EU: Justice Opt-ins
Lord Bates Excerpts(9 years, 11 months ago)
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Lord Spicer
To ask Her Majesty’s Government what are their plans for resisting further extensions of United Kingdom opt-ins to a European corpus juris.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, there is no proposal for a European corpus juris. Any proposals to extend EU jurisdiction in criminal law would be subject to the UK’s existing justice and home affairs opt-in, which allows us to choose whether we take part. Those decisions are taken in full consultation with Parliament.
Lord Spicer (Con)
My Lords, with the 35 opt-ins to the European criminal law now in place, and with the powers that the European court has to make law, are we not now in very real danger of losing the presumption of innocence, the jury system, case law and habeas corpus?
Lord Bates
We have been very clear that, as the treaty of Lisbon states, the presumption as regards criminal law should be that we operate by mutual recognition rather than harmonisation. We have taken very clear steps to say that, because we have the ability to opt in under the Lisbon treaty, we exercise that choice. That is the reason why the Prime Minister decided to opt out of 135 measures before opting back in to 35; otherwise, European Court of Justice jurisdiction would have extended to all of those. Therefore I recognise the noble Lord’s point, but the Prime Minister is arguing our case well.
Lord Hannay of Chiswick (CB)
My Lords, will the Minister not agree that, now that the Government have successfully rejoined the 35 key measures, it would make more sense to concentrate on some of the measures that we have in principle opted into but which have not yet completed their negotiating track? Can he therefore say what progress the Government are making in dislodging the blockage by the European Parliament on the passenger name record directive, which would be of great assistance in dealing with terrorism?
Lord Bates
I do not have a direct answer on that, but I think that in principle what the noble Lord says is absolutely right. We have made our position clear and argued our case, and have avoided an operational gap by the decision we took on 1 December. Now we ought to get on and make sure that the measures we have opted into work well. However, I will write to him on that point.
Lord Davies of Stamford (Lab)
My Lords, is not the depressing and worrying thing about the noble Lord’s Question that it is so ideological? It implies that when we look at legislation we ought first of all to be concerned about whether it is classified as European or as British legislation, rather than whether it is necessary, fair, reasonable and in the national interest. I think the whole House is united in appreciating the value of the European single market, but we would never have had a single market had we not passed the Single European Act, which I believe the noble Lord may have voted for in his time. Would it not be very reassuring if he could retrieve somehow the open-mindedness and pragmatism of his youth?
Lord Bates
I disagree with the presumption that the Question was ideological. This is a matter of practical steps, case by case. That is why we think there is a case, in terms of securing our borders, for the European arrest warrant. We would be part of that. We would also be part of measures to tackle modern-day slavery and of cross-border legislation against cyberattack, but we will not be part of other things. I think that is very practical and pragmatic.
Baroness Ludford
Can the Minister confirm that the famous corpus juris was in fact purely an academic research report, not a European Commission proposal? Its only product has been the idea of a European public prosecutor, in which the UK is not participating. Can he further confirm that all other EU action against crime is firmly founded on mutual recognition, as promoted by the UK, and that there is no European jurisdiction or European criminal code?
Lord Bates
That is absolutely right. The noble Baroness has great expertise in the workings of Europe, and the report to which we are referring is just an academic report, not a Commission proposal.
Lord Rosser (Lab)
The Government are rejoining 35 EU justice and home affairs measures. My noble friend Lady Smith of Basildon asked questions of the Government—raised, I believe, on four previous occasions—about how many of the justice and home affairs measures that the Government have opted out of have any value, or even apply to the UK, how many were being used in an operation prior to the opt-out decision and how many were harmful to the interests of the UK. Again my noble friend’s questions were not answered, which rather supports the point made by the Chairman of the EU Committee in the same debate, about the need for the Home Office to take parliamentary scrutiny and accountability seriously. Will the Minister now answer those questions, or is there a grim determination to ensure that, for these particular questions on opt-outs, the Government Dispatch Box will remain an answer-free zone?
Lord Bates
It would help if the noble Lord had actually listened to the previous debates. On Monday we had the very same question: his noble friend Lady Smith asked me that question. I replied by referring her to Command Papers 8897 and 8671, which set out in exhaustive detail—enough even to satisfy the level of scrutiny on the opposition Benches—what our position is on every single one of those matters.
Lord Tebbit
My Lords, we read in the papers this weekend that our right honourable friend the Prime Minister had assured the Turks that he was in favour of their accession to the European Union. Does the Minister know whether he told the Turks that they would have to accept in whole, completely and absolutely, corpus juris?
Lord Bates
They would have to accept the acquis communautaire—that is for sure—before doing that. That is the position they are in.
Lord Pearson of Rannoch
My Lords, will the Minister accept the grateful thanks of the United Kingdom Independence Party for the powers that the Government have already ceded to the corrupt and profligate octopus in Brussels? Are not those powers among the reasons for UKIP’s support from so many real people in this country?
Lord Bates
In terms of the ideology referred to in the previous question, that is exactly where the ideology comes from. That sort of approach taken towards Brussels would make our people less safe, because we would not be able to secure our borders as we do and we would not be able to co-operate on crime and law enforcement measures. All those things would put the people of this country at risk. That is ideology; this is pragmatism.
Modern Slavery Bill
Lord Bates Excerpts(9 years, 11 months ago)
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Lord James of Blackheath (Con)
The Minister is aware that I have some continuing concerns since I withdrew my Amendment 29. Having listened to the debate on this amendment today, there is a word in the amendment that causes me great concern in the context of the story I recounted to the House. The word is “referral”. In the case of my story, referral would have come far too late: the children were in the middle of the Atlantic before anybody could have referred them. Those children could not have referred themselves. They were deposited at the quayside. We did not know who they were or where they came from. They were put on to a boat and they sailed away within three hours. As they could not have referred themselves, they were therefore wholly dependent on the authenticity and legality of some certificate to the effect that they were properly selected and briefed to become migrants. They are lost people, as far as I am concerned—a lost generation. There were 1,760 of them; I have been able to check up since.
Where this clause is wrong goes back to the point that I have been asking the Minister about since I withdrew my amendment. How have we got in here an absolutely legal authority for every child who is put into a migration situation? We have done this regularly about every 20 years for the last 250 years and we need to stop it. We need to outlaw ourselves from doing it any more. That was my concern when I recounted my story and I am not satisfied that the Bill in its present form locks that door once and for all so that we cannot prise it open again and do it.
In the circumstances I described, the travel arrangements could be made under the entire authority of the Australian Government and the Australian civil service in London. The children were coming from local councils that wanted to get rid of them and from orphanages that could not cope with the numbers they had. They put them in a truck and dumped them on the quayside at Tilbury. We put them on a boat and they sailed. Where is a referral going to come in to save those children from that fate? We have not made illegal the act of forced transportation. We have been doing it for 250 years and I am not satisfied yet that this Bill blocks it.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, we have had a very good debate on this important area and I will respond to each of the amendments in turn. Effectively, they seem to be almost in grades. It was rather helpful to the House that we almost had revision-max from the noble Lord, Lord Rosser, in his amendment and it progressively got a little bit lighter to the mere enabling which was put forward by the noble and learned Baroness, Lady Butler-Sloss. The points were extremely well made and I will try to respond to them as best as I can.
The first point to make is that it is not quite the no-brainer that people have suggested. The national referral mechanism was set up in 2009 under the previous Government. It was not set up on a statutory footing. Therefore, it clearly was not an obvious omission at that point. We took the view that Clause 48 is adequate. I accept the comments that have been made about whether Clause 48, which refers to the issuing of guidance—by which is meant the national referral mechanism—is adequate. None the less, it is a point of discussion as to whether the flexibility of something not being on a statutory footing is balanced by the other side of having something in the Bill. We will come to that.
The second point to make is that much is rightly made of the good work of the Joint Committee which looked at this, took evidence and made recommendations. The very fact that the Home Secretary committed to a review and asked Jeremy Oppenheim to undertake it clearly reflects the fact that we were not satisfied with the way in which the national referral mechanism was working. That is why Jeremy Oppenheim was asked to undertake the review. A wide range of organisations and individuals were consulted. The noble and learned Baroness, Lady Butler-Sloss, and the noble Lord, Lord Warner, were engaged in that process. Some 129 organisations were engaged in the review and their views were fed into the process.
My final point, before turning to the amendments, is that we have a substantial number of recommendations across the six categories as to where the system needs to be significantly improved. The review identifies the weaknesses and deficiencies that many noble Lords have referred to, particularly my noble friend Lady Hamwee.
I am grateful to noble Lords for tabling Amendments 86P, 93 and 96 and for allowing us to follow on from our excellent debate on Monday on the crucial issues of identification and support of victims. I reiterate that the Government share the desire of noble Lords to ensure that as many victims as possible are identified and properly supported. We are already taking decisive action to ensure that that is the case. Amendments 93, 96, and 86P each propose placing a referral mechanism for identifying and supporting victims on a statutory footing, but with slightly different approaches, as I have mentioned. For Amendment 93, this would be a replacement mechanism for the national referral mechanism currently administered by the UK Human Trafficking Centre. Amendment 96 seeks to place an enabling power in the Bill for the Secretary of State to make regulations to establish a statutory referral mechanism. Amendment 86P seeks to place the national referral mechanism on a statutory footing, including providing for all confirmed victims of trafficking, enslavement or exploitation to be entitled to a one-year residence permit.
I believe that the most important thing is that these victims are spotted and rescued in the first place. The best referral and support systems in the world will work effectively only if we find victims, who are so often hidden in plain sight up and down this country. That is why the Home Secretary commissioned a review of the national referral mechanism to ensure that victims can be identified quickly and effectively and be given the right support and assistance. As noble Lords will be aware, the review was published on 11 November and made a number of important recommendations. I know that, in taking the review forward, Jeremy Oppenheim consulted more than 100 organisations and the recommendations from the review take into account their views.
The recommendations in particular concluded that putting the NRM onto a statutory footing,
“will not change the UK’s commitment and obligations to abide by the trafficking convention or methodology with which it is implemented. Any process put on a statutory footing can become inflexible and unresponsive to changing demands and indeed improvements, due to the requirement to further legislate before making changes”.
Furthermore, the review noted:
“Pinning the National Referral Mechanism down now would not be an effective methodology particularly when the National Referral Mechanism is going through a period of significant change”.
It is absolutely right that we should fully consider the vital mechanism used to refer and support these vulnerable victims. But I am not convinced that putting it on a statutory footing will achieve our aim of improving the service we offer to victims. We consider the recommendations made by the review to be transformational and believe that they will overhaul the way in which victims are identified and supported and how those organisations responsible for identifying and protecting victims prioritise and co-ordinate their activities.
The noble Lord, Lord Warner, talked about the difference between the UK trafficking centre giving 80% of cases a positive conclusive grounds decision while UKVI gives only 20% positive decisions. Those figures are not quite right, but it is true that a lower proportion of total referrals have received positive conclusive grounds decisions from the UKVI than from the UKHTC in the past. There is a good reason for the difference. In positive decision rates, UKVI deals with very different cases where corroborative evidence may be harder to obtain. Quality reviews to date indicate that UKVI has been making the right decisions in these difficult circumstances.
The NRM review recommendations include the recommendation to move to multidisciplinary panels to undertake decisions on all cases. This is one of the recommendations that will be widely welcomed. Fundamentally changing the way in which potential victims are referred for support and the way in which decisions are made will ensure that good-quality, timely decisions are at the heart of what we do. That is because the process will have a high level of independent scrutiny and will involve multidisciplinary panels, as suggested.
Our initial response to the review is set out in the modern slavery strategy, which was published on 29 November. Given the fundamental change in approach that is being recommended, we want to make sure that our approach is sound and enhances the experiences of potential victims who are referred for help and support. We will therefore establish two pilots as quickly as possible to test the core recommendations relating to the identification of victims and to the referral and decision-making processes. We want to make sure that we get these pilots right. Officials are meeting a number of NGO representatives later this week to discuss early proposals.
Lord Warner
Will the Minister take away a broader issue when thinking further about this? The way in which this country has dealt with difficult social problems has often started with administrative responses because that is the fastest way of dealing with a more immediate problem. That is why, in 2009, the previous Government started with an administrative system. But if one looks at the field of health—for example, human fertilisation or human tissue issues—at some point or another, the Government of the day have to get into some kind of statutory system. There are whole sets of issues about public accountability and the transparency of the decision-making, and there is an expectation that Parliament will intervene.
This is nothing to do with getting at the Home Office; it is the way we do business in this country. Perhaps the Minister might go back to his colleagues and talk about this. They should ask themselves: has this work in the area of modern slavery got to that point? I suspect it has. When you see the kinds of criticism of the present administrative system in the report, I think it has got to—or is very close to—the point where there will be a public expectation that the Government of the day, whoever they are, will put this system on a more statutory basis. It would be a shame if we missed the opportunity in this Bill to get the drafting such that we could move quickly to put it on to a statutory basis should, as I suspect will happen, that need arises.
Lord Bates
I am grateful to the noble Lord for making that suggestion. That is exactly what we will do. I undertake to take it away and reflect on it. If we come back, it will be more along the lines that he is talking about, where we will set out some broad general principles rather than being too prescriptive. The luxury that we have is because when it was set up by the previous Government, it was not set up on a statutory footing—it was not all in the legislation—and therefore we have been able to undertake this quite fast-paced process of review and recommendation, which will enable us to move far more quickly to fixing the system along the lines that we all want to see.
Baroness Butler-Sloss
I would just like to pick up what the noble Lord, Lord Warner, said. It seems to me that the Government could put forward a very general proposition in relation to the national referral mechanism or statutory safeguarding organisation without tying themselves to how it would work. That seems to be the way forward because you would then have the power to put in whatever was appropriate after you had had the pilot schemes, which I am delighted to hear the Government are proposing to do. The important thing is for the Government not to tie themselves too much but to be able to come back and produce whatever is needed in any subsequent legislation, into which one could slip in an appropriate amendment. There will be no shortage of that, I suspect, with a future Government. If I may respectfully say so, something needs to be there to enable the Home Secretary of the day to go forward without having to look for some primary legislation.
Lord Bates
I accept that. I do not want to yield, as it were, to the position of saying that because we are being pressed by distinguished Members, we should give way on this. I have tried to put forward quite a robust argument as to why we have arrived where we have. We have before us a significant review of the national referral mechanism, which seems to address many of the concerns that people have recognised. That review, which everybody was in favour of and many people were involved in, came out against putting it on a statutory footing. We must take that into account but I give the assurance that, in the spirit that we have tried to keep all the way through this Bill, we will look at that very carefully and continue that discussion between now and Report.
Lord Rosser
I thank the Minister for his response and the indication that we can at least continue to discuss this issue, which is very helpful. As the noble Baroness, Lady Hamwee, said, the review argued for a well governed national referral mechanism, so in the light of all the criticisms that it made—no doubt quite rightly—of the present system, it is a question of whether one feels that can be achieved without it being on a statutory basis. I think a lot of people will feel, in the light of those criticisms, that we need to put it on a statutory basis. As the right reverend Prelate said, it would provide consistency and clarity for victims in how they were treated and give a clear framework. I think there is a lot to be said for doing that.
I acknowledge the point the Minister made: when the national referral mechanism was set up in 2009, it was not done on a statutory basis. Equally, the situation in relation to the incidence and nature of human trafficking and exploitation in this country has changed quite dramatically since 2009. Certainly, there has been a bit of an awakening as to what exactly has been going on. I can only repeat what the review said:
“The National Referral Mechanism has grown somewhat wildly over time. It is now a complex system operating in a challenging and painful area of public life”.
That would seem to reflect a view on its part that perhaps the situation has changed since 2009.
There are three amendments in this group, one of which the noble and learned Baroness, Lady Butler-Sloss, spoke to. That one does not suggest instant action since it refers to the Secretary of State reporting to Parliament within 12 months. I rather sense from some of the comments the Minister made that the biggest drawback to putting this on a statutory basis at the moment appears to be that the Government feel the situation is somewhat fluid with changes to the national referral mechanism, and they therefore feel that this might not be the appropriate time to put it on a statutory footing. I am not entirely clear—and I am not asking the Minister to respond at the moment—whether the Government object in principle to it being on a statutory footing. That is not the way it came over. I felt that the Minister was saying that the situation is fluid in relation to the NRM and this is not the appropriate time to do it. I hope I have not misunderstood him but I welcome his proposal that there should be further discussions about this, which is extremely helpful. In the light of that, I beg leave to withdraw my amendment.
Lord Bates
(a) the Secretary of State, or(b) if regulations made by the Secretary of State require it to notify a public authority other than the Secretary of State, that public authority.”
Lord Bates
“( ) The Secretary of State may by regulations specify the public authorities to which this section applies.”
Lord Bates
My Lords, I thank noble Lords for their contributions to this debate—and the noble Lord, Lord Rosser, for moving his amendment—and for the wide welcome that has been given to the clause. I will bask in that statement of welcome just for a couple of seconds, because it probably will not endure for very long. As is the case not only in Part Six but in all parts of the Bill, I totally understand the impatience of the Committee and of civil society on this issue. There is a wrong that is happening out there and we all want to tackle it. We want to go after the perpetrators and stop the abuse as much as possible.
I will deal with some of the issues that have been raised in some general opening remarks and, if the Committee will bear with me, I will put some remarks relating to the Government’s position on the record. I am also conscious that we are now coming to three groups that look at the supply chain from slightly different angles. Therefore, some of the issues and comments will overlap.
I certainly subscribe to the view of my noble friend Lady Hamwee. I refer to my own experience in supply chains because I did my MBA dissertation in China, in Qingdao, where I was commissioned to research Nike footwear factories and analyse how they were performing against Nike’s standard and code—the apparel industry code, as I recall. We found some amazing stories, which made me very alert to the issues.
There is one issue that is worth putting on the record at this point. The noble Lord, Lord Rosser, mentioned the statistic that four-fifths of the public want us to go further and want more information on this. Although the factories were located in China, they were operated by Korean companies. Part of the reason those factories were being driven so hard was that the consumers were not prepared to pay the market price for the footwear. They wanted more and more features and more and more design intricacies, but they did not want to pay any more for them. Therefore, the price had to come down. The intricacies of the design meant that the level of injuries that workers received in these factories was substantially higher. So part of the debate here is about how to engage the consumers in this. Part of it is about providing information, but the other part is to say that they cannot be exempt from the process. Yes, it is something for government and for business, but it is also something for consumers.
That very helpful meeting was triggered by the timely debate initiated at the end of October by the noble Baroness, Lady Kennedy of Cradley, which came out with perfect timing because the debate was on or around the day when the new clause was published in another place. Then we had the follow-up meeting and a helpful discussion about what could be done, and some very good ideas were generated there. A lot of those ideas are now working their way through the policy machine to be tested for feasibility, perhaps to come back at a later stage of the Bill.
A number of the points that were raised then are effectively about whether we should be prescriptive in the Bill or try to engage with the industry and business to make them aware of the risks that they face of reputational damage, in an age where often the biggest item on a balance sheet is not a physical asset but good will towards the brand, which disappears very quickly when you find yourself on the front page of a newspaper or in a TV documentary, having not checked your supply chain sufficiently. That is also a reason why investors, such as major pension funds and public sector pension funds, should be looking at the companies that they invest in and asking the question: are their supply chains robust and checked? We should look at that area.
Meanwhile, we are engaging in a consultation. I know that there are many consultations; it is a good job that the noble Lord, Lord Warner, is not here or I think he would be intervening at this point. The reality is that it is a tough time out there for businesses and we want them to succeed and develop, so we want to try to take them with us as far as we can without being too prescriptive. We have been talking to a list of organisations and stakeholders, and it might be useful for the record to say that we are talking to the Ethical Trading Initiative—I know that that is something that the noble Lord, Lord Young, is involved in, as is the noble Baroness, Lady Goudie, who has done a lot of work in this area—the British Retail Consortium, the Engineering Employers’ Confederation, the Association of Labour Providers, the CBI, high street retailers including Next, Primark and Marks & Spencer and supermarkets including Tesco, Sainsbury’s, Asda and the Co-op. We have also been engaging with other NGOs, including Unseen and the Environmental Justice Foundation, as well as working with Deloitte and PricewaterhouseCoopers. I think that it is useful to place on the record that meaningful consultation is going on here to see how we can get the changes that we all want to see.
That consultation will formally start next month and follow the usual guidelines that we now have for consultations. It will last for three months; therefore, we will probably not see its results until the Bill has—we hope—received Royal Assent. That is why it is phrased in the present format about regulations coming forward with regard to how that will be applied.
I turn to the specific questions. The noble Lord, Lord Rosser, asked whether Clause 51 allows enforcement by way of injunction. So far in the Bill, I have learnt this much: when talking about matters legal, I had better take my own injunction and consult my colleagues at the Home Office in detail before responding on the record. I will respond in writing on that point.
The duties are a duty to prepare an annual slavery and human trafficking statement, and to publish it prominently on the organisation’s website homepage or, if it does not have a website, to provide a copy on request. It was that latter point that the noble Baroness referred to. Who is meant to see that? The many NGOs, which are doing terrific work in this area and being vigilant in monitoring organisations, trade unions and other organisations should all be paying attention to what that statement says and holding companies to account for it. Civil society and the media will also be able to look at it, and if it is not there then that raises another set of questions. The idea is to provide the information to the public domain in the first place and then allow people to scrutinise it further.
My noble friend Lady Hamwee asked what role the Government were going to play in this. There are two constructive roles that the Government can have. The first is through the interdepartmental ministerial group on modern slavery. I mentioned this yesterday and listed the departments; the noble Baroness mentioned the Foreign Office in her remarks, but it goes much wider than that. It includes the Department for Business, Innovation and Skills and the Department for Education. I will not go through the whole list.
Lord Hylton
While the Minister is on the point about the interdepartmental group, will it recognise—I hope that it will—that British consumers have shown that they are willing to pay a higher price for an ethical product as a result of the fair trade campaign and fair trade labelling? Secondly, if I were a purchaser, which I am not, I would steer very clear of bricks made in Pakistan or matches made in India, knowing that many of them are produced by either bonded labour or child labour.
Lord Bates
Those are very good points well made. My home town, Gateshead, is the proud home to Traidcraft, which does tremendous work in this area doing ethically sourced coffees and foods, which are often a particular problem, but I do not want to get into advertising around Christmastime otherwise I will get into a whole other set of problems. Ultimately the consumer has great power here, although perhaps they do not realise it. In the same way that they have the power to drive down prices and standards around the world, they also have the opportunity to drive them up through their purchasing patterns.
The interdepartmental ministerial group is one part of this but I want to talk about another important part: what the Government can do. The Government can do more by putting their own house in order. The Government are a huge procurer—I do not know whether that is the right term—and a major purchaser of goods and services. It is important that we do everything that we can to prevent modern slavery from infiltrating our public sector supply chains. Taxpayers’ money should not be allowed to drive demand for these heinous crimes. That is why we are already taking concerted action on this issue. Individual departments have already taken clear steps. For example, the NHS standard terms and conditions for suppliers have clear conditions on labour standards in the NHS supply chain, and it has developed a labour standards assurance system that encompasses issues on forced labour.
The interdepartmental ministerial group on modern slavery will help to encourage best practice across the Government and the devolved Administrations. Home Office standard terms and conditions already require compliance with the law, which will of course soon include ensuring that suppliers have complied with our transparency and supply chain measure. We are also strengthening the labour standards section within our annual corporate social responsibility assessment in order to seek specific assurances from the Home Office’s largest suppliers that they have policies in place to address the risk of modern slavery. In addition, we are currently seeking ways to go further and require specific assurances from suppliers about steps that they are taking to stamp out modern slavery, which is an approach that we hope to then roll out across central Government. As a result, we are already proactively going beyond the measures in the Bill to address this issue. This is a bit like what we are asking people to do: to make a public statement and then be held to account for it. I wanted to put that on the record and expect to be held to account for it, being careful not to tempt fate too much. It is right that that is where we start.
With that rather longer than expected introduction, aware that we have two further groups to come in this area of consideration and having put those points on the record, perhaps the noble Lord, Lord Rosser, would accept that as a response on the Government’s position on his amendment and consider withdrawing it at this stage.
Lord Rosser
Before I do that, did the Minister early in his reply refer to coming back at a later stage or not?
Lord Bates
I do not think I actually said that. I think I related it to the consultation. The Government’s position is: let us have a consultation, let us try to bring industry with us. The consultation will start in January, it will finish at the end of March and it will then be evaluated, so we will probably be beyond Royal Assent before that is available. That was in my statement. I may have alluded to the fact—this may have given rise to the confusion—that we will be coming back to this issue in subsequent groups in Committee today, but the consultation will extend beyond Royal Assent.
Lord Rosser
I thank the Minister for clarifying that point and for his reply. I suppose one’s observation would naturally be that if the Government had put this in the Bill in the first place or had agreed somewhat earlier to Clause 51, the consultations could have been completed before the Bill had gone through all its stages in Parliament, and we might have been able to have a rather more meaningful debate. That is what happens when a Government had to be dragged kicking and screaming to put something in a Bill as it went through its last stages in the House of Commons.
I am still not clear what the Minister is saying about what action can be taken if a commercial organisation produces the slavery and human trafficking statement but it is a bit thin or vague in its content. The Minister said that the measures under Clause 51(9), civil proceedings, would relate to whether the organisation had actually prepared the statement—which has nothing to do with the content—and published it on its website. It did not address the issue which I raised as to what would happen if the statement was a bit vague in its content. After all, the purpose of my amendment was to stipulate the areas that had to be addressed in the statement. The Minister has not really responded to that point.
Surely, enough information needs to be required in the statement to enable a consumer, a voluntary organisation or the media to form a view on how well or otherwise a company is doing compared to other companies in ensuring that slavery and human trafficking is not taking place in any of its supply chains or any part of its own business. Frankly, the Minister has not said anything to provide me with any comfort that the Government intend to include anything in the Bill that will ensure that the necessary information is provided to enable those meaningful comparisons to be made. In moving the amendment, I referred to the issue of guidance. The Secretary of State “may issue guidance”—it is not “must issue guidance”—which,
“may in particular include guidance about the kind of information which may be included in a slavery and human trafficking statement”.
We still have the problem: what action can actually be taken if the statement is produced and published but is a bit vague in its content and does not really enable the consumer, the voluntary organisation or the media to make a proper and effective assessment of the action that has been taken by that company, compared with other companies, to ensure that slavery and human trafficking is not taking place?
Lord Bates
I did not mean not to give the courtesy of addressing the specific amendment. We believe that it would be for civil society and the wider community to examine and assess whether a company’s statement on its supply chain is sufficient, rather than it being for the Government to do that. While trying to be courteous and respond precisely to the point that the noble Lord, Lord Rosser, made, the noble Lord, Lord Alton, asked a specific question about whether the anti-slavery commission might collect data on that. As worded within the anti-slavery commissioner’s remit, he can undertake research, consult, produce documents and engage in education and information. Of course, he is independent. I should have thought that a key part of that might be to consider transparency of supply chains.
Lord Rosser
I can only comment that it is very difficult for civil society to make a judgment if there is not enough information in the statements in the first place. There is no requirement, in my opinion—and there is nothing in what the Minister said to cause me to change my view—in Clause 51 to ensure that the necessary information is provided.
Still, I note what the Minister said in reply. I am obviously disappointed with it, as Clause 51 still does not go far enough and will not enable those judgments to be made by society, whether it be consumers, voluntary organisations, the media or others. That is a matter of regret. However, I note that that is the Government’s position and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, I will be brief. These two amendments are wider-ranging than my amendment but their intentions and objectives are similar, and I wait to see whether they will elicit a more enthusiastic government response. I also await the response to what I believe to be the request of the noble and right reverend Lord, Lord Harries of Pentregarth, for discussions involving the Government on this matter before the next stage in the passage of the Bill through this House.
Lord Bates
I cannot quite match the noble Lord’s brevity, but I will try to go as far as I can, because some interesting proposals have been made. The first was the idea, suggested by the noble Lord, Lord Alton, of reconvening, between now and Report, his group, including the noble Baroness, Lady Royall, on the issues of the supply chain. That would be a very helpful thing to do, and I would be happy to take part in it. The noble Lord talked about the process—the journey that we are on—starting when the new clause was tabled. Some may use the term “kicking and screaming”, but I think that a sinner who repenteth ought to be welcomed into the kingdom of heaven—and into Parliament. I believe we are making progress down that route.
Many points were made about the regulatory framework, to which the noble Lord referred in great detail. The regulatory framework is setting out the long-term strategy. That is where we want to be. There are some stages to go through, in relation to the point made by the noble and right reverend Lord, Lord Harries of Pentregarth. He raised the desire to see more bite than there is at the moment. I cannot give any assurances that that will be there by the time the Bill reaches Royal Assent. However, by the time of the process of consultation is complete and the guidance has been issued—
Lord Harries of Pentregarth
I thank the Minister for giving way, but will he pay particular attention to the speech of the noble Baroness, Lady Mobarik? She spoke from the point of view of business and emphasised the fact that businesses would value greater clarity in what was being required of them in these statements and how they were to go about it. I felt that she was making a very important point from the point of view of business.
Lord Bates
I agree, and my noble friend Lady Mobarik made a very good point by making it clear that it is out of enlightened self-interest that business ought to be pursuing these things. We also need to recognise that we introduced into the Companies Act the requirement for ports to carry a statement on human rights. As with so many of the issues raised by the noble Baronesses, Lady Kennedy and Lady McDonagh, this relates to human rights. You could almost say, without waiting for anything else, that the current legislation that requires a report on human rights could be broadened to include a statement on the human rights of the people involved in the supply chain. Those types of things might give urgency to it. On the assets idea, from my experience of business, nothing grabs the attention better of the chief financial officer, the chief executive or the chairman of the board and the people who invest. The noble Baroness, Lady Mobarik, referred to about 20 institutions of the size of Hermes, which is a huge fund, and Rathbone. When they put weight on that, when they hold shares and hold votes to determine who is the chairman of the board and the non-executive directors and what the remuneration of the senior employees should be—that is precisely the type of group that will grab more attention for these important issues than possibly even more specific legislation.
I am conscious of time, but I am also conscious that I want to pay respect to the two tablers of the amendment, the noble Baroness, Lady McDonagh, and the noble Lord, Lord Alton, with an undertaking to meet and continue the dialogue; and to give an assurance that we will do further work, if or when we meet between Committee and Report, when we will have the terms of reference for the consultation to look at. We can get some early responses to that and see what can be done further to reassure the noble Lord that the Government see this very much as a way of starting down the road. As with all these things, business should be aware that once you start putting down legislation such as this, it tends to be a one-way street. You do not go back. If people do not comply and if business does not take it seriously, this Government or future Governments will say that there is a demand and that they need to act to put more legislation down for businesses to comply with. So I hope, with that canter around the issues, but with some specific commitments to look carefully at this, that the noble Lord, Lord Alton, feels able to withdraw his amendment.
Lord Alton of Liverpool
My Lords, the Minister has been generous in how he has dealt with the issues that have arisen, especially at this late hour. I was struck that he talked about how sinners repenteth, when I was thinking more that Ministers are damned if they do and damned if they do not. I am personally appreciative of the fact that the clause is now in the Bill and, of course, it is incumbent on noble Lords to try to build on provisions in the amendment.
One might use another metaphor about the bird in hand. On this occasion there is a Bill in hand, and a legislative opportunity. We cannot come back in another year from now with legislative proposals. This is the time to make them and I do not think that any of us wants to feel that the moment has passed without our doing justice. I reiterate that, because this is something that came into the Bill so late in another place, it is something to which, outside your Lordships’ House, we should give more time and attention. I thank the noble Baronesses, Lady Kennedy of Cradley, Lady McDonagh and Lady Mobarik, as well as my noble and right reverend friend Lord Harries of Pentregarth for the contributions that they have made in supporting the principles that underpin this and the other amendment before your Lordships. I am also grateful for the Minister’s willingness to meet those who tabled the amendments and the large array of those involved in this issue.
The Minister said that the important thing was to grab the board’s attention to get them thinking about these things. He is right about the power of investment and resources. I was very struck that Matt Crossman at Rathbone Greenbank Investments, which has more than £900 billion of investment, said:
“It is in the best interests of business to join the fight against modern slavery … Specific, but proportionate, legislation can allow companies to continue making progress, whilst ensuring that firms can no longer turn a blind eye to these issues”.
Naheeda Rashid of Hermes, referred to by the noble Baroness, Lady Mobarik, said:
“Companies which are able to demonstrate that they understand and are actively addressing the complexities of the risks in their supply chains will be better placed in managing both their reputation and disruptions to their operations”.
That is what these amendments seek to do—they put real flesh on the bones of Clause 51. I hope that, when the House resumes after the Christmas break, we will have a chance to hold the meetings to which the Minister referred. I hope that Report will not be reached for some weeks, which gives us some time to do that. With the assurances that the Minister has given us, I beg leave to withdraw the amendment.
Baroness Butler-Sloss
My Lords, I also support the amendment. I am not sure in what year the review should be held. I think to say “within five years” is sensible, but it might well be wiser to do it within three years. This is such an important Bill. As I have said previously, the Government are to be congratulated on bringing it forward and for doing so much to make it work. Although we on the Cross Benches, like noble Lords on other Benches, have been critical from time to time, we are well aware of the effort that the Government have made. However, it is important to make sure that the Bill works. The strategies of government that are not in the legislative process will have to be reviewed, but in reviewing those it will also be important to see whether the legislation is strong enough and working well enough for it to manage the strategies that go with it. I urge the Minister to support the idea that there should, at some stage, be post-legislative scrutiny of this important Bill.
Lord Bates
My Lords, I am grateful to the noble Lord, Lord Alton, for proposing the amendment. The Government are committed to post-legislative scrutiny of legislation under the existing arrangements agreed with Select Committees. The Government believe that post-legislative scrutiny is generally preferable to ad hoc and potentially inconsistent specific statutory requirements in individual Bills. The Political and Constitutional Reform Committee’s report into legislative standards praised the Government’s record on post-legislative scrutiny, saying:
“We urge the Government to continue to produce these useful memoranda. In return, we will undertake, and we take this opportunity to encourage other Select Committees to undertake, more visible post-legislative scrutiny work when opportunities arise”.
Since 2012, the House of Lords has established committees on an ad hoc basis specifically to conduct post-legislative scrutiny. I am sure that the House will consider carefully whether the future Modern Slavery Act would be a good candidate for such scrutiny.
However, I would like to place on record once more the Government’s commitment to providing a post-legislative scrutiny memorandum on the Bill within three to five years of Royal Assent. The Government will consult the Home Affairs Committee on the timing of publication of the memorandum, but that is a commitment. In the longer term, the Independent Anti-slavery Commissioner will continue to assess the response to modern slavery and how it is provided, and if new forms of abuse emerge. In addition to the commitment of a memorandum in three to five years, we will also have the update of the Modern Slavery Strategy, produced by the interdepartmental ministerial group on modern slavery. We will also have the anti-slavery commissioner’s annual report, which I am sure will be awaited with great interest by Members of your Lordships’ House.
There are therefore a number of opportunities for this type of scrutiny to happen. Having taken part in the Leader’s Group, which considered ways to improve the workings of your Lordships’ House and elsewhere, I have to say that one of the joys of this Bill is that it has been a textbook example of how legislation should work: first, producing a Bill, which is scrutinised in pre-legislative scrutiny. The Government then come back with a revised Bill and go through a meaningful stage in another place where amendments are made. The same happens in this place, so it seems to me absolutely logical that we should not leave the job unfinished but follow it through right to the end. That is why we are very much behind this commitment. We will produce the Explanatory Memorandum to ensure that that post-legislative scrutiny does arise.
Given that this may well be the last time that I am on my feet in Committee, I thank your Lordships for the way in which we have engaged in this very tough and passionate four days. It has given a huge amount of work for officials to think about and work on between now and Report. Somebody once said: “To govern is to choose”. There are going to be so many issues that we are going to have to work on that we will have to engage in some prioritisation about what is absolutely critical to get in the Bill before Royal Assent and what work can be continued under the watchful eyes of your Lordships and the Independent Anti-slavery Commissioner thereafter. That work and the meetings will continue and we look forward to making further progress on Report. I thank the noble Lord and ask him to consider withdrawing his amendment.
Lord Alton of Liverpool
My Lords, if, as the Minister has said, this legislation has been exemplary in the way in which it has been handled, and I think it has been, then I would also say, and I do not think I would be alone in saying this, that the Minister and the noble Baroness, Lady Garden of Frognal, have been exemplary in the way in which they have treated each of us. I can only speak for myself as a Cross-Bencher, but I suspect that it is a view shared across the Chamber that throughout proceedings we have been treated with great courtesy and thoughtfulness in the way in which the amendments have been considered, not least this amendment. I am grateful to the Minister for the way in which he has promised that post-legislative procedures will be put in place. Obviously, I would prefer it to be in the Bill, but he will not be surprised by that. However, I feel very pleased with the assurances that he has given to your Lordships. I am happy to withdraw the amendment.
Lord Bates
““child” means a person under the age of 18;”
Lord Bates
“Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10)9A In Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in paragraph 32(8) (civil legal services for trafficking victims: definitions), in the definition of “exploitation” for the words from “section” to the end substitute “section 3 of the Modern Slavery Act 2014 (meaning of exploitation for purposes of human trafficking offence in section 2 of that Act);”.”
Modern Slavery Bill
Lord Bates Excerpts(9 years, 11 months ago)
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Baroness Newlove (Con)
My Lords, I ask the Minister to listen to some of the views in your Lordships’ House in respect of the support for victims. As the Victims’ Commissioner for England and Wales, I welcome much of what is in the Bill and, as I mentioned at Second Reading, I look forward to working with the anti-slavery commissioner at an early stage to ensure consistent, co-ordinated and high-quality support for victims of trafficking. It seems that as it stands, the Bill considers the needs of victims to be mainly in securing successful prosecutions of the perpetrators. While I want to see the guilty convicted and punished, I want the Bill to go further for victims of trafficking by helping to ensure that they are helped to recover and supported in leading fulfilling and healthy lives.
We in your Lordships’ House have all been shocked to learn about the experiences of some of the victims of trafficking. We have heard about the physical, sexual and emotional abuse and about almost unimaginable cruelty, so we should understand that helping victims to recover cannot be achieved in a matter of weeks or months. It may take a number of years, or indeed a lifetime. Yet I have seen for myself that with the right support, victims can be helped on to a recovery journey and to get on as best they can. We must not stop the support for victims of trafficking when a court case is over; we must consider them as a traumatised human being, not simply as a means to secure a conviction. That is why I want to work with the anti-slavery commissioner; I want to ensure that the victims of these terrible crimes can access good-quality services for as long as they need them.
I had a very helpful meeting with my noble friend the Minister last week to discuss these issues and I would welcome meeting the anti-slavery commissioner soon. We considered a number of options which may come under the duty to co-operate in the Bill. We could have a memorandum of understanding to make sure that there is nothing specific between the victims’ commissioner and the anti-slavery commissioner. We could specify in more detail how the commissioners could work together regarding the commissioning and quality of services, and the provision of services for victims. We could also have the two commissioners co-operating by agreeing in letters to work together to make sure that we support the services of victims.
What matters to me most is not how this co-operation is achieved but that it is achieved. As victims’ commissioner, I want all victims to have a voice and for them to be helped to recover from their ordeal. The quality and duration of the help they need should be determined by their needs and not by the type of crime they have suffered. The criminal justice system should expect to fit around the victim instead of the victim fitting around the system, as is the case today. As I said at Second Reading, I look forward to meeting the anti-slavery commissioner to consider some of these options, but I ask the Minister to look at how the support of victims is going to be carried forward. We need this Bill and we welcome it but as victims’ commissioner I meet many victims and we have to support them through the lifetime of their journey to make them better people and to give them healthier lifestyles.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, it is a privilege to be able to respond to this extraordinarily high-quality debate. It is a large group of 26 amendments and there have been 15 excellent speeches. In the time permitted it will perhaps not be possible to go into every detail but I assure noble Lords we will—as we have done throughout—pay considerable attention to all the points made very powerfully and eloquently during this debate and seek to respond to them as we go through the remaining stages of the legislation in your Lordships’ House.
I will try to direct as many of my remarks as possible to addressing the many specific points that were made. The noble Lord, Lord Warner, began in good style by asking me to reflect on the previous legislation which had just secured its passage through your Lordships’ House, and invited me to think about whether we ought to be as accommodating of amendments. I want to put on record that the Government continue to amend and refine this piece of legislation in the light of our own experience and consultations but also in the light of the comments made and the concerns expressed by Members of your Lordships’ House and, indeed, the other place. As evidence of that I was just calculating that there are 16 government amendments in the Marshalled List today and there will be many more to come.
We have seen the Bill strengthened to include child trafficking advocates. There have been changes with regard to the victim’s personal circumstances, including their age. There is a statutory defence—which was a major change—and reparation orders to ensure that victims are actually compensated. Identification of victims has become part of the commissioner’s remit and the commissioner’s independence has been put in the Bill. We have had a new clause on supply chains, which was introduced in the other place. We have had a requirement on child trafficking advocates to act in the best interests of the child. We have introduced a statutory defence for victims. We have introduced an amendment so that a lack of consent is not required; it applies to all children. I do not mean to be tedious and to test the patience of your Lordships’ House but I put on record that the Government have engaged with people across the House, recognising that this is a landmark—or démarche as my noble friend Lord Deben put it—piece of legislation. We all want to make sure that we get it absolutely right.
As the starting point of an excellent contribution, the noble Lord, Lord Warner, referred to pre-legislation scrutiny in refining this legislation. It identified four elements—prevent, protect, prosecute and partnership. It is no coincidence that when the modern day slavery document was produced just before Committee in this place we identified four elements—prevent, protect, pursue and prepare. They broadly followed that line of alliteration highlighted in the previous Bill and in the previous consideration of this, so that is part of what we are trying to do.
The noble Lord, Lord Patel, said that he was very concerned about redaction, essentially. That is a key concern that a number of noble Lords have referred to. He wondered how this fitted in with other commissioners and whether it was going to be singled out and limit the effectiveness of the designated Independent Anti-slavery Commissioner. I draw noble Lords’ attention to Clause 41(6)(a), (b) and (c). That is not simply carte blanche to say that matters can be redacted from the report that may lead people out there to question its independence and authority. There are very specific instances that would be given where, for example, something,
“would be against the interests of national security, … might jeopardise the safety of any person in England and Wales, or … might prejudice the investigation or prosecution of an offence under the law of England and Wales”.
When I say England and Wales, I mean simply that the Bill goes on to reference Scotland and Northern Ireland after that.
I know that my noble friend Lady Hamwee asked whether this was required under the independent reviewer of terrorism legislation provision. That is the case; the Secretary of State must be satisfied that it will not prejudice criminal proceedings. Then there is the Independent Chief Inspector of Borders and Immigration. If the Secretary of State thinks the content is undesirable for reasons of national security or might jeopardise individual safety, then information can be redacted under those very narrow and specific circumstances. It was actually with regard to the latter case that we sought to draw the wording for this part of the Bill from the latest piece of legislation that we had. It has very specific elements in it.
With regard to the location of the commissioner, I am aware of the view that he should perhaps sit outside the Home Office; we had that debate, and a number of noble Lords said that. Physically, he sits outside the Home Office in Globe House, with the Independent Chief Inspector of Borders and Immigration. It was interesting to talk to Kevin Hyland last week. We went through the comments that had been made in Committee on Wednesday. He expressed the view that being attached to the Home Office, rather than standing alone, helped his case. He coined a phrase to me, which he gave me permission to use, that if he were on his own it would be a bit like being a corner shop trying to take on Tesco, although I suggested that we use the word “Sainsbury’s” just in case that was not appropriate. The point is that he would be a small, independent operator seeking to battle in the marketplace with a major government department. The fact that he carries the weight behind him of one of the major offices of state seems to him to help rather than hinder his case.
Those sentiments were backed up by the conversation that Kevin Hyland had with the noble and learned Baroness, Lady Butler-Sloss, at the meeting this morning of the European Commission, where he seemed to reiterate that he felt that he was given a degree of independence to operate as he saw fit. Linking back to the conversation we had on Wednesday in Committee, he also made the point that he felt he had freedom to appoint from outside the pool of the Home Office. I have since sought clarification of that and that is the case. I can inform your Lordships’ House that he is at liberty and not restricted to drawing from the Home Office. He might draw from there some of his more junior roles, but the request was that the senior roles should be ones that he appoints and that they should be people who he wants to head up particular elements. Therefore, I was heartened that some of the appointments he was discussing were at a senior level but from outside.
Lord Warner
When the Minister replies to my noble friend, could he say how what he said about Kevin Hyland’s views squares with Clause 40(4), which makes it very clear—if I understand the English in the Bill—that the Secretary of State is in the driving seat on the staff made available to the commissioner? If I may put this rather unkindly to the Minister, he may be dropping the commissioner who has been appointed somewhat in the cart, in that it may convey to your Lordships’ House that this man actually is a creature of the Home Office rather than the other way round.
Lord Bates
I certainly would not want to do that. I agree that there should be a meeting. I would be very happy to facilitate that meeting, perhaps between conclusion of Committee and Report. My reading of Clause 40(4) is that, as these appointments are within the Home Office and as the Home Secretary has made this a personal passion, then clearly from a procedural point of view there ought to be a sign-off from the Secretary of State to those positions. That would seem eminently sensible in the sense that they are accountable to your Lordships’ House, delivering on the strategy before us.
Lord Warner
I want to press this point with the Minister as we are in Committee. Is he saying then that other commissioners in the Home Office or outside, such as the Children’s Commissioner, get sign-off from the departmental Secretary of State before they appoint people?
Lord Bates
On that point, one of the things I was coming to in my rather conciliatory wind-up at the end—but I will bring it forward if I can—was to say that of course we are open to ensuring that, in the words of the noble and learned Baroness, Lady Butler-Sloss, the words match the deeds. If refinement is necessary to communicate what is happening—namely, that we have an Independent Anti-slavery Commissioner who is appointing his staff, in whom he has confidence, and setting up his operation in a way that he sees fit and will be held accountable for—then we will continue to look at that.
The noble Baroness, Lady Cox, reminded us of the global dimension. Again, that is extremely important and we are mindful that we need to look at ways in which that could be strengthened. In the strategy document—the noble Baroness referred to this element, as did the noble Baroness, Lady Kennedy of Cradley—we have strong sections on page 54, from section 6.9 on, which talk about country plans. I know the point was made that these country plans ought to cover all countries, all high commissions and all embassies. However, with limited resources, we want to make sure that at least those countries that we are all aware must be at the vanguard in stopping the trafficking and tackling the problem are the ones that we direct resources to. I am delighted to see on the Front Bench my noble friend Lady Anelay, who will confirm that we have a number of projects, though the FCO and DfID, working on tackling modern-day slavery in India, Bangladesh and west Africa under the Work in Freedom programme working in partnership with the ILO. Those projects are also working with girls and women in south Asia and in the Middle East in the domestic worker and garment manufacturing sectors. Therefore, those are specific projects that we are doing.
Does more need to be done? Yes. I recognise in particular the noble Baroness’s deep expertise in this area and long track record, as she very kindly gave me a copy of her latest book, This Immoral Trade. I was particularly struck by some of the chapters where she had taken direct verbatim evidence from people who had been victims in South Sudan and Uganda. There were some inspirational stories as well, such as the young man who had gone on to compete in the Olympics, despite having been trafficked as a young boy. Therefore, I am aware of the need for us to go further. I think that that will be something that can be included in the anti-slavery commissioner’s strategy and plan. In fact, we would like to see that enhanced and expanded.
We have also experienced over the past few days the major conference that took place at Lancaster House, addressed by the Home Secretary and the Independent Anti-slavery Commissioner designate. It was attended by 30 countries of the Santa Marta group—a group set up by the Home Secretary with other countries to try and get a more co-ordinated and robust international response. I hope that noble Lords will feel heartened by that. I can also advise noble Lords that, ahead of their next meeting next year, the group of 30 countries working hand in hand in this area, in partnership with the churches, including the Vatican and the Bishops’ Conference, have identified how this can be prosecuted further. They indentified four topics to work on: exploiting technology to tackle the problem; education and raising awareness among professionals, particularly with children; increased engagement with the diplomatic community and embassies; and the fact that new models of exploitation continue to emerge. That is the working task of the Santa Marta group. I would certainly be happy to facilitate a meeting and engagement between that working group of the Santa Marta group and noble Lords with an interest in that area.
Regarding the comments raised by the noble and learned Baroness, Lady Butler-Sloss, about the supply chain, I am getting briefing on that coming through to me, but it may well arrive in time for our next day in Committee on Wednesday, when we will look at the supply chain in more detail under Part 9.
The noble Baroness, Lady Royall, to whom I pay tribute for her long track record in this area, asked about, among other things, the operation of the interdepartmental ministerial group on modern slavery. I can confirm that the Home Office chairs that group and it works closely with the Foreign and Commonwealth Office and DfID, as would be expected. The Ministry of Justice, in which the Victims’ Commissioner my noble friend Lady Newlove is located, the Department for Education, where the Children’s Commissioner is represented, the Department of Health, the Department for Work and Pensions, the Attorney-General and the Department for Business, Innovation and Skills all take part in that cross-departmental group.
My noble friend Lady Hamwee asked for specific information on data sharing. Clause 41(3) sets out a non-exhaustive list, simply giving some examples of what the commissioner may do. The commissioner may already collect statistics if he feels it would be useful to him. Indeed, this is also covered by the express reference to research in Clause 41(3)(c). We are therefore not convinced that we should seek to insist that the commissioner focus on collecting statistics, given that the interdepartmental ministerial group on modern slavery is already formally tasked with reporting on trafficking statistics. Indeed, statistics are also a major element of the Review of the National Referral Mechanism for Victims of Human Trafficking, which has already been referred to. Section 9 highlights “Data and Intelligence” and the changes that should be made there. There are several recommendations on page 58 on data and intelligence gathering. The Home Secretary has already said that she accepts in principle all the recommendations.
The noble Lord, Lord Patel, asked whether the redaction of reports is different for the Children’s Commissioner. The Independent Anti-slavery Commissioner will be able to require law enforcement agencies to provide sensitive information concerning ongoing investigations into modern slavery offences. This may include information on law enforcement criminal investigation capabilities. The redaction powers are there to ensure that matters of important public interest are not inadvertently put at risk. We would not expect the Children’s Commissioner to request sensitive operational material, but this may be an important part of the anti-slavery commissioner’s role. We have therefore included the redaction power in the Bill.
My noble friend Lady Hamwee asked whether this works across the independent reviewer of terrorism legislation. I reassure my noble friend that the independent reviewer of terrorism legislation also has safeguards built into the legislation regarding reports. The Secretary of State must be satisfied that a report will not prejudice criminal proceedings, as set out in Section 36 of the Terrorism Act.
My noble friend also asked about introducing data-sharing protocols. The Home Secretary has agreed in principle all the recommendations in the national referral mechanism review. They included data-sharing protocols.
The noble Baroness, Lady Lister, was probably having another go at trying to get an answer, so I hope that this is a more satisfactory response. The focus of the commissioner is to drive improvements in the operational response to tackle modern slavery. On the ground, the Government expect that in pursuance of this objective there will be significant human rights benefits. However, the Government are confident that it is not necessary to create a national human rights institution like the Equality and Human Rights Commission in order to achieve this goal. I hope that goes somewhere. Perhaps when she reads it in Hansard, it might help. If not, then of course the opportunity to come back is there.
Lord Bates
My Lords, I thank the noble Lord, Lord Warner, and my noble friend Lady Hamwee for tabling their respective amendments. The provisions that we have put in the Bill enable the commissioner to produce strategic plans and to report in a way that will make a real difference to the fight against modern slavery. Those are important and necessary aspects of the role.
Amendment 72D would remove subsections (4) to (6) of Clause 42, which set out what the plan involves. Removing those subsections would weaken the effect and focus of the plan. It is important that the commissioner sets out a clear plan of action for the time period they specify. The commissioner will be best placed, in consultation with the Secretary of State, to determine what should be in the plan and the period of the plan. Removing those subsections would also seriously weaken the constructive and collaborative relationship we want to establish between the Secretary of State and the commissioner, because the amendment would also remove the provision which permits the Secretary of State to propose modifications to the plan for the commissioner’s agreement.
I fully understand the intention behind this amendment and the concern that the independence of the commissioner should be guaranteed. However, I should set out at the start of my contribution why the provisions in the Bill which relate to the plan take the right approach. If the Independent Anti-slavery Commissioner is to make a real difference on the ground, it is important that he should have a constructive relationship with the Secretary of State. In that way, even if the commissioner’s reports are highly independent and very critical, there is a good chance that they will be implemented and make a real difference, not only through the Secretary of State but through the interdepartmental ministerial group.
The provisions in relation to the commissioner’s strategic plan and reports reflect that. It is the commissioner who prepares the strategic plan. He defines his own role: setting out priorities, objectives, areas he will report on and other activities he will undertake. It is the commissioner who decides how long the plan should last, between one and three years. There is then an opportunity to ensure that there is effective collaboration with the Secretary of State and the devolved Administrations through the process set out for the Secretary of State to approve the plan after consultation with the devolved Administrations. That ensures that the commissioner’s work will properly cover the whole of the UK and that it respects devolution settlements. However, the Secretary of State cannot rewrite the plan. She can approve a plan only where any changes are made with the agreement of the commissioner, so the principle of the independence of the commissioner is respected at all times.
Amendment 73B is consequential on Amendment 72D and removes what the annual report must include. Although I appreciate why the noble Lord has tabled such an amendment, it would not help the commissioner to focus on his key priorities. It is important that the plan indicates what the commissioner will do and the report provides an assessment of how the commissioner has undertaken the activities proposed in the plan. That would mean that the report is not structured or focused on tackling the issues that have been collectively identified as priorities.
Amendment 72ZZA seeks to require the commissioner to prepare a three-year plan as soon as reasonably practicable after their appointment. The commissioner can already prepare a three-year plan under the existing provisions. However, the commissioner may wish to draft a plan for a shorter time period, particularly when first in the role, which is why the provisions enable the commissioner to produce a plan that is between one and three years in length. That gives the commissioner the flexibility to decide the period of any plan, based on what he proposes to deliver in that specified time period and having regard for any other relevant factors.
Amendment 73ZA in the name of my noble friend Lady Hamwee seeks to require the commissioner to report on the voluntary sector’s role in relation to providing protection and support for victims and to make recommendations. I have made it clear that the commissioner will set the strategic plan, in consultation with the Secretary of State, and that the plan will be focused on delivering the commissioner’s key aims; namely, to encourage good practice in the prevention, detection, investigation and prosecution of modern slavery offences and the identification of victims.
At this point I join my noble friend in paying tribute to the remarkable work that the charities and NGOs which operate in this area have done over very many years. In many ways this has come to the fore. It has been picked up as an issue by government and is now in the public square. However, long before it arrived there, many of the NGOs and charities to which my noble friend referred had been doing invaluable work in looking after the broken lives that are the result of these crimes.
I firmly believe that the commissioner in setting out his plan will have full regard to the voluntary sector. The noble and learned Baroness, Lady Butler-Sloss, referred to her conversation with Kevin Hyland, who talked about the importance of NGOs and said that he would perhaps draw someone into his senior team who has a significant and respected NGO background to underscore the importance of partnership in that work. I firmly believe that the commissioner should develop his plan first and I am not convinced that it would be helpful to his independence to dictate very specific areas that he should include at this stage.
Amendment 74ZA seeks to require the commissioner to report on the extent to which he has undertaken activity in providing information, education or training. Of course, that is exactly the type of information that we would expect the commissioner to include in any annual report, as well as the other things he may do in pursuance of his functions as set out in Clause 41(3). However, it is not necessary to specify that the commissioner must report on this particular aspect over and above the other things he may do. In addition, we should not stipulate to such an extent the things that the commissioner must report on. That is exactly the type of constraint we are seeking to avoid.
Finally, Amendments 74AA, 74CA and 74DA require the Secretary of State, the Department of Justice in Northern Ireland, and the Scottish Ministers to lay any strategic plan or annual report they receive from the commissioner as soon as reasonably practicable and no later than within one month of receiving it. Again, I fully accept the intention behind these amendments—to get the reports and plans laid quickly—but they are not needed. The pre-legislative scrutiny report raised this concern. The Government responded positively by altering the Bill so that the annual report has to be laid as soon as is reasonably practicable, as was the Government’s intention in any event. In addition, to support the laying of the strategic plans and annual reports produced by the commissioner, we will be developing a memorandum of understanding between the Secretary of State, the Department of Justice in Northern Ireland and Scottish Ministers to ensure that plans and annual reports are laid promptly and simultaneously, following receipt from the commissioner. This is an area on which all the Administrations agree so that Parliaments and legislatures can undertake scrutiny of them.
In responding, I should deal with the point raised by my noble friend Lady Hamwee about Section 36 of the Terrorism Act 2006. With regard to redaction under subsection (5):
“On receiving a report under this section, the Secretary of State must lay a copy of it before Parliament”
as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings. That is the only element there.
With those comments and assurances, and in the spirit in which I dealt with the previous group of amendments—that we remain open to considering all the comments made—I ask the noble Lord to withdraw his amendment.
Lord Warner
My Lords, I accept the emollient way in which the noble Lord has responded. We seem to be making progress. When I tabled these amendments I recognised that they were makeweights to the rather wider, more sweeping amendments that were in the previous two groups. As the noble Lord goes away and reflects, he should look again at the evidence to the Joint Committee from the overseas rapporteurs. It shows a level of trust between the rapporteurs and Parliament and Government that does not require Government to specify in enormous detail, in primary legislation, how people are going to behave. If he looks at that, he will see why I tabled these amendments. In that spirit, I beg leave to withdraw the amendment.
Lord Bates
Lord Bates
“( ) The Lord Advocate may remove from an annual report any material whose publication the Lord Advocate thinks might prejudice the prosecution of an offence under the law of Scotland.”
Baroness Hamwee
My Lords, I have two short amendments in this group. I will come back, outside the Chamber, to just what Section 36 says. I am not taking issue with the substance, in any event.
Amendment 76A would delete Clause 43(4). The clause is about the duty to co-operate with the commissioner. It provides that complying,
“does not require or authorise any disclosure of information which contravenes any other restriction on the disclosure of information (however imposed)”.
Looking at Clause 43(4) alongside Clause 43(3), which provides that disclosure,
“does not breach any obligation of confidence”,
I would like to ask my noble friend why one is accepted by the legislation and the other is not. Why does data protection, as I assume it is, apply but not confidential—I am not sure about privileged—information?
My second amendment, Amendment 77A, is quite different, but it is to enable me to ask a question. Clause 43(6) refers to regulations being allowed to be exercised by Scottish Ministers and by the Department of Justice in Northern Ireland. I have suggested that the Welsh Assembly Government be added to the list in order to ask my noble friend about the question of health. Health, after all, is one of the issues to which we need to have regard when we are looking at the needs of people who have been trafficked or enslaved. This seems to me very relevant. I do not know whether it is intended that Wales should come under Clause 43(6)(c), as “any other public authority”—I think that they might be a bit insulted if that were the case—or whether I have got it wrong that health is not intended to be covered in all of this. I beg to move.
Lord Bates
My Lords, I am grateful to my noble friend for moving this amendment and I will try to deal with the questions of clarification that she raised.
The effect of Amendment 76A would be to permit public authorities to provide information to the commissioner where it would otherwise contravene restrictions on the disclosure of information, other than those as a result of an obligation of confidence under the common law. Therefore, public authorities would, for example, be obliged to disclose information to the commissioner where such a disclosure would otherwise be restricted by statute or order of the court. While we want to ensure that the commissioner is able to gain access to information from relevant authorities to improve the UK’s response to modern slavery, in doing so we must ensure that we are not requiring those authorities to provide information in breach of existing restrictions on information sharing or permit authorities to disregard court orders, although we recognise that a balance has to be struck.
For this reason the public authorities and officials have been given a certainty that they will not be breaching any obligation of confidence under the common law when providing information to the commissioner. We consider that this subsection ensures that we achieve the right balance between respecting existing information safeguards and ensuring that the commissioner has the necessary powers to carry out the role effectively.
My noble friend’s Amendment 77A seeks to create a power for the Welsh Government to specify which Welsh public authorities are required to co-operate with the commissioner. The Welsh Government play a key role in the UK’s effort to tackle modern slavery. They are active participants in the interdepartmental ministerial group on modern slavery, and we have worked innovatively and determinedly to raise awareness of modern slavery and improve the response in Wales. We have worked closely with the Welsh Government on the development of the Modern Slavery Bill.
The focus of the commissioner’s work, and indeed of this entire Bill, is to combat crime and protect its victims, which are non-devolved matters as regards Wales. Engagement with Welsh authorities by the commissioner would seek to deliver on these objectives and any infringement on those authorities’ devolved functions is entirely incidental to, or consequential on, this purpose. It is therefore wholly appropriate, and consistent with the devolution settlement for Wales, for the Home Secretary to specify that a Welsh public authority is required to co-operate with the commissioner without the need for regulations made by the Welsh Government.
The Welsh Government have been regularly consulted on the role of the commissioner and it is worth nothing that they have not requested the inclusion of a regulation-making power within this clause. We will, of course, consult fully with them before specifying Welsh public authorities in regulations. I pay tribute to the good co-operation which is already taking place between the Welsh Government and the UK Government in relation to modern slavery issues.
Given this explanation, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I will, of course, do so. I felt that the response to Amendment 76A was more about “the what”, which I think I understand, than “the why”. However, I do not want to comment further without having had the opportunity to read what my noble friend had to say.
I am not sure that I am persuaded about Wales but that is perhaps not a discussion for now: we may have other opportunities to do so. I will think about that further and perhaps have a word with my noble friend about it. I beg leave to withdraw the amendment.
Lord Bates
Baroness Royall of Blaisdon
My Lords, I rise to support Amendments 103 and 104 and to speak to Amendments 86 and 86H, to which I have put my name.
The noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, have been veritable champions of these young vulnerable people and it is thanks to them—I have to say, with our support—that the Government have got far as they have. Of course I welcome Clause 47 and the government amendment that was introduced in the other place—but, as so many have said, we have not quite got there yet, but I have no doubt that we will.
Throughout the passage of the Bill, my colleagues in the Commons, together with some other Members of the House of Commons, consistently argued that unless advocates are given legal powers they will not be able to act effectively in the child’s best interests and truly protect trafficked children. We have a great example before us tonight. It was mentioned by several noble Lords. I pay tribute to the noble Lord, Lord Browne, and to the noble Lord, Lord Morrow, who introduced the Bill in the Northern Ireland Assembly. I hope that our Government will ensure that the laws pertaining to trafficked children are the same throughout the United Kingdom. It is very important and I very much hope we will follow their excellent example.
If we are truly to deliver for these most vulnerable of children, we must ensure that advocates have legal authority to act for the child in cases where they lack the legal capacity to do so. We want guardians to be able to instruct solicitors on their behalf and represent the child’s best interests. Advocates must also have the power to compel local authorities to take action where a child is not receiving the services and support to which they are entitled, such as appropriate accommodation. We also want the UK to be brought into line with its obligations under the Council of Europe convention and, as has been said, under the anti-trafficking directive.
Evidence resulting from the work and experience of members of the Refugee Children’s Consortium and from research commissioned by the Home Office and conducted by the Children’s Society and the Refugee Council demonstrate that local authorities often fail to understand, prioritise and adequately respond to trafficked children’s needs. This too often results in these vulnerable children falling through the gaps, as has been said, being housed in inappropriate and unsafe accommodation, such as bed and breakfast, and receiving inadequate adult and financial support.
Those most closely involved also find that the only way to force local authorities to act is litigation, or the threat of it. A legal advocate with powers to compel the local authority to act is therefore vital if we are to ensure that these children are correctly assessed and get the services to which they are entitled. Evidence from the evaluation of the Scottish guardianship pilot found that because guardians did not have legal powers and were not on the same statutory footing as local authority staff, they sometimes struggled to ensure that local authorities provided trafficked children with the correct services, and that because the service had no statutory footing the guardians found themselves having to negotiate, and sometimes renegotiate, the position in order to assist the young people with whom they worked. We have that very fine example before us. We know that it did not work in Scotland, so please let us act now to ensure that it works when we introduce these advocates.
Giving advocates legal powers to instruct solicitors would not conflict with the local authority, which remains responsible for the welfare and safeguarding of the child. The Northern Ireland Assembly’s amendment to its Human Trafficking and Exploitation Bill 2014 puts child trafficking advocates on an equal footing with the local authority and states that local authorities must recognise and pay due regard to the functions of child trafficking advocates. That is another fine example to be followed. The Northern Ireland Bill even has the wording right.
I urge the Government to support this amendment, or something very similar, in order to ensure that advocates have legal powers and that trafficked children are entitled to the support and protection that they deserve, because they deserve no less.
Lord Bates
My Lords, on that last point, the remarks on Northern Ireland of the noble Baroness, Lady Royall, we are, I am sure, as one. We recognise that we are moving. The general consensus, if I may try to sum up the debate, is that progress has been made and we have come a long way, to quote the noble Lord, Lord Browne, and the noble and learned Baroness, Lady Butler-Sloss, but perhaps there is further to go. Well, we still have more stages in the consideration of this legislation.
I come to some general remarks. I join nearly all noble Lords in the debate on these amendments in paying tribute to my noble friend Lord McColl for his determined and—I am tempted to say, as a former member of the Government Whips’ Office—unyielding advocacy on behalf of children, going back to the Immigration Bill, but also his own Private Member’s Bill. It has been an example of how it is possible, from the Back Benches, to make significant, important changes to government legislation.
I urge my noble friend, in saying this, to recognise that we have in front of us something that is not timid or weak. Such terms have been used a few times during our discussion. I totally accept that that is how parliamentary discussion and scrutiny should work: the Government give a bit and then people say, yes, thank you—17 year-olds, legal aid—but can we have some more? I understand that, but there is an audience outside this place who needs to have some confidence that we have before us something that is robust and that they can act upon. Yes, okay, the Independent Anti-slavery Commissioner may not have everything spelt out to the last letter as far as your Lordships would like, but the fact is that he is there, he has a vital role to play, and others should work with him to ensure that victims are identified and perpetrators prosecuted. With child-trafficking advocates, again, we may not have everything spelt out to the letter in the Bill, but the reality is that we do have a provision there.
We have heard a lot about the “mays” in Clause 47, but there are some “musts” as well. For example:
“The Secretary of State must make such arrangements as the Secretary of State considers reasonable to enable persons (“child trafficking advocates”) to be available to represent and support children who there is reason to believe may be victims of human trafficking”.
In the next subsection,
“the Secretary of State must have regard to the principle that, so far as practicable, a child should be represented and supported by someone who is independent of any person who will be responsible for making decisions about the child”.
Also, of course, in Clause 47(6):
“The Secretary of State must, no later than 9 months after the day … report on the steps the Secretary of State proposes to take in relation to the powers conferred by this section”.
So there are “musts” there.
I shall deal with some specific points put before us. The issue of support and protection for victims of child trafficking is of the utmost importance across the Floor of both Houses of Parliament. I share the aim of providing a bespoke support system for this most vulnerable group of children. I am dedicated to ensuring that these children receive the support and protection they deserve after the nightmare of their traumatic experience of being trafficked and exploited.
Before I continue, I assure noble Lords that, although modern slavery is a devolved matter, we continue to work closely with the devolved Administrations on the issue. We are fully abreast of the similar provisions which the noble Lord, Lord Browne, in particular, referred to in respect of Northern Ireland, as well as the Scottish guardianship service, and we are learning from these. We continue to maintain our positive partnership with the Welsh Government on this matter. We have listened intently to the debate on the issue of child trafficking advocates. Amendment 86 seeks to extend the provision to child victims of slavery and sets out in detail the minimum responsibilities of child trafficking advocates.
In that context I will set out the Government’s approach to achieving the best result for child victims of trafficking. We are trialling child trafficking advocates. The trials are being delivered by Barnardo’s across 23 local authorities in England and are now well under way, having started in September, with a growing number of children receiving the services of a specialist advocate.
Lord Alton of Liverpool
My Lords, rather in parenthesis, a few moments ago the Minister introduced a new component into the debate when he talked about the financial implications that might be involved were we to support the amendment of the noble Lord, Lord McColl. Can he give us a figure? He has talked about the financial implications and must have some idea of what the cost might be. I was surprised to hear that argument being produced in your Lordships’ House. Does he have a figure that he can share?
Lord Bates
I think that what I am getting at there is self-evident. If you extend the service of child trafficking advocates, clearly there is a cost implication. I was not suggesting at any stage that that was in any way an argument for or against. I was simply saying that it ought to be taken into account before we embark on an extension of the scheme. I am happy to write and come back on that, with further information about the basis of our assessment.
On the points made by my noble friend Lord McColl, it is intended that the functions and role of advocates in any national scheme will be set out in regulations. This will give the advocates the desired legislative basis without forcing us to make decisions about their role prior to the outcome and evaluation of the ongoing trial. The Delegated Powers and Regulatory Reform Committee accepted our approach—a point I have already made. We accept that a different approach has been taken in Northern Ireland, where an advocates scheme has not been trialled prior to setting out details of it in the Bill. It is our position, however, that the detail of advocates’ roles covered in the Northern Ireland Bill can be covered in our regulations, should this be supported by the findings of the ongoing trial. This takes in the point made by the noble Baroness, Lady Royall, when she said that there was a description effectively set out in the Northern Ireland legislation; that could be taken into account. We know that the pre-legislative scrutiny committee acknowledges that there is no one-size-fits-all in terms of advocacy schemes.
This is worth underscoring briefly. We accept that this is not a homogeneous group. This is not a group of people who have had similar experiences or who have similar needs. They are a very heterogeneous group and have different needs that must be addressed. That ought to be taken into account. The report highlighted that the Scottish system, which works very well without any legislative basis, would not necessarily translate well into England and Wales because of the different circumstances regarding trafficked children in different areas.
While we are concerned about child victims of modern slavery, the current trial and the provision in the Bill are focused on a particularly vulnerable group—namely, trafficked children. We know that trafficked children need to receive consistent support and protection to avoid them going missing and being retrafficked. We agree with my noble friend that the Bill is not the appropriate place for measures to extend the provision of advocates to all unaccompanied children, given its specialist focus on modern slavery.
I have dealt with the points raised in particular by my noble friend Lord McColl. I am aware that other points were raised. As I said when we discussed previous amendments, we will reflect on those points very carefully. I am sure that my noble friend Lord McColl, who accurately anticipated my response to his amendment, will probably tell us that he wants to revisit this issue later in our proceedings—which of course is his right. Perhaps in the interim we could have more discussions about how we can ensure that these child trafficking advocates work in the best way possible. We might also be able to share some interim findings from the trial that started in September, which would help inform the debate. With those assurances, I ask the noble Lord to consider withdrawing his amendment.
Lord Patel
My Lords, I pay tribute to my friend, the noble Lord, Lord McColl, and to the noble and learned Baroness, Lady Butler-Sloss. I paid tribute to them at Second Reading but do so again. We all know how hard both of them, particularly the noble Lord, Lord McColl, have worked for years for this Bill.
I thank those who supported my amendment—namely, the noble Baronesses, Lady Lister of Burtersett and Lady Kennedy of The Shaws, and the noble Earl, Lord Listowel. I understand the difficulties of including all separated and unaccompanied children in the Bill. However, I was trying to emphasise that we have enough evidence to suggest that separated children are very much at risk and often end up being trafficked or becoming involved in modern slavery: for example, the example I gave of child T. It would be a great shame if a Bill on modern slavery ended up excluding this group of very vulnerable children, for whom we have to find a solution in due course. However, I recognise the complexity of involving all unaccompanied children.
As the Minister rightly said, the central amendment in this group is Amendment 86H under the lead name of the noble Lord, Lord McColl. My name was added to that amendment, but the vagaries of communication over the weekend and of the printing of the Marshalled List meant that it was not included.
In summing up, the Minister said it was likely that the noble Lord, Lord McColl, would wish to revisit the issue. I noted that the noble Lord nodded enthusiastically, so the Minister was left in no doubt that he and those who support the amendment, including me, will return to it at a later stage.
The vagaries of the House procedures do not allow the noble Lord, Lord McColl, to thank all those who supported him, but I do so on his behalf. With that, I beg leave to withdraw the amendment.
Lord Browne of Belmont
My Lords, I support Amendment 86M. The focus of the amendment is on improving the provision of support for victims of human trafficking and slavery, which I believe to be imperative if we are to appropriately respond to the impact of these crimes. The United Kingdom is a signatory to both the 2005 Council of Europe convention against trafficking in human beings and the 2011 EU directive on preventing and combating trafficking in human beings and protecting its victims, both of which are legally binding on the UK.
However, as we all know, signing up to a directive or a convention is only half the battle. The key issue is how a member state decides to implement the directive or convention in practice. In many areas the British Government and the devolved Administrations, who are responsible for criminal justice powers, have flexibility in deciding how they will implement these international instruments. A good example of this is seen in how we decide to design our human trafficking offences. Both the convention and the directive mandate that such offences are required, but the relevant legislatures in the UK can shape the offences as they choose.
However, Articles 11 and 14 of the directive and Article 12 of the convention set out the details of the practical assistance and support that states must provide to victims. Among these requirements are that assistance and support should be provided to victims before, during and—for an appropriate period of time—after the conclusion of criminal proceedings, and that the assistance and support should include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment, including psychological assistance, counselling, information and translation and interpretation services where appropriate.
The UK is obliged under international law to provide those measures of assistance and support; that is not in dispute. Now it is being argued that the obligation to provide such assistance and support does not need to be in statute, and that we can merely rely on guidance to fulfil the requirements. I do not believe that that is good enough. Indeed, as we have heard, the group of experts established by the Council of Europe convention, GRETA, has recommended that the UK put into statute this right to a reflection and recovery period during which the assistance is provided. To my mind, there is no logical reason why such obligations should not be outlined in statute with the details of delivery being set out in guidance. Amendment 86M would achieve such a goal.
I am afraid that, once again, I will take this opportunity to refer to the Northern Ireland Bill. Amendment 86 mirrors the requirements for assistance and support under the directive and convention, and unsurprisingly, therefore, it is similar to Clause 18 of the Northern Ireland Human Trafficking and Exploitation Bill introduced by my party colleague, my noble friend Lord Morrow. The Northern Ireland Assembly unanimously supported this clause when it was debated a few weeks ago. It sets out clearly in statute the range of assistance and support that adult victims of human trafficking will receive when they have been, or are about to be, referred to the national referral mechanism. Indeed, the Minister of Justice in Northern Ireland fully supports Clause 18 of the Northern Ireland Bill. He agreed with my noble friend Lord Morrow that such a move would be a positive one for the victims in Northern Ireland. The Minister of Justice and my noble friend co-operated very effectively to put forward an excellent clause that has been accepted by the Assembly.
I am very proud of the fact that Northern Ireland is leading the way within the United Kingdom through the Human Trafficking and Exploitation Bill. This Bill is superior to the Modern Slavery Bill in its proposals to assist and support victims of human trafficking. There is a risk—one that can be avoided but I fear will not be—that the support for victims will be superior in Northern Ireland to the rest of the United Kingdom. The setting out of the minimal level of assistance to victims in Clause 18 of the human trafficking and exploitation Bill is a model that the Modern Slavery Bill should follow for England and Wales. It is not more expensive, and it provides much greater clarity for victims and NGOs working with victims to as to what assistance and support they are entitled to. I urge your Lordships to consider carefully what is being done in Northern Ireland and to produce a similar measure in the Modern Slavery Bill. I commend Amendment 86M to the Committee.
Lord Bates
My Lords, I am struck in these amendments by how prescient contributors are of the arguments I am about to deploy. I was wondering how it could be that people were so aware of this. The reality is that we have had a rather open and extensive consultation period. Indeed, the officials working on the team are constantly meeting with outside groups and talking to people. Alongside that, my noble friend Lady Garden and I have been trying to do the same with your Lordships’ House. Therefore, I suppose that it is not too much of a surprise that respective positions are known—but that does not mean that they cannot be moved on either side.
I take slight issue with one of the caricatures put forward, perhaps unintentionally, by the noble Lord, Lord Browne, that somehow victims’ protection in the United Kingdom may not be of the same standard outside Northern Ireland. I do not accept that. Not least, of course, we are going to have an Independent Anti-slavery Commissioner, who will cover Northern Ireland. I am sure that that would be a key part.
The other point is that, as I have said before, we are open to looking at the legislation and experience in Northern Ireland and to sharing best practices with each other. The notion that somehow victims are just a passing shot in the Bill does not stack up to the discussions we are having or the legislation, where we talk about victim reparation orders, enhanced access to legal aid—which has been widely welcomed—special proceedings in court to encourage victims to come forward, presumptions about age, child trafficking advocates, and statutory defence if they are involved in committing a crime. All the way through, we all shared a commitment that those who have suffered most should be considered most. At the same time, we recognise that one of the best ways that one can serve victims is by ensuring that others are not added to their number by making prosecutions.
Those points made, I am not quite sure I will live up to the creative billing the noble Lord, Lord Alton, urged on me, but I shall respond as best I can to the points made. I am grateful for the tabling of Amendments 86J, 86K, 86L, 86M, 102B and 102C, which deal with crucial issues relating to identifying and supporting victims of modern slavery and to legal aid. This is why the Modern Slavery Bill includes a provision requiring the Secretary of State to issue guidance to ensure that front-line professionals understand how they might encounter and identify potential victims of modern slavery and how they can help them to access the support they need.
This guidance will focus on the effective identification of both child and adult victims of modern slavery and will provide information to front-line professionals and others on potential signs that someone may be a victim and on what to do. It will also set out the assistance and support on offer to victims through the government-funded adult victim care contract, currently operated by the Salvation Army, and local authority child welfare and safeguarding arrangements, including the presumption about age provisions in Clause 49. The Independent Anti-slavery Commissioner will also have a key role in ensuring that victims can be quickly identified by all front-line professionals. We are fully intending to consult on this guidance so that we can get it right, and therefore I do not believe that the amendment is necessary.
Amendment 86J seeks to require all victims to be psychologically assessed during the investigation of a modern slavery offence as set out in Clauses 1 or 2. While I appreciate my noble friend’s intention of ensuring that an assessment of victims’ needs is undertaken at an early opportunity and her awareness of the often deep psychological trauma these heinous crimes can inflict, I do not believe that this amendment is the right approach to achieve those laudable aims. The amendment may force victims to undergo a psychological assessment, even if they do not want one. I am sure that that is the last thing we should do. Added to that, all the way through this victim-focused legislation is the idea that victims have to consent to all the actions taken on their behalf. Instead, I offer the following reassurance. Adult victims who are referred to the national referral mechanism are entitled to receive psychological support through the national victim care contract currently run by the Salvation Army. Any such support would be provided following an appropriate assessment of an individual’s needs.
I now turn to Amendment 86L, tabled by my noble friend Lady Hamwee. I believe it is a probing amendment in relation to the intention of Clause 48(1)(c), which sets out that guidance should include,
“arrangements for determining whether a person is to be treated as a victim of slavery or human trafficking”.
The purpose of this paragraph is to ensure that such guidance covers the national referral mechanism decision-making process to determine whether a person is to be treated as a victim of slavery or human trafficking. The wording of the Bill reflects the terminology used in relation to the national referral mechanism. “Determination” is used to describe the reasonable and conclusive grounds decisions by the competent authority, whereas “identify” is used to refer to the initial identification of potential victims by first responders. I reassure my noble friend that the paragraph as presently drafted covers both these elements of the national referral mechanism process, and I trust that the intention of the amendment is not to limit the scope of the guidance in any way.
Amendment 86M seeks to put a referral mechanism into statute which ensures that victims get at least 90 days’ support which is not conditional on the willingness of the person to act as a witness in any criminal proceedings. Although administratively we provide potential victims with a minimum of 45 days to recover and reflect, in practice many victims are supported for a much longer period. As noble Lords may know, we are currently retendering the contract for adult victim care services and have reflected on the national referral mechanism review recommendations in building the requirements for the new contract. That includes consideration of how we might provide ongoing support to victims once they have received a decision confirming that they are a victim of modern slavery. Our aim is to help these individuals move on with their lives so that they are not revictimised through being retrafficked.
Finally, Amendments 102B and 102C will enable the commissioner to exercise functions in relation to individual cases until amendments are made via secondary legislation to legal aid provisions. The Government are strongly of the view that it is not the role of the commissioner to champion individual cases or to track victims who receive support. Their role is to strengthen our collective response to modern slavery, working closely with law enforcement agencies and other stakeholders, including civil society organisations, to identify more victims and prosecute more perpetrators. We recognise the importance of understanding the longer term outcomes of victims. That is why we are considering how we can work with the victim care contractor to best achieve this. Of course, information from individual cases may help inform the commissioner’s work in this regard, but it is not for the commissioner to advocate for individuals.
Potential victims of trafficking currently gain access to legal aid following a positive reasonable grounds decision of the national referral mechanism. Legal advice is not necessary for an NRM referral. The reasonable grounds decision is generally made within five working days after an individual has been referred to the NRM, and the decision has a low threshold. This test is an important gateway to avoid abuse of a system that provides access to a range of support, including legal aid. We recognise that there are concerns about the operation of the NRM. That is why we commissioned a full review of the system and will be piloting a new approach to the NRM in response to that review. We will ensure that any wider changes to the NRM are reflected in the provision of legal aid.
I thank noble Lords for tabling these amendments and allowing us to discuss some crucial issues. I hope that I have addressed noble Lords’ concerns and that—with the undertaking, as with previous groups, that we will continue reflecting on the detailed comments that have been made—they will take that reassurance and not press their amendments.
Baroness Hamwee
My Lords, I was looking to see if the noble Lord, Lord McColl, wanted to come in. I know that all noble Lords are very appreciative of the time and effort that Ministers and officials are putting in to meetings and discussions outside the Chamber. I hope that the teasing and the prescience does not deter them from continuing with that; I am grateful to the noble Lord, Lord Alton. My amendment about psychological assessment—I take the point about consent —is really not about the NRM or about support for victims and their recovery; that is obviously extremely important. I was seeking to pick up the role of psychological input into an investigation and prosecution. That is a different matter. It is clearly not appropriate now for me to expand on that any further, but if I can test the Minister’s patience, maybe this is something for outside the Chamber.
I note what the Minister said on my other two amendments—I am happy about those—and I beg leave to withdraw Amendment 86J.
EU: Justice Opt-outs
Lord Bates Excerpts(9 years, 11 months ago)
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Lord Dykes
To ask Her Majesty’s Government what recent discussions they have had with the Government of the Republic of Ireland on the United Kingdom’s justice opt-outs under the Lisbon Treaty.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, on 20 November, the Prime Minister notified the Council of the UK’s wish to rejoin 35 EU police and criminal justice measures listed in Command Paper 8897. On 1 December, decisions were adopted by the European Commission and Council formally approving this application. Ministers have been in regular contact with their Irish counterparts throughout the process and the Home Secretary wrote thanking the Irish Justice Minister earlier this week.
Lord Dykes (LD)
I thank my noble friend for that Answer. Given that the Irish wisely kept miles away from the bizarre pantomime of opt out and then opt back in unleashed on the British Parliament by the two Conservative Secretaries of State, contrary to the advice of the European Union Select Committee, would my noble friend not agree that now the important thing is to emphasise the list of the renewed opt-ins, particularly the European arrest warrant, which is critical to the successful co-operation of the Irish and British police?
Lord Bates
My noble friend is right that it is critical to have the European arrest warrant in place to avoid any operational gap—which we did as a result of the documents being deposited and agreed on 1 December. It is important that that continues, as is the case with all 35 measures. It is also good that we have retained and repatriated powers from the 100 that we did not opt into.
Lord Boswell of Aynho (Non-Afl)
My Lords, in the matter of the opt-outs, while it is gratifying to know that the Government have been keeping in touch with the Irish authorities, sadly they have not always succeeded in fulfilling their duties to this House. After repeated failures on deadlines, in a letter that reached me within the hour the Government have now admitted that in relation to the decision of 1 December, which is welcome in substance, they broke the scrutiny resolution. When the European Union Committee had already written to assert its right to demand an Oral Statement consequent on this failure of the process, why are the Government now apparently resisting or refusing to make one? Is it not high time that the Government realised that it is as useless as it is impertinent for them to seek to avoid continuing embarrassment by putting their head in the sand?
Lord Bates
Obviously, we take the noble Lord’s criticisms extremely seriously, given his position. I know that he does not raise these issues lightly. We also take seriously our obligations, set out in the appendix to the Companion, on scrutiny reserve powers. I urge him to accept that exceptional factors were at play in this instance, relating to the objections that were lodged by the Spanish, the Poles and the Austrians in July, which we did not anticipate. This then coincided with the recess period. The Spanish objections were listed only on 7 November and we needed to avoid an operational gap. That was why, in these exceptional circumstances, the Home Secretary had to take the decision to override scrutiny—which she did not do lightly. She did so to avoid people being at risk through the European arrest warrant not being in place. We have met the chairs and the work will be ongoing to ensure that this does not happen again.
Baroness Smith of Basildon (Lab)
But, my Lords, very early on in our debates about opt in and opt out, I asked the Minister which other countries the Government had discussed this with. I was told from the Dispatch Box that there was no need to discuss this with any other country; it was a matter for the UK Government. On the matter of substance, how many of the measures that the UK has now permanently opted out of in policing and criminal justice were relevant to the UK, were actually being used and had any value to the UK?
Lord Bates
The noble Baroness says that we were not engaging in discussions, but these discussions through the working groups were absolutely ongoing all the time. That was the reason why we secured the improvements which we got through to the European arrest warrant in terms of proportionality, dual criminality and avoiding lengthy pre-trial detentions. In terms of every single one of the 135 measures, again, we set out very clearly in Command Paper 8671, which was laid before your Lordships’ House in July 2013, our view as to what the application was and whether it was necessary. From that, we took the view that 35 were necessary; that was why the Prime Minister wrote in July last year.
Lord Forsyth of Drumlean (Con)
Can my noble friend explain to me, as someone who voted for the Maastricht treaty on the basis of an assurance that justice and home affairs would always remain within the jurisdiction of this Parliament, why, instead of opting into the European arrest warrant, we could not simply have made a bilateral arrangement with the rest of the EU?
Lord Bates
I obviously acknowledge the fact that we both voted for the Maastricht treaty. We were both in another place at the time and were part of the Government who did that. I recognise that that was the right thing to do, but the reality is that the pass was sold on this in the 2009 signing of the Lisbon treaty. That is, we have to live in the real world, as we are now, and keep our borders safe. It was good that the opt-in on justice and home affairs was negotiated to be included by the previous Government, but it was this Government who actually took it and have exercised it in this regard.
Lord Richard (Lab)
But does the noble Lord not recognise that if in fact we went back to a system of bilateral arrangements between this country and other countries concerning extradition, the process would be longer, more difficult and more expensive than operating the European arrest warrant?
Lord Bates
The noble Lord is absolutely right. Let us imagine the process just in relation to the original Question and what it would mean for negotiations with the Republic of Ireland: we would be back to the bad old days of highly politicised extradition proceedings. We do not want to go down that route; that is why we have taken the decision that we have.
Lord Sharkey (LD)
Concerning the JHA opt-outs, can the Minister confirm that the Government will make an Oral Statement to the House on compliance with the House’s scrutiny reserve resolution, as requested by the EU Select Committee?
Lord Bates
The current plan is that in normal procedures on matters of this nature, we would issue a Written Ministerial Statement. It is of course up to Members of your Lordships’ House to seek further debate, should they wish it, but we have already had an extraordinary amount of debate on these issues. On 12 November there was a majority of 426 in the other place; they discussed it again on 20 November; we discussed and debated it on 19 November. I think that at some point, people need to say that we need to move on.
Fraud: Phone Scammers
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Lord Kennedy of Southwark
To ask Her Majesty’s Government what action they are taking to deal with fraud associated with phone scammers.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government take the issue seriously. We are working with Action Fraud and the National Fraud Intelligence Bureau to ensure that all reported frauds receive an appropriate response from the police and that victims of phone scammers are provided with the right support. We are also working with Financial Fraud Action UK, which has issued advice to the public on avoiding phone scammers.
Lord Kennedy of Southwark (Lab)
My Lords, a few months ago, I got a phone call saying that I had won £50,000 in a competition that I had never entered. All that I needed to do was to give them my date of birth, my national insurance number and my bank details. They said that they had my home address, so I said, “Well then, pop a cheque in the post—you don’t need this information”. The phone was soon hung up, but I am still waiting for the cheque.
The serious point is that people are ripped off by these criminals. What are the Government doing to ensure that our laws are as robust and up to date as possible and, when the perpetrators are based abroad, what are we doing with our foreign partners to sort these criminals out?
Lord Bates
I apologise on behalf of the Government that the noble Lord has not received his cheque yet. It may be in the post, as they say. In terms of what the Government are doing on this very serious issue, which has received publicity in the run-up to Christmas, when some 75% of people will undertake online sales, it is very important that people think of their own security. In preparing for this Question, I was thinking that the system is very complex and difficult to remember—but it is incredible, the audacity of people ringing up and asking for PIN numbers. Amazingly, people actually do give them. Part of it is law enforcement, but another aspect is having a bit of common sense in dealing with our security.
Baroness Sharples (Con)
Would my noble friend agree that on television virtually every day there is a warning that you should never give out your PIN number or your account number?
Lord Bates
My noble friend is absolutely right. It is a fact that your bank, the Government and the police will never ask you to reveal your PIN number or your online password, and that message needs to get out to people.
The Earl of Listowel (CB)
My Lords, what can be done to protect people with dementia?
Lord Bates
My Lords, that is a very good question. That is part of where we all have responsibility to assist those people with dementia to protect them. But there are some sensible steps that can be taken in ensuring that payments made by people through direct debit cards or direct to bank accounts go through approved payment mechanisms such as major credit cards or PayPal.
Baroness McIntosh of Hudnall (Lab)
My Lords, does the Minister agree that one question that arises from my noble friend’s original Question is how the people who contacted him got hold of his telephone number in the first place? Does he also agree that the systems that are designed to prevent the sort of calling that results in people having to take that sort of call are extremely inadequate? It would be very helpful if we could have some information about how they are to be strengthened.
Lord Bates
That is something that Ofcom is looking at. There is, of course, the Telephone Preference Service—
Lord Bates
It is relevant in this regard—that you can go online, as I did this morning, and in five steps put in your mobile telephone number, and it will then be removed from the mass-mailing contact numbers that are often the first port of call for many of these phishing and vishing exercises.
The Countess of Mar (CB)
My Lords, my family have been members of the telephone preference scheme for years and we still get telephone calls from people in the United Kingdom, not just Indian calls. How can they be stopped?
Lord Bates
It is very difficult. Sometimes they are using data that were provided before the person delisted from the system. That is something that Ofcom is looking at, and the Government are engaging with Ofcom in that matter, but it is an ongoing problem that we will have to live with.
Lord Hunt of Chesterton (Lab)
Why are local authorities now asking people to give all this personal detail when they are registering to vote? If it is voluntary, you either do not give it or you do—and I suspect that a lot of people are giving too much information, which the local authorities proudly say that they are selling. I cannot understand it.
Lord Bates
Again, in that particular piece of legislation there is a provision whereby someone can choose not to have their details revealed.
Lord Bates
Right, but the point is that that provision is there. A lot of what we have to do is in terms of making people aware of their rights in the disclosure of information, as well as being responsible.
Lord Rosser (Lab)
As we know, a joint declaration by the UK banks, supported by the police, has been issued to make it clear what kind of information the banks would never request over the phone. Will the Government be taking any action to help spread that message, particularly to older people, who seem especially vulnerable to this sort of scam? Secondly, has the number of officers and civilian staff in local police forces engaged full-time in fighting the ever rising incidence of phone and computer scams and fraud increased or decreased over the past three years?
Lord Bates
The number of individuals tasked with looking after cybercrime in the National Crime Agency has significantly increased, and that is mirrored by regional operations. We are working with various organisations, including the Financial Ombudsman Service and Ofcom, which we have already talked about. There is also an online facility at actionfraud.police.uk, where people can report suspected frauds. All those help in the intelligence-gathering operation. It is more difficult dealing with people who are not familiar with online operations, but perhaps that is where family members and friends can gather round, as they do in the instance of dementia, to help and protect those they know and love.
Baroness Farrington of Ribbleton (Lab)
My Lords, could the Minister investigate how the Conservative association in the City of Westminster got my name and address? I am not on the electoral register, but in a communication addressed to me by name at my London flat I am being invited to join the Conservative Party. I do not know where they got those two details from, because I am deliberately not on the electoral register. The noble Lord’s party is wasting a lot of money inviting me to join.
Lord Bates
Speaking as a member of the City of Westminster Conservative association, I can tell the noble Baroness that we are never without hope—particularly in the run-up to Christmas. That approach was perhaps speculative, and perhaps wrong.
Police and Crime Commissioners
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Lord Imbert
To ask Her Majesty’s Government what is their assessment of the success or failure of Police and Crime Commissioners, particularly in comparison to the cost, democratic accountability and competence of the Police Authorities they replaced.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, in 2010, Her Majesty’s Inspectorate of Constabulary found that only four of the 22 police authorities inspected were judged to have performed well in two of their primary functions: setting strategic direction and ensuring value for money. More than 5.8 million votes have been cast to elect accountable police and crime commissioners, who are providing an impetus to reform and are innovating and delivering policy locally and more effectively.
Lord Imbert (CB)
I thank the Minister for his Answer but he will be surprised that I and thousands of others do not share the enthusiasm for this system. Surely it cannot be right, or indeed safe, to introduce the evils of party politics into policing decisions and activity. Does the Minister agree that politics and policing should be worlds apart and that politics should have no influence on policing activity or decisions—particularly operational decisions which, despite what the protocol might say, is likely to happen? He who pays the piper calls the tune.
Would the Minister care to comment on the television programme “Meet the Police Commissioner”, in which the only police and crime commissioner to put her head above the parapet was asked about her daily workload? She was asked what her first task was when she arrived at her office in the morning, to which she replied, “I do my nails”. When her large staff, who I think amounted to 16, appeared to be downcast or bored she said that she took her dogs into the office to cheer them up—the staff, I presume, and not the dogs.
Lord Bates
My Lords, first, I pay tribute to the noble Lord’s distinguished service in the police service. I recognise his points, and will respond to one of them by saying that when he was serving in the police he was accountable to political leadership through the police authorities. What we now have is directly elected police and crime commissioners and, whereas only 7% of people knew that the police authorities existed, 5.8 million people have now voted for their police and crime commissioner. That is progress.
Lord Rosser (Lab)
My Lords, the National Audit Office has said that there are “few checks and balances” on police and crime commissioners between elections. The Home Secretary has referred to placing PCCs on probation because of cronyism in the hiring of deputies from groups of friends and political associates. The Deputy Prime Minister has described PCCs as a failed experiment, and polls indicate that few people believe that PCCs give them more say in how their local area is policed. Despite the good work done by some PCCs, do the Government not realise that the system—created at considerable expense—is flawed and that fundamental reform is needed to give people a greater voice in how they are policed, with proper accountability at force and neighbourhood level, as we are proposing?
Lord Bates
In relation to that, the National Audit Office has actually said that the commissioners could add important benefits in providing faster decision-making and greater transparency. The Home Affairs Select Committee acknowledged that individual police and crime commissioners are providing “greater clarity” for policing in their areas, and an increasing number of people are voting in the elections. I would have thought that that was to be welcomed.
Lord Paddick (LD)
My Lords, in the light of the report in the Times at the weekend, which claimed that more than half of the police and crime commissioners had been investigated by the Independent Police Complaints Commission, do the Government consider it necessary to reconsider the whole issue of the accountability of police and crime commissioners?
Lord Bates
Of course, because they are now elected and accountable, they can be referred to the Independent Police Complaints Commission. Previously, the chairs of police authorities could not be referred to that organisation, so it is a step forward.
Lord Mackenzie of Framwellgate (Non-Afl)
My Lords, given that one of the key reasons for appointing police and crime commissioners was that it was alleged that the chairmen of police authorities were not identifiable and that nobody knew them, is there any evidence that members of the public actually know who police and crime commissioners are?
Lord Bates
A few people in South Yorkshire might know who Shaun Wright is. The South Yorkshire chief constable, who gave evidence before the Home Affairs Select Committee, said that during his seven years he could not remember the name of either of the chairs of the police authority that he had had, but I am sure that he knows the names of Shaun Wright and his successor.
Baroness Henig (Lab)
My Lords, when the legislation to establish police and crime commissioners was going through this House, many of us on all sides of the Chamber warned strongly that a lack of effective governance arrangements would have dangerous consequences. In light of the fact that, as we have already heard, over half of all police crime and commissioners are under investigation as we speak, will the Minister now agree that his Government’s pigheaded refusal to listen to what everyone was telling them at the time has resulted in the new arrangements not only being completely discredited and financially ridiculous, but having had serious consequences for public confidence?
Lord Bates
First, on the facts, it is not true that half of police and crime commissioners are under investigation; 14 of them were referred to the IPCC for not providing the data that they are required to under the legislation that the noble Baroness referred to, and that case was dismissed. With regard to oversight, it is clear that they are looked into by the independent inspections carried out by the Home Office, and ultimately they will be subject to the inspection of the electorate in 2016.
Lord Grocott (Lab)
My Lords, to be perfectly honest, the Minister is in a hopeless position on this issue, as were his predecessors piloting this legislation through with all the warnings that my noble friend has referred to. I ask him, as it is part of the role of Minister in this House, at least to mention to the people back in the Home Office that not a single question today has been supportive of police and crime commissioners. If the concept is as friendless as that in this House, there is a fair chance that it is friendless among large sections of the population.
Lord Bates
The noble Lord might also like to ask his colleagues who are serving excellently, including former Ministers such as Tony Lloyd—who commissioned that excellent report by Ann Coffey on child exploitation, which could not have happened before but is happening now under police and crime commissioners—what they think of the law. They seem to support it.
Modern Slavery Bill
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Baroness Hamwee
My Lords, if I may respond, the point has been brought to us by several lawyers, both members of the Bar and solicitors, who are concerned that the remedies available are not adequate. The noble Baroness and I ought to ask the two noble and learned Lords if they would like to conduct a seminar before Report for those who have been briefing us.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Baroness, Lady Young, for introducing this debate, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for moving and speaking to their amendments, giving us the opportunity to discuss a very serious issue. I think we were all struck by the words of the noble Lord, Lord Stevens, about the delay that people are experiencing at present in getting compensation for the horrendous suffering that they have gone through in this process.
Before turning to the amendments, I want to make two points that deal with matters of principle. The first point, which runs through many of the groups that we have considered already, is that the Government’s view, right or wrong, is that we should make it a priority to secure an increase in the number of convictions of the people who have been guilty of these offences. We believe that it is a two-pronged approach. The first prong is the compensation and protection of the victims, but that is best done in the first instance by ensuring that the organised criminal gangs that are perpetrating this are brought to justice. Therefore, the second prong follows from that: we want to encourage victims, although it may be difficult and painful for them to do so, to go down the criminal justice route and secure those convictions. We have made provision in the Bill for protections and help, particularly for children and vulnerable adults, in making contributions and presenting their evidence before a court so that we can secure those convictions. That would be the first point that I would make.
Secondly—my remarks on this are of necessity briefer than they would otherwise be—I have been assisted immensely by the wise words of my noble and learned friend Lord Mackay of Clashfern and the noble and learned Baroness, Lady Butler-Sloss. They have very effectively made the case that we have arrived at; namely, the belief that civil remedies to the civil wrongs that have been cited in this case already exist. In the particular instance where there is a need for clarification on this, my noble friend Lady Hamwee asked—in fact, I think this is the purpose of Amendment 36—whether it was possible to have a reparation order and a compensation order. The answer is yes because they would be dealing with two distinct elements. Where an offence has been committed under the Modern Slavery Bill under the group of offences highlighted in Sections 1 to 3, there would of course be a reparation order. If, however, the person had been the victim of slavery and had been subjected to rape, for example, there would be additional compensation orders as well as the criminal charges that would be brought. So in that instance there would be a case for having the two together, and I hope that helps to clarify the situation.
Lord Rosser
My Lords, may I ask the Minister for a point of clarification? I stress again that I am not a lawyer, otherwise I probably would not be asking this question. If the Government’s view is that civil remedies already exist, is he saying that they are dependent on having first achieved a criminal conviction, or is he saying that they exist without having to go down the criminal court route? If the latter, presumably his argument that the Government wish to increase the number of convictions—they want to encourage victims to go down that route, thus they are not very keen on the civil remedies—has already been weakened by the fact that, as he is saying, civil remedies already exist.
Lord Bates
The noble Lord was gracious enough to mention that he is not a lawyer, and I join in that fellowship of non-lawyers. I am quickly looking for guidance from my team, but I think guidance is about to come from the noble and learned Lord, Lord Mackay.
Lord Mackay of Clashfern
My Lords, I think the situation is that if there is a criminal conviction for a civil wrong that, of itself, will be sufficient to justify the civil action and to permit the judge in the criminal court to make a compensation order. There are arrangements for the proper linking of the two. You cannot get money twice for the same wrong, so there is a connection between the compensation order you can get in respect of the criminal conviction and what can happen in a civil action related thereto.
The noble Baroness, Lady Hamwee, raised questions about whether the existing civil protections are adequate. I have not seen any particular comment on that. I raise that as a question. I am not saying for sure that all the matters covered would be fully covered by the civil law, but I rather suspect that they may well be. The important thing is that a criminal conviction certainly helps in respect of civil action, but it is not necessary to have a criminal conviction to have a civil action. These two are independent.
Lord Scott of Foscote (CB)
Having regard to the nature of the statutory torts or the ordinary common-law torts that might be established as a basis for a civil action for damages, it might be desirable to provide in the Act that exemplary damages can be awarded. Otherwise, it might be simply compensatory. This seems an ideal case for the award of exemplary damages if the ingredients of the civil action are established.
Lord Bates
If I may, I will come back to the noble and learned Lord’s point and perhaps write to him in clarification, but the compensation orders and the reparation orders relate to criminal convictions. The position would be that they are separate and adequate civil remedies. I realise that does not answer the particular point the noble and learned Lord raised, but I will respond to that during the course of the afternoon.
Baroness Hamwee
My Lords, the Minister says that they are, in effect, compensation for crimes. The particular concern that the noble Baroness and I have is that victims should be compensated—that word seems completely inadequate in the context, but noble Lords will understand it—without there necessarily having been a criminal conviction.
Lord Bates
I will come back to that, if I may. We have before us two proposed new clauses in Amendment 34, which was moved by the noble Baroness, Lady Young, and Amendment 35, which seek to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the Committee 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, which was raised by the noble Earl, Lord Sandwich. 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. 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. An amendment I have tabled would extend that legal aid provision to all modern slavery victims.
Amendment 35, tabled by the noble Lord, Lord Rosser, and the noble Baroness, Lady Royall, further suggests that such compensation should be linked to the national minimum wage that an individual would have to receive in legal employment. I reassure the Committee on that point. Damages in civil claims are intended to make good the loss or damage caused by the wrongful act. The principle will apply to actions relating to slavery and trafficking. The actual amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that would have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. The cavalry coming to the rescue advises me that we have agreed to write to noble Lords on exemplary damages.
We are committed to doing as much as possible to enhance support and protection for victims of modern slavery, including ensuring that they receive compensation for the horrors they have experienced—although I accept, as the noble Baroness, Lady Hamwee, said, that one could never fully compensate someone for what they have suffered with a mere cash payment. However, we consider that existing law provides sufficient access to civil remedies for victims of slavery and trafficking. I hope that with those assurances and the undertakings that I have given today, the noble Baroness will feel able to withdraw her amendment.
Lord Harries of Pentregarth (CB)
I, too, had a question in mind. First, penalties already exist—but then, I am not a lawyer. I was rather interested and surprised that two of the most learned Lords in the country, who are present in the Committee this afternoon, both posed this as a question rather than as an absolute certainty. If there is a certain amount of uncertainty, even in the highest legal quarters in the land, do we not need to do something to make it better known that civil penalties exist, or to make it clear beyond any kind of doubt that we have a specific amendment to the Bill that would make it crystal clear? Clearly, something is amiss at the moment if people simply do not know.
Lord Bates
I acknowledge that. A huge part of what we have covered here concerns the lack of awareness on the part of responsible authorities all the way through as regards securing the prosecutions, and victims, particularly overseas domestic workers, being aware of their rights and responsibilities, as we mentioned earlier. Therefore we totally accept that that needs to happen. The Government’s view has been put forward in consultation with their legal advisers and their own lawyers. However, I have said that I will seek clarification of this point and I will write to noble Lords over the remainder of Committee.
Baroness Royall of Blaisdon (Lab)
My Lords, I hesitate to intervene in this discussion, but the day before yesterday we talked about the strategy, which is undoubtedly a very good thing. That is the user-friendly tool for citizens when it comes to modern slavery, so in due course this should be addressed in such a document, because citizens will use it to see how they are covered by the Modern Slavery Bill.
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.
Lord Bates
My Lords, this has been an extremely interesting and welcome debate, and I pay tribute to the noble Lord, Lord Warner, for introducing it. He slightly got me on the wrong foot, from my limited experience of the Home Office, when he said that control is in its DNA. Many of us were thinking, “Would that it were so”. It is something that of course is very important, when we are talking about the anti-slavery commissioner. Before coming to the specifics of the amendments, I wonder whether I might note some general principles about where we are coming from. All the way through, I have been very grateful that on all sides of the House there seems to be genuine good will about where the legislation is going and a genuine desire to improve it on its passage.
When we began with the process of the Modern Slavery Bill and of putting in the commissioner, it was a very specific role. It was saying that the problem was that there were far too few prosecutions occurring because there was far too little understanding among victims of their rights of redress and far too little understanding among police, prosecuting authorities and those responsible at local authority level for them to come forward and make sure that victims are protected. That was the reason the role was set out as it was. There was a distinct argument that it was, effectively, for someone—I am searching for a more gentle legal term—to put a rocket behind the individuals on the front line to ensure that we do more to tackle this.
Then, of course, we had the appointment of the Independent Anti-slavery Commissioner designate, Kevin Hyland. He comes with impeccable credentials that were widely recognised at Second Reading when his appointment was announced, subject to the passage of the Bill. We recognised that here was somebody with excellent credentials, both from a law enforcement point of view and also from a victim’s point of view. We then added to that an element that was very clear from the pre-legislative scrutiny. The initial argument for the commissioner was that the Home Secretary wanted to have somebody, basically, who woke up every morning and went to bed every night thinking, “What have we actually done to clamp down on modern-day slavery?”
It then went through pre-legislative scrutiny, which identified that there needed to be a degree of independence in the role. There was a debate about that. There was a very strong belief, to which the noble Baroness, Lady Lister, referred, that the commissioner should have a specific role in relation to victims. Again, those messages were taken on board. As my noble friend Lady Hamwee said, there was also a view that there should be a sense of parliamentary involvement and accountability in this. Therefore, through that process, we designated the anti-slavery commissioner to be independent, in the very name. I accept that it is a name and that that needs to be backed up by action.
There was then the annual report that was going to be laid before Parliament, in accordance with previous legislation on how that is done. That then would give rise to debate, discussion and analysis and I am sure that the Independent Anti-slavery Commissioner will be a frequent visitor to the Select Committees and committees of your Lordships’ House and in another place. So this was very much the direction in which we were going. Where there is, perhaps, a little resistance, it is because we do not want to load this individual, capable through he is, with so many different responsibilities or make his entourage so wide that he loses sight of the fact that he has a very specific and serious task, which is to ensure that he brings more perpetrators of these evil crimes to justice in the courts.
In that context, there are other elements set out in the strategy—for example, that the role would involve working closely with others. It refers to a partnership with the Home Secretary. That is a crucial element. The department to which the police and the border agency are accountable needs to work in partnership with others to tackle this issue. The Modern Slavery Strategy, published last week, states at page 29:
“The Commissioner will also work closely with the Inter-Departmental Ministerial Group (IDMG) on Modern Slavery, whose remit is to oversee and coordinate anti-modern slavery efforts across the UK and bring about important and necessary change at the right level”.
That is a key part of the role. However, I accept that there are specific roles.
I very much wanted the noble and learned Lord, Lord Hope, to talk more about his experiences. I imagine that it would be very interesting to learn more about the setting up of the Supreme Court. I am sure that noble Lords would be very interested to hear about that. However, the noble and learned Lord also talked about the evolving role and said that it took two to three years to establish these things and that there was a sense of finding them out. We have always said from the outset that this Bill is a first step down the road towards tackling this crime which has been identified and therefore we want to make it as strong as possible.
Other commissioners were mentioned. The noble Lord made reference to the Victims’ Commissioner who is located in the Ministry of Justice. The Children’s Commissioner, to whom the noble Baroness referred, is located in the Department for Education, Sanctuary Buildings.
Lord Warner
To put the record straight, I did not mention the Victims’ Commissioner, I mentioned two Home Office commissioners, which was the point of my argument.
Lord Bates
Indeed, I am sorry. It was the noble Lord, Lord Rosser. I am tempting fate here because he will deny all knowledge of that. However, I think there was reference to the Victims’ Commissioner. I am sorry if that was not by the noble Lord, Lord Warner. As I say, the Victims’ Commissioner is located in the Ministry of Justice and the Children’s Commissioner is located in Sanctuary Buildings. That was seen as being helpful. I should say that the anti-slavery commissioner designate is located at present in Globe House. He shares that office—the noble Lord, Lord Warner, did refer to this—with the Chief Inspector of Borders and Immigration. That is where he is physically located at present.
I am grateful to noble Lords for tabling Amendments 65, 65A, 67A, 67B, 67C, 67D, 67E and 69A. The amendments relate to the independent anti-slavery commissioner’s power to appoint his or her own staff and their freedom to report on certain matters. I reassure noble Lords that the commissioner will be absolutely independent. We changed the title of the commissioner to include the word “independent” after debate in Committee in another place to reflect the Government’s commitment to respect the independence of the commissioner. The commissioner will have the freedom and independence to look at the prevention, detection, investigation and prosecution of slavery and trafficking offences and the identification of victims without fear or favour, and make reports which will highlight where improvements can be made. We want to ensure that the commissioner has the authority and autonomy he or she needs to carry out their functions effectively, while at the same time ensuring that their remit is clearly focused. The commissioner’s independence will be respected, just as the Government respect the independence of other similar office holders.
Amendments 65 and 65A would allow the commissioner to appoint his or her own staff and, in the case of Amendment 65, to secure their own accommodation, equipment and other facilities. The Government do not believe that the commissioner needs a statutory power to appoint his or her own staff. The commissioner’s role will be supported by a small team of analytical and support staff, so it would simply not be effective or efficient for such a role to be supported by an independent human resources function. However, we do want the commissioner to have full confidence in his team. Following normal government practice for roles of this nature, we would expect that staff would be recruited from the Civil Service, using Home Office human resources. In line with typical practice, we would expect the commissioner to take part in the selection process to ensure that he or she has confidence in their team.
Similarly, it would simply be inefficient to require the commissioner to find and secure their accommodation and facilities, although of course they will be involved in this process, as was the case with the provision of accommodation for the designate commissioner. We want a commissioner who is focused on catching the perpetrators and identifying more victims, not someone who is more concerned with administrative tasks. The purpose of the Secretary of State providing support to the commissioner is so that their time is free to do the job they have been appointed for—tackling modern slavery and improving the UK’s responses.
Baroness Lister of Burtersett
At the risk of overloading the Minister with questions, I asked a very specific question that I do not think he answered: why do the Government not see the office of the anti-slavery commissioner primarily as part of the human rights machinery?
Lord Bates
I will come back to a few of the points raised there. I take the point the noble Baroness made about what was intended in the wording on the budget, but none the less, there is an element, in the way that the amendment is currently worded, that would allow the commissioner a degree of independence in the level of the budget that he sets.
We envisage that the staff will be analytical staff. There will be quite a lot of data collection on the number of prosecutions, the number of people going into and coming out of the national referral mechanism, and on the compensation and reparation orders that will go out. There will be quite a lot of data support. While I appreciate the olive branch from the noble and learned Baroness, Lady Butler-Sloss, suggesting a way forward on this, the independent person in this process ultimately is the commissioner himself. The commissioner will not be, by anybody’s standards, a Home Office place-person. He is somebody with genuine credentials and independence. I think that he will make a significant difference to the role, and I am sure that he will have a very clear view of what his role should be.
On the specific point of appointing staff, I am happy to give an undertaking that I will take this away and reflect a little more on it. In saying that, I would not want the Committee to be of the view that we do not envisage that the commissioner will have to have confidence in his team and that he will be part of the recruitment process. When we limit his pool of staff to people from the Home Office—we are not really limiting it; it is quite a large pool of several thousand—I am sure, from my limited experience, that he will be fishing in, and recruiting from, the finest pool of talent in Whitehall. However, I hear what is being said and we will return to this. I totally accept that appearance is very important in these matters.
The noble Baroness, Lady Lister, asked me a specific point about the human rights machinery. The Independent Anti-slavery Commissioner is not a national human rights institution as defined under the Paris principles but, as was felt by the Joint Committee, the commissioner will play a key part in improving our human rights response to tackle modern slavery.
I hope that with those words the noble Lord will feel able to withdraw his amendment, even if he has to come back and fight another day.
Lord Warner
My sympathies are entirely with the Minister in having to read out some of that stuff. It was almost a revelation and confirmed me in my view that Home Office speechwriters are not blessed with a natural perception of the perception of their words. At the end of the day, the real issue is whether the Home Secretary and the Government are willing to live up to the word that they have put in the title of the anti-slavery commissioner, that word being “independent”. Frankly, first, the Minister was erroneous in some of what he said, and I would just like to correct that. Secondly, he really has not dealt with all the remarks that have been made this afternoon. I will make those two points.
My amendment does not say that the commissioner will in any way fix his budget; it makes it absolutely clear that the Home Secretary fixes the budget. Therefore, there is no question of the commissioner running amok and incurring public expenditure willy-nilly because he or she wishes to do so.
On the recruitment system, I thought that we were almost going to get violins playing when the Minister talked about the qualities of the Home Office. I am sure that there are very talented people there, but that is not the point. The point is whether the independent commissioner can go out into the marketplace and recruit people from a wider circle than civil servants—which is where the pool seems to have been set—and bring into that office people, particularly from the NGOs, with real experience of the world that he will be operating in. The Minister did not give any assurances on that.
Lord Bates
I apologise for interrupting the noble Lord. When I talked about budget setting, I should have made it clear that I was specifically referring to the amendment in the same group in the name of the noble Baroness, Lady Royall, which states that the commissioner is able to determine,
“without limitation … the Commissioner’s resources and funding”.
That is what I was referring to. It was not the noble Lord’s amendment but it was in the same group.
Lord Warner
My Lords, I am nothing like as much of a spendthrift as that. I recognise that the Home Secretary will exercise control over that. However, the main point in everything that has been raised this afternoon concerns the ability to recruit your own staff. If there is no give whatever on that by the Government, the Minister must expect us to come back with an amendment on Report. I suspect that we would all be willing to meet the Minister to help him garner the arguments that might persuade his boss to take a different view. If he would like to have a meeting, I am sure that we would co-operate.
The message has to go back to the Home Secretary and Home Office Ministers that we need to see whether we can change the Bill to give some reality to the independence of the anti-slavery commissioner. With that, I beg leave to withdraw the amendment.
Modern Slavery Bill
Lord Bates Excerpts(9 years, 11 months ago)
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The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Lord, Lord Rosser, for proposing the amendment and to all other noble Lords who have contributed to an interesting opening debate in this first day in Committee. I guess that we will return to many of these themes as we move through this, but this is also an opportunity to put our views on record. Those views are set out in the Modern Slavery Strategy that was published by my right honourable friend the Home Secretary on Saturday, in which she made it clear, in her opening remarks on page 5, that victims would be at the heart of all we do.
In many ways the debate highlights two different views. One says that we help the victims directly by looking after their welfare. We agree with that. The other view was set out eloquently by my noble and learned friend Lord Mackay when he said that you also aid the welfare of the victims by ensuring that there are fewer perpetrators. That point was also made by the noble Baroness, Lady Lawrence. We accept that, and all the way through this we will return, probably amendment by amendment, to this careful balance that exists between these two approaches.
Before turning to the specifics, I would make one point to the noble Lord, Lord Rosser, who probably did not mean it that firmly when he said that we were making up policy on the hoof. Sometimes when the Government listen and respond they are accused of making up legislation on the hoof, but when they do not listen they are accused of being intransigent and not responding. I am proud to be associated with this legislation because not only is it ground-breaking and leading the world in this type of legislation but it is being put through in an appropriate way after consultation with Members. It went through pre-legislative scrutiny, and I pay tribute to the work of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl in making refinements. It is worth putting on the record what has actually changed for victims as a result of that process.
The Bill itself changed quite dramatically before it was published. When it went through the House of Commons, we added specific changes on children and an enabling power for the Secretary of State to set up child trafficking advocates. There is a change in the slavery offence so that the court may have regard to the alleged victim’s personal circumstances, including age. A number of provisions in this amendment relate to Clause 1(4), which says that,
“regard may be had to any of the person’s personal circumstances”.
The right reverend Prelate the Bishop of Derby, who has immense experience and awareness in this area, talked about personal circumstances. Clause 1(4) mentions,
“age, family relationships, and any mental or physical illness”.
However, it is not limited to those, as it also refers to those,
“which may make the person more vulnerable than other persons”.
In other words, there is a catch-all element to Clause 1(4), in that regard may be had to a much wider group of circumstances. That is one change that was brought forward.
This has all been as a result of the parliamentary process. We have also introduced a statutory defence for victims who have been forced into criminality. Reparation orders have been introduced, to ensure that victims are properly compensated, and the Secretary of State is required to issue guidance to front-line professionals on identifying and supporting victims. Changes have been made to broaden the Independent Anti-slavery Commissioner’s remit specifically to include the identification of victims. Changes have been made all the way through, and there will be more changes. I shall not anticipate the details before your Lordships’ House reaches that point, but we have tabled government amendments, which will be debated in the next group, that seek to strengthen that element further.
In addition the strategy, as part of our response for victims, focuses on four elements: pursue, prevent, protect and prepare. The protect element is very important and has victims very much at its heart. We are also currently considering the review of the national referral mechanism for victims of human trafficking, which was published a few weeks ago. We are working our way through it, but one of the things that the review is considering is where victims’ interests lie and how we can strengthen their position.
I am struck by a few statistics that lie at the heart of this matter. The Modern Slavery Strategy sets out that in 2013 there were 226 convictions. However, the scale of the problem is much greater than that. Professor Bernard Silverman, the chief scientific adviser at the Home Office, estimates that the number of victims is more like 10,000 to 13,000. The scale is very wide, yet the number of prosecutions is very low in comparison. Through the anti-slavery commissioner, and all that we do, we are focusing on the victims, including by ensuring that the evil perpetrators of this crime are brought to justice and that the sentences available to the courts are increased from 14 years to life imprisonment. That is all directed towards that end.
The noble Lord, Lord Rosser, will respond to the precise technical questions about his amendment that have been so ably asked by my noble friend Lady Hamwee and the noble Lord, Lord Quirk, and others. Although we remain open, as we always have been, to ways in which we can strengthen protection for victims, I would not want to let this moment pass without pointing out that it would be wrong to think that without this amendment there would not be, running right through the core of the legislation, a belief that victims deserve the absolute protection of the Government.
Lord Rosser
I thank the Minister for his response. Having heard what he said, I am not quite sure what the difference between us is. The thrust of his answer appeared to be that the Government believe that giving support and protection to victims, and taking account of their best interests and their personal circumstances, are already covered in the Bill, in different clauses. Clearly, that view was not shared in the debate at Second Reading, because a number of noble Lords expressed their concern that the Bill appears to be geared too much towards the important issue, which no one denies, of trying to bring more of the perpetrators to justice and does not reflect the issue of providing support and protection for victims.
I repeat the point I made in moving the amendment: if we do not take steps to provide some support and protection for victims and recognise that we have to take account of their best interests and personal circumstances, we will find that they will not come forward to give the evidence that is needed in order to secure successful prosecutions. Once again, a number of noble Lords made that point at Second Reading. I do not see these as two separate issues: one of prosecuting the perpetrators and the other of giving support to victims to make sure that they feel able, willing and encouraged to give the evidence necessary to bring the perpetrators to justice. We have all spoken about the lack of prosecutions and some of the reasons why that has happened.
The purpose of the amendment is an attempt to address some of the concerns that were expressed at Second Reading, and I take very much on board what the noble and right reverend Lord, Lord Harries of Pentregarth, said about it setting the tone. I think that this amendment does seek to set the tone that if we are to have a successful Modern Slavery Bill which delivers on the objective of bringing perpetrators to justice, to which the Minister referred, we need to take a long, hard look at what we are doing for victims to encourage them to come forward and give evidence.
A number of comments have been made about the wording of the amendment. I do not wish to maintain that it is perfect; I am not a lawyer, and I am sure that it could be improved. But what I am not clear about is whether, from the Government’s point of view, the issue is that they do not like the wording of the amendment or that they do not like its basic objective, which is to raise the profile in the Bill of the importance of the approach to the victim. Once again, that is a point which was made by a number of speakers at Second Reading.
Frankly, in that sense I am disappointed with the Minister’s reply. If we could reach agreement that a clause along the lines set out in the amendment is needed and desirable, I for one would certainly not argue that it should be worded exactly as I have it here. I recognise from the comments which have been made that the proposed new clause could be improved or changed. If there was some general accord that we want an amendment along the lines of the objective of raising the profile of the victim for the reasons I have mentioned, then for me the wording is certainly not an important issue.
I accept, for example, the point made by the noble Lord, Lord Quirk. It is a valid one, not least because I cannot explain why the word “and” is used in one case and “or” in another. As I say, I am not concerned about defending to the death the actual wording of the proposed new clause. What I would like to see is some understanding that, with the assistance of the Government and of many noble Lords who have spoken, a clause could be produced that would receive wide support for both its wording and its objectives.
I am going to ask leave to withdraw the amendment, but perhaps I may say in conclusion that I think the Minister rather misunderstood what I was saying when I referred to things being made up on the hoof. I was referring to the comments made by the Victims’ Commissioner for England and Wales during the course of her contribution. She said that it was almost as though the physical, emotional and practical impact on those affected by the terrible crime of modern slavery has been forgotten in the drive to bring the perpetrators to justice.
The Minister’s response was quite rightly to compliment the noble Baroness, Lady Newlove, on the work she does as Victims’ Commissioner, but he then said that the newly appointed commissioner should address it and make recommendations. I may be wrong, but I did not get the impression that the Victims’ Commissioner was aware that she was going to be involved in addressing that and making recommendations. She made no reference to it in her contribution.
It was the part about the Victims’ Commissioner making recommendations which I felt was being made up on the hoof. It was not an adverse comment about the content of the Bill; I know that it certainly was not made up on the hoof. An awful lot of thought and care has been given to it, but there are areas—and I do not think I am the only one of this view—where it could be improved, one of which is the subject of this amendment. I am disappointed that the Minister has not felt able to make any move, not even to hold further discussions to see if a wording could be found that the Government would feel able to accept—but I note his reply and can only beg leave to withdraw the amendment.
Lord Rosser
I am more than happy to consider that. I think I have made clear that I am not going to any barricades over the wording of the amendment. It is more about trying to achieve an objective that, in my view and that of many others, improves the Bill for victims. I take on board the point made by the noble and learned Baroness, Lady Butler-Sloss. Would the Minister be prepared to have discussions which include all those who have spoken in this debate—if they wish to take part—on getting some wording into the Bill that might satisfy the Government as well as the other parties? I realise that the Government have their interests and reasons for taking the stance that they have, but the objective of us all is to improve a Bill which we all support and which we are not voting against.
Lord Bates
All the way through this, we have tried to listen very carefully to suggestions as to how the Bill can be refined in the way that we all want to go. Our starting point was very much one that we all recognised—that implicit in every strand, clause and subsection of the Bill is the victim’s interest—and that is repeated in the strategy. Whether there is a form of words that could be inserted which would answer the questions that are being asked here—simply to have a very clear statement—is something that we could look at. I am very happy to have a meeting between now and Report with the noble Lord, Lord Rosser, and other interested Peers to examine that.
Lord Rosser
I am very grateful to the Minister for what he said, which is most helpful. I really appreciate that and I beg leave to withdraw the amendment.
Baroness Howarth of Breckland (CB)
My Lords, I support the three government amendments and I shall also speak to Amendment 100. This is when, as the Minister said, we start to put victims at the centre of this legislation. The issue of consent is certainly a complex and crucial one, but we have managed to tackle the general concept in this legislation. It takes me back to wanting a general concept at the beginning of the Bill that sets the tone of the Bill. I thank the Government for using the age limit of 18. It would have been easy to take a different age limit, but we have established that 18 is the age at which children stop being children. We know that many of them are still extraordinarily vulnerable, but this legislation does say something about that.
I want to comment on the one-year period in the amendment of the noble Baroness, Lady Hamwee. I think that one year is quite a short time and that a review is essential. I hope that, because the Bill has been taken through its stages so well—unfortunately, I did not have the opportunity to speak at Second Reading, for a number of reasons—it would benefit from post-legislative scrutiny at a proper time, 18 months to two years on. We should set that into the legislation somehow, so that we are absolutely sure that we can look at this in detail. I think that a year is very short for something as complex as this and that a review is necessary.
Lord Bates
I am grateful to noble Lords for tabling amendments relating to the offence of slavery, servitude and forced or compulsory labour in the Bill, and raising the issue of whether a wider offence is needed. I reflected, ahead of Committee, on the definition of this offence and I will move government Amendments 4, 7 and 101 to clarify the offence and ensure it can clearly be used in cases where the victim is a child or vulnerable.
This offence will replace the existing offence of slavery, servitude and forced or compulsory labour set out in Section 71 of the Coroners and Justice Act 2009. This is an important offence which captures grave and often degrading behaviour. Under the Bill, the maximum penalty will be increased to life imprisonment. A person commits this offence if they hold another person in slavery or servitude or require another person to perform forced or compulsory labour. These terms are defined with reference to Article 4 of the European Convention on Human Rights. Through its decisions, the European Court of Human Rights has provided clear guidance on the meaning of these terms.
I am particularly concerned that our offences should be effective in the case of child victims, who are often very vulnerable. That is why, following the pre-legislative scrutiny report, we clarified the Clause 1 offence to make it clear that, when deciding whether an offence has been committed, the court can consider someone’s personal circumstances, including their age. Following Second Reading, I have considered the issue of child victims and very vulnerable adults further and I have tabled amendments that do more to ensure that the offences clearly cover their specific circumstances.
Government Amendment 4, for which I am grateful for your Lordships’ wide support, makes it absolutely clear that, when assessing whether an offence of slavery, servitude and forced or compulsory labour has taken place, the police, prosecutors and the courts can look at the particular vulnerabilities of children. I have also reflected on concerns that the Bill is not yet sufficiently clear on the meaning of “child”. For the avoidance of doubt, I have tabled government Amendment 101 to make clear that “child” refers to a person under 18, a point made by the noble Baroness, Lady Howarth, and very much part of the recommendations made by my noble friend Lord McColl and the noble and learned Baroness, Lady Butler-Sloss.
I also understand the concerns expressed at Second Reading in another place, and during the pre-legislative scrutiny committee’s inquiry, that there may be a perception that to achieve a successful prosecution will require evidence that a person has not consented to being held in slavery or servitude or required to perform forced or compulsory labour. That is a point that my noble friend Lady Hamwee made. In cases of children, there may not be clear evidence of lack of consent because adults often control children in subtle ways, and children may not even realise that they are victims. My noble friend referred to that often very complex relationship between the perpetrators and their victims. I want to ensure that law enforcement, prosecutors and the courts are clear that, in accordance with existing case law, the lack of consent is not an element of the offences in Clause 1 that has to be proved to secure a conviction, and therefore a person’s consent does not prevent a finding that the offence of slavery or servitude or forced or compulsory labour has been committed.
Government Amendment 7 makes sure that, even where a victim consented to the situation they were placed in, the court can find that the situation amounted to slavery, servitude or forced or compulsory labour. This applies explicitly to both children and adults. We want to protect children and very vulnerable adults from modern slavery. This is a point that my noble friend Lord McColl referred to in highlighting some of the circumstances, particularly debt bondage, that people are in.
I understand and share the sentiments behind the alternative Amendment 8, which was spoken to by the noble Baroness, Lady Royall, and would make consent simply irrelevant when determining whether a Clause 1 offence had been committed. However, we have not chosen to take that approach, for two reasons. First, in our view it would be inconsistent with the European Court of Human Rights case law, which is clear that consent can be considered when assessing overall whether forced or compulsory labour has taken place. Secondly, this approach could inadvertently actually make it harder to secure convictions, which none of us wants. In some cases the victim will clearly have refused to consent to their treatment in some way. In those cases their lack of consent will be relevant evidence for the court to consider, and may well help to demonstrate that the offence has been committed. This amendment would prevent a court from considering this evidence—something that none of us wishes.
My noble friend Lady Hamwee asked a very pertinent question, which sent a flood of notes back and forth to and from the Bill team, on whether the strategy document, on which the ink is yet to dry, is open to amendment. You could see officials wincing at the prospect, but this is something that needs to be kept under review. I refer my noble friend to Clause 42, which refers to the role of the anti-slavery commissioner and his requirement to produce strategic plans and annual reports; those reports will come before Parliament and we will have an opportunity to discuss them. I hope that in some way that goes to answering her question. I am grateful to her and my noble friend Lord Dholakia for tabling amendments that have allowed me to test out whether the wording in the offence around considering a victim’s circumstances and vulnerabilities works in the way that the Government have always intended.
I turn to a specific question asked by my noble friend Lady Hamwee. In Clause 1(4) we use the term “may”, and she asked whether it should be “may” or “shall”. “May” was carefully chosen in this context to give the courts the flexibility to exercise their judgment appropriately. There will be many circumstances in any case and some will not be relevant as to whether a Clause 1 offence was committed. The term “may”—rather than, for example, “shall”—was used to avoid a court having to consider every single circumstance in every single case, whether or not they are relevant. That was the purpose behind that.
Amendments 2, 3, 5 and 6 all relate to Clause 1(4), which specifies that, when determining whether a person has been held in slavery, servitude or forced or compulsory labour, regard may be had to any of the person’s personal circumstances which may make them vulnerable. I can reassure noble Lords that the subsection gives a non-exhaustive list of the kinds of personal circumstances that may be considered to make someone more vulnerable than other persons. This list is just to offer examples. The clause specifically states that,
“regard may be had to any of the person’s personal circumstances”—
some being mentioned in parenthesis—whether they are on that list of examples or not.
With this in mind, we do not think that we need to add further examples to that list which could risk creating the impression that it is supposed to be comprehensive. We are also confident that the phrase “such as” is sufficient to make it clear that this is a non-exhaustive list of examples, and have made this point clear in the Explanatory Notes.
The proposed new clause in Amendment 100 suggests that we place in statute a requirement for a review of a number of Acts of Parliament to look specifically at whether existing offences adequately protect victims of exploitation. We will turn to the detail of the Bill’s definition of exploitation in a later group. I welcome the sentiment behind this amendment. I have been looking carefully at the detail of the offences, as has the Minister for Modern Slavery and Organised Crime. We have been asking if there are examples of potential gaps in the law where conduct that amounts to modern slavery might not be appropriately criminalised. I must say that we have not yet identified substantial gaps, but I want to get this Bill right and remain very keen to hear about any problems which have been highlighted. The examples given by my noble friends Lady Hamwee and Lord McColl are very helpful in this regard and we will reflect on them.
I am also committed to keeping the effectiveness of this Bill—including the offences—under review after it becomes an Act. This will happen both through the work of the Independent Anti-slavery Commissioner and through post-legislative scrutiny. For this reason I do not believe that a review of the Acts listed in the amendment is necessary at this stage. However, I place on record in this House the Government’s commitment to providing post-legislative scrutiny on the Bill in the usual way within three to five years of Royal Assent, an issue raised by the noble Lord, Lord Alton, at Second Reading. The Government will consult the Home Affairs Select Committee on the timing of publication of the memorandum. In light of this assurance, I hope that the noble Baroness will feel able to withdraw her amendment and that noble Lords will support the amendments in my name. I beg to move.
Lord Hylton (CB)
The noble Lord has helpfully mentioned the issue of vulnerability. In relation to Clause 1(4), does being tied to one single employer not necessarily involve vulnerability?
Lord Bates
We will come back to this excellent question from the noble Lord, Lord Hylton. I will get some more guidance but I know we will be coming back to discuss this very issue on a later grouping—in fact, on some of the amendments which he has tabled. I will make sure we have a response to that by then.
Lord Bates
Lord Bates
“(5) The consent of a person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour.”
Lord Bates
My Lords, I thank my noble friends Lady Doocey and Lord James of Blackheath, and the noble Lord, Lord Rosser, for moving and speaking to their respective amendments. In this group of amendments, I will spend most of my time addressing the arguments made by my noble friend Lady Doocey, with which we are very familiar. I do not mean that in a sense that is in any way derogatory. I realise how passionately she feels about this, and she has been consistent from the period of pre-legislative scrutiny, when she served as a distinguished member of the committee on the draft Bill, which did so much good work. The noble Baroness consistently argued for this specific offence. I hope she might accept in return that, if there were a convincing case and the Government felt that there was a gap that needed to be filled, and given our track record of making changes in this area, we would move to support this without hesitation. At the moment, we are waiting for the evidence that this is the case.
I want to deal with some of the points that have been made and the case studies that have been given today. The offences provided for in the Bill have been changed three times already, especially those regarding children, who are particularly vulnerable in the circumstances of modern slavery, as was said by the right reverend Prelate the Bishop of Derby. We made changes after the Bill was published, following pre-legislative scrutiny. We made changes in Committee in another place after debate there, and today I moved amendments in the previous group to highlight this.
Our debate on this important issue effectively centres on whether this specific offence is needed, or whether it is already covered. There is then a second set of arguments about whether, given some of the practicalities surrounding securing a conviction in this area, we might end up in the perverse situation—which none of us wants—where it is more difficult to secure a conviction than would be the case using the general provisions in the Modern Slavery Bill or in other legislation.
It is important to remember that we have not just one but a number of relevant pieces of legislation for tackling this sort of child exploitation, as was alluded to by the noble Baroness, Lady Howarth. We have the Sexual Offences Act 2003, relating to sexual exploitation, and we have the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. We have Section 71 of the Coroners and Justice Act 2009, which was referred to by the noble Lord, Lord Rosser. Perhaps I may consider that particular Act, because we looked at it following our discussions in the interregnum between consideration of the Bill on Second Reading and the start of Committee stage. As to whether the slavery offence in Section 71 has been used, the Crown Prosecution Service has given us the example of a woman who was sentenced to seven years’ imprisonment for attempting to sell her baby for £35,000. She was convicted of conspiracy to commit child cruelty and of holding another person in slavery under Section 71 of the Coroners and Justice Act 2009. An agent who acted as a broker was sentenced to nine years’ imprisonment for the same offences, so this legislation is being used.
I return to a point that I make no apologies for repeating time and again: this is not a finished document. To use a phrase that was first used in another context by my noble friend Baroness Hamwee, we are lifting the stone to find the full scale of the horrors that lie beneath. We then need to try to work together to see how we can begin to tackle it. The noble Lord, Lord Patel, made the point that the number of prosecutions is woefully low. We absolutely agree: the number of prosecutions is woefully low compared to the number of victims we know or suspect to be out there.
That is why we are trying to come forward with measures that make this easier for children. We want to give them protection and advocates, and ensure that they have special circumstances. If they come forward in court, there are statutory defences. There are ways in which they can present their evidence in court, either by Skype or behind a screen, and there are ways in which their identity can be protected. We are all looking to find these ways. We are working with the Crown Prosecution Service and the Director of Public Prosecutions and finding out what they need to do the job that we are asking of them: to increase the number of prosecutions so that there are fewer victims of these cases.
I turn to a few of the examples that were raised. I want to underscore the simple argument that I made at the outset. My noble friend Lady Doocey asked about children who are exploited or forced to beg, and this point was also raised by the noble Baroness, Lady Kennedy. The amount of money that can be secured through this is extraordinary. One can see why that crime, heinous though it is, is being committed in such an evil way by organised criminals. If a child is used for begging, this could constitute child cruelty contrary to Section 1 of the Children and Young Persons Act 1933. This offence is committed when a person with responsibility for a child aged under 16 wilfully ill treats or neglects them, and it is punishable by up to 10 years’ imprisonment.
Another example that was given was the exploitation offence of a child being used for benefit fraud. If a child was trafficked for benefit fraud, that benefit fraud would be a relevant exploitation and this would constitute an offence under the Bill. It could form part of a slavery and servitude provision, to which we have already referred. If trafficking was not involved, someone who used a child to obtain benefits would be found guilty of an offence under the Fraud Act 2006 and would be liable to a maximum penalty of 10 years’ imprisonment.
Herein lies another point of which we are conscious, as the Director of Public Prosecutions and the Crown Prosecution Service certainly are too. This is that because we are now increasing the maximum sentence from 14 years to life imprisonment, there is clearly a variation between the types of appalling treatment of children we are seeing. We need to consider whether trying to prosecute somebody who has exploited a child for benefit fraud under that type of clause would lead to the conviction that we all want. I am not arguing that this is happening, but the Crown Prosecution Service tells us that it could potentially happen. My noble friend Lady Doocey mentioned children being brought into the UK from so-called baby farms, which is another heinous activity. However, this practice would involve illegal adoption, which is prohibited under the Adoption and Children Act 2002.
We have said all the way through this that there are many offences, and many avenues that are available for prosecutors to pursue. However, we all acknowledge that, at present, prosecutions are not happening to the level that we want to see. To return to the point made by several noble Lords, that is why we need to increase awareness of the problems that are happening. We are seeing that happen through television advertisements and, not least, through the publicity that has been given to the proceedings in your Lordships’ House. It is also happening through the excellent work of NGOs and charity groups outside your Lordships’ House. These groups are drawing attention to the fact that this crime actually happens here, which was the title of the Centre for Social Justice report that started people thinking about this term of “modern slavery”.
The argument is not that the law is deficient in remedies or provisions that can lead to prosecution but that we need to encourage the police and responsible authorities to bring such prosecutions. Page 13 of the report on the national referral mechanism highlighted where the referrals came from. I was shocked to see that the proportion of cases coming from local authorities, which are often the first to come into contact or suspect that there might be an issue, was very low—at 9%. Non-governmental organisations, the work of many of which has been referred to, were responsible for referring 21% of cases, with the police referring 25% of cases. An Independent Anti-Slavery Commissioner who would carry weight and gravitas and understand the issue, and who could make sure that all authorities were fully aware of their responsibility and of the warning signs to look for in child exploitation, would seem to me the right track to head down.
I am not saying that we are at this point ruling out a new offence in perpetuity or even in the very short term. We have said that we will go back to the Crown Prosecution Service, the DPP and the National Crime Agency, which is taking an increasing lead in this area, and say, “Listen, what is your experience? Does this need to be tightened? Does it need to be strengthened? Can you bring forward the prosecutions?”. We will try to get that review undertaken before Report, so that, should my noble friend wish to come to your Lordships’ House at that point, we might have more information available.
The new clause proposed by my noble friend Lord James in his Amendment 29 seeks to address behaviour related to the movement of children where there is no parental or guardian consent for doing so. I recognise that there are a number of scenarios where a child could be removed and placed in residence away from their parent or guardian without their consent, and not always with the apparently beneficial effect that my noble friend referred to in his father’s case. The Bill focuses on the high-harm crime of human trafficking, where a person is moved with a view to exploiting them. In cases where a child has been moved without the consent of parents or guardian, but where there was no intent to exploit the child, the individual who has moved the child may be charged with illegal adoption, immigration offences or kidnapping, depending on the facts of the case.
We want to keep these matters very much under review. We have questions based on the availability of evidence and still have some time between now and Report to review that. We will continue to be open to that and will look forward to looking at it again at that point. In the mean time, I ask my noble friend to consider withdrawing her amendment at this stage.
Baroness Kennedy of Cradley
My Lords, before the Minister sits down, perhaps I may seek clarification on one point. One of the reasons for introducing the Modern Slavery Bill was a desire to have in one place all the offences that relate to slavery and servitude. In his response to the gaps identified by the noble Baroness, Lady Doocey, he referred to other Acts—which are therefore not in the same place. If the objective of the Bill was to get clarity and to put all the legislation in one place, is that not a strong argument for the review and for separate offences? From the Minister’s answer, it sounded like the gaps identified are not covered by the Bill.
Lord Bates
It is an argument not so much for the amendment as for the Bill. The argument for the Bill bringing together in one place all the offences relating to modern slavery, trafficking and exploitation is something with which we all agree. We are discussing whether there should be a specific child exploitation offence, which, as the noble and learned Baroness, Lady Butler-Sloss, highlighted, raises particular issues in relation to the Bill, but the whole purpose of the Bill is very much what my noble friend seeks, which is to bring the offences into one place, to provide one strategy and then to make sure that those who are responsible get out there and go after the people who commit these appalling crimes.
Lord James of Blackheath
I am prepared not to press my amendment provided that the Minister can confirm to me that he is satisfied—he may do it outside this meeting if he will—that the moral hazard of allowing any form of institution to sweep away the flotsam and jetsam by sending them abroad is outlawed by this Bill.
Lord Bates
Yes, I would be happy to do that. Perhaps the best way of doing so would be in writing to my noble friend. My noble friend has done a service to the Committee by reminding us of this country’s dark history regarding certain aspects of child exploitation, and it behoves us to have an element of humility when we look at other countries in that regard. I am happy to undertake to write to my noble friend.
Modern Slavery Bill
Lord Bates Excerpts(9 years, 11 months ago)
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Lord Bates
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
The noble Baroness, Lady Goudie, has caught us slightly on the hop with her amendments, so we have got to government Amendment 13. This is one of a number of amendments I have tabled to ensure that we are clear and consistent in showing that the offences in the Bill are effective for children. The amendment makes clear that the consent of a victim to their travel is irrelevant, regardless of whether they are an adult or a child. This reflects the fact that many adult victims of trafficking believe, for example, that they are travelling into the UK to do a job or for a better life, and so they consent to that travel without knowing the severe abuse which may lie ahead of them. This provision has been in the Bill throughout, but we thought it helpful to spell out that it applies to all people, including children.
I now turn to a number of amendments further on which relate to trafficking. The approach we have taken in the Bill in defining trafficking reflects the same broad approach that has been taken in our legislation since trafficking was first created as an offence here in 2002, an approach that is tried and tested and well understood by law enforcement. I acknowledge the real concerns that defining the offence differently in the Bill would add unnecessary confusion for law enforcement and prosecutors, who understand and use the trafficking offence, when we want them to focus on gaining more convictions in practice. When giving evidence to the Public Bill Committee in another place, the Director of Public Prosecutions highlighted that the offences in the Bill are clearer than the alternatives which the pre-legislative scrutiny committee suggested.
Both alternative approaches to defining trafficking also, probably inadvertently, could make prosecution harder than under the offence as set out in the Bill, because they seek to tie the conduct element of the offence to the specific means set out in the EU directive. There is no requirement for any particular means to be involved in the conduct element of the offence in the Bill or in existing law, so replacing this approach with an exhaustive list which indicates the means through which someone may be trafficked would have a narrower effect than the current provision. I doubt that anyone would want to see that happen. That relates to Amendment 13, which stands in my name. I am happy to respond to other amendments as they are spoken to by other noble Lords. I beg to move.
Lord Bates
My Lords, I thank the noble Baroness, Lady Royall, for speaking to the amendment and, as is so often the case, expressing sentiments and views which are shared on all sides of the Committee. It is perhaps not unusual that we are rehearsing some of the general principles discussed on previous groups of amendments. It is interesting to note that paragraph 2.3 at page 15 of the Modern Slavery Strategy document underscores the point made by the noble and learned Baroness, Lady Butler-Sloss. It states:
“However, we also know that a high number of victims are UK nationals, including children. Not all victims of modern slavery are trafficked across the border. We know that the internal trafficking of victims to other parts of the country takes place, and other forms of modern slavery take place that involve no movement of the victim at all”.
My noble friend Lord Deben made a very interesting point. We want to see the Palermo Protocol used as a basis for harmonisation. The Palermo Protocol sets out an international definition of trafficking in persons as,
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
That definition is relevant to the point made by my noble friend Lady Hamwee. She asked about a particular set of circumstances. I will look at that case study. Case studies are extremely helpful in this world, because they provide us with an opportunity to explore the options. All case studies will be matters for the police, the Crown Prosecution Service and ultimately the courts to adjudicate on. I would certainly have thought that the individual to whom she referred would, at a minimum, be caught by Clause 4, “Committing offence with intent to commit offence under section 2”. It states:
“A person commits an offence under this section if the person commits any offence with the intention of committing an offence under section 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section)”.
I will be happy to come back to this and look further at it, but that is my initial thought in relation to that question.
I turn to the specifics of the amendment and some of the questions which were raised. The alternative trafficking offence set out in Amendment 23 also removes the reference to travel. I fully appreciate the intention behind the amendments. However, I am confident that the language used in Clause 2 is already entirely consistent with the EU directive—the point made by my noble friend Lord Deben. The offence of arranging or facilitating the travel of another person with a view to exploitation includes all the ways through which human trafficking may be committed, as set out in the Palermo Protocol and EU directive, to which I have already referred. Those international instruments are explicitly concerned with human trafficking. The serious evil they rightly identify is trafficking and clearly trafficking involves some element of movement or travel of the victim.
The noble and learned Baroness, Lady Butler-Sloss, referred to Clause 2. I must pay tribute to her incredible sharpness of mind, despite her having flown in from sub-Saharan Africa and arrived at something like 5.30 this morning. I just got the train down from Newcastle and I have to say that I am feeling a little bit groggy. I think that probably reflects the difference in mental capacity between the two of us, but we will carry on. In Clause 2, we have already responded to concerns during pre-legislative scrutiny and made clear on the face of the Bill that a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words which are used in the protocol.
The noble Baroness, Lady Royall, asked specifically whether we needed a general exploitation offence, because forced begging is not covered in the offences of the Bill. Forced begging is an offence under Clause 1 as it amounts to forced or compulsory labour and therefore our view is that it would be caught by that.
My noble friend Lady Hamwee asked whether the trafficking offence covers incitement of the victim to travel to a particular location, which was the example that was given. The trafficking offence can cover inciting a victim to travel somewhere with a view to exploiting them—for example, the perpetrator telling a victim to meet them at a particular time and in a particular place with a view to exploiting the victim. There is no requirement that the perpetrator physically moves the victim. Any kind of arranging or facilitating their travel is enough.
In the case of grooming a victim for use in prostitution or for rape, as in my noble friend’s example, then telling the victim to meet them at a hotel—to hang out, as she asked—would certainly be covered by the trafficking offence. Inciting a victim for prostitution is a form of exploitation under Clause 3 and such conduct is an offence under Part 1 of the Sexual Offences Act 2003. As I referred to from the strategy document, any arranging or facilitating a victim’s travel, including travel within the UK, for that purpose will amount to an offence under Clause 2.
My noble friend also asked whether the trafficking offence covers all the acts proscribed in Article 2.1 of the EU trafficking directive. The UK is fully compliant with all our international obligations in relation to human trafficking, including in relation to the EU directive. It is not inconsistent with the international instruments to retain the concept of travel in the offence. Our offences, ever since they were created, have had that element. The international instruments are explicitly concerned with human trafficking. The evil that we are trying to tackle is trafficking and clearly trafficking involves some element of movement and travel of the victim. Following pre-legislative scrutiny, we took the opportunity to make clear in Clause 2(3) that a person may,
“arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”.
The words reflect those used in Article 2.1 of the EU directive. Therefore, we do not think that there is a need for a specific reference to Article 2, as suggested by the noble Baroness.
Baroness Hamwee
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Baroness Hamwee
The Minister used the term “incitement”. That is why I picked it up.
Lord Bates
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.
Modern Slavery Bill
Lord Bates Excerpts(9 years, 11 months ago)
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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.
Lord Rosser
My Lords, I will be brief in view of the time. It is vital that those who profit from modern slavery crime should know that their ill gotten gains can and will be confiscated, by extending Schedule 2 of the Proceeds of Crime Act 2002 to these serious offences. However, my noble friend Lord Warner has made the case for his amendment, with which I am associated, and for the consultation on a number of questions for which it provides, in the light of the weaknesses in the present arrangements. I will not go into those weaknesses; they were highlighted by my noble friend Lady Smith of Basildon during the debates on the Serious Crime Bill.
Victims of modern slavery should be compensated, but, as my noble friend Lord Warner said, money cannot go to victims if we are not recovering it from the perpetrators of the crimes. We need to strengthen and improve the present legal framework on the recovery of assets and the use of property derived from the proceeds of these crimes. This amendment, with which I am associated, provides for a consultation by the Secretary of State to do just this. I hope that the Government will feel able to give a favourable response.
Lord Bates
My Lords, I am grateful for the amendment moved by the noble Lord, Lord Alton, and grouped with the amendment spoken to by the noble Lord, Lord Warner. In many ways it might be easier if I sum up by taking the amendment of the noble Lord, Lord Warner, first, because it feeds into the principle of—if you like—the hopper, which then comes down to the general fund, which is the subject of the amendment of the noble Lord, Lord Alton.
I shall touch on a few things on the way through. The scale of the proceeds gained through this is widely acknowledged: the noble and learned Baroness, Lady Butler-Sloss, mentioned a figure she found on page 38 of the strategy document that we put out. We used a figure from the ILO, which estimates the global proceeds from this activity at about $150 billion. That equates to something like $34,800 per victim. So the amounts concerned—as we have heard all the way through—are very sizeable, and that is the underlying reason why organised criminals are moving increasingly towards the trafficking of human beings, rather than the drugs, guns and other weapons that we have seen in the past. It is because it is lucrative.
That is why we are absolutely determined that their financial resources—there is a financial motivation—ought to be the target of our activities. As my noble friend Lady Hamwee mentioned, this debate reflects a significant debate that we had on the Serious Crime Bill, where we talked about the process for doing this and inserted a legal test for obtaining such an order to be reasonable cause to believe that the alleged offender has benefited from his criminal conduct. The noble Lord, Lord Warner, was good enough to recognise that that was a step forward. There was a general feeling that if one applied for the restraint order or the freeze early in the proceedings, that could in some cases alert the perpetrators to the fact that there was an imminent investigation, and perhaps arrests, and that some of the jointly held assets might cause that to happen. That is not to say that this is our final position but it is something that we looked at very carefully before coming up with the current proposal.
The recovery regime, which has been strengthened in the Serious Crime Bill—your Lordships’ amendments to which are currently under consideration in another place—is aimed very much at increasing the resources recovered from organised crime. The noble Lord, Lord Alton, asked about the amount of funds that had been recovered. I think that in the order of £746 million worth of criminal assets have been seized across all four means of recovery, which is a record amount. We expect that to increase.
Noble Lords may also be interested to note that paragraph 4.32 of the strategy document states:
“Over £2 million has been recovered from slave drivers and traffickers in the past four years”.
Compared with the amount which has been earned, that is a pitiful and woefully low sum, and is why this legislation is before us to strengthen the law and to ensure that more assets are recovered. How is that to be done? I am not sure whether the noble Lord, Lord Warner, was at the Home Office when the Proceeds of Crime Act 2002 was going through.
Lord Bates
The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.
The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.
I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.
I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.
Baroness Butler-Sloss
Before the noble Lord sits down, I do not want to waste time, and I understand the point that the Minister is making about not alerting a potential trafficker so that he might skip the country, but what you can do, for instance, is get a without notice order in the civil court to freeze the assets and then arrest immediately afterwards. You do not have to alert the trafficker in order to freeze the assets. However, I am not sure that the powers for freezing assets would include people who are traffickers. That is the point that I want to put to the Minister.
Lord Alton of Liverpool
Before the Minister sits down, is he going to reply to my noble and learned friend first, or may I also put a point to him?
Lord Bates
I think that I am probably going to have to reflect on that point and come back to the noble and learned Baroness in writing, certainly before Report.
Lord Alton of Liverpool
I am grateful to the Minister. As a young Member of another place, I was once given the quite good advice always to beware Ministers when they are promising reviews, but in this case the Minister has said that the review is already under way. I am very grateful to him for saying that. He says that it is going to report in December. Will that be in time for us to be able to come back on Report acting on the outcome of the review? What is his estimate of the timetable?
Lord Bates
In the matter of the timetable and in many other matters I am grateful to have the Chief Whip, my noble friend Lord Taylor, on the Bench beside me. He has signalled his assent to the suggestion that this may be something where the report will be published, in all likelihood, before Report. Therefore, there will be an opportunity to revisit it then.
I should also say, as I have found the note, that the current distribution of the scheme provides that 50% of the proceeds go to the Home Office; 18.75% to investigation agencies; 18.75% to prosecution agencies; and 12.5% to HM Courts and Tribunal Service, which enforces the orders. That is the current distribution. I hope that is helpful.
Lord Alton of Liverpool
The noble Lord has been incredibly helpful to the Committee. It is very late and I do not intend to detain the Committee for long now. I simply want to thank my noble and learned friend, and thank the noble Lord, Lord Warner, for putting his argument so effectively. He is right that we have to generate the funds in the first place to provide the pots in order to do the things that the noble Baroness, Lady Hamwee, and my noble friend Lord Hylton all recognise need to be done. Indeed, the Minister himself has recognised that the principle behind this is not a bad one and is worth looking at further. He has engaged with the arguments in his usual courteous and characteristically helpful way. I am extremely grateful to him at this stage. We will see what the review holds and will keep open the possibility of coming back on Report if his noble friend is able to timetable events to ensure that the chronology works out that way. Having said that, I beg leave to withdraw the amendment standing in my name.