Modern Slavery Bill

Debate between Baroness Garden of Frognal and Lord Alton of Liverpool

Wednesday 10th December 2014 Lords Chamber

[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.

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[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 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.

Modern Slavery Bill

Debate between Baroness Garden of Frognal and Lord Alton of Liverpool

Monday 8th December 2014 Lords Chamber

[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.

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[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.