the view of the Joint Committee, which said that the Home Secretary should set out the process for identification by order. This approach will provide the flexibility which the Minister mentioned in his letter, but equally allows for greater transparency in the process than exists at present.
Amendment 86M requires the Home Secretary to establish the identification process in regulations and to seek the input of an Independent Anti-slavery Commissioner on the guidance about the identification of victims. One key aspect of this transparency is the process for which Amendment 86M specifically provides. It is the creation of an internal and external appeals process. The current NRM process has no such formal mechanisms for review. Where individuals wish to challenge a negative decision, they must either make an informal request for reconsideration or seek judicial review. The informal process, relying as it does simply on the discretion of an official, is in no way transparent and provides no sense of security for victims when they enter the system. On the other hand, judicial review is extremely formal and costly and does not review the substantive merits of the person’s case. A formal built-in appeals process, with the possibility of a second-tier external review, is needed to provide appropriate transparency and accountability. This is why I have proposed new subsection (1)(c). I was rather disappointed with the response of the NRM review to this point. I am not convinced that its proposals for regional multidisciplinary panels will reduce the need for challenge, nor that the review’s suggestion—that another panel chair could offer a second pair of eyes when a review is requested—will be adequate to provide the transparency that is so important. I hope the Government will support my proposal for a more formal process set out in regulations.
I was also disappointed to read that the NRM review reported that the submissions from many NGOs showed overwhelming support for the preservation of the national referral mechanism solely for victims of trafficking. I am sorry, but I disagree. I recognise that international reporting structures and data comparisons mean we need the clarity of specific statistics on victims of trafficking, but we must ensure that there is a clear mechanism for the identification of victims of slavery who have not been trafficked. Without such a mechanism, we are left, once more, with the problems of transparency which I am seeking to address through Amendment 86M. As it stands, Clause 48 applies to victims of the offences under both Clauses 1 and 2, and this is right. Amendment 86M also applies to victims of slavery and trafficking offences and would require a formal mechanism for identification to be established in regulations.
Having set out the requirements for identification, I turn to proposed new subsection (5). This sets out how long the assistance must be provided for under the reflection and recovery period. There are two questions for your Lordships. First, how long should it be and, secondly, should we set this time period in statute? Those of your Lordships who have studied the European convention will know that our international obligation is to provide a so-called recovery and reflection period of at least 30 days. Such a period shall be sufficient for the person concerned to recover. The UK already has a recovery and reflection period of 45 days, so we are ahead of the minimum. However, I have heard NGOs say, time and again, that even 45 days is not long enough for a victim to properly reflect and recover and that 90 days would be far more appropriate. This is what I am proposing in Amendment 86M. Indeed, the NRM review says:
“Many to whom we spoke thought that victims ‘are failed’ at the end of the 45 day period”.
This is a very sobering assessment of how we are treating victims. Studies show that, during the first three months, a high proportion of victims of human trafficking display symptoms of post-traumatic stress disorder and that longer reflection periods can greatly improve chances of providing substantial assistance to victims of trafficking. That is why I am supporting a 90-day reflection and recovery period.
Baroness Howe of Idlicote
My Lords, I am very pleased to speak in support of Amendment 86M, in the name of the noble Lord, Lord McColl, to which I, and the noble Lord, Lord Judd, have added our names. At Second Reading, I welcomed the fact that the Government had responded to the concerns expressed by the Joint Committee on the draft Bill about the absence of any victim care provision through the introduction of Clause 48, which requires the Secretary of State to offer guidance about victim care. I also made clear, however, that in my view this fell far short of the provision of the statement of support services for victims of trafficking that would be expected to be itemised on the face of any ambitiously titled Modern Slavery Bill, which we are encouraged to think is leading the world on these very important matters. I, too, thank the Minister for the comments in his letter sent to Peers, following Second Reading, in which he shared the concerns that we provide victims with the services that they need.
Those of your Lordships who have had an opportunity to look at the Modern Slavery Strategy, published on 29 November, will see statements about the Government's commitment to continue raising the profile of victims, which is very welcome. Paragraph 7.1 of the strategy states very clearly that,
“our approach to tackling modern slavery is victim-focused”,
but any victim looking at the support promised to them by this Bill would, I fear to say, fundamentally disagree. The current wording of Clause 48 gives very little reassurance to victims and seems to pay scant attention to our international obligations under the European convention and the European directive.
I am sure the Minister will say that we do not need Amendment 86M because all the assistance and support is being provided already. I am not convinced by that argument. I do not dispute that the Government take seriously their obligation to care for victims, as the Modern Slavery Strategy, the NRM review and the interdepartmental ministerial group policy statement have all indicated. However, I am not convinced that in practice all victims are receiving the support they are entitled to. The Joint Committee said:
“The quality of victim support and assistance provided under the NRM varies greatly. We have privately heard from victims some harrowing stories of poor medical treatment, no access to legal advice and wholly unsuitable accommodation”.
This is not an acceptable way to treat victims who, as the Government rightly say,
“have often endured horrific physical, psychological or sexual abuse at the hands of slave drivers and traffickers”.
If this Bill contained details of the minimum levels victims should be receiving under our international obligations, it would strengthen the likelihood that all victims would receive that level of assistance. Noble Lords will know that in 2012 GRETA, the Council of Europe’s group of experts, published its first analysis of UK compliance with the European Convention against Trafficking in Human Beings. Recommendations 26 and 27 state that the UK,
“should make further efforts to ensure that all potential and actual victims of trafficking are provided with adequate support and assistance from their identification through to their recovery. This should involve, in particular: … adopting clear support service minimum standards for victims of trafficking and the provision of adequate funding to maintain them; … ensuring that all children victims of trafficking benefit from the assistance measures provided for under the Convention, including appropriate accommodation and access to education … ; …. enabling victims of trafficking to have access to the labour market, vocational training and education as a form of rehabilitation; … ensuring that victims of trafficking who need it can benefit from translation and interpretation services; … improving the provision of legal advice or assistance to victims on various matters (NRM, asylum criminal proceedings, compensation)”.
Amendment 86M, which proposes to replace Clause 48, meets GRETA’s recommendations, as the noble Lord, Lord McColl, has told us.
Not only do we need to ensure that victims have access to all the support they are entitled to under the European convention and the EU directive, we also need to ensure that more victims can access this support. According to the National Crime Agency, some 60% of the potential victims who were encountered in 2013 by local authorities, police forces and NGOs were not referred to the national referral mechanism and thus could not access government-funded assistance under the victim support programme. Many other charities also say that they provide assistance to victims who do not wish to be referred to the NRM. We need to do all we can to build confidence among individual victims that, if they come forward, they will receive help.
The evidence review chaired by Frank Field for the Home Secretary prior to the publication of the draft Bill makes the following recommendation:
“The protections, entitlements and support that victims are entitled to should be clearly defined in law to help ensure that victims (and the NGOs that support them) are more confident to come forward. Formalising these provisions in law should in turn increase the accountability of the agencies responsible for delivering this support”.
I wholeheartedly agree with this, which is why I have put my name to Amendment 86M. As the UN says, in commentary on its model laws on trafficking,
“Adequate victim assistance and protection serve the interests both of the victim and of the prosecution of the offenders. From a law enforcement perspective, poor victim assistance and protection may discourage victims from seeking assistance from law enforcement officials for fear of mistreatment, deportation or potential risk to their personal safety”.
Baroness Cox
My Lords, I rise to speak to Amendments 102B and 102C as probing amendments in order to return to the important issue of legal aid for victims of trafficking and slavery. Possibly these amendments might be more appropriately grouped with government Amendment 85, which has been widely welcomed and on which I would like to add my own congratulations.
These amendments have two aims, identified by the Immigration Law Practitioners’ Association, the Anti-Trafficking Monitoring Group and the Refugee Children’s Consortium. The first is to clarify the Government’s reason for preventing the commissioner from examining individual cases; and the second is to highlight the concern that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, many will continue to fall through the cracks of provision of desperately needed help. There is currently a protection gap that should be filled by the full provision of legal aid for all trafficked and enslaved persons from the first point of contact with a lawyer.
The amendments highlight the situation that, as things stand, the anti-slavery commissioner will be prevented from investigating individual cases when Clause 44 comes into force. They provide that Clause 44 cannot come into force until such time as legal aid is expanded for victims of slavery and trafficking. That is not to say that Clause 44 should then do so. The powers of the commissioner can be brought into force without the restrictions that Clause 44 would impose. It would give the commissioner a power to investigate individual cases and to be able to respond appropriately, including responding to emergencies.
By making orders under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Lord Chancellor can change which cases are eligible for legal aid. Orders under Section 9(2)(a) are orders to broaden the scope of legal aid. My amendment is not more precise than that. One reason for this is that the national referral mechanism is under review. We do not yet know exactly what the new system for victims of trafficking and slavery will look like. Indeed, the Home Office review of the national referral mechanism states:
“In the event that reasonable grounds determinations were to be phased out … Legal Aid, Sentencing and Punishment of Offenders Act 2012 would need to be amended. This is done through the making of an Order under Section 9 of the Act …six months should be allowed for drafting this process”.
The other concern is the great need for more legal aid to be available at an earlier stage in the process. Victims of trafficking currently qualify for legal aid for their immigration cases if they have a decision that there are “reasonable grounds” to believe that they have been trafficked. Until the competent authority and the national referral mechanism have made a positive “reasonable grounds” decision, a person is not eligible for legal aid. If the competent authority subsequently reaches a negative decision at the final conclusive grounds stage, this renders them ineligible once more. I have been advised by the Immigration Law Practitioners’ Association that the Government’s amendment on legal aid for victims of slavery is subject to the same limitations.
It is of great concern that legal aid is not available to those who are afraid to approach the national referral mechanism in the first place. According to the anti-trafficking and labour exploitation unit, a person who escapes from a trafficker or situation of exploitation and comes to them is likely to be destitute. The person is usually frightened and often illiterate and unable to speak English. In most cases that person has no immigration status, papers or passport. Traffickers keep control of the passports of their victims in many cases. Perversely, fear of immigration enforcement has therefore become a tool in the traffickers’ arsenal. Traffickers tell their victims that they are illegal and threaten to report them to the immigration authorities, which they say will arrest them, detain them and remove them from the jurisdiction. These are not idle threats; victims of trafficking are often disbelieved and detained.
Before turning to the authorities, including the statutory services such as police, who are first responders, victims of trafficking want to know what their options are. Will they be allowed to stay in the UK? Will they be safe? They have been in situations of powerlessness and subject to abuse. They are inherently very vulnerable, so victims of trafficking and slavery need advice about immigration. Without it, some opt to stay in situations of exploitation. It is a crime to give immigration advice if not authorised to do so, and for good reason—to protect people. Yet this means that NGOs providing shelter, which are first responders but not authorised to give immigration advice to the necessary level, cannot step into that breach left by the lack of legal aid.
If I may give one example to illustrate the dire predicament of such vulnerable people, Pranjali is an Indian national whom the excellent charity Kalayaan has assessed as having been trafficked. Pranjali is afraid to approach the national referral mechanism. She was subjected to appalling labour exploitation in the Middle East and here in the UK. She has tried to commit suicide multiple times and has visible scarring on her body. However, Pranjali is the sole provider for her family back in India. She became vulnerable to being exploited because her husband at home is disabled and needs money for his medical treatment. She entered on the tied, six-month domestic worker visa scheme last year but escaped from her employers, yet the Immigration Rules prevent her working for a different employer. She needs advice now as to whether she is likely to qualify for a residence permit as a victim of trafficking, which is her only option to regularise her status. She is weighing the risks of approaching the national referral mechanism, including the risks of being detained and removed, penniless, back to India—jeopardising her ability to provide for her husband’s medical treatment.
Victims of trafficking and slavery are thus in a Catch-22 situation. They will not receive help from a lawyer unless they get a positive decision but are far less likely to get a positive decision without a lawyer to assist them, both in making disclosures about what happened to them and in supporting those disclosures with evidence. The Home Office review of the national referral mechanism records that:
“Victims who escape and present themselves may not know where they have been held or the names of those holding them and the only evidence they have is the story of their experience. Research has shown that those who are severely traumatised have difficulty in providing a coherent story. These factors together can create a perception that decision-making is heavily (and wrongly) based on credibility whereas the decision-maker may feel constrained by the lack of evidence of a crime”.
Mistakes at this stage are difficult to rectify later and can adversely affect the rest of the case. It may be claimed that legal aid is available for everyone who claims asylum but not every victim of trafficking or slavery is a refugee.
In essence, my amendments seek to clarify the situation where a legal adviser encounters a person whom they determine needs legal advice on the immigration consequences of a referral to the national referral mechanism as a victim of trafficking or slavery. That person should surely be eligible for legal advice and for representation in their immigration matters whether or not a referral is ultimately made. Without such eligibility victims of trafficking and slavery, who are already inherently immensely vulnerable in so many ways, are also vulnerable to falling through the gaps of provisions that they so desperately need. I would be very grateful for any clarification or reassurance that the Minister is able to provide.
Lord Hylton
My Lords, Amendment 86M, tabled by the noble Lord, Lord McColl, is important in its own right and I am happy to support it. The amendment includes a period for reflection and recovery, which will be particularly helpful to overseas domestic workers who have been exploited or abused and who may have little or no English. I believe the amendment could be a ladder by which these overseas domestic workers in England, and particularly in London, could have access to legal aid and due process in civil cases as provided for by the Government’s Amendment 85, which was accepted earlier. In particular, if applications on behalf of aggrieved persons could be made by NGOs and law centres, the thing might be made to work and it would help those who particularly need it. For years we have seen bad and vicious employers enjoying a large measure of impunity. This must be ended. The amendment seems to agree with the Government’s stated wish to improve protection for victims.
Lord Alton of Liverpool
My Lords, I would like to be associated with the remarks from my noble friend Lady Cox concerning the potential gaps that people could fall through and her remarks and questions about the national referral mechanism and legal representation for those who are caught up in trafficking.
I particularly support Amendment 86J, moved by the noble Baroness, Lady Hamwee, and Amendment 86M, tabled by the noble Lord, Lord McColl. There is a link between these amendments because the noble Baroness quite rightly identifies those who may have been psychologically traumatised by their experiences. She rightly said that people could be extremely vulnerable and very badly damaged. Any of us who have met people who have been trafficked know that that must be true. If people have been concealed in a vehicle, smuggled into the country and exploited in the ways that have been described in speech after speech in Committee, these grotesque experiences will have maimed them psychologically. Hence it is important that there should be some psychological assessment and support for people who may be suffering from acute trauma and mental illness of one kind or another—something that is always neglected anyway in the National Health Service for our own citizens, let alone for people who have come through these kinds of experiences.
The noble Baroness, Lady Hamwee, is right to say that people should be assessed psychologically during the investigation of the offence. That theme is picked up in Amendment 86M, in subsection (6)(c) of the proposed new clause, where the noble Lord, Lord McColl, would make provision,
“to assist victims in their physical, psychological and social recovery”—
a point returned to in proposed new subsection (10)(c) with,
“medical treatment, including psychological assistance”.
This is a recurring theme in these two amendments and I am surprised that provision is not being mandated anyway by the Bill and wonder whether it is not possible to do what the noble Baroness and the noble Lord have argued for. What do the Government intend to do to safeguard people who may be suffering from mental illness and who may have been traumatised through their experiences?
Lord Browne of Belmont
My Lords, I support Amendment 86M. The focus of the amendment is on improving the provision of support for victims of human trafficking and slavery, which I believe to be imperative if we are to appropriately respond to the impact of these crimes. The United Kingdom is a signatory to both the 2005 Council of Europe convention against trafficking in human beings and the 2011 EU directive on preventing and combating trafficking in human beings and protecting its victims, both of which are legally binding on the UK.
However, as we all know, signing up to a directive or a convention is only half the battle. The key issue is how a member state decides to implement the directive or convention in practice. In many areas the British Government and the devolved Administrations, who are responsible for criminal justice powers, have flexibility in deciding how they will implement these international instruments. A good example of this is seen in how we decide to design our human trafficking offences. Both the convention and the directive mandate that such offences are required, but the relevant legislatures in the UK can shape the offences as they choose.
However, Articles 11 and 14 of the directive and Article 12 of the convention set out the details of the practical assistance and support that states must provide to victims. Among these requirements are that assistance and support should be provided to victims before, during and—for an appropriate period of time—after the conclusion of criminal proceedings, and that the assistance and support should include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment, including psychological assistance, counselling, information and translation and interpretation services where appropriate.
The UK is obliged under international law to provide those measures of assistance and support; that is not in dispute. Now it is being argued that the obligation to provide such assistance and support does not need to be in statute, and that we can merely rely on guidance to fulfil the requirements. I do not believe that that is good enough. Indeed, as we have heard, the group of experts established by the Council of Europe convention, GRETA, has recommended that the UK put into statute this right to a reflection and recovery period during which the assistance is provided. To my mind, there is no logical reason why such obligations should not be outlined in statute with the details of delivery being set out in guidance. Amendment 86M would achieve such a goal.
I am afraid that, once again, I will take this opportunity to refer to the Northern Ireland Bill. Amendment 86 mirrors the requirements for assistance and support under the directive and convention, and unsurprisingly, therefore, it is similar to Clause 18 of the Northern Ireland Human Trafficking and Exploitation Bill introduced by my party colleague, my noble friend Lord Morrow. The Northern Ireland Assembly unanimously supported this clause when it was debated a few weeks ago. It sets out clearly in statute the range of assistance and support that adult victims of human trafficking will receive when they have been, or are about to be, referred to the national referral mechanism. Indeed, the Minister of Justice in Northern Ireland fully supports Clause 18 of the Northern Ireland Bill. He agreed with my noble friend Lord Morrow that such a move would be a positive one for the victims in Northern Ireland. The Minister of Justice and my noble friend co-operated very effectively to put forward an excellent clause that has been accepted by the Assembly.
I am very proud of the fact that Northern Ireland is leading the way within the United Kingdom through the Human Trafficking and Exploitation Bill. This Bill is superior to the Modern Slavery Bill in its proposals to assist and support victims of human trafficking. There is a risk—one that can be avoided but I fear will not be—that the support for victims will be superior in Northern Ireland to the rest of the United Kingdom. The setting out of the minimal level of assistance to victims in Clause 18 of the human trafficking and exploitation Bill is a model that the Modern Slavery Bill should follow for England and Wales. It is not more expensive, and it provides much greater clarity for victims and NGOs working with victims to as to what assistance and support they are entitled to. I urge your Lordships to consider carefully what is being done in Northern Ireland and to produce a similar measure in the Modern Slavery Bill. I commend Amendment 86M to the Committee.
Lord Bates
My Lords, I am struck in these amendments by how prescient contributors are of the arguments I am about to deploy. I was wondering how it could be that people were so aware of this. The reality is that we have had a rather open and extensive consultation period. Indeed, the officials working on the team are constantly meeting with outside groups and talking to people. Alongside that, my noble friend Lady Garden and I have been trying to do the same with your Lordships’ House. Therefore, I suppose that it is not too much of a surprise that respective positions are known—but that does not mean that they cannot be moved on either side.
I take slight issue with one of the caricatures put forward, perhaps unintentionally, by the noble Lord, Lord Browne, that somehow victims’ protection in the United Kingdom may not be of the same standard outside Northern Ireland. I do not accept that. Not least, of course, we are going to have an Independent Anti-slavery Commissioner, who will cover Northern Ireland. I am sure that that would be a key part.
The other point is that, as I have said before, we are open to looking at the legislation and experience in Northern Ireland and to sharing best practices with each other. The notion that somehow victims are just a passing shot in the Bill does not stack up to the discussions we are having or the legislation, where we talk about victim reparation orders, enhanced access to legal aid—which has been widely welcomed—special proceedings in court to encourage victims to come forward, presumptions about age, child trafficking advocates, and statutory defence if they are involved in committing a crime. All the way through, we all shared a commitment that those who have suffered most should be considered most. At the same time, we recognise that one of the best ways that one can serve victims is by ensuring that others are not added to their number by making prosecutions.
Those points made, I am not quite sure I will live up to the creative billing the noble Lord, Lord Alton, urged on me, but I shall respond as best I can to the points made. I am grateful for the tabling of Amendments 86J, 86K, 86L, 86M, 102B and 102C, which deal with crucial issues relating to identifying and supporting victims of modern slavery and to legal aid. This is why the Modern Slavery Bill includes a provision requiring the Secretary of State to issue guidance to ensure that front-line professionals understand how they might encounter and identify potential victims of modern slavery and how they can help them to access the support they need.
This guidance will focus on the effective identification of both child and adult victims of modern slavery and will provide information to front-line professionals and others on potential signs that someone may be a victim and on what to do. It will also set out the assistance and support on offer to victims through the government-funded adult victim care contract, currently operated by the Salvation Army, and local authority child welfare and safeguarding arrangements, including the presumption about age provisions in Clause 49. The Independent Anti-slavery Commissioner will also have a key role in ensuring that victims can be quickly identified by all front-line professionals. We are fully intending to consult on this guidance so that we can get it right, and therefore I do not believe that the amendment is necessary.
Amendment 86J seeks to require all victims to be psychologically assessed during the investigation of a modern slavery offence as set out in Clauses 1 or 2. While I appreciate my noble friend’s intention of ensuring that an assessment of victims’ needs is undertaken at an early opportunity and her awareness of the often deep psychological trauma these heinous crimes can inflict, I do not believe that this amendment is the right approach to achieve those laudable aims. The amendment may force victims to undergo a psychological assessment, even if they do not want one. I am sure that that is the last thing we should do. Added to that, all the way through this victim-focused legislation is the idea that victims have to consent to all the actions taken on their behalf. Instead, I offer the following reassurance. Adult victims who are referred to the national referral mechanism are entitled to receive psychological support through the national victim care contract currently run by the Salvation Army. Any such support would be provided following an appropriate assessment of an individual’s needs.
I now turn to Amendment 86L, tabled by my noble friend Lady Hamwee. I believe it is a probing amendment in relation to the intention of Clause 48(1)(c), which sets out that guidance should include,
“arrangements for determining whether a person is to be treated as a victim of slavery or human trafficking”.
The purpose of this paragraph is to ensure that such guidance covers the national referral mechanism decision-making process to determine whether a person is to be treated as a victim of slavery or human trafficking. The wording of the Bill reflects the terminology used in relation to the national referral mechanism. “Determination” is used to describe the reasonable and conclusive grounds decisions by the competent authority, whereas “identify” is used to refer to the initial identification of potential victims by first responders. I reassure my noble friend that the paragraph as presently drafted covers both these elements of the national referral mechanism process, and I trust that the intention of the amendment is not to limit the scope of the guidance in any way.
Amendment 86M seeks to put a referral mechanism into statute which ensures that victims get at least 90 days’ support which is not conditional on the willingness of the person to act as a witness in any criminal proceedings. Although administratively we provide potential victims with a minimum of 45 days to recover and reflect, in practice many victims are supported for a much longer period. As noble Lords may know, we are currently retendering the contract for adult victim care services and have reflected on the national referral mechanism review recommendations in building the requirements for the new contract. That includes consideration of how we might provide ongoing support to victims once they have received a decision confirming that they are a victim of modern slavery. Our aim is to help these individuals move on with their lives so that they are not revictimised through being retrafficked.
Finally, Amendments 102B and 102C will enable the commissioner to exercise functions in relation to individual cases until amendments are made via secondary legislation to legal aid provisions. The Government are strongly of the view that it is not the role of the commissioner to champion individual cases or to track victims who receive support. Their role is to strengthen our collective response to modern slavery, working closely with law enforcement agencies and other stakeholders, including civil society organisations, to identify more victims and prosecute more perpetrators. We recognise the importance of understanding the longer term outcomes of victims. That is why we are considering how we can work with the victim care contractor to best achieve this. Of course, information from individual cases may help inform the commissioner’s work in this regard, but it is not for the commissioner to advocate for individuals.
Potential victims of trafficking currently gain access to legal aid following a positive reasonable grounds decision of the national referral mechanism. Legal advice is not necessary for an NRM referral. The reasonable grounds decision is generally made within five working days after an individual has been referred to the NRM, and the decision has a low threshold. This test is an important gateway to avoid abuse of a system that provides access to a range of support, including legal aid. We recognise that there are concerns about the operation of the NRM. That is why we commissioned a full review of the system and will be piloting a new approach to the NRM in response to that review. We will ensure that any wider changes to the NRM are reflected in the provision of legal aid.
I thank noble Lords for tabling these amendments and allowing us to discuss some crucial issues. I hope that I have addressed noble Lords’ concerns and that—with the undertaking, as with previous groups, that we will continue reflecting on the detailed comments that have been made—they will take that reassurance and not press their amendments.
Baroness Hamwee
My Lords, I was looking to see if the noble Lord, Lord McColl, wanted to come in. I know that all noble Lords are very appreciative of the time and effort that Ministers and officials are putting in to meetings and discussions outside the Chamber. I hope that the teasing and the prescience does not deter them from continuing with that; I am grateful to the noble Lord, Lord Alton. My amendment about psychological assessment—I take the point about consent —is really not about the NRM or about support for victims and their recovery; that is obviously extremely important. I was seeking to pick up the role of psychological input into an investigation and prosecution. That is a different matter. It is clearly not appropriate now for me to expand on that any further, but if I can test the Minister’s patience, maybe this is something for outside the Chamber.
I note what the Minister said on my other two amendments—I am happy about those—and I beg leave to withdraw Amendment 86J.