Modern Slavery Bill

Baroness Hamwee Excerpts

Wednesday 10th December 2014 Lords Chamber

[Baroness Butler-Sloss (CB)]

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

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

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

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

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

[Baroness Hamwee (LD)]

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

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

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

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

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

The prospect is certainly not dismissed by the reviewer.

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[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.

[Lord Hylton (CB)]

My Lords, may I help the noble Baroness, Lady Hamwee? Perhaps the words she is looking for are “reasonable suspicion” rather than 100% identification?

[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.

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[Baroness Kennedy of Cradley (Lab)]

My Lords, I, too, add support for the amendment moved by the noble Baroness, Lady Cox. This is a very important issue, affecting a group of extremely vulnerable workers, so it is right and fundamental that it forms part of the Bill. The change to the overseas domestic workers visa back in 2012, tying domestic workers to their employer, was too heavy-handed a response when you look at the number of domestic workers involved and the vulnerability of those workers. In 2010, visas issued to domestic workers accounted for just 6% of all employment-related visas issued. At the time of the change, the Government argued that this visa was a route to settlement that was abused. However, very few overseas domestic workers were granted the right to settle; between 2006 and 2010, an average of just 700 domestic workers a year were given the right to settlement. That figure taken as a percentage of the 2013 settlement figures represents less than 0.5%.

I understand, as the Government will argue, that because of their isolated working conditions this group of workers was vulnerable to, and suffered, abuse before the change in visa rules. But the research by Kalayaan, as others have said, has shown that abuse and exploitation has increased as a result of the new visa rules, figures that the Minister in the other place made clear are not disputed by the Government. This visa change has created the perfect storm, with work carried out in isolated conditions, employers having excessive power afforded to them and a legal system that offers absolutely no protection. It is therefore unsurprising that the abuse has increased.

The Minister will no doubt talk about having stronger pre-entry checks, a stronger written contract with explicit terms and conditions and more information given to overseas workers on their rights but, as the noble Baroness, Lady Hanham, said, the effectiveness of those provisions has yet to be proven in practice. Also, these actions are not mutually exclusive to any other action; it is not a choice between stronger support mechanisms or a change in the visa rules—we should be doing both.

The amendment has a lot of support inside and outside this Chamber. Three parliamentary reviews have supported a change to the visa situation for overseas domestic workers. I hope that the Government can support it too, and include this amendment, or a version of it, in the Modern Slavery Bill.

[Baroness Hamwee]

My Lords, it happens here—it happens even in Scotland, as we have heard, that most civilised country.

A number of noble Lords have used words such as “unimaginable” but, like the noble Baroness, Lady Hanham, I can only too well imagine the card—and I share her concerns about the card itself—being slipped into the passport as it is handed over. Of course, the passport is then very often taken by the employer.

I do not want to repeat the very powerful speeches made by so many noble Lords. I was grateful to hear from a number of people, including, most strongly and emphatically, from the three workers themselves to whom the noble Baroness referred, and at the meeting that she organised with Virginia Mantouvalou, who has written a report. Clearly, it is far too long to read here, but one thing particularly struck me. She gives the history of the overseas domestic worker visa and the diplomatic visa. When the concession was originally introduced, it was from concern to enable workers who had been with a family overseas to come here. The comment was made that it was for “a humanitarian reason”—to look after the domestic workers—and look where we have got to.

At that meeting, Kate Roberts from Kalayaan explained how her organisation could no longer help workers who managed to find their way to it, which must be a tiny percentage, because the organisation has to explain the problem with the Immigration Rules. Indeed, it often cannot help because of threats from employers to workers about criminalisation.

A number of noble Lords have also said that we must remember the realities. Measures such as dealing more effectively at the port of entry are important, but they are not enough. One thing that occurs to me on that is that, at the border on exit, when there is suspicion that a girl is being taken abroad for a forced marriage—the border officials are trained to recognise this—there are arrangements whereby they can be taken aside to be interviewed. The noble Baroness is right to point to that. I do not see why it should not happen in the other direction. We need to think about the realities. What people seem to be able to do to get around formal systems is almost beyond our imagining, and it is the realities that we need to fix on.

[Lord Hylton]

My Lords, I happen to have been involved with this situation, which allows serious abuses of incoming domestic workers to happen, since the early 1990s. I have never known such universal support for the need for a reform as we have heard today. I leave it at that.

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[Lord Whitty (Lab)]

My Lords, I will intervene very briefly because I agree with almost everything that has been said. I was the Minister who brought in the Gangmasters Licensing Authority. At that time there was considerable scepticism as to whether we could use administrative means to clean up what was broadly recognised as an exploitative situation within horticulture and agriculture. I wished then that it had been slightly broader than that because, even more than 10 years ago, it was evident that some of these terrible practices extended to some other industries. Indeed, the same workers were being used. However, we decided to focus on horticulture and agriculture. The general message is that, although we have not entirely eliminated exploitation, bad living conditions and illegality from those sectors, they are a lot cleaner than they were. The effectiveness of the GLA is widely recognised.

The important point that has not really been emphasised is that the GLA has the ability to sanction the users of the labour. It is not just the gangmasters who are in the frame but the farmers and the horticulturalists as well, and that has driven a change of behaviour and attitude which has been backed up by those who use the produce—the retailers and the processors. There is a whole supply effect because the direct employer of labour that is being provided under these terrible conditions can be sanctioned.

This situation pre-eminently applies in parts of construction and it very evidently applies in catering and hospitality and in the care sector. If pressure is not put on the apparently respectable users of that labour then the sanctions, although not entirely ineffective, are less than complete. I recognise, as other noble Lords have done, the need for more information and more resources but we must use this legislation to enable the Government to extend this kind of approach to these other sectors at the appropriate point.

[Baroness Hamwee]

My Lords, I have added my name to Amendment 97 tabled by the noble and learned Baroness, Lady Butler-Sloss. It is clear that the Gangmasters Licensing Authority is widely respected and its role in preventing the increase in forced labour is very effective. The sectors that we are concerned about have all been mentioned and so I do not need to repeat points that have been powerfully made. It is not just a question of extending the sectors covered by the GLA. We should also not overlook its powers and duties. For instance, I understand that the GLA does not have the power to recover arrears of pay on behalf of workers. That sort of power or function might be one for further consideration.

The issue of resources arises. My noble friend Lady Suttie, who cannot be here at the moment, commented to me that there should be some sort of cost-benefit analysis of the extension of the sectors because of possible savings elsewhere. We know how hard this is in government. The DWP, the Department of Health and even the Home Office perhaps would not readily concede this, although they might be involved in some sort of analysis.

I am sorry to see that the CBI is reluctant to consider an extension. Its briefing refers to the GLA being,

“most effective in those sectors in which it currently operates”,

and to focusing on not extending work to “low-risk areas”. As noble Lords have said, construction, care, catering and hospitality are high-risk areas. The CBI is concerned about scrutiny of the compliant rather than action against the non-compliant. The obvious answer is that when there is compliance there need not be too much of a burden.

The British Retail Consortium takes a different view and has briefed a number of noble Lords about the GLA being an example of an effective body in helping to manage and mitigate the risks of slavery. It supports a review of the role and remit of the GLA, including extending its investigative powers, as long as it is sufficiently resourced, into other, as it puts it, high-risk areas. It is obvious that there is, if not unanimity, quite a lot of support. This surely must be something that the Government could at least leave on the agenda rather than exclude it.

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[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.

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[Baroness Goudie (Lab)]

My Lords, I support my noble friend Lord Rosser on this amendment. I feel extremely strongly about this as, throughout this evening, we have heard about not having enough money but we have to remember that we are talking about people. They are not robots or goods; they are human beings. It is really important to remember that when we talked earlier about the cost of implementing this, we are talking about saving people’s lives and ensuring that they have a life as good as we have, or even better.

The way I see this operating is that accountability in companies should be handled by their procurement department. Every large and small company has a procurement department or somebody who goes to the middle companies that they order from. We should not say that the middle people should be responsible. The companies should be able to tell us and, if necessary, go and inspect where and how the goods are made, and how the people are paid. They spend enough time on decorating, branding and PR, but instead of spending so much time and money on those things, they should spend it in their new procurement department. Some of them have these procurement departments; I see them as being as important as health and safety has become, thanks to the way that Governments have pushed that forward.

It is so that the companies can say, when the audit is done every year and in their annual report, that they have visited the factories and the building sites. It may be something that the construction industry here is responsible for in Bahrain, Beijing or Qatar. This should apply not just to companies but to government departments, when we are assisting as museums or parts of new universities are built abroad. What we are trying to say is that every company and organisation involved in labour or goods, abroad or here, should be audited and that the procurement department should be responsible. “May” is not strong enough; we have to say that this is to be done annually in the audit and that it can be inspected and questioned.

[Baroness Hamwee]

My Lords, at the end of Second Reading the Minister, referring to one noble Lord—but I think it might have applied to many of us—commented that he spent a minute welcoming the Bill and then several minutes asking for more. Clearly, this clause falls into that category.

I have tabled Amendments 97B to 97E, which come from a meeting that a number of us had with the Minister, after which we were looking for a peg on which he could hang the very helpful assurances given in that meeting. I appreciate that this is a developing area of work for the Government. As has been said, Clause 51 has not been in the Bill for very long. It is also clear that many colleagues feel that it needs to be strengthened. My amendments would provide a power for the Secretary of State to make regulations about the form of the statement and how it is to be reported—something that particularly concerned those who have spoken and features in briefings that we have had. They would also allow the Secretary of State to issue regulations about the duties imposed on commercial organisations, not just guidance.