Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Debate between Lord McColl of Dulwich and Baroness Hamwee

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 9th September 2020 Lords Chamber

[Baroness Hamwee (LD) [V]]

My Lords, I shall speak also to Amendments 15, 16 and 17. These amendments take us back to the very wide provisions in Clause 4, on which we spent a good deal of time on Monday, when we debated the problems of a skeleton Bill and the reports of your Lordships’ Delegated Powers and Regulatory Reform Committee and Constitution Committee. From those respective committees, the noble Lords, Lord Blencathra and Lord Pannick, applied their different but devastating critiques. My noble friend Lord Beith asked the pertinent question about what instructions had been given to the drafters of these provisions. After all, responsibility to give instructions lies with Ministers.

Had the Minister accepted the earlier amendments to Clause 4, particularly those changing “appropriate” to “necessary” and deleting the phrase “in connection with”, some of the ground would have been taken from under my feet. However, she did not and it was not; nor was the insertion of the term “only” in subsection (3)—that is, “may only make provision”—accepted.

Subsection (3) purports to explain subsection (1). The power to make regulations includes powers as listed in paragraphs (a) and (b). It does not limit those powers but just gives examples, and all my amendments seek to omit words from this clause. The first concerns the term “supplementary”. Why is it necessary to make “supplementary” provision as well as provision that is “incidental” and “in consequence of”?

The second amendment would omit the term “transitory”. I would be interested to know what is meant by the term in this context. It must mean something different from “transitional” because it sits alongside that term. It is a narrative word that I would have expected to read in a piece of fiction rather than in legislation.

Amendment 16 would take out paragraph (b), which gives the power

“to make different provision for different purposes.”

I am very familiar with this phrase; it may mean bringing provisions in at different times or for different jurisdictions and so on. However, my antennae were well up by the time I got to Clause 4(3)(b), and I would be grateful if the Minister would share with the House the different purposes that may be required, particularly in a Bill so urgent that it needs to come into effect very quickly. I can see that it may be important to bring some provisions in as soon as the Bill becomes an Act and others—particularly with regard to the settled status scheme—at a later date. However, it would be helpful to have her comments on this.

Amendment 17 would leave out subsection (4) as a whole. The amendments to this subsection had already been dismissed and one begins to wonder whether it is necessary at all, but opposing this provision will be a good summary of our concern about what are, to our eyes, its many flaws. I beg to move.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I speak to Amendment 15. Clause 4 gives the Government substantial powers to make decisions about the future regulation of immigration without clarity about what these might be and what justifies such a wide power. Of course, we recognise that there needs to be an ability to do some tidying up of associated legislation when a Bill is passed, but the consequential amendments are normally set out in a schedule with a tidying-up clause that picks up anything that has fallen through the gaps. This does not seem to be the case in this Bill.

In August, the Delegated Powers and Regulatory Reform Committee said that this clause would

“confer permanent powers on Ministers to make whatever legislation they considered appropriate, provided there was at least some connection with Part 1, however tenuous”.

The committee was very clear that transitional arrangements to protect the legal rights of EEA citizens should appear in the Bill.

Last week, the Select Committee on the Constitution also made strongly worded recommendations on the Bill. It agreed with the Delegated Powers Committee’s concerns about Clause 4. Other noble Lords have already raised questions about phrases in this regulatory power. Amendment 15 is an attempt to understand why the Government need a power that makes transitory provisions, provisions that are not permanent. I hope the Minister will set out examples of what transitory provisions the Government consider might be needed.

Modern Slavery Bill

Debate between Lord McColl of Dulwich and Baroness Hamwee

Monday 23rd February 2015 Lords Chamber

[Lord McColl of Dulwich]

I have been concerned by the evidence I have heard about the limited use of the equivalent existing offence for crimes against children in Section 71 of the Coroners and Justice Act 2009. This is not because no children are exploited; there is clear evidence to the contrary. I hope, therefore, that this amendment will make Clause 1 more useful to the CPS in prosecuting those who exploit children, for whom I have a particular concern, as your Lordships know.

I wish to ask the Minister two questions. He has made it clear through this amendment that situations in which children are forced into slavery through threats or coercion will come under the offence set out in Clause 1 through Clause 3(5), and, if the child is targeted specifically because they are a child, they would be covered under Clause 3(6). Both of these are welcome reassurances.

Will he please clarify what the situation would be where there is no force or coercion but it is difficult to prove whether a child has been specifically targeted? I also wonder whether he has given consideration to strengthening the imperative to consider these situations of exploitation in Clause 1(4) by requiring that regard “should” be had to them, rather than the present suggestion that regard “may” be had. I look forward to his reply.

In her foreword to the draft Bill, the Home Secretary wrote:

“I want a strong message to go out to any individual or group involved in the enslavement of victims; you will not get away with it, we will catch you and you will go to prison for a very long time”.

I completely agree. We must ensure that offences of exploitation of all kinds, as well as trafficking, slavery, servitude and forced labour, can be properly and regularly prosecuted. I believe that Amendment 4 will help to do this and I commend it to your Lordships.

[Baroness Hamwee]

My Lords, I wish I had thought of “exogenous” and “endogenous”. I will resist changing the term “characteristics” to “circumstances” when it appears later in the Bill.

However, I remain concerned, for the reasons I gave. I was not just playing with words for the pleasure of playing with words but because of the impact that the wrong word may have on the success or otherwise of a prosecution. It is not really the way to go about it if there is a better way of doing so. One should not rely simply on examples that strain the meaning of the term about which the examples are given. There are better ways of doing it.

As I said at the start of the debate, I understand the Government’s concern to make sure that we get the Bill on the statute book. However, if the Minister is able to look at this matter before Third Reading, I would be very happy for him to do so; I shall certainly not pursue the point today. With regard to the trafficking directive, I look forward to finding out how long “shortly” is in this circumstance. I beg leave to withdraw the amendment.

Modern Slavery Bill

Debate between Lord McColl of Dulwich and Baroness Hamwee

Monday 8th December 2014 Lords Chamber

[Baroness Hamwee]

My Lords, I have Amendments 86J, 86K and 86L in this group. Amendment 86J seeks to insert a new clause. I contacted a member of the Bar who practises in this area and asked him whether the provisions available to protect and support victims in court and in their dealings with the police were adequate, even if they were not always well used. In other words, should we be thinking of anything to go in the legislation or is it really a matter of guidance and practice? He came straight back to me with the thought which I have incorporated in this amendment.

Of course, protection in court is very much a matter of practice, in line with some legislation and with guidance. The practice needs a foundation. This would be a foundation for something quite wide. My counsel friend said:

“Every other measure follows from an assessment and those presenting a case will do so fully informed if they have the psychological assessment”.

The victims of slavery and trafficking are so very unlike others. There are many issues that befall them and their presentation in court is difficult. My counsel friend believes, as is obvious, that an assessment should be mandatory.

This is not about referral to the NRM; it is about investigation and prosecution as well as support. An assessment may say that there is nothing too much to be concerned about, but it may say that this individual is very damaged, very vulnerable and that the best way to investigate is as follows. Or, in court, someone with the appropriate knowledge can say, “The victim giving evidence is not able to articulate what, from my work with him, I believe he is feeling. A different line of questioning may be appropriate”. This is not just about support; it is also about the resilience to give evidence and to assist the police, and resilience in proceedings.

My other two amendments can be put very briefly. The first adds a reference to consultation to Clause 48 —the Secretary of State’s guidance on the items listed. I am suggesting that this should be after consultation. I hope that my noble friend will be able to reassure me that it will be after consultation. The second amendment—in order to get the grammar right, it requires a few more words—essentially changes “determining” to “identifying” in Clause 48(1)(c)—the arrangements for identifying whether a person is to be treated as a victim of slavery or trafficking. This is to probe whether this provision is about the NRM, where the term “determination” is used, but so is the term “identifying”. Determination has a whiff of formal proceedings which may be wider than the Government intend. As I say, this is a probing amendment.

Amendment 86M is probably the central amendment in this group and I do not want to steal any thunder by speaking to it, save to say that it is an extremely important amendment and I am very glad that it has been tabled. If we are establishing rights for victims, the logic is that those with the power to grant or deny the right must also be held to account—and that would be via a right of appeal. My first amendment is 86J and I beg to move.

[Lord McColl of Dulwich]

My Lords, I am pleased to introduce Amendment 86M in my name, that of the noble Baroness, Lady Howe, and that of the noble Lord, Lord Judd. I am grateful for the input of the charities involved in its development, including CARE, ECPAT and the Anti-Trafficking Monitoring Group.

The amendment deals with what is, for me, a foundational aspect of any modern slavery Bill worthy of that name, yet it is not adequately provided for in the current draft. The Bill will be the foundation of legislation for all action on modern-day slavery for decades to come. As such, it must have the victims at its heart and make proper provision for them. I welcome the addition of Part 5 following the recommendations of the pre-legislative scrutiny by the Joint Committee on the draft Bill, of which I was privileged to be a member. However, I feel that Clause 48, which provides a mechanism for guidance on identifying and supporting victims, does not go anywhere like far enough to ensure that the Bill is victim-focused.

I thank the Minister for his comments in his letter sent to Peers following Second Reading, sharing the concern that we provide victims with the services that they need. I am pleased to know that the Government are considering the recommendations of the review of the national referral mechanism and hope that this will lead to a significant improvement in the identification of victims and the provision of support services. However, I do not share the view implied in the Minister’s letter that legislating for the NRM will make the system inflexible, nor do I believe that legislation is a distraction from the process of improvement.

In my opinion, Amendment 86M provides a much needed statutory foundation for operational and structural improvements, in response to the critique of victim identification and support in the review. The flexibility of guidance can be useful in responding to changing circumstances, but guidance is not the place to establish fundamental principles. It is my view that the fundamental principles for identifying victims and providing them with support and assistance should be laid out in legislation. Amendment 86M lays out these core principles. The clause relates broadly to two issues: first, the processes around identifying victims; and secondly, supporting victims—how long we should support them and with what types of services.

Let me first turn to the matter of identifying victims. Amendment 86M addresses the fundamental principle that the formal process for identifying victims and conferring on them a certain status that makes them eligible for services and support needs to be transparent through proposed new subsections (1) to (4). During our scrutiny of the draft Bill, the Joint Committee heard evidence from many NGOs that, because the national referral mechanism is established only in policy and guidance, there is a lack of transparency about decision-making. Anti-Slavery International described this as leading to,

“arbitrariness of application and access for victims”.

The 2013 report from the Anti-Trafficking Monitoring Group, Hidden in Plain Sight, indicates that existing guidance relating to processes under the NRM does not seem to be consistently followed, which gives me great cause for concern over the Government’s proposal that guidance under Clause 48 will be sufficient to ensure the correct operation of the NRM process.

I welcome the review of the NRM that has been undertaken and I am pleased that the Modern Slavery Strategy states that the Government are giving serious consideration to its recommendations for a radical restructuring of the process. However, I believe that any such restructured process should ultimately be established in regulations. This was also the view of the Joint Committee, which said that the Home Secretary should set out the process for identification by order. This approach will provide the flexibility which the Minister mentioned in his letter, but equally allows for greater transparency in the process than exists at present.

Amendment 86M requires the Home Secretary to establish the identification process in regulations and to seek the input of an Independent Anti-slavery Commissioner on the guidance about the identification of victims. One key aspect of this transparency is the process for which Amendment 86M specifically provides. It is the creation of an internal and external appeals process. The current NRM process has no such formal mechanisms for review. Where individuals wish to challenge a negative decision, they must either make an informal request for reconsideration or seek judicial review. The informal process, relying as it does simply on the discretion of an official, is in no way transparent and provides no sense of security for victims when they enter the system. On the other hand, judicial review is extremely formal and costly and does not review the substantive merits of the person’s case. A formal built-in appeals process, with the possibility of a second-tier external review, is needed to provide appropriate transparency and accountability. This is why I have proposed new subsection (1)(c). I was rather disappointed with the response of the NRM review to this point. I am not convinced that its proposals for regional multidisciplinary panels will reduce the need for challenge, nor that the review’s suggestion—that another panel chair could offer a second pair of eyes when a review is requested—will be adequate to provide the transparency that is so important. I hope the Government will support my proposal for a more formal process set out in regulations.

I was also disappointed to read that the NRM review reported that the submissions from many NGOs showed overwhelming support for the preservation of the national referral mechanism solely for victims of trafficking. I am sorry, but I disagree. I recognise that international reporting structures and data comparisons mean we need the clarity of specific statistics on victims of trafficking, but we must ensure that there is a clear mechanism for the identification of victims of slavery who have not been trafficked. Without such a mechanism, we are left, once more, with the problems of transparency which I am seeking to address through Amendment 86M. As it stands, Clause 48 applies to victims of the offences under both Clauses 1 and 2, and this is right. Amendment 86M also applies to victims of slavery and trafficking offences and would require a formal mechanism for identification to be established in regulations.

Having set out the requirements for identification, I turn to proposed new subsection (5). This sets out how long the assistance must be provided for under the reflection and recovery period. There are two questions for your Lordships. First, how long should it be and, secondly, should we set this time period in statute? Those of your Lordships who have studied the European convention will know that our international obligation is to provide a so-called recovery and reflection period of at least 30 days. Such a period shall be sufficient for the person concerned to recover. The UK already has a recovery and reflection period of 45 days, so we are ahead of the minimum. However, I have heard NGOs say, time and again, that even 45 days is not long enough for a victim to properly reflect and recover and that 90 days would be far more appropriate. This is what I am proposing in Amendment 86M. Indeed, the NRM review says:

“Many to whom we spoke thought that victims ‘are failed’ at the end of the 45 day period”.

This is a very sobering assessment of how we are treating victims. Studies show that, during the first three months, a high proportion of victims of human trafficking display symptoms of post-traumatic stress disorder and that longer reflection periods can greatly improve chances of providing substantial assistance to victims of trafficking. That is why I am supporting a 90-day reflection and recovery period.