Modern Slavery Bill

Baroness Young of Hornsey Excerpts

Wednesday 3rd December 2014 Lords Chamber

Moved by

[Baroness Young of Hornsey]

34: After Clause 7, insert the following new Clause—
“Civil remedies
(1) The offences under sections 1, 2 and 4 shall also constitute civil offences of modern slavery.
(2) A victim of a modern slavery offence may bring a civil claim against any person who commits a civil offence against him under sections 1, 2 and 4 for the recovery of damages, injunctive relief, and any other appropriate relief.
(3) It is not a defence to liability under this section that a defendant has been acquitted or has not been investigated, prosecuted or convicted under section 1, 2 or 4 or has been convicted of a different offence or of a different type or class of offence.
(4) An action under this section must be commenced no later than 6 years after the later of the date on which the victim—
(a) left the situation of modern slavery; or(b) attained the age of 18.(5) The period specified in subsection (4) may be extended where the court considers it just and equitable to do so.
(6) A civil claim brought under this section shall be stayed until the resolution of any criminal proceedings against a defendant which arise from the same act in respect of which the victim has made the claim.
(7) Damages awarded under this section shall be offset by any compensation paid to the victim for the same act pursuant to section 8 or an award paid to the victim for the same act by the Criminal Injuries Compensation Scheme.
(8) This section does not preclude any other existing remedies available to the victim under the laws of England and Wales.
(9) Legal aid shall be provided to enable a claim under this section to be brought.
(10) In a successful action under this section, in addition to any award of damages or other relief, the victim’s costs shall be recoverable against the defendant.”

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[Baroness Young of Hornsey (CB)]

My Lords, I am grateful to Parosha Chandran, standing counsel to Anti-Slavery International, of which I am a patron, for her support and advice in tabling this amendment, and to Focus on Labour Exploitation for its briefing on the subject.

The point of the amendment is to provide another tool to help gain access to justice for the victims of trafficking and enslavement. In the Bill, compensation is currently limited to providing compensation as a result of criminal prosecution. Civil remedies tend to be simpler and more accessible. This amendment on civil remedies has three interrelated objectives: first, to provide an effective way of reducing the financial profitability of slavery, trafficking and exploitation by imposing civil damages against those who engage in the activity; secondly, to create a deterrent effect; and, thirdly, to enable victims to be adequately compensated for harm done.

As many noble Lords will know, the civil standard of proof is set at a different level from that required in criminal prosecutions. These cases will be judged on whether it is probable that a civil offence took place rather than beyond reasonable doubt, as is the case with criminal offences. Amendment 34 will not affect other existing remedies, such as employment law claims, other civil actions for damages or claims under the criminal injuries compensation scheme, which will still operate where necessary and appropriate. This set of new modern slavery civil liability offences will not prevent a victim’s reliance on those instruments; they will still have a job to do.

The characteristics of contemporary forms of slavery and exploitation are very diverse and include: debt bondage; the physical and psychological abuse of vulnerable people; the absence of direct physical harm; threats of denunciation to the authorities; and fear of actual or potential violence directed at the victim, their families and loved ones. The nature of these contemporary forms of slavery and the lasting harm done to victims is not always best served by the existing, more traditional routes to civil remedy. Thus the amendment seeks to identify civil law counterparts to the criminal offences of trafficking, forced labour and enslavement. This is needed because, for example, false imprisonment or harassment in civil law do not relate to the totality of the experience of being enslaved and its psychologically damaging aftermath. How can a claim be brought against a trafficker for breach of contract when there is no contract in most of these cases?

The amendment is worded to ensure that civil actions do not jeopardise criminal proceedings as the civil action may be halted pending the outcome of a criminal trial. Equally, civil actions may be pursued where no criminal investigation has taken place. In some cases, a successful civil action may be the precursor to a successful criminal investigation and prosecution. An important feature of the amendment is that individuals, organisations or businesses that escape criminal prosecution due to insufficient evidence to meet the criminal standard can be named in any civil action brought, which will serve as a powerful deterrent; for example, a civil claim for damages for human trafficking may enable compensation claims to be brought by British girls and young women against men who trafficked and sexually exploited them as children anywhere and where no commensurate compensation orders were made.

The outcome of the civil action will not be dependent on the criminal prosecution of offenders, so the victims in the recent Rotherham cases, for example, would also be enabled to bring civil claims for damages for the harm done to them by the men who trafficked them and who may never face criminal prosecution.

On the limitation period for bringing a claim, we have determined that this should be at least commensurate with contract claims—that is, six years—and that the provisions should apply for a longer period should a court find it appropriate to extend the period available in which to bring a civil action. This corresponds with the extension of time provision under the Human Rights Act 1998.

In the USA, the Trafficking Victims Protection Act—the TVPA, as it is known—became federal law in 2000. The Act criminalised human trafficking and contained numerous provisions for victim protection, but did not at that time contain a civil liability offence. It was quickly recognised that the omission was detrimental to the operation of the Act, and this was remedied by the introduction in 2003 of a federal right of action for survivors of trafficking.

This autumn, it was reported that 35 individual states in the USA and the District of Columbia had chosen to introduce their own civil liability clauses within their state’s legislation, thereby enabling victims directly to claim damages against their abusers. The take-up of this method of pursuing enslavers and traffickers in the USA strongly indicates the importance and effectiveness of such civil liability clauses in reducing the profits of modern slavery offenders, deterring other perpetrators and securing appropriate redress for the victims of trafficking and enslavement-based harm directly from those who seek to profit from human misery. I beg to move.

[Lord Rosser (Lab)]

My Lords, I will be brief. We have an amendment in this group that is considerably briefer in detail but not dissimilar in intention to the amendment moved by the noble Baroness, Lady Young of Hornsey, providing for a civil remedy for a victim of an offence under Clauses 1, 2 and 4 of the Bill.

Our amendment refers to a victim bringing a civil action against the perpetrator in the county court and states that the victim may recover damages and reasonable legal costs, with subsection (2) of our proposed new clause going on to define one aspect that damages should include.

I do not wish to repeat the arguments for having a civil remedy in the Bill, since these have been powerfully and eloquently put by the noble Baroness, Lady Young of Hornsey, who reminded us that the standard of proof in the civil courts is the balance of probabilities rather than beyond reasonable doubt. As the noble Baroness also reminded us, we need to ensure that victims of modern slavery can recover damages from their abusers and perpetrators of the offences against them.

Unlike Amendment 34, our amendment does not refer specifically to legal aid, which has sometimes on other issues been an area of difficulty for the Government. I hope that the Minister’s response to the amendments on civil remedies will be favourable and that, if the Government do not like the precise wording of the amendments, they will accept the principle that they seek to lay down in the Bill and agree to discussions on seeking wording acceptable to all relevant parties.

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[Lord Bates]

The noble Baroness is absolutely right. Again, that gives me an opportunity to draw the House’s attention to the Modern Slavery Strategy, in particular section 4 on page 51, which relates to the remedies that are available to victims and the Government’s strategy in seeking to strengthen that through the work of the Independent Anti-slavery Commissioner and the Bill.

[Baroness Young of Hornsey]

My Lords, I thank all noble Lords who have participated in this brief but telling discussion on this suite of amendments, and in particular on Amendment 34. I will make a couple of remarks.

First, I remember that when moving the amendment on forced labour and domestic servitude in what eventually became the Coroners and Justice Act 2009, we were initially told that everything was covered: “It’s all right—we can cover this under criminal law and civil offences”. Actually, through a process of discussion and consultation with practitioners in this field we discovered that it was not quite covered. We have moved on enormously since then, whereby we recognise that the kinds of harm done to people and the kinds of experiences that people have under this system are quite different from many other crimes. I draw the analogy between those two instances.

I am part of the brotherhood and sisterhood of non-lawyers—few of us that there are—in this House. Of course, I listen to the noble and learned Lord, Lord Mackay, and the noble and learned Baroness, Lady Butler-Sloss. However, what the practitioners and lawyers bringing these cases to court time and again have been telling us is that the specific nature of the offences committed under slavery, exploitation, forced labour and so on are not adequately covered. As they put it, the tort of trafficking—they are really specific about that—would be a way of sending out a signal and encouraging people to use it when criminal offences are not able to be brought.

That is the point that I would like to push back to the Minister. This is not intended to stop prosecutions or to put a halt to them or make a civil remedy more attractive than a criminal prosecution. This is not down to the victim—it is not about a victim choosing not to pursue a criminal prosecution. As my noble friend Lord Stevens said, there are a number of cases in which it is very difficult to bring criminal prosecutions. Without something really explicit that recognises the severe forms of harm that are done to people, I feel that victims/survivors are being cheated of redress and justice.

I am glad that the Minister has left a little opening by saying that there will be some consideration of this matter. I hope that he really means that. I would be perfectly happy to engage with him and/or his officials, and I am sure that the people with whom we have consulted would also be happy to do that to press this case a little more firmly as well as to try to find out the extent to which other civil offences are applicable in this case. Having said that, I beg leave to withdraw the amendment.

Amendment 34 withdrawn.