Counter-Terrorism and Security Bill

Baroness Butler-Sloss Excerpts

Monday 2nd February 2015 Lords Chamber

[Lord Pannick (CB)]

My Lords, this is not gesture politics. There are many areas of the law where an obligation to provide a gist of the reason is imposed precisely in order to try to achieve a compromise between the duty of fairness and the demands of security. In these areas of the law, providing a gist does give individuals the substance of the allegations against them. In this context, the constable can exercise the relevant power only if he or she has reasonable grounds to suspect. In general, the constable must be able to provide at the least a summary of the reasons why they have reasonable grounds.

I understand the point that there may be security reasons why the constable is either unable, or is concerned that he or she may be unable, to provide even a summary. I wonder whether the Minister might consider, prior to Third Reading next week, coming back with a revised amendment that would impose the obligation set out in the amendment moved by the noble Baroness, Lady Hamwee, but subject to an exception—if the constable believes that there are or may be security reasons not to provide the summary. In the context of the exercise of a power as serious in its implications as this—that is, seizing someone’s passport—surely there ought to be an obligation, at the time when the power is exercised, to tell the individual why it is being exercised.

[Baroness Butler-Sloss (CB)]

My Lords, following on from what the noble Lord, Lord Pannick, has just said, it may be possible to add to the amendment the words, “or in the case of emergency”.

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to my noble friend for giving us an opportunity to discuss this issue again. It was part of a very large group of amendments in Committee, so I would like to put on the record some additional remarks which I hope will provide further reassurances about the circumstances in which the power may be exercised.

The Government are absolutely committed to the appropriate and proportionate use of the power to seize travel documents. The impact of this amendment would be to reduce the effectiveness of the power and the speed at which it could be used. We should remember that the context for this is that we have up to 600 people suspected of travelling to Syria and engaging in terrorism-related activities. It is in that context that we are seeking to disrupt, if not stop, such actions. This gets to the heart of the purpose of this power, which is to disrupt immediately the travel of individuals who are reasonably suspected of travelling for terrorism-related activity and to give the police time to investigate them.

It may of course be, as my noble friend Lady Buscombe mentioned, that this happens in the context of a tip-off, which might be from a security source or from a family member who at that point has some fear of the individual. There could be reasons why it is not possible to give more detailed reasons. However, a police officer of superintendent rank would have had to have been satisfied that the reasonable suspicion grounds had been met. It would be inappropriate to reveal the source or content of that information. There would need to be a full consideration of what the individual could be told, and this is likely to involve gisting—which I will come back to in a second.

Given the immediacy of the power, it would be impractical to conduct this consideration at port, and it would potentially damage prosecution prospects to do so at this point. However, if the police apply to extend the retention period, they must give as much information as possible about the reasons the individual’s passport was retained, without prejudicing national security. The Bill contains robust authorisation and review processes to ensure that the power is appropriately and lawfully used.

I did not make the following remarks in Committee—I am trying to add to the reply which I gave then. First, the reasonable suspicion test must be met. The use of reasonable suspicion as an evidential standard is used in relation to many other police powers. What constitutes reasonable suspicion will depend on the circumstances in each individual case, but there must be an objective basis for the constable’s state of mind, based on the facts, and it must be specific to the individual. At the point of seizure, the individual will be informed that their travel documents were seized because there were reasonable grounds to suspect that they were intending to travel overseas for the purpose of involvement in terrorist-related activity outside the UK. The police are not detaining the individual, nor are they permanently removing the individual’s passport privileges.

Secondly, the police are under a statutory duty to return the travel documents as soon as possible if the test is no longer met and investigations do not substantiate grounds to support further action being taken in respect of the person. Thirdly, a senior police officer of at least superintendent level must authorise the decision to exercise the power. Fourthly, this senior police officer’s authorisation is further reviewed by a police officer of at least the rank of chief superintendent, and this review must be started within 72 hours of the seizure. Fifthly, the reviewer’s findings must be reported to the chief constable of the force which exercised the power and he or she must consider those findings and take appropriate action. Sixthly, unless a court agrees to extend the retention period, the police must return the travel documents after 14 days from the point at which the documents were seized.

The whole process is further governed by a statutory code of practice, which my noble friend Lady Hamwee referred to in her introduction, which makes provision for how officers are to exercise the power and ensures proper use of it. The code also provides that a person who has had their passport seized may write to the police requesting that the reasons are provided for the exercise of the power. The police must respond, following detailed consideration of any sensitive information. Therefore, an individual can receive more detailed reasons as to why the power was used in their case, even when the passport is returned very promptly.

As the Bill stands, there is a clear threshold that must be met to justify the exercise of the power. The disclosure of any information relating to national security requires careful consideration on a case-by-case basis. This amendment would require such considerations to have taken place before the power could be exercised. A police officer at port would not be able to make this judgment. As I said, this would have the effect of preventing the power being used as intended as a disruptive measure. In the light of this and of the extensive and robust safeguards already in place to govern the exercise of this power, the Government believe that the change proposed in this amendment is not necessary and would have the consequence of inhibiting the use of this important power.

Counter-Terrorism and Security Bill

Baroness Butler-Sloss Excerpts

Tuesday 20th January 2015 Lords Chamber

[Lord Thomas of Gresford]

Accepting the view of the noble Lord, Lord Pannick, that we should not give a course of action to someone who has had their passport removed, if the Minister were to give an assurance that the state will be open to ex gratia payments in appropriate cases, the fears expressed by the noble Lord, Lord Harris of Haringey, would be met. Ex gratia payments are frequently made in circumstances where there has been a degree of injustice. One cannot imagine any greater sense of injustice than to have one’s flight removed and the cost of a hotel imposed without any possibility whatever of being recompensed.

[Baroness Butler-Sloss (CB)]

Sympathetic though one may be to how individual people may feel, perhaps I may respectfully say that my noble friend Lord Pannick is absolutely right.

[Lord Ashton of Hyde]

My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.

Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.

However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.

Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.

The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.

Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.

Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.

However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.

--- Later in debate ---

[Baroness Ludford]

My Lords, I thank the Minister for explaining these welcome amendments. Something is puzzling me and it may simply be my lack of understanding of the field. The test which the court has to determine in the case of prior permission, under Amendment 52, or in the review of urgent TEOs, under Amendment 44, is whether the decisions are “obviously flawed”. I am challenged to understand the position with an in-country statutory judicial review in Amendment 65, which I understand would follow the normal principles of judicial review, including necessity and proportionality. I know that the independent reviewer referred to a test of “obviously flawed” in a commentary that he made, but I do not understand the justification for the difference in the test in Amendments 44 and 52 compared to the statutory judicial review in Amendment 65. The phrase “obviously flawed” seems both a high and a somewhat problematic threshold: obvious to whom? I would have thought that the application of that test would create some difficulties. However, I may be on entirely the wrong track.

[Baroness Butler-Sloss]

My Lords, I want to ask a rather practical question. The whole of Clause 2, together with the amendments, appears to deal with someone over whom the Government assume there will be some degree of control. I take the example of someone who has gone to Syria and comes back through Syria to the airport in Istanbul. He then seeks to fly back to England and is made the subject of a temporary exclusion order. What is to happen to that person in Istanbul? What are the Government of Turkey to do with this person? If you stop them at an airport outside the United Kingdom, is there not a very real danger that they will just go back into Syria or into Iraq? What I have not understood about this temporary exclusion order is what will happen to these people who are not able to come back to this country.

[Lord Lang of Monkton (Con)]

My Lords, your Lordships’ Constitution Committee managed to produce, at fairly short notice because this was a semi-fast tracked Bill, a report in which we drew attention to the absence of judicial oversight and expressed considerable concern about it. Therefore, I welcome the development that my noble friend the Minister has announced today. I do not, for one moment, suggest that we were the only organisation which drew attention to this gap and called for change. The Independent Reviewer of Terrorism Legislation, David Anderson, was considerably more robust in his wording than we thought it appropriate to be. He pointed out that,

“in peacetime we have never accepted the power of the Home Secretary simply to place someone under Executive constraint for two years without providing for some relatively speedy process of appeal”.

It seems that the principle of what we, and others, have called for has now been met and I welcome what my noble friend has said.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Wednesday 10th December 2014 Lords Chamber

[Lord Warner (Lab)]

My Lords, I shall speak to Amendment 93, in my name, which adopts an approach similar to that of my noble friend’s Amendment 86P. I agree with what he said. We both agree that we should put the national referral mechanism on a statutory basis, as the Joint Committee recommended. I need to go over some of the same ground as he did, but there are also some other issues that I want to put into play in trying to convince the Government that a statutory basis is the right basis for the NRM.

Before I make my case, I should briefly explain why I am taking an approach different from that of the noble Lord, Lord McColl, in his Amendment 86M, which we discussed on Monday. I agree with him that Clause 48 is totally unsatisfactory, but I am not sure that it is right to put on the face of the Bill as much detail as there was in his amendment. That is why, in my amendment, I have gone for a set of regulation-making powers on given subjects.

My amendment is intended to give effect to the recommendation in the report by the Joint Committee on the draft Bill that the Bill should be amended,

“to give statutory authority for the NRM to ensure greater consistency in its operation, decision-making and provision of victim support services”.

Those are the critical reasons why this mechanism should be not an internal administrative system but one that has clearly been endorsed by Parliament. Our recommendation is clearly stated and set out in paragraph 82 of the Joint Committee’s report. My amendment would not hamstring the Home Office too much—I shall come back to that later.

Instead of laying out a lot of detail in the Bill, my amendment would enable the Home Secretary to make regulations in six key areas, and includes a provision for the inclusion of,

“such other matters as the Secretary of State considers appropriate to the new body”.

This approach to regulation-making gives the Home Office plenty of discretion for adapting the scheme as circumstances require. It does not fix for all time the role or the precise remit of the NRM. If we put a clause of this nature into the Bill, there will be plenty of flexibility in the regulation-making approach,

The six key areas in my amendment are the very ones identified by the Home Secretary as the subject of the Review of the National Referral Mechanism for Victims of Human Trafficking, as summarised in paragraph 2.1.3 of the report. I have not gone for widening the NRM’s role in any way; my amendment covers the topics that the Home Secretary said the review of the NRM had to cover. When Ministers set up that review, they knew that the Joint Committee would be recommending an NRM with a statutory basis. We came to that conclusion before we drafted the report and we informed the Home Office, so it did know that that was the road that we would traverse. There was plenty of opportunity for the Home Secretary to consider that issue in the context of the review. It is striking that, if we read the review fully, we find that it very much makes the case for putting the NRM on a statutory basis.

One point that I would draw attention to is in subsection (3) of my amendment, which gives effect to another Joint Committee recommendation, in paragraph 91 of its report, that,

“competent authority status be removed from UK Visas and Immigration”.

We saw a conflict of interest between determining immigration and asylum status and determining whether someone was a victim of trafficking. I will not detain the House with the evidence for that recommendation, but it is set out very clearly in paragraphs 84 to 90 of the Joint Committee report. The evidence and this amendment are absolutely consistent with the recommendations of the NRM review report at paragraphs 7.4.1 and 7.4.5. The amendment is drafted to be consistent with the findings of that review.

The Joint Committee heard a huge variety of evidence and arguments in favour of making the NRM a statutory-based mechanism, which were very much the same sets of arguments and evidence that was put before the review. We were told by Anti-Slavery International that the current arrangements,

“led to arbitrariness of application and access for victims”.

Others said that giving victims statutory rights would make claiming and enforcing those rights more straightforward and transparent. We were told that a statutory NRM was necessary for the UK to fulfil its international obligations as well as securing the most effective victim identification process.

Let me briefly illustrate the many concerns about a non-statutory NRM with the case of Ms O, who was a victim of trafficking, covered and cited in detail on page 61 of the Joint Committee report. Ms O was effectively kept in custody for nearly a year, despite the fact that people knew that she was a victim of trafficking. That is an appalling outcome for a person who was identified as a victim of trafficking, and that is what took place under a non-statutory-based NRM. All those issues are very clearly set out in the NRM review, which effectively makes the case, as I said earlier, for a statutory-based NRM.

I have spent much of the time in this Committee arguing for the Home Office Ministers and officials to get off the back of the anti-slavery commissioner and widen his remit. The NRM is a subject where the Home Secretary and her officials need to get more involved and design a statutory-based system that provides much more consistency and better identification and support for victims, has more credibility and speed of independent decision-making and is more fit to work alongside an Independent Anti-slavery Commissioner. I want the Home Office to get more involved, and I hope that in responding to the NRM review it will have a change of heart and commit to putting the NRM on a statutory basis.

I do not expect every “i” to be dotted and “t” to be crossed on this new system before Royal Assent but, before the Bill leaves this House, I hope that we can agree with the Minister the terms of a new clause that gives the Home Secretary regulation-making powers subject to the affirmative resolution procedure.

Finally, I have deliberately described in my new clause a “National Referral Mechanism replacement”. I do not regard the name, “national referral mechanism”, as particularly clear or helpful, and I would hope that we could find a better title, embracing words such as “slavery”, “victims” and “safeguarding”. How about the “Slavery Victims Safeguarding Authority”? Something along those lines would give a true indication of what this mechanism is actually all about. I support the amendment.

[Baroness Butler-Sloss (CB)]

My Lords, my Amendment 96 is in this group. I start by saying that I entirely support the idea of the previous speakers that we should have a statutory national referral mechanism, although perhaps with more felicitous wording, as the noble Lord, Lord Warner, has just suggested.

My proposal is much more modest. The reason for it is this. At the moment we have a very poor double system. There is the UKHTC in Birmingham, which provides, as we have heard, an 80% yes rate to victims, as opposed to the UKVI, which says that only 20% get through. Clearly, that is unacceptable. We also have two reviews from Jeremy Oppenheim which, in my view, are absolutely excellent. As I understand it, the Government have agreed in principle to the fundamental and radical changes that the second, final review has asked for. However, it seems to me that there needs to be some time for consultation, for arranging to get these panels around the country and for arranging how, in fact, a new, better described NRM should work.

My proposal is that the Secretary of State should have the power to make regulations to establish this statutory committee, leaving it to the Home Office to work it out. However, in order to keep them up to the mark, the Secretary of State must report to Parliament within 12 months of the Bill becoming law, in order to say that they will actually do it. At the end of the day, we undoubtedly need a statutory system. But I believe that we need some leeway to work out how it should be. That is why my amendments, in my view, are very modest.

If I may respectfully say so, it would be very unwise of the Government not to listen to this. We have the two reviews of the NRM and we have what the Joint Committee has said, which has been set out so well by the noble Lord, Lord Warner—of course, I was a member of the committee. I totally support the proposals of our Select Committee and of the two reviews. All I am saying is that the Government should have a bit of time to think it over, but not so much time that the matter goes into what is sometimes called the long grass, because this really has to come. The current situation cannot go on for much longer because it is so patently wrong. That has been set out very clearly in the two reviews of the national referral mechanism.

I hope that, at the least, the Government will accept my amendment. I would have no objection to the Government accepting either of the other amendments that have come forward. However, I have no doubt that, one way or another, within the next 12 to 18 months, we will need to have a statutory mechanism for dealing with victim identification and support.

[Baroness Hamwee (LD)]

My Lords, I added my name to the noble and learned Baroness’s amendment for all the reasons that she has given. Never say never; in fact, let us say, “Let’s get on with it”—but let us get on with it in an appropriate way, which must include consultation. Jeremy Oppenheim’s review made very clear the lack of understanding of processes and the variability in standards across the mechanism. I found myself thinking, “Well, no wonder, because it is such a loose process that it is quite difficult to get to grips with”. When I first heard of it, a few years ago, it took me some time to understand just what this was about, given that it is so lacking in obvious governance arrangements and so in need of something against which one could appeal if one was dissatisfied with an outcome.

The two paragraphs—there may be more—of the NRM review that refer to the possibility of a statutory basis do not actually put it out of the question. Paragraph 8.2.14 says that,

“we believe strongly that to put the National Referral Mechanism on a statutory footing now would not guarantee”,

remedying the flawed system. At paragraph 8.3.1, it says:

“Although there is much support for … a statutory footing or providing a right of appeal, these may not be necessary if we have a well governed National Referral Mechanism”.

The prospect is certainly not dismissed by the reviewer.

--- Later in debate ---

[Lord Bates]

I am grateful to the noble Lord for making that suggestion. That is exactly what we will do. I undertake to take it away and reflect on it. If we come back, it will be more along the lines that he is talking about, where we will set out some broad general principles rather than being too prescriptive. The luxury that we have is because when it was set up by the previous Government, it was not set up on a statutory footing—it was not all in the legislation—and therefore we have been able to undertake this quite fast-paced process of review and recommendation, which will enable us to move far more quickly to fixing the system along the lines that we all want to see.

[Baroness Butler-Sloss]

I would just like to pick up what the noble Lord, Lord Warner, said. It seems to me that the Government could put forward a very general proposition in relation to the national referral mechanism or statutory safeguarding organisation without tying themselves to how it would work. That seems to be the way forward because you would then have the power to put in whatever was appropriate after you had had the pilot schemes, which I am delighted to hear the Government are proposing to do. The important thing is for the Government not to tie themselves too much but to be able to come back and produce whatever is needed in any subsequent legislation, into which one could slip in an appropriate amendment. There will be no shortage of that, I suspect, with a future Government. If I may respectfully say so, something needs to be there to enable the Home Secretary of the day to go forward without having to look for some primary legislation.

[Lord Bates]

I accept that. I do not want to yield, as it were, to the position of saying that because we are being pressed by distinguished Members, we should give way on this. I have tried to put forward quite a robust argument as to why we have arrived where we have. We have before us a significant review of the national referral mechanism, which seems to address many of the concerns that people have recognised. That review, which everybody was in favour of and many people were involved in, came out against putting it on a statutory footing. We must take that into account but I give the assurance that, in the spirit that we have tried to keep all the way through this Bill, we will look at that very carefully and continue that discussion between now and Report.

--- Later in debate ---

[Baroness Hanham (Con)]

My Lords, I greatly regret that I have not previously been able to take part in this Committee, having had conflicting commitments, but I very much hope to be able to rectify that on Report. I wanted to be here today for this amendment. What we have heard illustrates quite clearly what a desperate situation this is. In the debate on the previous amendment the Minister referred to “hidden victims”. If ever victims were hidden, it is in this domestic and overseas area. As other noble Lords have said, people do not know that they are there. They do not get out; they have no way of drawing people’s attention to the fact that they are abused. There is clearly so much wrong here that we cannot just ignore it.

As a member of the Joint Committee I should say that the committee was in absolute agreement on practically every part of our report, but this part affected us very deeply indeed. We very much hope that if the Government cannot accept this amendment they will give way to some extent so that we can go back to the situation as it was. As it is now, organisations such as Kalayaan that are involved in helping these victims are working with one hand tied behind their backs. They cannot do anything although they very much want to. I have not put my name to the amendment but I very much support the theory behind it regarding the problems that exist.

I will read a very short part from one of the briefings that we have received. It is from the Immigration Law Practitioners’ Association, and although part of it has been referred to, it is worth repeating. It says:

“The government does not deny that overseas domestic workers need protection”.

Indeed, they do not. It continues:

“But it suggests that this can come from the police—

as has already been mentioned—

“ACAS, the pay and work rights helpline and employment tribunals”.

We are talking about people from poor families in India who, as we know, do not always speak English, so how on earth will they access ACAS? It is way out of the bounds of reality. As for employment tribunals, you can hardly get an employment tribunal if you work in this country, never mind if you come in on a tied visa. The briefing goes on to say:

“It places heavy demands upon a person in a situation of exploitation, enslavement and extreme poverty to reach any of these sources of help, let alone where they do not speak English and are isolated and alone; let alone when they are undocumented, fear removal and are reluctant to jeopardise”,

their income.

I shall refer just to the undocumented aspect. Clearly these people cannot get in without documentation and the appropriate visa. However, we have had plenty of evidence showing that the last time that some of these people see their documentation is when they come into the country. Their passports are whisked away from them as they leave the airport and they never know when they will see them again.

On Second Reading I asked if I could see the card, to which the noble Baroness, Lady Cox, referred, that is given to people who come in as domestic workers. Bear in mind that they may not speak much English and do not always come from articulate families, and that they may not be able to read or write. The card is headed:

“Know your rights when working in the UK”—

a starter for 10. It says:

“Your employer should give you a written contract of your terms and conditions”—

fine. It continues:

“If your employer provides you with accommodation, they are allowed to deduct up to £5.08 per day from your wages. No other deductions can be made by them unless you agree to it in writing first, and even then you should still be paid at least the UK minimum wage”.

It also says:

“You have the right to be safe at work”,

which of course they have. In the next section, “Help and advice”, it says:

“For advice on pay and work rights”,

they should ring a number. Then it states:

“If you are being forced to work or your employer isn’t willing to respect your rights”,

ring another number; and:

“If you are in immediate danger call the emergency services”.

Half these people have had not only their passports but their phones taken away. They have no access to phones. They have no ability to ring any of those numbers.

I do not know the answer to this aspect of the problem. I recognise that this is the Border Force’s way of trying to get some information to people as they come in. I have not made any inquiries about how it is handed out, but if it is just plonked in somebody’s passport—a passport that is then taken away—as they come in, that is of no use whatever. If they do manage to hang on to it, if they need it at some stage, one hopes that somebody will be able to tell them what it means—but that person is not going to be the employer, because that is the person they would be trying to complain against.

I am afraid that I have gone on rather too long about how badly I feel about all this. My question to the Minister is: when these people come in—they come in on specific visas, so they are perfectly identifiable—does the Border Force interview any of them before handing them this leaflet, to try to find out whether they understand what is going on? Otherwise we are doing nothing with the leaflet, other than playing a game by saying, “This is how we are welcoming you, and this is what you should do”, when they do not understand.

I am sure that the Minister will listen carefully to this. The changes made in 2012 have clearly had a very adverse impact. I understand why some of them were made—in immigration legislation, for example—but on the other hand, we are not talking about huge numbers; these are just miserable people.

[Baroness Butler-Sloss]

My Lords, I fully support the amendment—as the Minister knows, because I told him some time ago. I take the view that the recent change in the visa for domestic servants is shocking, because it puts a relatively small number of people into an utterly impossible situation. They can choose either to continue to be a slave, or to be deported. That is just not acceptable.

However, if the Government are not disposed to do anything effective about the visa, they might be interested in some discussions that I have had with the creative and inventive researcher of Frank Field MP. He has come up with an analogy that the Minister might just find interesting. Women who come over here with a marriage visa and become the victims of domestic violence are entitled to what is called a DDV—destitution and domestic violence—concession. This concession allows them three months’ access to public funds while their cases are being sorted out by the Home Office, with a view to deciding whether they will be given the right to remain here, or whether, after those three months, they will have to go back.

I ask the Minister, at the very least, to say whether there is not a very close analogy between such a domestic servant and a woman coming over here with a marriage visa who then has to leave home because of domestic violence. Goodness me, some of the violence that women in domestic servitude suffer is probably worse than the domestic violence suffered by a woman who has come over with a marriage visa. I suggest that three months is too short a period for a victim of slavery, so I ask the Minister to consider the marriage visa and see whether the same conditions could apply, by analogy, to the visa for domestic servants. I ask for six months instead of three months for these women to sort themselves out, and for their cases to be sorted out by the Home Office. If at the end of six months they had to go back, that would be a rather different situation, because they would have had some time at least, with public benefit, to try to see what their future lives might be. The marriage visa analogy may not be as good as some other means, but I urge the Minister at least to look at it as a possible alternative.

[Baroness Lister of Burtersett (Lab)]

My Lords, a powerful case has been made for the amendment, and I simply want to add my support. This is such an important issue, which goes to the heart of what the Bill is about. The Minister, in his letter to Peers after Second Reading, said that he shared noble Lords’ determination to stamp out all forms of modern slavery, including abuse of domestic workers. That is a welcome aspiration, which has been repeated in various forms in various places.

The centrality of this issue to the Bill is underlined by the Joseph Rowntree Foundation. On the basis of studies that it has funded, it writes that,

“there is most risk of forced labour where an individual’s work visa is tied to a particular employer. The most commonly cited example is the situation of overseas domestic workers who, since 2012, are again no longer allowed to change employers within the same category and hence become trapped in abusive situations”.

Evidence of the effects of being so trapped is, as we have heard, provided by organisations such as Kalayaan, which works with overseas domestic workers. I pay tribute to its work. Kalayaan argues that all the available evidence suggests that the change in the visa,

“has facilitated their exploitation and abuse, including trafficking”.

As the noble Baroness, Lady Cox, has said, Kalayaan details numerous ways in which the abuse experienced by overseas domestic workers who register with them has worsened since the change in the rules.

In their response to the Joint Committee on the draft Bill, the Government suggested that the previous rules “potentially encouraged abuse” because they enabled employers to bring domestic workers to this country for longer periods. Do the Government have evidence of such abuse? Or is this a hypothetical potential, which needs to be set against the actual evidence of abuse that has happened since 2012? In that time, as we have heard, abuse and exploitation has got much worse. It should also be set against the fact that the pre-2012 regime was cited by both the ILO and the UN Special Rapporteur on the Human Rights of Migrants as best practice. As the noble Baroness, Lady Cox, has observed, this was one reason why the Joint Committee on Human Rights, of which I am a member, regarded,

“the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers.

We recommended that the Bill should be amended to reinstate the pre-2012 position.

Given the clear evidence of how the removal of that protection has facilitated abuse, given the Government’s own commitment to stamp out abuse of overseas domestic workers, and given that I feel both Ministers are reasonable people, I hope that they will feel able to take this amendment away, think again, and bring forward their own amendment before Report.

--- Later in debate ---

[Baroness Butler-Sloss]

I am grateful to the Minister. If she is open to suggestions, I wonder what she is prepared to say about the analogy with the marriage visa. Would she at least take it away and look at it with a possibility of allowing up to six months of public benefit while they sort themselves and the Home Office sorts them?

[Baroness Garden of Frognal]

I apologise to the noble and learned Baroness. I think she is referring to the domestic violence concession, which is a three-month visa to allow people to come to the UK with an expectation that they will settle here and during those three months they must make an application to settle. That is specifically for those coming here to join family with the expectation of staying. Victims who are helping the police with an investigation already have access to discretionary leave of at least one year and one day, so they have an extended time over here to make their case, if they are already in contact with the police. I think from the suggestions that the noble and learned Baroness was making, they would probably already have had to make clear that they were victims of abuse. That would have become public and they would have found a way of making that known to the authorities.

We are obviously going to come back to this clause to try to set out ways of dealing with this issue. If noble Lords around the Committee who feel as anguished about this as obviously people do have clear suggestions as to how the Government could do more to help the situation so that we do not have anybody in the country who is a victim of abuse and slavery while in domestic employment, then we are more than ready to listen to them. We have already set and strengthened the systems of trying to make contact with the worker at the point of entry. After that, it may be very difficult to make contact with them, but when they are coming in at the point of entry they will have to present a passport and that is a moment when the authorities can make contact with them. We are also seeking to make sure that all employers who come to work in this country are fully aware of the compliance which they should make for the people whom they employ.

For the reasons that I have set out, we think that this clause would not necessarily strengthen the safeguards for the very people whom we are trying to protect. We all have the same aims in mind—to attempt to strengthen the protections for these people. I hope that, with the assurance that we will be addressing this again and discussing it further before Report, the noble Baroness will feel minded to withdraw her amendment.

--- Later in debate ---

Moved by

[Baroness Butler-Sloss]

97: After Clause 50, insert the following new Clause—
“Gangmasters Licensing Authority
The Secretary of State may make regulations to amend the Gangmasters (Licensing) Act 2004 to enlarge the functions, powers and duties of the Gangmasters Licensing Authority set out in section 1 of the 2004 Act.”

[Baroness Butler-Sloss]

My Lords, this is another modest amendment to allow the Government to look at the Gangmasters Licensing Authority at an appropriate time to see whether the functions, powers and duties of the licensing authority should be extended to cover other areas, which are extremely obvious, where it is well known that there is quite a lot of slavery and trafficking.

Two particular areas that I have in mind are the construction industry and the hospitality industry. One area of the hospitality industry is the laundry. Almost every hotel uses outsourcing of its laundry. There are serious concerns as to what goes on in some of the laundries. There is no doubt at all that there are serious concerns about what goes on in the construction business, particularly with people working on sites.

A very obvious example of that was the Connors case in Bedfordshire, where a Gypsy family, the Connors, picked up out-of-work, homeless people from soup kitchens and homeless centres and took them, on the promise of £80 a day, to work on construction sites. These people were kept in appalling accommodation in caravans, first working on construction sites in England, and then a whole lot of them were taken across to Sweden where they were working in the northern part of the country. It was not until a young Swedish boy, who had also been caught like this, walked 500 miles to Stockholm and went to the police, who rushed to the area where these people were locked up—not being paid a single penny, in appalling conditions—that they were identified as slaves and victims, and they did not even know it. However, one of them gave evidence to the informal inquiry led by Frank Field MP, of which Sir John Randall MP and I were members at the request of the Home Secretary. This particular victim gave very clear evidence of what goes on in the construction industry.

I understand entirely the scarcity of resources, so I am not asking the Government to extend the powers of the Gangmasters Licensing Authority. Indeed, Paul Broadbent would be horrified unless he had proper resources to manage what would have to be a larger enterprise if these two areas were taken into account. What I do not want is there to be inability on the part of the Government, when they have the money to extend the Gangmasters Licensing Authority, to find the proper legislative process to be able to do that. To put the matter in current usage, rather than faffing around looking for the right sort of place, if you have the power to do it, you do not have to do it until you can, but the power would be there so that you could do it in subsidiary legislation later. I hope that the Government will listen seriously to what I suggest. I beg to move.

[Baroness Kennedy of Cradley]

My Lords, I have Amendment 97A in this group, but I also support Amendment 97 in the name of the noble and learned Baroness, Lady Butler-Sloss, and Amendment 101A in the name of my noble friend Lord Rosser. Many people welcome the great job done by the GLA. In the sectors for which it is responsible, it has been extremely effective at raising standards and driving out poor performance. Ten years ago, given the context in which the GLA was established, limiting the sectors it covered made sense. But 10 years later the limit on the GLA remit now makes little sense.

Amendment 97A was recommended by the joint scrutiny committee, of which I was a member, to allow the remit of the GLA to be extended. As the noble and learned Baroness, Lady Butler-Sloss, said, many high-risk sectors fall outside the remit of the GLA, such as construction and hospitality—and I would add care and cleaning to that list. These sectors are high risk because they commonly use subcontractors, agencies and migrant labour. The work is seasonal and low paid, and workers often work on site and in isolated conditions. Therefore, these sectors need to be afforded greater attention and the workers need the extra protection given to them by the licensing regime of the GLA.

As I have said, the GLA is widely recognised as being effective and is often cited as an example of best practice. Many people have called for its remit to be extended to such high-risk sectors, which is why the Joint Committee looked at it in some detail and agreed. It would be a mistake not to consider it now or, as the noble and learned Baroness said, in the future, which is why I support Amendments 97 and 101A that allow for that. These amendments also would allow the GLA to be given greater powers. I agree. The GLA would have the power, for example, to enforce payment of unpaid wages and the ability to fine businesses which have deliberately evaded licensing.

The sentencing and penalties faced by unlicensed and exploitative gangmasters also need addressing. Some very ruthless people are getting away with comparatively small fines. In 2013, an unlicensed gangmaster was convicted of exploiting more than 60 Filipino workers on dairy farms in the UK. Despite having made more than £700,000 through exploiting his workers and housing them in appalling conditions, he was given a 12-month suspended sentence and was asked to pay £45,000 in compensation over three years. We must review the sentencing guidelines for GLA offences. We cannot have a situation where cruel gangmasters see fines, in the words of the GLA,

“as a hazard of the job”.

I hope that we can amend this Bill to address these significant issues, as when there is inadequate preventive action, abuse occurs.

--- Later in debate ---

[Baroness Garden of Frognal]

My Lords, that is an excellent idea. We will do that and come back at Report.

[Baroness Butler-Sloss]

I, too, pay tribute to the noble Lord, Lord Whitty. He ought to be proud of his baby, which is very successful. It is doing extremely well and is very well regarded. It has been running for something like 10 years, so when the Minister talks about not acting too quickly, I wonder what period of time we need if 10 years is not seen to be very long.

I am actually asking for something very modest. I understand perfectly well that the wording that I have put forward may not be at all what the Government want. All I am really asking them to do is to lay down a marker for future Governments to have the power to do this. To have a power does not require the Government to take action. There is all too much legislation with all too many enabling clauses which we all know never come to fruition, so it is no skin off the nose of the Government to put something down that enables another Government, by regulation, to put forward extensions to the powers and the remit and the various things that the noble Baroness, Lady Hamwee, has suggested at some future appropriate stage. It might be in five years’ time or even 10 but it will be there and something can be done without the Government having to find a vehicle in primary legislation to achieve it.

--- Later in debate ---

I realise that the last of my amendments is not, in fact, necessary; it is covered by Amendment 97D. Amendment 97C which seeks to change “the Secretary of State” to “a Secretary of State” might seem a little odd—I know that “the Secretary of State” would be the right way to refer to any Secretary of State; you pick which is the appropriate Secretary of State depending on what you are looking at. It brings into the debate, however, not just the responsibility of the Home Office but the responsibilities and interests of the Foreign and Commonwealth Office, BIS and DfID. I could probably go on, but those are the most obvious departments. As I said, in a meeting that obviously is not part of the public record of the Bill, the Minister was able to be very reassuring and give some interesting observations of his own on what goes on in supply chains. I will not steal his thunder by letting on what that experience and piece of work was, but he was very helpful and I hope that he can repeat some of that in public.

[Baroness Butler-Sloss]

My Lords, the Government are to be congratulated on putting Clause 51 down. It is a very important clause and a huge relief to see it here after the Select Committee of which I was a member made considerable noise about it in its report. So it is very good. As the noble Baroness, Lady Hamwee, says, having said something is good, we always want a bit more. I follow on from what she is saying.

The amendments of the noble Baroness, Lady Hamwee, in particular, are those that I would support. There are two points that I am particularly concerned about. Who monitors the statements and to whom will the statements be given? What is being suggested—which might be a good idea—is providing a copy of the slavery and human trafficking statement to anyone who makes a written request for one. However, that requires someone to do it. It may be that in some relatively unknown company—which may not have a very good track record but may not have been exposed—no one would ask. I appreciate that there would be regulations, but my suggestion, as the Minister will remember, was that the commissioner should receive copies of the statement, and that the commissioner should monitor. He seems the most obvious person to do it.

The second point that worries me is the duties imposed. Clause 51(9) says:

“The duties imposed on commercial organisations by this section are enforceable by the Secretary of State bringing civil proceedings in the High Court”.

So far, so good, but what is the purpose of an injunction? Just bring civil proceedings. It should be much broader. Generally, injunctions are to tell people not to do something. There are mandatory injunctions, but they are rather limited in their use. I just do not understand why the only duty imposed on a commercial organisation by the Secretary of State would be an injunction. That ought to be looked at with rather more care, because why on earth can you not impose penalties or seek damages?

There are all these various regulators, both in the United States and the United Kingdom, which regulate banks and organisations and impose enormous fines. Why on earth can the Secretary of State not do that if there is an obvious example of a company that is not only not producing statements, but is not checking whether, right down the line of its supply chain, there is a company supplying it with the goods that it is selling which is acting as a slave owner? A penalty seems the most obvious thing.

I really do think that subsection (9) is utterly inadequate and something in particular that should be looked at. The commissioner should have some powers at least to look at these statements, but the Secretary of State should have much stronger powers to deal with defaulters. I ask the Government to look at this again.

--- Later in debate ---

[Lord Harries of Pentregarth]

My Lords, the Government will be rightly congratulated when the Bill has gone through all its stages, but, as I think we are all aware, that is only the first stage. What really will count will be how effectively they get the legislation implemented. Therefore, I agree with the noble Lord, Lord Alton, and I am very glad to support his amendment. It is crucial that we review the Bill within five years of its passing into law. In many respects the Bill is pioneering new ground. Obviously, it will turn out that some things are perhaps not quite as effective as we hope that they will be, but I regard this review as crucial to the effectiveness of this legislation. The thought of having a review in five years will also help to focus and sharpen people’s minds as they know that things will be assessed.

[Baroness Butler-Sloss]

My Lords, I also support the amendment. I am not sure in what year the review should be held. I think to say “within five years” is sensible, but it might well be wiser to do it within three years. This is such an important Bill. As I have said previously, the Government are to be congratulated on bringing it forward and for doing so much to make it work. Although we on the Cross Benches, like noble Lords on other Benches, have been critical from time to time, we are well aware of the effort that the Government have made. However, it is important to make sure that the Bill works. The strategies of government that are not in the legislative process will have to be reviewed, but in reviewing those it will also be important to see whether the legislation is strong enough and working well enough for it to manage the strategies that go with it. I urge the Minister to support the idea that there should, at some stage, be post-legislative scrutiny of this important Bill.

[Lord Bates]

My Lords, I am grateful to the noble Lord, Lord Alton, for proposing the amendment. The Government are committed to post-legislative scrutiny of legislation under the existing arrangements agreed with Select Committees. The Government believe that post-legislative scrutiny is generally preferable to ad hoc and potentially inconsistent specific statutory requirements in individual Bills. The Political and Constitutional Reform Committee’s report into legislative standards praised the Government’s record on post-legislative scrutiny, saying:

“We urge the Government to continue to produce these useful memoranda. In return, we will undertake, and we take this opportunity to encourage other Select Committees to undertake, more visible post-legislative scrutiny work when opportunities arise”.

Since 2012, the House of Lords has established committees on an ad hoc basis specifically to conduct post-legislative scrutiny. I am sure that the House will consider carefully whether the future Modern Slavery Act would be a good candidate for such scrutiny.

However, I would like to place on record once more the Government’s commitment to providing a post-legislative scrutiny memorandum on the Bill within three to five years of Royal Assent. The Government will consult the Home Affairs Committee on the timing of publication of the memorandum, but that is a commitment. In the longer term, the Independent Anti-slavery Commissioner will continue to assess the response to modern slavery and how it is provided, and if new forms of abuse emerge. In addition to the commitment of a memorandum in three to five years, we will also have the update of the Modern Slavery Strategy, produced by the interdepartmental ministerial group on modern slavery. We will also have the anti-slavery commissioner’s annual report, which I am sure will be awaited with great interest by Members of your Lordships’ House.

There are therefore a number of opportunities for this type of scrutiny to happen. Having taken part in the Leader’s Group, which considered ways to improve the workings of your Lordships’ House and elsewhere, I have to say that one of the joys of this Bill is that it has been a textbook example of how legislation should work: first, producing a Bill, which is scrutinised in pre-legislative scrutiny. The Government then come back with a revised Bill and go through a meaningful stage in another place where amendments are made. The same happens in this place, so it seems to me absolutely logical that we should not leave the job unfinished but follow it through right to the end. That is why we are very much behind this commitment. We will produce the Explanatory Memorandum to ensure that that post-legislative scrutiny does arise.

Given that this may well be the last time that I am on my feet in Committee, I thank your Lordships for the way in which we have engaged in this very tough and passionate four days. It has given a huge amount of work for officials to think about and work on between now and Report. Somebody once said: “To govern is to choose”. There are going to be so many issues that we are going to have to work on that we will have to engage in some prioritisation about what is absolutely critical to get in the Bill before Royal Assent and what work can be continued under the watchful eyes of your Lordships and the Independent Anti-slavery Commissioner thereafter. That work and the meetings will continue and we look forward to making further progress on Report. I thank the noble Lord and ask him to consider withdrawing his amendment.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Monday 8th December 2014 Lords Chamber

I therefore passionately hope that the Minister will take heed of this call from someone who has given his life to freeing tens of thousands of children from slavery and will give a favourable response to these amendments so that they, or similar amendments in his own wording, can be included in this immensely important Bill, which could be a significant weapon in helping to eradicate the barbaric phenomenon of modern slavery from across the face of the earth.

[Baroness Butler-Sloss (CB)]

My Lords, I support Amendment 66, in the name of the noble Lord, Lord Warner, partly because I was a member of the pre-legislative scrutiny committee. The noble Baroness, Lady Cox, is right to say that there should be at least some reference to overseas: we should not be seen as looking at slavery exclusively within the United Kingdom. How far that should go, through high commissions and embassies, is probably a matter for Government to look at, but I think there should be some reference. I shall also speak about Amendments 67ZC and 68ZA, both of which are in my name.

I went to the European Commission anti-slavery trafficking meeting this morning as the first speaker. One of the other speakers, apart from the Minister in the Commons, Karen Bradley, was Kevin Hyland, so I took the opportunity to ask him how he sees his role. He has just sent me a long e-mail, which I shall summarise. He sees himself as exercising a very large degree of freedom. He sees himself as independent. He says that victims are at the forefront of his plans. He is very concerned about wrongful arrest, particularly of children. He is making a survivor of human trafficking one of the panel of the group that he is using. He is recruiting a policy lead externally, by advertisement, with the agreement of the Home Office; so the number 2 will come from outside, with experience of NGOs, experience on the NRM and experience of supporting victims.

The Bishop of Bath is advising Kevin Hyland on the ecumenical response, in relation to all faiths. He has a group of lawyers to look at issues and best practice. He has a group from the NHS working to look at health issues and he has asked business leaders to form another group, all of them being there to advise him. He sees his office as independent. I must say, regardless of what the words are, listening to Kevin Hyland today I was enormously heartened by what he had to say. This does not mean that we should not put the words to the deeds, but we actually have the deeds. I thought that the House would like to know that, and I thought that it was very good news.

I will add a few things to the duties of the commissioner. My Amendment 67ZC deals with the supply chain. It is splendid—the Government are to be congratulated on it; they talk about the necessity for companies to check right down the ladder and to write reports. However, nothing at the moment in that part of the Bill says who should monitor it. My amendment would allow the commissioner to have oversight and a monitoring role. I also suggested, perhaps slightly cheekily, that he should have the power to impose penalties. I am not sure whether the commissioner will have that power, but we have not yet heard from the Government who will impose penalties if companies are not prepared to obey Clause 51.

It is very important that the commissioner should receive copies of the statements required from commercial organisations so that he can check on what is going on. The commissioner seems to be the ideal person to know what commercial organisations are doing on the ground, which their reports will have to state. Of course, if they do not like doing the reports, he could be the person to pick up the phone to say, “Why haven’t you done it?”.

The other point, which is perhaps not of the most immediate importance but which is a crucial part of any commissioner’s job, is the collection of data. It is quite interesting that as far as I can see, so far in this Bill nobody has a duty to collect data. We know that the human trafficking organisation in Birmingham does not consider itself to be the data collection organisation. Now that we have the NRM report from Jeremy Oppenheim, entirely new groups will deal with that, according to the Government, who I believe say that they accept the report on the NRM. However, there will be about eight of those panels, and at the moment there is nothing to show who will collate the data on who the victims are, what is happening to them, where they come from, and so on, and the commissioner is the obvious person to do that. Therefore I would like to see those amendments in the Bill.

[Baroness Royall of Blaisdon (Lab)]

My Lords, I will speak to the amendments in my name and the name of my noble friend Lord Rosser. In doing so, I also warmly welcome the other amendments in this group. We certainly subscribe to the evidence-based views of the Joint Committee on the role of the commissioner, as do other noble Lords who have spoken this afternoon. I also find of great interest the amendments from the noble Baroness, Lady Cox, on the international aspect, and I would certainly like to see that explored further.

The commissioner’s role, set out in Clause 41, is narrowly centred on promoting good practice in law enforcement and the identification of victims, which in practice also involves law enforcement agencies to a large degree. That focus on prosecutions and investigations has been emphasised by the appointment of a police officer as the commissioner-designate. Of course I note what the noble and learned Baroness, Lady Butler-Sloss, said, and warmly welcome that the commissioner-designate is determined to be independent and all the various aspirations that she cited, and that he will take advice from a very wide circle of people. However, it should not be up to the judgment of that one man to decide what his remit is and how he acts. It is extremely important for the future—for future commissioners and Home Secretaries—that the definition that we consider fitting should be in the Bill.

The limited remit of the commissioner reflects the fundamental flaw in the original draft of the Bill, which has been ameliorated to some extent already, although there is further to go: namely, the absence of measures to meet the needs of victims. Our Amendment 67ZAA seeks to widen the remit of what the commissioner must encourage in relation to good practice. The Government have raised concern that there should be no overlap with the work of the Victims’ Commissioner. However, like the noble Lord, Lord Patel, we believe that is not beyond the two commissioners in question—and I am delighted that the noble Baroness is in her place—to set clear protocols to guarantee smooth and constructive working.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, it is entirely understandable that Schedule 3 should be part of the Bill. It is important that the serious offences should not be included in a defence. However, listening to what the noble Baronesses, Lady Kennedy and Lady Hamwee, said, and looking through Schedule 3, it seems to me that a great deal of it is utterly unnecessary. I remember discussing this with the former Attorney-General, Dominic Grieve, at a time when he was eventually agreeing that there should be a defence at all. He said that Schedule 3 would apply and I cheerfully said, “Yes, of course it will apply”, but I did not read all the way through. It was not until this version of the Bill came, with all these exceptions to the defence, that one sees that this really goes beyond what is necessary, as the noble Baroness, Lady Kennedy, has put out extremely effectively. As the noble Baroness, Lady Hamwee, says, that may be a problem.

I would have thought that this was absolutely a situation in which the Government, with the assistance of the Director of Public Prosecutions, could sort the wheat from the chaff. A great deal of these offences are not applicable or appropriate for victims of slavery, although they are entirely appropriate in other areas of criminal law where you should not have a defence on these issues. The Government should look at this and consider whether they want the whole of Schedule 3.

[Lord Rosser]

My Lords, I, too, would like to raise one or two questions about Schedule 3, since my noble friend Lady Kennedy of Cradley has given us the opportunity to consider it.

As I understand it, under Clause 45, a victim is not guilty of an offence only if they have done the act which constitutes the offence because they have been compelled to do that act, the compulsion is attributable to slavery or the relevant exploitation and a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to doing that act. If the victim has managed to meet these requirements, Clause 45(1) still does not apply if the offence committed is listed in Schedule 3, which, as has already been pointed out in another way, extends to six and a half pages of offences. Some are easily understandable for being on that list, such as murder, manslaughter and kidnapping, but others are not so obvious bearing in mind the requirements under Clause 45 that the victim will already have had to meet in order to use Clause 45 as a defence.

In view of that, how does the Minister justify the need for such an extensive list of offences for which a victim can be found guilty even though they have met the three requirements to which I have already referred under Clause 45(1)? How and against what criteria was this list of offences compiled? To look at one example, included in the list is an offence under Section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state, which is an offence one might normally associate with a trafficker rather than the victim. Is there evidence that victims of trafficking are committing this offence of assisting unlawful immigration to a member state unrelated to their being trafficked themselves? If there is, is it also appropriate that they could be found guilty of such an offence, despite meeting the requirements in respect of compulsion and the reasonable person test under Clause 45(1) to show that they cannot be guilty of an offence unless it is listed in Schedule 3?

--- Later in debate ---

[Baroness Garden of Frognal]

No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.

[Baroness Butler-Sloss]

Looking at paragraph 33 of Schedule 3, I think that the last three offences seem improbable for somebody who is compelled to act as a slave: “exposure”, “voyeurism” and “sexual penetration of a corpse”. I do not really see that those three are likely to arise in the circumstances of a victim of slavery.

[Baroness Garden of Frognal]

My Lords, I think, perhaps, that we will need to discuss this further before Report, because, as I said, this list was drawn up in consultation with the DPP and the CPS. I presume there was a reason for putting those particular items there; it is subject to review and the discretion of the people concerned.

--- Later in debate ---

[Baroness Garden of Frognal]

My Lords, I shall speak also to Amendment 102. The Government recognise the importance of providing victims of modern slavery with appropriate protections and support. Currently, victims of trafficking are able to apply for civil legal aid for advice and representation in relation to certain immigration matters and damages and employment claims arising from their trafficking exploitation under paragraph 32 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Following the pre-legislative scrutiny committee’s recommendation that victims of slavery should be provided with enhanced access to legal assistance, the Government committed to extending this provision to cover victims of all forms of modern slavery; that is what these amendments seek to do. I know that there is significant concern across this House that victims should receive appropriate access to legal aid, so I hope that noble Lords will agree that this measure is both necessary and welcome. I beg to move.

[Baroness Butler-Sloss]

I congratulate the Government on that; I think it is splendid.

[Lord Alton of Liverpool]

I add my congratulations to those of my noble and learned friend. The Government have listened to the representations that have been made and their response is to be greatly welcomed.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I have put my name in support of these amendments in the name of the noble Lord, Lord McColl of Dulwich. He and I have battled for three years—he having taken the lead—and this is a great moment. The Government are to be congratulated on Clause 47. They are to be congratulated on going as far as they have, but they have not gone far enough.

One of the most important points made by the noble Lord, Lord McColl, was on the child advocate having an absolutely clear statutory position. I remember discussing this with representatives of Barnardo’s who had had to work from time to time with local authorities on children in whom they had an interest and who found that some local authorities would not help them because they had no statutory power. This is a serious matter. You have to be able to say to a local authority, “You’ve got to give this to me”, and not, “Please would you mind giving it to me?”. It is a crucial distinction. In Clause 47(4), to which the noble Lord referred, the fact that it says:

“The Secretary of State may make regulations about functions”,

and about,

“requiring public authorities to co-operate with, and provide information to, child trafficking advocates”,

is not good enough. The word has to be “must”; “may” will not do.

As the noble Lord, Lord McColl, also pointed out, certain basic things are to be found in our Amendment 86H, the majority of which have to be in primary legislation. However, I can see that much of Amendment 86 could be done by regulation. It seems to me that the Government should go away and have a look at these two amendments. Some provisions could appropriately be made by regulation but the really important ones need to be made in primary legislation to give the child trafficking advocate the jurisdiction, to use a legal word, or actual control over what they wish to do for the child by working with local authorities, the police and other agencies, including the National Health Service. They would need to have the right to require those agencies to provide them with documentation and information about the child who is a trafficked victim. Other than that, each of these agencies may, and probably would, be very difficult about supplying the information. That information is crucial for the advocate, who should be there from the beginning of the identification of the child to the moment when the child is settled. With these amendments tabled by the noble Lord, Lord McColl, three years on from when we started, we have got a long way, but the Government need to listen to see that it is not quite sufficient. We need to give the child trafficking advocate the powers as well as the duties.

My last point is about the power to appoint and instruct legal representatives. It is also absolutely crucial to give that child trafficking advocate the powers that these children—mainly brought over from other countries, although there are also some internal children—actually need from them. For those reasons, I strongly support these amendments. As I say, some provisions could be in regulation but there are basic points that have to be in primary legislation.

[Baroness Lister of Burtersett]

I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.

The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,

“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.

We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.

I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Hylton (CB)]

My Lords, it seems that all three amendments in this group have the potential of being helpful to overseas domestic workers who, I am sorry to say, have been exploited and abused over a very long period of years in this country, with almost total impunity for the wrongdoers. On Monday, the Government helpfully said that they were looking to enhance protection for overseas domestic workers, but I have looked at Clauses 45 to 50 and I can find nothing helpful there. I have also looked at Clause 15, which deals with prevention orders, and there again the procedure has to be through the police. We know perfectly well that many domestic workers do not have access to the police—they cannot get to them. I hope that the Government are able to say something helpful about this group.

[Baroness Butler-Sloss (CB)]

My Lords, I agree in principle with what lies behind the amendments but I would like to take up what the noble and learned Lord, Lord Mackay of Clashfern, has said. I am no civil lawyer but I believe that these are what are called in civil law torts; that is to say, civil offences. There is at least a very real possibility that they are covered by existing civil law. If they are so covered, there is no need for these amendments. I am afraid that I have not done any research on it, as I have not put forward an amendment, but some research needs to be done as to what is already covered before we ask the Government to accept these amendments.

[Baroness Hamwee]

My Lords, if I may respond, the point has been brought to us by several lawyers, both members of the Bar and solicitors, who are concerned that the remedies available are not adequate. The noble Baroness and I ought to ask the two noble and learned Lords if they would like to conduct a seminar before Report for those who have been briefing us.

--- Later in debate ---

We have tabled Amendment 65A because we believe that to accomplish the high aims envisaged for the commissioner, they must also be able to challenge the Government as well as local authorities and law enforcement agencies. It should not be necessary to rely on the personal gravitas, expertise and independent-mindedness of the individual appointed as the commissioner; rather, the commissioner should be equipped with the resources and statutory independent status necessary to play the role of a critical voice both in private and in public.

[Baroness Butler-Sloss]

My Lords, I support the amendment of the noble Lord, Lord Warner. As a member of the commission, I thought originally that the Government putting in the word “independent” was sufficient. I have to say that I have been reflecting on that, though. I have listened to what the noble Lord, Lord Warner, and the noble Baroness, Lady Royall, have said about this, and I have gone back to what was said by our Select Committee. The noble Baroness has set out many of the points that were made under Part 4 of our report, particularly in paragraphs 146 and 147. There was one quotation she did not make, though, which was from the Independent Police Complaints Commission. It stresses the importance to the commissioner’s independence of the freedom to appoint staff, saying:

“The perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner)”—

really a very important part—

“the Anti Slavery Commissioner … will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department”.

In our recommendation, we point out that failing to have sufficient protection for the commissioner’s independence in the long run will undermine the commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups, whose role in combating modern slavery is well recognised.

On Monday I made a point to the Minister about perception and the enormous importance of the Bill being seen as an iconic Bill that will lead not just in this country and Europe but across the world. I do not doubt the integrity of Kevin Hyland and have great respect for him, but the anti-slavery commissioner must have the ability to speak independently and a group of staff on whom he can rely to be responsible to him, rather than to the Home Office. If he does not have that, it will have a real impact, I regret to say, on the ability and willingness of NGOs to want to deal properly with the anti-slavery commissioner. This is a very important point, and the more I have thought about it, particularly listening to the two speeches that the Committee has just heard, the more I think that the Minister should take this matter away and reflect upon it. To have entirely Home Office staff appointed by the Home Office will not look good to NGOs.

[Baroness Hamwee]

I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.

I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.

Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.

--- Later in debate ---

[Baroness Royall of Blaisdon]

It will be for my noble friend to decide whether to withdraw, although I am sure that he will at this stage. I should like to make two points. First, none of the amendments suggests that there should be an open-ended budget and that the commissioner should decide on it. The amendment clearly states that before the beginning of each financial year there should be a specified sum. I would not like anyone, within or without this building, to think that we are being profligate because we absolutely are not. Secondly, the noble Lord did not really address the issue of perception, which is so important. That was the point made by the noble and learned Baroness, Lady Butler-Sloss. Why should this independent commissioner be different in certain respects from independent commissioners in other countries—for example, the Netherlands, where independence works very well and is respected throughout the world? We want to ensure that our commissioner enjoys the same respect.

[Baroness Butler-Sloss]

Before the Minister answers the noble Baroness, I will add what might be a conciliatory note, standing as I do in a different place from the noble Lord. It seems to me that a compromise is quite possible. I can understand restrictions on budget. I can see the need to find accommodation, which I know the Home Office has—but not in 2 Marsham Street. That would be a start. It seems that the staff—I do not know how many they would be—could be partly from the Home Office. However, the person who matters most, the head of the commissioner’s team, should be somebody from outside. That would give the perception that the noble Baroness just mentioned and which I mentioned earlier.

The Minister ought to look at this very carefully. If he will forgive me for saying so, I do not think that his speech dealt with the problems that I raised, which are very real. I listen. I do not have the experience of the noble Lord, Lord Warner, of trying to run a particular inquiry. On the inquiries I have done, I have always taken the staff I have been given. However, when I was President of the Family Division, I was given staff from the Ministry of Justice—it was not called that in those days. I managed to persuade them that I came first. I am not sure that one can necessarily do that, if I may say so, in the Home Office. It is very important that the senior person or people in the staff of the anti-slavery commissioner should be seen, as the anti-slavery commissioner himself will be seen, as independent of the Home Office.

[Baroness Royall of Blaisdon]

My Lords, I meant to mention one more point, which was the one made by the noble and learned Lord, Lord Hope, about the experience that he had setting up the Supreme Court. We probably got it wrong in that instance; we should have had more foresight. We put up our hands if we get things wrong. Now that we have that lesson before us, we should learn from the experience of the Supreme Court and not say, “Oh, well, we’ll see how it goes”. That is a great lesson and we should learn from it.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Monday 1st December 2014 Lords Chamber

[Lord Quirk (CB)]

My Lords, I would like to just draw attention to a very small point in this amendment, which on the whole I fully support. The amendment before us today is an amendment of an amendment in which proposed new subsection (1) ends, “slavery or trafficking”. In the amended amendment that we have in front of us this afternoon, proposed new subsection (2) ends with, “slavery, trafficking, or exploitation”. That is unchanged from the previous one. However, proposed new subsection (1) says, “slavery, trafficking and exploitation”. Surely that is not meant and this proposed new subsection (1) should end with the same wording as subsection (2)?

[Baroness Butler-Sloss (CB)]

My Lords, this is an amendment which I have only just seen since I was out of the country until the early hours of this morning. I think that it is very interesting. This is an iconic Bill which has generated the most enormous amount of interest right across the country and internationally. Everybody, including myself, is being asked to speak on this Bill and it has got to be one of which the Government can be proud. I think that the Government should be proud of having the Bill as it is, but it could be better.

The criticism from NGOs, which may or may not be justified, is that this is a Bill for prosecution and conviction and not one for the welfare of those who are the victims of trafficking and slavery. If the Government accepted this amendment, they would have in the front of the Bill a clause that would put to rest what the NGOs are complaining about.

What worries me about the Bill is the prospect of the press supporting the NGOs when this Bill becomes law and saying that this is not the iconic Bill it is intended to be but is in fact rather a small Bill that deals with rather limited issues. The fact that that is not true does not stop that perception—and, as we all know, we live in a world of perception rather than reality.

This is a very clever amendment, if I may respectfully say so to the noble Lord, Lord Rosser, and the Government should look at it with enormous care and consider having it, or something like it, at the beginning of the Bill, while taking into account all the points that the noble Baroness, Lady Hamwee, made about it. I think that she is being somewhat overworried. Speaking as a former judge, nobody in the Family Division, the county court which tries the family cases, or the magistrates in the family proceedings court have the slightest difficulty in understanding what is meant by “best interests”. I would be astonished if those judges referred to in subsection (1) of the proposed new clause would have any difficulty in understanding that. Inevitably these would be seen as vulnerable adults, and “best interests” applies as much to vulnerable adults as it does to children.

The only point I will make, to take up what the noble Lord just said about the contrasts between subsections (1) of Amendment 1A and Amendment 1, where you have “and” in one and “or” in another, is that that is untidy. However, I am also concerned, as I said at Second Reading, about the word “exploitation”. If we are to have that word, it needs to be adjusted to a reference to whichever of the subsequent clauses deals with the definition of exploitation.

On the subject of those rather technical matters, this is a very interesting idea, and I urge the Government to look at it with great care. If they put something like this in, it would lay to rest the criticisms that the NGOs and then the press will make, which will have a devastating effect on what is a very good Bill. It would be very clever to put it in.

[The Lord Bishop of Derby]

My Lords, I echo what the noble and learned Baroness, Lady Butler-Sloss, said, and I welcome and endorse the Minister’s commitment to making this a victim-centred Bill. The key thing for me in this proposed amendment is the phrase “personal circumstances”. One of the facts that have come home to me very clearly in my work with victims and those who work with them is that this is not just about the terrible circumstances that somebody finds themselves in because they have been trafficked or enslaved. A very high proportion of those people start off, before they are ever enslaved, as vulnerable people—they have mental health problems, or are homeless, or have low self-esteem—who very easily get drawn into being dominated, trafficked and exploited. What is challenging, and what we should take seriously in the proposed new clause, is for the Bill to draw attention to the personal circumstances of each victim or survivor. In almost any case these people will be vulnerable and will need to be treated as we treat others, with our development of a safeguarding framework and proper procedures to care for those who need safeguarding.

--- Later in debate ---

[Lord Mackay of Clashfern]

I would very much like to see a good clause that envisaged the sort of considerations that the noble Lord, Lord Rosser, has mentioned. However, there are quite fundamental difficulties, notably what the noble and right reverend Lord, Lord Harries, said about the best interests of the victim, for example, on the question of which witnesses are brought or, indeed, on whether a prosecution is brought at all. I am not sure how far these two should be interrelated. This is a difficult issue and merits a good deal of consideration on how it is done. If the victim has a family in some country where the traffickers have power, it might be in the best interests of the victim for there to be no prosecution at all, for reasons of possible ramifications for the family. On the other hand, we do not want a position whereby it is possible, in some way, for people to prevent a prosecution by threatening the families of victims. That is the kind of difficult issue to be faced in relation to a clause of this sort.

[Baroness Butler-Sloss]

Following on from what the noble and learned Lord, Lord Mackay, said, might it be sensible to look at a further amendment on Report that does not involve the various issues pointed out by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Quirk? Could there be a short general clause about the purpose of the Bill being to look after the best interests of victims? The Minister has said that the best interests of the victims come into each of the clauses, but a very short clause of two sentences might perhaps set out the primary purpose of the Bill. Indeed, the Home Secretary has mentioned the victim focus in her introduction. I wonder whether that might be a way out of all the points we have been making.

[Lord Rosser]

I am more than happy to consider that. I think I have made clear that I am not going to any barricades over the wording of the amendment. It is more about trying to achieve an objective that, in my view and that of many others, improves the Bill for victims. I take on board the point made by the noble and learned Baroness, Lady Butler-Sloss. Would the Minister be prepared to have discussions which include all those who have spoken in this debate—if they wish to take part—on getting some wording into the Bill that might satisfy the Government as well as the other parties? I realise that the Government have their interests and reasons for taking the stance that they have, but the objective of us all is to improve a Bill which we all support and which we are not voting against.

--- Later in debate ---

[Lord McColl of Dulwich (Con)]

My Lords, I welcome government Amendment 7, which provides clarity about the role of consent in the understanding of whether a person has been trafficked or not. I had the privilege to sit on the Joint Committee for the pre-legislative scrutiny process. During our hearings we received a good deal of evidence that the issue of consent in relation to the offences of slavery, forced labour and servitude in Clause 1 is rather problematic. The barrister Riel Karmy-Jones, who has extensive experience of prosecuting such cases for the CPS, told our committee:

“I think consent is an issue for clause 1 as well, because you do have people occasionally who are brought up in a position of servitude and know nothing else, and so effectively could be seen to be consenting to their condition”.

Another barrister, Peter Carter QC, who acted as special adviser to our committee, also raised concerns that consent was what he termed a “live issue” in Clause 1 by virtue of subsections (2) and (3), and especially in relation to children.

The reason that the issue of consent is problematic is because where a victim of slavery, forced labour or servitude appears to consent to their situation, perhaps by not running away, or where they are not physically restrained, police officers may incorrectly presume that such cases are not truly cases of forced labour, slavery or servitude. Some charities that work with victims have told me that misunderstandings and presumptions about what constitutes forced labour can mean that cases do not receive the serious treatment that they should. The charity Hope for Justice has told me that it commonly comes across a misunderstanding among police officers that,

“victims have to be locked up in order to be considered as being in forced labour”.

The issue of consent is not only a problem in relation to police investigations but can be used also by defence counsel to raise doubts in the minds of juries. Amendment 7 will make it clear for police officers, courts, lawyers and jurors that slavery, servitude and forced labour are complex situations, and that numerous factors can lead a person to consent to exploitation without necessarily meaning that the exploitation is not taking place. Those psychological barriers can be much stronger than any physical restraints, such as a locked door.

Threats to the individual victim or a family member can deter people from trying to escape, even if they have the opportunity. Fear of the authorities, of prison or of deportation—encouraged by those who exploit them—can prevent a victim seeking help. Debt bondage can cause a person to continue in a situation of forced labour or servitude without any restrictions on their freedom. Even where that debt is created by deception or fraud, a victim can be so desperate to pay back the money that they have been told they owe that they will consent to servitude or slavery. For other victims, their dependency on their exploiters, perhaps for shelter or food, however inadequate those might be, leaves them at risk and certainly in fear of facing greater destitution if they try to escape.

I welcome this amendment from the Minister, which will make it clear in the Bill that such consent need not necessarily preclude a finding on the basis of other evidence that a person has been held in slavery or servitude or required to perform forced labour. Doing so will make understanding the offence simpler for police officers and jurors and, as a result, aid successful prosecutions, which we all hope the Bill will help to promote.

I note, however, that Amendment 7 refers to the person’s consent to,

“any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour”.

Might the Minister consider a similar amendment to the Clause 2 offence, which presently addresses consent only in relation to a person’s travel and not the exploitation that they are put through?

[Baroness Butler-Sloss]

My Lords, I support Amendments 4, 7 and 101, which are government amendments. I am very happy to see Amendment 7 at the bottom of Clause 1, as it seems to make entirely clear the situation of consent in relation to children as well as to adults. I am also very pleased that under Amendments 4 and 101 it is made clear what a child is; that is, someone under the age of 18. That is a very useful bit of interpretation, so I strongly support the amendments. I think that I prefer Amendment 7 to Amendment 8, because Amendment 7 sets it out in rather more detail and therefore is preferable.

[Baroness Young of Hornsey (CB)]

I shall speak to Amendment 100, which is also in the name of the noble Baroness, Lady Hamwee. As both she and the noble Baroness, Lady Royall, were speaking, it struck me that this is something to do with the inadequacy of language, which may be stopping us getting across what we mean in that amendment. When we refer to exploitation it is about this idea of the continuum so, for me, the key phrase is in subsection (1)(c) of its proposed new clause. It says,

“and in particular whether there should be an offence of exploitation which does not amount to slavery, servitude or forced or compulsory labour within section 1”.

Although I hesitate to use such a term, we have really been talking about slightly lower level criminal offences. Organisations such as FLEX, which the noble Baroness mentioned, say that those offences tend to slip through the gaps a bit because they are seen as being not quite serious enough to go the whole way with the kind of sentences that are being proposed, and so on. That is really where the amendment sits.

I take the point about the one year. That is fair enough, were we to institute the proposed new clause, although it is obviously a probing amendment. There is a specific set of problems around the continuum of the seriousness of offences. I am not aware whether evidence exists about the extent to which persistent perpetrators of the offences we are talking about then escalate their criminality into much more serious offences; it would be useful to know whether it does. If so, it would be worth concentrating some effort on trying to root out these slightly lower level crimes. I support the amendment mainly to get some response from the Government, so as to get a sense of where they think some of these other types of offences might sit in relation to the Bill as a whole.

--- Later in debate ---

[Lord Patel (CB)]

My Lords, I rise briefly to support the amendment of the noble Baroness, Lady Doocey, to which I have put my name. The reason why I strongly support it has been given by some of the noble Lords who have already spoken. We have evidence that the current levels of prosecution for trafficking children are woefully low. In fact, they are negligible. The Minister might correct me by giving me the exact number of prosecutions.

We also know that children face many different kinds of abuse and exploitation at the hands of traffickers, and that they represent a quarter of all known victims of modern slavery. The government amendment to Clause 2 is limited to consent to travel, which is not part of the international definition of trafficking. It is the exploitation itself to which the child cannot consent, not the level of travel. I am concerned that this will serve only to create further confusion over what ought to be a simple definition of child trafficking.

The noble Baroness, Lady Doocey, referred to the evidence in the Rotherham cases, among others, and demonstrated practitioners’ continued confusion over the consent of child victims of exploitation and society’s failure to prosecute those who abuse children. A child exploitation offence would contain a simple definition of child exploitation that includes the range of exploitation that children face. Some of it has already been mentioned by the noble Baroness, Lady Kennedy. A separate offence of child exploitation would help to bring abuses to prosecution and conviction. Therefore, I support the amendment. However, I intend to listen to the other arguments, particularly those of the noble and learned Baroness, Lady Butler-Sloss, who is about to speak, who may have a different opinion.

[Baroness Butler-Sloss]

My Lords, I would like to inject a cautionary note to this debate. Like everyone else in this House, I clearly support the concept that children should not be held in slavery, forced into labour or any other of the ways in which they may be either trafficked, using the English definition of trafficking and not, as has just been said, the European definition of trafficking, which does not require movement.

However, I am not satisfied that any of these amendments is necessary. The two illustrations given by the noble Baroness, Lady Doocey, were, of course, under the old law. In my view, government Amendments 4 and 7, already approved by this Committee, and government Amendment 13, which I would be astonished if the Committee did not approve, already carry Clauses 1 and 2 along the road to including children with adults—none of whom require consent. The idea that the standard for children should be different from that for adults is, if I may respectfully say so, wrong. Neither children nor adults who are enslaved or held in compulsory labour or servitude are required to consent. The government amendment to that effect has already been passed. Children and adults are in the same position.

We should also bear in mind the fact that the sentence for traffickers and those who enslave is already up to life, so there will not necessarily be a longer sentence because children are involved. The judge will have the opportunity to say, “This is a sentence for life”. He or she can say, because an adult is involved and the circumstances are not so serious, “I will give 14 years”, or, because a child is involved, “I will give life”. So there is no need for a different provision for children.

There are dangers with the word “exploitation”, which—despite the admirable subsection (4) of the proposed new clause—is capable of being taken too broadly. What the cases we have heard about, both at Second Reading and today, show is an appalling lack of good practice—and what we need to do is improve the practice of dealing with children. That requires training but it does not require extra legislation. To add that to what is already in Clauses 1 and 2 would be repetitive. I believe that the Government have gone far enough, with the amendments that they have tabled, to cover all sorts of slavery and exploitation that happens to children as well as adults.

[Lord James of Blackheath (Con)]

I shall speak to Amendment 29. First, I should declare my interests. I am the son of a couple who met as children in an orphanage, and my father was put to work as an unpaid kitchen boy for 11 years at Quaglino’s nightclub in London, in return for the orphanage being paid £1 a month for his services. That seems to me to fulfil a pretty good definition of slavery. But if he was standing here instead of me, he would say, “No, it was the best thing that ever happened to me—because I got fed better there, in the restaurant, than I did in the orphanage”. But it was slavery, and that sort of thing does not get a reference anywhere, because we are talking so much about sexual and perversion issues, not about that simple level of labour. But it was so, and it was wrong. I am assuming that we are safe in thinking nothing like that could happen today, so we do not need to cover it—but I do not think that it should pass without at least a thought and recognition, in memory of my father.

Secondly, I want to explain why Amendment 29 is here at all. It is outrageous that any Government should introduce a Bill that criminalises a whole sector of wrongdoers, while not accepting that the same strictures should apply to themselves and their own performance and behaviour. People would respond to that idea by saying, “But the Government don’t traffick children”. In fact, we have been serial offenders for the past 233 years. The first instance occurred in 1678 when, at the request of the Quaker colony in Maryland, we sent 82 children taken directly off the streets of Shoreditch as a gift to the colony, which had lost all its children in a raid by the Native American Indians. This consignment was put together by the mayor and aldermen of London, and shipped out from Rotherhithe. The instructions to the captain of the boat were that he had to bring back a cargo of tobacco to pay for the whole expedition; they were not doing it for free.

In the late 1780s, with the threat of Napoleon coming up, we moved to a position of systematic, government-sponsored trafficking of children to America on the grounds that, “If we are to be overrun by Napoleon, let’s send our children abroad”; and we did, in their thousands. Later, in the 19th century, we have the extraordinary episode of no less a person than Dr Thomas Barnardo, who enjoys near saintly status in this country, taking steps to ascertain how many children each of the Australian states would like if he could provide them. And provide them he did, in their thousands. It is hard to see where he got them from, but I suspect they were the overspill from his own institutional orphanages—in which case that was slavery to make space for more orphans, I suppose. But it was wrong and it was done without any authorisation.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Monday 1st December 2014 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.

However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.

Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.

The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.

I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.

I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.

I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.

I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.

[Baroness Butler-Sloss (CB)]

The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.

We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Monday 1st December 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, our amendment is not as precise in the changes it proposes as the amendment moved by the noble Lord, Lord McColl of Dulwich. Our amendment provides for the Secretary of State to,

“undertake a review of the links between prostitution and human trafficking and sexual exploitation in England and Wales”,

and sets out the issues that must be considered in that review; namely,

“the extent to which the current legislation governing prostitution in England and Wales acts as an effective deterrent to demand for sexual services from exploited persons … the extent to which the current legislation governing prostitution in England and Wales enables effective enforcement action against those trafficking people for sexual exploitation; and … the extent to which alternative legal frameworks for governing prostitution adopted by other countries within the European Union, including Northern Ireland, have been effective at reducing sexual exploitation and the number of people trafficked for the purpose of sexual exploitation”.

Delving into the world of buying and selling sex reveals a complex web of abuse, control, money and power. Last year the Home Office estimated that the trade in the human trafficking of women to be sexually exploited in the United Kingdom was worth at least £130 million. One example was of a woman who came to our country from Uganda to get away from her abusive husband. She was told by a friend that he could find her a job in a catering company. When she arrived, however, she was driven to a house in Manchester, locked in a room, raped, beaten and forced into prostitution. After a few months, she managed to escape.

It has been estimated by the Home Office that 80,000 people in the UK, mainly women and girls, are involved in prostitution. The reality is that there are thousands of women in our country who are living in sexual slavery. They get there by different routes—pimped by people they know or trafficked by organised gangs—and many are extremely vulnerable, having been abused in the past. As the noble Lord, Lord McColl of Dulwich, said, a report published last summer by the Serious Organised Crime Agency showed that sexual exploitation was the most likely type of exploitation for people trafficked into England and Wales. There is growing evidence that many of those in prostitution began to be involved in this work before they were 18 and Home Office research has revealed that approximately 50% of women in prostitution became involved before reaching that age.

The physical and psychological consequences for those exploited through prostitution can be severe. The Journal of Trauma Practice found that once they have become embroiled in the trade, nine out of 10 women report wanting to exit but feel unable to so do. They do not know where to get support or do not believe that other work is available to them. The Home Office’s own figures suggest that more than half of the women involved in prostitution have been victims of rape or sexual assault.

We need to look at how countries elsewhere may have reformed their laws to protect women, developed effective exit strategies, reduced the number of people trafficked for sexual exploitation, reduced violence and reduced the market for buying sex, which traffickers and pimps exploit and from which they profit, as we know. That is why we have put forward this amendment to require the Government to carry out a detailed review, with the ultimate objective of seeking measures to keep more women safe.

Of course, we should not make changes without fully understanding the impact they might have. There are differing views on possible courses of action, as I am sure the noble Lord, Lord Browne of Belmont, would accept. We need to be sure that any changes will not push women into even more vulnerable and dangerous situations, and we need to consult and seek a wide range of views. However, we surely cannot continue as we are. This amendment, with the provision for a review of the links between prostitution, human trafficking and sexual exploitation, seeks to provide a considered and appropriate way forward. I hope it will find favour with the Government.

[Baroness Butler-Sloss (CB)]

My Lords, I waited until I had heard the noble Lord, Lord Rosser, before expressing any views on these amendments. I entirely understand the admirable motivation behind the proposal made by the noble Lord, Lord McColl, but one has to bear in mind that prostitution is one of the oldest trades over hundreds of years, if not thousands.

Something somewhat similar was proposed in the other place by Fiona Mactaggart MP. I certainly received a large number of e-mails about it from the various associations of women prostitutes. They were very much opposed to the sort of legislation which has now come before this House, although I understand that it is not exactly the same as that which was proposed by Fiona Mactaggart. Having said that, there is undoubtedly a real problem, because some of those who are prostitutes are certainly trafficked.

I recall going to a small town in Holland where, as noble Lords will know, prostitution is legal. I saw women sitting in the windows in what was quite a small town. The curtains were open if they were not working, and they were all on their mobiles talking to the pimps. There is no doubt at all, from what the local mayor told me when he took me round, that he knew that a large proportion of these women were actually trafficked, although they could not tell him that and they were all registered for business purposes, if you can believe that. He arranged for his staff to ask them whether they had come as victims of trafficking, but none of them would say so because they could not afford to do so.

There is a very major problem in this country, as well as in Holland and in other countries. I strongly support the amendment tabled in the name of the noble Lord, Lord Rosser. The time has come to look at prostitution right across the board, but particularly at its impact on women who come into this country—or are already in this country—who are in fact the victims of slavery, and who are not doing this work voluntarily.

[Baroness Garden of Frognal (LD)]

My Lords, I am most grateful to noble Lords for speaking so eloquently to Amendments 31 and 31A. I am grateful to my noble friend Lord McColl, who has given us the chance to look at this difficult and controversial issue of prostitution law. He highlighted the difficulties of exploitation and, indeed, the work of the APPG. Prostitution raises strong moral and ethical questions, but the Government’s overriding priority in this context is the safety of people involved in it. Existing legislation regarding buying and selling sex is already focused on minimising the harm and exploitation that can be associated with prostitution. Of course, not everyone involved in prostitution has made an independent and free choice to do so. We need the law to protect the vulnerable and punish the perpetrator, but when considering these amendments, we must consider carefully whether we are confident that they support the safety of the people involved in prostitution.

My noble friend set out the approach of Sweden and some neighbouring countries, often referred to as the “Nordic model”, which his amendments seek to emulate. We are also aware of recent legislative developments in Northern Ireland, alluded to by the noble Lord, Lord Browne. We are mindful of the reservations expressed by the Northern Ireland Minister of Justice about the value and effectiveness of this approach. This is of course a devolved matter, so it is for the Northern Ireland Assembly to take the approach that it feels is most appropriate for it, but we know that the Northern Irish Minister of Justice opposed the adoption of the Nordic model for the same reasons that the coalition Government oppose it: it is far from clear that the change would make a vulnerable group safer and may do the opposite. We certainly would not seek to create any unintended consequences that made life more difficult for the people involved in this difficult area. As the noble and learned Baroness, Lady Butler-Sloss, has indicated, submissions received from organisations such as Women Against Rape and the English Collective of Prostitutes have shown that such an approach can encourage the sellers and buyers of sex to operate further out of sight, exposing them to a greater risk of violence.

At this stage, we do not believe that there is sufficient evidence of the value of such significant changes to the legal and moral position of buying sexual services in reducing harm to those involved. We can well understand the principles behind my noble friend’s proposed amendments to the criminal law on prostitution. We have heard from around the Committee strong opposition to all violence against women and a common desire to protect them. However, as regards prostitution, it is important to reflect that there is an alternative view, as expressed by a variety of organisations that represent people involved in it. This challenges the position that all paying for sex is by definition violence. Before legislating, we should have a full debate on these important moral issues, as a number of noble Lords have indicated.

On exiting prostitution, raised by the noble Lords, Lord Hylton and Lord Rosser, the amendment also sets out a requirement to publish an annual strategy for assistance and support to those who wish to leave prostitution and it is absolutely right that they should be supported in doing so. The Policing and Crime Act 2009 took steps to improve the safety and support available for individuals involved in prostitution through the introduction of Section 17 engagement and support orders. That legislation provides the courts with an alternative to fining those convicted of loitering and soliciting: a requirement to attend meetings with a court-appointed supervisor. Engagement and support orders came into force on 1 April 2010. This is deemed to be an effective tool in providing support and access to services that might otherwise be out of reach, including medical care, housing and drug/alcohol dependency programmes. The right reverend Prelate mentioned the connections with other forms of drug and alcohol dependency. This is considered to be a more constructive long-term approach.

Such an approach is fundamental to our focus on minimising the harm that can be associated with prostitution. As such, it is part of our broader approach to violence against women and girls—an action plan that is kept under constant review. We support emphasis being put on supporting those who wish to exit prostitution, but legislation is not necessary to achieve this worthy aim.

Amendment 31A would place an obligation on the Government formally to review any links between prostitution and human trafficking and exploitation, including the legal frameworks around prostitution both here and overseas. Contributions to this debate have emphasised the importance of evidence and consultation. Legislation on this difficult and sensitive topic needs to be approached judiciously to ensure that our shared aim, harm reduction, is being served.

The coalition Government are committed to tackling all forms of violence against women and girls, and are pursuing a range of measures to improve protection, reporting, and prosecution. Our progress is constantly reviewed via the cross-government action plan on violence against women and girls. We are in regular dialogue with the relevant policing leads and the Crown Prosecution Service to ensure that legislation and its enforcement remain as effective as possible.

--- Later in debate ---

[Lord Warner (Lab)]

My Lords, if I may, for the convenience of the Committee, I will group my Amendment 33 with Amendment 32 as my amendment is meant to help fill the pot that the noble Lord, Lord Alton, wants to distribute. I am sorry that I did not group it at an earlier stage.

My amendment is much less ambitious than the noble Lord’s amendment. It follows on from an amendment that my noble friend Lady Smith moved to the Serious Crime Bill. I was a member of the Joint Committee on the draft Modern Slavery Bill. We were concerned to maximise the confiscation of resources from perpetrators of slavery that could go to help victims much more than had happened in the past. Indeed, the confiscation of criminal assets under SOCA had not been one of the most glorious bits of public administration in this country, as I think was recognised by the Government following a PAC report. Therefore, we need to strengthen this.

I am the first to recognise that the Government went some way towards meeting the recommendations from the Joint Committee in this area and I am very grateful to the Government for moving some way. For example, I am glad that the Government have reduced the legislative requirement for a restraint order from reasonable cause to believe to reasonable suspicion. However, I remain concerned that they have not gone further and accepted the committee’s recommendation to remove the test that there must be a risk of dissipation of assets before action is taken by the prosecutor. Frankly, the advice that the Home Secretary seems to have been getting on this issue is a bit fanciful. The characters we are talking about in this area have a track record of dissipating assets. They move very quickly when it is known that they are going to be charged and prosecuted. I think that hanging on to the idea that they need to be protected from gung-ho prosecutors by actually keeping the intention that they have to show that they will dissipate their assets is rather fanciful. The Government need to look again at that area.

I will not spend very long at this late hour talking about the areas where the Government said they were going to look further at two or three of the other recommendations in paragraph 210 on page 97 of the Joint Committee’s report. Rather than detain the House now, perhaps the Minister could write to us about how things have progressed in those areas that the Government were reviewing further.

What I want to do on this amendment is to persuade the Government that it would be useful to have a consultation to look further at strengthening the arrangements around this very technical area. I understand the difficulties of actually finding technical solutions and I am not someone who is going to try to move complicated technical amendments to the Bill at this late stage in its passage. However, I think the Government need to have another look at this so we can maximise the confiscation of assets to produce the kind of fund that the noble Lord, Lord Alton, is talking about. It is no good having a grand scheme for distribution if there is nothing in the pot to distribute. We have to work a lot harder. The kind of consultation that we are proposing in this amendment is meant to be helpful to the Government so that we can move on and strengthen this area of confiscation to the maximum advantage of victims.

[Baroness Butler-Sloss]

My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.

Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.

[Baroness Hamwee (LD)]

My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.

As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.

I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.

On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.

--- Later in debate ---

[Lord Bates]

The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.

The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.

I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.

I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.

[Baroness Butler-Sloss]

Before the noble Lord sits down, I do not want to waste time, and I understand the point that the Minister is making about not alerting a potential trafficker so that he might skip the country, but what you can do, for instance, is get a without notice order in the civil court to freeze the assets and then arrest immediately afterwards. You do not have to alert the trafficker in order to freeze the assets. However, I am not sure that the powers for freezing assets would include people who are traffickers. That is the point that I want to put to the Minister.

[Lord Alton of Liverpool]

Before the Minister sits down, is he going to reply to my noble and learned friend first, or may I also put a point to him?

Modern Slavery Bill

Baroness Butler-Sloss Excerpts

Monday 17th November 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, I declare an interest as co-chairman of the All-Party Parliamentary Group on Human Trafficking and Modern-Day Slavery, and as a trustee of the Human Trafficking Foundation.

I do not want to weary the House but I might add to what the Minister has said about slavery. Approximately 29.8 million people—men, women and children—are trafficked and enslaved across the world, more than the entire transatlantic trade 200 years ago. Slavery and trafficking is the second most valuable illegal business in the world, at least $150 billon a year, which includes prostitution, forced labour, domestic servitude, begging, thieving, debt bondage and benefit claims. So far, as noble Lords have already heard, very few traffickers and slave owners have been convicted of these crimes, which is why the Bill is now before the House. In my view, its Second Reading is a historic and exciting moment. The Prime Minister and the Home Secretary are to be congratulated on bringing it forward, and I am aware that both of them are passionate about it.

The background is that in October 2013, the Home Secretary asked Frank Field MP to set up an informal inquiry as a prelude to drafting the first draft of the Modern Slavery Bill. He, John Randall MP and I heard evidence and provided a report. That report and the evidence were incorporated into the evidence of the Select Committee of both Houses, of which Frank Field was chairman and I was a member. We had a lot more evidence, and in our report we bravely, or rashly, drafted our own version of the Bill. Not surprisingly, the Government version did not adopt all our suggestions, but there have been further discussions and more changes made in the other place.

Where have we got to? In my view this is a good Bill, but, of course, in several ways it could be improved. I feel that this Bill is the start of a process, and as we see how it works, we can in the future press for improvements. I therefore suggest that we should not be too ambitious with this Bill. I should like to make a few comments about the contents, but inevitably more issues will arise in Committee, many of which the noble Lord, Lord Tunnicliffe, has already referred to.

It is good to have all the major offences under one umbrella, but I am not entirely happy with the wording in Part 1. There is considerable momentum to include in Part 1 a clause defining child exploitation as a separate set of offences. This, in principle, may seem appropriate but there are certain difficulties which need to be overcome. Proof of the age of a young person under 18 in the criminal courts can be a long, drawn-out and possibly distracting exercise. One needs to bear in mind that the sentence in the Bill for the most serious offences against adults is life imprisonment. You cannot get more than life. There is the possibility that it may make prosecutions more difficult and consequently reduce the protection of child victims. The Home Secretary at Third Reading in the other place spoke of unintended consequences. I am a bit concerned that the offence of child exploitation without some restrictions on its interpretation is too wide.

I am, therefore, now somewhat ambivalent about whether a clause especially for children is really necessary or appropriate. The issue of consent does not arise in Clauses 1 and 2 for adults as I read them. I sought the assistance of a number of former Supreme Court judges who have taken the same view. However, there is strong support for a child clause, and I was strongly in support of it myself at one stage. I am not actually opposed—as I say, I am ambivalent—so I look forward to future more careful consideration in Committee.

As has been said, the sentences for slavery and trafficking in the Bill are increased to life. It will therefore be important for the judiciary in the Crown Court to have some sentencing guidelines. In a recent case in Sussex, a sentence of four years, reduced to two and a half, on a trafficker of 70 women appears to be on the low side. So far, the Proceeds of Crime Act has been less than effective in this area of criminal law. I hope that the changes in the Bill will make a difference and that the assets of alleged traffickers will be frozen at an early stage of the investigation. Equally, reparation for victims is an important part of doing justice to the victims.

It is excellent that the post of commissioner is in the Bill. The word “independent” has just been inserted into the title of the appointment clause. There is a strongly held view, set out already by the noble Lord, Lord Tunnicliffe, that this word alone will not make him sufficiently independent and that his duties should be more directed towards the protection of victims. I think that we should wait to see how the first commissioner, just appointed, carries out his duties. Kevin Hyland, who I have the good fortune to know, is an excellent choice. We shall have to see whether he will find himself constrained or others will find his duties are too narrowly expressed. If that proves to be so we can press for changes in future legislation.

There is a pilot scheme for child advocates with a statutory requirement to act in the child’s best interests, an issue close to the hearts of the noble Lord, Lord McColl, and myself, and the important requirement to report on the pilot to Parliament. I naturally hope that this will form part of future legislation.

Clauses for protection of victims include a partial defence of victims against prosecution, and I agree that there must be exceptions as set out in Schedule 3. We need to see how the defences work out, and whether any of the exceptions prove to be unfair to a victim. If they prove to be unfair, and the victim faces prosecution when the offence was directly the result of slavery, this will need to be revisited. Again, however, it is hugely to the credit of the Government that they have accepted the need for that degree of protection of victims.

There are special measures to help witnesses in criminal proceedings, which is a most important aid to getting victims to give evidence. Very much to the credit of the Government, who have listened to advice, is the requirement for companies to investigate their supply chains, but I find the wording of the supply chain clauses somewhat overelaborate. Two excellent reports have been published on the national referral mechanism which propose the improvement of the system for identifying victims. I hope that those recommendations will be taken up and put into effect. I would like to see in the Bill an enabling clause that gives the power to the Home Secretary to put the NRM on a statutory basis without requiring any further primary legislation.

I turn very briefly to the support for victims, most of which is not appropriate for primary legislation but which is the most important part of the battle against traffickers and slave owners. There are two reasons, one moral and one practical, why this country should put in place adequate and continuing support towards those identified as needing that help. The moral reason is obvious: we have a duty to look after those men, women and children who have been brought into this country to be slaves, and those within the UK who are also enslaved. Indeed, the girls in Rotherham were slaves. The practical reason underpins the main purpose of the Bill, which is that the Government naturally want to improve the number of successful prosecutions. To a very great extent that depends on victims being prepared to give evidence.

In this country we comply with the Palermo agreement, the Council of Europe convention and the EU directive by offering accommodation and support for those going through the identification process. The UK offers 45 days—more than the minimum requirement of 30 days—and for some people a longer period. However, prosecutions may take over a year to be heard in the Crown Courts. So far, many if not most victims who would be witnesses are not given sufficient help after 45 days by way of accommodation, financial support and many other much needed services such as counselling and access to mental health help, which are so badly needed by many utterly traumatised people. After 45 days many go missing, some are retrafficked and some are living on the streets. Read the excellent final report of Jeremy Oppenheim on the NRM. He sets out the plight of those people in clear terms and describes our manifest failure to give sufficient help in all sorts of ways which I do not have time to set out today—and I apologise for going a minute over. The USA and Taiwan have statutory requirements which would be well worth considering. The way in which the strategy policy of the Government and local governments is implemented will define and judge the United Kingdom as a caring or non-caring country and will have a marked effect on whether we achieve the level of successful prosecutions that the Government are seeking to achieve by introducing the Bill.

Serious Crime Bill [HL]

Baroness Butler-Sloss Excerpts

Wednesday 5th November 2014 Lords Chamber

[Baroness Howarth of Breckland (CB)]

My Lords, I rise briefly to support the amendment of the noble Lord, Lord Harris. I will not go through all the arguments that have been made already. The Minister can easily read the NSPCC submissions, which are extremely pertinent. I will make three very different points.

I know that the Minister is extremely concerned about child abuse generally, and child sexual abuse and its prevention in particular. We are about to embark on a huge inquiry. We have discussed whether an inquiry looking at past abuse might obscure what is happening today. What we must do—I am repeating this and will continue to do so—is spend our time preventing abuse now. The lessons that we can learn from the past will help us, but it is crucial that we prevent abuse now.

I declare an interest as the vice-chair of the Lucy Faithfull Foundation, where grooming was first defined and understood. In relation to grooming, any of the experts will tell you that the perpetrator clears a number of hurdles to reach the full stature, if you like, of a paedophile. The first thing that they do is test whether they can gain the confidence of a child just through kindness, relationship and involvement. As I understand it, none of the current statutes would intervene at the point where a perpetrator sent a message saying, “I am really fond of you, I would like to see you topless or in your underwear”, or “I would like you to talk about sexual things”, or, as in one recent case, “I would like you to do something to your sister in front of me, so that I can see and understand how your relationship is going”. It gets worse as time goes on. As the perpetrator finds that they can cross one hurdle, they then discover that they are enabled to cross the next one, and the next one, until they are meeting children, and until they are fully abusing larger numbers of children. That is the history of grooming; it is how grooming works.

If we are serious about prevention, we need to prevent at that very first point. What the Minister will hear from the police—I am quite sure that he is in discussions—is that they find it quite difficult to sort out how they move forward among the enormously confusing entanglement of present legislation. I simply hope that the Government will have a look at this. I am not a lawyer; I only know what I experience in my day-to-day contact with the Lucy Faithfull Foundation, the NSPCC and other children’s organisations. They feel that not enough is being done, that one single law is needed to make it absolutely clear that we are serious about protecting our children, and that we should have an amendment—if not this one, something like it—to be able to act at the very first point.

[Baroness Butler-Sloss (CB)]

My Lords, there appears to be a gap in child protection for the reasons that the noble Baroness has just given. I do not want to repeat them because everything she said was entirely accurate and always worrying. One has only to look at the stories that we have been getting around the country, not of historical abuse but of current abuse and abuse in the recent past—not just in the north but in other parts of the country. Sexual communications and the opportunity to encourage children to behave in a way that they think that they are doing to their peer group, is something that really needs to be sorted. I am no expert in this area of criminal law but if this area is not covered, as I understand to be the case, it is a serious matter that should be covered. I therefore ask the Government to look again, whether by means of this amendment or amendment of other legislation. It is not a matter to push into the long grass; it is urgent. If it is not covered, then it is urgent to cover it.

Another matter arises when a child finds that an adult is involved. If, say, this is stopped and the child finds that they were communicating not with a friend but with a grown-up, the embarrassment and distress to the child of having shown a tantalising photograph of herself or himself—remember boys are also vulnerable —has led children to commit suicide.

[Baroness Smith of Basildon (Lab)]

My Lords, those who have a sexual, and therefore illegal, interest in children know the law. They know the gaps and complexities in the law and rely on them, given the difficulty and lack of clarity, to set themselves on a path that may not start with, but certainly ends in, abuse. After a typically thoughtful, understated and well argued case from my noble friend Lord Harris of Haringey, I was rather surprised that the Government did not bring back an amendment today, following the meeting with him.

However, today the point was made with absolute clarity across the House: there is a gap in the law; a point is missing. The noble Baroness, Lady Howarth of Breckland, referred to communications between young people. On Report, I referred to a case of which I was aware, in which an 11 year-old girl was communicating with someone she thought was another 11 year-old girl, and sharing the kind of confidences that 11 year-old girls share when embarking on and discovering their own sexuality. However, she found out later that it was a 30-plus year-old man who was communicating with her when the relationship was developed.

There clearly is a gap in the law, which needs to be changed. It needs to catch up with what is happening today. The noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Howarth, made the point that abuse is happening now and there is an opportunity here to make changes to the law and do something that will make a difference and protect children today, tomorrow and the day after. I am disappointed that we do not have a new government amendment before us, but I hope that either the amendment from my noble friend Lord Harris will be accepted or we will hear a commitment from the Government to bring something back that addresses this problem, as the noble and learned Baroness said, very quickly indeed.

--- Later in debate ---

[Baroness Meacher (CB)]

I am most grateful to the Minister for tabling Amendment 7, which enables me to speak briefly about the need to create an offence of encouragement of female genital mutilation, which we discussed on Report. I want to thank the Government for agreeing to have further discussions about the new amendment, drafted by Dexter Dias QC, and about the new evidence from our QC adviser. To be frank, that evidence is extremely powerful and it is a pity that we did not have access to these arguments earlier in our debates. I hope the Government will table the Dias amendment, or something very like it, in the other place, but I understand that they are in no position to make any commitment of that kind at this stage.

I will not repeat the arguments we rehearsed on Report in favour of focusing attention upon those who encourage the practice of FGM rather more than upon the families who practice this appalling form of child torture. I want to put on record only that the Dias amendment would provide an effective legal intervention because it is modelled on what is known to work: comparable powers used to combat the dissemination of encouragement to commit acts of terrorism. FGM is of course an entirely different crime from terrorism but the model for the two types of crime is similar.

The Dias amendment recognises the awful social pressure that parents are placed under by some communities. In traditional societies, which are intensely hierarchically structured, elders and preachers exert enormous influence. I think that most of us are not familiar with that or have not experienced it. We believe that the encouragement amendment will complement the important community work being done to dissuade preachers from encouraging FGM.

Mr Dias QC refers to our international obligations, which more than justify the creation of an offence of encouragement of female genital mutilation to cover anyone who makes a statement that is likely to be understood by some or all of the members of the public to whom it is published as direct or indirect encouragement or other inducement to them to mutilate the genitalia of a girl. That is the essence of his amendment. These international obligations include: the Convention on the Elimination of All Forms of Discrimination against Women of 1979; the UN Convention on the Rights of the Child of 1989, under which the UK has positive obligations in international law to ensure that children are not subjected to cruel, inhuman or degrading treatment; and, finally, the UN Convention Against Torture of 1984, which has been ratified by the UK.

Mr Dias presents four pages of powerful arguments in support of the amendment he has drafted, which I hope very much that the Government will consider most seriously, as I have indicated. I will not repeat all these arguments here today—this is, after all, Third Reading—although I believe that your Lordships’ House would find them extremely persuasive. The only remaining point I want to make is that I am advised that our strong international obligations justify overriding Article 10 of the Convention on Human Rights, the right to freedom of expression. This is a very important point, particularly because we all wish to preserve that right whenever it is appropriate. All that we are saying is that in this very specific case, it is appropriate to override it.

Again, I give my thanks to the Minister for providing this opportunity for me to reiterate certain points. I hope that the Minister can confirm to the House today the Government’s agreement to have further discussions on this important issue.

[Baroness Butler-Sloss]

My Lords, had the noble Baroness, Lady Meacher, tabled this amendment I would have put my name to it. I do not want to take up time at Third Reading to repeat what the noble Baroness has said, but I ask the Minister to be in touch with those in the Home Office who will be dealing with the Bill in the other place, and not to disregard what she has said. It is really worth having a further look at this serious matter. There are communities which, as the noble Baroness, Lady Meacher, has said, are different from most of us and where there is a degree of not just influence but power among certain elements of those communities. That leads to this appalling FGM taking place on children in this country. I am also supportive of what the noble Baroness, Lady Smith, said. This is a good part of the Bill and the Government are to be congratulated on it. However, they could do better.

[Baroness Hamwee]

My Lords, the Government have made enormous progress in addressing the legislation so well, to the extent that a Government can in practice respond to FGM. Like others, I encourage the filling of a gap which seems to have been identified. I do not want to say more this afternoon but I wanted to put on record my support for the noble Baroness and my admiration for her keeping going on this issue.