(9 years, 10 months ago)
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Lord Alton of Liverpool
Lord Alton of Liverpool (CB)
My Lords, I shall speak also to Amendments 38, 39, 41 and 46. These amendments are to Clauses 41, 42 and 43. I put on record my thanks to the noble Baroness, Lady Kennedy of Cradley, the noble Lord, Lord Judd, and my noble friend Lord Sandwich, who are all signatories to these amendments.
In moving the amendment, it is my privilege to take up—rather inadequately, I suspect—the cause so passionately espoused by my noble friend Lady Cox, who is unable to speak to this amendment due to a prearranged visit overseas. These amendments relate to an aspect of modern slavery that we are in danger of overlooking despite the efforts of my noble friend—who, while we are meeting, I might add, is currently in the war-torn areas of Sudan that she has frequented so often, where she will no doubt be seeing first hand some of the ravages of modern slavery that have been so familiar in that country. This was an issue that she highlighted at Second Reading and again in Committee. I know that, while grateful to the Minister for the meetings that he has arranged and for the letter that he kindly sent to Peers, she was nevertheless disappointed that that letter omitted any mention of this issue of the global nature of slavery, which had been raised by Members on all sides of your Lordships’ House.
I recognise that the Bill focuses on modern slavery in the United Kingdom, and that is right and proper. Yet modern slavery is by its very nature a global phenomenon; it cannot be tackled by one Government alone but requires a global solution. With the exception of the section on company supply chains, which we will come to on Wednesday, and which can address the issue only in a limited way—albeit a vital and necessary one—there is no mention of the global dimension of modern slavery at all in the Bill, let alone any measures requiring the UK to play its role on the world stage. These amendments therefore seek to address that omission. For every person trafficked in the UK there are dozens of children in forced labour in Uzbekistan’s cotton mills, hundreds of women and girls trafficked into Thailand’s brothels and thousands of men, women and children exploited in bonded labour in India and Pakistan.
The scope and scale have been rehearsed often enough during debates on the Bill and I will not repeat them all again here. Suffice it to say that far more people are affected today than throughout the era of the transatlantic slave trade, which is even more reason for us to take up the cause of Wilberforce, Clarkson, Equiano, Roscoe and the other abolitionists celebrated by one of the banners in Westminster Hall marking memorable parliamentary achievements. The Bill should deserve to be celebrated in the same way as those achievements, but it risks falling short if it does not address the global dimension of modern slavery.
The irony is that the Bill was announced amid a cacophony of claims that the UK was, or wanted to be, leading the world in the fight against modern slavery. That is of course a noble aspiration, but we can never make any realistic claim to be world leaders unless we tackle the problem globally and recognise that every country and sector of society has to play its part—business, the public, the Government and non-governmental organisations have to contribute. However, this will not happen until and unless countries move beyond the parochial and recognise that they face common issues; that there are often international links as well as the cross-border movement of people; and that there are groundbreaking approaches in one part of the world that could be used elsewhere, whether in legislation, enforcement, prevention and protection or the rehabilitation and reintegration of survivors.
In recent times there has been a change in language from government departments acknowledging that we are dealing with a global issue, and I welcome that. In particular, I welcome the stepping up of our international response within the Modern Slavery Strategy published last autumn by the Home Office. It is significant that the intention is to identify priority countries, not just those that are the source for significant numbers of victims trafficked into the UK but also countries suffering disproportionately from a high incidence of modern slavery. Moreover, the strategy includes the prioritisation of activity to tackle modern slavery in those countries by working with foreign Governments and civil society organisations. The Government are to be congratulated on this aspect of the strategy. However, as your Lordships well know, a strategy can be discontinued or changed at the drop of a hat. That is why it is essential to undergird this and to ensure continuing prioritisation by making annual reporting on global modern slavery a legislative requirement.
On the previous group of amendments, I mentioned that Kevin Hyland wrote to me and other Members of your Lordships’ House on 20 February. On page 4 of his letter he said something which relates directly to these amendments:
“British Embassies and High Commissions will develop Modern Slavery Priority Country Plans, working with both international and locally based partners, including the UN, faith leaders and local NGOs. I want to see an increased focus on preventing modern slavery from happening in the first place.
I will support and challenge the development and implementation of these plans and will push to ensure a fully coordinated response when the crime does occur”.
In essence, these amendments place those responsibilities outlined by the Independent Anti-slavery Commissioner in that letter of 20 February in the Bill, and require the commissioner to monitor trends in slavery and human trafficking around the world and the measures taken to address them in order to gain a better understanding of the problem, its causes and solutions and to identify best practice, as well as opportunities for co-operation and collaboration.
Amendment 39 requires each embassy and high commission of the United Kingdom to submit an annual report on slavery and human trafficking in its area of operation to the commissioner. Amendment 41 sets out aspects to be included in these reports. Requiring embassies and high commissions to report will ensure that the workload is not too heavy for the commissioner. I know that there will be some concern about adding to the duties of the commissioner, but he does not seem to be unduly concerned about that, certainly reading the letter I have just mentioned. This approach is a significant improvement on the Modern Slavery Strategy, which puts the inter-departmental ministerial group on modern slavery in the role that I am advocating. I am convinced that that is not appropriate. It requires an independent assessment, which is surely an appropriate task for the Independent Anti-slavery Commissioner.
These measures are important because they set out a mechanism for gathering vital information to help build a comprehensive picture of modern slavery across the world and how it is being tackled. This is essential for developing a strategy that will address the issue effectively, hence the requirement in Amendment 38 for the reports to cover not only the extent and nature of modern slavery but legislative and enforcement measures and details of the care, rehabilitation and reintegration of survivors. This section also requires reporting to include any relevant initiatives supported by the UK Government, so that effectiveness can be monitored, and any relevant activities of international bodies or non-governmental bodies, so that we can learn from effective approaches and in the right circumstances support such activity to increase effectiveness. These requirements are deliberately not prescriptive in order to allow the precise format, coverage and emphasis to be developed according to the needs of the moment.
The amendments set out what the commissioner will do with the information reported to him. These reports from embassies and high commissions will inform and shape his strategic plan. They will also enable him to include in his report a statement of the nature and extent of slavery and human trafficking in these areas as well as in the United Kingdom.
My final amendment to Clause 43 ensures that, for the purposes of this section, “specified public authority” shall also include all embassies and high commissions of the United Kingdom. If, as the Home Office strategy indicates, tackling modern slavery around the world is our intent, it should be in the Bill. These amendments ensure that. They will also encourage joined-up thinking between the Home Office, the Foreign and Commonwealth Office and DfID, something I know that the Minister of State at the FCO, the noble Baroness, Lady Anelay, wishes to see. I know that efforts to achieve that have already begun. However, in many ways one of the strongest arguments for adopting these amendments is that they will certainly encourage the addressing of these conditions that are conducive to modern slavery, and will therefore support the work of the Home Office, the FCO and DfID.
Poverty, displacement and conflict are common root causes. Modern slavery is as much a gross abuse of human rights and dignity as it is a crime. It is all too common to discover that lack of access to education, healthcare and employment opportunities all play their part. A desperate need for medicine or treatment is all too often the push factor in driving individuals to succumb to apparent job offers that promise financial reward but deliver only despair and exploitation; for example, in the many forms of bonded labour found particularly in south Asia, the nexus of modern slavery.
We would be well advised to take note of Dr Aidan McQuade, CEO of Anti-Slavery International, when he reminded us in a recent Guardian article:
“How the UK and other governments comport themselves in the coming weeks will be a critical test of how serious they are”.
The rest of the world is looking on to see how serious we are; we really can lead the world, if we are bold enough to address the global issue. In her foreword to the Government’s strategy the Home Secretary wrote:
“The time has come for concerted, coordinated action. Working with a wide range of partners, 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. Together, we must send a powerful message to all traffickers and slave drivers that they will not get away with their crimes. And we must do all we can to protect, support and help victims, and ensure that they can be returned to freedom”.
I wholeheartedly agree. To that end, I reiterate my thanks to other noble Lords who have offered their support and I beg to move.
Lord Judd (Lab)
My Lords, I am very glad to support the amendment and I am very grateful to the noble Lord, Lord Alton, for having introduced it.
This seems a particularly acute and disturbing example of how we live in a totally interdependent world. It is to live in a fool’s paradise to think that we can find the solutions by acting on our own within the confines of what we call the United Kingdom. This is an international issue—an international disease—and it has to be tackled internationally. Our credibility in building up the kind of international action that is necessary will relate very much, as the noble Lord has just emphasised, to how the world sees our serious commitment within the United Kingdom to putting muscle into our concern.
I will say also that I am one of those who welcomed the bishops’ letter last week. I was thinking about this earlier in our deliberations this afternoon when we were talking about how we tackled this issue in the United Kingdom in courts, and about whether there had been prosecutions, convictions and the rest. All that is crucially important, but it is happening in the context of a values crisis. We have to ask ourselves very seriously what the prevailing set of values is that established the context within which all these things happen.
I am not a doctrinaire socialist—or, at least, not a dogmatic socialist. I am pragmatic in my socialism; there is a place for the market. However if you build up a culture in which the market is supreme, and it is, to say the least, an amoral market, where is the authority and the ethos within which you can make a success of these things because of the conviction that is there? There have to be other absolutes besides price as regards the kind of society in which we want to live. If we really want to be effective in this, we must have international action and effective legal arrangements in Britain. However, we must work at developing a sense of decency and solidarity—internationally, as well as within our own society—in which these things are unthinkable. If they are just another extension of the market, where people say, “Well, I can make money this way. Why don’t I do it?”, where will we be?
I remind the House, as I have done before, that Adam Smith, who made such an important contribution to the context and concept of economic liberalism and capitalism as it operates, did not at first, as a young man, write about economics at all. He wrote about ethics. He was a very strong Scottish Presbyterian. He took the ethics and values of society for granted and then approached the market. I am afraid that we have bred a society in which the market as a driving force has been seen as something that does not have to take values into account, unless it is forced to do so, and that is what we have to tackle in all these issues if we are ultimately to be successful. However, I really do congratulate the noble Lord on having reminded the House about the indispensability of international solidarity in this campaign.
The Earl of Sandwich (CB)
My Lords, as a former council member of Anti-Slavery International and a former member of the Christian Aid board, I support my noble friend’s amendments because they link contemporary slavery in the UK with slavery in the rest of the world. We forget that it was not long ago that non-governmental organisations explained that there was slavery in this country—it was not something that was far away—so we are following that line. The amendments become obvious when you realise that so much slavery is indivisible and that traffickers, and indeed victims, of slavery respect no boundaries.
I was unable to be present on 8 December when my noble friend Lady Cox moved similar amendments in Committee, but I have read carefully her contribution and the Minister’s reply. That there is an international dimension to modern slavery almost goes without saying, except that it is not mentioned in the Bill. We are all aware of the direct overseas experience of slavery and trafficking that my noble friends Lady Cox and Lord Alton and the noble Lord, Lord Judd, bring to the House. In Committee, the Minister, at col. 1638, acknowledges that experience and says that we need to go further. But I ask him again: how can we go further? I am not sure whether the Minister has yet stated how the Home Office can go further, apart from referring to passages in the strategy document. My noble friend referred to the letter that we have received from the commissioner, which is of high quality and points out the country plans that he will be following. It strengthens these amendments to read those passages in the letter.
I was most grateful to the Minister for inviting us to meet the new commissioner a fortnight ago. In that conversation, it became clear that the commissioner is already closely in touch with foreign and UK embassies, and he sees this as an important part of his job. He will of course need adequate resources to cover this, as we have touched on elsewhere.
In practice, I do not think that the amendments commit the Government to very much. Apart from close regular liaison between the commissioner and embassies in the course of his work, all that is needed is annual reporting of relevant incidents by embassies and high commissions, rather in the way that this is done annually by the Foreign Office in the case of human rights. It is not an unreasonable request, and my noble friend has already described the more detailed arrangements for this. However, it is important to make the connection in the Bill. The Government are rightly taking all these issues very seriously, and the Minister has, again and again, shown his personal commitment—some of it, I have no doubt, from his experience in China when he was doing his MBA. Sensible changes have been proposed during the passage of the Bill. I suggest that this is one of them and I look forward to his reply.
Baroness Kennedy of Cradley (Lab)
I support the series of amendments in the name of the noble Lord, Lord Alton of Liverpool, who seeks to insert a much-needed international perspective in this Bill. No one would dispute that modern slavery is a global problem and therefore no one should dispute that modern slavery needs an international as well as a national response. Our international response in this Bill is lacking, as other noble Lords have pointed out, and this is disappointing. That is why I support the noble Lord’s amendments. They would be effective in helping push the issue of slavery and trafficking up the world’s political agenda, especially Amendment 38. Having each embassy and high commission produce an annual report on government action to fight slavery and trafficking would mean more research into slavery across the world, more information collected and shared, and greater dialogue with a wide variety of the world’s government officials, NGOs, journalists, academics and, more importantly, survivors, monitoring, working together, and sharing and developing partnerships across the world. Learning what works best to tackle the causes of slavery and trafficking, to protect the victims and to prevent it happening in the first place is essential, and we can learn a lot from these annual reports. Through embassy engagement, we can create global solutions to eradicate this global problem.
Finally, as we discussed in Committee, involving embassies and high commissions in preparing an annual report about trafficking and slavery in their areas of operation is not new. America has been doing it for the past 14 years. Since 2001, they have produced a Trafficking in Persons Report. I cannot see why we in the UK should not do the same. Therefore, I hope that the Government will accept these amendments.
Baroness Butler-Sloss (CB)
In the letter from Kevin Hyland, on page 4 on international collaboration, it is clear that the commissioner designate sees it as an essential part of his role to bring together the necessary partners, nationally and internationally. He talks about working with British embassies and high commissions and wanting a significant increase in bilateral, multilateral and joint investigations, some of them supported by EU funding. In the past there have been some excellent bilateral arrangements, particularly one with Romania called Operation Golf, and there were other very good arrangements that worked with Europol and so on. Do the Government think that the current powers of the commissioner are sufficient for him to carry out all the duties that he talks about on page 4—and, if so, is it necessary to have it in primary legislation?
Lord Warner (Lab)
My Lords, in speaking in support of the amendment I want to ask the Minister a question. We had a discussion earlier today about the Secretary of State fixing the budget for the commissioner and we had a debate about public bodies being required to co-operate with the commissioner. Is it the Minister’s understanding that the amendment on setting the budget for the commissioner embraces the whole area of overseas travel and maintaining those international relations? Why are embassies not included in the public bodies that are expected to co-operate with the commissioner? It would be helpful to have some clarification on those two issues.
Lord Rosser (Lab)
I wait with interest to hear the Government’s reply. They have an amendment which refers to Clause 41(3)(f) and to,
“things that the Commissioner may do in pursuance of subsection (1)”,
which is about encouraging good practice. As it stands, the paragraph says that it may include,
“co-operating with or working jointly with other persons, in the United Kingdom or elsewhere”.
The amendment would make it read “or internationally”. I have no doubt that the Minister intends to do this, but it would be helpful if he could explain the extent to which he feels that his amendment differs in spirit and objective from the one moved by the noble Lord, Lord Alton of Liverpool.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Lord, Lord Alton, for proposing these amendments and to all noble Lords who have spoken in this debate.
This is yet another area where we have seen considerable progress since Second Reading. The noble Lord, Lord Alton, referred to powerful speeches made by a number of noble Lords at Second Reading, particularly the noble Baroness, Lady Cox, who spoke passionately and persuasively about this issue. That speech was very influential in shaping the Modern Slavery Strategy. A particular element is involved here which I will come back to. I say to the noble Lord, Lord Rosser, that the strategy is helpful in that it is a cross-government strategy. Rather than being domestically focused—clearly, by definition, the Home Office is domestically focused—the strategy reaches across all government departments. Importantly, the Modern Slavery Strategy complements the Bill as it says what the Government will do as a result of the legislation that is passed.
Page 10 of the Modern Slavery Strategy highlights the fact that, as part of Pursue, we will work internationally to,
“improve our own capabilities and cooperation with international partners”.
The work being done in the Santa Marta group is part of that. I pay tribute particularly to the work being done by the Vatican in that respect. On 9 and 10 April last year, the Home Secretary and international law enforcement representatives attended a historic event at the Vatican to discuss how the church and law enforcement could work together to combat modern slavery. At the conference, the Home Secretary announced the creation of the Santa Marta group—a group with senior law enforcement officers from around the world chaired by the Metropolitan Police Commissioner, who will work on joint practical measures to strengthen and co-ordinate our response to tackling modern slavery globally. The Santa Marta group met again in London on 5 and 6 December 2014 and has committed to meet again in Spain later this year. The meeting in December was very successful. I think that it was attended by all the 40 or so country representatives from around the world and reflected the two sides of the operation—the country plans undertaken by DfID and the FCO, which have already been referred to, and the crucial work undertaken by the National Crime Agency in tackling the organised crime dimensions by placing people overseas.
The Modern Slavery Strategy goes on to describe in some detail on page 54 the overseas Protect work in which we are engaged. That is not to suggest that this is a sentiment or gesture comprising words only. In the past 18 months, 14 modern slavery projects have been delivered in seven countries. Does more need to be done? Of course, much more needs to be done. I am trying to paint a picture to show that even when this issue was being subjected to pre-legislative scrutiny, the Santa Marta group was involved in it. We recognise that the international dimension is absolutely critical in tackling this heinous crime, as the noble Baroness, Lady Kennedy, and the noble Lord, Lord Judd, said. We cannot do it alone. We need to have the Pursue and Prevent programmes. The aims of the Prevent programme will clearly be international.
The designate Independent Anti-slavery Commissioner, Kevin Hyland, wrote that he saw international collaboration as being a key part of his operation. I know that he is just about to visit Nigeria and he has been to Spain. All his visits have been facilitated, as one would expect, by the missions in the respective countries. That work is therefore being undertaken.
Lord Alton of Liverpool
My Lords, I am grateful to the noble Lord, Lord Bates. He certainly was reading my mind when he referred to Amendment 36 and the replacement of “elsewhere” with “internationally”. If that is all that the Government can offer, it is not just that I do not find that a very comforting or acceptable approach; it is more about what my noble friend Lady Cox will make of this when she returns from Sudan. I would not want to be in the Minister’s shoes when my noble friend comes back from those troubled parts of the world. I do not think that it will satisfy her either.
The noble Lord referred to William Wilberforce. I was thinking as he said that that Henry Thornton, one of Wilberforce’s supporters, defended him when he was accused of being interested only in issues overseas. William Hazlitt had criticised Wilberforce for not also taking up the cudgels to deal with things such as children being sent down the mines and public health issues at home. In defending Wilberforce, Thornton said that it was rather like criticising Christopher Columbus for discovering America but not going on to discover Australia and New Zealand as well. In other words, there is only a certain amount that you can achieve at any one time.
I recognise that the noble Lord has made huge efforts during the course of this Bill, along with many Members of your Lordships’ House, to make great progress. He has used the metaphor of being on a journey on a number of occasions. He struck that same metaphor in the response to this debate in reminding us that there is a strategy that will affect all departments from the Santa Marta Group. I pay particular tribute to the British ambassador to the Holy See, Nigel Baker, who has played a very important part in facilitating the discussions begun by that group and which have helped to concentrate the minds of people elsewhere in the world on these questions. He was also right to remind us that the appointment of the Independent Anti-slavery Commissioner will be an important contribution to highlighting these issues overseas.
The noble Lord, Lord Warner, was right to remind us of the question of the budget. We did not get an entirely satisfactory reply from the Minister on that point. I thought my noble and learned friend Lady Butler-Sloss put her finger on it, as always, when referring to the letters sent by the Independent Anti-slavery Commissioner in saying, “Are these powers sufficient?”. We still do not really know the answer to that. I am not in a position to make that judgment this evening.
I recognise that the Minister has shown a lot of good will, in his usual manner, in dealing with the amendment. Again reverting to the imagery he conjured of Wilberforce and his companions, it took them 40 years to get from the beginning of what they wanted to achieve to the end. In the immediate aftermath of the passage of the anti-slavery legislation—Wilberforce was on his deathbed when word was brought from Parliament that it had been enacted—it was very significant that all over the world, not least in the American Congress, other legislatures followed the example that had been set in the United Kingdom. We should look back to that period and remind ourselves that what we do here will affect what goes on elsewhere. That is why it is important that we get this legislation absolutely right. Although I want to reserve the position of my noble friend Lady Cox, who will no doubt be in touch with the Minister on her return—she may want to return to this at Third Reading—for the moment I beg leave to withdraw the amendment.
Baroness Garden of Frognal
My Lords, in moving government Amendment 31, I will speak to government Amendments 34, 35 and 37. These amendments clarify the role of the Independent Anti-slavery Commissioner in relation to victims’ services, working with voluntary organisations and with the Victims’ Commissioner.
We had an important debate in Committee about the anti-slavery commissioner’s remit. Through our debates, noble Lords have expressed concern about whether the commissioner’s role adequately covers victims’ issues and services. The Government have listened to these concerns carefully. We have been clear throughout the passage of the Bill that the commissioner can look at victims’ issues because they are crucial to his remit. For example, incredibly vulnerable victims will not be able to support prosecutions and make effective witnesses unless they are receiving the support and assistance they need to recover.
We are supportive of the approach the commissioner-designate has taken. He has set out how he proposes to work effectively with victims and NGOs working in this sector, and to look at victim services in support of his remit. Given the genuine concerns raised about whether the commissioner can look at victims’ issues, we want to put the position beyond doubt. I am therefore moving government Amendment 37 to make clear in the Bill that the commissioner can look at victim assistance services in support of his remit. I also want to ensure that there is no doubt that the commissioner can engage with those with most insight into victims of modern slavery. Therefore, I am moving government Amendments 34 and 35 to clarify that the commissioner may consult and co-operate with the Commissioner for Victims and Witnesses and with voluntary organisations.
The provision on the Independent Anti-slavery Commissioner is a United Kingdom-wide provision, so I want to express our thanks to the Northern Ireland Executive and the Scottish Government for working with us to develop the government amendments, which are carefully designed to stay within the legislative consent of their legislatures. Given that the Government are proposing action to address the important concerns about the remit and victims’ issues raised in Committee, I hope that noble Lords will feel able to support these government amendments. I beg to move.
Baroness Howe of Idlicote (CB)
My Lords, I rise very thankfully to support Amendment 37 in particular, which aims to include the “assistance and support” provided to victims among the subjects for the commissioner’s attention. As I said in Committee, it is essential that the commissioner engages with victims. I know that Clause 41(1)(b) includes victim identification in the commissioner’s remit but I believe that he should take a leading role in promoting high standards in victim care as well as in law enforcement activities. Like others, I was heartened by the obvious concern for victims demonstrated by Mr Hyland, the commissioner-designate, during our meeting. I thank the Minister and the noble Baroness for arranging that meeting, as I believe that it has given many of us greater confidence in our new commissioner.
Supporting victims must be among our highest priorities when addressing modern slavery. As has been said before and was echoed by the commissioner in his presentation to Peers, we will never be able to gain a full picture of the extent of this crime if victims do not feel confident in coming forward. We will not achieve an increase in successful prosecutions if we do not ensure that victims have the necessary support and assistance to put them in a position physically and psychologically to engage with police investigations.
Reaching and maintaining high standards in victim care is a fundamental part of achieving the objectives set for the commissioner in the Bill to strengthen law enforcement efforts and improve identification of victims. Ensuring high-quality victim care is something that interacts with promoting good practice in prevention, detection and prosecution of those crimes, and in identifying victims. Thankfully, it seems that the commissioner-designate is keenly aware of this as he has made it one of his key priorities.
While I say that victim care intersects with the other functions, I am not sure that it should be properly viewed as implicit in those functions as the Bill is before us today. I am therefore pleased to welcome Amendment 37 in particular, and all the amendments in the name of the Minister, which make that connection explicit and give express permission for the commissioner to consider these matters.
Baroness Hodgson of Abinger (Con)
My Lords, as many of us have made clear through the progress of the Bill, if the true impact of establishing an anti-slavery commissioner is to be realised, we must not shy away from awarding him the powers and autonomy he will need to make this role truly effective. I therefore congratulate the Government on these amendments. The role of the commissioner may include the provision of assistance and support to victims of slavery and human trafficking offences. I am heartened by the progress that has been made thus far in strengthening the commissioner’s remit.
We still have some way to go in providing the level of consistent and comprehensive support that victims truly need but I believe that the anti-slavery commissioner will now, through these amendments, be better placed to address this. I, too, had the pleasure of meeting Mr Hyland two weeks ago and I was most impressed by his approach and what he had to say. I am delighted to support these amendments, especially Amendment 37.
Lord McColl of Dulwich (Con)
My Lords, I support Amendments 34, 35 and 37.
It has been said by many during debates on this Bill—but it is worth repeating—that victims must be at the heart of all our actions to address modern slavery, whether in this Bill, in other policies and strategies or in the everyday front-line work of police officers, prosecutors, support workers, local authorities and so on. When a victim escapes from a situation of modern slavery they are likely to be interviewed by the police, they may enter the national referral mechanism process, or they may be placed in a specialist shelter through a victim care programme or be cared for by other charities. They might apply for asylum and have to deal with immigration officers and the whole asylum process. As they move between all these scenarios, victims do not change: they remain the same person. Their experience cannot be compartmentalised. For them it is a seamless whole.
The commissioner-designate has stated the importance of taking a victim-focused approach to this crime. Indeed, he told Peers during our informative meeting that he has made improving victim care one of his five priority areas of work. If the commissioner, a man of great experience in the front line of addressing modern slavery, believes that engagement and oversight of victim care and support is a vital function for his role, I am sure noble Lords will agree that we should be listening. I am pleased, therefore, that the Minister has introduced Amendment 37, which clarifies that the commissioner should have regard to the provision of assistance and support to victims in carrying out his functions.
I confess that I had some concerns following a meeting with the commissioner- designate that, without this amendment, bringing victim care into the concerns of the commissioner involves a creative interpretation of the current functions set out in Clause 41(1) which might not be endorsed by future Home Secretaries. During our debate in Committee the noble Lord, Lord Deben, highlighted the importance of getting the commissioner’s statutory mandate right. He said:
“Unless the commissioner can point to the Act and say, ‘I do this because …’, there will be those who will use every possible opportunity to try to trip him up and make the kind of legal arguments that hide the fact that what they are really about is stopping him being effective. That is why it is so important that we should be absolutely sure that we get it right”.—[Official Report, 8/12/14; col. 1629.]
I agree entirely. Amendment 37 will ensure that the text of the statute matches our intentions so that in a number of years, when the memories of our debates on the Bill have faded, the commissioner will still be able to look at all aspects of a victim’s experience and make recommendations to see victim care and support improve and develop, based on the letter of the law. I therefore firmly endorse Amendment 37 and commend it to your Lordships.
However, I have some questions of clarification that I would like to raise with the Minister about Amendments 34 and 35, which specifically suggest that the commissioner may consult, co-operate and work jointly with the noble Baroness the Victims’ Commissioner. I support the noble Lord’s proposal for co-operation and consultation between the anti-slavery commissioner and the Victims’ Commissioner. I believe this will ensure good oversight and joined-up thinking on all issues in a far more effective way than trying to separate into silos matters which are, on the ground, interlocked and interdependent.
My concerns stem from the fact that specific reference is made to the Victims’ Commissioner for England and Wales only, and I am not sure whether the Minister dealt with this. I would have thought that similar co-operation and consultation would be needed with other commissioners such as the children’s commissioners—and those of all the four nations now that the role extends across the whole of the UK. I imagine that co-operation will also be required with other commissioners or inspectors such as the Independent Chief Inspector of Borders and Immigration. I recognise that the amendment allows for a wider class of other persons, but I would be grateful if the Minister could indicate the reasoning for specifically mentioning the Victims’ Commissioner for England and Wales and how we can ensure consultation with bodies in Scotland and Northern Ireland which have responsibilities regarding victims. I would also be grateful if the Minister could explain what consideration had been given to including a reference in the clause to other commissioners or bodies.
Lord Morrow (DUP)
My Lords, I support government Amendments 34, 35 and 37 spoken to by the noble Baroness the Minister. I first make my apologies to your Lordships for not having been present during the earlier debates on this Bill. My absence on those occasions was however directly connected to the matters before us today, as I was engaged in debates on my human trafficking and exploitation Bill in the Northern Ireland Assembly on those days—a Bill which, I am pleased to say, received Royal Assent in January.
I have a particular perspective on the role of the Independent Anti-slavery Commissioner since the role has now been extended to cover Northern Ireland. This means that the commissioner will need to work to promote good practice in the prosecution and investigation of offences and the identification of victims, all with regard to the legislation we have enacted in Northern Ireland, as well as to the Modern Slavery Bill.
I had the opportunity to meet the commissioner-designate during a visit he made to Northern Ireland and I was most impressed by his plans and his passion to tackle this terrible crime head on. I was encouraged by his commitment to visit Northern Ireland regularly and his awareness of the particular challenges and opportunities that arise from our land border with the Irish Republic. It seems likely that he will do an excellent job. I was also particularly impressed with his clear understanding that victims’ needs must be central to any strategy to deal with modern-day slavery and, moreover, with his determination to make sure that all our systems and agencies across the UK recognise this and reflect it in how they work.
I had some reservations that the ambitious victim-centred plans set out by the commissioner are not clearly reflected in the mandate provided by the Bill. It concerned me that if a new Home Secretary came into office, he or she may not approve a future strategic plan that extends as widely as that proposed by the present commissioner. Indeed, it is possible that an organisation receiving unwanted recommendations from the commissioner could argue that victim support is outside the commissioner’s remit and reject his recommendations on that basis. I therefore welcome government Amendment 37, which expressly gives the commissioner the mandate to look into matters of victim support.
Modern slavery is the exploitation of individual human beings. Any effective anti-slavery commissioner will need to look at how we improve our systems to better protect and support those individuals, whether in investigations or other environments. The Bill must support and empower him to do that. I urge your Lordships to support Amendment 37 in the name of the Minister.
I referred earlier to my particular perspective in relation to the commissioner’s work in Northern Ireland. I have one area of concern about government Amendments 34 and 35 that stems from this perspective. I have no doubt that it will be important for the anti-slavery commissioner to consult and work together with a wide variety of groups and organisations, and I welcome the fact that these amendments specifically highlight the importance of the voluntary sector. The advice, constructive criticism and on-the-ground evidence from NGOs was of vital assistance to me as I prepared and refined my human trafficking Bill through its passage in the Northern Ireland Assembly. I dare say that the Minister would say the same about the contributions made in the development of this Bill from its draft form right up to the amendments proposed this evening.
I also echo what has been said in respect of the need for the anti-slavery commissioner to co-ordinate with the Victims’ Commissioner, as a way to maximise benefit and avoid duplication of work. I have some concerns, however, that victims in Northern Ireland, and indeed Scotland, will not benefit from this co-operation. I suggest to the Minister that we need to ensure that the commissioner is careful to take account of efforts to improve victim care and to work with bodies involved in supporting victims in other parts of the UK as well. I hope very much that she can assure me that reference to consultation with the Victims’ Commissioner will not create a hierarchy of victims, with victims in England and Wales receiving greater attention from the commissioner than victims in the rest of the UK.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their comments and their broad support for the amendments which we have brought forward here: the noble Baroness, Lady Howe, and my noble friend Lady Hodgson, who were very enthusiastic, and the other two noble Lords who spoke. My noble friend Lord McColl expressed his concerns about co-operation with the Commissioner for Victims and Witnesses, but I stress that it is,
“public authorities (including the Commissioner for Victims and Witnesses)”.
He is not precluded from co-operating with other people as well. The Commissioner for Victims and Witnesses is one of the examples given, because the commissioner is one of the key players in the Bill.
The noble Lord, Lord Morrow, raised the point about Northern Ireland. The commissioner will work very closely with Northern Ireland and the Scottish Government. These government amendments were developed with the co-operation of the Northern Ireland Executive and the Scottish Government, to ensure that the United Kingdom-wide remit which the commissioner has will apply as much to people in those parts of the United Kingdom as in England and Wales. With those reassurances, I hope that noble Lords will support these amendments, which will benefit those in all parts of the United Kingdom.
“(b) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (equivalent offences in Northern Ireland),”
“( ) The matters to which the Commissioner may have regard in pursuance of subsection (1) include the provision of assistance and support to victims of slavery and human trafficking offences.”
( ) “Patient information” means information (however recorded) which—
(a) relates to the physical or mental health or condition of an individual, to the diagnosis of an individual’s condition or to an individual’s care or treatment, or is to any extent derived directly or indirectly from such information, and (b) identifies the individual or enables the individual to be identified (either by itself or in combination with other information).”
(6) The Scottish Ministers may by regulations amend that Schedule so as to—
(a) add or remove a public authority having only functions which are exercisable in or as regards Scotland (a “Scottish public authority”);(b) amend an entry relating to a Scottish public authority.(7) The Department of Justice in Northern Ireland may by regulations amend that Schedule so as to—
(a) add or remove a public authority having only functions which are exercisable in or as regards Northern Ireland (a “Northern Irish public authority”);(b) amend an entry relating to a Northern Irish public authority.(8) The Secretary of State may by regulations amend that Schedule so as to—
(a) add or remove a public authority which is not a Scottish public authority or a Northern Irish public authority;(b) amend an entry relating to a public authority which is not a Scottish public authority or a Northern Irish public authority.”
Lord Warner
“Establishment of the National Referral Mechanism
(1) The Secretary of State must as soon as practicable establish by order a National Referral Mechanism (“NRM”) to—
(a) identify trafficked, enslaved or exploited persons within the United Kingdom;(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and(c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support.(2) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a one-year renewable residence permit where a person (including a child) has been determined as having been trafficked, enslaved or exploited.
(3) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.
(4) An adult must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.”
Lord Warner
My Lords, Amendment 47 is in my name and those of the noble Lord, Lord Patel, and the right reverend Prelate the Bishop of Derby. The amendment is an amalgam of the amendments that I and my noble friend Lord Rosser moved in Committee. In essence, the amendment requires the Secretary of State to bring forward regulations to put the national referral mechanism on a proper statutory basis as soon as it is practicable to do so. I recognise that the Home Secretary needs time to redesign the NRM system following Jeremy Oppenheim’s excellent review report on it. I accept that that work needs to be completed, and possibly road tested, before regulations are made. There is nothing in my amendment to stop the Home Secretary giving proper consideration to the Oppenheim report and making sure that a redesigned NRM system is indeed fit for purpose.
Lord Rosser
The Government have tabled amendments, to be debated on another day, enabling the Secretary of State to introduce regulations to provide assistance and protection for victims on top of the requirement on the Secretary of State to introduce guidance on identifying and supporting victims. However, as my noble friend Lord Warner has already said, these government amendments do not give any specific guarantees of support and assistance on basic principles of protection and assistance, which would provide appropriate consistency for victims in the way that they are treated within a firm framework; nor do they address the consequences of the national referral mechanism not being on a statutory basis since its introduction. That lack of a statutory basis has contributed to feelings of arbitrariness in the application of the national referral mechanism, which have been compounded by the absence of a formal right to appeal an NRM decision, making the system somewhat unaccountable and potentially unjust.
The Home Office’s NRM review, published late last year, to which my noble friend Lord Warner referred, recognised the issues related to the involvement of United Kingdom Visas and Immigration in the current system and recommended that UKVI be included in the future as a participant in the mechanism rather than as a lead agency. The Government have expressed their commitment to improving the identification of and support for victims of modern slavery and, in the light of their own review, recognised that final decisions about who is a victim cannot be left to UKVI, which has another remit to fulfil, and, whatever the reality, will struggle to be regarded as impartial and open-minded on this issue.
However, further changes are needed. What is being sought in the amendment that my noble friend has moved is not new within the United Kingdom. The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 and the Human Trafficking and Exploitation (Scotland) Bill both contain provisions for support of victims that go beyond what is contained in this Bill. The result could well be, if this Bill is not further amended, that there are significant differences in support and assistance provided to victims across the different nations within the United Kingdom, which is surely not the objective.
The amendment would place the framework of the national referral mechanism in statute, create a statutory duty on the Secretary of State to set out in regulations the arrangements for a system of victim identification and support and provide for a formal right of appeal against any decision made through the system. However, the Government appear to be saying that they are not prepared to go down this road. The argument in the Minister’s recent letter is that, because this is a time of major change in how we identify and support victims, putting the national referral mechanism on a statutory footing now would be unhelpful and mean a loss of flexibility to improve the system. Instead, the Government have put down an amendment which would provide an enabling power for them to make regulations about identifying and supporting victims.
In his recent letter, the Minister said that the Government had tabled such an amendment to provide an enabling power to place the national referral mechanism into statute by regulations, albeit there does not appear to be any specific reference to the referral mechanism in the amendment. However, there is no reason why adopting the provisions of the amendment that has been moved by my noble friend would lead to potential inflexibility developing, although that is something on which the Minister may wish to comment. The argument that regulations are somehow better for establishing something in statute, such as the NRM, because they can be changed without the requirement for further primary legislation could be used in relation to any organisation or process that is being put on a statutory footing and, in so doing, avoid proper discussion and debate with the ability to amend proposals, which would be provided for by including the terms of this amendment in the Bill.
The amendment which my noble friend has moved, unlike the Government’s enabling power amendment, means that the NRM will be placed into statute on the basis set out in it. The current problems of feelings of arbitrariness in the application of the process of the referral mechanism would be addressed and some consistency achieved in improving the identification and support of victims of modern slavery, to which the Government have expressed their commitment. The Government’s amendment, which is still to be discussed, is simply an enabling power. It is not a guarantee and it is not a requirement. I hope that the Minister will be able to give a helpful response to Amendment 47.
Baroness Hamwee (LD)
My Lords, I had my name to an amendment moved in Committee by the noble and learned Baroness, Lady Butler-Sloss—I was about to say my noble and learned friend. That amendment is tabled again today and is much simpler: in order to avoid the need for primary legislation, it is for regulations to be made. Like others, I want the national referral mechanism to be on a statutory basis, and I welcome the government amendments which we will debate on Wednesday—although I have one or two questions about them.
I would be worried about including the new clause proposed by the noble Lord, Lord Warner. To establish it now or “as soon as practicable”—I am not sure what that means in a statutory context, but let us say that it is pretty soon; it is not waiting for the end of a trial, as I interpret it—must, as trials of the new procedures proposed by Jeremy Oppenheim are to be undertaken, risk establishing one statutory basis and then changing it by regulation. Some of the language in the amendment seems to me problematic. The noble Lord will correct me if I am wrong, but I do not think that the term,
“trafficked, enslaved or exploited persons”,
is defined in the same way as victims of,
“slavery and human trafficking offences”,
which is what we have in Clause 41, where the general functions of the commissioner are set out.
I have confidence in what we are being told by the Government about moving to a statutory basis. Without trying to analyse every dot and comma, I would worry that there might be hostages to fortune in the new clause which would require primary legislation to change, rather than the opportunity to rely on regulations, which is what the Government propose.
Baroness Butler-Sloss
As Amendment 48 is in my name, I have perhaps been a little slow in getting to my feet. I am content with what the Government propose in principle and therefore did not feel it necessary to propose my amendment with any particular enthusiasm, but I am concerned that at some stage there should be a statutory basis for the NRM. I do not believe that it is appropriate for the power to be other than to enable the Government to make such a statutory regime without going through primary legislation. I entirely support what the noble Baroness, Lady Hamwee, said. I share her concern about Amendment 47, moved by the noble Lord, Lord Warner, because it is so specific. If the trials are effective, the Government may well find that changes are necessary, and because of the way in which Amendment 47 is framed, as the noble Baroness, Lady Hamwee, said, they would probably require further primary legislation. The whole point of what she and I want is to have the statutory process in a way that can be produced by regulation, not further primary legislation. For that purpose, I support my amendment, as far as it goes, and I am not at all happy about Amendment 47.
Lord Bates
My Lords, I am grateful to the noble Lord, Lord Warner, for moving the amendment. This is another example of where we are moving towards a general principle of the statutory footing of the national referral mechanism, but not going as far as he would like in his amendment. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Hamwee have set out some of the reasons why his amendment would need further work in any event. I will respond to the issues briefly, being aware that we will of course come back to consider this in more detail in the second day on Report.
Lord Warner
My Lords, I do not want to delay the House at this time of night, but I want to register two points. The first is that the right of appeal is a key issue, and trying to duck out of that, and not being clear that it is actually going to be operated through a statutory system, is, frankly, not credible in this day and age for a sensible public administration.
Secondly, there is an issue, which was brought up in the Joint Select Committee’s report, about the duration of care and support for victims. The 45 days is clearly unsatisfactory, as shown by all the evidence that was given to the Joint Committee. We have to address the issue. I am willing to park the whole issue of residence permits, but we have to be clear about the issue of what is an acceptable level and duration of care and support for victims.
Continuing to duck those two issues—the appeal and the duration of care and support—does not seem to be a satisfactory position. I would like to think further about what the Minister has said. I still think that there may be some scope by looking again at this on Wednesday, if I can whack down an amendment fast enough to deal with those two issues. In the mean time, though, I beg leave to withdraw the amendment.
Baroness Kennedy of Cradley (Lab)
My Lords, this amendment seeks to remove the inclusion of the reasonable person test before the non-prosecution defence applies to children.
I thank the Government, particularly the noble Lord, Lord Bates, and the noble Baroness, Lady Garden of Frognal, for the constructive way in which the debate on a statutory defence for children has been carried out; for listening to and engaging with noble Lords, NGOs and others on the issue; and for the welcome improvements in the statutory defence clause that the Government have made along the way, particularly in relation to children. But, and there is always a “but”, I am moving this amendment because I still believe that the addition of the reasonable person test for children, first, is another test of compulsion and therefore not in line with international law, and, secondly, adds a further test that goes further than our current case law and CPS guidance.
I welcome the Government’s amendment to the statutory defence, Amendment 49, tabled on Report, which removes the need to prove that there was not a realistic alternative and shifts the burden on to the prosecution to prove beyond reasonable doubt that a reasonable person would not have committed the crime. However, the child still has an obligation, in raising the statutory defence, to set out the facts of their case. In persuading the jury to put themselves in their shoes, the child will have to show that they were forced to commit the offence for the jury properly to understand what the child was going through. The reasonable person test is therefore another test of compulsion, and is not in line with the rest of the Modern Slavery Bill or with the UN Committee on the Rights of the Child, which in July 2014 urged the Government to establish,
“a clear obligation of non-prosecution in the criminal justice system”,
and ensure that children,
“are treated as victims rather than criminals by law enforcement and judicial authorities”.
That highlighted the need for the statutory defence to be suitable for children—for a child to be treated as a child. A child should never have to prove that illegal means have been used to coerce them into trafficking or slavery to achieve legal protection in the way that an adult may have to, which is why our colleagues in Northern Ireland, in the Northern Ireland Human Trafficking and Exploitation Act, which received Royal Assent in January this year, retained the reasonable person test for adults but removed it for children. They acknowledged in the memorandum to the Act that this was done so that their Act was compliant with the UN Convention on the Rights of the Child and the child would not have to prove compulsion. They believed, as I believe, the reasonable person test to be a test of compulsion, and therefore removed it for children. If they do not need this extra test, why do we?
The reasonable person test is also not in line with current UK case law. As we have discussed in this Chamber, in the landmark case of R v L and others, the Lord Chief Justice and his colleagues pronounced that two questions must be addressed for the non-prosecution principle to apply to child victims: age and whether the criminal offence is,
“consequent on and integral to the exploitation”.
This is mirrored in the current CPS legal guidance on human trafficking and smuggling with regard to children where only two tests—age and direct consequence of—are necessary for a non-prosecution defence to apply. Adding a third test, a reasonable person test, therefore goes further than existing law. When the CPS guidance is rewritten following the passage of the Bill, it will be tougher than it is now. Why do we need to go further?
Can the Minister assure the House about non-legislative measures in the application of the statutory defence? Can he ensure that the CPS consults stakeholders and NGOs, including UNICEF, on any new guidance to prosecutors and reviews other relevant guidance to ensure coherence and consistency across the board? Will he ensure that the CPS trains prosecutors on the implications of the new Act and seeks technical assistance from specialists in the trafficking field if required to develop and deliver training that will cover both adults and children? Will he liaise with all law-enforcement agencies, make them aware of the new legislation and ensure there are plans to adapt existing policy and guidance to comply? Having sought these assurances, I beg to move.
The Deputy Speaker (Lord Brougham and Vaux) (Con)
My Lords, if this amendment is agreed to, I cannot call Amendment 49 because of pre-emption.
Baroness Hamwee
My Lords, when I read the Hansard of our first debate on this issue, I realised how much I agreed with the noble Baroness, and I agree with her tonight. I am also concerned about applying the reasonable person test to a child for the reasons she gave and because children develop at different stages. To ask a jury, as I suppose would have to be the case, not only to see what a reasonable adult person would do but to take account of the variables of a child’s development makes the test so complicated that it would be inappropriate. That is the sort of word one uses to be polite, is it not? I do not think we should be requiring this of a child. It adds to the complications and is not the direction in which we should be going.
I have been at meetings where I have heard the noble Baroness say to the Minister that we should not be constructing legislation that allows people to say, “I was trafficked, therefore I should be let off doing anything wrong”. She has been very upfront and quite blunt about that, and she is not trying to resile from that attitude here. I support her amendment.
Lord Rosser
I shall be very brief. As has been said, the Government’s amendment removes the need for child victims of trafficking or slavery to prove that they did not have a realistic alternative and puts the onus on the prosecution to show that they acted unreasonably. However, as has been said by my noble friend Lady Kennedy, trafficked children will still need to pass a reasonable person test to benefit from the defence, which will, essentially, presumably require an adult juror to decide whether a similar child in similar circumstances would have acted in the same way.
I assume that the Minister will respond to this point anyway, but given the inherent restrictions of the defence in the Government’s amendment to Clause 45 and that it applies only to offences committed as a direct result of trafficking, slavery or servitude, do the Government maintain that it is necessary to ask a potentially traumatised and vulnerable child victim then to pass an additional test of reasonableness and, in effect, show that they have behaved reasonably to achieve legal protection? When the Minister responds, if he feels unable to give a helpful reply—which I hope he will feel able to do—is it the Government’s intention that it is necessary to ask a child victim, potentially traumatised and vulnerable, to have to pass this additional test of reasonableness, given that there is considerable restriction of the defence in the Government’s amendment to Clause 45 in that it applies only to offences committed as a direct result of trafficking, slavery or servitude?
Baroness Butler-Sloss
I have had considerable concerns about this requirement for someone under the age of 18, but I can see that there is a problem if a person who was under the age of 18 when the act that constitutes the offence was done does not raise that issue for a very long time, and then perhaps in middle age says, “The offence I committed was because of my situation at that time”. It crosses my mind, following what the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, said, that it might be possible to deal with this issue of not raising a defence until many years later by making slight changes to Clause 45(4)(b) to say that that defence has to be not only,
“as a direct consequence of the person being”,
but also within a reasonable time, so that it does not come 30 or 40 years later. If something of that sort was brought forward by the Government at Third Reading, it would protect a particular aspect that has been dealt with and considered in the past. I share the concerns of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser.
Lord Bates
My Lords, I am grateful to the noble Baroness, Lady Kennedy of Cradley, for bringing forward this amendment again and for again seeking to get more information on the record about what the Government’s intent is. I will come to the points that have been raised, but I acknowledge and thank the many noble Lords who have taken part in this discussion so far. The discussions have certainly caused us to think about whether further action was needed, and help explain why I tabled a government amendment to ensure that the defence would be easier for child victims to access.
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. Clause 45 establishes a crucial additional safeguard: a statutory defence for slavery or trafficking victims.
As the House will recall, at Second Reading I brought forward amendments to make the defence for victims easier to access for child victims. Those amendments removed the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation. We had another good debate in Committee on the detail of the defence. This was followed by further, very constructive, discussions outside the Chamber, which also focused on the needs of child victims. The Government have also engaged further with non-governmental organisations that are expert in this area. Genuine and important concerns were raised then, as they have been today, that the reasonable person test, as currently phrased, could amount to an effective requirement for compulsion for child victims.
I have listened carefully to that concern. On reflection, I, too, see the risk that a test involving the words “no realistic alternative” could be interpreted by some courts and juries as requiring something akin to compulsion of the child victim. I therefore believe that we can go further to ensure that child victims are not unfairly criminalised and that there is no question of an effective requirement for compulsion. Therefore, government Amendment 49 changes the reasonable person test for child victims by removing the reference to the child having “no realistic alternative” to committing the offence.
I know that there remain concerns that somehow the revised test might still require some proof of compulsion. I want to be very clear: the effect of the amendment is that for the defence to apply, there will be no requirement whatever, either implicitly or explicitly, for compulsion of a child victim. If a case reaches court, they will simply need to evidence any source to raise the defence. The evidence need not be extensive. It could involve, for example, the child’s account in evidence, in which they explain in their own words what happened. It is then for the prosecution to prove beyond reasonable doubt either that the child was not the victim of trafficking or exploitation or that they acted unreasonably in committing the offence. If the prosecution cannot reach the very high threshold of showing beyond reasonable doubt that the child acted unreasonably, the test in the revised defence is met.
I know that there are concerns that at times the hypothetical situations which we debate in this House fail to match the realities on the front line. I want to ensure that the new defence informs Crown Prosecution Service decisions about whether to prosecute, rather than just having an impact when cases reach court. I am pleased that the Crown Prosecution Service has committed to ensuring that, once the Modern Slavery Bill is passed, the current CPS legal guidance for prosecutors will be updated to reflect the new legislation. This will include guidance for prosecutors regarding the application of the statutory defence, and specifically the different provisions relating to adult and child victims of modern slavery. This type of practical guidance for front-line professionals is essential to ensure that the defence acts as we intend—as an extra safeguard preventing victims, and particularly child victims, of modern slavery ever facing inappropriate prosecutions.
I have listened to the debate and I know that some noble Lords would like me to go even further down this line. However, I believe that it is appropriate that we retain some limited safeguards. I know and accept that, as my noble friend Lady Hamwee said, the noble Baroness, Lady Kennedy of Cradley, has never gone down that particular line, but I do not believe that it would be appropriate to give broad immunity from the criminal law so that a person could use this defence even when they have committed a crime in completely unreasonable circumstances.
Having proposed the amendment and given me the opportunity to build upon what has already been put on the record with additional assurances and wording— which can of course be taken into consideration should these circumstances ever arise in a court—I hope that the noble Baroness will feel able to withdraw her amendment, recognising that she has, again, moved the Government further along the road along which she wants us to travel.
Baroness Kennedy of Cradley
I thank the Minister for that reply, and repeat that I am very grateful for the constructive way in which he and his staff have engaged with me and other noble Lords, and with NGOs that have worked tirelessly on this Bill and on this issue. I recognise that the Government have listened and rethought; I hoped that they might rethink a little further, so I am disappointed that the reasonable persons test will remain in place. I see it as another test of compulsion, and I see it going further than it goes now. I find it hard to imagine how other adults could place themselves in the shoes of an emotionally manipulated child.
I accept what the Minister says and welcome his comments. The final assurances that I asked for—CPS consultation with stakeholders, the new guidance that will be produced, the training for prosecutors and how the new statutory defence will be engaged in the field—are all crucial to make sure that we never see a child convicted for a trafficking offence that they have been forced to do. With those assurances given by the Minister, I beg leave to withdraw the amendment.
Lord Bates
Baroness Kennedy of The Shaws (Lab)
My Lords, these amendments reflect my concern and that of the Immigration Law Practitioners’ Association that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, individuals will continue to fall through the cracks. Amendment 50 would ensure that legal aid could be provided to a person before an application has been made to the competent authority or before the competent authority has reached its decision that there are reasonable grounds to believe that a person is a victim of slavery, servitude or forced labour. The amendment’s proposal is that legal aid would be provided if the legal representative reasonably believed that the standardised indicators of slavery, servitude or forced labour, as set out in the national referral mechanism form, were met in the particular case. The next amendment, Amendment 51, would create a new clause, which would follow Clause 47, which would have exactly the identical effect for trafficked persons.
I know that the Government have made a special effort in this regard, but legal aid is made available now too late for a number of these cases. It is not available for those who are trying to pluck up the courage to approach the authorities. We have heard time and again in this House of the circumstances in which people are so fearful that taking that step feels enormous to them. Legal aid is also not available to those who have been referred to the national mechanism but are trying to pluck up the courage to describe what has happened to them, finding it difficult to give voice to some of the horrors that they have been through. They are also fearful of providing supporting evidence from other people; they worry about naming others in case there are consequences for them and because they are afraid of those who have trafficked them. The concern is that those people have had experiences that make them fearful of authority—and, believe it or not, they are sometimes more prepared to tell a lawyer about their experiences than they would be to tell people whom they see as being part of the authority system.
Many in the House have spoken about the charity Kalayaan, which deals with domestic workers. A number of cases have been brought to our attention, which have come regularly before the courts. They are of people who have been assessed as trafficked by Kalayaan. However, their stories show the failure of the system, as they are afraid to approach the authorities and afraid of being referred to the national referral mechanism because they do not know what the outcome might be. They do not know whether they will be returned immediately or whether there will be reprisals from their employers or those who have trafficked them. They relate stories of people who have been subjected to terrible labour exploitation, and treated appallingly with many being beaten and bearing the scars of that. Some have tried to commit suicide. They say that often they are the sole providers for families back home in places such as India and they are worried about the consequences of putting themselves in the hands of the authorities. They need advice on whether they qualify for a residence permit, for example, such as they would receive if they were deemed victims of trafficking. These people are fearful about their situation and want to know what their options are, whether they will be able to stay, whether they will be safe or whether they will simply be returned to the countries from where they came. Sometimes, they prefer to stay with the devil they know and continue to be beaten and abused because they do not know what their rights are.
Baroness Hamwee
My Lords, I wonder whether the Government have made any assessment of the number of people who would fall within the cohort identified by the noble Baroness. I have been looking through the review of the NRM to see whether I can work that out. I have not been able to do so but I have found the table, which shows that the proportion of potential victims referred to the NRM who received a positive, conclusive decision in 2013 in the UK was 88%. In other words, we are talking about 12% who did not receive the “conclusive grounds” decision. I do not know what that represents in numbers but the argument will go from there that, if the numbers are tiny, the amounts would not be great. As the noble Baroness said, the merits test means that the lawyer concerned is the one who bears the risk. In that connection, it has to be a lawyer who gives advice because of the provisions that make it a criminal offence to give legal advice on immigration if one is not qualified or regulated by the Office of the Immigration Services Commissioner. The ask is, therefore, not very great.
Lord Bates
I am grateful to the noble Baroness, Lady Kennedy, for returning to move her amendment and giving us an opportunity to again look at this important area.
The Government are keen to ensure that we get right the legal support available to victims through the Bill. That is why we amended the Bill in Committee in this House to extend the existing legal aid provision for victims of trafficking to those who have experienced slavery, servitude or forced labour. This support will be provided once an individual has received a positive “reasonable grounds” decision in the NRM, which is generally made within five working days of an individual being referred to the NRM. I accept totally the point made by the noble Baroness about it being essential that good decisions are made early, and that might be done within that definition. I do not consider that this short period of time without legal aid should have a significant adverse impact on individuals. We want as many victims as possible to gain access to the safety and support provided by the national referral mechanism. Once referred to the NRM, individuals will have 45 days’ reflection and recovery in which to make informed decisions about their immigration choices in a safe environment and with access to legal aid.
I am concerned that providing access to legal aid without any link to the NRM may encourage some victims to not opt for the support available to them. Opening up legal aid to those not in the process would not only risk incorrect use of the system but would mean that individuals could bypass the safeguarding system in place for them, and risks individuals remaining in situations of exploitation. For this reason, I think it is right that legal aid is available only once individuals have entered the national referral mechanism.
However, we are open to changes from the existing system. We have committed to piloting a range of changes to the NRM in light of recommendations made by the recent review, which will include incorporating the “reasonable grounds” decision into the initial referral. In practice, this would have the effect of providing earlier access to legal aid because “reasonable grounds” is the trigger by which that would happen. Any changes to the NRM would be reflected in the provision of legal aid and could be made through secondary legislation.
I hope that the House will be reassured that, through the NRM pilots, we will be testing moving access to legal aid for victims of modern slavery to the point of referral, as was being suggested. Given the concern that this amendment could inadvertently discourage victims from leaving a situation of slavery, I hope that the noble Baroness will consider withdrawing or not moving her amendments.
I should just answer a couple of points raised by my noble friend Lady Hamwee and by the noble Baroness. I was asked about the NRM pilots. Those pilots will test the provision of legal aid at the point that a case enters the NRM. The NRM review did not recommend access to legal aid prior to this point. We do not currently intend to test this proposal.
A point was made about the comparable system for asylum seekers. Advice is available for potential asylum seekers to understand their rights under the refugee convention. There are limited funds available for more general immigration advice that a victim of modern slavery would seek. We need to ensure that advice is therefore appropriately targeted and best assists the victims. Asylum seekers come to the UK as a place of safety and may then seek advice on their next steps. This is not the same as a victim of modern slavery, who may still be in a situation of exploitation. We think that linking legal aid to the NRM process is the best way to ensure that such advice is received by the right people and that victims are encouraged to gain access to the protection and support available in the NRM mechanism.
For those reasons, I ask the noble Baroness to reflect on her amendment.
Baroness Kennedy of The Shaws
I am grateful to the Minister for explaining how the pilot scheme will operate and that the whole intention is to direct people towards the national referral mechanism. The hope is that that mechanism will work much more effectively than it has been doing and that it will provide the kind of support that is needed. However, the concern that providing legal aid earlier might in some way direct people away from the national referral mechanism in many ways highlights the very problem that worries me and others who are directly involved in immigration cases. In fact, there is evidence that lots of people—I say “lots of people”; I am not sure that we know what the numbers are—are not leaving abusive circumstances and circumstances of slavery because they do not know what their legal position is. They do not seek legal advice to take the steps that we are hearing about. The suggestion was made that we limit it to the circumstances in which a lawyer would bear the burden of making the assessment that somebody meets all the tests, as the noble Baroness, Lady Hamwee, said. An application would then be made for legal aid. That lawyer would then know that the usual legal aid assessment would be made and that they would carry the financial can if their assessment was not accepted as reasonable. That will gather up those people who are afraid of taking the big step of going to authorities when they do not know what the risk will be to them.
I know that the Government’s intention is that the authorities will act in a much more embracing and supportive way, but you cannot overcome people’s fear as easily as that. That is why having something available beforehand is being urged on the Government. I understand the automatic response that we have got to be very careful about not expanding the parameters of legal aid in this area because we are trying to cut it down but, by doing that, there will be a detriment to a category of people who are too afraid.
It is interesting that the noble Baroness, Lady Hamwee, raised the issue of numbers. It is not thought that the numbers here are considerable but they are often the most serious cases, where people are really suffering and afraid because they are in total ignorance of what their rights are. The point where they go to somewhere like Kalayaan and are referred to a lawyer is when they can be told what their rights are and understand that their case will fall into a category which will allow them the protections that they need through the processes of the national referral mechanism, which is being reformed in a way which will give people confidence.
I hear what the Minister is saying and I will withdraw my amendment at this stage. However, I ask the Government to consider piloting for this category of person, too, to see whether there is a way in which a kind of “green form” scheme can be created to provide that preliminary advice. Secondly, I ask the Minister to look at the numbers. I suspect, as the noble Baroness, Lady Hamwee, suggested, that the numbers are not very great. So we are not talking about a great cost but it will catch, perhaps, some of the most vulnerable. I beg leave to withdraw the amendment.