Modern Slavery Bill

Debate between Baroness Kennedy of Cradley and Lord Bates

Monday 23rd February 2015 Lords Chamber

[Lord Bates]

My Lords, I am grateful to the noble Baroness, Lady Kennedy of Cradley, for bringing forward this amendment again and for again seeking to get more information on the record about what the Government’s intent is. I will come to the points that have been raised, but I acknowledge and thank the many noble Lords who have taken part in this discussion so far. The discussions have certainly caused us to think about whether further action was needed, and help explain why I tabled a government amendment to ensure that the defence would be easier for child victims to access.

It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective, through the use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process. Clause 45 establishes a crucial additional safeguard: a statutory defence for slavery or trafficking victims.

As the House will recall, at Second Reading I brought forward amendments to make the defence for victims easier to access for child victims. Those amendments removed the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation. We had another good debate in Committee on the detail of the defence. This was followed by further, very constructive, discussions outside the Chamber, which also focused on the needs of child victims. The Government have also engaged further with non-governmental organisations that are expert in this area. Genuine and important concerns were raised then, as they have been today, that the reasonable person test, as currently phrased, could amount to an effective requirement for compulsion for child victims.

I have listened carefully to that concern. On reflection, I, too, see the risk that a test involving the words “no realistic alternative” could be interpreted by some courts and juries as requiring something akin to compulsion of the child victim. I therefore believe that we can go further to ensure that child victims are not unfairly criminalised and that there is no question of an effective requirement for compulsion. Therefore, government Amendment 49 changes the reasonable person test for child victims by removing the reference to the child having “no realistic alternative” to committing the offence.

I know that there remain concerns that somehow the revised test might still require some proof of compulsion. I want to be very clear: the effect of the amendment is that for the defence to apply, there will be no requirement whatever, either implicitly or explicitly, for compulsion of a child victim. If a case reaches court, they will simply need to evidence any source to raise the defence. The evidence need not be extensive. It could involve, for example, the child’s account in evidence, in which they explain in their own words what happened. It is then for the prosecution to prove beyond reasonable doubt either that the child was not the victim of trafficking or exploitation or that they acted unreasonably in committing the offence. If the prosecution cannot reach the very high threshold of showing beyond reasonable doubt that the child acted unreasonably, the test in the revised defence is met.

I know that there are concerns that at times the hypothetical situations which we debate in this House fail to match the realities on the front line. I want to ensure that the new defence informs Crown Prosecution Service decisions about whether to prosecute, rather than just having an impact when cases reach court. I am pleased that the Crown Prosecution Service has committed to ensuring that, once the Modern Slavery Bill is passed, the current CPS legal guidance for prosecutors will be updated to reflect the new legislation. This will include guidance for prosecutors regarding the application of the statutory defence, and specifically the different provisions relating to adult and child victims of modern slavery. This type of practical guidance for front-line professionals is essential to ensure that the defence acts as we intend—as an extra safeguard preventing victims, and particularly child victims, of modern slavery ever facing inappropriate prosecutions.

I have listened to the debate and I know that some noble Lords would like me to go even further down this line. However, I believe that it is appropriate that we retain some limited safeguards. I know and accept that, as my noble friend Lady Hamwee said, the noble Baroness, Lady Kennedy of Cradley, has never gone down that particular line, but I do not believe that it would be appropriate to give broad immunity from the criminal law so that a person could use this defence even when they have committed a crime in completely unreasonable circumstances.

Having proposed the amendment and given me the opportunity to build upon what has already been put on the record with additional assurances and wording— which can of course be taken into consideration should these circumstances ever arise in a court—I hope that the noble Baroness will feel able to withdraw her amendment, recognising that she has, again, moved the Government further along the road along which she wants us to travel.

[Baroness Kennedy of Cradley]

I thank the Minister for that reply, and repeat that I am very grateful for the constructive way in which he and his staff have engaged with me and other noble Lords, and with NGOs that have worked tirelessly on this Bill and on this issue. I recognise that the Government have listened and rethought; I hoped that they might rethink a little further, so I am disappointed that the reasonable persons test will remain in place. I see it as another test of compulsion, and I see it going further than it goes now. I find it hard to imagine how other adults could place themselves in the shoes of an emotionally manipulated child.

I accept what the Minister says and welcome his comments. The final assurances that I asked for—CPS consultation with stakeholders, the new guidance that will be produced, the training for prosecutors and how the new statutory defence will be engaged in the field—are all crucial to make sure that we never see a child convicted for a trafficking offence that they have been forced to do. With those assurances given by the Minister, I beg leave to withdraw the amendment.

Modern Slavery Bill

Debate between Baroness Kennedy of Cradley and Lord Bates

Monday 1st December 2014 Lords Chamber

[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.