Modern Slavery Bill

Baroness Kennedy of Cradley Excerpts

Monday 1st December 2014 Lords Chamber

[Baroness Kennedy of Cradley (Lab)]

My Lords, I speak in support of Amendment 9 in the name of the noble Baroness, Lady Doocey. After sitting next to her for months in the work of the joint scrutiny committee, I feel that I can now describe her as my noble friend. Today I speak not only for myself but on behalf of my noble friend Lord Warner, who is unable to be in his place. I also support Amendments 24 and 26 in the name of my noble friend Lord Rosser.

Children who are victims of exploitation and trafficking need to be uppermost in our minds as we discuss the detail of the Bill. There is nothing more heartbreaking than seeing children—babies even—being abused for profit and personal gain: denied a childhood, denied an education and stripped of their life chances. Where better to start putting children at the heart of the Bill than Part 1, where we set out what we as a society find unacceptable?

As the noble Baroness, Lady Doocey, said, we should take the opportunity afforded to us by the Bill to give children the greatest protection we can and amend Part 1 to create a specific offence of child exploitation and a specific offence of child trafficking. This would make it explicit that this country will not tolerate such child abuse: that we have a national agenda to drive child exploitation off our streets and child trafficking out of our communities and country.

The amendments make clear and unequivocal our intent to prosecute those who traffic and exploit children. The noble and learned Lord, Lord Judge, said, when he gave evidence to the joint scrutiny committee:

“I think domestic legislation should say, ‘We mean this. It is defined as that’”.

I took this to mean that if we want our criminal justice system to drive up prosecution rates and convictions for child exploitation and trafficking, we need clarity of language. I believe that the amendments seek to give us that clarity. They are simple and direct and say exactly what we want to happen. If you exploit or traffic a child, you will be prosecuted.

The open-ended nature of Amendments 9 and 26 is also important. The evil ingenuity of the criminals who exploit children is truly shocking. As well as the prolific sexual exploitation we hear of, we have more babies being bought and sold; more children used to smuggle, produce and distribute drugs; and more child benefit fraud and street begging—to the extent where one child can make a gang around £100,000 a year.

The nature and types of exploitation that children are subjected to are continually evolving. We have recently seen increases in children being trafficked for the forced extraction of their blood and hair for rituals taking place here in the UK. Any definition of offences that we agree has to be as future-proof as possible so that, no matter how evil the mind of the criminal, the legislation will apply and protect.

Amendment 9 also makes it clear that, even if the exploiter has a lawful authority over the child, it is irrelevant. This is particularly important as children are sometimes exploited by their family members, and by members of their own community. The child may not even realise that they are being exploited. Some children may feel that their begging, for example, is contributing to the family finances and therefore are happy to do it and see it as part of their normal daily life. Making it clear that exploitation of a child is unacceptable, no matter who is asking them to do something, is absolutely essential.

Setting out a specific offence of child exploitation and child trafficking also makes it clear that an exploitative situation involving a child is distinct from one involving an adult, because a child can never consent to their own exploitation. Therefore, the evidential threshold for charging a person with child exploitation is lower, and proof should be easier as consent and compulsion need not be proved. Amendments that lead to a greater understanding of this lower evidential threshold among everyone involved in our criminal justice system, from judge to jury, will lead to more successful prosecutions.

Some have said that separate offences may complicate or confuse, but I have confidence that the professionals working in our criminal justice system will be able to cope with particular offences against children as well as the general offences. I think that separate offences would lead to less confusion, not more, and should not be either specific or general; they can and should be both. A specific child exploitation offence would also increase the focus on the non-sexual forms of child exploitation and help ensure that all forms of child exploitation are prosecuted. It will also raise awareness of non-sexual forms of child exploitation across the criminal justice system.

Child trafficking is on the rise and child exploitation is on the rise. The nature of both is constantly evolving. Specific offences in these areas are necessary. They will drive up prosecutions and help the system always see children as victims whom we need to protect. I hope that the noble Lord, Lord Bates, will reflect on the debate and the serious points made here today. If he is unable to agree anything regarding the amendments today, I hope that he will facilitate more discussion between now and Report for us to further discuss the points raised in the amendments.

[Lord Patel (CB)]

My Lords, I rise briefly to support the amendment of the noble Baroness, Lady Doocey, to which I have put my name. The reason why I strongly support it has been given by some of the noble Lords who have already spoken. We have evidence that the current levels of prosecution for trafficking children are woefully low. In fact, they are negligible. The Minister might correct me by giving me the exact number of prosecutions.

We also know that children face many different kinds of abuse and exploitation at the hands of traffickers, and that they represent a quarter of all known victims of modern slavery. The government amendment to Clause 2 is limited to consent to travel, which is not part of the international definition of trafficking. It is the exploitation itself to which the child cannot consent, not the level of travel. I am concerned that this will serve only to create further confusion over what ought to be a simple definition of child trafficking.

The noble Baroness, Lady Doocey, referred to the evidence in the Rotherham cases, among others, and demonstrated practitioners’ continued confusion over the consent of child victims of exploitation and society’s failure to prosecute those who abuse children. A child exploitation offence would contain a simple definition of child exploitation that includes the range of exploitation that children face. Some of it has already been mentioned by the noble Baroness, Lady Kennedy. A separate offence of child exploitation would help to bring abuses to prosecution and conviction. Therefore, I support the amendment. However, I intend to listen to the other arguments, particularly those of the noble and learned Baroness, Lady Butler-Sloss, who is about to speak, who may have a different opinion.

--- Later in debate ---

[Lord Bates]

My Lords, I thank my noble friends Lady Doocey and Lord James of Blackheath, and the noble Lord, Lord Rosser, for moving and speaking to their respective amendments. In this group of amendments, I will spend most of my time addressing the arguments made by my noble friend Lady Doocey, with which we are very familiar. I do not mean that in a sense that is in any way derogatory. I realise how passionately she feels about this, and she has been consistent from the period of pre-legislative scrutiny, when she served as a distinguished member of the committee on the draft Bill, which did so much good work. The noble Baroness consistently argued for this specific offence. I hope she might accept in return that, if there were a convincing case and the Government felt that there was a gap that needed to be filled, and given our track record of making changes in this area, we would move to support this without hesitation. At the moment, we are waiting for the evidence that this is the case.

I want to deal with some of the points that have been made and the case studies that have been given today. The offences provided for in the Bill have been changed three times already, especially those regarding children, who are particularly vulnerable in the circumstances of modern slavery, as was said by the right reverend Prelate the Bishop of Derby. We made changes after the Bill was published, following pre-legislative scrutiny. We made changes in Committee in another place after debate there, and today I moved amendments in the previous group to highlight this.

Our debate on this important issue effectively centres on whether this specific offence is needed, or whether it is already covered. There is then a second set of arguments about whether, given some of the practicalities surrounding securing a conviction in this area, we might end up in the perverse situation—which none of us wants—where it is more difficult to secure a conviction than would be the case using the general provisions in the Modern Slavery Bill or in other legislation.

It is important to remember that we have not just one but a number of relevant pieces of legislation for tackling this sort of child exploitation, as was alluded to by the noble Baroness, Lady Howarth. We have the Sexual Offences Act 2003, relating to sexual exploitation, and we have the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. We have Section 71 of the Coroners and Justice Act 2009, which was referred to by the noble Lord, Lord Rosser. Perhaps I may consider that particular Act, because we looked at it following our discussions in the interregnum between consideration of the Bill on Second Reading and the start of Committee stage. As to whether the slavery offence in Section 71 has been used, the Crown Prosecution Service has given us the example of a woman who was sentenced to seven years’ imprisonment for attempting to sell her baby for £35,000. She was convicted of conspiracy to commit child cruelty and of holding another person in slavery under Section 71 of the Coroners and Justice Act 2009. An agent who acted as a broker was sentenced to nine years’ imprisonment for the same offences, so this legislation is being used.

I return to a point that I make no apologies for repeating time and again: this is not a finished document. To use a phrase that was first used in another context by my noble friend Baroness Hamwee, we are lifting the stone to find the full scale of the horrors that lie beneath. We then need to try to work together to see how we can begin to tackle it. The noble Lord, Lord Patel, made the point that the number of prosecutions is woefully low. We absolutely agree: the number of prosecutions is woefully low compared to the number of victims we know or suspect to be out there.

That is why we are trying to come forward with measures that make this easier for children. We want to give them protection and advocates, and ensure that they have special circumstances. If they come forward in court, there are statutory defences. There are ways in which they can present their evidence in court, either by Skype or behind a screen, and there are ways in which their identity can be protected. We are all looking to find these ways. We are working with the Crown Prosecution Service and the Director of Public Prosecutions and finding out what they need to do the job that we are asking of them: to increase the number of prosecutions so that there are fewer victims of these cases.

I turn to a few of the examples that were raised. I want to underscore the simple argument that I made at the outset. My noble friend Lady Doocey asked about children who are exploited or forced to beg, and this point was also raised by the noble Baroness, Lady Kennedy. The amount of money that can be secured through this is extraordinary. One can see why that crime, heinous though it is, is being committed in such an evil way by organised criminals. If a child is used for begging, this could constitute child cruelty contrary to Section 1 of the Children and Young Persons Act 1933. This offence is committed when a person with responsibility for a child aged under 16 wilfully ill treats or neglects them, and it is punishable by up to 10 years’ imprisonment.

Another example that was given was the exploitation offence of a child being used for benefit fraud. If a child was trafficked for benefit fraud, that benefit fraud would be a relevant exploitation and this would constitute an offence under the Bill. It could form part of a slavery and servitude provision, to which we have already referred. If trafficking was not involved, someone who used a child to obtain benefits would be found guilty of an offence under the Fraud Act 2006 and would be liable to a maximum penalty of 10 years’ imprisonment.

Herein lies another point of which we are conscious, as the Director of Public Prosecutions and the Crown Prosecution Service certainly are too. This is that because we are now increasing the maximum sentence from 14 years to life imprisonment, there is clearly a variation between the types of appalling treatment of children we are seeing. We need to consider whether trying to prosecute somebody who has exploited a child for benefit fraud under that type of clause would lead to the conviction that we all want. I am not arguing that this is happening, but the Crown Prosecution Service tells us that it could potentially happen. My noble friend Lady Doocey mentioned children being brought into the UK from so-called baby farms, which is another heinous activity. However, this practice would involve illegal adoption, which is prohibited under the Adoption and Children Act 2002.

We have said all the way through this that there are many offences, and many avenues that are available for prosecutors to pursue. However, we all acknowledge that, at present, prosecutions are not happening to the level that we want to see. To return to the point made by several noble Lords, that is why we need to increase awareness of the problems that are happening. We are seeing that happen through television advertisements and, not least, through the publicity that has been given to the proceedings in your Lordships’ House. It is also happening through the excellent work of NGOs and charity groups outside your Lordships’ House. These groups are drawing attention to the fact that this crime actually happens here, which was the title of the Centre for Social Justice report that started people thinking about this term of “modern slavery”.

The argument is not that the law is deficient in remedies or provisions that can lead to prosecution but that we need to encourage the police and responsible authorities to bring such prosecutions. Page 13 of the report on the national referral mechanism highlighted where the referrals came from. I was shocked to see that the proportion of cases coming from local authorities, which are often the first to come into contact or suspect that there might be an issue, was very low—at 9%. Non-governmental organisations, the work of many of which has been referred to, were responsible for referring 21% of cases, with the police referring 25% of cases. An Independent Anti-Slavery Commissioner who would carry weight and gravitas and understand the issue, and who could make sure that all authorities were fully aware of their responsibility and of the warning signs to look for in child exploitation, would seem to me the right track to head down.

I am not saying that we are at this point ruling out a new offence in perpetuity or even in the very short term. We have said that we will go back to the Crown Prosecution Service, the DPP and the National Crime Agency, which is taking an increasing lead in this area, and say, “Listen, what is your experience? Does this need to be tightened? Does it need to be strengthened? Can you bring forward the prosecutions?”. We will try to get that review undertaken before Report, so that, should my noble friend wish to come to your Lordships’ House at that point, we might have more information available.

The new clause proposed by my noble friend Lord James in his Amendment 29 seeks to address behaviour related to the movement of children where there is no parental or guardian consent for doing so. I recognise that there are a number of scenarios where a child could be removed and placed in residence away from their parent or guardian without their consent, and not always with the apparently beneficial effect that my noble friend referred to in his father’s case. The Bill focuses on the high-harm crime of human trafficking, where a person is moved with a view to exploiting them. In cases where a child has been moved without the consent of parents or guardian, but where there was no intent to exploit the child, the individual who has moved the child may be charged with illegal adoption, immigration offences or kidnapping, depending on the facts of the case.

We want to keep these matters very much under review. We have questions based on the availability of evidence and still have some time between now and Report to review that. We will continue to be open to that and will look forward to looking at it again at that point. In the mean time, I ask my noble friend to consider withdrawing her amendment at this stage.

[Baroness Kennedy of Cradley]

My Lords, before the Minister sits down, perhaps I may seek clarification on one point. One of the reasons for introducing the Modern Slavery Bill was a desire to have in one place all the offences that relate to slavery and servitude. In his response to the gaps identified by the noble Baroness, Lady Doocey, he referred to other Acts—which are therefore not in the same place. If the objective of the Bill was to get clarity and to put all the legislation in one place, is that not a strong argument for the review and for separate offences? From the Minister’s answer, it sounded like the gaps identified are not covered by the Bill.