Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Young of Hornsey Excerpts

Committee stage & Committee: 3rd sitting (Hansard) & Committee: 3rd sitting (Hansard): House of Lords
Thursday 3rd December 2020 Lords Chamber

[Baroness Young of Hornsey (CB) [V]]

My Lords, I am going to try not to repeat comments made by colleagues already. However, I feel it is important to put on the record some of my huge misgivings about what this Bill does in relation to children and vulnerable individuals. I wholeheartedly support the arguments put forward in other amendments in this group, especially when we are talking about children—whether we call them “children” or “juveniles” is semantics—and vulnerable adults as CHIS. I hope we can collaborate on a single amendment on Report, should that be necessary, because many of us feel we must pursue this until we cannot do so any longer.

I have been slightly conflicted about where to put my energy in this Bill: like other noble Lords who have already spoken, I fundamentally disagree with the practice of using young people and vulnerable individuals as covert intelligence sources at all, let alone encouraging them to commit criminal acts. It raises so many questions, and one that has been bugging me for a little while, since I read about this issue, is: who in this Chamber would be prepared to sacrifice—that is how I see it—their own, or a friend’s, 15, 16 or 17 year-old to become a CHIS and commit a crime in that role? When I hear people describe using children or vulnerable people as CHIS as unpleasant or uncomfortable, I think that that does not do justice to the seriousness of this issue.

All of us here accept that there are legitimate reasons for undercover work to disrupt criminality of all kinds and use a variety of strategies to secure credibility for agents working in the field. The question is, then: what are the limitations and checks and balances that are necessary to maintain confidence in the institutions undertaking such activities in our democracy and on our behalf? The draft code of conduct issued by the Government goes some way towards alleviating fears regarding the use of children and vulnerable adults, but it does not go far enough in my view or the view of most of those who have spoken in this group this evening. Amendment 60 seeks to address some of the gaps in the guidance with regard to the deployment of children, juveniles and vulnerable individuals and to ensure that these safeguards are enshrined in legislation.

Amendment 60 is straightforward. Proposed new subsection (1) defines its parameters by stating that children, vulnerable individuals and victims of modern slavery and human trafficking are the subject of this amendment. These individuals are defined in proposed new subsections (5) and (6). In essence, this amendment is concerned with the welfare of those with limited capacity to make informed choices—which noble Lords mentioned earlier—without adequate support and resources to protect themselves. I draw your Lordships’ attention to issues raised by colleagues working with learning disabled adults who have seen at first hand how vulnerable adults can be groomed and lured into being a cuckoo. Some noble Lords may not be familiar with that term but, in essence, it means an innocent person who is groomed or coerced into harbouring drugs, criminals or whatever.

This is a particular issue for people with learning disabilities because it is relatively easy to persuade them by fair means or foul to become a cuckoo—to use their spaces to hide criminal goods. The same can be said of looked-after or care-experienced children who are known to have left care and been given accommodation. These are also spaces where criminal gangs steadily work on that young person and inveigle themselves into to use for their criminal activities. The problem is that their vulnerability facilitates exploitation in both those groups. The idea, therefore, that we might endorse state or public bodies to enable vulnerable adults in hazardous situations or care-experienced care leavers to commit unspecified crimes with immunity should be totally unacceptable.

Those who have been subjected to trafficking or other forms of modern slavery are similarly vulnerable to coercion of various kinds, with threats made not only to them but to their families. On that issue, I should like some clarification on the Government’s draft code of practice. On page 18, reference is made to “collateral intrusion”—one of those terms—which concerns the potential harm that may be done to individuals who may be related to the culpable person being spied on. My understanding of that section is that the harm posed to the relatives or the family and private life of the CHIS is not under consideration there. I may have completely misread or misunderstood that and hope that the Minister can clarify it for me. If it is seen as an issue, and the authorities have to take account of the CHIS’s family welfare, perhaps I have missed it, and I apologise. However, if not, and the private life of the families of the juvenile or vulnerable adult is not a factor to be considered when assessing the appropriateness of deploying the CHIS and enabling their criminal activity, I should like to know why. This is particularly important for the welfare of the families of vulnerable individuals and young people because they may not have a complete understanding of the dangerous situation in which they are placing others, as well as themselves. It comes back to the issue of what is an informed choice.

The point of proposed new subsection (3) in my amendment is that an appropriate adult, if a parent or guardian is not available to take on that role, must be present and be independent of any of the authorities recruiting a CHIS. Whatever the age of the CHIS, whether 15, 16, or 17, it should be mandatory, not discretionary, that an appropriate adult is present. The reason is that, given that there must be exceptional circumstances when it is determined that a CHIS is the only way in which to deal with a specific situation—we explain what such circumstances are in our amendment—the young person or vulnerable individual must be able to make an informed choice on engaging with the authorities in this way, and protected as far as possible from making a decision that may cause them significant harm. If the situation is acceptable, it is all the more obvious that an independent appropriate adult must be present for anyone under the age of 18 and other vulnerable individuals. Do we really think that these young people or vulnerable adults will be able to keep what they have done to themselves, when in some circumstances they may have committed a crime at the instruction of an agent of the state? That would place not only them but their families and relations in jeopardy.

As my noble friend Lady Bull pointed out, anyone who knows young people of that age—15, 16 or 17 —will know that levels of maturity vary and that an understanding that actions taken today may impact negatively on their futures, to say the least, can be hard to grasp at that age. Why not make it mandatory for an appropriate adult to be present for all those described in proposed new subsection (1)? The very fact that they are in the predicament of involvement with a criminal gang indicates that some bad choices have already been made. Many of these young people will have been in care, as has been pointed out, excluded from school or charged with a crime; they will be using drugs. Many people are working really hard to turn the lives of these juveniles around, to set them on the right path and to point out role models who can help them make a positive contribution to society.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Baroness Young of Hornsey Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Baroness Young of Hornsey (CB) [V]]

My Lords, I, too, welcome--albeit remotely—the noble and learned Lord, Lord Stewart of Dirleton, and wish him luck in his new role, and I also welcome the noble Lord, Lord McLoughlin.

I am sure that many people accept that the police and security services need to deploy undercover operatives to disrupt terrorist and criminal activity, and we recognise that difficult decisions have to be made regarding operational effectiveness. There is no need for me to elaborate on the observations made by the noble Lord, Lord Hain, except to say that the subject matter and nature of the Undercover Policing Inquiry is relevant not least because it reminds us of some of the critical issues raised by the scope, character and potential for harm of inappropriate and inadequately regulated undercover operations.

In the Bill, one area that causes me and many other noble Lords the most concern is the deployment of those under 18 years old—children of 15, 16 or 17—with no stated lower age limit. As the Minister will be aware from the Young review, which I chaired, from the Lammy review, led by the honourable Member for Tottenham, and from all the reports that preceded them, young black men are overrepresented in the criminal justice system and experience disproportionately poor outcomes throughout the system. I fear that racial disparities elsewhere in the CJS will be amplified in respect of the use of covert operatives. Will the noble Baroness the Minister, when she comes to respond to this debate, inform the House of the Home Office’s assessment of the equality impact reviews of the proposed legislation?

As has been pointed out by the noble Lord, Lord Young, and others, drugs shifted around the country via county lines wreak havoc and violence in our communities. Younger and younger children are recruited and of course we long for effective strategies to mitigate the impact of these activities. Gangs groom young children into becoming drug mules, terrifying and traumatising them in the process, turning often vulnerable young people into criminals. Determined youth and social workers do their best, but it is incredibly hard and getting increasingly so to help out here. It appears that the juveniles recruited as intelligence sources are most often 16 or 17, but we have been informed of at least one 15 year-old being used in this way. I find this shocking. Will the Minister accept that not to have a lower age limit for recruiting children carries substantial risks to those already in harmful situations? In any other circumstances, we would be taking steps to protect such children and remove them from such harms.

My own view is similar to that of the right reverend Prelate the Bishop of Durham and of my noble friend Lady Bull: under-18s should never be used as undercover operatives. I find the whole idea absolutely repugnant rather than uncomfortable. I cannot see how it is legitimate to recruit juveniles as informers and spies in dangerous, violent situations but not to allow 16 year-olds to vote.

Ideally, CCAs for children should be prohibited altogether to limit the risk of serious violations of the rights of the child. At the very least, the Bill should contain an explanation of the exceptional circumstances where it would be appropriate for a child to be given a CCA and of how their welfare would be protected. Appropriate adults should be mandatory, rather than discretionary, for 16 year-olds and 17 year-olds, and a lower age limit should be set.

I have many concerns similar to those of many colleagues who spoke earlier in this debate. Two further concerns are that of immunity from prosecution for those perpetrating criminal acts and the lack of explicit limits on the nature of any criminal act committed; those two are linked, I think. As others have noted, the USA, Canada and Australia place limits on the acts that agents can commit.

The case studies circulated by the Minister yesterday have been referred to. It is interesting that they fall into two categories: hypothetical and real-life. The hypothetical ones are all about the public bodies and do not reveal the extent to which CHIS work with police and are trained. The real-life cases seem straightforward, but can the Minister tell us how the results of those significant prosecutions would be undermined in some way by current legislation and how they would be improved by this piece of legislation? I look forward to debates in Committee.

Modern Slavery (Transparency in Supply Chains) Bill [HL]

Baroness Young of Hornsey Excerpts

Friday 8th July 2016 Lords Chamber

Moved by

[Baroness Young of Hornsey]

That the Bill be now read a second time.

[Baroness Young of Hornsey (CB)]

My Lords, I have drawn number 2 in the ballot for Private Members’ Bills on my very first attempt, so I feel that I have been quite lucky. I am lucky, too, to have had such valuable input and support from my noble friend Lord Alton, my noble and learned friend Lady Butler-Sloss, the noble Baroness, Lady Hamwee, Anti-Slavery International, the Ethical Trading Initiative, the BMA, the British Retail Consortium and its colleagues from the sector, and Safia Minney, director of People Tree and fair trade activist. This Bill exists because of all of them and countless others who have helped me get to this stage. I also want to place on record my thanks to Nicole Mason and her colleagues in the Legislation Office for their invaluable skill of turning wishes into draft legislation.

It is worth while establishing some of the background to the Bill. In 2007, we commemorated the bicentenary of the abolition of the slave trade on British ships. At that time, I have to confess that I, like many others, was only vaguely aware that in the 21st century human beings were being traded, exploited, trafficked, brutalised and abused on an industrial scale across the world.

Later, in 2009, during the passage of the Coroners and Justice Bill, I worked with Anti-Slavery International, Liberty and fellow Peers to introduce an amendment that criminalised forced labour and domestic servitude. Most people had assumed that such acts were already crimes, but they were not. The then Labour Government were initially reluctant to accept the amendment, as they thought it unnecessary and the ground covered by other legal instruments, but thanks largely to the persuasiveness of NGOs, civil society and victims, they took on the general thrust of the amendments and inserted them into that Bill. It is important to note because it is one of the steps that set us on the path that we are on now.

In 2015, the landmark Modern Slavery Act became law in recognition of the fact that such crimes were widespread and that a concerted, robust effort was needed to identify, and serve long sentences on, the perpetrators. The Government are to be congratulated on the way in which they gained cross-party consensus on the Bill, enabling it to be passed swiftly into law.

During the passage of the Modern Slavery Bill, several noble Lords spoke on the section on transparency in supply chains—which I shall shorten to TISC. In advocating TISC here in the UK, frequent references to the California Act were made both in the other place and in this House. The Californian legislation set an important and significant benchmark for identifying who owns responsibility for the use of enslaved and trafficked people in the supply chains of a wide range of brands and companies across different sectors, whether that be food, fashion, textiles, homewares, furniture, construction and so on. In spite of initial doubts and to their credit, Ministers ultimately accepted the arguments for including a section on TISC in the Modern Slavery Bill, persuaded by the views expressed by substantial, reputable businesses which wanted a “level playing field” created through TISC and by concerned NGOs and civil society.

Part of the point of my retelling this history is that Governments can change their mind. I know that the Minister, who kindly agreed to meet me yesterday, has substantial reservations about the Bill that we are debating today, but I hope that we are set on a similar trajectory as described above; that is, from a position of doubt to one of engagement and collaboration leading to some significant improvements on TISC.

As I have already suggested, last year there was a real sense of a collective desire to get the Modern Slavery Act through Parliament on a tight schedule. That was because everybody wanted to make sure that the legislation was put to work as soon as possible and to make a declaration of intent that the UK would vigorously pursue the criminals involved in such appalling activities. I hope that we can still count on that collective will today as we consider this Bill. Whatever its limitations, I hope that noble Lords will not be surprised to hear that I am happy to work with your Lordships to improve it or even to discard parts of it should there be convincing alternatives. After all, we all have the same goal: to do what we can to eradicate these crimes.

For the likes of Marks & Spencer, John Lewis, Next, Debenhams and so on, the case is clear. TISC reporting is seen not as a regulatory burden but as an opportunity to embed humane, fair practices in their organisational culture and across the sector. It makes good business sense because some businesses are gaining an unfair financial advantage through the use of forced labour and failure to address enslavement and trafficking in supply chain operations.

Now to the Bill. The amendments that I propose to be made to Section 54 of the Modern Slavery Act are relatively simple and are welcomed by the Transparency in Supply Chains Coalition, comprising CORE, Amnesty International UK, Anti-Slavery International, the Dalit Freedom Network UK, FLEX, the International Justice Mission, UNICEF UK and Walk Free. The Bill has also been positively received by the British Retail Consortium and Kevin Hyland, the Independent Anti-slavery Commissioner.

Clause 2 inserts public bodies into the Modern Slavery Act. Many contract and agency workers end up working on government contracts and this type of labour is particularly vulnerable to exploitation. Anecdotal evidence from NGOs and trade unions points to worker exploitation on government construction contracts in the south-west of England, in recycling plants in the north-west and in London. Social care contracts are another area of concern. There have been cases of exploitation of workers in the care industry and allegations of widespread worker abuse by some key local contractors have been reported.

Clearly, what I propose is not totally straightforward. For example, it is apparently difficult to determine which local authorities would be subject to compliance with TISC measures, particularly with regard to calculating thresholds, and I know that there is an argument that says that public bodies are already well regulated in terms of ethical procurement practices. But I draw noble Lords’ attention to President Obama’s executive order 13627 of 2012, Strengthening Protections Against Trafficking In Persons in Federal Contracts, which sets a high standard for all federal agencies. The order prohibits contractors and their subcontractors from engaging in a broad array of trafficking-related activities, such as providing misleading information about work conditions, requiring employees to pay recruitment fees, and so on. To ensure compliance, contractors and their subcontractors must agree by contract to co-operate fully with contracting agency audits and investigations and, for contracts above $500,000, contractors and subcontractors are required to maintain a compliance plan. Any violation of the provisions in this executive order can result in termination of the contract and potentially exclusion from future federal contracts. This level of contract compliance with regard to TISC is far more extensive than what is contained in this Private Member’s Bill, and I wonder about the extent to which federal bodies can be said to be set up in a more complicated way than our public bodies here in the UK.

The insertion of public bodies into the Modern Slavery Act points to the potential of their combined purchasing power, of £45 billion, to contribute to a real change in behaviour from those operators in the commercial sector that are not on the high street and thus not instantly recognisable. At the heart of this clause is the question of how public bodies can use their purchasing power more effectively to root out enslavement and trafficking in their supply chains.

Clause 3 simply defines “public body” for the purposes of this Bill and the Modern Slavery Act. Clause 4 requires companies and public bodies to publish their statements in their company reports, lodging them with appropriate bodies such as Companies House or the Charity Commission. This means that all statements would be available in a central location and could be scrutinised alongside company accounts. Non-financial reporting is standard in annual reports, which have to be signed off by directors, and this addition should not represent a burden for those companies involved since they have to make the statements anyway.

As it stands, the Modern Slavery Act requires companies to put their statements on their websites. I am not arguing against that, obviously, but trying to enable scrutiny and monitoring of statements in as many publicly accessible places as possible. The publication of statements should ideally be linked to a list of companies that should be complying with TISC. That is precisely what is asked for in Clause 1(5), which requires the Secretary of State to compile a list of companies that should be compliant with TISC, to make it possible for NGOs, civil society and the general public to find the information required for effective monitoring. As I have just stated, the effectiveness of this measure would be enhanced by linking reports and statements directly to this list.

In the absence of any punitive measures for non-compliance, the Government expect that good, reputable businesses will encourage others to improve their efforts to rid their supply chains of enslaved and trafficked labour. The Government would also like NGOs, civil society and the general public to monitor and scrutinise TISC compliance, since there are no other mechanisms for doing so. Noble Lords will be aware that there is no mandatory requirement for companies to upload their statements to a government or indeed any other website. This means that that no one has any idea which companies have complied with TISC, or even how many companies should be complying. Of course, we know that most of the familiar high street companies will meet the £36 million threshold and comply, but what of other, less familiar businesses such as caterers, the construction industry, hotels and so forth? Will the Minister explain to the House how he sees the monitoring of TISC happening, given the lack of information available? I am sure, as he said to me yesterday, that requiring the Secretary of State to carry out this clause would be a difficult task, but have all the technological possibilities been explored and discarded? Is it really impossible to create a dynamic database of companies that can be consulted by the public, civil society and NGOs?

Apparently, one of the regrets of the creators of the California Act is that they did not build into the legislation provision for a central repository of TISC statements. This subject has been raised several times with the Government here with little by way of a positive response. What seems to be happening now is that several websites offering to host TISC statements have emerged claiming to be independent, with some charging fees of up to £5,000 and at the same time selling consultancy services to the companies concerned and offering to write the reports for a fee. That represents a clear conflict of interest. Given that of the 75 reports recently posted and analysed, only 22 met the minimum legal requirements of the Modern Slavery Act, and just nine met the minimum legal requirement and addressed all six of the criteria suggested in the Act, although obviously it is early days, this does suggest that there need to be examples of good practice in drawing up reports and statements. Monitoring is also needed to ensure that statement templates do not become more widespread. Apparently, several statements from different companies sound suspiciously similar. Clause 2, which inserts paragraph (1A), and Clause 3 both relate to due diligence and contracting authorities, and aim to strengthen existing guidelines and regulation for public bodies, as I have already noted.

One reason I have brought this Bill to your Lordships’ House is that I do not want us to settle into a complacent attitude which says, “We’re leading the world on this; let’s just see how things pan out over the next couple of years”, during which time, bad habits such as low levels of compliance and poor reporting become the norm. That would be unforgivable and a betrayal of victims. I beg to move.

--- Later in debate ---

[Baroness Young of Hornsey]

My Lords, when I first looked at the list of speakers on the Bill, I was gratified, and I am now even more so. I know that it is customary to say what a wonderful debate it has been, but this morning’s debate has been exemplary. I am grateful to all noble Lords who have spoken, particularly as all noble Lords have given such wholehearted support to the Bill—or, rather, most noble Lords have.

However, I think all noble Lords will agree, including the noble and learned Lord, Lord Keen, that we want to do something more; we just cannot quite agree yet on exactly how we will do it. However, as I have said—and as the Minister has said—I am open to discussion about the contents of the Bill, the way it has been drafted, and whatever legislation and mechanisms might serve the same purpose. I also refer back to some of the earlier remarks I made when I said that, each time we have had some sort of impetus to develop this work further, respective Governments have initially said, “Oh no, we don’t need that because we’ve already got sufficient legislation and legal instruments to cover it”, and then eventually they give in because they can see that these gaps are there.

I absolutely appreciate that it is of course early days, as all noble Lords have said; noble Lords will forgive me if I do not go through the important points that they have made. However, as I also said earlier, I do not want us to sink into a kind of air of complacency about this. We need to keep up the momentum that was established via the Act and make sure that we continue to raise awareness.

There are many unanswered questions, and I am afraid that the Minister has not addressed in a satisfactory way many of the questions that were asked here. However, I hope that through discussion, compromise and collaboration, including those voices from the private and public sectors, NGOs and civil society, we will be able to get to a place with which we are all happy. I conclude my speech in reply by asking the House to give the Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.

Modern Slavery Act 2015

Baroness Young of Hornsey Excerpts

Wednesday 13th April 2016 Lords Chamber

Asked by

[Baroness Young of Hornsey]

To ask Her Majesty’s Government how they intend to monitor companies’ compliance with Part 6 of the Modern Slavery Act 2015 regarding transparency in the supply chain.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the noble Baroness, Lady Young of Hornsey, for the Question. I am aware of the strong interest she has always expressed in the transparency provisions in Part 6 of the Modern Slavery Act, and I believe she recently held a round table with a number of NGOs, businesses and other Peers in order to discuss these matters. Pursuant to Section 54(9) of the Modern Slavery Act, guidance for business has been published to help organisations comply with the requirements of the transparency measures in Part 6 of the Act. This includes the requirement to place a link to a statement on their website or, if they have no website, to make it available within 30 days of a request. Organisations failing to comply with their duty will face mounting consumer and investor pressure. If an organisation fails to comply, the Secretary of State may secure a court order.

[Baroness Young of Hornsey (CB)]

I thank the noble and learned Lord for his response. The Home Office guidance on transparency in the supply chain states that the Government expect,

“organisations to build on their statements”,

and “improve” them “over time”. Can the Minister assure the House that a robust monitoring process has been established that supports this ambition and that there is a strategy for making accurate and accessible information free and readily available to members of the public, NGOs and other interested parties?

[Lord Keen of Elie]

There never was an intention to establish any central monitoring system with respect to these provisions. The idea was that there should be far more carrot than stick, and that peer pressure should be brought to bear on companies in order that they address their responsibilities. This was not intended to be some sort of tick-box mechanism whereby they simply put a form into a central repository. However, every company or organisation will be required to have a prominent place on their website to which members of the public may go to establish that the statement required by Part 6 has been made.

Police Federation (Amendment) Regulations 2015

Baroness Young of Hornsey Excerpts

Wednesday 15th July 2015 Lords Chamber

I hope that the Government’s motives are not those to which I alluded and that they will give deep thought to this issue. The police service in this country is extremely important. It does not have the right to strike for obvious reasons. It is such a critical organisation, particularly at present when cuts are obviously affecting manpower. There is a restriction of a 1% pay rise for the next few years, which applies to other members of the public sector. Morale is particularly low at present. The Police Federation has just held a survey and I have never seen such figures. Usually you get people complaining about this and that but this serious survey suggests that the service is feeling really badly about itself. It is not the time to kick the service when it is down. I hope that that is not the intention of the Government. We do not want to destroy what I believe is the best police service in the world.

[Baroness Young of Hornsey (CB)]

My Lords, I remind your Lordships of my registered interest as a member of the interim independent reference group for the Police Federation of England and Wales, which is so ably chaired by the noble Baroness, Lady Harris. Having commissioned a wide-ranging review, the Police Federation has been committed to reforming itself following the publication of the Normington report last February. The organisation has worked hard to implement the recommendations of the report in full, as demanded by the Home Secretary at its annual conference in Bournemouth in May 2014.

Reforming large, unwieldy institutions with complex histories is never easy and transforming the Police Federation, which has remained largely unchanged for nearly a century, is certainly not a straightforward enterprise. When I was asked by the noble Baroness, Lady Harris, to join the then constables’ advisory panel, I confess that what I knew of the Police Federation was limited to what I had read in the press and seen on television. The vast majority of that information was very negative following revelations of poor conduct subsequent to what became known as “plebgate”. Successive high-profile media revelations regarding the apparent lack of transparency around funds and activities further harmed its reputation. In addition to that, there have been several high-profile cases that suggested corruption, unwarranted violence and racism.

Shortly after absorbing all this, I was engaged in chairing the Young review, which was tasked with making recommendations that would contribute to improving outcomes for young black and/or Muslim men. Here, again, although I was aware that some sections of the country’s police force had been working towards changing their practices, the problems encountered by some black, Asian and minority ethnic populations and female officers did little to change my perceptions.

Since then, through my involvement initially as a member of the constables’ advisory panel and now the interim independent reference group, and having had several opportunities to talk in some depth with PFEW members from different parts of England and Wales, I have developed a different, more nuanced view of the hugely complicated task that lies ahead. I have listened to officers describe their frustrations and anxieties regarding how they want to work more effectively with, for example, mental health services and social services. I have heard how efforts to modernise are sometimes resisted or misunderstood. I have heard how black, Asian and minority ethnic, and women members, express their frustrations at the slow progress being made in making the police force and the PFEW more diverse and representative.

Listening is really important. These concerns have not been represented to me as moans and whines. In the vast majority of instances, members are looking actively for solutions, being very positive and not just articulating problems. They are doing their best to look to the future, not backwards.

There is a long, complex narrative underpinning the process of instigating the changes recommended in the Normington review. What may surprise some noble Lords, particularly those who are more dependent on media accounts of the PFEW than on other accounts, is that the majority of representatives of the organisation whom I have met have expressed their strong disapproval of the actions of those who have brought so much negative attention on the organisation. In addition, those to whom I have been talking are very keen to move forward.

This is not to say that every police officer working in PFEW is wholeheartedly behind the changes—of course not. Nor are they all necessarily in agreement as to how and at what speed the review’s recommendations should be implemented. Again, that is only to be expected. With so many divergent and complex strands and threads involved and with the weight of historical antagonisms and schisms within and outwith the organisation, the task of delivering an end product which brings together the different requirements of the Home Secretary and the Normington review and delivers an efficient, effective, representative Police Federation is clearly a painstaking and protracted process.

While there can be no doubt that serious damage has been done to the organisation’s reputation, leading to a breakdown in political relations, we now have an opportunity to repair that damage and improve on the understanding between parliamentarians, government, the PFEW, police officers and the public.

I referred earlier to the destructive actions of a few within the organisation. The ability of regional federations to act autonomously is at the root of some of the circumstances which arose—a consequence of the structure of the federation itself, with its 43 regional branches. It remains to be seen whether that situation can be prevented from arising again in future.

Given that the Police Federation decided to review itself following this crisis and given the decision to implement wholeheartedly and in full the Normington recommendations as demanded by the Home Secretary, it appears disproportionately punitive to impose further strictures outlined in the statutory instrument. As the noble Baroness, Lady Harris, observed, the reduction in resources comes at a time when police forces across England and Wales are having to deal with the changing nature of crime, the rollout of new technologies and the training that that entails, and diminishing resources available for looking after the mental well-being of officers. All these factors and more mean that they will be facing huge challenges in the years ahead.

I believe that the Police Federation needs to move ahead and to do so quickly. It needs to tap into the momentum that has been gathering and work with those who want the organisation to do its job by affirming its commitment to the public interest, as recommended by Normington. That makes sense and is achievable only if the Police Federation is enabled to be a progressive, strong, diverse and adequately funded representative organisation. In this way, it will be able to ensure that it makes the best use of resources available, as well as working in the best interests of police officers. What may be characterised as punitive action taken by the Government through this statutory instrument is not helpful. It seems to be out of step with the basic tenets for bodies charged with representing their members. With the right support, guidance and advice, a reinvigorated Police Federation can be a force for positive change and an essential resource for government in combating the continually evolving landscape of crime throughout our communities in England and Wales.

Modern Slavery Bill

Baroness Young of Hornsey Excerpts

Wednesday 4th March 2015 Lords Chamber

[The Lord Bishop of Derby]

My Lords, I support these amendments and thank the noble Lord, Lord Alton, for his leadership. I associate myself with the remarks of the noble Baroness, Lady Kennedy, about websites and technology.

I have had the privilege of being in conversation with the Minister about the importance of this legislation and what we are trying to achieve for our country as a mark to the world: that is, helping business to develop and change its culture, and to take responsibility for good practice. Of course, the discipline of using a website will enable businesses to be accountable to their investors, their consumers and their shareholders in a transparent and open space. That will encourage good business practice and help the businesses that have fallen short to be challenged. Therefore, this very sensible and practical suggestion will not only help the Bill to achieve its objectives but will help the culture of business to change in a positive way and make the employment of people in slavery less likely.

I want to make a couple of other small points. Amendment 3 includes the word “may”. Therefore, it is inviting the Minister to agree to this direction of travel as a priority to deliver what we all want to achieve through the Bill. This has been a long journey and we have learnt a great deal on it. As other noble Lords have said, we have been extremely grateful for the way in which the Minister has listened, negotiated and developed the Bill appropriately when persuasion has been there. I think that that process will go on. The website will provide for learning to go on and, with practice, to develop.

My final point is that last week, in talking about the Gangmasters Licensing Authority, we were reminded that organisations like that were able to access proceeds of crime to help fund the work. If we need to find a way of funding a website, which could be quite labour-intensive in answering all the niggly questions to which people expect a reply, the proceeds of crime might be a proper place from which resourcing might be found.

[Baroness Young of Hornsey (CB)]

My Lords, I support the amendment moved by my noble friend Lord Alton. The Minister has referred several times to the California Act during the passage of this Bill. In both Houses it has often been cited as a sort of reference point or a benchmark. We should learn from that experience. As has already been said, the Californians are saying that this is the one aspect that they regret having missed out on. They see the work embodied in the two amendments as an essential tool. The essence of this part of the Bill is transparency. We cannot have full transparency without information and knowledge.

As I said at earlier stages, many young people in particular, in the wake of disasters in the clothing industry such as Rana Plaza, are keen to know about the provenance of their clothing. As my noble friend Lord Alton has already noted, the internet is a key tool, and many young people—and some older people, too—use social media to communicate about companies they see as not upholding their values. Pressure from consumers is something that the Government have said they are keen on. It is a way of holding businesses to account and a way of ensuring that they think about their reputations and how to protect them. Therefore, consumers have some power. However, while I argue that it is not solely down to consumers to keep a check on unscrupulous businesses, I accept that they have a role to play. Without the requisite knowledge and information it is hard to play any kind of role at all.

How could such a role be played without the kind of centralised information, the potential for which this amendment allows the Secretary of State to explore? Who, apart from specialist researchers, would even know which companies met the threshold for inclusion under the Bill, let alone find the required statements from those companies that would enable them to make their choices? I wish we could say that all companies are so concerned about reputational damage that they act in ethical and sustainable ways, but unfortunately they do not. That is one of the reasons why we need the Bill. Good businesses have said that transparency is an aid for them, not a burden. Given the widespread support for this measure in the House, from business, NGOs and, indeed consumers, I hope that the Minister, who, as everybody has said, has been so helpful in not just listening to what we have had to say but in acting on so many of the concerns expressed here and elsewhere, will take this opportunity to respond positively to the amendment and help the Government to become genuine world leaders on this aspect of the Bill.

[Baroness Butler-Sloss]

My Lords, I strongly support Part 6 of the Bill but, as the Minister knows very well, there is quite a big gap. If businesses are to produce reports, there is no point in having them if they are looked at only by their own people. They need to be subject to independent and transparent scrutiny. That has to go somewhere. It seems absolutely clear that there has to be a central, independent website.

During the Select Committee, a number of big businesses came to talk to us and made it clear that they wanted level playing fields. Like the noble Lord, Lord Alton, I have been talking to big businesses recently which are very interested in and supportive of the idea of a website. I actually suggested to two big businesses to which I spoke—I will not refer to them by name because it would be unfair—that they, with other big businesses in the UK, might put forward the money to put up a website. So it would be not a government website but an independent one, and the businesses that want a level playing field should be prepared to pay for it. According to the sort of companies I have been talking to, it should be a very large sum of money.

Modern Slavery Bill

Baroness Young of Hornsey Excerpts

Wednesday 25th February 2015 Lords Chamber

Moved by

[Baroness Young of Hornsey]

93: Clause 52, page 39, line 15, after “(2)” insert “and all public sector organisations”

[Baroness Young of Hornsey (CB)]

My Lords, we have made some good progress in the area of reporting and transparency. Like other noble Lords, I pay tribute to the Minister for holding meetings outside the Chamber and getting us to talk through with him some of the issues that we have with this part of the Bill. I am pleased to say that I support government Amendment 97, which gives quite a bit more clarity than we had previously on what should be included in the slavery and human trafficking statement.

However, there are still some areas around the subject where we could do with a little more improvement, hence a number of amendments to Clause 52 have been proposed, most of which I broadly support. Although it is not specifically addressed in any of the amendments tabled today, I still struggle with the prospect of a company deciding to face down criticism and continually submitting a statement declaring that it has decided not to examine its supply chain for trafficking and/or slavery. I wish I could say that it is unlikely that any company would do that and that all will swept along by the strong support that so many companies and organisations have demonstrated with regard to Clause 52, but I am afraid that time and again, recently and over a period of time, we have read in the press and seen on our screens too much evidence to the contrary.

I shall make my remarks fairly brief, because the amendments that I am speaking to, Amendments 93 and 94, are largely self-explanatory. Amendment 93 would ensure that government departments and agencies were subject to the same laws as commercial organisations with regard to declaring their actions to support transparency in their supply chains. The amendment is supported both by the British Retail Consortium and by the British Medical Association.

Just to give your Lordships a glimpse of the scale of procurement that is under discussion here, the Government spent a total of £238 billion on the procurement of goods and services in 2013-14. This sum represents approximately one-third of all public spending. Even breaking that down into departments produces substantial figures. For example, if we look at the Ministry of Defence, we see that the Defence Clothing Team, which is part of Defence Equipment and Support spent a total of £64.7 million on uniform and clothing in the financial year 2013-14, which would have put it well within the scope of the £60 million which was one of the figures that have been bandied around as a suggestion for a threshold figure that companies might need to meet to be covered by this clause. That is just spending on clothing.

There is no doubt that the Government have huge buying power and thus are implicated in any number of supply chains which extend around the world. For several years, various campaigners have argued that government should set an example when it comes to good practice in ethical and sustainable sourcing, and we now have an excellent opportunity to make considerable progress.

The social impact of decisions taken by government departments and agencies is no less than that of commercial organisations. Surely it would be difficult to argue that government should be exempt from the laws that it seeks to impose on other organisations similarly involved in the provision of goods and services. It is estimated that the NHS spends in excess of £40 billion per annum on the procurement of goods and services. I mention that specifically because I was struck by the British Medical Association’s briefing, which pointed to,

“an uncomfortable paradox in providing healthcare in the NHS at the expense of workers’ health in its supply chains. There is a risk to the reputation of the NHS through inaction, but conversely the importance and spending power of the NHS presents a real opportunity for it to take a lead in ethical procurement”.

As in other commercial organisations, the supply chains that provide commodities and services to government departments and agencies are global and employ hundreds of thousands of people world wide. If major suppliers of healthcare goods, for example—of uniforms and so on—strove to ensure fair and ethical practices in the manufacture of their products, the potential impact on global supply chains could be substantial.

I would be interested to know from the Minister whether there has been any discussion about government procurement in the context of transparency in supply chains. Or perhaps the Government are so confident that they implement sufficiently robust ethical procurement frameworks that they feel they should not be subject to reporting on their supply chains. While giving overall support to transparency in the supply chain legislation, particularly as it applies to supply chains in UK medical goods and imports, the British Medical Association believes that more can be done to ensure that public sector organisations and the small and medium-sized enterprises that supply them take adequate measures to ensure fair and ethical practice in supply chains.

--- Later in debate ---

[Lord Bates]

The only hesitation that I have—normally I like to agree with the noble Lord as far as possible—is on whether we can do it by Third Reading. I really do not know. I will reflect on it and talk. I think it is more important to get the principle there—that we are saying, with all these statements coming together, that clearly they need to be in one place. Whether that is civil society, an NGO, a commissioner or a government body is something that can be sorted out. But the principle is that we want to see these statements in one place so that people can monitor and evaluate them to ensure that the intended action takes place.

[Baroness Young of Hornsey]

I thank the Minister for his comprehensive response to the amendments we have just been considering. I will make three quick points.

I think that we will return to the issue of enforcement. We expect businesses to comply with money-laundering laws, bribery laws and a whole heap of other potentially criminal activities. To me, this is another criminal activity in which a company might be complicit and therefore the statements that they make need to be meaningful, and there will eventually need to be some sort of sanction, I am sure, in the future. But we will see what happens once we come to post-legislative scrutiny and we see how well the Bill actually works.

With regard to turnover and thresholds, it will be interesting to see what comes out of the consultation with business. As to whether or not there will be any consensus, that will be something we will see when that is published. That will be an interesting point because obviously different organisations will have different views on that.

With regard to government procurement, which is probably the thing I feel most strongly about in the two amendments to which I have been speaking, I will have a look at the Modern Slavery Strategy, as the Minister suggests. But statements of intent that are in that kind of paper are not the same as having something in a Bill that makes a very clear statement about what government agencies and the Government themselves should be doing in relation to that.

I will have a think about that, along with others—and I hope the Minister will as well—and in that context, I withdraw the amendment.

Amendment 93 withdrawn.

Modern Slavery Bill

Baroness Young of Hornsey Excerpts

Monday 23rd February 2015 Lords Chamber

Having gone through some rather inquiring comments—I do not want to say that they are critical, because I very much support what the Government are doing in this area—I come back to my original points on circumstances and characteristics. I beg to move Amendment 1.

[Baroness Young of Hornsey (CB)]

My Lords, first, I thank the noble Baroness, Lady Hamwee, for her support on my Amendment 7. I raised this issue in Committee, but since then I have made a little refinement to this proposed new clause to make it clearer. I thank Klara Skrivankova again for her help in talking me through the importance of this provision. I should declare an interest as a trustee of the charity Aid by Trade, which supports the Cotton made in Africa project—the House will perhaps see the relevance of that later on—and as a patron of Anti-Slavery International.

I do not want to take up too much time because, like the noble Baroness, Lady Hamwee, I agree that we want to push on with the Bill and make sure that we get it into the best possible shape that we can in the limited time that we have. However, it is worth while just going through some of the background to this amendment. The amendment tries to draw attention to the fact that those who benefit financially from forced labour, which is now recognised to be something like a $150 billion-trade, are not only those who are directly involved in the exploitation of their victims. It goes wider than that. The individuals and companies that choose to disregard information about slavery in their supply chains so as to ensure continued revenue maximisation are also culpable.

The business model behind forced labour demonstrates that the two main reasons for using it, and for implicitly accepting exploitative practices in the supply chain, are of course cost reduction and revenue generation. The total cost of someone who is working in a coercive situation for an exploitative employer is clearly less than it would be if the arrangement were lawful. In a very competitive environment where there is constant pressure to cut costs, many agents promise to provide workers for an extremely low outlay. While the Bill provides for significant penalties for those who enslave or traffic others, it currently omits liability for those who benefit from the enslavement of others through the acts of third parties. This allows those who choose to do so to ignore a situation where there is exploitation and to escape justice, even though they derive profit from such unlawful activities.

The issue of liability for benefiting from modern slavery is addressed, as the noble Baroness, Lady Hamwee, has already mentioned, in the EU trafficking directive to which we are a party. I reiterate the question which the noble Baroness asked of the Minister: to explain why it seems that we are a little behind in endorsing that in an active way.

The directive requires member states to establish liability for benefiting from the exploitation of others committed by a third party and to make provision for criminal and non-criminal sanctions for those who benefit in this way. There is a similar provision in the United States under Code 1589, which makes it an offence punishable by a fine or imprisonment of up to 20 years to knowingly benefit financially or receive anything of value from forced labour or services.

When I raised the earlier version of this amendment in Committee, I shared the example of a Belgian motorway restaurant company that was held liable for the exploitation of the workers who were cleaning the toilets at its premises. Those cleaners were actually employed by a subcontractor, not directly by the restaurant company, but essentially that company was brought to justice for its role in ignoring the very clear evidence that this form of exploitation was taking place on its premises in its business.

I am concerned, though, that there are British businesses that benefit from forced labour. A number of noble Lords will be aware of the situation in Uzbekistan with regard to cotton harvesting, but unfortunately it looks as if a couple of British companies are continuing to trade in cotton from Uzbekistan, despite the fact that it is well known that the authorities there use forced labour from their own citizens to pick cotton, most of which is destined for international export. Children and adults are forced to pick cotton under threat of punishment or incarceration, and the only way out is to try to find the money to pay someone else to do that job for you. We know—there is masses of evidence—that trading in cotton from Uzbekistan means trading in a commodity that is effectively produced entirely by slave labour. If you are trading with Uzbekistan, you are profiting from that slave labour, and under the amendment you would be liable to be brought to justice for doing so. I understand that two UK companies currently buy and trade in cotton from Uzbekistan despite their knowledge of what is going on there.

If we are serious about stamping out enslavement and forced labour, particularly that involving children and young people, we have to make it unprofitable, and that is what this amendment seeks to do. It would also address instances where a person is exploited in domestic servitude in a private household and is lent to friends or relatives as free help in the knowledge that this worker has been treated like a slave by the employer. It would cover landlords who know that their property is being used to harbour those in a situation of slavery but who choose to ignore it because of the revenue from renting out the property. Clearly no one in the UK should be profiting from enslavement—that is the driving force behind the Bill—so I hope that the Minister will give careful consideration to this in the same manner as he has to all the previous arguments and debates on the Bill. Obviously we all want to achieve the same result, but we want to make it as hostile as possible for people to benefit from trafficking and enslavement, even if indirectly.

The obvious villains are the traffickers and enslavers—they are the big baddies who we can obviously go after—but, as I have tried to outline here, there are a number of companies and organisations, not just in Britain but around the world, which are profiting from that in a knowing way, and that is wrong. As I said, we have an obligation under EU law to do something about this, so perhaps the Minister can explain to us why the Government seem to be slightly reluctant to put the principles underlying the amendment in the Bill and to reinforce its message on forced labour and trafficking.

[Baroness Royall of Blaisdon (Lab)]

Bizarrely, my Lords, I support government Amendment 4 in the name of the noble Lord, Lord Bates; it has not yet been moved but I am sure that he will wish to respond to the debate as a whole. I am grateful to the Minister for the huge amount of work that he has done behind the scenes in Committee and on Report, bringing forward a number of changes to the Bill, including on offences. I do not think that the amendment goes far enough, as will be clear when I speak in the debate on the amendment tabled by the noble Baroness, Lady Doocey; we would have liked to have seen clearer and better defined offences, as was recommended by the draft Bill committee. However, we recognise that the government amendment before us today is a step in the right direction in bringing to justice those who have exploited others—adults or children—so we welcome it as far as it goes.

In a letter to me, the Minister spoke of the very good way in which the collaborative nature of this Bill has worked. It vindicates the enthusiasm that we all have for pre-legislative scrutiny, which not only improves a draft Bill but enables all those concerned to be properly engaged and makes the legislative process a lot better, so I look forward to more of it.

Modern Slavery Bill

Baroness Young of Hornsey Excerpts

Monday 23rd February 2015 Lords Chamber

Moved by

[Baroness Young of Hornsey]

16: After Clause 10, insert the following new Clause—
“Civil remedies for modern slavery
(1) A victim of modern slavery may bring a civil action against any person who commits an offence against that victim under sections 1, 2 and 4 (or who knowingly benefits financially or by receiving anything of value from participation in a venture which that person knew or should have known has involved an offence under sections 1, 2 and 4) for the recovery of damages, injunctive relief, and any other appropriate relief.
(2) 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 sections 1, 2 or 4 or has been convicted of a different offence or of a different type or class of offence.
(3) 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.(4) This limitation period may be extended where the civil court considers it just and equitable to do so.
(5) An action brought under this section may be stayed by the civil court either on its own volition or at the request of the prosecution 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.
(6) Damages awarded under this section shall be offset by any compensation paid to the victim for the same act pursuant to section 8 (reparation order following a criminal conviction for a relevant offence) or an award paid to the victim for the same act by the Criminal Injuries Compensation Scheme.
(7) This section does not preclude any other existing remedies available to the victim under the laws of England and Wales.
(8) There shall be the provision of legal aid to enable a civil claim under this section to be brought.
(9) 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.
(10) This section shall have the same extra-territorial effect as sections 1, 2 and 4 .”

[Baroness Young of Hornsey (CB)]

This amendment is intended to close a gap in the law, which currently does not provide sufficient avenues for all victims of modern slavery to seek remedies for damages and the suffering that they have endured. Again, I have to thank Parosha Chandran and Klara Skrivankova for their contributions in working on this amendment. I would also like to say how much I appreciate the work of all the NGOs which have contributed to our work on the Bill. They have done a fantastic job.

Very few victims have been able to receive remedies and compensation so far. This civil remedies amendment would provide an effective means to reduce the financial profitability of slavery, create a further deterrent effect and enable victims to be adequately compensated for the harm done to them. This proposed new clause does not seek to replace the existing remedies, such as those provided in employment law, but to add a more effective route to remedies that has been absent in English law and that, as experience from elsewhere shows, can be an effective means to enabling victims to get redress.

Those victims who have suffered physical harm will still of course be able to use existing remedies, but Amendment 16 is targeted at those for whom such routes remain out of reach. These are, for example, cases where there is an absence of direct physical harm but that involve debt bondage, abuse of an individual’s position of vulnerability, psychological control, threats of denunciation to the authorities, extortionate recruitment fees, and the threat or carefully nurtured fear of violence. Such actions are recognised in international definitions of trafficking and seen as indicators of forced labour. These are the very circumstances experienced by many victims of modern slavery, especially those exploited for their labour. This provision would, for example, allow a civil claim for forced labour to be brought against businesses or a gangmaster which have used and demeaned eastern European or British men for the purposes of slavery or forced labour, which have abused the men’s vulnerabilities to exploit them for profit and also imposed on them bonded debts via extortionate recruitment fees or accommodation charges for filthy living conditions, and which have failed to pay wages owed.

As I pointed out in Committee, when I brought forward an earlier iteration of this amendment, a further significant advantage of a civil remedy is that it is not dependent on criminal prosecution of offenders and can be brought where no criminal investigation has taken place. It was put to me during the debate in Committee that this proposed change in the law might not be necessary as the existing law is sufficient. I was grateful at that time for the helpful comments made by the noble and learned Lord, Lord Mackay, my noble and learned friend Lady Butler-Sloss, who is supporting this amendment, and my noble and right reverend friend Lord Harries. I also thank the Minister for taking the time to write to me about this matter after the debate.

In his letter of 8 December 2014, the Minister took the view that there exist common law and statutory torts, which may be relied on in civil proceedings for damages. I have consulted a number of legal experts on this matter—experts on the issues of human trafficking and forced labour, as well as experts on civil and tort law outside these areas. The advice I have received was unanimous: that the existing remedies are inadequate as they do not provide appropriate routes to redress for all victims. The various examples from civil law described in the Minister’s letter are unable to give due weight to the factors and circumstances encountered in situations of trafficking and slavery. None reflects the elements of control and exploitation inherent in such situations or the subtle means of control assumed over victims by traffickers. One might consider that false imprisonment comes closest to reflecting the element of control over an individual’s life. However, the traditional focus in jurisprudence is on the restraint of physical liberty, and there is no guarantee that the more insidious and very common forms of restraint, such as the confiscation of a passport or the use of vulnerable immigration status to control victims, would be found to amount to false imprisonment. Similarly, the types of individual instances of assault, battery or harassment that can arise in a forced labour scenario may be inadequately represented by existing torts. The long-term nature of abuse and the elements of control of the vulnerable may be quite different from those that arise in other situations.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to the noble Baroness, Lady Young, for moving this amendment and giving us the opportunity for a debate. As my noble friend Lady Hamwee said, we have agreed to continue dialogue on this issue with the Home Office and the Independent Anti-slavery Commissioner, who has expressed an interest in this area. This is also an opportunity to put on the record some remarks on our position, which the noble Lord, Lord Rosser, invited us to do. In doing so, I do not want to detract from the fact that we agree that this is something at which we need to look carefully.

Since Committee stage, we have been looking very closely at civil remedies and modern slavery, and have been exchanging letters about the details with Peers, as the noble Baroness, Lady Young, said. Amendment 16 seeks to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the House that we believe that civil remedies in tort already exist for victims of trafficking and slavery to claim damages from perpetrators through ordinary civil law and the Human Rights Act. Damages can, for example, be recovered for loss or damage caused to victims under the torts of intimidation, harassment, assault, unlawful imprisonment, negligence and breach of duty. We have been unable to identify a modern slavery scenario that would not involve at least one of those torts. Given the serious nature of modern slavery, we consider that it is likely that a court would be able to establish that, on the balance of probabilities, at least one of those civil wrongs had taken place. Accordingly, we are currently of the view that the existing civil law already provides the necessary civil remedies for modern slavery cases.

Once a tort has been established, the court can award damages to the victim. Noble Lords previously expressed concern that such damages may be insufficient in light of the terrible experiences that the victim may have suffered. However, aggravated damages are available in relation to a number of civil torts, such as assault or wrongful imprisonment. This means that where the court, taking into account the defendant’s motives, conduct and manner of committing the tort against the victim, feels that the defendant has aggravated the victim’s damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded. Given the particular nature of modern slavery, we would expect most modern slavery cases to give rise to aggravated damages, which seem particularly apt for such situations, given their focus on the injurious and degrading effect on the victim, and consider that the availability of such additional damages will enable courts to ensure that victims receive an adequate remedy fully tailored to the particular effect on them.

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 retained civil legal aid for damages and employment law claims for trafficking victims to support them in making such claims, and an amendment to the Bill will extend this legal aid provision to all modern slavery victims. I believe this amendment has been widely welcomed.

Amendment 17 would require the Secretary of State to complete a consultation on access by victims of modern slavery to the employment tribunal to make claims, including for payment of the national minimum wage. I assure noble Lords that all employees and workers in the United Kingdom are entitled to protection under our employment law, and those working legally in Great Britain will have access to the employment tribunal. In some circumstances this will include modern slavery victims. However, given the criminal nature of modern slavery, some victims will not have been in legal employment and therefore cannot benefit from all the same protections as those working under legal contracts. For example, access to an employment tribunal would be possible only in certain cases of discrimination. This is because, as a general principle, a court or tribunal will not enforce an illegal contract.

Where victims are eligible to make claims through the employment tribunal, there is a two-year restriction, which my noble friend Lady Hamwee referred to, which applies to most claims for unlawful deduction of wages, including underpayment of the national minimum wage. However, in practice, the majority of national minimum wage claims are handled by a separate enforcement route via Her Majesty’s Revenue and Customs. This route is not affected by our changes, and the national minimum wage can still be claimed for up to six years via HMRC enforcement. HMRC investigates every complaint made to the Pay and Work Rights Helpline. In addition, HMRC conducts risk-based enforcement in sectors or areas where there is perceived to be a higher risk of workers not getting paid the legal minimum wage.

An action founded on a civil tort to claim general damages would not be subject to a two-year limit and can usually be made up to six years after the cause of action accrued. In these cases, the amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that should have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. We are committed to doing as much as possible effectively to enhance support for and protection of victims of modern slavery, which includes ensuring that they receive compensation for the horrors that they have experienced.

While our current analysis is that the existing law provides sufficient access to civil remedies for victims of slavery and trafficking, these debates are providing very valuable information in exploring how civil remedies apply to modern slavery cases. We will continue to look carefully at the evidence put forward in the debates, including today’s Report stage debate, in future policy-making. Given the need to explore further the important points raised, I hope that noble Lords will agree that this is not an issue to address through the Bill at this stage. As I have given undertakings, which I mentioned at the outset, to continue the discussion but to put on the record these additional remarks, which represent the Government’s latest position on this issue, I hope that that will provide reassurance for my noble friend and for the noble Baroness, Lady Young, to consider withdrawing her amendment at this stage.

[Baroness Young of Hornsey]

I thank the Minister for his reply, and for agreeing to meet us. However, it is interesting that there clearly is some kind of a problem here if all these practitioners, who are very diligent and very committed to the people with whom they work, cannot seem to find their way through what already exists. That takes me back to 2009, when we were looking at what became Section 71—which we often refer to now—of the Coroners and Justice Act. At that time, a number of arguments were put forward against doing anything about criminalising forced labour and servitude. It now seems impossible to think that anyone would argue against that, but the Government of the time felt that there was sufficient recourse through the civil courts, and we now know better than that. I reiterate part of what the noble Baroness, Lady Kennedy, was saying: we do not want to wait another three years before we get round to thinking, “Oh yes, there is something else—we can do a little bit better”. I therefore hope that we will come to some sort of agreement about a more productive way forward. In that context, I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

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.”

--- Later in debate ---

[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.

--- Later in debate ---

[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.