Modern Slavery Bill
(9 years, 8 months ago)
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17:18 - Division on Motion A1 - Ayes: 196 / Noes: 285 - Motion A1 disagreed.
Lord Bates
That this House do not insist on its Amendment 72 and do agree with the Commons in their Amendments 72A, 72B and 72C in lieu.
“Protection from slavery for overseas domestic workers
All overseas domestic workers in the United Kingdom, including those working for staff of diplomatic missions, shall be entitled to—
(a) change their employer (but not work sector) while in the United Kingdom;
(b) renew their domestic worker or diplomatic domestic worker visa, each such renewal being for a period not exceeding twelve months, as long as they remain in employment and are able to support themselves without recourse to public funds;
(c) a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker where there is evidence that the worker has been a victim of modern slavery.”
Commons disagreement and amendments in lieu
The Commons disagree to Lords Amendment 72 and propose Amendments 72A, 72B and 72C in lieu.
“Overseas domestic workers
(1) Immigration rules must make provision for leave to remain in the United Kingdom to be granted to an overseas domestic worker—
(a) who has been determined to be a victim of slavery or human trafficking, and
(b) in relation to whom such other requirements are met as may be provided for by the rules.
(2) Immigration rules must make provision as to the conditions on which such leave is to be granted, and must in particular provide—
(a) that the leave is to be for the purpose of working as a domestic worker in a private household;
(b) for a person who has such leave to be able to change employer (subject to paragraph (a)).
(3) Immigration rules may specify a maximum period for which a person may have leave to remain in the United Kingdom by virtue of subsection (1). If they do so, the specified maximum period must not be less than 6 months.
(4) For the purposes of this section an overseas domestic worker has been determined to be a victim of slavery or human trafficking if a public authority has determined that he or she is such a victim—
(a) under regulations made under section (Regulations about identifying and supporting victims)(2)(b), or
(b) where no such regulations apply, under arrangements identified in the immigration rules.
(5) The Secretary of State must issue guidance to persons having functions under the Immigration Acts about the exercise of those functions in relation to an overseas domestic worker who may be a victim of slavery or human trafficking.
(6) The guidance must provide for a period during which no enforcement action should be taken against such an overseas domestic worker in respect of his or her—
(a) remaining in the United Kingdom beyond the time limited by his or her leave to enter or remain, or
(b) breaching a condition of that leave relating to his or her employment, if he or she did so because of the matters relied on as slavery or human trafficking.
(7) In this section—
“immigration rules” has the same meaning as in the Immigration Act 1971;
“enforcement action” has the meaning given by section 24A of that Act;
“overseas domestic worker” means a person who, under the immigration rules, has (or last had) leave to enter or remain in the United Kingdom as—
(a) a domestic worker in a private household, or
(b) a private servant in a diplomatic household.”
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, holding overseas domestic workers in modern slavery is totally unacceptable. This Bill will help stop such abuse. The Bill will mean that those who traffic overseas domestic workers or hold them in servitude can receive a life sentence. The Bill will mean that the slavery, servitude and forced or compulsory labour offence will reflect the circumstances of vulnerable victims, and it provides new protections for all victims of modern slavery, such as the statutory defence.
We began this Bill and we probably all feel a bit disappointed that at this stage—almost the 11th hour—we are discussing a key amendment to the Bill. Of course, we share broad agreement on the way in which this has been approached. The Bill was published in draft form. It was then put before a Joint Committee, on which many Members of your Lordships’ House served. The Joint Committee then put forward a series of recommendations and these were broadly accepted by the Government as the Bill moved through the Commons stages, which were—being generous to the other place—more thorough and more detailed than perhaps has been the case with some other legislation. It then arrived in your Lordships’ House.
In its journey through your Lordships’ House, the Bill attracted a further 100 amendments. There have been 262 further amendments to the Bill that we brought forward, including whole new clauses on areas such as the supply chain. We brought all those amendments forward because we recognised here that this is a great shame of modern-day British society and that, in the words of the seminal report by the Centre for Social Justice in March 2013, “it happens here”. In the estimate of the chief scientific adviser at the Home Office, some 12,000 people are held in modern slavery in Britain and we want to do something about it. We want to help the victims and we want to prosecute the perpetrators. One thing that I have appreciated is the way that we have worked on this with a cross-party focus. We have had many all-interested Peers meetings and bilateral meetings, and many exchanges of correspondence. We have worked with NGOs as well.
I say all that as a precursor to coming to the main substance of the amendments, because I think it is important that we put this amendment in that sort of context. I pay tribute to the noble Lord, Lord Hylton, for the work and passion that he has given to the issue, particularly to that of overseas domestic workers. It is recognised that he has a deep passion and concern for these people, which we share and which he champions and we respect. I want to say to him that I hope he can reflect on the process that we embarked on when the Bill first came here and see that we have been increasingly trying to respond to the concerns that he and other Members of your Lordships’ House have raised.
There was concern about the conditions that many people were facing when they came to this country and that they were not even being paid, let alone receiving the minimum wage. Therefore, we introduced the provision that the national minimum wage must be made clear to the individual. Now, the immigration officer who is making a judgment on an overseas domestic worker’s visa application must be satisfied that the employer, in addition to signing a contract to that effect, intends to pay the national minimum wage of £6.50 per hour. We now have a model contract. I know that we exchanged views on that and it has been amended in the light of the views expressed by the noble Lord, Lord Hylton, and others. That model contract is presented to employers to say that those who seek overseas domestic workers must make available to them those minimum employment criteria before they come to the UK and a visa is granted.
Next—I know that my noble friend Lady Hanham felt particularly strongly about this point—it is very important that we make it abundantly clear to employers that once the Bill receives Royal Assent, which we all want it to, the consequences of abusing an employee brought into this country under a visa will be a potential life sentence. This country is very strong in its commitment to that.
We want to make sure that we hear the views of the individual applying for the overseas domestic visa. As a result of the process of this Bill, we are piloting direct video interviews to check that people are aware of their rights. We are piloting at ports of entry a new card that has been introduced giving people details of what their rights are and, most crucially, telephone helpline numbers that they can call should they feel that they are in need. We are improving the national referral mechanism, following the view expressed by Jeremy Oppenheim that received broad support around the House, to say that this is not going to be adjudicated on by United Kingdom Visas and Immigration but by a multidisciplinary panel involving different groups and agencies focused on the welfare of the individual for whom the decision is being made using the national referral mechanism. We propose to improve the care and support for victims within that national referral mechanism on overseas domestic workers to make sure that they get the legal protection, access to health services and shelter that they need, and psychological support where that is needed.
Finally, in the course of the passage of the Bill through your Lordships’ House, when we were discussing the noble Lord’s amendment, we said that we would invite James Ewins, a widely respected barrister, who had worked for the International Justice Mission in the Bangalore office, was a deputy director of the Centre for Social Justice which produced a report, and was a legal adviser to the Joint Committee, to undertake a review of how the overseas domestic worker visa is operating and make recommendations as to how it should be improved, with the clear indication that the Government intend to act on them.
With all those points in place, the House none the less felt insistent—by a slender majority of seven, as I recall, but it is absolutely right that a majority is a majority—we failed to win that argument and the Bill went to the other place. Sometimes when that happens, the Government take the line of saying, “Well, your Lordships have spoken but the other place has also spoken”, and simply send the same message back up for us to consider. Not so here, because we were deeply conscious of the importance of the issue and the sincerity with which the noble Lord and others had spoken to the amendment.
We were aware that there were two issues of principal concern. The first was that often when an overseas domestic worker comes over here on a visa—we know this from the evidence that Kalayaan and other organisations working in the field have given us—their passport is withheld and they are told that if they dare to leave or to try to leave, they will be immediately removed from the country. That fear is imposed on them. In our amendment, we specifically state that under no circumstances will enforcement action be taken against anyone who is fleeing persecution on an overseas domestic worker visa.
The second concern was that people may be denied the opportunity to have a livelihood. We return to that debate time and again and the issue of the ability to switch employers. We have said that where someone who has come enters the national referral mechanism and achieves conclusive grounds under the new multidisciplinary panels, we will introduce a new six-month victim’s visa to enable them to work in the same sector as before.
In the rather long list that I have presented to the noble Lord, I want to communicate that he has moved the Government several steps—if I may say so, many steps—down the road to what he seeks to achieve. I suggest that those final steps may well be adjudged best to wait for the report of James Ewins in July, which the next Parliament will then be able to implement. It does not require primary legislation; the Immigration Rules can be changed at any time. Those changes can be made on the basis of those recommendations.
Some particular points need to be addressed by those who want to press the Motion at this stage. First, we desperately want to ensure that victims of abuse receive the help and support that they need. Therefore, to have a Motion that does not provide for the fact that they must go through the new and enhanced national referral mechanism—the vehicle by which all these additional helps of legal aid support, medical and psychological support and accommodation and hardship payments can be delivered to them—and skips that mechanism would mean that victims lose out in many ways.
Lord Hylton
As an amendment to Motion A, at end insert “but do propose Amendments 72D, 72E and 72F as amendments to Amendment 72A”.
(a) change their employer (but not work sector) while in the United Kingdom provided they notify the Secretary of State;(b) renew their domestic worker or diplomatic domestic worker visa, each such renewal being for a period not exceeding twelve months, as long as they remain in employment and are able to support themselves without recourse to public funds;(c) obtain a temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker where there is evidence that the worker has been a victim of modern slavery.”
Lord Hylton (CB)
My Lords, I offer a big bouquet to the Minister. I pay tribute to his sincere desire to improve the situation for the victims, of whom we have seen far too many over recent years. He has truly shown a listening ear: he has met me and others on many occasions; he has given us the national referral mechanism for domestic workers as well as for trafficked people; he has given us the Ewins review; and now he comes with a government amendment approved by the other place. I am also grateful to the Independent Anti-slavery Commissioner, who has given me time on these issues.
Some might think that I should be content with the Government’s moves, but I shall try to show why I am not. I seek to protect the incoming domestic workers from the first day of their arrival here. What I am proposing is a real improvement on the Government’s amendment, because that amendment takes effect only once the worker has found the national referral mechanism, from which there is no right of appeal. To do so, the worker must first endure a period of abuse and exploitation, then escape, and then find the national referral mechanism.
The government amendment restricts the person to working in a private household, whereas mine will allow him or her to work as a domestic in a hotel or embassy. The Government may say—indeed, the Minister made this point—that the workers will initially be protected by written contracts and information cards to be given to both employer and employee. I argue that all these pieces of paper may be withheld by the employer, just as passports have frequently been withheld up to now. The worst employers are likely just to disregard both contract and card. If my amendment is accepted, employees will know that they have an immediate remedy, just like any other worker. Employers will also know this and will, I believe, modify the worst of their past behaviour.
The Government further argue that the average visitor who brings a tied worker with them stays for only about 15 days. If that is right, then many, or possibly most, incoming workers will simply not be affected by my amendment. They will not seek to change jobs for such a very short period. They will suffer, if they have to, and they will go back with their employer. On the other hand, many employers stay for much longer than 15 days. When they apply for extensions of stay, as they often do, they easily obtain them. Their workers will therefore benefit from this new freedom, which is similar to that enjoyed between 1998 and 2012. I suggest to your Lordships that it is of great importance not to allow the kafala system, which ties the employee to a single named employer, to exist here because it has led to abuse and exploitation in the Gulf and nearby countries where trades unions are seldom allowed. I understand that our Government have sought to get it amended and improved in that part of the world. It should not be allowed to creep in here by the back door, even if the majority of visiting employers behave decently.
At first glance, it may appear that the amendment I am proposing is similar to the one approved by this House on Report on 25 February. In fact, it has been considerably changed to meet points raised by the Government. The first three lines of my amendment have been clarified and now look forward without retrospection. I put in that variation in order to try to meet the Government. Paragraph (a) of the proposed new clause states that workers must notify the Secretary of State if they change employer. This meets the point that they must not just disappear into the general labour pool. They must not expose themselves to being trafficked from one employer to another. They must also not claim state benefits. However, that does not mean that they must find their way to the front door of the Home Office and knock there. Any police station, citizens advice bureau, law centre, specialist NGO, councillor or Member of Parliament will do for the purpose of notification.
Paragraph (b) provides that the visa renewal shall be for not more than 12 months. This gives enough time to secure a reasonable job and bring a case for unpaid wages or damages against the first employer. It also prevents the growth of a pool of people who may eventually qualify for residence here. Paragraph (c) contains the word “evidence”. This means that workers changing employer and seeking to remain temporarily in this country must submit themselves to the national referral mechanism. That will produce a finding on the case and, more importantly—the point already mentioned by the Minister—it should give access to essential support and advice for those who need it. Amendments 72E and 72F are consequential.
My amendment is a compromise, which takes account of all that has been said in both Houses and of discussions with the Minister. It has been carefully crafted, with the best professional advice. I ask the Government to accept it, even at this late hour, and I commend it to your Lordships. If Britain is a “moral community”, as Edmund Burke might have defined it, we cannot condone domestic slavery in our midst. To do so immediately reduces our influence in the world and undermines our soft power. I beg to move.
Baroness Royall of Blaisdon (Lab)
My Lords, I support the amendments in the name of the noble Lord, Lord Hylton. I will say two things before I address the issues. First, my eyes are on the totality of the Bill. It is a fantastic Bill, and I warmly thank and congratulate the Minister on all the steps that have been taken throughout the process of the deliberations on it. The fact that I support these amendments does not detract from that in any way; I merely wish to make a terrific Bill even better.
Secondly, it is being said in the corridors that we are putting the Bill in danger with this amendment—much was made of that in the Commons. I have heard it said that civil servants have been saying that to some of your Lordships. I would not support an amendment if I thought that it was putting the Bill in danger. It is not doing so. There is ample time for us to discuss the amendment and for it to go back to the Commons, were it to be passed. What we are doing now feels like an anomaly only because of the Fixed-term Parliaments Act, which means that we have had a sort of protracted wash-up, and we are no longer used to the ping-pongs we used to have.
The substance of the amendment seeks to defend the important win that Members from around this House secured earlier this month. As we know, many overseas domestic workers are subject to appalling working conditions, long hours and little pay, and are sometimes at risk of mental, physical and sexual abuse. They must be entitled to the most basic rights to enable them to leave their abusive employer when they feel the need to, and they should know, as a matter of precaution, that a system is in place to protect them. That is the most crucial piece of the jigsaw, which is currently missing from the Government’s amendment. Without that, there is no bargaining power between an employee and an employer.
The workers must be able to challenge maltreatment and abuse, and be able to leave and change their employer without having to take a leap of faith. To make co-operation with the authorities a condition on securing leave to remain would only drive more domestic workers underground and lock them into a cycle of abuse. What incentive would they have in coming forward? Would the authorities believe them? What if the NRM decision was not positive? The NRM does not provide them with any access to legal aid or right of appeal. Even if they got a conclusive grounds decision, who would employ them for the mere six months they would be able to remain in this country?
In the three years during which migrant domestic workers have been tied to their employers, fewer have gone to the authorities. Understandably, they are reluctant to do so because they are afraid of people in authority. Of the 214 people who Kalayaan internally identified as trafficked since April 2012, only 63 have consented to a referral to the NRM. Therefore, can we rely on the NRM to deliver accurate decisions on the fate of these workers, when only a few months ago the independent review into the effectiveness of the NRM highlighted significant areas for improvement? I have no doubt that as a consequence of the review and the Bill there will be real changes in the NRM, and I welcome that. However, change takes time, during which overseas domestic workers will continue to suffer abuse. Moreover, as Kalayaan pointed out in its briefing, if forcing domestic workers into the NRM is a way of prosecuting employers, why have none been prosecuted during the three years of the tied visa? If we put ourselves in the shoes of such a worker, would we risk our livelihood on an uncertain decision or prefer to stay abused and exploited for the sake of our family, who are dependent on us in our home country? Could the Minister compare the system for spouse visas and overseas domestic workers visas? The Government provide a route for settlement to those who suffer domestic violence while in the UK on a spouse visa in the hope that this will be an incentive to people to leave the abusive relationship, not to stay in it because of fears about their immigration status. So why do the Government seek to create a system in which ODWs are treated differently?
Statistics from Kalayaan, which has done such a fine job in campaigning on this issue, show that in 1998, when the right to change employer was introduced, the numbers of those abused went down. Similarly, in 2012, when the restrictions on freedoms were put in and the right to change employer was removed, the numbers went up. This is not a coincidence. All the evidence that we have from NGOs and from the media coverage has shown that there is a link between tied visas and abuse of overseas domestic workers. Surely we can best facilitate the end of suffering on abuse for overseas domestic workers by listening to them, the charities that work with them and the independent expert groups that have looked at the issue. All of them are unanimous that to help to prevent the abuse happening in the first place, the overseas domestic worker visa must be untied.
I very much hope that this excellent listening and responsive Minister will, having answered the points made today, accept the amendments. In doing so, he will have made a very good Bill even better. More importantly, he will have helped and protected these most vulnerable of workers.
Lord Lea of Crondall (Lab)
I add in support of what my noble friend has said that it would be useful if the Minister could elucidate what sort of contract of employment we are normally talking about, because that would subsume many of the worries about the lack of rights that we are discussing.
Baroness Butler-Sloss (CB)
My Lords, I have been involved in this Bill before it even existed, because I was a member of a working party set up at the request of the Home Secretary which Frank Field chaired. Sir John Randall and I were the other two members. We started in October 2013, and it was as a result of our report in December 2013 that the first draft Bill came into existence.
There have been so many changes to the Bill that the current version is almost unrecognisable from the first draft given by the Government. As the noble Lord, Lord Hylton, said, the Government are greatly to be congratulated on listening—and not only that but on tabling a remarkable number of amendments, having listened to what we have all been saying. There are child advocates, which the noble Lord, Lord McColl, must feel is one the great triumphs of his recent time in the Lords. Then there is defence for victims and protection in court; the existence of a commissioner, even if he may not have all the powers that everybody wants him to have; and, perhaps most astonishingly of all, the supply chain. That was totally opposed at the beginning, but it now forms an integral part of the Bill. So this House and the other place should really be very proud of what we have done to make a good Bill.
Of course, the Bill is not perfect. The Minister accepts that—it is a starting point, and it could be better. But all parties support the Bill, as well as the Cross-Benchers. There are gaps, and those gaps can and should be filled under the next Government, whichever sort of Government they are, because no Government will not support the concept of the Bill when it becomes law—as I hope that it will—and I hope that they will be sympathetic to several amendments. I warn the Government that strategy and policy issues also need to be improved—but again that is for the next Government. But what is perhaps of supreme importance to your Lordships’ House as well as to the other place is to have the framework of the Bill as part of the law of England and Wales. That is absolutely crucial.
I, of course, recognise the plight of overseas domestic workers. This is something that we need to tackle and improve over a period. However, there were criticisms of the previous Government’s visa requirements. The commissioner-designate says that there were opportunities for traffickers to traffic people from one employer to another under the visa requirements that came in before this Government changed them. The Minister reminded us that James Ewins—a sensible, intelligent lawyer—is looking at how the present system of visas works and how the previous one worked, and will report on that. It seems to me very sad that we should be going in a sense to war at the last moment, the day before Parliament prorogues, on an issue which is now the subject of a review which I have no doubt will come up with excellent recommendations. As the Minister has already said, primary legislation is not required to make the changes that James Ewins may well recommend, and which the next Government may well accept; they could be done by regulation.
In addition, the Government have made strong concessions. There will be the opportunity for those deemed to be victims of slavery to stay in this country and to get another job. The noble Baroness, Lady Royall, said that that applied only for six months, but that is not what Amendment 72A says. It says,
“not … less than 6 months”.
I read that rather differently from just six months. That seems to me an important distinction that I make in disagreeing with the noble Baroness.
Why at this moment, with Prorogation of Parliament tomorrow, are we still fighting over this clause? With one day to go we are in danger of the best being the enemy of the good. That has been said before but I make no apology for saying it again. We may be fighting a Custer’s last stand if this House and the other place find themselves scrabbling around tonight and tomorrow morning, trying to get a second go on the second ping-pong. If the noble Lord, Lord Hylton, persists tomorrow, what will happen? If he is not going to persist tomorrow, will he tell us when he replies why he is persisting today? The Government have already gone a long way on this issue. When we are so close to the end of this Parliament, do we really expect them to give in to what is in a sense almost blackmail?
Baroness Butler-Sloss
That may be a very strong word but you need to look at what is happening to a good Bill, which is in some danger. It is not absolutely in danger because the other place can deal with it tonight, presumably, and we can deal with it tomorrow morning. However, I am looking at what will happen tomorrow if this House votes to support the amendment of the noble Lord, Lord Hylton.
Personally, I cannot bear to see this Bill at risk. I have lived with it for so long. The House is aware of my credentials with regard to modern slavery and human trafficking. I ask the House to support the Government and oppose the amendment of the noble Lord, Lord Hylton.
Baroness Hamwee (LD)
My Lords, on Report, I spoke forcefully in favour of the amendment of the noble Lord, Lord Hylton, because I thought it was essential to express the strength of my feeling, and for the House to be able to express the strength of its feeling. However, after that debate, I commented to a number of people that I did not think the amendment could stand because I believe that it contains inherent problems. I have in no way changed my view about the issue—having said that, it is inappropriate to refer to people as an “issue”; I mean the situation in which some people find themselves, for which few adjectives are adequate. I hope that those who thanked me at that point will not feel that I am breaking the faith. I am certainly not condoning the situation.
Lord Alton of Liverpool (CB)
My Lords, like the noble Baroness, Lady Hamwee, I would like to make a number of points about Motion A1, which my noble friend has laid before your Lordships’ House. In doing so, let me say first to my noble and learned friend Lady Butler-Sloss that she has been involved in the drafting of this legislation, as she said, even before it was presented as a Bill. However, on Report I passed an article to my noble friend Lord Hylton that he had written in 1996, and which I had kept, about the importance of safeguarding domestic migrant workers. No one has done more in your Lordships’ House than my noble friend Lord Hylton to champion their cause. That is why the noble Lord, Lord Bates, was right to pay tribute to him.
Although this risks becoming like a mutual admiration society, I join with the noble Baroness, Lady Royall, in congratulating the Minister on the exemplary way that he has handled the Bill. It has, throughout, been a bipartisan Bill—the Opposition have played a huge part in it, as have people from all Benches in your Lordships’ House—and a bicameral Bill, with a lot of interaction between both Houses. The right honourable Member for Birkenhead, Frank Field—we all wish him well as he recovers from his recent heart attack—chaired that important committee on the draft Bill. He is right to emphasise the totality of this Bill.
There is no one in your Lordships’ House, including my noble friend, who will put this Bill at risk in any way whatever, but making a good Bill even better is surely what Parliament is all about. We have made this provision better. I will come back to that in a moment, but it is worth pointing out that supply chain transparency, which my noble and learned friend referred to, was not even in the Bill after the pre-legislative scrutiny stage in another place; it was incorporated on the Floor of the House. Similarly, there was no provision in the Bill on domestic migrant labour when it began to go through its stages. We have been improving it as we have proceeded. The Minister will correct me, but I think in Committee and on Report—I was able to take part in all stages of the Bill—around 100 amendments, many of them emanating from the Government after the discussions we had in the meetings that the noble Lord organised for us, were incorporated into the Bill. That is why it is already so much better than when it began.
I take issue a little with my noble and learned friend. It is the job of parliamentarians to be here until Parliament is dissolved. We have not got to the last gasp; this is not Custer’s last stand, as she put it. I certainly do not regard people laying amendments before your Lordships’ House and giving them proper consideration, as we are doing, as blackmail. I think it unreasonable to suggest that. I ask the Government this in that context: why is it that an amendment that was incorporated on domestic migrant labour about a week ago in another place has taken so long to come back to your Lordships’ House? Why is it here on the penultimate day? Why could it not have been here on Monday, for instance, allowing for more consideration if time is really the issue?
As the noble Baroness, Lady Royall, rightly said, there is plenty of time for this to go to another place tonight. I have served in one or other of these Houses for the last 36 years. As the noble Baroness said, I remember the so-called wash-ups where we were here all night long dealing with things going between the two Houses until we got it right. Often, we got it much better as a consequence. I think back to the LASPO legislation. I moved an amendment concerning the legal aid provisions for people who had contracted mesothelioma. Your Lordships, across the House, were good enough to support it and it ping-ponged back and forth between both Houses. On the third time of asking, the Government relented and modified the legislation. That is our duty as parliamentarians: to seek as much as we can get and to recognise the moment when no more can be gained. I am sure that my noble friend, who has been in your Lordships’ House for a lot longer than I have been, will be able to remind your Lordships of plenty of such precedents. If we are here tomorrow again debating an amendment and the Commons decide that they do not wish to modify Motion A but wish to persist with it, then we will no doubt hear from the noble Lord what he wishes to do.
I turn briefly to the substance of the amendment. Until we incorporated this new clause, the Bill contained nothing whatever to address the tying of migrant domestic workers to their employers. On two occasions in the last three weeks I have met domestic migrant workers on Cromwell Green, and I know that other Members of your Lordships’ House have done so too. They were brought here by the Kalayaan charity, which the noble Baroness referred to. They told me that when news of the vote in your Lordships’ House on my noble friend’s amendment was announced, a young woman called Marissa Begonia, herself a domestic worker and co-ordinator of the self-help group Justice 4 Domestic Workers, described how she received texts from workers asking her, “Am I free now?”. Unfortunately, of course, the answer is “Not yet”. However, I recognise that the Minister has gone some way today, particularly in what he said about the review, but that review can now take place anyway, regardless of what we decide regarding this amendment. These things are not mutually exclusive.
In a nutshell, the government amendment does not provide additional protections against exploitation. Once someone is trafficked, it forces them to go to the police without any guarantee of protection before they do so. One employment agency told me that it would not place someone on a six-month visa with no hope of renewal. As the noble Baroness, Lady Royall, said, there is a real risk that it could drive people underground—again, with no access to things such as legal aid.
My noble friend’s amendment merely asks for the most basic of protections, and they are threefold: first, to change employer but remain restricted to domestic work in one household; secondly, if in full-time work as a migrant domestic worker in a private household, the option to apply to renew the visa; and, thirdly, in instances of slavery, a three-month visa to allow the workers to look for decent work. Without these kinds of provisions, we leave in place a system found repeatedly during almost three years to facilitate exploitation, including trafficking of migrant domestic workers.
Many workers coming to Kalayaan describe how they have “sacrificed” themselves for the well-being of their wider family. They do not self-protect in the way that someone with more choices would expect. Many explain that they are prepared to put up with practically any amount of mistreatment if they can provide for their children and ensure that the same will not happen to them.
In 2009, the Home Affairs Select Committee, in its inquiry into trafficking, said that the visa issue was,
“the single most important issue in preventing the forced labour and trafficking of such workers”.
No one is so naive—I agree with the noble Lord, Lord Bates—to suggest or imagine that the exploitation of domestic workers would be abolished by such minimal protections, but they would certainly be an improvement on the current situation. The Minister referred to the anti-slavery commissioner designate, Kevin Hyland, and said that he did not feel that this went far enough. Well, he is right about that, so let us at least go as far as these amendments and as far as we can by regulation in due course, but let us do as much as we can for the moment.
When the Minister comes to reply, can he say whether the measures might include provisions—maybe as a result of the review—for annual inspections, for checks with the Inland Revenue to ensure that employers have registered and are making reasonable levels of contributions, and for annual meetings between the worker and a trusted authority? All those will be crucial. I believe that my noble friend is right to have laid this amendment before your Lordships’ House and I do not think that it is a question of this being Custer’s last stand. I hope that, from my noble friend’s point of view and because of all the things that he has done in raising this issue in the past, we will continue to give him our support if he chooses to press the matter to a Division.
Lord Deben (Con)
My Lords, all my instincts lead me—I think Members of this House will recognise this—to being enormously sympathetic towards the amendment before us. However, I remind the noble Lord, Lord Alton, that it is not just a question of some people saying that they do not want an amendment because it will hold things up and might mean that we lose the Bill. The argument is that there are serious faults in this amendment which need to be considered.
The Lord Bishop of Derby
My Lords, I, too, pay tribute to the noble Lord, Lord Hylton, for his inspirational leadership on this issue. He has frequently expressed that this is a moral and a practical issue, which is why we take it so seriously. I am also grateful for the way that the Government have responded positively to the discussion around the noble Lord’s first amendment, for which I voted. However, I am afraid that I cannot support this amendment, for reasons much along the lines of the noble Lord, Lord Deben.
The issue is very complex. In the debate in the House of Commons, there were all sorts of complex strands, which are in the background of some of the statements being made in your Lordships’ House today. There is a discussion about the nature and the length of visas. There is also discussion about the scope and limitations of the national referral mechanism. We have heard today about the spouse’s visa and where that model fits in. There is discussion about the principles of domestic labour and employment law and about what particular provision should be made for overseas domestic workers. This is a complex issue.
I applaud the Government for appointing James Ewins to lead the review because all these issues need to be looked at in the round so that overseas domestic workers can be best supported and cared for. We need to let the review do its work and not foreguess it in the way that the amendment tries to do. I am batting for the review and trusting that it can be implemented by regulation. Therefore, I am with any future Government who are serious about this issue—as they should be on moral and practical grounds—and pursue it appropriately.
I am uneasy about the details of the amendment on two counts. There is a real danger, as the Minister alluded to, of separating the victim from the crime. It is important for future victims that any system of care and support for those caught up in this terrible crime, and oppressed and abused by it, can kick back into where the crime is coming from and how it is manipulated and engineered. There is a danger that this could encourage people to try to escape from it but not be invited to play a responsible part, if they can, in challenging the crime and seeking to stop it.
Again, I applaud the desire to offer other alternatives in terms of work—the James Ewins review could look at that—but we are talking about people who have come into this country on a particular and intimate relationship and who often have a particular dependency, as those of us who have had the harrowing experience of meeting overseas domestic workers who have been abused in this way will know. They are not migrant labourers who can easily get up and go and get another job. The situation is more complex than that and needs a more subtle and careful approach.
I cannot support the noble Lord on the amendment for those reasons. I hope that we will give James Ewins the opportunity to look at all the complex issues and to come up with a more joined-up approach that we can continue to gather round and support in the future.
Baroness Williams of Crosby (LD)
My Lords, we have had some remarkable contributions to this debate. I certainly do not wish to delay the outcome but I would like to ask two or three questions before we make a decision on the Motion of the noble Lord, Lord Hylton. Before I do so, I pay tribute to the 30 years of his life that the noble Lord has given to the effort to get social justice for this particularly badly treated group in society. I have absolutely no qualification in saying that. Of course, like everyone else, I thank the Minister for his endless persistence in trying to get answers that will satisfy the House.
My questions are very simple. The first is about access. Noble Lords have referred to the extreme risks that domestic workers in difficult situations may face in attempting to access the system we have now begun to establish, including the NRM. We need to make sure that they do have access. I ask the Minister whether access to, for example, the churches or non-governmental organisations can then be passed on by them on behalf of the person who is objecting and concerned. Is that a possibility? I ask this because the trust that overseas domestic workers—for example, Filipinos—have in a church or an NGO might be much greater, sadly, than the trust they might place in the authorities. I am sorry to have to say that, but it has been my experience in talking in particular to Filipino migrants, who are among the most helpful and forthcoming that we have in this country. They have deep concerns—from their own experience back home as much as anything—about whether the authorities will be fair in the way that they treat their complaint.
My second question concerns the issue raised by the noble Lord, Lord Hylton, as well as by the noble Lord, Lord Deben, and others, including my noble friend Lady Hamwee. There is a complete lack of any form of legal aid for this pathetically waged group in society. I am not sure whether they would get any money at all to pursue these issues, which is why it is of such great concern to me that access to employment tribunals and the civil courts is not made available in some form that would enable these people to bring their cases forward. There may be no answer to that, but we cannot pretend to ourselves that passing laws that cannot be implemented because the people they affect do not have the money to do so is a satisfactory outcome.
I have two more questions. The third is about the inquiry. The Minister said that the inquiry would be in July, but my impression is that that is not when it will be concluded, but when it will be started. As we know, an inquiry can be a very long process indeed, particularly when it comes—as this one will—between the end of a Parliament and a general election that will be followed by the creation of an effective Government. Is the Minister telling us that the inquiry will start in July but not giving any indication of when it is likely to be terminated?
Secondly, will the inquiry look not only at the law but at the implementation of the law? It was mentioned in the Commons that there had been 63 cases where exploitation or other forms of slavery were clearly identified. There has been just one prosecution. That reminds me a little of the issues around the banks. It is no good having a law that is not implemented. Perhaps the Minister will be kind enough to say whether the inquiry will be able to look into the issue of implementation as well as at the law itself. This seems to me to be absolutely crucial.
My final point concerns the issue of serious crime associated with, for example, cases of exploitation. I will give an example from my own experience, because I used to lecture on this subject when I was at the Kennedy School in Harvard. One of the most dreadful pieces of evidence I came across was that one of the single largest exports to the Philippines from the Trucial States of Saudi Arabia was that of coffins for those who had been domestic workers. I do not point the finger now; maybe things have changed. However, they were very serious in the past.
My last question is this. If someone who makes a complaint refers to a capital or substantial crime such as rape or assault, could we take that into account in the way that we deal with the issues that are now before us? Will the Minister say how that is dealt with at present, because my impression is that sometimes it is not dealt with at all?
Lord Warner (Lab)
My Lords, a number of noble Lords who served on the Joint Select Committee with me have spoken against the Motion of the noble Lord, Lord Hylton. I will say a couple of words in support of the Motion and of the remarks made by the noble Lord, Lord Alton. First, it is worth remembering that we have known for some time about the problems arising from the changes made in 2012 to the Immigration Rules. The Government have come very late to the party on having a review into this issue. I suggest to noble Lords that they may have—finally—come late to the party only because this House, through its amendments, has put a good deal of pressure upon them to do so.
Secondly, I will draw attention to the key difference between the Motion moved by the noble Lord, Lord Hylton, and that of the Government. Essentially, the Motion moved by the noble Lord, Lord Hylton, whatever its shortcomings, gives a degree of protection as soon as the person comes into the country. The government Motion does not do that. It would seem to be a failure on our part as a scrutinising House if we give up this opportunity to put something into the Bill which will make it better and provide more protection while the review goes on. If the noble Lord, Lord Hylton, chooses to divide the House, I can see no reason why we should not vote in favour of his Motion. It does not in any way stop the Government getting this legislation through.
Lord Bates
My Lords, in the character of this legislation, this has been an exemplary debate. The issues have been raised calmly and with great passion and determination by people who have given their lives to tackling this issue of abuse. I am aware that some very serious questions have been asked. I will do my best to respond to them and will also seek to make some other points which I hope will be helpful in reassuring noble Lords about the Government’s intentions.
The noble Baroness, Lady Royall, talked about the position on legal aid for those people accessing the national referral mechanism, a point picked up by the noble Baroness, Lady Williams, as well. Any potential victims, including those on overseas domestic worker visas, will have access to legal aid for immigration, employment and damages claims, once they receive a positive reasonable grounds decision—reasonable grounds being, as we discussed before, a very low, almost formal, test for entering into the national referral mechanism. The Government have said that they have accepted the NRM review recommendations. Here, Jeremy Oppenheim suggested a new process to review decisions where a negative conclusive grounds decision has been made. The noble Baroness made a fair point about where the appeal system is under the existing NRM system. Jeremy Oppenheim recognised that we needed to do something, and we are running a pilot on this. The Government have accepted all the recommendations that have been put forward.
The noble Baroness also asked why this is different from the domestic violence visa. The domestic violence visa is designed solely for those who have come to the UK to join someone who is settled here. They may have come to make their home here. Domestic workers are issued with visas to come for short visits with their existing employers. Most visits are short: about 15 days.
My noble friend Lady Hamwee asked what the government amendment says about Immigration Rules and what the additional requirements will be. The requirements for the visa will be limited to the following: that the person has a conclusive grounds decision from the NRM; that they are a victim of trafficking or modern-day slavery; and that they are not excluded for reasons of public policy, for example serious criminality. My noble friend also asked whether we will allow people with the new visa to work for agencies that clean private homes. This is an interesting point, which we will consider and discuss with interested parties such as Kalayaan. Our concern will be to avoid inadvertently creating a further risk of abuse.
There is a wider point on the review that is being undertaken by James Ewins. This is different, because we have an amendment, but we also have an ongoing review by someone who is widely respected on all sides of the House for his ability to look at this issue. He has been asked to start his work and will report by July. That was one of the decisions that we took in response to the noble Lord, Lord Hylton, the first time he raised this. We therefore expect a report by July, and changes can be made from then. There is a tradition that Immigration Rules are handled in blocs twice a year for the convenience of the House, but it will be for the next Government to say whether this will come in October or whether action could be taken as early as July.
The noble Baroness, Lady Royall, asked whether far more workers have been abused since the changes to the overseas domestic worker visa. This is really a point about the evidence base for this. We have had some evidence presented to us, and other evidence that points in another direction. The quality of the evidence is one of the things that we have asked James Ewins to look at in order to assess its veracity.
The noble Baroness, Lady Williams, asked about the woefully low level of prosecutions. Of course, this is exactly what the Independent Anti-slavery Commissioner-designate has been brought in to do—to ensure that we care for victims but also that this is taken seriously. We specifically ask in the remit whether the policies and processes for pursuing those accused of perpetrating modern-day slavery against those who are on overseas domestic worker visas are effective. That is a specific part of his remit.
Can churches bring forward victims? We are already working with faith groups, including the Catholic Church—I pay tribute to the noble and learned Baroness, Lady Butler-Sloss, who chaired an excellent meeting with British Black Churches looking at this issue, increasing their awareness of it and getting their co-operation in fighting it—in our plans to communicate the new protections. The national referral mechanism review recommendation will support and improve relationships between statutory agencies and organisations including churches. Any organisation that comes into contact with a potential victim may work with the slavery safeguarding lead to refer them into the national referral mechanism.
When will the measures come into effect? I have dealt with that by saying that it is normally twice a year but it can in fact be any time.
Baroness Hamwee
My question was about bringing this particular clause—or section, as it will be—into effect.
Lord Bates
I do not want to get this wrong. I probably need to look to my left for some inspiration, which I have relied on heavily during the passage of the Bill, because this is at such a critical stage. It is pointless to say, as I normally do, that I will write to the noble Baroness. It is a very reasonable question and we should have an answer to it.
On employment tribunals, overseas domestic workers have the same rights of access to employment tribunal services as other workers where the tribunal has jurisdiction. They are able to file a claim and nominate a representative to appear on their behalf. Additionally, it may be possible to provide evidence via a videolink.
Of course, the answer to the noble Baroness’s question is really so obvious I wonder why she needed to ask it. [Laughter] It will come in in October. That is the current plan and the current schedule. But as I have also said, it is for the next Government to introduce this when they wish. There is nothing to stop them bringing it forward once they have James Ewins’ review.
The noble Lord, Lord Hylton, talked about the notification requirement. This is about notifying the authorities when they are going to change employer. This was something that Kalayaan highlighted in its report, Ending the Abuse, which was produced some time ago, in May 2011. I pay tribute to Kalayaan’s consistent work on this topic. The report says, on the right to change employers:
“Home Office data for the period from January 2003 to August 2010 shows that … 41 per cent … of migrant domestic workers cited abuse/exploitation as the reason for changing employer. Given that many MDWs prefer not to reveal their personal experiences to the Home Office, the figures are likely to be much higher in reality”.
That is still an issue with regard to the wording of Amendment 72D.
There have been a number of remarks and I probably cannot do justice to them all. I take seriously the intent behind the intervention by the noble Lord, Lord Alton, to say that there is usually a Parliament to press. I am trying to remember all that he said, but he said at the end that it is important to recognise the moment. In a sense, I am saying that, although perhaps not for the straightforward reasons that we have brought forward here, the Government have made significant steps. The noble Lord, Lord Hylton, acknowledged that. We have moved significantly down the route of making sure that, before people come here, they are aware of their rights and the protections that exist; that employers are aware of the consequences of abuse; that people who come here have knowledge of the minimum wage and other elements that they are entitled to; and that, when people arrive at port, there are interviews with Border Force officials. The Government have moved. They have not simply said no to the amendment but have launched a review; in essence, we are unsure whether we have gone far enough and whether this is the right route.
We have highlighted the particular problems with the amendment. As a number of people have pointed out—the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Deben, and the right reverend Prelate the Bishop of Derby—there are problems and weaknesses with this amendment. Being the generous man that he is, I know that the noble Lord, Lord Hylton, will probably recognise some of those deficiencies.
The question is whether the House wants to insist upon this amendment and send a Bill that incorporates it back to the other place. The noble Baroness, Lady Royall of Blaisdon, said that there is ample time, and I suppose that there is always time—
Lord Bates
“Ample” is an interesting word when we are on the eve of the Dissolution of Parliament. However, there is of course time to do this—that is not the argument. The argument that we and others have put forward is whether this is the amendment that we want. As worded, it will simply mean that lots of people who are already here in the country and are victims of abuse will not be eligible to be covered by its provisions, whereas our amendment is retrospective and covers people who are already here.
The amendment is also defective in that there is a suite of measures, which people in this House have fought long and hard to include in and make available to this victim-focused legislation, available through the national referral mechanism. It is critical that victims get that level of medical and financial support, which is available through the NRM; that is what it is there for and why it has been reviewed and reformed as part of the work that we have done here. Most crucially, the amendment is defective because a serious and considered piece of work is currently going through its process under the widely respected James Ewins. Our argument is that that should be allowed to take its course.
I hope that people attach some weight to what I am about to say. Those who are responsible for this—Shaun Sawyer is leading the charge for us at the national policing level and making sure that those who are guilty are prosecuted—warn that the amendment as worded has the real, inherent danger of, in the words of the right reverend Prelate, not separating the victim from the crime. That is a potential danger. We want to make sure that the victim is protected but we also want to make sure that the perpetrator of the crime does not then continue to abuse other employees who are there.
I sense that the House is filling up and has probably reached a point where it wants to reach a judgment on this. I sense that and accept it, but I would not want the noble Lord, Lord Hylton, or other noble Lords who might be considering their action, to think, first, that the Government have not wrestled with the issue and tried to find a way forward which works for victims. I would not want noble Lords to feel that this is a one-off chance: that if they miss this moment, they will never get the opportunity to act again. We can act again at any time—Immigration Rules can be changed at any time if they are laid before Parliament—and the report will come forward.
There is another reason—I shall finish on this. This is in no way to suggest that we ought to fit in with this timescale, but today is the UN-sponsored International Day of Remembrance of the Victims of Slavery and the Transatlantic Slave Trade. In my view, it is a highly appropriate day to ensure that this momentous piece of legislation, which has been shaped, reformed and improved so much by all parts of your Lordships’ House, goes for Royal Assent and lands on the statute book, to give protection to the victims who need it and to ensure that the perpetrators can practise their crime no more in this country.
Lord Hylton
My Lords, I thank the Minister for his careful and comprehensive reply to this debate. I must also express my deep gratitude to those who have spoken to the amendment from all sides of the House, whether they attended to support it or to call it into question.
A great deal of reliance has been put on the forthcoming or already started review. I am sure that it will come up with good recommendations, but we have seen too many reviews lie far too long in the long grass to put a great deal of reliance on that. The view has also been expressed that we need more time for more information. We have had two Joint Committees, which have heard a great deal of evidence. We have had more evidence from a whole range of voluntary organisations. I suggest that the time is now to take a decision. Therefore, I wish to persist, just for today, and I beg leave to seek the opinion of the House.