Modern Slavery Bill

Lord Browne of Belmont Excerpts

Monday 8th December 2014 Lords Chamber

My last point is a serious one. If one has ever had anything to do with this in a practical way, one will have discovered that many of those involved are very nasty people indeed. Moreover, they are linked together in the most remarkable of ways all around the world. Therefore, one has to be sure that we give the strength, power and courage to the commissioner that is commensurate with the kind of people with whom he may have to deal. The reason for saying that is really to explain why my third point is so important. Unless the commissioner can point to the Act and say, “I do this because …”, there will be those who will use every possible opportunity to try to trip him up and make the kind of legal arguments that hide the fact that what they are really about is stopping him being effective. That is why it is so important that we should be absolutely sure that we get it right. This is in no sense a criticism of the Government. This is a remarkable démarche, a very important Bill. It again emphasises the quality of compassion and concern that this Government—and this Home Secretary—have shown. Let us just make sure that we do not miss the things that will make it perfect.

[Lord Browne of Belmont (DUP)]

My Lords, I have just a few remarks to make on Amendment 67AA, tabled by the noble Lord, Lord Rosser, and the noble Baroness, Lady Royall. These amendments all seek to remove the restrictions placed on the commissioner in respect of the ad hoc reports that he may write. As has been said before in this House, the independence of the commissioner is key to his effectiveness and his credibility among civil society and with colleagues in similar roles in other countries. The ability to report on any pertinent matter as the commissioner sees fit is a vital part of building that independence.

I wish to highlight one aspect of the restrictions that particularly concerns me. Changes were made to the definition of a “permitted matter” on which the commissioner could make ad hoc reports in order to allow the commissioner’s work to be extended to Northern Ireland and to Scotland, with devolved Ministers having a significant role in relation to the commissioner’s work alongside the Home Secretary. I welcome the inclusion of these references to the devolved Ministers as I believe it will make a contribution towards the separation of the commissioner from government priorities. However, in making this change, the ability of the commissioner to make reports on his own initiative has been further restricted, and that concerns me greatly.

In the Bill that was introduced to Parliament in June, a “permitted matter” under this clause was defined as a matter on which the Secretary of State had authorised the commissioner to report, or which was contained in the commissioner’s current strategic plan and therefore previously approved by the Secretary of State under the mechanism for approving those plans; whereas we now see that Clause 41(4)(a) states that a,

“‘permitted matter’ means a matter which—

(a) the Secretary of State”,

or the devolved Ministers,

“have asked the Commissioner to report on”,

or a matter in the pre-approved strategic plan.

In adding these references to the devolved Ministers, “authorised” has become “asked”. No longer can the commissioner initiate an idea for a report outside of the strategic plan and seek the authorisation of the relevant Minister to make the report—and one might consider even that to be rather restrictive. Under the present clause, the commissioner can report matters that are not included in his plan only if the Home Secretary or the devolved Ministers ask him to make such a report. In my opinion, it would have been possible to amend the text of the Bill to include references to the devolved Ministers without further narrowing the commissioner’s capacity to initiate reports. I believe that this additional restriction is most unfortunate and I would urge the Minister to look again at this part of the clause.

[Baroness Hodgson of Abinger (Con)]

My Lords, we all recognise that the work and functions of the commissioner are of paramount importance to make the role effective. Because victims are often trafficked from other countries, I support the view that surely it is important that the commissioner is able to work and co-operate with people and bodies abroad, as suggested by the noble Baroness, Lady Cox, in her Amendment 67.

Amendment 68, tabled by the noble Lord, Lord Warner, talks about,

“engaging with international commissioners or equivalent persons”.

The sharing of best practice and the findings of similar bodies in other countries would be of mutual benefit in trying to stop this heinous practice. At Second Reading I spoke about the role of the commissioner in providing a central resource to gather data and information, to monitor trends, and the impact of policies and legislation. Working with people in other countries would greatly facilitate that work. Amendments 72 and 73, tabled by the noble Baroness, Lady Cox, would include the involvement of our embassies and high commissions. That would have the effect of ensuring that they are aware of what is going on in the countries they serve in and guarantee that modern slavery is on their radar.

Widening the remit of the annual report in Amendment 74 would mean that what is happening in the UK is set in a global context. That is because bringing trafficking and slavery to an end cannot be done by one country alone. We are thus going to have to work closely with other countries and we need to monitor and understand what is happening across the world so that abolition can really be tackled. I look forward to hearing from my noble friend the Minister about this.

One of the criticisms made of the Bill at Second Reading was that it is focused too much on targeting traffickers and not enough on helping victims. It is terribly important that victims who have suffered so much are supported in the best way possible, as has already been mentioned by the noble Lord, Lord Patel, and others. Victims of trafficking are surely special cases. By the fact that they are trafficked, these victims often have no home in this country and are in a foreign land, and perhaps they do not even speak the language. They probably have no money and only the clothes they stand up in. They need special support and assistance if we are to ensure that, having been freed, they have choices about how to move forward in their lives. If the anti-slavery commissioner is not focused on the support of victims, I believe that a strong and special mechanism must be put in place for that. I hope that my noble friend will give further consideration to this aspect so that we can ensure that those who have fallen victim to being enslaved have the best chance of putting their lives together again in the future.

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[Baroness Hodgson of Abinger]

My Lords, trying to give protection to trafficked children is such an important part of this Bill. I add my congratulations to my noble friend Lord McColl on his excellent Amendment 86H, which would do much to help trafficked children. There are many excellent additions, and I shall touch on some that I consider particularly important.

I agree with the noble Baroness, Lady Kennedy, that it is very important that the advocate is appointed as soon as possible; the sooner that they can start getting to know the child and gaining their trust, the more effective they will be. I support the advocate having powers to appoint and instruct legal representation, as that will ensure that the child’s outcome is best protected.

With reference to establishing contact with the child’s family where the child so wishes and it is in the child’s best interests, I wonder who in this instance judges what is in the child’s best interest. I suspect that most children who are trafficked are probably old enough to have a view on what they want, and it is incredibly important that they are listened to and weight given to those views.

With reference to the appointment of the advocate coming to an end when a child reaches 21, although that is technically adulthood it is still a very young age to be left on your own, perhaps in a strange country and away from any family, not being proficient in English and having gone through all the desperate trauma of being trafficked. Perhaps in this regard the wishes of the child could be considered as to whether they would like some further support from the advocate or to be given a mentor until the time when they feel they can cope on their own.

With regard to a durable situation being found for the child, children need to be returned to their homes wherever possible. I was very moved by the statistic that 60% of the trafficked children put into care abscond and often fall back into the hands of their traffickers. This means that often they are very unhappy being put into care. As we know that generally the outcomes for children in care are very low, returning children to their families wherever possible is surely the right thing to do.

[Lord Browne of Belmont]

My Lords, I am pleased to speak in support of Amendment 86H in the name of the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I am sure that other Members of this House will want to thank the noble Lord and the noble and learned Baroness for their persistence and perseverance in repeatedly bringing the need for a child advocate for trafficked children before this House.

As we look today at Clause 47 of this Bill, which in some ways makes provision for child trafficking advocates, I am sure we can agree that we have come a long way on this subject from 2011. I am aware that the Government seek to justify the rather weak nature of the clause on the basis that they want to wait for the conclusion of the advocate trials before providing more detail. In some ways I think this argument stands up to scrutiny but in others I have to say that I find it wanting. No doubt important things will be learnt from the trials that will inform practical questions regarding matters such as implementation, but I do not accept that that should be used as a reason for not providing a clear and up-front statutory definition of the role of the advocate. It seems odd that we should sign up to the name “child trafficking advocate” in the Bill without signing up to a proper definition of the role.

There are at least two major problems. First, in terms of the basic definition of a child trafficking advocate, the definition is set out in numerous international best practice documents and confirmed by our own experience. The Still at Risk report, for example, recommends that an independent trusted adult should be appointed as soon a trafficked child comes to that authority’s attention. Amendment 86H makes it clear that this should happen. The Still at Risk report also says that that person,

“would ensure that all potential victims of trafficking are able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes they are engaged in”.

I am very supportive of the principle of setting out the functions of the advocate in the Bill, as exemplified in Amendment 86H.

It is significant that this same definition and approach are also reflected in all the relevant international best practice documents developed by the EU, UNICEF and the UN. For example, the UNICEF guidance states:

“The role of a guardian is to be an advocate for the child in a wide range of discussions and decisions about what should happen to the child, in particular to ensure that the decision-making process primarily considers the best interests of the child. The role is also to be a link between the child and the various agencies the child comes into contact with, to ensure the child is kept informed of any relevant developments with respect to him or her, and to accompany the child in a physical way, in particular when she or he is moved between various places”.

It is also essential that the role of the advocate should be recognised by other public authorities, otherwise, as the noble Lord, Lord Henley, said just over three years ago,

“it risks creating confusion for children if plans for their care are not effectively co-ordinated”.—[Official Report, 25/11/11; col. 1282.]

The second reason for my belief that this is not a strong enough clause as it stands is observing the debate on guardians that has occurred over the past few months in Northern Ireland, which the noble Lord, Lord McColl, has referred to. Noble Lords may be aware that the noble Lord, Lord Morrow, has introduced a Bill on human trafficking to the Northern Ireland Assembly. He is sadly not able to give his own wisdom to the House today, as he is in Northern Ireland speaking on other matters on human trafficking before the Assembly. The key point is that, in another part of the United Kingdom, a clearly independent adult will be appointed to a child who has been or who is about to be referred to the NRM or to a separated child. That adult, an independent guardian, will be trained, qualified and supported in that role and the functions are set out in statute in Clause 21 of the Northern Ireland Bill, which will very soon now become law. That person needs to ascertain and communicate the views of the child, represent them, and liaise with other organisations involved in their care and making decisions in relation to the child—for instance, a court or tribunal. They will assist the child to obtain legal advice, keep the child informed about relevant proceedings, contribute to a plan for the long-term welfare based on an individual assessment of the child’s best interests, accompany them as necessary, and work to establish contact with the child’s family where it is in their best interests.

Interestingly, the Department of Health, Social Services and Public Safety may add to their functions as necessary by order so that if new functions arise they can be added. I suggest that this freedom to adjust provides a crucial model for the United Kingdom Government given that, on the one hand, it is simply not credible to include a child trafficking advocate provision in the Bill without a proper definition—especially when, thanks to domestic and international best practice, the definition is clear—yet, on the other hand, adjustment may be desirable in the light of the experience of the trials. It provides a mechanism whereby we could give child trafficking advocates a proper definition but not remove scope for that definition to be amended, although I stress that I think the real usefulness of the trials will pertain to practical matters of implementation rather than that of definitions. If I were to add anything to Amendment 86H, it would be the power to make such additions to the list of the advocates’ functions.

The other thing I should note about the Northern Ireland definition, like that of proposed new subsection (8) in Amendment 86H, is that it makes plain that other persons or bodies providing services or taking decisions about the child have to recognise the role of the guardian and provide the guardian with relevant information so as to allow the guardian to carry out their role effectively. In contrast, Clause 47(4) only enables the Home Secretary to issue regulations to this effect if she so wishes. It seems to me that the provision of child trafficking guardians in Northern Ireland goes much further than the current proposals in Clause 47. The reason we are rightly concerned to help victims of trafficking is because they are, without doubt, among the most vulnerable people in our society and that vulnerability is greatest when dealing with children.

Given their greater vulnerability, it seems very odd that the Government should have included such a weak clause in the Bill. While I am happy to celebrate that Northern Ireland will provide the best protection for child victims in the whole of the United Kingdom, it pains me to consider the many trafficked children in England and Wales who will not benefit from this greater protection. I am not satisfied with this, and I very much hope the Government will not settle for such an inequality. The good news is that Amendment 86H closes the gap. I very much hope that the Minister will accept it.

[Baroness Hamwee]

My Lords, the determination of those who have pursued this cause is admirable. The noble Lord and the noble and learned Baroness are a formidable pair. I simply want to comment on one point in Amendment 86H, about legal representation. From my—now not very current—experience as a solicitor, I well know the importance of being able to take clear or reasonably clear instructions, and to be able to rely on those instructions. I take the point about the voice of the child but I do not think that that is inconsistent with the role of representatives.

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I do not wish to put words in the Minister’s mouth but, as he was so generous on a whole series of earlier amendments in saying that the Government would go away and think further about them, I wonder whether there might be a way of incorporating some of the very admirable principles contained in Amendment 86M, including safe accommodation, medical treatment, counselling, information, access to education and to translation and interpretation services. That last is a sine qua non—surely it is a given that that would have to be provided. These are all admirable things, and we should find a way of saying that, in the normal course of things, that is what we would expect to be provided.

[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.