Modern Slavery Bill

Debate between Lord Browne of Belmont and Lord Bates

Monday 8th December 2014 Lords Chamber

[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.