Baroness Hamwee
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(9 years, 11 months ago)
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Baroness Hamwee (LD)
My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.
However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.
Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.
The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.
I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.
I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.
I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.
I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.
Baroness Butler-Sloss (CB)
The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.
We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.
Baroness Royall of Blaisdon
I believe that the noble Lord’s amendment will come before mine in the pecking order. I want to make two points. Of course, I hear what he says about the views of the DPP, but a huge number of lawyers and other people involved in the system are looking at these issues, including charities and various organisations. They are all deeply concerned that notwithstanding the fact that we have this plethora of laws at the moment, as was said at Second Reading, the UK Human Trafficking Centre last year identified 2,744 victims of trafficking, including 600 children. Yet, since the introduction of that offence there have been no prosecutions when the victim was a child, and there have been very few prosecutions at all. I agree with the noble Lord that awareness training is terribly important but there must be something wrong with the current offences if they cannot be used to prosecute people who are perpetrating the most evil of crimes. Therefore, I ask him to look at this again.
In relation to the definition of trafficking, I listened carefully to what the noble Lord said, but it would be very good if he could respond on Report to the points made by the noble and learned Baroness, Lady Butler-Sloss. I still think that there is something missing, and it is not in the Bill that we are absolutely in tune with our European partners. That needs to be on the face of the Bill. I would be content with that in terms of human trafficking but I certainly want to come back to the issue of an offence. We have to do something about getting more prosecutions for these heinous crimes.
Baroness Hamwee
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Lord Bates
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.
Lord Alton of Liverpool (CB)
My Lords, I would very much like to support my noble friend Lord Hylton, and I follow the noble Lord, Lord Rosser, in his support for Amendments 28 and 95. The noble Lord, Lord Rosser, has rightly reminded us that when we get to Amendment 94 there will be a chance to have a wider debate about the whole question of the overseas domestic worker visa.
Many of us would say that the subject of denying someone the right to go to an employment tribunal—that is what my noble friend’s Amendment 28 specifically deals with—is a sort of curtain-raiser to the debate that will come later. Enabling migrant domestic workers to change employer, to apply to renew their visa annually if in full-time employment, and to have the right to go to an employment tribunal, would be a significant step towards preventing abuses against migrant domestic workers, including forced labour for their employers, and would enable them to seek redress without fearing deportation from the United Kingdom.
My noble friend Lord Hylton has a long and honourable record of raising this question for all the years that I have been in your Lordships’ House, so it comes as no surprise to me that he has tabled these amendments. He is not, of course, alone in raising this question. Amnesty International UK, the Anti Trafficking and Labour Exploitation Unit, the Anti-Trafficking Monitoring Group, Human Rights Watch, the Immigration Law Practitioners’ Association, Kalayaan and Liberty are among those who support moves in this direction.
Evidence since the introduction of the tied ODW visa in 2012 demonstrates how the current tied visa system facilitates the abuse of migrant domestic workers in the UK and therefore undermines the objectives of this timely and very welcome Bill and the Government’s efforts to fight modern slavery. Because of its deleterious effects, the 2012 decision, whether it was made wittingly or otherwise, is something we need to return to in the course of our deliberations, to see what we can do about it.
The Joint Committee on the draft Modern Slavery Bill identified the 2012 policy as having,
“unintentionally strengthened the hand of the slave master against the victim of slavery”,
and said:
“Tying migrant domestic workers to their employer institutionalises their abuse”.
The Joint Committee on Human Rights reported that it,
“regards the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers, particularly as the pre-2012 regime had been cited internationally as good practice, and recommends that the Bill be amended to reverse the relevant changes to the Immigration Rules and to reinstate the pre-2012 protections in the Bill”.
We have heard a great deal already today about the importance of having what my noble and learned friend Lady Butler-Sloss described earlier as flagship legislation. I know that it is the Government’s wish that this should be seen as an international gold standard piece of legislation that others will be able to imitate, and that they hope it would be capable of implementation worldwide. But that is in doubt unless we put right this defect that was incorporated into our legislation. I recognise that it may not be possible to do that today, but I hope that when the noble Baroness replies to the debate she will indicate to my noble friend that we will continue to discuss this issue to see what we can do to remedy something that was done in 2012 and has, wittingly or unwittingly, brought about these consequences. One of those consequences is, as is highlighted in Amendment 28, that people are prevented from having access to employment tribunals.
Baroness Hamwee
My Lords, one of the things that has struck me in our discussions about the rights of overseas domestic workers is the importance of enabling them to enforce their rights. That is what the amendment aims to do. This should not need saying, but it has come through to me very strongly that we need to give people the tools and make sure that they are available.
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.