Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 9 months ago)
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Baroness Garden of Frognal (LD)
My Lords, prevention is critical to tackling modern slavery. That is why the Bill will introduce slavery and trafficking prevention orders which restrict the activity of individuals who have been convicted of modern slavery offences. The slavery and trafficking risk order and the slavery and trafficking prevention order will complement the existing serious crime prevention order regime. We want to ensure that law enforcement has all the tools required to prevent and disrupt organised criminals from committing modern slavery offences.
In a limited number of cases, it will be appropriate for the Director of Public Prosecutions and the director of the Serious Fraud Office to seek a serious crime prevention order; for example, where positive requirements are needed to stop a modern slavery offender from causing further harm.
Currently under this Bill, it would not be possible to apply for a serious crime prevention order against those with convictions for the existing trafficking offences. Government Amendment 102 will remedy this and ensure that law enforcement has the flexibility it needs to tackle this abhorrent crime.
Continuing to give law enforcement agencies this flexibility in relation to offences committed before this Bill is passed will help them prevent the horrific abuse and suffering caused by modern slavery offences. I therefore hope that noble Lords will support the amendment. I beg to move.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 9 months ago)
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“(a) may provide that a public authority which includes information in a notification in accordance with the regulations does not breach any obligation of confidence owed by the public authority in relation to that information;(b) may not require or authorise the inclusion of information which contravenes any other restriction on the disclosure of information (however imposed).”
Baroness Garden of Frognal (LD)
My Lords, I shall speak also to Amendments 89 and 108 in this group. The Delegated Powers and Regulatory Reform Committee’s excellent report on the Modern Slavery Bill recommended specifying on the face of the Bill an initial list of public authorities which will be subject to the duty to notify potential victims of modern slavery to the Home Office and ensuring that authorities could only be removed from the list through the affirmative procedure.
I welcome the Committee’s balanced and constructive consideration and agree that these measures would give Parliament the appropriate level of scrutiny of the new duty. We are therefore tabling amendments to reflect these recommendations. On commencement of this provision, the duty to notify will apply to the police, the National Crime Agency, the Gangmasters Licensing Authority and local authorities. These are the key public authorities that make referrals into the national referral mechanism and have a key role to play in tackling modern slavery. They are most likely to encounter victims and also have the expertise effectively to identify them.
However, we are determined to improve the identification of victims, including through the statutory guidance provided for in the Bill. We will work with other public authorities to improve their knowledge and, should it become clear that other public authorities should also be made subject to this duty, they can be added via regulations. In line with the recommendations of the Delegated Powers and Regulatory Reform Committee, such additions will be made via the negative procedure. Amendment 108 ensures that any removal of an authority would be subject to the affirmative procedure.
Government Amendment 88 clarifies what information can be provided as part of the duty and takes a similar approach to information safeguards as govern the disclosure of information provided to the Independent Anti-slavery Commissioner under the duty to co-operate. We have looked again at the detail of this provision to ensure that the duty to notify respects existing restrictions on the disclosure of information, including those set out in the Regulation of Investigatory Powers Act 2000 and the Crime and Courts Act 2013, and is pertinent, given that the duty will now apply to the National Crime Agency.
These amendments place the duty to notify on a wide group of key public authorities and ensure that Parliament has appropriate oversight of this provision. I hope that noble Lords therefore feel able to support them.
“(5) This section applies to—
(a) a chief officer of police for a police area,(b) the chief constable of the British Transport Police Force,(c) the National Crime Agency,(d) a county council,(e) a county borough council,(f) a district council,(g) a London borough council,(h) the Greater London Authority,(i) the Common Council of the City of London,(j) the Council of the Isles of Scilly,(k) the Gangmasters Licensing Authority.(6) The Secretary of State may by regulations amend subsection (5) so as to—
(a) add or remove a public authority;(b) amend the entry for a public authority.”
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 9 months ago)
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Baroness Garden of Frognal
My Lords, in moving government Amendment 31, I will speak to government Amendments 34, 35 and 37. These amendments clarify the role of the Independent Anti-slavery Commissioner in relation to victims’ services, working with voluntary organisations and with the Victims’ Commissioner.
We had an important debate in Committee about the anti-slavery commissioner’s remit. Through our debates, noble Lords have expressed concern about whether the commissioner’s role adequately covers victims’ issues and services. The Government have listened to these concerns carefully. We have been clear throughout the passage of the Bill that the commissioner can look at victims’ issues because they are crucial to his remit. For example, incredibly vulnerable victims will not be able to support prosecutions and make effective witnesses unless they are receiving the support and assistance they need to recover.
We are supportive of the approach the commissioner-designate has taken. He has set out how he proposes to work effectively with victims and NGOs working in this sector, and to look at victim services in support of his remit. Given the genuine concerns raised about whether the commissioner can look at victims’ issues, we want to put the position beyond doubt. I am therefore moving government Amendment 37 to make clear in the Bill that the commissioner can look at victim assistance services in support of his remit. I also want to ensure that there is no doubt that the commissioner can engage with those with most insight into victims of modern slavery. Therefore, I am moving government Amendments 34 and 35 to clarify that the commissioner may consult and co-operate with the Commissioner for Victims and Witnesses and with voluntary organisations.
The provision on the Independent Anti-slavery Commissioner is a United Kingdom-wide provision, so I want to express our thanks to the Northern Ireland Executive and the Scottish Government for working with us to develop the government amendments, which are carefully designed to stay within the legislative consent of their legislatures. Given that the Government are proposing action to address the important concerns about the remit and victims’ issues raised in Committee, I hope that noble Lords will feel able to support these government amendments. I beg to move.
Baroness Howe of Idlicote (CB)
My Lords, I rise very thankfully to support Amendment 37 in particular, which aims to include the “assistance and support” provided to victims among the subjects for the commissioner’s attention. As I said in Committee, it is essential that the commissioner engages with victims. I know that Clause 41(1)(b) includes victim identification in the commissioner’s remit but I believe that he should take a leading role in promoting high standards in victim care as well as in law enforcement activities. Like others, I was heartened by the obvious concern for victims demonstrated by Mr Hyland, the commissioner-designate, during our meeting. I thank the Minister and the noble Baroness for arranging that meeting, as I believe that it has given many of us greater confidence in our new commissioner.
Supporting victims must be among our highest priorities when addressing modern slavery. As has been said before and was echoed by the commissioner in his presentation to Peers, we will never be able to gain a full picture of the extent of this crime if victims do not feel confident in coming forward. We will not achieve an increase in successful prosecutions if we do not ensure that victims have the necessary support and assistance to put them in a position physically and psychologically to engage with police investigations.
Reaching and maintaining high standards in victim care is a fundamental part of achieving the objectives set for the commissioner in the Bill to strengthen law enforcement efforts and improve identification of victims. Ensuring high-quality victim care is something that interacts with promoting good practice in prevention, detection and prosecution of those crimes, and in identifying victims. Thankfully, it seems that the commissioner-designate is keenly aware of this as he has made it one of his key priorities.
While I say that victim care intersects with the other functions, I am not sure that it should be properly viewed as implicit in those functions as the Bill is before us today. I am therefore pleased to welcome Amendment 37 in particular, and all the amendments in the name of the Minister, which make that connection explicit and give express permission for the commissioner to consider these matters.
Lord Morrow (DUP)
My Lords, I support government Amendments 34, 35 and 37 spoken to by the noble Baroness the Minister. I first make my apologies to your Lordships for not having been present during the earlier debates on this Bill. My absence on those occasions was however directly connected to the matters before us today, as I was engaged in debates on my human trafficking and exploitation Bill in the Northern Ireland Assembly on those days—a Bill which, I am pleased to say, received Royal Assent in January.
I have a particular perspective on the role of the Independent Anti-slavery Commissioner since the role has now been extended to cover Northern Ireland. This means that the commissioner will need to work to promote good practice in the prosecution and investigation of offences and the identification of victims, all with regard to the legislation we have enacted in Northern Ireland, as well as to the Modern Slavery Bill.
I had the opportunity to meet the commissioner-designate during a visit he made to Northern Ireland and I was most impressed by his plans and his passion to tackle this terrible crime head on. I was encouraged by his commitment to visit Northern Ireland regularly and his awareness of the particular challenges and opportunities that arise from our land border with the Irish Republic. It seems likely that he will do an excellent job. I was also particularly impressed with his clear understanding that victims’ needs must be central to any strategy to deal with modern-day slavery and, moreover, with his determination to make sure that all our systems and agencies across the UK recognise this and reflect it in how they work.
I had some reservations that the ambitious victim-centred plans set out by the commissioner are not clearly reflected in the mandate provided by the Bill. It concerned me that if a new Home Secretary came into office, he or she may not approve a future strategic plan that extends as widely as that proposed by the present commissioner. Indeed, it is possible that an organisation receiving unwanted recommendations from the commissioner could argue that victim support is outside the commissioner’s remit and reject his recommendations on that basis. I therefore welcome government Amendment 37, which expressly gives the commissioner the mandate to look into matters of victim support.
Modern slavery is the exploitation of individual human beings. Any effective anti-slavery commissioner will need to look at how we improve our systems to better protect and support those individuals, whether in investigations or other environments. The Bill must support and empower him to do that. I urge your Lordships to support Amendment 37 in the name of the Minister.
I referred earlier to my particular perspective in relation to the commissioner’s work in Northern Ireland. I have one area of concern about government Amendments 34 and 35 that stems from this perspective. I have no doubt that it will be important for the anti-slavery commissioner to consult and work together with a wide variety of groups and organisations, and I welcome the fact that these amendments specifically highlight the importance of the voluntary sector. The advice, constructive criticism and on-the-ground evidence from NGOs was of vital assistance to me as I prepared and refined my human trafficking Bill through its passage in the Northern Ireland Assembly. I dare say that the Minister would say the same about the contributions made in the development of this Bill from its draft form right up to the amendments proposed this evening.
I also echo what has been said in respect of the need for the anti-slavery commissioner to co-ordinate with the Victims’ Commissioner, as a way to maximise benefit and avoid duplication of work. I have some concerns, however, that victims in Northern Ireland, and indeed Scotland, will not benefit from this co-operation. I suggest to the Minister that we need to ensure that the commissioner is careful to take account of efforts to improve victim care and to work with bodies involved in supporting victims in other parts of the UK as well. I hope very much that she can assure me that reference to consultation with the Victims’ Commissioner will not create a hierarchy of victims, with victims in England and Wales receiving greater attention from the commissioner than victims in the rest of the UK.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their comments and their broad support for the amendments which we have brought forward here: the noble Baroness, Lady Howe, and my noble friend Lady Hodgson, who were very enthusiastic, and the other two noble Lords who spoke. My noble friend Lord McColl expressed his concerns about co-operation with the Commissioner for Victims and Witnesses, but I stress that it is,
“public authorities (including the Commissioner for Victims and Witnesses)”.
He is not precluded from co-operating with other people as well. The Commissioner for Victims and Witnesses is one of the examples given, because the commissioner is one of the key players in the Bill.
The noble Lord, Lord Morrow, raised the point about Northern Ireland. The commissioner will work very closely with Northern Ireland and the Scottish Government. These government amendments were developed with the co-operation of the Northern Ireland Executive and the Scottish Government, to ensure that the United Kingdom-wide remit which the commissioner has will apply as much to people in those parts of the United Kingdom as in England and Wales. With those reassurances, I hope that noble Lords will support these amendments, which will benefit those in all parts of the United Kingdom.
“(b) section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (equivalent offences in Northern Ireland),”
( ) “Patient information” means information (however recorded) which—
(a) relates to the physical or mental health or condition of an individual, to the diagnosis of an individual’s condition or to an individual’s care or treatment, or is to any extent derived directly or indirectly from such information, and (b) identifies the individual or enables the individual to be identified (either by itself or in combination with other information).”
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 9 months ago)
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Baroness Garden of Frognal (LD)
My Lords, in moving Amendment 8, I shall speak also to Amendments 9 to 15, 18 to 25, 32 and 33, 100 and 101, and 103 to 105. This large group of amendments makes minor changes to ensure that the Bill works effectively in light of wider legislative change.
Amendments 21 and 22 remove the limit of £5,000 for fines imposed by magistrates on breach of a slavery and trafficking risk or prevention order. I am grateful to the noble Lord, Lord Rosser, for raising the issue of removing the limit to this fine in Committee. I am also grateful to the Delegated Powers and Regulatory Reform Committee for its analysis of the delegated power and suggestions for changes. The regulations needed to accompany Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have now been approved by Parliament. Commencing Section 85 will remove the cap on all fines in the magistrates’ courts of £5,000 or more.
These amendments assume that Section 85 will be commenced by the time this Bill reaches Royal Assent, removing the limit on fines in the magistrates’ court. If this is not the case, then transitional arrangements can be made by order. I hope that noble Lords will agree that these amendments give magistrates the ability to respond more flexibly when sentencing, given the particular nature of a breach of a slavery and trafficking risk or prevention order. In addition, the removal of the delegated power ensures that we have addressed the concern about the previous provision raised by the Delegated Powers and Regulatory Reform Committee.
Amendments 8 to 15, 18, and 103 to 105 relate to reparation orders. This Government believe that the criminal justice system must give greater priority to providing victims of modern slavery, who have been used as commodities, with reparation for the distress, abuse and suffering that they have been subjected to. That is why the Bill will introduce bespoke reparation orders, which will ensure that courts give appropriate priority to compensating victims of modern slavery and have the necessary tools to do so. Currently, confiscation orders may be made only in the Crown Court. Given that reparation orders can be made only where there is a confiscation order, the Bill currently makes provision for reparation orders to be made only in the Crown Court.
However, Section 97 of the Serious Organised Crime and Police Act 2005 makes provision to enable magistrates’ courts to make a confiscation order in certain circumstances, and work is in hand to give magistrates’ courts these powers. We want to make sure that any court that has the power to make a confiscation order in relation to a modern slavery offence also has the power to make a reparation order in favour of any victim of that offence. Government Amendments 8 to 15, and 18, will ensure that magistrates’ courts that make a confiscation order will also have the power to make a reparation order.
Government Amendments 103 to 105 make minor amendments to the Proceeds of Crime Act 2002 that are intended to clarify how certain sections of that Act are to apply in relation to a slavery and trafficking reparation order.
Finally, Amendments 19 and 20, 23 to 25, 32 and 33, 100 and 101 are technical amendments to reflect the introduction of new offences and civil orders in Northern Ireland through the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which received Royal Assent on 13 January. The UK Government have worked closely with the Northern Ireland Executive to ensure that our respective legislation creates a robust, joined-up response to modern slavery across the UK. This proposed group of amendments supports this effort by ensuring that the Independent Anti-slavery Commissioner, the slavery and trafficking prevention and risk orders, and the maritime enforcement and transparency in supply chains provisions all work effectively in light of these recent legislative changes.
I hope that noble Lords will agree that this group of amendments makes minor, but necessary, changes to ensure that the Bill works effectively in light of wider legislative changes and will therefore support these amendments. I beg to move.
SchedulePublic authorities under a duty to co-operate with the CommissionerLaw enforcement and border securityA chief officer of police for a police area in England and Wales.
The chief constable of the British Transport Police Force.
The National Crime Agency.
An immigration officer or other official of the Secretary of State exercising functions in relation to immigration or asylum.
A designated customs official (within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009).
Local governmentA county council in England or Wales.
A county borough council in Wales.
A district council in England.
A London borough council.
The Greater London Authority.
The Common Council of the City of London.
The Council of the Isles of Scilly.
Health bodiesA National Health Service trust established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006.
An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.
A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.
RegulatorsThe Gangmasters Licensing Authority.”
Baroness Garden of Frognal
My Lords, I will speak also to government Amendments 42 to 45, 106, 107 and 110 to 113. Amendments 108 and 109 should more logically be taken at a later stage, as they refer to later provisions.
I pay tribute to the work of the Delegated Powers and Regulatory Reform Committee. Its excellent report has suggested a number of improvements to the Bill, and the Government have responded positively. This group of amendments relates to the Delegated Powers and Regulatory Reform Committee’s recommendations on the duty to co-operate with the Independent Anti-slavery Commissioner. The committee recommended that public authorities to whom this duty would apply should be listed in the Bill, that additions should be made to this list via regulations subject to the negative procedure, and that public authorities should be removed from the duty only where regulations have been made via the affirmative procedure.
Accordingly, the amendments set out the list of public authorities, which operate either across the UK or in England and Wales only, and which will be under a duty to co-operate with the Independent Anti-slavery Commissioner as soon as the provision is commenced. Those include all the first responders under the national referral mechanism: the police, the National Crime Agency, the Gangmasters Licensing Authority, relevant front-line staff in the Home Office, and local authorities. We have also included National Health Service trusts, which are also highly relevant to identifying victims. Where relevant we have consulted the Welsh Government to ensure that they are content with that list. To ensure that health professionals are not under conflicting duties regarding confidentiality to patients, these amendments specify that they are not required to supply patient information to the commissioner.
Noble Lords will note that the list relates only to authorities that can be specified by the UK Government without breaching the Sewel convention. We have consulted the Scottish Government and Northern Ireland Executive on the committee’s recommendations, but they wish to add public authorities through regulations to ensure that the Scottish Parliament and Northern Ireland Assembly are appropriately consulted. I stress that this is an initial list; I am sure that noble Lords can identify other bodies which might prove relevant in future. I am happy to commit to keeping this list under review and looking carefully at points made in debate. We will be able to add to the list through regulations subject to the negative procedure.
On the second element of the committee’s recommendations, that group of amendments also specifies that a public authority can be removed from the duty only via regulations subject to the affirmative procedure, except where the amendment is in consequence of the authority having ceased to exist. This is an important safeguard as it means the scope of the duty to co-operate with the commissioner cannot be narrowed without careful parliamentary scrutiny. Additions to the duty can be made through regulations subject to the negative procedure. Scotland and Northern Ireland have agreed to follow the same process, and that is also reflected in the amendments. I beg to move.
Baroness Butler-Sloss
My Lords, perhaps I might add two names. I am very happy with these amendments, but I wonder why neither the Crown Prosecution Service nor the College of Policing is included in the proposed new schedule. I suggest that that should be looked at.
Baroness Garden of Frognal
I thank the noble and learned Baroness. Yes; we have identified public authorities that we consider have a key role to play in supporting the commissioner in delivering his functions. However, I stress that this is an initial list, and we are more than prepared to look at additions to it. We will keep it under review, and will possibly consider ahead of Third Reading whether we should have greater ability to tailor the duty to the particular functions or legislative framework of a future public authority, as we have done with National Health Service trusts and patient confidentiality. The noble and learned Baroness raises two other possibilities, which we will look at ahead of Third Reading, and I thank her.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 9 months ago)
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Lord McColl of Dulwich (Con)
My Lords, I wholeheartedly agree with the Government’s determination to see more perpetrators of these terrible crimes prosecuted, punished and prevented from reoffending. Unfortunately, the evidence we heard in the Joint Committee during pre-legislative scrutiny of the draft Bill highlighted some difficulties of using the existing offence of slavery, servitude and forced or compulsory labour in certain situations involving exploitation, with which the Minister has dealt.
One very experienced prosecutor told us:
“Clause 1 should potentially be extended to exploitation as well. I have a concern about the definition of exploitation within the Bill, which applies, it seems, to the trafficking element but not to the slavery, servitude and forced or compulsory labour element. There are cases where you can fall between the two of them”.
I am therefore very pleased to support Amendment 4, in the name of the Minister, which will bring situations of exploitation that apply for the trafficking offence in Clause 2 into consideration when determining whether a Clause 1 offence has been committed. From the evidence the draft Bill committee heard, cases involving child victims would particularly benefit from the consideration of wider forms of exploitation under Clause 1 because trafficking may be difficult to prove and establishing evidence for servitude or forced labour without looking at other types of exploitation could be problematic. I have been concerned about the evidence I have heard of the limited use—
Baroness Garden of Frognal (LD)
I apologise for interrupting my noble friend but the Minister has made a winding-up speech on this set of amendments. I wonder what relevant points the noble Lord is making at this stage. I think he may be referring to the next group.
Baroness Butler-Sloss (CB)
My Lords, the noble Baroness may not be entirely right as the Minister was putting forward the government amendment. As it happens, the noble Baroness, Lady Royall, spoke to that amendment before it had formally been put forward. As I understand it, the noble Lord, Lord McColl, is now speaking to the government amendment, and I believe that he is entitled to do so.
Baroness Garden of Frognal
My Lords, I understand that my noble friend was responding to Amendment 4, in which case I apologise.
Lord McColl of Dulwich
I have been concerned by the evidence I have heard about the limited use of the equivalent existing offence for crimes against children in Section 71 of the Coroners and Justice Act 2009. This is not because no children are exploited; there is clear evidence to the contrary. I hope, therefore, that this amendment will make Clause 1 more useful to the CPS in prosecuting those who exploit children, for whom I have a particular concern, as your Lordships know.
I wish to ask the Minister two questions. He has made it clear through this amendment that situations in which children are forced into slavery through threats or coercion will come under the offence set out in Clause 1 through Clause 3(5), and, if the child is targeted specifically because they are a child, they would be covered under Clause 3(6). Both of these are welcome reassurances.
Will he please clarify what the situation would be where there is no force or coercion but it is difficult to prove whether a child has been specifically targeted? I also wonder whether he has given consideration to strengthening the imperative to consider these situations of exploitation in Clause 1(4) by requiring that regard “should” be had to them, rather than the present suggestion that regard “may” be had. I look forward to his reply.
In her foreword to the draft Bill, the Home Secretary wrote:
“I want a strong message to go out to any individual or group involved in the enslavement of victims; you will not get away with it, we will catch you and you will go to prison for a very long time”.
I completely agree. We must ensure that offences of exploitation of all kinds, as well as trafficking, slavery, servitude and forced labour, can be properly and regularly prosecuted. I believe that Amendment 4 will help to do this and I commend it to your Lordships.
Lord James of Blackheath
I apologise to the noble Lord if I caused offence, but I thought the situation was that you could reply to the answer you had had from a noble Lord.
Baroness Garden of Frognal
The Minister has already replied and the question has now been put to my noble friend. We are requesting him, please, to withdraw his amendment.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 11 months ago)
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The Deputy Chairman of Committees (Lord Bichard) (CB)
I should point out that if Amendment 88 is agreed, I will be unable to call Amendment 88A by virtue of pre-emption.
Baroness Garden of Frognal (LD)
My Lords, I shall speak also to Amendments 89 to 92 in this group. These relate to the duty to notify potential modern slavery cases set out in Clause 50.
Modern slavery is a largely hidden crime. If we are to improve our operational response, protect more victims and bring more traffickers and slave-drivers to justice, we need to get a better understanding of the scale and nature of the issue. The duty to notify will help us to achieve this. The government amendments flow from the publication on 11 November of the review of the national referral mechanism which set out wide-ranging recommendations on how the support and identification of victims of trafficking and slavery can be improved. On 28 November the Modern Slavery Strategy was published. It commits to piloting these recommendations with a view to implementation. One of the review’s recommendations is that NRM referrals should no longer be made to the National Crime Agency. Instead, a case-working unit should be set up within the Home Office with decisions on cases being made by regional, multi-agency panels.
Given this change, the NCA is no longer likely to be a suitable central point for the collation of information relating to victims of modern slavery—a function that is likely to sit best with the authority managing NRM referrals, which is likely to be in the Home Office. These amendments therefore change the duty so that rather than notifying the National Crime Agency, specified public authorities will notify the Secretary of State. In order to future-proof the provision, the Secretary of State would also be able to make regulations to alter who the notification will be made to. These amendments are essential to ensure that the duty to notify works effectively alongside anticipated changes to the national referral mechanism. I hope that the House will support them. I look forward to hearing from my noble friend Lady Hamwee, when she speaks to her amendments, and to responding at the end of the debate. Meanwhile, I beg to move.
Baroness Hamwee
My Lords, I have tabled Amendments 88A and 91A in this group. I take the point about pre-emption, but the reason for my amendments remains, and will remain if the clause is amended only as the Government propose. At the heart of this is my concern that it should not only be a specified public authority with a duty to notify the Secretary of State, or whoever else it might be, if the authority believes that someone is a victim of slavery or human trafficking. The clause provides that there must be notification if the public authority has reason to believe that a person is such a victim. However, should not all public authorities have that duty, rather than just specified public authorities? If the authority has no reason to believe that a person is a victim, the duty to notify is not triggered—but even if an apparently unlikely public authority comes across a victim, should it not give notification?
When I was trying to think of an example, the Highways Agency seemed to be one of those authorities. In engaging a contractor to undertake work on a motorway, the Highways Agency might well be concerned that with some of those operating machinery or doing the heavy work, the contractor has engaged forced labour. We know that the construction industry is a sector which is at risk, if I can put it that way. Surely, then, it should have a duty, just as a local authority visiting premises—for example, for environmental health—would have the same obligation. I am quite concerned that without any good reason—because, as I say, the duty would not be triggered unless there was a reason to believe—the Government are unnecessarily narrowing the provision in the clause.
Baroness Garden of Frognal
I am grateful to my noble friend for speaking to her amendments, which gives me the opportunity to explain the Government’s approach on who the duty to notify will apply to. We thought carefully about how to define the duty to notify, and to which authorities it should apply. Modern slavery is a complex and hidden crime and we need to ensure that those who are charged with the duty to notify in the Bill have the appropriate expertise to discharge their responsibilities. If we extend the duty too widely, we risk placing a duty on public authorities that lack the necessary skills to identify victims of this complex crime.
We recognise that identification of victims is an area that needs further development. We have ensured that encouraging good practice in the identification of victims is part of the commissioner’s remit and have included statutory guidance on victim identification in the Bill. We will also work with public bodies to improve training and awareness of the issue. The flexibility of specifying public authorities to whom the duty applies means that when we consider that further public authorities have the expertise effectively to identify victims of modern slavery, they can be added to the duty.
The Government do not want to place a legal and administrative burden on public authorities unnecessarily. For example, requiring authorities which simply will not come into contact with victims to provide training to staff and set up data recording systems would not be an efficient use of public funds.
My noble friend mentioned the Highways Agency. If an authority such as the Highways Agency had concerns over modern slavery, it should call the police or voluntarily notify according to the process set out in the duty of notify, so it will have access to people who have more expertise in that area.
Given this clarification, I hope that my noble friend is satisfied that the Bill strikes the right balance between ensuring that the right bodies are subject to this duty and enabling flexibility for changes in the future. I hope she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly will not press the amendment today, but I wonder which is the chicken and which is the egg here. Of course, there is a concern about skills in identifying possible victims, but because this is an issue, it seems to me that it is all the more important that a duty to do something—maybe not to notify the Secretary of State, but to do something—ought to apply.
This is an unprocessed thought from when my noble friend was speaking. She said, rightly, that anyone who is concerned can go to the police. As we are talking about public authorities—and the Government have a relationship with public authorities—should we be thinking about guidance to all public authorities? As a minimum, it would say, “You may not have the skills, but all public authorities should be aware of this and if you have a concern, go to the police—if you think that there is nothing else you can do, always go to the police”. I think there is some scope—maybe not on the face of the Bill—for a bit more thought to go into the way we are operating our response to these issues.
I think that the Box has had time to process the thought that I did not. What I am saying is that I would be uneasy about leaving it there, because we have all identified that there is a problem that needs getting to grips with.
Baroness Hamwee
My Lords, I was taking words from the Bill; “reason to believe” is what triggers the duty.
Baroness Garden of Frognal
Indeed, my Lords. In my reply I mentioned that we are working with public bodies to improve training in awareness of the issue. There will be guidance for public authorities on identifying victims. So my noble friend is quite right to raise this as an issue, but the Government are already working towards that end.
Lord Rosser
My Lords, the name of my noble friend Lady Royall of Blaisdon is attached to this amendment. I certainly do not wish to speak at any length, because the arguments have already been made, but I shall reiterate one or two things. Under the tied visa system, introduced in the changes in 2012 to the Immigration Rules, overseas domestic workers who are being exploited no longer have the option of seeking other employment to get away from an employer who is exploiting them since they are tied to their employer for a non-renewable period of six months. Under the tied visa system, people who are being exploited are normally not willing to go to the relevant authorities because they fear that, if they leave their employer, the outcome will be that they will be deported as an immigration offender. If they are being paid anything at all—evidence suggests that more than 60% may not be—they will lose what may be a source of income being sent to support dependants in their own country.
One would have thought that the Government would have wanted to abolish the current tied visa system for overseas domestic workers, since tying migrant domestic workers to their employer institutionalises their abuse, as has been said already, and precludes acting decisively to protect victims of modern slavery. Of course, as also has already been said, it is unrealistic for such domestic workers to take any kind of legal action against an employer who potentially has trafficked them, exploited them and denied them their most basic rights while still living in the home of their employer.
The impact assessment that accompanied the 2012 changes stated that the ability of these workers—that is, overseas domestic workers—to change employer and access the UK labour market was,
“contrary to general Government policy on low skilled migration”.
However, the impact assessment also acknowledged the,
“vulnerability to abuse and exploitation”,
of these workers. I do not know whether the Government’s resistance to date to going down the road of this amendment is related, in the light of that comment in the 2012 impact assessment, to a view that it would lead to an increase in immigration. Perhaps the noble Baroness could say what, if any, increase in immigration the Government believe there would be if the amendment that we are debating is adopted. Reversing the 2012 changes for the overseas domestic worker visa would, at the very least, allow organisations and agencies to remove a worker from an abusive employment situation immediately. It also would enable the abuse to be reported to the police without fear that the victim would be deported as a result and that, in turn, would facilitate the prosecution of modern slavery offences, which, surely, is the purpose of the Bill we are now discussing. I hope that, in responding, the Minister will take account of what has been said far more eloquently than I can manage by so many of your Lordships in this Committee today.
Baroness Garden of Frognal (LD)
My Lords, I thank the noble Baroness, Lady Cox, for introducing this amendment and speaking with such eloquence and acknowledge her expertise and campaigning work in this area. Holding anyone in modern slavery is totally unacceptable; I am sure that, around the Committee, we can all agree on that. Overseas domestic workers, like anyone else, deserve protection from modern slavery and support and help if abuse takes place. Noble Lords around the Committee have raised passionate concerns about some of the appalling situations that people find themselves in.
I shall set out why the main issue is not the nature of the visa that somebody has. Through both the Bill and wider policy changes, we will seek to provide protection to anyone who needs it, regardless of their employment type or any visa they may have. Obviously, we are focusing here on overseas domestic workers and seeking to strengthen their protections further.
The best way to prevent an abusive working relationship from being brought to the UK is to test its genuineness before a visa is issued. A number of noble Lords have raised these issues. Private household employers must prove to immigration officials that they have a pre-existing employment relationship of at least 12 months with their domestic worker, for example by providing pay slips or work records. All individuals applying to come to the UK on an overseas domestic worker visa must also provide evidence with their application that they have agreed in writing the core terms and conditions of their employment in the UK. That helps to establish that the worker is employed under terms that they find acceptable and allows us to ensure that these are appropriate. The evidence is to be provided in the form of a prescribed template—although, of course, I hear from around the Committee the concerns that these documents will not be adequately and legally kept to. The requirement for a written statement of key terms and conditions has been in place only since April 2012 and we believe that it could be improved to reflect international best practice. Officials have been working on a revised template to try to ensure that both employers and employees have an opportunity to see what standards are expected on both sides before workers come here and that they are aware of rights and responsibilities, including, sections on passport retention, sleeping accommodation and all the other things that noble Lords have mentioned, which so often are open to abuse.
Lord Alton of Liverpool
I am grateful to the noble Baroness for giving way. Does she not accept that the figures that she has just given to the Committee are very dubious? How can evidence of this kind by collated? By definition, many of these will be people who are frightened out of their minds about going to any of the authorities. The Kalayaan figures demonstrate that: the discrepancy between the number of people who approached it and then those whom it was able to take on was a very tiny percentage. Is this not just the tip of an iceberg? By ignoring it we are not going to help the situation at all.
Baroness Garden of Frognal
I entirely accept what the noble Lord says; it may well be the tip of an iceberg. However, I am setting out that the Government are trying to tackle this problem, in a way that previous Governments have, by the dual action of contacting the employers and the workers to ensure that both are aware, before they come to work in this country, of their rights and responsibilities.
I entirely accept the difficulty of identifying the people who are abused, but I assure noble Lords that anyone who is abused, once that comes to light, will be treated with the sort of help and support that one would expect from a country with our rich tradition of giving refuge to people who have problems. While working over here, they of course have the protection of UK employment law. Anyone who believes that they are being mistreated can take action to report it. As I say, the measures we are taking extend the ones that previous Government have taken. The numbers that are coming forward appear to be stabilising because we are taking measures to try to ensure that the employers and the workers have a full view of their rights when they come here.
Lord Harries of Pentregarth (CB)
I thank the Minister for giving way. Of course, everything that can be done ought to be done to show the employer and the person they are employing what their rights and responsibilities are. I am sure that she would be the first to admit that that is a relationship of power to powerlessness. When it comes from that kind of relationship, particularly if there is a prospect of a family being left behind—say, in India—who will get a regular monthly pittance, what would a signature on a piece of paper really be worth?
Baroness Garden of Frognal
I think we are all agreed that that is a difficult problem and we are trying to find ways to tackle it. The power of the employer and the fact that people support family links back home make it extraordinarily difficult for people to complain about their employment.
I turn to the tabled new clause and its proposal that, if they sought new work, overseas domestic workers would be allowed to extend their visas and be granted a three-month temporary visa where there is evidence that they had been a victim of trafficking or slavery. This particular visa is designed for the sole purpose of enabling workers who are part of a household overseas to accompany their employers to the UK while the employer is working here. Allowing them to change employer is not compatible with the purpose of this particular visa. It would create an anomaly in the system if non-skilled, non-European Economic Area domestic workers could come to the UK with an employer and then change employer and stay here in a way that is denied to other non-skilled, non-EEA workers.
The noble Lord, Lord Rosser, asked me about the sort of numbers that we might expect. Between 2009 and 2013, on average 5,600 overseas domestic workers in private households extended their visas annually. We know that wages and working conditions in the UK are often more attractive than in the countries from which they may have come, so we would expect a similarly large number of workers to seek to remain here. The amendment would potentially allow overseas domestic workers to extend their visas indefinitely in 12-month increments, permitting all those who stayed in the UK for 10 years to become eligible to apply for settlement. It is arguable that this temporary, non-economic route should not have preference over those who choose to follow the official routes into employment in this country.
The ability to change employer does not necessarily protect against exploitation. Indeed, the long-term nature of employment and an ability to extend visas can, in some cases, facilitate abuse. It therefore would not necessarily provide protection against trafficking and other exploitation.
Baroness Lister of Burtersett
Could the Minister explain how it would make abuse more, rather than less, likely if they have the power to make that choice? I did not quite follow the argument.
Baroness Garden of Frognal
If they had power to extend their visas indefinitely then the employer could keep them in the country indefinitely.
Baroness Lister of Burtersett
I thought the argument was that they had the power to change their employer. How does that make them more likely to be abused, if the reason they want to change their employer is because the employer who brought them into the country is abusing them in the kind of way that we heard from my noble friend Lady Kennedy?
Baroness Garden of Frognal
It would enable them to extend their visas. It is the extension of the visa that would mean that they could be here longer and therefore possibly open to abuse for longer.
One other thing worth saying is that, of those who sought to extend visas before, there was a whole range of reasons as to why they wanted to do so. The fact that they were victims of trafficking or abuse was not necessarily the only or the main reason why people chose to change employers and to extend their visas. Of course, we recognise that there are huge risks to people who come here. In the Bill we seek to provide methods of having a more secure life for the people who come into our country and who are here because of the employment they have with a particular employer.
Baroness Royall of Blaisdon (Lab)
My Lords, forgive me, but I am boiling over sitting on the end of the Bench here. I am sorry that I did not speak to this amendment; it was for my noble friend to do so and he did so very well. Throughout the debate on the Bill, all noble Lords around the Chamber have been at one with the Government in trying to make it a better Bill and in trying to ensure that the lives of people who are suffering in servitude, slavery and bonded labour are made better. We know that that is what the Government want to do. We are talking about a very few people who are in a desperate situation. It is not due to the noble Baroness the Leader, and I do not often blame civil servants, but I cannot believe the guff that the Minister has had to read out. We are talking about people who are unable to make telephone calls or act on all the information that is given to them. These people are in desperation. We need to help them. Frankly, what the noble Baroness is saying is just not good enough.
Baroness Garden of Frognal
If I may say so, I am not aware that the noble Baroness’s Government produced answers to this either. It is not a straightforward issue. We have been trying to take measures that will further create supportive situations for people who find themselves trafficked. As I have said, if they do find themselves trafficked they will be taken up, be given support and be given legal aid. I absolutely accept the difficulty of people in these situations to get access outside of their house and to escape an abusive employer. However, the measures we are putting in place are part of an effort to try to identify where things have gone wrong and where there are people living in abusive situations in our country.
I will touch on those in diplomatic houses. Very often the servants of diplomats come under a different area of protection from other workers. The Foreign and Commonwealth Office treats very seriously any mistreatment of domestic workers in diplomatic households. Of course, that requires immense sensitivity in dealing with people whose customs and norms are different. However, it now has set in place very strong systems so that diplomats can be withdrawn from this country if it is discovered that they do not conform to the standards of employment that we expect from them and from everybody in this country. I entirely share the anger of the Committee about people who come to this country and are exploited and victimised while here. We are seeking different ways; we are open to suggestions from all sides of the Committee as to what other measures we might—
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.
Baroness Cox
My Lords, I warmly thank all noble Lords who have spoken in support of the amendment and have suggested creative alternative variations on the theme, as my noble and learned friend Lady Butler-Sloss has done. I find it a little hard to fulfil the characteristic courtesy of thanking the Minister. I am sorry, but I think that I rather felt sympathy for the reply that she was obliged to give. It seems to me that at the moment the Government totally underestimate the seriousness of the situation. They put forward remedial suggestions such as templates or providing information on arrival in the country. The nonsensical nature of the effectiveness of those remedies came out very clearly in the debate itself.
It has been shown again and again that these very vulnerable workers may well not have ways of understanding information that is made available, or it may be removed along with their passports. Frankly, those are not reassuring alternatives. The Government’s position totally underestimates the incredible vulnerability of these workers. They are trapped in these situations. There is also the whole aspect of the intimidation and abuse that they suffer and the intimidation and threats to their families back home—that is a very real long arm of intimidation which prevents many of them seeking help in the first place.
Figures were quoted, but figures really are a distraction. Kalayaan’s research may say 120, but one is one too many. Every case that has been reported is a situation of challenge to us in this country to do something effective about these immensely vulnerable people. The distance—the chasm—between the kind of de jure position adopted by the Government and the de facto reality of these immensely vulnerable people is a chasm that really has not been breached by the Minister’s suggestions.
I emphasise that all of us who have spoken share the conviction that the plight of overseas domestic workers in this country today is a very real and well documented form of slavery. It would be intensely ironic—ironic in the extreme—if we failed to use the Modern Slavery Bill to eradicate this form of slavery on our own doorsteps. I am sorry to say that I do not feel that we have received a very satisfactory reassurance from the Minister. I am sure that we will have to return extremely robustly to this issue on Report. In the mean time, I beg leave to withdraw this amendment.
Lord Alton of Liverpool
My Lords, I support noble Lords who have spoken in favour of these amendments, moved and spoken to so ably by my noble and learned friend Lady Butler-Sloss and the noble Baroness, Lady Royall.
At Second Reading, and indeed in the debate on my Amendment 32 about the proceeds of crime and creating a victims’ fund that could be used to resource the authorities that are involved in trying to police trafficking, I referred to the tragedy that occurred in Morecambe Bay, which led to the initiative of the noble Lord, Lord Whitty, in helping to create this authority. Noble Lords will remember that 23 Chinese men and women drowned in Morecambe Bay, having been taken there by gangmasters in order to go cockle-picking. A local fisherman, Harold Benson, said at the time that what happened was,
“not only awful beyond words—it was absolutely avoidable”.
However, the lessons of Morecambe Bay have not been fully learnt. As we consider this legislation, which provides us with the only vehicle to tackle these kinds of issues—it is timely, it is good legislation and it is an opportunity—the question for the House is: is there more that needs to be done? At Second Reading, I referred to academic work that has been done at the University of Durham, which identified not only the need to extend the mandate of the Gangmasters Licensing Authority but the need for more resources. In 2011, 30 miles away from Morecambe Bay, in the River Ribble—not far from where I live—17 cockle-pickers of eastern European origin had to be rescued when they were in precisely the same situation as those in Morecambe Bay. We have not overcome the problem. We have set up an authority to deal with it but we have not adequately resourced that authority or put sufficient powers into its hands.
Indeed, when I looked at the figures, I was struck by the fact that only 37 people are employed by the authority and they have to cover the whole of Great Britain. Between 2011 and 2014 its budget was cut by some 17% and in 2013—I asked for the numbers of convictions—only seven people had been convicted. That does not fill me with great confidence that it is able to do the job that it was asked by Parliament to do. The authority is a wonderful creation. It has been given reasonable powers but they need to be extended. It certainly needs more resources.
This enabling provision, which my noble and learned friend referred to as being a modest amendment, would provide Ministers with the necessary belt and braces in the future to do more as and when the authority feels it wishes to. Not to put such a provision in the Bill will lead, as my noble and learned friend said, to the messiness of having to come back to Parliament. As the noble Baroness, Lady Kennedy of The Shaws, told us, it would require parliamentary time. That seems to be the wrong way to go about this. We have the opportunity here to put something into the legislation that would give the Government the ability to act, and it is an opportunity we should seize.
Baroness Garden of Frognal
My Lords, I am grateful to the noble and learned Baroness for tabling this amendment, and to other noble Lords who have spoken with such concern about the issues around the Gangmasters Licensing Authority, particularly its remit.
This Government are committed to ensuring fairness in the workplace, tackling worker exploitation and encouraging and raising levels of compliance with workplace rights across all sectors. We are already doing this through the use of existing enforcement arrangements. We very much welcome the many comments that have been made in support of the GLA and its vital work. It has been operating for less than 10 years but it is a successful organisation doing excellent work in tackling harmful activity affecting workers who are particularly vulnerable to exploitation in the sectors that it currently covers.
We need to consider this carefully and ensure that in seeking to broaden the GLA’s remit, we do not risk undermining the good work that is being done already. As the noble and learned Baroness pointed out, it is a comparatively small body, with only 66 staff. It performs a targeted role in an effective way and has a positive influence in the broader fight against exploitation. We very much want that to continue.
Following the Red Tape Challenge exercise and the triennial review, the GLA is implementing changes that will lift unnecessary burdens on compliant businesses while enabling a stronger focus on enforcement action. It is important that both these aspects are developed and move forward together.
Amendment 97 provides for a very broad power, enabling expansion of the GLA’s scope, remit and powers. Changes in the scope or remit of the GLA may very well be sensible; that is something that we will wish to consider further and which the Government have said that they wish to keep under review. However, we are not convinced that Amendment 97 meets that need or is the appropriate way to deal with the issue at the moment.
The amendment is open-ended. The enabling power could be used to set up the GLA to tackle all forms of slavery, trafficking and exploitation far beyond employment. That is a very big step away from the GLA’s current remit, where it has been so effective. It would require a dramatically different organisational and funding model to achieve a much broader role, which would likely require further primary legislation, as has been alluded to. Amendments 97A and 101A focus specifically on the remit, enabling the current licensing regime to be extended to additional industrial sectors beyond agriculture and food. Noble Lords have mentioned a number of sectors where this would be particularly relevant.
I pay tribute to the noble Lord, Lord Whitty, who introduced the Bill in 2004 that established the GLA as a body to carry out a licensing regime and to take enforcement action against unlicensed activities. We need to progress on both these fronts. It would be interesting to discuss with the noble Lord why he did not seek to extend the remit from the two sectors that were mentioned in the original Act.
We have concerns about extending the regime to new sectors without clear evidence that that represents the most effective and efficient approach. Licensing affects the compliant business and the rogue gangmaster alike. The majority of gangmaster businesses are highly compliant small and medium-sized enterprises that are generating employment and economic growth for the UK. We would not want to burden them unnecessarily with regulation.
Simply extending the current licensing regime into new sectors would not necessarily improve efforts to tackle exploitative employers who flout the law. We need to focus on seeking and bringing to justice serious criminals who enslave innocent victims. So we wish to see a GLA with a strong focus on anti-slavery and worker exploitation that will support the Government’s broader strategy on modern slavery. We are working for that through an approach that builds on the GLA’s already excellent work.
I will set out some of the work that is already happening to develop the GLA. Bringing it into the Home Office has already increased collaboration and capability through easier contact with other law enforcement agencies engaged in addressing and disrupting serious criminal activity, including human trafficking for worker exploitation in the UK. The GLA is playing a full part in the better business compliance partnerships—a programme that will begin operation shortly. These pilots will look at more efficient ways of bringing together a wide range of compliance and enforcement officers locally. We expect the GLA to bring knowledge and experience to the problems identified in these areas to tackle worker exploitation and illegal working.
The GLA is working with the University of Derby to devise training and to develop an anti-slavery training academy for use by supply chain businesses. This will build on the GLA’s excellent existing collaboration with business in its regulated sectors. The GLA is well placed to tackle the serious worker exploitation that lies between the more technical compliance offences that fall to be investigated by HMRC and the serious and organised crimes that are addressed by the National Crime Agency.
My noble friend Lady Hamwee raised the concerns of the CBI, which we share, about the appropriateness of this measure and the expansion not just into other sectors but of the remit of the GLA. We have a very good working agency in the GLA and it is tempting to extend it beyond its natural remit too quickly and without due consideration of all the factors that would be required to make entirely sure that any extension was appropriate and as efficient as the GLA.
The noble Baroness, Lady Kennedy, mentioned the inadequacy of the fines and the sentencing. Sentencing is a matter for the courts and there have been some low fines issued against convicted unlicensed gangmasters, but she may be reassured to know that the first custodial sentence for an offence under the Gangmasters (Licensing) Act was imposed in December 2013 when a Lithuanian national was given seven years for operating without a licence. He ran an organised crime operation in Norfolk and controlled scores of workers brought over from his homeland, using tactics including debt bondage, psychological and physical intimidation, and violence. We have heard from other noble Lords of some appalling examples of the way in which workers can be treated by gangmasters. Fines have been increased for magistrates’ courts and Crown Courts, depending on the seriousness of the offence, so hopefully the levity of the fines is currently being tackled.
I can assure the House that there is a great deal of work going on within government to improve the work of the GLA and to consider its future. We will, of course, ensure that today’s contributions are considered during that work and we will further consider whether it might be expanded in sector or in remit. For the moment we do not feel that this particular legislation and these particular amendments are the best way of moving forward, but obviously we will discuss this again and I hope that meanwhile noble Lords will feel able not to press their amendments.
Baroness Hamwee
My Lords, I am very pleased to hear of the work that is going on. I do not know whether I missed it but is any work being undertaken to obtain the evidence of the need for an extension of the remit and an extension into other sectors? Many of us have been told about this but more evidence is needed. Is work being undertaken by the Government to satisfy themselves in response to the sorts of concerns that have been expressed? I accept that the Minister may not have that information now but I think that it is a question which it is appropriate to ask at this point.
Baroness Garden of Frognal
It is indeed. I do not have that evidence directly to hand but it is probably something that the University of Derby will be considering in its work in investigating and reviewing this.
Lord Alton of Liverpool
My Lords, pursuant to that point, would the Minister also look at the evidence that I referred to earlier from the University of Durham, which looked at the mandate, the remit and the resources available to the gangmasters? In the case I referred to in 2013 they found that the gangmaster had given no safety equipment, issued no guidance and had no knowledge of the sea or the tides, and yet 17 eastern European workers were exposed to what was potentially a fatal situation in the Ribble estuary. Surely that demonstrates that something is amiss here and that we need to do more. Perhaps between now and Report we could look further at the empirical evidence that is available.
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.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 11 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Garden of Frognal (LD)
My Lords, I shall speak also to Amendments 70, 71, 75 and 76 in this group. I suspect that this group will not detain your Lordships to quite the extent that the first group did. As noble Lords will be aware, when the Bill was introduced in June, the remit of the Independent Anti-slavery Commissioner was limited to England and Wales. After very constructive discussions with the devolved Administrations, the Government brought forward amendments in another place to extend the remit of the commissioner to cover the whole of the UK, subject to the approval of the Scottish Parliament and Northern Ireland Assembly.
The amendments I propose today are technical changes to ensure that the limited and specific redaction powers in relation to reports made by the commissioner fully reflect responsibilities within the Scottish Government. These amendments make it clear that, where a report may inadvertently prejudice the prosecution of an offence under the law of Scotland, the Lord Advocate is the appropriate person to remove the necessary material from the report. We have worked closely with the Scottish Government to extend these measures and are content that the commissioner will still work effectively with this amended redaction power.
A supporting memorandum of understanding will set out the timeframes around the exercise of the redaction powers to ensure that there is no undue delay in the publication of the commissioner’s reports. Given that these amendments support the UK-wide remit of the commissioner, I hope that the House will support them. I beg to move.
“( ) the person is aged 18 or over when the person does the act which constitutes the offence,”
Baroness Garden of Frognal
My Lords, in moving government Amendment 78, I wish to speak also to government Amendments 79 to 84 in this group. I thank noble Lords for tabling Amendments 80A, 82A, 83A and 84A, which are also in this group, and which all relate to the statutory defence for victims.
Since Second Reading, we have reflected on the specific circumstances of child victims who commit offences as a direct consequence of their slavery or trafficking situation, and that is why I am moving these government amendments. They remove the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation.
Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective through the use of prosecutorial discretion by the CPS, backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process. The Director of Public Prosecutions issued revised guidance earlier this year to prosecutors, setting out clearly the policy on non-prosecution of victims.
However, the pre-legislative scrutiny committee heard significant evidence that victims, including child victims, were still being prosecuted for crimes committed while being trafficked or enslaved. The committee looked at the arguments carefully and on balance recommended the creation of a statutory defence as an added protection for victims. The pre-legislative scrutiny committee also recognised that there are risks involved in the radical step of a new defence. There is a need for appropriate safeguards to ensure that a new defence is effectively applied and is not open to abuse—for example by organised criminals, even if they have once been trafficked themselves. There is a delicate balance to be struck here and we want to get that balance right.
To be effective, the defence must work effectively for both adults and children who may commit an offence while in a slavery or trafficking situation. We have listened carefully to parliamentarians and NGOs which have raised the particular situation of children. To that end, government Amendments 78 to 84 remove the requirement for a child victim to prove that they were compelled to commit an offence. This will ensure that, regardless of whether a child felt compelled to commit an offence, they will be able to invoke the statutory defence when the offence was committed as a direct consequence of their trafficking or relevant exploitation. The other aspects of the test for the defence will remain, notably that a reasonable person of the same age and in the same situation as the child would have no realistic alternative but to commit the offence.
We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality. I am confident that the defence as drafted will protect those people, while at the same time ensuring that criminals acting on their own volition cannot use a protection for the most vulnerable to get away with their crimes.
I look forward to listening to the debate as noble Lords move their amendments and will respond to those in due course. However, I hope that the House will support these government amendments, which improve protection for child victims. I beg to move.
Baroness Kennedy of Cradley
My Lords, I shall speak to Amendments 80A and 82A.
I very much welcome the Government including a non-prosecution defence in the Bill. It is right to target the real criminals who wallow in the wealth that they have made from exploiting the vulnerable. They have to be stopped from getting clean away. A non-prosecution defence for victims is critical to achieving this. Not only will it protect the human rights of adults and children and stop them being punished for the crimes of their traffickers and slave masters, it will ensure from the outset that victims are seen as witnesses to enable the successful prosecution of traffickers and slavers, so that the real criminals are brought to justice.
I also welcome the government amendments to remove the element of compulsion before the non-prosecution defence can apply for children. Where my position differs from that of the noble Baroness is that my Amendments 80A and 82A seek to remove the inclusion of a “reasonable person” test before the non-prosecution defence applies to adults and children. I shall explain as simply as I can why I think it is necessary to remove this “reasonable person” test for adults, and particularly why it has to be removed for children.
First, the addition of a reasonable person test is an extra hurdle for a non-prosecution defence that does not exist in international law. Article 8 sets just two tests for a non-prosecution defence to apply: that a person’s involvement in criminal activities needs to be compelled and a direct consequence of their being trafficked. Clause 45 therefore goes beyond what we need to do to bring the UK into compliance with our international obligations. To quote Parosha Chandran, an expert barrister in the field of human trafficking, its inclusion is “a potentially unlawful tier” that does not exist in Article 8 of the EU directive on human trafficking.
Secondly, the UK has many joint investigations with police forces in other countries. This is necessary because the organised criminal networks we all seek to prosecute operate transnationally. For example, a gang may force trafficked victims to steal from museums in London, Florence, and Paris, and threaten to harm their families if they do not do so. In this situation, Article 8 would be correctly and swiftly applied in France and Italy. Therefore, the victims would be free from the risk of prosecution and would be able to stand as credible witnesses in the criminal prosecutions of the organised criminal network which trafficked them. However, if the authorities in France and Italy asked for the assistance of the UK in approaching trafficked victims who committed robberies in London in order for them to give evidence against the network, the reasonable person test would mean that the UK could not give any guarantees in this regard. The UK would be forced to say that the trafficked victims would be acquitted only if the jury accepted that the conditions of the test were satisfied. Have the Government considered how the inclusion of this test may impact on our cross-border operations to ensure that traffickers are prosecuted?
Amendment 82A seeks to remove the reasonable person test for children. The particular vulnerabilities of children have been discussed many times in this House throughout our discussions on the Bill. Children specifically should not have to satisfy a reasonable person test before a non-prosecution defence applies for three reasons. First, the addition of a reasonable person test goes further than our own existing law for children. In the landmark case of R v L and others the Lord Chief Justice and his colleagues pronounced that only two questions must be addressed for the non-prosecution principle to apply to child victims: age and the criminal offence need to be,
“consequent on or integral to the exploitation”.
This is mirrored in the current CPS legal guidelines on human trafficking as regards children, where it states:
“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking”.
This guidance does not put a third legal reasonable person test into the guidelines after that landmark case. The CPS guidelines repeat the two tests necessary for a non-prosecution defence to apply, namely age and if the offence is directly due to the trafficking. So if Clause 45 is passed unamended, it will go further than our existing law and our obligations under international law. Therefore, when the CPS guidance is rewritten following the passage of this Bill, it will end up being tougher than it is now. The reasonable person test keeps the compulsion test in, but in a different form of words. It will lead to more prosecutions being sought, not fewer.
Baroness Hamwee
My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:
“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—
the context of human rights—
“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.
I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their contributions to the debate, and I am grateful that they felt able to welcome the government amendments.
I turn to the amendments tabled by the noble Baroness, Lady Kennedy of Cradley. As she set out, Amendments 80A and 82 would remove the “reasonable person” test for children and adults. Whenever any statutory defence is created, we must be very careful to ensure that the line is drawn in the right place so that the people who need it can access it, but also to avoid unfairness or injustice to potential victims of serious crime and to prevent the defence being abused by those seeking to escape justice.
The noble Baroness raised concerns that the reasonable person test would breach EU directive requirements, which would make it difficult for us to work in cross-border operations. However, it does not place the UK in breach of the directive. As the pre-legislative scrutiny committee identified, the UK is already compliant with all its international obligations. The test will have no impact on cross-border operations. However, I note what she said, and the comments of my noble friend Lady Hamwee and the noble Lord, Lord Rosser. Perhaps we can agree to discuss this again before Report.
The reasonable person test is an objective test. The “no realistic alternative” formulation in the reasonable person test came directly from the case law that the noble Baroness mentioned. In response to the noble Lord, Lord Rosser, on whether the reasonable person would be someone who has suffered the same sort of experiences, that is indeed how that would be applied in these cases. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances. Such a defence may not be justified in every case. For example, the courts have consistently ruled that the defence of duress can never apply in cases of murder. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but society. An objective test plays a crucial role here: allowing a prosecutor or jury to consider all the circumstances, while also considering the accused’s characteristics, such as age and the other characteristics set out. We consider that removing the objective test would leave the defence dangerously broad.
Turning to Amendment 84A, which deals with Director of Public Prosecutions’ guidance on non-prosecution of victims, the Code for Crown Prosecutors is issued by the Director of Public Prosecutions. It gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code requires the prosecutor to complete two stages: is there sufficient evidence to provide a realistic prospect of conviction, and is a prosecution required in the public interest? It is not the case, and never has been, that just because there is sufficient evidence to bring a prosecution the public interest will require one. That discretion is a vital protection and helps avoid unnecessary or unjust prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures, which includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law or any other changes and is published on the CPS website.
Baroness Garden of Frognal
The noble Lord is right in saying that the measures we have put in train should avoid that situation arising again. We are seeking to identify the victims before prosecutions are brought, to ensure that all the relevant evidence is there and that all the concerns about their situation are brought to the fore in any legal case.
Lord Alton of Liverpool (CB)
I am very grateful to the noble Baroness for the responses she gave to the noble Lord, Lord Rosser, and the noble Baroness, Lady Kennedy. She will have seen the representations by the Refugee Children’s Consortium, which refer to the link between the compulsion test and the reasonable test. Specifically, it says:
“Now the compulsion test no longer applies to children, the reasonable person test in relation to children is obsolete and should also be removed”.
As the noble Baroness goes away to reflect on the points made in this very helpful debate, will she promise us that she will look specifically at the representations made by the consortium?
Baroness Garden of Frognal
My Lords, we will, indeed, look at them very carefully because it is important to get this right.
“(4A) A person is not guilty of an offence if—
(a) the person is under the age of 18 when the person does the act which constitutes the offence,(b) the person does that act as a direct consequence of the person being, or having been, a victim of slavery or a victim of relevant exploitation, and(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.”
“relevant characteristics” means age, sex and any physical or mental illness or disability;”
Lord Alton of Liverpool
My Lords, like the noble Lord, Lord Rosser, I am puzzled by this. In Part 5, Clause 45(1) seems clearly to set out, in paragraphs (a), (b) and (c), under what terms prosecution would ensue or not ensue. As the noble Baroness, Lady Kennedy of Cradley, has rightly told us, the danger with lists is that there may well be things that have not been included on the list that might in due course pertain. I simply ask what may be an entirely innocent and naive question: why is it not possible to put in the Bill a generic term rather than having to have all these details in the legislation?
Baroness Garden of Frognal
My Lords, I thank the noble Baroness, Lady Kennedy, for tabling Amendment 83A and for asking whether Schedule 3 should stand part of the Bill, which relate to the offences excluded from the statutory defence for victims. I also thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alton and Lord Rosser, for their contributions.
As we have previously discussed, Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. As we discussed in the previous group, this builds on the existing use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process.
Noble Lords questioned how Schedule 3 was drawn up. It was drafted very carefully in consultation with the DPP and CPS. As the noble Lord, Lord Rosser, mentioned in his previous intervention, it is very important that we get involvement from the DPP and CPS in drafting these pieces of legislation. As I have said, it was with approval and consultation that this list was drawn up. There is a need for appropriate safeguards to ensure that a new defence is applied effectively and is not open to abuse, for example by organised criminals, even if they once have been trafficked themselves. There is a delicate balance to be struck and we want to get that balance right.
Amendment 83A, together with the suggestion that Schedule 3 should not stand part of the Bill, would mean that the defence could apply to any offence, including serious sexual and violent offences such as murder and rape. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances and it will not always be the case that a defence is justified. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but also society. As we developed the statutory defence, our approach was always to ensure that we covered the types of offences often committed by those who are enslaved or trafficked. We have taken detailed advice from the Crown Prosecution Service on this point. As I have mentioned, the offences listed in Schedule 3 reflect those discussions and discussions with the DPP.
The defence is therefore designed to provide an effective protection against prosecution in the types of circumstances that actual victims of modern slavery find themselves in—for example, cannabis cultivation. The list of excluded offences in Schedule 3 can be amended by statutory instrument if experience shows the offences listed are not right and fail to protect vulnerable victims. But, in order to avoid creating a dangerous loophole for serious criminals to escape justice, we think it is right that the defence is not available in the cases—mainly serious sexual and violent offences—as listed in Schedule 3. This does not mean that a victim who commits a Schedule 3 offence in a modern slavery context will automatically face prosecution. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so. It is right that in very difficult cases involving very serious crimes, including rape and murder, the Crown Prosecution Service carefully considers both the victim of trafficking and the victim of a very serious crime, and seeks to act in the public interest.
I understand the concern of noble Lords that victims should not be inappropriately criminalised; we agree on that, but that is why we are strengthening protections for victims in the Bill. We must be careful, however, that we do not create a loophole for very serious criminals. In the most serious cases, it is right for the CPS to use its discretion—and I emphasise that there is always discretion in these cases—to act in the public interest, based on the specific facts of the case. We are, of course, open to further discussion before Report, but I hope that these assurances will enable the noble Baroness to withdraw her amendment.
Lord Rosser
My Lords, I ask the following question seriously and not frivolously: if this has been the subject of discussion with the DPP, is it therefore the case that there are already examples of victims of trafficking having committed all those offences listed in Schedule 3?
Baroness Garden of Frognal
No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.
Baroness Butler-Sloss
Looking at paragraph 33 of Schedule 3, I think that the last three offences seem improbable for somebody who is compelled to act as a slave: “exposure”, “voyeurism” and “sexual penetration of a corpse”. I do not really see that those three are likely to arise in the circumstances of a victim of slavery.
Baroness Garden of Frognal
My Lords, I think, perhaps, that we will need to discuss this further before Report, because, as I said, this list was drawn up in consultation with the DPP and the CPS. I presume there was a reason for putting those particular items there; it is subject to review and the discretion of the people concerned.
Baroness Kennedy of Cradley
I thank the noble Baroness for her reply and the way in which she has responded. I hope she will reflect on the points made by many noble Lords. We would welcome the opportunity for further discussion on this point. If the CPS has discretion—as it always does in all cases—on the threshold of evidence brought to it by the police, I do not see why a schedule of this detail is necessary. Though it is open to amendment, the time it would take for a statutory instrument to go through this House would be time spent by a victim in the criminal justice system; the trafficker would get clean away. The most serious might still need to be included on a list, but the unintended consequence that may arise by us producing something of such length and detail is that we end up with a traffickers’ charter—a recipe for disaster, as described by a barrister and QC. Obviously, I will withdraw the amendment today, but I welcome the further discussion that the noble Baroness has offered before Report. I beg leave to withdraw the amendment.
“Civil legal aid for victims of slavery
(1) Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (availability of civil legal services) is amended as follows.
(2) In Part 1 (services), after paragraph 32 insert—
“Victims of slavery, servitude or forced or compulsory labour32A (1) Civil legal services provided to an individual in relation to an application by the individual for leave to enter, or to remain in, the United Kingdom where—
(a) there has been a conclusive determination that the individual is a victim of slavery, servitude or forced or compulsory labour, or(b) there are reasonable grounds to believe that the individual is such a victim and there has not been a conclusive determination that the individual is not such a victim.(2) Civil legal services provided in relation to a claim under employment law arising in connection with the conduct by virtue of which an individual who is a victim of slavery, servitude or forced or compulsory labour is such a victim, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative. (3) Civil legal services provided in relation to a claim for damages arising in connection with the conduct by virtue of which an individual who is a victim of slavery, servitude or forced or compulsory labour is such a victim, but only where—
(a) the services are provided to the individual, or(b) the individual has died and the services are provided to the individual’s personal representative.Exclusions
(4) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
(5) Sub-paragraphs (2) and (3) are subject to—
(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3, 4, 5, 6 and 8 of that Part, and(b) the exclusion in Part 3 of this Schedule.Definitions
(6) For the purposes of sub-paragraph (1)(b) there are reasonable grounds to believe that an individual is a victim of slavery, servitude or forced or compulsory labour if a competent authority has determined that there are such grounds.
(7) For the purposes of sub-paragraph (1) there is a conclusive determination that an individual is or is not a victim of slavery, servitude or forced or compulsory labour when a competent authority concludes that the individual is or is not such a victim.
(8) For the purposes of this paragraph “slavery”, “servitude” and “forced or compulsory labour” have the same meaning as they have for the purposes of article 4 of the Human Rights Convention.
(9) The “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4 November 1950, as it has effect for the time being in relation to the United Kingdom.
(10) The definitions of “competent authority”, “employment”, “employment law” and “personal representative” in paragraph 32(8) also apply for the purposes of this paragraph.”
(3) In Part 3 (advocacy: exclusion and exceptions), in paragraph 13 for “or 32(1)” substitute “, 32(1) or 32A(1)”.”
Baroness Garden of Frognal
My Lords, I shall speak also to Amendment 102. The Government recognise the importance of providing victims of modern slavery with appropriate protections and support. Currently, victims of trafficking are able to apply for civil legal aid for advice and representation in relation to certain immigration matters and damages and employment claims arising from their trafficking exploitation under paragraph 32 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Following the pre-legislative scrutiny committee’s recommendation that victims of slavery should be provided with enhanced access to legal assistance, the Government committed to extending this provision to cover victims of all forms of modern slavery; that is what these amendments seek to do. I know that there is significant concern across this House that victims should receive appropriate access to legal aid, so I hope that noble Lords will agree that this measure is both necessary and welcome. I beg to move.
Baroness Butler-Sloss
I congratulate the Government on that; I think it is splendid.
Lord Hylton
Following those congratulations, it appears to me that Amendment 85 is, on the face of it, desirable. Is it the Government’s intention that the provision will apply to overseas domestic workers in this country? If that is the case, how will such people get access to the benefit of this proposed new clause? In particular, how will they get access if they have already been deprived of their passport by their employer, if they are locked in by the employer or if they happen to be working seven days a week and perhaps 16 hours or more a day? These are very important and relevant questions, and I look forward to a response.
Baroness Garden of Frognal
They are indeed very important and relevant questions. We shall be coming on to this issue in a later group of amendments, so I suggest that we take up the debate on this topic with the later group of amendments that is related to these particular workers.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 11 months ago)
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Lord Rosser
The noble Baroness, Lady Hamwee, and my noble friend Lady Lister have made reference to the views of the Joint Committee. Of course, reference has been made also to the fact that similar amendments were discussed in the other place. As we know, the response of the Minister in the other place was that, although the orders would be obtained through civil proceedings, the Government accepted that the threshold would be akin to the criminal standard of satisfied beyond reasonable doubt, in line with relevant case law. The Minister in the other place went on to express the view that since the relevant clauses in the Bill already met the evidential threshold that appeared to be being sought in the amendments that were discussed in the other place, the amendments were not needed.
Naturally, I am assuming that the reply that we are going to get from the Minister will be in line with the response that was given by the Minister in the other place, but I hope that the Minister will respond also to the point that has been made about why there is a reluctance to put this on the face of the Bill so that there is no doubt at all about it.
Baroness Garden of Frognal (LD)
My Lords, I thank noble Lords for speaking to this amendment and my noble friend Lady Hamwee for tabling it. It gives me the opportunity to explain the Government’s approach to safeguards in slavery and trafficking prevention and risk orders, and in particular the standards of proof required for the orders to be made. The purpose of these orders is to ensure that law enforcement bodies and the courts have appropriate powers to restrict the behaviour of persons who are likely to cause harm to another by committing a slavery or trafficking offence. For the prevention orders in Clause 14 and the risk orders in Clause 23, the courts must be satisfied that there is a risk that the individual may commit an offence, and that the order is necessary to protect a person or persons from the physical or psychological harm that would likely be caused by that individual committing a slavery or human trafficking offence.
These amendments seek to ensure that the court is required in each of these circumstances to be satisfied beyond reasonable doubt, which is the standard of proof in criminal courts, as has been mentioned. The intention of these amendments is to ensure that safeguards are in place to protect the rights of individuals on whom these orders will be imposed. I recognise the importance of ensuring that these orders, breach of which would be a criminal offence, are not made lightly.
Reference has been made to the Joint Committee on Human Rights. I take this opportunity to pay tribute to the work of that committee. There has been mention of the report that it has published recently. The Government are reflecting on that report carefully.
In this context, protecting the rights of the defendant is important. We have sought to draft these provisions to provide these protections and reflect the need to protect potential victims and remove the risk of harm to them, which is paramount. Although the proceedings by which these orders are obtained are civil proceedings, I put on record that the high burden of proof which applies by virtue of relevant case law in this area ensures that the threshold must in any event be akin to the criminal standard, as my noble friend said. This is the position in respect of existing orders under the Sexual Offences Act 2003, which have been used effectively for more than 10 years, and the new sexual harm prevention order and sexual risk order, and is therefore very well established. For these reasons, we do not believe that this amendment is necessary. Courts and practitioners are familiar with the existing evidential test. Departing from the established approach for these orders could cause uncertainty among practitioners and the courts, which may well reduce their effectiveness. There could also be a perception that, by expressly including a different and more rigid test in the Bill, we want these orders to be judged by a different standard from that applicable to the other orders, which would call into question why different approaches are taken in areas notwithstanding the similarities between them.
Under the system I have described, the court has flexibility in determining the standard to be applied and can take into account and balance all the circumstances of the case—for example, the seriousness of the risk posed by the defendant, the degree of relevance of each fact which must be proved by the applicant and the effect on the defendant of making the order. In the sex offending context, the courts have been able to carry out this exercise for many years in a way which protects the rights of both defendants and those persons at risk. Prescribing the standard as the criminal standard would deprive the courts of this necessary flexibility.
My noble friend made a comparison with the anti-social behaviour regime, to which she made a similar amendment. I think your Lordships will agree that, while anti-social behaviour can cause harm to both individuals and communities, it is not as serious as the horrific abuses of modern slavery. That is why we have modelled these orders on those which tackle sex offenders. Those orders do not prescribe the criminal standard of proof in legislation and were recently approved by Parliament.
I assure the Committee that there are several further safeguards as well as the standard of proof to ensure these orders are used appropriately. The type of harm to be prevented is specified and relates to very serious offences. Statutory guidance will be issued, which will describe risk factors and categories of restriction which may be contained in an order. In determining what measures are necessary, the court must have regard to the rights of both the person at risk and the defendant under the European Convention on Human Rights. The Government will also ensure that defendants have the same access to legal aid as is applicable to other civil order regimes.
Legal aid was raised on an earlier amendment. Individuals concerned will have the right to appeal the making, variation or extension of an order and apply to vary or discharge an order if circumstances change. Given that clarification, the substantial safeguards to ensure appropriate use of the orders and my assurance that we shall, of course, continue to reflect on the valuable work of the Joint Committee, I thank all noble Lords who have spoken on this amendment but hope that my noble friend will feel able to withdraw it.
Baroness Hamwee
My Lords, I was not surprised by anything that my noble friend has just said; her reply was very much what I anticipated. However, given both the JCHR’s comments and the recent experience with another order considered by your Lordships, I felt that it was appropriate to flesh out the Government’s reasons. I entirely understand the point about case law and comparisons.
The one thing that troubled me about her reply, if I may say so, was the suggestion that because these offences are more serious than anti-social behaviour—I agree with that—it is therefore unnecessary to be clear about the standard of proof, in the way we were with anti-social behaviour. I hope that that does not in any way detract from what my noble friend said about the standard of proof being equivalent—her words were, “akin to”; but I understand that to mean “equivalent”—to the criminal standard of proof. I do not think that that was what was meant but it sounded a bit like it in one paragraph in the middle of her reply. If it is necessary to confirm that after today, I would be happy for her to do so.
Baroness Garden of Frognal
My noble friend is quite right. It was not the intention to imply that they were in any way worthy of less serious measures.
Baroness Garden of Frognal
My Lords, I thank my noble friend for moving the amendment, which aims to clarify this part of the Bill. Slavery and trafficking prevention orders are available in respect of individuals who have been convicted of a slavery or human trafficking offence and who pose a risk of causing harm by the further commission of such offences, which makes it necessary to obtain an order to protect the public from that harm. The provisions already have retrospective effect to the extent that the offence, on the basis of which a person can become subject to a slavery and trafficking prevention order, may have been committed before the coming into force of the Bill. As my noble friend has pointed out, this is reflected in the list of relevant offences in Schedule 1. It is important that these measures can be sought in relation to all relevant offenders and that we do not leave a gap in the availability of the new orders in respect of individuals who have been convicted of old offences or offences replaced by those in the Bill. The offences listed in Schedule 1 include old offences, as well as offences that will be repealed by the Bill, but which nevertheless relate to similar activities as their modern equivalents to ensure that the orders can be sought in respect of all offenders who pose a risk to the public, regardless of whether that offence is still on the statute book.
I understand that there may be concerns that defendants are not penalised again having already received, and possibly served, sentences from the court, but this is not novel. There is similar provision in the Sexual Offences Act 2003 and the Anti-social Behaviour, Crime and Policing Act 2014 in respect of the new orders dealing with sexual harm. While this does not amount to formal retrospection, the provisions have retrospective effect in that conduct committed prior to commencement will carry potential consequences that the person concerned may not reasonably have expected.
Moreover, as slavery and trafficking prevention orders are intended to be civil, preventive measures and not a punishment, Article 7 of the European Convention on Human Rights, which prohibits the retrospective application of a penalty, would not apply. This is supported by the approach taken by the courts to ASBOs and other similar civil orders where the courts have been satisfied that such orders are neither a conviction nor a punishment. In other words, these measures do not involve the imposition of a penalty.
My noble friend asked whether these orders would take place in open court. I can assure her that they would be in open court. The general public interest in the law not being changed retrospectively is firmly outweighed by the need to be able to tackle those involved in slavery or human trafficking as soon as these provisions come into force. With those assurances, I hope that my noble friend will feel free to withdraw her amendment.
Baroness Hamwee
I am grateful for that. I beg leave to withdraw the amendment.
Baroness Garden of Frognal
I thank my noble friend and the noble Baroness, Lady Royall, for tabling these amendments. They raise the important issue of who should be able to use the slavery and trafficking prevention orders or slavery and trafficking risk orders proposed in the Bill, and indeed they relate to the powers of the police across different areas of operation.
The first orders have been designed to manage the risk of harm that would be caused by an individual committing a modern slavery offence. In developing the Bill, the Government have considered carefully who is best placed to be given the powers to apply for these orders and to be involved in the subsequent steps of the process, whether it is receiving the name and address details or applying for variations, renewals or discharge, or whether it is the persons for whom the guidance is intended.
The amendments, although not Amendment 39A, seek to remove immigration officers from the category of persons who can apply for an order. However, the cross-border nature of modern slavery means that it is often linked to immigration crime, and the individuals in the best position to deal with immigration crime are immigration officers. It is therefore appropriate for this group of law enforcement officers to have these powers. They already have law enforcement powers in this country and investigate and support prosecution of immigration and trafficking offences. Given the international nature of modern slavery, this power is appropriate, and to remove them from the list would restrict the role that immigration officers can play in dealing with traffickers and those likely to commit trafficking offences. It means that they would be required to call on the police to apply for the orders, which would add unnecessarily to the burden on the police and, of course, would cause delays as well.
I entirely understand that it is important to ensure there are safeguards in place so that immigration officers apply for these orders only in appropriate circumstances. The legislation is drafted using existing recognised legal persons, and the specific positions of more senior staff in immigration enforcement are not set out in legislation. However, I can assure the House that we will establish, through Home Office policy, that any decision to apply for a slavery and trafficking prevention or risk order by an immigration officer must be approved by the director of criminal investigations within the Home Office. I hope that those assurances will enable my noble friend to withdraw her amendment.
Amendment 39A seeks to include chief police officers for an area with which the defendant previously had a connection in the category of persons who can apply for an order. The role of the preventive orders is to look forwards to prevent the harm that could be caused by future crimes. The provisions about who can apply for an order reflect that. As the noble Baroness, Lady Royall, indicated, this was discussed in the other place and the Government’s position has not shifted from that. In cases where an individual no longer lives in an area, but the chief officer of police has reason to believe they are likely to return, there is a future risk of harm in that area and the chief officer can apply for the orders under the Bill as it stands. As the noble Baroness mentioned, in the few cases where an individual posing a risk is unlikely to return to an area, it would be appropriate for the police to inform the National Crime Agency, as it would be logical for it to take this forward across police boundaries, or indeed the police force for the area where the individual resides. Those two bodies would be best placed to manage the risk posed by an individual where they live now. We shall be coming on to discuss the role of the commissioner in more detail later in the Bill.
Clause 15 as drafted provides appropriate powers for the police in relation to slavery and trafficking prevention orders. For the moment we see no reason to take that further forward. We are satisfied that that will cover the cases in the Bill. Given that clarification, I hope that the noble Baroness will not press her amendment.
Baroness Hamwee
My Lords, I thank my noble friend for that reply. She said that the Government would not want to restrict the role of immigration officers. I still find it not so much confusing, but carrying the danger of muddling the issues in the way I explained. What intrigues me, in particular, and I am grateful for the assurance, is that the approval for an application would have to be made by the director of criminal investigation within the Home Office. If that is so, why cannot the police take the matter on and not involve the Immigration Service? I think I had better leave that question hanging and beg leave to withdraw the amendment.
Baroness Lister of Burtersett
My Lords, the noble Baroness has not stolen my thunder at all, and again I am most grateful to her for tabling this amendment. It picks up on the recommendations made by the Joint Committee on Human Rights. I want to make one additional point on why this raises an important question of human rights. As we said in our report:
“In order to ensure compatibility with the right to respect for private life, any restriction must satisfy the requirements of legal certainty. It is essential that prohibitions contained in the orders are clear, as a breach of an order is a criminal offence”.
Baroness Garden of Frognal
My Lords, I thank both noble Baronesses for speaking to these amendments. They raise the important issue of the prohibitions that can be imposed by the slavery and trafficking prevention orders and risk orders. Prevention is critical to tackling modern slavery effectively and the purpose of these orders is to enable the courts to impose prohibitions on individuals who are believed to pose a risk of causing harm by the commission of a slavery or human trafficking offence. It is important that these orders provide law enforcement agencies and the courts with the ability to respond flexibly to the risks posed by an individual. Clauses 17 and 24 make it clear that slavery and trafficking prevention orders and risk orders will only contain prohibitions that the court is satisfied are necessary for the purposes of protecting people from the physical or psychological harms that would be likely to occur if the defendant committed the slavery or human trafficking offence. These prohibitions can be imposed anywhere in the UK or outside of the UK, they can be for a fixed period of at least five years, and some prohibitions may apply for longer than others.
To enable law enforcement agencies and the courts to respond to changing slavery and human trafficking practices and to tailor prohibitions to the specific risk posed by individuals, we have deliberately not specified the types of restrictions that can be included in the orders. This makes them flexible and capable of restricting any activities that a person undertakes if the court considers it necessary. The approach is in line with existing orders relating to the prevention of sexual harm. Making the amendment requested by my noble friend would restrict the flexibility that these orders need to have. We believe that we have already set substantial and appropriate safeguards to ensure that orders will only be used in appropriate circumstances when necessary to stop the harm caused by these very serious offences, by requiring that the court is satisfied that they and the prohibitions that they include are necessary.
I appreciate the power of the argument of my noble friend and the noble Baroness, Lady Lister, and of the arguments of the Joint Committee on Human Rights to ensure that operational law enforcement partners are clear on the types of prohibitions that might be helpful. In line with the Joint Committee on Human Rights recommendation we shall ensure that the statutory guidance in relation to the orders will include guidance on appropriate prohibitions. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, of course I shall seek leave to withdraw it. I had hoped that by referring to regulations that I described as having a degree of flexibility I might have met the point that I anticipated would come. Wanting flexibility in the range of prohibitions that might be applied raises in one’s mind a concern that they might be changed quite frequently. That would go against the certainty that we are seeking. However, I hear what my noble friend has to say and a little more clarity in the guidance will certainly be welcome. I beg leave to withdraw the amendment.
Lord Rosser
My Lords, there are two amendments in this group and perhaps I may explain the purpose behind them.
Amendment 63A removes the maximum amount of the financial penalty that can be given for the breach of a slavery and trafficking risk or prevention order, as laid down in Clause 30(3)(b). Amendment 102A is in response to the Delegated Powers Committee report published last week on the power in Clause 30(5) that allows the Secretary of State to amend Clause 30(3)(b),
“to increase or remove the limit on the amount of the fine”.
Clause 30 sets out the penalties that could be imposed on an individual for breaching a slavery and trafficking risk or prevention order or an interim slavery and trafficking risk or prevention order. The penalties are,
“imprisonment for a term not exceeding 5 years”,
on conviction or indictment, and,
“imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000 or both”,
where there has been a summary conviction. In the other place we questioned the need for the £5,000 limit, both in relation to the limit and how appropriate it would be and the relationship between this and the provision that is coming into force in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would remove any upper limit on maximum fines in the magistrates’ courts.
In respect of the first amendment, while a prison sentence is adequate and serious, we are concerned that the £5,000 limit is too low. People trafficking is a profitable business where criminals make large sums of money at the expense of victims, and in order to tackle slavery and human trafficking we need to ensure that penalties act as a sufficient deterrent.
The Delegated Powers Committee was concerned about Clause 30(5) on penalties, since it confers a power on the Secretary of State,
“to increase or remove the limit on the amount of the fine”,
by regulations, subject to the negative procedure. The Government have said that this power has been included in order to allow for the removal of the limit on the fine when Section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. That section removes the £5,000 upper limit for fines which may be imposed on summary conviction in respect of offences that have been enacted before the date on which that subsection is brought into force. But that subsection has not yet been brought into force and the Minister in the other place said that the subsection would come into effect before this Bill receives Royal Assent and that this is why Clause 30(5) contains the provision in question in order to bring the Bill into line with the new policy.
However, the Delegated Powers Committee considers that,
“it is only justifiable to rely on section 85(1) for the use of the negative procedure where the power is exercised within a reasonable period of the commencement of that provision. Accordingly, we consider the power under clause 30(5) to increase or remove the limit under subsection (3)(b) should only be subject to the negative procedure where it is exercised during the period of 12 months beginning with the day on which section 85(1) is brought into force. In any other case, the power should be subject to the affirmative procedure”.
Achieving that is the thrust of our Amendment 102A, which I appreciate refers to the regulations being made,
“12 months after the passing of this Act”,
rather than 12 months beginning with the day on which Section 85(1) is brought into force, which is what I think the Delegated Powers Committee was seeking. I hope that the Minister will feel able to accept either the terms of our amendment on this point or alternatively—and we would certainly be quite happy with this—the Delegated Powers Committee’s recommendation, to which I have already referred. I beg to move.
Baroness Garden of Frognal
My Lords, I am very grateful to the noble Lord, Lord Rosser, for bringing this amendment forward.
As the noble Lord said, Amendment 63A seeks to remove the limit to the fine that can be imposed on summary conviction for not complying with a slavery and trafficking prevention or risk order. As he set out, these maximum fines have been set in line with existing limits on fines commensurate with the offence committed, and are in line with equivalent provision in relation to the sexual harm prevention order and the sexual risk order, which were passed in the previous Session of Parliament as part of what is now the Anti-social Behaviour, Crime and Policing Act 2014.
To ensure that the measure can respond flexibly to future changes in sentencing policy, Clause 30 also provides for the Secretary of State to amend or remove the maximum amount of the fine which may be imposed for summary conviction for breach of an order.
The Committee will be aware that, as the noble Lord has set out, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a provision which, when commenced, will remove an upper limit on maximum fines in the magistrates’ courts, which are on the commencement day set at £5,000 in the type of circumstances covered by this provision. We anticipate that by the time that the Bill reaches Royal Assent, the limit on fines imposed in the magistrates’ court will have been removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would make this amendment unnecessary. So I do not believe that we need to remove the £5,000 limit at this point.
Amendment 102A would make any future amendment to the level of fine by regulations subject to the affirmative resolution procedure if it takes place more than 12 months after Royal Assent. As the noble Lord said, this is in line with a recent recommendation of the report by the Delegated Powers and Regulatory Reform Committee. We welcome that report and will consider it carefully ahead of Report, including the recommendation on this provision.
Given that clarification and my assurance that this matter will have further consideration, I hope the noble Lord will feel able to withdraw this amendment.
Lord Rosser
I thank the Minister for that response. I am more than happy to beg leave to withdraw the amendment.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 11 months ago)
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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.
Modern Slavery Bill
Baroness Garden of Frognal Excerpts(9 years, 11 months ago)
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The Earl of Sandwich (CB)
My Lords, I have been trying to think of the adjectives that would best describe my noble friend’s amendment, and I have come up with “reasonable”, “ingenious” and “brave”. It is reasonable because we all feel indignation about this issue; there is no question about that. It is ingenious because I think my noble friend is anticipating the result of Amendment 94. We must not be drawn into that today, but it will be interesting to see whether this presents a way out for the Minister in relation to Amendment 94; I hope it does not. The amendment is brave because my noble friend is trying to tackle the question of diplomatic immunity. I think that the Government would like to do that on many fronts at the moment. My noble friend is to be commended.
Finally, I have to say that the Bill does nothing to release domestic servants from their bondage. They are, fundamentally, in this Bill, so I do not know—the Minister may like to reflect on this—why this category has somehow been left out or gone unnoticed. We will wait and see how the Bill can correct the situation at a later stage—but this amendment is a very clever alternative.
Baroness Garden of Frognal (LD)
My Lords, I am grateful to the noble Lord for tabling these amendments, and I echo the comments about his distinguished record on such matters. I thank, too, the noble Lords, Lord Rosser and Lord Alton, my noble friend Lady Hamwee and the noble Earl, Lord Sandwich, for their comments.
These amendments raise the important issues of ensuring equal access to employment tribunals, and of diplomatic and state immunity, with particular reference to overseas domestic workers. I welcome the opportunity to reaffirm the Government’s commitment to protecting individuals who have come to work in the UK as overseas domestic workers—or indeed in any other capacity —who, while they are here, are subjected to abuse. I know that Members of the Committee feel strongly about this. The Government share the commitment to ensure that no individual in this country is subjected to abuse and exploitation.
Holding anyone in modern slavery is totally unacceptable. Overseas domestic workers, like anyone else, deserve protection from modern slavery, as well as support and help if abuse takes place. The Government intend that the Bill should give that protection to all victims, regardless of who they are, why they are in the UK and for whom they are working. This intention must none the less take account of this country’s existing international obligations, and I will address the point concerning immunity in a moment.
The Committee will wish to know that overseas domestic workers, in common with any other employee in the UK—irrespective of whether they can switch employers or not—already have the right to access employment tribunals and the courts, where the tribunal or the court has jurisdiction.
Perhaps I may turn to the new clauses tabled by the noble Lord. Amendment 28 would create an offence where a person whose visa restricts them to a single employer is not permitted to access an employment tribunal. Employees and workers in this country, including people from overseas who are working legally in Great Britain, are entitled to the rights and protections of our employment law. If those rights are breached, the individual can bring a claim to the employment tribunal. Access to employment tribunals is a matter of law and it is for the tribunal to decide whether it has jurisdiction. An employer therefore cannot dictate whether someone working for them can bring a claim, as this is not in the employer’s control. They also cannot decide when the tribunal has jurisdiction to process the claim, so the offence created by Amendment 28 is unnecessary and would have no impact on employers. Where diplomatic or state immunity applies, this operates in relation to the offence, so it would also have no effect.
The Government take seriously the ability of individuals to access the justice to which they are entitled and fully support the aims that the noble Lord is trying to achieve. I can reassure the Committee that the current system of dealing with complaints in relation to employment rights is generally available to those legally working in the country. Noble Lords may be interested to know that we are currently trialling a system at Heathrow Terminal 5 whereby employees are handed a card about knowing their rights, and with numbers to call. We shall be monitoring how helpful and effective the trial proves to be.
The effect of Amendment 95 would be to disapply state immunity in respect of the enforcement of judgments against diplomatic missions where the judgment is made under the proposed Act. I noted the noble Earl’s comment that the words, “reasonable”, “ingenious” and “brave”, might be applied to this amendment. Immunity from jurisdiction is a well established principle of customary international law. The fact that this is a principle of customary international law means that the UK is bound by it. The aim of the amendment appears to be to remove in certain circumstances the immunity from enforcement jurisdiction. This could put the UK in breach of international law, and I do not believe that that is the intention of the noble Lord. The Committee will understand the need carefully to consider the implications of this amendment.
It may be helpful to explain the role that diplomatic immunity plays in cases of alleged mistreatment of overseas domestic workers and the measures that are in place to deal with such allegations. Diplomatic immunity is an important part of a package of principles within the Vienna Convention on Diplomatic Relations that are designed not to benefit individuals, but rather to ensure the efficient performance of the functions of diplomatic missions. They provide diplomats with necessary protections from the authorities in the receiving state to enable them to carry out their functions effectively. They work on the basis of reciprocity, and if UK diplomats are to be protected overseas, it is important that the UK respects the law of immunity as regards diplomats serving here. The Vienna Convention on Diplomatic Relations requires all diplomats to respect the laws and regulations of the receiving state. This applies to the terms and conditions of employment for all domestic staff, which employers have to agree with their workers in accordance with a prescribed template before the worker applies for an overseas domestic worker visa to come to the UK.
The Foreign and Commonwealth Office treats any allegation of mistreatment of domestic workers in diplomatic households very seriously. Few such allegations are brought to the FCO’s attention by the police, and when they are, the FCO liaises as necessary with the relevant diplomatic mission, UK Visas and Immigration and the UK Border Force to work for an appropriate response. If an allegation of mistreatment requires further investigation by the police, the FCO will request from the diplomatic mission concerned on behalf of the police a waiver of the diplomat’s immunity, and failure to provide a waiver may result in the FCO demanding the immediate withdrawal of the diplomat. It is not appropriate to seek to impede the operation of or amend the State Immunity Act 1978 or the Diplomatic Privileges Act 1964 through the creation of criminal offences or exceptions in the Modern Slavery Bill without reference to the underlying legal obligations they reflect.
Overseas domestic workers should feel confident that if they are abused while they are in the UK, they can come to the authorities and will be treated and supported as victims. However, I do not believe that these amendments would add to the existing protections, or that they are appropriate having regard to our existing international obligations. I am confident that the current legislation covering employment, the measures in this Bill and the measures the Government are looking at to enhance protections for overseas domestic workers represent the best way of tackling any abuse of such workers. We are working to see that they are implemented. Given this response, I hope that the noble Lord will feel free to withdraw his amendment.
Lord Hylton
My Lords, I am extremely grateful to the four noble Lords who have spoken in favour of my first and, to some extent, the second amendment. I think I can reasonably claim that Amendment 28 has received support from all around the Committee. I was glad to hear from the Government that they believe that overseas domestic workers on short-term visas deserve protection. However, I fail to see how the Bill increases any protection, which at the moment is to a very large extent lacking. Will Clause 3(2) give additional grounds for prosecuting those who exploit and abuse their domestic staff?
Further to that, the noble Baroness referred to the card that is supposed to be given to overseas domestic workers before they leave a foreign country to come here. While that may be helpful to some extent, particularly if the card spells out what the minimum wage levels are in this country, it would be stronger still if a model contract was in existence. This is a point on which I have already written to the noble Lord, Lord Bates. A model contract would give both the employer and the employee a much better idea of what we expect to happen when they both come to Britain.
If the Government could give me some encouragement that it would be possible to have a meeting on these subjects between now and Report, I would be somewhat readier and more willing to withdraw the amendment.
Baroness Garden of Frognal
Perhaps I may say to the noble Lord that, yes, indeed, a further meeting would certainly be possible. The card that is handed out states what the minimum wage should be and that workers should have a written contract of terms and conditions. Moreover, there are emergency numbers that can be called. These are elements of information which should be helpful, but obviously the question then is getting workers themselves into a position where they are able to access and implement the information.
Lord Hylton
My Lords, it would be a great help to everyone concerned if there could be a model contract, but with the encouragement I have been given by the Government, I beg leave to withdraw the amendment.