Modern Slavery Bill

Debate between Baroness Young of Hornsey and Lord Bates

Wednesday 25th February 2015 Lords Chamber

[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.

Modern Slavery Bill

Debate between Baroness Young of Hornsey and Lord Bates

Monday 23rd February 2015 Lords Chamber

[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.

Modern Slavery Bill

Debate between Baroness Young of Hornsey and Lord Bates

Wednesday 3rd December 2014 Lords Chamber

[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.

Modern Slavery Bill

Debate between Baroness Young of Hornsey and Lord Bates

Monday 1st December 2014 Lords Chamber

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

My Lords, I welcome this amendment as an opportunity to look at the financial proceeds of this wicked crime. We will deal with this in subsequent groups and amendments, and I have no doubt that we will return to it at various stages on the way through. Amendment 30 allows us to debate how the Modern Slavery Bill will ensure that committing modern slavery offences does not benefit the offenders or third parties who either benefit or look the other way when these crimes are committed. It would place a duty on the Secretary of State to make regulations to ensure that legal persons benefiting from modern slavery offences or whose lack of supervision makes them possible will have committed an offence.

I greatly welcome the opportunity presented by the amendment to debate the role of legal persons, such as companies, in modern slavery. We will return to that subject in more detail—in particular, as the noble Baroness referred to, when we come to the section on supply chains. It is absolutely right that companies who profit from modern slavery can be held responsible, so it is right that the offences in the Bill can be committed by all persons, including legal persons. That means they can be committed by companies provided that the usual legal principles of corporate criminal liability apply. As the noble Baroness mentioned, companies can also be held liable under the civil law —such as negligence and proceeds of crime legislation—where they benefit from modern slavery committed for their benefit. Therefore, companies that make money as a result of modern slavery committed for their benefit can be deprived of those profits and pursued for damages by the victims. Article 5.2 of the EU trafficking directive does not require legal persons to be criminally liable; liability for the commission of offences by third parties that occur as a result of lack of supervision can be criminal, civil or administrative.

We are confident that currently—and under the Modern Slavery Bill—we are fully compliant with the requirements of the trafficking directive around the liability of legal persons. We want to make sure that we recover the ill gotten gains of slave-masters and traffickers. That is why Clause 7 subjects those convicted of slavery and trafficking to the most robust available asset recovery regime. That element of recovery of assets was also a provision of the Serious Crime Bill, part of the Proceeds of Crime Act, and all those provisions will of course apply in the case of modern slavery. It is absolutely vital that modern slavery should be viewed as no different from any other organised criminal activity in that where we can obtain the proceeds of that—so that criminals do not see the profits—and use it to help the victims of these evil crimes, that is what the Government want to do. We are satisfied at this stage that the law provides for that, as currently drafted in the Bill, but we have listened very carefully to what the noble Baroness has said and we will continue to review this in the light of that. Perhaps, therefore, the noble Baroness will feel able to withdraw her amendment.

[Baroness Young of Hornsey]

I thank the Minister for his reply and I am glad that he also said that this is still open to review. I agree with him that it complies to some extent with what we have to do and with all the other bits of legislation to which he has referred. However, it is a question that goes a bit wider than that and links it to the issue of transparency in the supply chain, which many people feel does not have any teeth—there are no sanctions and no real deterrence embedded in it. So to have something else in the Bill that would make a real statement about that would be very useful. None the less, I am happy to withdraw the amendment.