Counter-Terrorism and Security Act 2015 (Risk of Being Drawn into Terrorism) (Amendment and Guidance) Regulations 2015
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Lord Morgan (Lab)
I join others in thanking the Minister, who has been extraordinarily tolerant and helpful in our discussions. I have one brief query that I would like to raise. We have heard about who might be considered to monitor and examine the role of speakers and organisations in the universities. What will they actually do? It has been widely said that the Prevent strategy has not been very successful, because it has given Islamic groups and the Muslim community a sense of victimisation and the feeling that they in particular are being targeted, which is not at all what one wants. How does one avoid this on university campuses? Will all these monitoring activities focus on a very small number of societies and groups, or will all societies be involved in this? How are we to avoid the charge that individual bodies are being victimised? It seems to me that such extraordinarily general themes as non-violent radicalism are capable of being applied to almost any kind of student activity or student debate that one could conceive of, so how does one strike a balance between non-victimisation and proper inquiry?
Baroness Hamwee (LD)
My Lords, we discussed the role of statutory guidance when we dealt with the issue during the passage of the Bill. The guidance has benefited considerably from the work that was done on it then and in the interim, but I am still not convinced that a statutory duty is the best or most appropriate way of going about all this. Although the tone of the guidance is, indeed, rather different from that of the draft, I hope that the Minister will understand if I focus on some concerns rather than on giving a three-minute paean of praise for the changes that have been made—many of which I am glad to see.
Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015
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Baroness Hamwee (LD)
My Lords, I thank the Minister for his explanation of the two documents. Around 300 responses is quite impressive, and about 250 are wholly or primarily about access to the communications data of journalists. I have just had one about nine minutes ago, as the Minister started speaking. I cannot read it on my BlackBerry, so I cannot do justice to that person.
It is ironic that, in response to the consultation on the acquisitions code, the Interception of Communications Commissioner wrote that it is,
“unhelpful when the reports in the media”—
which I stress—
“misinform the public by stating the use of powers to acquire communications data for crimes, not deemed to be of a serious nature under the Act, are inappropriate. It is also wrong for the reports in the media to cite the Act as a terrorist law and infer that its use for non terrorist related matters is inappropriate”.
I am sure the parties will come together over the next few months in their understanding of this.
From the report of the responses, it is clear that there is still a certain amount of confusion about detail. I note that respondents’ concerns that,
“data would be retained which CSPs did not retain for business purposes”,
were rebutted, as were the concerns that,
“the processing of data by CSPs was a stepping stone to a central database”.
As I said, a lot more communication is clearly needed.
Inevitably, and rightly, there is a focus on data involving certain professions—the Minister mentioned doctors, lawyers and so on—including MPs. I am glad that someone still regards being a Member of Parliament as a profession. I accept that there is no strict privilege here because we are not dealing with content. However, I make the point that, once a person is identified as communicating, it is often only a short step to an assumption about the issues, if not the detail of the content. I was aware of the distinction when I was in practice as a solicitor but it always seemed to me quite a difficult one. If one was tempted to say that one had acted for someone in the public eye, those who heard that comment would make assumptions about what the issues were. I am a bit confused by paragraph 3.75, which says that,
“when an application is made for the communications data of those known to be in such professions … at the next inspection, such applications should be flagged to the Interception of Communications Commissioner”.
I did not immediately see why that should be done then and not straightaway.
If it is not the wrong phrase to say that I look forward to the review of RIPA and the further work on data in the next Parliament, at any rate I anticipate that we will have it.
Lord Bates
My Lords, I am grateful to the noble Lord for his comments, some of which I will have to come back to him about in writing, but I can certainly deal with his question about where the 300 responses are. They are now on the Home Office website. I can certainly send him a link to that but they are there, along with details of how they were considered and which elements have been included in the revised codes.
My noble friend Lady Hamwee was right to stress the importance of the protection of journalists. That links to the previous debate, when we were talking about the importance of freedom of speech and academic freedom within university settings and how these were going to be upheld. Equally, the freedom of the press is one of our cherished principles and we need to maintain it. Therefore, having this review undertaken by Sir Anthony May, who is the Interception of Communications Commissioner and a former High Court judge—he is widely respected—was a helpful step. He came forward with two additional requirements to ensure that there were extra safeguards in place and immediately the Government responded to say that they would do just that.
There had been a suggestion to go still further. I know that some of the respondents, particularly the NUJ, were concerned about issues in relation to seeking the journalist’s permission or notifying the journalist beforehand. But that was not something that Sir Anthony May felt was appropriate at this stage. Of course, that would result in a tipping-off situation, which would potentially put lives at risk.
The noble Lord, Lord Rosser, asked why there was no impact assessment of these codes. A full impact assessment was provided for the underpinning primary legislation, DRIPA, which was enacted last summer, so that contains the elements he referred to. He asked whether the code would need to be updated. Clearly, if Parliament enacts new primary legislation, there might be a requirement to produce new secondary legislation, including replacing these codes.
My noble friend Lady Hamwee asked why paragraph 3.75 of the acquisition code says that the Interception Commissioner should be notified of cases involving sensitive professions at his next inspection rather than right away, as this would mean waiting for nearly a year. We have of course consulted extensively with the Interception of Communications Commissioner in drawing up the code. The formulation is that the code is based on what the commissioner believes will best enable him to carry out a rigorous oversight function.
The noble Lord, Lord Rosser, asked whether we have maintained a dialogue with the communications service providers. As my ministerial colleague James Brokenshire said last week, we work very closely with the telecommunications sector and it alerts us to new technological developments that may have an impact on its obligations.
The noble Baroness, Lady Hamwee, asked why the requirement for judicial authorisation provides only for journalists—oh, I do not think that she did ask that, did she?
Lord Bates
It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.
The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:
“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]
RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.
Counter-Terrorism and Security Act 2015 (Authority to Carry Scheme) Regulations 2015
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Baroness Humphreys (LD)
My Lords, I merely seek clarification on one aspect of the 2015 Counter-Terrorism and Security Act’s code of practice for officers exercising functions under Schedule 1 of the Act, which accompanies these instruments. This code of practice is referred to in the 28th report of the Secondary Legislation Scrutiny Committee. The final sentence of the information paragraph reads:
“In its consideration of the Code the Committee was concerned that directions about when officers may search a member of the opposite sex, particularly a child, were not as clear and consistent as they need to be”.
I am most grateful to my noble friend the Minister for his reply to my written query regarding this matter, but I remain concerned that the clarification I sought has not quite been met.
The committee and I still have concerns relating to the powers that the code of practice confers on officers who need to search a child—defined as anybody under 18—in order to seize or retain their travel documents. The code is exemplary in its guidance to police constables and designated border control officers, highlighting the care which must be taken when exercising their powers and the need to be aware of the necessity of safeguarding a child’s safety and welfare, as well as urging officers to be sensitive to the intimidation that children travelling alone can feel and the possibility that they may be vulnerable to exploitation by an adult with whom they are travelling.
I draw the attention of the House to paragraph 31, which outlines the scope of the power as it relates to the searching of children who have been removed from an adult. In particular, it gives guidance that two officers of the same sex as the child should, where reasonably practicable, be present during the search. It was the insertion of the three words, “where reasonably practicable”, which most concerned the committee and which led to its call for clarity. It seemed to the committee that the words,
“two officers of the same sex … where reasonably practicable”,
could give rise to any number of permissible permutations. I would be grateful if the Minister would clarify which of these would be justifiable and acceptable.
If two officers of the same sex as the child are not available, would two officers, one of the same sex and one of the opposite sex, be acceptable? If they are not available, would two officers of the opposite sex to the child be acceptable? If two officers are not available, would just one officer of the same sex as the child be acceptable? If they are not available, would just one officer of the opposite sex to the child be acceptable? At this stage, I am at a loss to understand why the last alternative is included. Are we to take from this that our ports are so understaffed that there are likely to be times when only one officer of the opposite sex will be available to search a child?
The code has already referred to the intimidation that a child travelling alone can experience. Does the Minister believe that a child, removed from an adult, would experience a similar feeling if searched by one or two officers of the opposite sex because they were the only reasonably practicable alternatives?
I would also be grateful if the Minister would add some detail on the advice given to officers governing the circumstances in which a child may be searched in the absence of the responsible adult with whom they are travelling, and explain how the child is to be removed from the adult and where the search will take place. If the child is travelling with an adult who is deemed to be exerting influence or pressure, how is an officer to defend him or herself against accusations of inappropriate behaviour if the child is influenced to make accusations against the officer and there are no witnesses to the search?
However, these children are unlikely to make a complaint about the manner in which they are searched, by whom they are searched and where they are searched. They are intent on leaving this country and, to all intents and purposes, this renders them powerless to control their situation. I would want firm guidelines to govern the way in which my grandchildren could be removed from my presence and searched at a UK port. Those firm, unambiguous guidelines should be applicable to all children.
The Secondary Legislation Scrutiny Committee called for clarity in this aspect of the code of practice. I hope that the Minister will be able to provide the House with that clarity and describe, definitively, the circumstances under which children will be searched.
Baroness Hamwee (LD)
My Lords, I am grateful to the Minister for explaining this raft of instruments. I have a few comments and queries.
As my first query is on an order which is not before us but which is relevant, I do not expect an answer, but I want to use this opportunity to explain a point which I raised with the Secondary Legislation Scrutiny Committee, of which I am a member. The authority to carry scheme sets out to whom it applies. As one would expect, it applies to those who are subject to a temporary exclusion order. Statutory instrument 438—I apologise to the House that I did not make a note of its name—provides that, for the purposes of the service of the order, it can be served on an individual’s representative. I queried who a representative might be for this purpose. The advisers to the Secondary Legislation Scrutiny Committee took this up with the Home Office. I was concerned that, in the normal run of things, one might think that a representative was, for instance, a solicitor, but a solicitor who was not able to pass on the information to his client that an order had been served would find himself in a very difficult state and would probably disclaim the client.
An answer has come back and I want to get it on the record. It states:
“The Home Office agrees that … For adults … a representative must be a legal representative such as a solicitor or legal executive who acts on behalf of the person. The Home Office agrees that the Secretary of State cannot deem someone to be a representative in the absence of a clear relationship such as a … contractual relationship”.
As I have said, any lawyer thinking ahead a bit in that situation would disclaim that relationship. The Home Office also agreed that,
“for someone under 18 the term would cover the person’s parent or guardian”,
and that they could be a representative for this purpose. As I said, I am not expecting the Minister to comment on that.
Paragraph 22 of the scheme states that a person who,
“is refused authority to carry will be informed of that”,
in a notice by the carrier. It occurred to me to ask whether there is any penalty on the carrier who fails to pass on information—not information that they have been denied boarding, because they will have worked that out, but information of the contact telephone and email address that the individual needs to make further inquiries—and whether there should be any liability for compensation on a carrier who fails to pass on that information.
The Explanatory Memorandum to the authority to carry scheme regulations refers to,
“the need for an effective redress process in the case of mistaken identity. Administrative arrangements are in place to ensure that an individual is not mistakenly identified again”.
The second occasion would be pretty awful, but the first occasion of mistaken identity is pretty bad, too. I do not know whether the Minister has any comment on that.
With regard to the penalties for breach of the scheme, again I quote from the relevant Explanatory Memorandum. The consultees felt that the maximum £50,000 fine,
“was excessive and disproportionate, especially when compared to the possible fines imposed by other countries”.
Does the Minister have any information as to that comparison? There is also a feeling that the maximum penalty is unreasonably high, and I understand that there will be guidance on how the penalties will be applied. As this goes to the amount that will actually be levied in different circumstances, can the Minister tell the House when that guidance will be issued?
More generally, there has been a good deal of comment that the current authority to carry scheme is actually quite effective. What extensions from the current scheme will these various regulations and orders bring in?
Modern Slavery Bill
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Lord Young of Norwood Green (Lab)
My Lords, I declare an interest as the ex-vice-chair of the Ethical Trading Initiative. I have spent a good few years of my life discussing with companies, trade unions and NGOs the complexities of supply chains. The noble Lord, Lord Alton, spoke of the positive endorsement of the Ethical Trading Initiative, and I hope that the Minister will be able to respond positively.
Although I agree with most of what the noble and learned Baroness, Lady Butler-Sloss, said, I did not quite agree with the conclusion. It is a principle that is worth including in the Bill because we have to recognise that all these companies are on a journey. The complexities of global supply chains, which stretch far and wide, are not easy to monitor by any means. We know what happens when it goes wrong, as we saw in Rana Plaza in Bangladesh. That is just one example of many. There are lots of other examples where, unfortunately, bonded labour and child labour exist in supply chains. There is cross-party support for this amendment and there is absolutely no doubt about its importance. I, too, congratulate the Minister, who has displayed good diplomacy and a willingness to help to ensure that we make this Bill as strong and as effective as we can. This is a key part of the effectiveness of the Bill.
Surely what we are hoping to do in creating a website like this is “encourager les autres”, as they say— my French is not very good but it means to encourage the others. We want people to say, “Here are the examples of best practice. Here is what every company ought to be aspiring to do”.
I will not take up any further time because so many, such as my noble friend behind me, have made all the key technical points. I look forward to the Minister’s response.
Baroness Hamwee (LD)
I certainly took from the Minister’s long and careful response to the amendments on this clause at the previous stage that he entirely took the points that are being made today. He said that all of us are willing and keen to accept the principle that the statements ought to be put in one place and made easily searchable and identifiable. I take it from that and from other comments that this is something that the Government are working on.
The Minister then mentioned a two-day tech-camp. Frankly, that sounds terrifying, but I wonder whether he has any news of that. He issued a generous invitation to Members of the House to attend it. I am not sure whether I would be up to it myself, but it sounds as though it holds the seeds for taking this matter forward and I hope that he can give us a little more news.
The Earl of Sandwich (CB)
My Lords, Third Reading is an occasion for tributes and I hope that the Minister is not too embarrassed to receive all these tributes. He has worked very passionately on the Bill and I congratulate him. We are asking a very small step of the Minister today. I mentioned this before. It was a small step then and remains small, although, even so, it may be the biggest step that he takes today.
My noble friend has put all the arguments so succinctly that I will not rehearse them. I add only one particular point, which is that I personally would not like to see the voluntary sector carrying the load of this responsibility. The way that the amendment is worded is very gentle. It states:
“The Secretary of State may by regulations appoint”.
It does not actually say that it has to be a government agency. That is the interesting thing about the amendment—it takes us just a very small step further.
I mentioned to the Minister at a private meeting that the situation of the groceries adjudicator may be a parallel to look at, but I would not want to wait for consultation. I do not agree with my noble and learned friend that we have to wait longer for that. I think that the House will decide today in favour of the amendment unless the Minister has something else.
Lord Rosser
I thank the Minister for his very kind comments. I, too, add my appreciation for the work that both he and the noble Baroness, Lady Garden, have done. I express my thanks to the members of the Bill team. Whether with 100 government amendments they ended up in a state of despair, I do not know, but if they did they never showed it and we are extremely grateful.
I also express appreciation from these Benches to all noble Lords who have taken part in our discussions, whether from a political party, the Cross Benches or the Bishops’ Bench. We have had numerous meetings which have all been extremely helpful. They have certainly all been extremely good-natured and conducted on all sides with a view to trying to resolve any differences of view and to come up with solutions that have been acceptable to us all. I also thank those organisations and individuals who have provided advice and briefings. I am sure we have found them all very useful and helpful. Whether or not we have always taken the road that the advice suggested is another matter, but we appreciated receiving it.
This Bill has been interesting because at heart it has not been a party-political issue. We have all been trying to achieve the same objective. We may have had slightly different views as to how that objective should be achieved, but nevertheless this Bill has avoided some of the rancour that can go with highly party-political issues. As the Minister has said, at the end of the day we have achieved real progress on behalf of the victims of modern slavery and I am sure this Bill and its terms will be much appreciated by all those concerned for what it will achieve.
The Minister said there had been 100 government amendments. They were obviously put down in part as a result of the patience, good nature and willingness to listen of the noble Lord, Lord Bates, and the noble Baroness, Lady Garden, which has been widely commented on in this House and widely appreciated. Of course, in so doing, the Minister has denied us the excitement and thrill of a number of votes, but in view of the outcome of the last one, perhaps that is just as well.
Baroness Hamwee
My Lords, from the Liberal Democrat Benches I also thank all those who have already been mentioned. It is only so as not to be tedious that I will not go through the list again but my thanks are sincere.
This has been such a good example of how Parliament can work well across parties, with people of no parties and with organisations outside this House, as the noble Lord said. I have been particularly struck, which I am sure is in no small part thanks to the efforts of both Minsters present, that even at this last stage, with the last of the substantive amendments on the Gangmasters Licensing Authority, the Minister came forward with an amendment which he did not need to make. I do not think there would have been complaints. We would have taken the good faith of what he had said about the work that the Government were going to be doing on this. I know that he will agree that this is the end of the beginning rather than anything further, including at a personal level. I do not know whether the Bill team has counted up for him the number of commitments to extra meetings that he has made following the passing of what will soon be an Act but I know that we will all want to continue to be involved in making sure that the Bill, as implemented, fulfils its promises.
The Lord Bishop of Derby
My Lords, I want to very briefly say from these Benches what a privilege it has been to participate. My colleague, the most reverend Primate the Archbishop of Canterbury, had to get special permission for me to sit on the Select Committee. It has been a wonderful opportunity for the church to contribute and, through me, for the voluntary sector to be involved both with the crafting of the legislation and with working further afield on grass-roots responses and the wider cultural and learning changes that need to happen in our society. I also want to say a final “thank you” to the Minister whose leadership of this whole process has been exemplary, as other colleagues have said.
Yarl’s Wood Immigration Removal Centre
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Lord Bourne of Aberystwyth (Con)
My Lords, we will hear from the government Benches next and then from the Opposition.
Baroness Hamwee (LD)
My Lords, I hope that the Minister will understand if I say to him gently that there is a sense in this Statement of the Government distancing themselves from responsibility. Will he also accept that there is an underlying issue, not just of practice but of policy? We are one of very few countries in Europe not to have a maximum time limit on detention. Internationally, there are a lot of good examples of constructive engagement and alternatives to detention rather than a focus on end-stage enforcement. Detention is so often not needed. I was a member of the all-party group inquiry, and the Chief Inspector of Prisons said to us that,
“at least a third, and getting on for half, of all detainees are released back into the community. And this poses the question: if they’re suitable to be released back into the community at that point, why do they need to be detained in the first place?”.
Counterterrorism Policy: Syria and Iraq
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Baroness Hamwee (LD)
My Lords, apart from physical measures, does my noble friend agree that it is fundamentally important to understand the motivation of young people who are drawn to fight in Syria and to disseminate a counter-narrative to the persuasion to which so many of them seem to be subject?
Lord Bates
Absolutely, and that is the vital role of Prevent and Channel. I think it is also vital to engage all communities through putting that on a statutory footing and to engage the religious communities. I am pleased that my noble friend Lord Ahmad is beside me; he is engaging particularly with Muslim communities which are as appalled as we are at what is happening, so-called in the name of their faith, which they have absolutely nothing to do with. We get that message and we want to communicate it to as many people as possible.
Modern Slavery Bill
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Baroness Royall of Blaisdon (Lab)
My Lords, I support the government amendments and Amendment 60, which stands in my name and that of the noble and learned Baroness, Lady Butler-Sloss. At the outset, I, too, pay tribute to the battles, as the noble and learned Baroness put it, fought by her and the noble Lord, Lord McColl, to bring about child trafficking advocates with the appropriate powers. I have always been pleased to support their powerful advocacy.
As noble Lords have said, we are grateful for the Minister’s efforts in securing these important amendments, which significantly strengthen the role of child advocates in the Bill. In Committee, we pushed for changes to be made to Clause 48, and specifically to give advocates the legal powers that they would require in order to carry out their role effectively. This is the purpose of Amendment 60—but, of course, I am delighted to see that the same powers are outlined in government Amendment 61. Alongside the legal powers, we are pleased that government Amendment 72 gives child trafficking advocates the ability to co-operate and work for public authorities. These are important steps in securing the protection of vulnerable children who have been, and are, the victims of the most heinous crimes.
Guardians will be able to effectively and successfully act in a child’s interests only if they have the appropriate powers to instruct solicitors and have access to the required information from public authorities. Evidence from members of the Refugee Children’s Consortium, the Children’s Society and the Refugee Council demonstrates that local authorities have, unfortunately, failed on many occasions to respond adequately to the needs of the trafficked child.
While I give the Minister the warmest thanks for the amendments that he has brought forward today, I am rather disappointed that between Committee and Report we were not given sufficient information on the interim outcomes of the pilots that are being undertaken. I am grateful for the letter sent out by the Minister on Monday evening, but there is not quite enough detail to tell us clearly what needs to be improved, what is working in the current trials and what is not. The trials started in September 2014 and it would have been helpful if, five months on, we could have had more details and information to inform our debate today. So I have a few questions for the noble Lord.
It would be helpful if he could tell us how many children each advocate represents at a time, what services are available to help with any potential language barriers the children may have, and—as the noble Baroness, Lady Howarth, said—what the difference is between the role of the advocate and that of the social worker. Do the trials demonstrate that there is a clear enough definition between those two very specific roles? Have any areas been identified thus far where more work needs to be done or where there are potential problems? I wonder, for example, why there has been a slower rate of uptake than may have been expected.
With that, I say again that I am very grateful to the Minister for all that he has done on these issues, and I look forward to his response.
Baroness Hamwee (LD)
My Lords, while welcoming very much the enormous progress that has been made—I have no doubt that a lot of that is due to the Minister’s personal efforts—I have two points that I should like to raise. I thought that the noble Baroness, Lady Howarth, was going to ask about independent reviewing officers, but I suppose that that is subsumed within the question of accountability.
My first point, highlighted by the noble Lord, Lord McColl, concerns the use of the term “reasonable grounds to believe” which the government amendments apply in place of “reason to believe”. On Monday when we discussed legal aid, the Minister said that he thought it was important that no one should be deterred from applying to be referred to the national referral mechanism, and therefore that it would be better to have “reasonable grounds to believe” as the catalyst or prompt for various things to follow. It would be ironic if that were to be a reason for the change today in the case of child trafficking advocates.
I wonder whether there is in fact any difference between the terms. Is one more subjective than the other, or is one a harder test than the other? I ask this because if they mean the same, would it not be better to retain a non-technical term in order to anticipate any change there may be in the arrangements for the national referral mechanism? We know that consideration is being given to having a single stage going straight to conclusive grounds. Are we constraining a change which a lot of NGOs are calling for by including a technical term in the legislation? This is a question that goes to quite a number of the amendments that we will be considering today.
My second point is about legal representation. I think that on pretty much every occasion when we have discussed this issue I have argued for its importance. I did wonder whether the instruction should be given by the child or by the advocate. Is it the advocate’s role to assist, which is the Government’s amendment? I think that perhaps it is. The lawyer needs to hear from the child, but I am not even sure whether a child—I hesitate to ask this question in the presence of the noble and learned Baroness—has the capacity to give instructions to a legal representative. Should they instead be given by someone on the child’s behalf? However, that is not the main thrust of my question.
Government Amendment 61 states:
“The advocate may (where appropriate) assist the child to obtain legal or other advice”,
and so on. Can the Minister flesh that out? If a lawyer is approached and asked for advice, but legal advice is not appropriate in the circumstances, the lawyer is going to say so. We do not need legislation to put a block in the way—and, indeed, there should not be a block in the way of that approach.
I would not want to think that the advocate would be in a position to stop the question to a lawyer: “Is this a legal issue that you can help sort out?”. I would not want to think that the term “appropriate” in this context is because it is appropriate to the trafficked position of the child—because a child victim may have much wider needs than those which are directly related to his or her having been trafficked. Again, I think it would be a great pity if those who are involved are made to question whether seeking legal advice is the right thing to do.
If the Minister can flesh out and get rid of my concerns about Amendment 61, it would be very helpful to have that on the record. If he cannot, I will really wish that I had not raised them, because I would not want the negative points to be on the record, either.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Baroness for moving her amendment. I will speak to my amendments as well. I begin by joining others in paying tribute to the noble and learned Baroness and to my noble friend Lord McColl for eventually securing the amendments that they are looking for. I am grateful that we have been able to do that.
A hallmark of the way in which this Bill has gone through is that it has drawn upon the incredible level of expertise in your Lordships’ House in these particular areas. We have tried to distil that into strengthening the Bill, which enjoys cross-party support and which we all want to see passed. That expertise is also reflected in the 23 amendments that the Government tabled in Committee and by the further 72 amendments, 27 of which we will be considering on the second day of Report. I was reminded by officials that this is something of a record. I do not know if they meant that as a compliment—equating the number of amendments to the effectiveness of the Bill. However, as we have gone through this process, time and again, new pieces of evidence—new gaps—have come to light and, where at all possible, the Government have sought to respond to them.
I will speak to my amendments first and then deal with the questions which were raised. The government amendments reflect the European Union fundamental rights agency’s key functions for such a role and the Northern Ireland human trafficking and exploitation Act. These amendments have been drafted following significant consultation with NGOs and Peers on the precise wording necessary to seek the overall objective of ensuring that we have set out the fundamental principles of these roles in statute.
The government amendments clarify beyond doubt the independence of the child trafficking advocate’s role; ensure the advocate promotes the child’s well-being as well as acts in the child’s best interests; and give the advocate the power to assist the child in obtaining legal advice, as referred to by my noble friend Lady Hodgson. I will return later to the question raised by my noble friend Lady Hamwee. I know that this has been at the very forefront of the debate on this issue and is reflected in the amendments tabled by noble Lords today.
These amendments also remove the Secretary of State’s discretion to make detailed regulations and replace this with a duty to do so. We are also ensuring, through these amendments, that the regulations provide for advocates to be appointed to potential child victims of human trafficking as soon as possible.
The government amendments will also place a requirement on public authorities to co-operate and share information with child trafficking advocates, where any disclosures do not contravene a restriction. This will place beyond doubt the status of the advocate across the criminal justice, care and immigration systems. Again, these government amendments closely reflect those made by noble Lords, as referred to by the noble Baroness, Lady Royall.
Lord Bates
Of course; that goes without saying. A copy was placed in the Library. I readily accept, having been on the Back Benches and followed legislation, that that is meant as a get-out clause. However, the noble and learned Baroness should have had that letter as a courtesy, and I will make sure that she is furnished with one within the next few minutes.
The University of Bedfordshire has been appointed to undertake an independent evaluation of the child trafficking advocates trial. That evaluation will establish what difference the specialist advocate scheme made for child trafficking victims compared to the existing provision. The success of the trial will be measured by assessing the impact of advocates on the quality of decision-making in relation to the child trafficking victims’ needs by key professionals—for example, social workers, immigration officials and police officers—the child trafficking victims’ well-being; their understanding, experience and satisfaction of the immigration, social care and criminal justice system; and their perceptions of practitioners. The evaluation will include a process assessment to show how the advocate process operated in practice and what might be improved. The early findings show that in the first four and a half months, 59 children were allocated to the child trafficking advocates trial. The advocates are largely perceived by stakeholders to be doing well, and there is emerging evidence of advocates’ positive impact in individual cases.
The point was raised about the college case, where one individual who was being helped by an advocate was having problems being released by their college. The very fact that the advocate was there and was able to make representations to show that the individual’s college record was not being damaged as a result of the necessary meetings she had to attend is a good example of the work that is being done.
I have a copy of the letter for the noble and learned Baroness and I will make sure that she receives it. I am aware that a number of other specific points were raised. I will look very carefully at those and will be happy to write to all noble Lords, particularly the noble and learned Baroness, following this. But I hope that on the basis of those reassurances, the noble and learned Baroness will feel able to withdraw her amendment.
Baroness Hamwee
The Minister is being very clear that there is no difference between “reason to believe” and “reasonable grounds to believe”. Many people who will encounter these provisions will have been used to the “reasonable grounds” formula through dealing with the NRM. This point is relevant to other parts of the Bill as well. Can he reassure the House that the guidance that will be published will make it crystal clear that there is no need to get to that point in the NRM procedure in order for the provisions to bite and to be applied?
Lord Bates
I totally agree with that. I also recognise that the guidance will be a key part of filling in some of the gaps in the information. When the guidance is released, it will be informed by the results of the trial. That will strengthen still further the operation of the role going forward.
Baroness Howarth of Breckland
My Lords, I want to speak briefly on what might appear to be a rather discordant note. I support the government amendments for the following reasons. I have great sympathy with the amendment of the noble Lord, Lord McColl, which has been supported. However, when the noble Baroness, Lady Doocey, raised the issue about child exploitation, we talked about the spectrum of people with needs.
In local authorities there are individuals with as high a level of need as some trafficked individuals—and I am not saying that trafficked individuals do not need a specialist service. I work with some of the relevant organisations, and a specialist service is needed. There are numerous sexually exploited young people who the local authority is attempting to support—the Children Act 1989 was as special as this legislation is—but because of cuts in local authority spending, children’s services are unable to provide the level of service needed, particularly in mental health support services, hostels for runaways and a whole range of services that we would expect to be given to asylum seekers. It is therefore difficult to set a standard for one group of individuals and say that we are not going to meet it for others.
I would be delighted if the Minister were able to say, “We are going to set this standard, and it should be for all individuals who have these needs”. However, under the 1989 Act, children who are described as being in need—there are thousands on local authority books—are simply not receiving those services. I wanted to inject that into the debate because someone has to speak for the local authorities, which are continually derided as not providing services appropriately. I speak as a vice-president of the Local Government Association, but that is neither here nor there. I simply hear from social workers and people in communities who are attempting to deliver services but against all odds. If there are specialist advocates who can give a high-quality service, such as guardians ad litem—I was eight years in CAFCASS, and I know all about the services such specialists are able to give—we need to look to enabling local authority social workers to give such services to every child in need.
Baroness Hamwee
My Lords, we dealt in the previous group of amendments with the distinction, or lack of it, between “reason to believe” and “reasonable grounds to believe”, and to which the noble Lord, Lord McColl, referred. Here, just as on that issue, the guidance will be important in making clear the position. That is because the first few days are so critical, as the noble Lord and others have said.
Guidance will also be important as regards our international obligations, to which the noble Baroness, Lady Grey-Thompson, referred. Looking at Amendment 78, I have been wondering whether it is necessary to detail what are already obligations, or whether one should have simply the general umbrella description, so that we are not stuck on any particular points. It might be necessary because we are, we hope, making quite a step change. It might also be necessary because having them spelt out in primary legislation will be an easier route to a remedy through the courts; but I raise the point because, if the amendment is not accepted, the guidance will be important in that regard.
Lord Horam (Con)
My Lords, I support much of what has been said on all sides. It is clear that this is a matter which will not go away and which the House wishes to be resolved. I came across it repeatedly during my 18 years as a London MP—I probably had similar experiences to those of my noble friend Lady Hanham. It is clear that situations which are simply appalling are happening today in London and they have to be dealt with as soon as possible.
I am afraid that the noble and learned Baroness, Lady Butler-Sloss, put her finger on it: I found that the problem was not the law; the problem was making the law effective. The problem was, as she said, how one got a person out of the hands of an abusive employer into some sort of help. They had no information; they had no knowledge of their rights; they came here in total ignorance of the situation. Practical enforcement is what we have to concentrate on. I am afraid that the law will not help here; it is the reality of the situation on the ground floor. Therefore, I want to ask my noble friend what is really being done about a new contract which goes out with the visa. If a contract goes out with the visa all the time, you are beginning to tackle the problem. If you also have a commissioner who concentrates on those areas—the Philippines, Nigeria, Saudi Arabia and so forth—where the problem mainly originates, you are beginning to tackle it. Unless you do that, all the law in the world will not avail you.
Baroness Hamwee
My Lords, at the previous stage, I commented on the irony that the history of the arrangements for overseas domestic workers was a concession introduced for humanitarian reasons, so that the worker could accompany the family with whom they had been working and would not lose their job. In hearing the experiences that have been related to us, I found it particularly distressing and concerning to learn that a number of workers were informed that, if they were to escape and start work for someone else, they would be working illegally or would be here illegally if they did not approach the authorities. Virginia Mantouvalou in the work that she did in conjunction with Kalayaan reported in her conclusion that the single fear that interviewees who participated unanimously voiced, now that they were undocumented, was a fear of the authorities, of imprisonment and of deportation.
I agree that this is a matter for the rules but what is available to us is primary legislation because noble Lords do not take part in constructing immigration rules. I also agree that a review will not be a waste of time. As my noble friend Lady Hanham said, this amendment will not be a complete solution but it is an interim step and it may give workers who are abused the confidence to get away and seek the help which the noble and learned Baroness has told the House is available. I do not say this lightly, but if I were not to support this amendment, I would feel complicit in slavery and servitude.
Modern Slavery Bill
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Baroness Kennedy of Cradley (Lab)
My Lords, I, too, support the amendments in this group. I shall speak particularly to Amendments 97A and 98A in the name of the noble Lord, Lord Alton of Liverpool. First, as other noble Lords have said, we must give credit where credit is due. The Government have engaged with the issue of transparency in supply chains and have come a long way on this issue since the Bill was first published. Part 6, on transparency in supply chains, was a welcome addition, as is government Amendment 97. I thank the noble Lord, Lord Bates, for his positive engagement with this issue.
Having minimum criteria in the Bill will not only help business, it will help consumers and civil society. It will also help the Government as, with minimum criteria, there will be clarity about what businesses have to provide, thereby creating the level playing field that good businesses need and deserve. Comparisons between companies will be easier to make, helping consumers and civil society to make choices and to apply the pressure needed to make real change happen—to be catalysts for change. Having minimum criteria in the Bill will help give the Government the transparency and the world-leading legislation that they say they want to achieve, but the word “may” in line 2 of Amendment 97 has to become “must”. As the noble Lord, Lord Alton, sets out in his Amendment 97A, without this change, the amendment setting out the minimum criteria that we all now agree needs to be in the Bill is made less effective. The element of uncertainty remains and the level playing field is gone.
I understand the argument that these are minimums, that we should give flexibility to allow more information to be given, not less, and that we want businesses to be able to report appropriately for their business and circumstances, but the lesson from the application of the Californian legislation is clear. While hundreds of organisations issued statements in line with the Act in California, some did not. Some businesses disclosed meaningless information, some disclosed misleading information and, worst of all, some disclosed that they do nothing, as my noble and learned friend Lady Butler-Sloss said. Some have even ignored the legislation and been completely silent. We do not want that to happen.
Part 6 is not a paper exercise for businesses; it is a serious measure that good businesses will want to engage positively with and on an equal footing with each other. It is not fair that the good businesses that are doing excellent work are being undercut and undermined by the bad. Clauses that allow uncaring businesses to write down in less than 200 words, “We don’t do any of this work, and we don’t intend to start”, like the submission—and I will name the company—from the multinational Krispy Kreme doughnuts in California, have to be tightened. That is why I support Amendment 97A in the name of the noble Lord, Lord Alton, and why I have added my name to Amendment 98A.
As monitoring and enforcement of this part of the Bill is crucial, it is not adequate enough to leave monitoring and enforcement to be fulfilled by consumers and civil society alone. It is the job of government to ensure compliance with its legislation. Therefore, I support the proposition put forward in both Amendment 98A and Amendment 98, in the name of the noble and learned Baroness, Lady Butler-Sloss. I was convinced by her argument in Committee that the part of government that should monitor and be responsible for this part of the Bill is the commissioner.
Amendment 98A introduces a requirement for a central government portal where all the annual statements are aggregated online, maintained and overseen by the new commissioner, a role that I understand the commissioner is supportive of. But even if this current commissioner is not supportive of it, we are clearly making legislation for the future, and it should be a role of such a commissioner. Leadership on this issue has to come from government, so the legislation needs to allow for the monitoring, enforcement and review. A government portal will also allow consumers and civil society more easily to fulfil their role of community enforcers. Having one central place that we can all go to to compare businesses, research best practice and analyse reports is simple and practical and an important initiative in our shared fight against slavery and forced labour in supply chains.
Finally, I refer to the last part of Amendment 98A, which will mean the issue of slavery and forced labour will be put on the desk of multinational CEOs around the UK and the world. Many noble Lords in this House have emphasised the need for supply chain transparency to be a corporate responsibility, as it is in the boardrooms of multinationals where real change can be made to happen. Multinational corporations have the power to insist on decent wages and formal contracts for all their workers here and across the world. They have the power to insist on inspection regimes and the power to improve the working conditions of those enslaved by exploitative suppliers. Amendment 98A helps them realise more acutely that they have this power and also encourages them to use it. I support the amendment and hope that the Government will, too.
Baroness Hamwee (LD)
My Lords, again, I welcome the changes that the Government have made on this issue. Changes is the wrong word because we started with nothing, and with the introduction of the new clause the Government have built on that, which is very welcome. I agree very much with what has been said about public procurement; for us to say, “Do as we say”, when we should be saying, “Do as we do”, is probably all that I have to say on that issue.
I agree, too, about the appropriateness of co-ordination involving in some way the commissioner. I have added my name to the amendment proposed by the noble and learned Baroness on that matter. I am grateful to the noble Lord, Lord Alton, for raising the issue of enforcement, without which one has nothing. I was struck by the following from a report undertaken by four students at King’s College London, comparing this Bill with the Californian Act and a US federal Bill not yet in effect. The American legislation is far more precise and detailed as to what is required from the organisations that are covered. The students said that,
“the ‘incentivising’ enforcement methods are questionable as to impact and efficiency. Parliament makes companies follow many other rules—why is this one particularly troublesome?”.
Because I would like to thank them properly, I shall repeat their names—but I reassure Hansard that I shall send the spellings. They are Olivia Rosenstrom, Elizabeth Komives, Tim Segessemann and Helin Laufer. They also commented that,
“a clear structure among all companies makes review and comparison a lot easier for both experts and the public”.
Again, that is very insightful. Those young people go straight to the heart of the matter—rather better than I, many times their age, can do.
Modern Slavery Bill
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I also have Amendments 2 and 3 in this group. The Minister has, quite understandably, urged noble Lords not to endanger the Bill by continuing to seek to improve it—or, to use his words, to improve it “even further”. We must all accept that the Bill has been improved significantly and will be improved, the more so when we get to the end of this stage. We will be considering, I think, 72 government amendments this week.
I well understand, of course, the point that he makes. As much as with any Bill that I have ever known, there is a passion within and outside this House to end up with the best Bill possible, and we owe a lot to a lot of people who work on these issues. What is possible may not be quite the same as what would be if we had another six months, and I accept that some of what some of us would like to see in the Bill needs time for consideration and consultation—more time than we have before the end of the Parliament. I prepared all that to allow other noble Lords to leave the Chamber before I got to the point of my amendment.
We have opportunities for changes or to make sure that the Bill does what we think it does, which we can do without the best endangering the good. With my amendments in this group, I want to be quite sure that Clause 1, whose first two subsections reproduce Section 71 of the Coroners and Justice Act 2009, does not itself, in its additional subsections, become the victim of the best. The term used in subsection (3) is that “regard may”—and I would like to inquire about the purport of that—
“be had to all the circumstances”.
Subsection (4) gives examples of “personal circumstances” that may make someone particularly “vulnerable” to servitude, slavery, forced labour and so on.
I tabled amendments to the same effect in Committee, because I was concerned then, and remain concerned, that “circumstances” is a term used for external matters, while “characteristics”, which is the term I use in my amendment, means things that are intrinsic to the person. Yesterday I went to the Shorter Oxford English Dictionary. I am ashamed to say that I had not realised until then that “circumstance” comes straight from the Latin: “circum” meaning “around” and “stance” from “stare”, meaning “to stand”: in other words, something surrounding—as I say, something external. On the other hand, “characteristic” is defined by that dictionary as,
“a distinguishing trait or quality”.
The distinction that I had been concerned about is borne out by the definitions. A characteristic is not a circumstance.
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.
Baroness Hamwee
My Lords, I wish I had thought of “exogenous” and “endogenous”. I will resist changing the term “characteristics” to “circumstances” when it appears later in the Bill.
However, I remain concerned, for the reasons I gave. I was not just playing with words for the pleasure of playing with words but because of the impact that the wrong word may have on the success or otherwise of a prosecution. It is not really the way to go about it if there is a better way of doing so. One should not rely simply on examples that strain the meaning of the term about which the examples are given. There are better ways of doing it.
As I said at the start of the debate, I understand the Government’s concern to make sure that we get the Bill on the statute book. However, if the Minister is able to look at this matter before Third Reading, I would be very happy for him to do so; I shall certainly not pursue the point today. With regard to the trafficking directive, I look forward to finding out how long “shortly” is in this circumstance. I beg leave to withdraw the amendment.
Lord Judge (CB)
My Lords, I rise because I have been quoted both in judgments and in evidence that I have given, and if I sit here and do not say anything, some might think that I did not agree with what I said last time. Well, I do.
I am concerned about child exploitation. I think that there are cases—and we have certainly been aware of them in court—where children have been exploited in circumstances which it would be difficult to describe as slavery or servitude or forced labour or even human trafficking. Children are exploited in many different ways and I do not think, if I may say so with respect, that the law caters adequately for those who exploit children who are not under some kind of parental or guardian responsibilities.
For that reason, I support the amendment. One problem with this area of the law seems to be that although we can often find the child who has been exploited we do not seem to be very good at hunting down through the chain of exploitation. For instance, we are very concerned, and obviously so, with children who come from abroad and are left in charge of cannabis factories. So far, we prosecute the child. We do not wait to see who is bringing the food once a week that is thrown through the prison door—because the house is no more than a prison. Where are they going? Who are they looking at? Who are they talking to? Who is making the money from the cannabis plant that the child is looking after?
The other feature that I want to draw attention to is how we relate to the provision on the protection of victims—that is, the defence under Clause 45. We provide a defence, which I strongly support, for slavery or trafficking victims who have committed an offence in circumstances that are defined, but the Bill speaks in Clause 45(1)(c) of “relevant exploitation”. Relevant exploitation in the Bill cannot address child exploitation of the kind that the amendment is designed to address. I ask the Minister to look at that, too.
Baroness Hamwee
My Lords, no one could possibly fault my noble friend for lack of persistence or focus, and no one would not want the best legislation for tackling—or, better, preventing—offences against children. I am afraid that I cannot support her amendment. I am sorry about that because I know her ambitions for the Bill, but I understand many of the points made by the noble Baroness, Lady Howarth, about practice. I would have thought that the point just made by the noble and learned Lord about cannabis farms was also one about practice and observation by the police; I would not have thought that a new offence was needed for that to be dealt with properly.
I have heard it said that a separate offence would mean that the police would take the matter seriously, but what we have heard from the criminal justice professionals, as other noble Lords have said, is that it is not a matter of an alternative but that there would be real risks to Part 1 of the Bill. They argue not just that a separate offence is not necessary—we often hear in this Chamber that something is not necessary and tend to ask, “Well, what harm would it do?”—but that in this case there would be harm. Alison Saunders and Kevin Hyland referred to the issue of determining age, which noble Lords have mentioned. This has bedevilled claims for asylum and responses to asylum seekers for a long time.
To add to the point that the noble and learned Baroness made, in relation to the letter that several of us received today from Kevin Hyland, the point about the case which he discussed with her was not just that so much time was spent on the issue of the woman’s age but that, as he writes, it was,
“distracting the jury from the real issue of her exploitation”.
I take that very seriously. I also take the point made by Alison Saunders that the clause would require evidence beyond reasonable doubt that the accused,
“believed, or had reasonable grounds for believing”,
that the person was under 18.
Modern Slavery Bill
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Baroness Hamwee (LD)
My Lords, I have added my name to this amendment, as I did to its predecessor amendment in Committee. Anticipating today’s debate, I had a quick word with the Minister, who helpfully—perhaps he seized on it as a way through today, at any rate—agreed that the noble Baroness, I and others may be let loose in the Home Office in discussions with officials. This is a complex issue. It is right to take considered steps, but steps do indeed have to be considered. The short point, as the noble Baroness said, is that people working in the field—I may say that those I have met are no slouches—argue forcefully for a specific course of action. Given the energy that they put into assisting victims by means of their legal work, I take very serious note of that. I am happy to support the amendment but, more importantly, because this is not something that is going to be solved in a 15-minute debate, to continue the discussion at the Home Office, and I am grateful to my noble friend for that.
I have tabled Amendment 17—I suppose it is allied to this one—about claims in the employment tribunal. Again, I am not seeking a solution today. My amendment, which really is adequate only for the purpose of raising the point, asks the Secretary of States to consult the appropriate people with regard to access to the tribunal by victims of modern slavery. I mention the national minimum wage in particular. If there is an employment contract, a claim must be brought within three months and is limited to two years’ arrears. I mentioned the two-year limit to a colleague in this House and said I was concerned that victims of slavery were prejudiced by it. He said, “Well, if we extended it beyond two years, other groups would want it to be opened up”. I thought that if it was not immediately obvious to someone steeped in what the House is doing that a victim of slavery, servitude or forced labour was unlikely to have been able to have access to an employment tribunal until that situation had finished, then this was something that had to be dealt with in detail and very carefully.
There are new regulations, which have just come into force, providing that from July the two-year restriction will apply. I understand that the Deduction from Wages (Limitation) Regulations were introduced to answer concerns expressed by business over unexpected and unquantified holiday pay claims; they were not aimed at victims of trafficking. Clearly they will affect victims of trafficking, but those victims are not mentioned in the impact assessment that BIS provided for the regulations.
There are other issues, too: for example, there is the family worker exemption, where someone treated as a member of a family is not entitled to the national minimum wage or to any payment at all, but the Court of Appeal—I have had an example of this—has regarded someone who worked 14 hours a day and slept on the dining room floor as being treated as a member of the family. That would have been an overseas domestic worker, and of course I am aware of the review of overseas domestic worker visas, but there are particular issues around the national minimum wage that we must not lose when we are dealing with other parts of this jigsaw.
I appreciate that there are a lot of stakeholders with a great range of interests in employment rights and the danger of unintended consequences is high, which is why I framed my amendment as I did. However, the victims of modern slavery have themselves suffered unintended consequences. All the Minister needs to do to my Amendment 17 is to say yes.
Baroness Butler-Sloss (CB)
My Lords, I have also put my name to this amendment—as with the two noble Baronesses who have spoken, for the purpose of further consideration, not for the purpose of being part of the Bill at the moment.
There are two points that I want to make. The first is that there is clearly a gap. The second is that this would give an opportunity to victims who cannot have the satisfaction of the trafficker prosecuted—or indeed if the trafficker or slave owner is actually acquitted—none the less to take civil proceedings under a different and less onerous standard of care. The criminal law, as I am sure everyone in this House knows, requires the jury or the magistrate to be satisfied so as to be sure, but in the civil courts—the High Court, the county courts or the small claims courts—it is sufficient to have the balance of probabilities. So it gives an added opportunity to those who have suffered to get some redress, even if it does not go through the criminal courts. It is for that reason that we seek the opportunity for the Government to have a look at this to see whether something can be done at a later stage.