Modern Slavery Bill

Baroness Howarth of Breckland Excerpts

Monday 1st December 2014 Lords Chamber

[Lord Mackay of Clashfern (Con)]

My Lords, I underscore what the noble Baroness, Lady Lawrence, has just said about the reason for the Bill. However, one has to remember that the idea of introducing laws to enable prosecutions to take place is not primarily for the purpose of having prosecutions: it is for the purpose of preventing conduct that is subject to prosecution. In so far as it is successful, it will do that. The number of prosecutions that happen under an Act is not necessarily the best test of whether the Act has been successful. If the conduct which is penalised under the Act stops, that is the best kind of success you can have, and with no prosecutions at all you are even better off.

I entirely accept the view that the Bill should clearly be dealing with the complete amelioration of the tragic circumstances of those who are subject to slavery, trafficking or exploitation. However, I wonder a little about the way in which the proposed new clause is constructed. First, I entirely agree with the noble and learned Baroness, Lady Butler-Sloss, that judges of a Family Division know exactly what is meant by the “best interests” of the child in relation to disputes between parents about the child’s future. However, this is a more difficult issue. I shall make another point about that in a minute. To what extent does the court have power to determine the future circumstances of a victim of slavery, for example? That is a very important aspect of securing the best interests of the victim. I think we all would like to see the best interests of the victim secured but how you go about that, and which powers the court needs to secure that, is something we need to hear a little more about.

Secondly, I find it hard to distinguish between the circumstances in proposed new subsection (1) and those in proposed new subsection (2). I think that the court is a public authority. However, the power is based on interpretation by the court. The court has to interpret the provisions in such a way as to secure the best interests of the victim, whereas in proposed new subsection (2), it is a question of the public authorities and the Secretary of State, in exercising the powers given by the Bill and, ultimately, the Act, having the power to secure the best interests of the victim. I find it hard to know why that should be different and why proposed new subsections (1) and (2) should not have exactly the same framework. I do not object at all to the court being specially mentioned as one of the public authorities, but the powers conferred by proposed new subsection (2) would be better from the point of view of achieving the result in question.

There seems to be a somewhat unnecessary elaboration in proposed new subsection (3). It starts saying what the personal circumstances are but then gives up and refers to anything else that is relevant. Starting to make a definition that you cannot effectively complete strikes me as possibly unnecessary. If a new clause of this kind were to be incorporated, possibly with some elaboration, it may be wise to leave it at the personal circumstances of the victim.

[Baroness Howarth of Breckland (CB)]

My Lords, whatever the technicalities involved in placing a clause at the beginning of a Bill, I urge the Government to consider putting victims very much at the heart of this legislation. Unlike the noble and learned Lord, Lord Mackay of Clashfern, I was not in the House when the Children Act 1989 went through Parliament. However, I implemented the provisions of that legislation. Children were very much at the heart of that legislation and, because of that, work focused on children moved forward substantially. A similar situation has occurred with care issues. However, we know that despite that we have still not fully implemented the children’s legislation and much care legislation still waits to be addressed—never mind acted on—on the ground. Given the pressure on resources and the problems of implementation, which are myriad, I fear that unless victims are mentioned at the beginning of the Bill there will be no forward movement on this issue. The Minister may say that the Government have a plan to do that and many other things. However, placing victims firmly at the forefront of the legislation ensures that people’s minds are concentrated on them, particularly in local authorities, the police and other services. For that reason, I encourage the Minister to consider the amendment or, if not this one, something like it.

May I make one more point in response to something that the noble Baroness, Lady Hamwee, said? It is complicated with adults, many of whom, particularly those in the 19 to 20 age range who were taken into prostitution as young girls and some of whom have been seen as runaways for years—we are only just recognising what the runaway issue is—may say that they definitely do not want any intervention. But is it in their best interests? We all know that they will have been indoctrinated, groomed and terrified and we often have much more work to do to intervene with them. So it is not easy, but we need them right at the centre of this legislation.

[Lord Harries of Pentregarth (CB)]

My Lords, for the reasons that have already been stated, and another one, I think that the amendment would set the right tone at the beginning of the legislation. The noble Baroness, Lady Hamwee, thought that it might be more important to look in more detail at specific clauses to make sure that the victim—or the survivor, as she helpfully puts it—is to the fore, but I do not think that these two approaches are mutually exclusive. If we put this at the front, it will get the tone right.

The noble Baroness quite rightly posed the question of what difference this would make. It seems to me that it might make a difference in the way the police go about prosecuting. I take it for granted that they would already be sensitive to the victim and take into account their protection, safety, physical well-being and mental state. However, one can imagine a situation where people get so focused on prosecuting that all that gets slightly pushed to one side. Having something like this setting the right tone at the beginning and running through the Bill would ensure that that is counteracted.

I hesitate to trespass on or even say anything in relation to the ground covered by the noble and learned Lord, Lord Mackay, but would not the courts have to make decisions about which witnesses are called and how they are called? Is it not important, as they do that, that they should always bear in mind what is going to be in the best interests of the victim and not just focus on simply achieving a prosecution? For those reasons, and the other ones stated, I support this amendment.

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[Baroness Howarth of Breckland (CB)]

My Lords, I support the three government amendments and I shall also speak to Amendment 100. This is when, as the Minister said, we start to put victims at the centre of this legislation. The issue of consent is certainly a complex and crucial one, but we have managed to tackle the general concept in this legislation. It takes me back to wanting a general concept at the beginning of the Bill that sets the tone of the Bill. I thank the Government for using the age limit of 18. It would have been easy to take a different age limit, but we have established that 18 is the age at which children stop being children. We know that many of them are still extraordinarily vulnerable, but this legislation does say something about that.

I want to comment on the one-year period in the amendment of the noble Baroness, Lady Hamwee. I think that one year is quite a short time and that a review is essential. I hope that, because the Bill has been taken through its stages so well—unfortunately, I did not have the opportunity to speak at Second Reading, for a number of reasons—it would benefit from post-legislative scrutiny at a proper time, 18 months to two years on. We should set that into the legislation somehow, so that we are absolutely sure that we can look at this in detail. I think that a year is very short for something as complex as this and that a review is necessary.

[Lord Bates]

I am grateful to noble Lords for tabling amendments relating to the offence of slavery, servitude and forced or compulsory labour in the Bill, and raising the issue of whether a wider offence is needed. I reflected, ahead of Committee, on the definition of this offence and I will move government Amendments 4, 7 and 101 to clarify the offence and ensure it can clearly be used in cases where the victim is a child or vulnerable.

This offence will replace the existing offence of slavery, servitude and forced or compulsory labour set out in Section 71 of the Coroners and Justice Act 2009. This is an important offence which captures grave and often degrading behaviour. Under the Bill, the maximum penalty will be increased to life imprisonment. A person commits this offence if they hold another person in slavery or servitude or require another person to perform forced or compulsory labour. These terms are defined with reference to Article 4 of the European Convention on Human Rights. Through its decisions, the European Court of Human Rights has provided clear guidance on the meaning of these terms.

I am particularly concerned that our offences should be effective in the case of child victims, who are often very vulnerable. That is why, following the pre-legislative scrutiny report, we clarified the Clause 1 offence to make it clear that, when deciding whether an offence has been committed, the court can consider someone’s personal circumstances, including their age. Following Second Reading, I have considered the issue of child victims and very vulnerable adults further and I have tabled amendments that do more to ensure that the offences clearly cover their specific circumstances.

Government Amendment 4, for which I am grateful for your Lordships’ wide support, makes it absolutely clear that, when assessing whether an offence of slavery, servitude and forced or compulsory labour has taken place, the police, prosecutors and the courts can look at the particular vulnerabilities of children. I have also reflected on concerns that the Bill is not yet sufficiently clear on the meaning of “child”. For the avoidance of doubt, I have tabled government Amendment 101 to make clear that “child” refers to a person under 18, a point made by the noble Baroness, Lady Howarth, and very much part of the recommendations made by my noble friend Lord McColl and the noble and learned Baroness, Lady Butler-Sloss.

I also understand the concerns expressed at Second Reading in another place, and during the pre-legislative scrutiny committee’s inquiry, that there may be a perception that to achieve a successful prosecution will require evidence that a person has not consented to being held in slavery or servitude or required to perform forced or compulsory labour. That is a point that my noble friend Lady Hamwee made. In cases of children, there may not be clear evidence of lack of consent because adults often control children in subtle ways, and children may not even realise that they are victims. My noble friend referred to that often very complex relationship between the perpetrators and their victims. I want to ensure that law enforcement, prosecutors and the courts are clear that, in accordance with existing case law, the lack of consent is not an element of the offences in Clause 1 that has to be proved to secure a conviction, and therefore a person’s consent does not prevent a finding that the offence of slavery or servitude or forced or compulsory labour has been committed.

Government Amendment 7 makes sure that, even where a victim consented to the situation they were placed in, the court can find that the situation amounted to slavery, servitude or forced or compulsory labour. This applies explicitly to both children and adults. We want to protect children and very vulnerable adults from modern slavery. This is a point that my noble friend Lord McColl referred to in highlighting some of the circumstances, particularly debt bondage, that people are in.

I understand and share the sentiments behind the alternative Amendment 8, which was spoken to by the noble Baroness, Lady Royall, and would make consent simply irrelevant when determining whether a Clause 1 offence had been committed. However, we have not chosen to take that approach, for two reasons. First, in our view it would be inconsistent with the European Court of Human Rights case law, which is clear that consent can be considered when assessing overall whether forced or compulsory labour has taken place. Secondly, this approach could inadvertently actually make it harder to secure convictions, which none of us wants. In some cases the victim will clearly have refused to consent to their treatment in some way. In those cases their lack of consent will be relevant evidence for the court to consider, and may well help to demonstrate that the offence has been committed. This amendment would prevent a court from considering this evidence—something that none of us wishes.

My noble friend Lady Hamwee asked a very pertinent question, which sent a flood of notes back and forth to and from the Bill team, on whether the strategy document, on which the ink is yet to dry, is open to amendment. You could see officials wincing at the prospect, but this is something that needs to be kept under review. I refer my noble friend to Clause 42, which refers to the role of the anti-slavery commissioner and his requirement to produce strategic plans and annual reports; those reports will come before Parliament and we will have an opportunity to discuss them. I hope that in some way that goes to answering her question. I am grateful to her and my noble friend Lord Dholakia for tabling amendments that have allowed me to test out whether the wording in the offence around considering a victim’s circumstances and vulnerabilities works in the way that the Government have always intended.

I turn to a specific question asked by my noble friend Lady Hamwee. In Clause 1(4) we use the term “may”, and she asked whether it should be “may” or “shall”. “May” was carefully chosen in this context to give the courts the flexibility to exercise their judgment appropriately. There will be many circumstances in any case and some will not be relevant as to whether a Clause 1 offence was committed. The term “may”—rather than, for example, “shall”—was used to avoid a court having to consider every single circumstance in every single case, whether or not they are relevant. That was the purpose behind that.

Amendments 2, 3, 5 and 6 all relate to Clause 1(4), which specifies that, when determining whether a person has been held in slavery, servitude or forced or compulsory labour, regard may be had to any of the person’s personal circumstances which may make them vulnerable. I can reassure noble Lords that the subsection gives a non-exhaustive list of the kinds of personal circumstances that may be considered to make someone more vulnerable than other persons. This list is just to offer examples. The clause specifically states that,

“regard may be had to any of the person’s personal circumstances”—

some being mentioned in parenthesis—whether they are on that list of examples or not.

With this in mind, we do not think that we need to add further examples to that list which could risk creating the impression that it is supposed to be comprehensive. We are also confident that the phrase “such as” is sufficient to make it clear that this is a non-exhaustive list of examples, and have made this point clear in the Explanatory Notes.

The proposed new clause in Amendment 100 suggests that we place in statute a requirement for a review of a number of Acts of Parliament to look specifically at whether existing offences adequately protect victims of exploitation. We will turn to the detail of the Bill’s definition of exploitation in a later group. I welcome the sentiment behind this amendment. I have been looking carefully at the detail of the offences, as has the Minister for Modern Slavery and Organised Crime. We have been asking if there are examples of potential gaps in the law where conduct that amounts to modern slavery might not be appropriately criminalised. I must say that we have not yet identified substantial gaps, but I want to get this Bill right and remain very keen to hear about any problems which have been highlighted. The examples given by my noble friends Lady Hamwee and Lord McColl are very helpful in this regard and we will reflect on them.

I am also committed to keeping the effectiveness of this Bill—including the offences—under review after it becomes an Act. This will happen both through the work of the Independent Anti-slavery Commissioner and through post-legislative scrutiny. For this reason I do not believe that a review of the Acts listed in the amendment is necessary at this stage. However, I place on record in this House the Government’s commitment to providing post-legislative scrutiny on the Bill in the usual way within three to five years of Royal Assent, an issue raised by the noble Lord, Lord Alton, at Second Reading. The Government will consult the Home Affairs Select Committee on the timing of publication of the memorandum. In light of this assurance, I hope that the noble Baroness will feel able to withdraw her amendment and that noble Lords will support the amendments in my name. I beg to move.

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[The Lord Bishop of Derby]

My Lords, I stand as an Anglican priest alongside the noble Lord, Lord James. We need to be reminded of that harrowing sequence of stories because they illustrate how easily children are exploited, even within the establishment and among the powers that be. I put my name to Amendment 9 and, at this stage, I want to endorse the points made by my colleagues on the Select Committee, the noble Baronesses, Lady Doocey and Lady Kennedy, based on the evidence we heard. I, too, found it very persuasive.

I am delighted that the Government have moved considerably in putting children more strongly in the wording of the Bill. As the noble Lord, Lord Rosser, said, there is precedent for specifying children, in the Sexual Offences Act. In response to the noble and learned Baroness, Lady Butler-Sloss, I would say that, clearly, we need improved training and practice. My point is that making children specific in this way will draw attention to the kind of training and practice that needs to be developed.

I endorse the importance of making children specifically visible in this legislation. There is a great temptation in our culture to treat children as young adults. From a very early age, they are economic agents and they dress as though they are 20 years older than they are. It is very easy for children to get lost in the whirl of society. We have heard the references to the terrible cases in Rochdale and other places. To protect children, it may be important to make them visible in legislation in a way that draws attention to their childlikeness. That would encourage the law, its practice and its training to take seriously the gravity of this offence.

[Baroness Howarth of Breckland]

My Lords, I would ask for some clarification. I am becoming very confused about the difference between the idea of slavery and trafficking and that of child neglect and exploitation, which we have been dealing with for many years through general children’s legislation. Listening to the noble Baroness, Lady Doocey, describe her cases, as an ex-director of social services and a social worker, I am appalled that action was not taken. However, I know that it is difficult to work between the criminal and the civil law. Under civil law, social services will act to remove a child and protect it, while at the same time trying to act through the criminal law against the perpetrators. There may be a gap there. Others have worked for years trying to ensure that those things hold together, but that is different from having a new piece of law about exploitation that then overrides the existing provisions in children’s legislation. Is the Minister prepared to look at this, maybe with lawyers, to see whether there is a gap in children’s legislation which this could plug and whether we are not being firm enough about practice and training?

We have seen what happened in Rotherham. In talking to the police this morning at a round-table meeting following the work that the all-party parliamentary group did on children and the police, it was quite clear that they have learnt a great deal and are moving in their practices and procedures. We will see change there. I would like to ensure that similar change happens in local authorities because, although there is good practice, as a former local authority worker I am sometimes appalled and ashamed at what we do about poor practice. I have two questions for the Minister. First, is there a gap? Secondly, what are the Government doing to ensure that everyone is encouraged to practise within the existing law to the highest possible standards?

[Baroness Hamwee]

My Lords, “cautionary” strikes the right note. I am glad that the noble and learned Baroness added to my lexicon. I was searching for the right term and I share her caution.

The EU Rights of Victims of Trafficking in Human Beings, which was published last year, makes it clear that:

“The child’s best interest shall be a primary consideration and shall be assessed on an individual basis”.

That reflects the directive, which refers to a child-sensitive approach but does not provide for a separate offence relating to children. It deals with penalties and special treatment but makes it quite clear that children are within the overall offence. The noble and learned Baroness also referred to the issue of consent, with which we have just dealt.

The forms of exploitation that are listed in the amendments and about which we have heard today are absolutely abhorrent, but I am one of those who are concerned that we do not inadvertently weaken the position in looking after children. In its pre-legislative scrutiny of the Bill, the Joint Committee on Human Rights refers to,

“the Optional Protocol to the Convention on the Rights of the Child”,

and says what a shame it is, in effect, that the Government have not responded to that in time for the detail of the response to feed into the Bill. Having made that criticism and referred to that more up-to-date piece of work, the committee goes on to say that although it is “sympathetic”, it recognises that,

“there is considerable evidence to support the Government’s view that there is likely to be a serious practical problem in prosecuting child-specific exploitation and trafficking offences”,

for the reasons that it sets out in the report. I, too, take the Government’s—and indeed the DPP’s—point about proof of age. Age may be an aggravating factor that will go to sentence, which is how I think it should be dealt with.

Reference has been made to article 2 of the directive. Indeed, as has been said, the amendment quotes from article 2. However, as I read it, those words are there not as a stand-alone offence but, in effect, to define exploitation in the context of trafficking for exploitation. Those words are in article 2.3, although the offence is in article 2.1. We will come on to this, and I am prepared to at least be persuaded that we have not got the definition of trafficking wrong. There is a lot of concern that trafficking, as it is dealt with in Clause 2, is not spelt out sufficiently extensively. Article 2 of the directive uses terms including “harbouring” and “reception”, which might answer at least one of the examples that we have heard about. The description of exploitation in article 2 is not there, as I read it, as a separate stand-alone offence.

I cannot let this go without echoing the points that have been made about both practice and training. They are not central to these amendments but, my goodness, they are central to the whole way in which, as a society, we respond through a number of different agencies—and indeed as individuals—to the abhorrence of slavery and trafficking.

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[Baroness Doocey]

I am grateful to the noble Lord, Lord Alton, for that interjection, which is very timely and demonstrates clearly the points I am trying to make. The other important point is that almost every senior barrister working on these prosecutions, whether advising the CPS or the police, takes the view that it is absolutely vital to have a separate child exploitation clause. Therefore, I am pleased that the Minister has said that the Government are willing to see more evidence, which we will make sure is provided, and to look again at this, because I have absolutely no doubt that we need it as a matter of urgency. How many times have we heard about a major scandal, where we then have a major investigation and hear lessons have been learnt, only to find a couple of months later that something very similar happens? Lessons are not learnt. Let us legislate to make sure not just that there is the corporate memory that is needed but that we can actually prosecute people for this.

[Baroness Howarth of Breckland]

Is the noble Baroness absolutely convinced—because she sounds as though she is—that simply having a new law on the statute book will change this? We have a plethora of laws on the statute book at the moment and children languish in situations of neglect and exploitation—a range of different situations—simply because there is poor practice, a lack of resources and a total lack of understanding. Does she really believe—she probably does but needs to convince me—that another statute will actually change all that?

[Baroness Doocey]

Yes, the answer is that I do. The reason I do is because everyone who works with children and works in this field on a daily basis, and whose job or life is about trying to deal with child exploitation, believes that it will make an enormous difference. Therefore, I have no need to be convinced because I am utterly convinced. However, having listened to the Minister say that the Government are listening and are perhaps willing to moderate what they are going to do, I am happy to beg leave to withdraw the amendment.