Psychoactive Substances Bill [HL]

Lord Rosser Excerpts

Tuesday 9th June 2015 Lords Chamber

[Lord Rosser (Lab)]

I thank the Minister for his explanation of the objectives and purpose of the Bill and the reasons why the Government consider it necessary. In line with a commitment we gave in our manifesto for the general election last month, we support the Bill’s general approach to the increasing concern over new psychoactive substances and their effects, which it seeks to address. The proposed law is very much an extension of what we proposed in 2013 in an amendment to the then Anti-social Behaviour, Crime and Policing Bill, which would have made it an offence to supply and sell new psychoactive substances in high street head shops. When the amendment was debated in this House it was, if my memory serves me right, not exactly received with universal acclamation. We will need to discuss the detail of the Bill and its proposed means—and their effectiveness, or otherwise—of achieving the desired goals.

Over the last seven years or so, in particular, we have seen the emergence of new psychoactive substances or “legal highs” intended to produce the same effects as drugs controlled by the Misuse of Drugs Act 1971, including cannabis, cocaine and ecstasy. The chemicals in these substances are often neither legal nor safe for human consumption. They can be difficult to identify because of their diversity and the relative ease and speed with which they are developed to replace drugs that are controlled, or have become controlled, under the 1971 Act. Chemical structures can simply be modified to create a new substance that is outside any existing drug controls. Many new legal highs are legal only because they have not yet been assessed for the harm that they can do and, thus, for control under the 1971 Act—not because they have been deemed safe to use.

According to the European Monitoring Centre for Drugs and Drug Addiction, 101 new substances were identified in the European Union in 2014, up from 24 in 2009. Deaths related to legal highs have also risen, as the Minister said, up from 26 in 2009 to 60 in 2013 in England and Wales. As the Minister also said, an expert panel was appointed in December 2013 to undertake a review into new psychoactive substances. It reported in September last year and concluded that the current legislative approach in this country, including the Misuse of Drugs Act 1971, was unlikely to get ahead of developments in the new psychoactive substances market, bearing in mind how quickly such new substances appear. The panel considered a number of options and came to the recommendation that the Government should legislate to prohibit the distribution of non-controlled new psychoactive substances, focusing on the means and channels of supply rather than on those using such substances.

It is in the light of the panel’s recommendation that the Government have proposed in the Bill that there should be a blanket ban on the production, sale and supply of psychoactive substances in the United Kingdom. The Bill makes it an offence to do so, but it also provides for four civil sanctions to enable police and local authorities to adopt a graded response over these matters in appropriate cases. The Bill does not make possession of such substances an offence. Clearly, with the provision for a graded response, the guidelines given to the police and local authorities on how it should be exercised will be crucial if we are to achieve some sort of consistency, and to address concerns already expressed in the media and elsewhere that items or activities that one would not have thought would be covered by the ban might be caught by it. Will the Minister say whether the Bill also has the support of his department’s Advisory Council on the Misuse of Drugs and confirm that the Department of Health also agrees with the approach and measures in the Bill?

The Bill defines a psychoactive substance as,

“any substance … capable of producing a psychoactive effect in a person”.

It then provides that,

“a substance produces a psychoactive effect in a person if, by stimulating or depressing the person’s central nervous system, it affects the person’s mental functioning or emotional state”.

Since this is an effect of psychoactive substances, the Government expect that the Bill, with its blanket ban, will overcome the problem of the inevitable time lag between a new substance coming on to the market and completing the lengthy and time-consuming required process—including securing evidence that physical or social harm has actually been caused—to ban each new substance identified on an individual or group basis under the 1971 Act.

The Minister’s introduction was restrained, measured and clear about whom the Bill is intended to protect and help. Unfortunately, the same cannot be said about some of the documentation that has emanated from government sources. The Government’s summary of the Queen’s Speech dated 27 May 2015 stated that the purpose of the Bill—and one of only two purposes listed—is to,

“protect hard-working citizens from the risks posted by untested, unknown and potential harmful drugs”.

Note that it was not a case of protecting citizens but of protecting “hard-working citizens”. The part of the document in which this reference is to be found has come from the Home Office. Unless the Minister is going to dissociate himself from the wording, perhaps when he responds to the debate he will indicate which citizens the Government do not regard as “hard-working” so that we can all be clear on precisely who is not covered by the Bill in the eyes of the Home Office. Perhaps he could then tell us why the Home Office thinks that the purpose of the Bill is specifically to “protect hard-working citizens” when, as is pointed out in the Explanatory Notes—the Minister has confirmed this today—the Government’s election manifesto commitment was to create a blanket ban,

“protecting young people from exposure to so-called ‘legal highs’”.

Most of us would have hoped that the Bill was designed to protect everyone irrespective of age or some subjective judgment on whether they are or are not “hard-working”.

I would like to raise some points about the provisions of the Bill and my noble friend Lord Tunnicliffe will raise further points later.

The Bill is not dissimilar to legislation passed in the Republic of Ireland—namely its Criminal Justice (Psychoactive Substances) Act 2010. In the three months following the implementation of that Act, the number of head shops fell from about 100 to just six—as I say, in a period of three months. All Irish-based websites supplying new psychoactive substances also shut down. The Government’s impact assessment for this Bill, in referring to the Republic of Ireland, states:

“No formal evaluation of the impact of the legislation has been undertaken”,

and that prevalence data for 2014-15 will be available in 2015 allowing for,

“a comparison of trends in NPS use since 2010/2011”.

Can the Minister provide us with any information on the impact that the legislation in the Republic of Ireland has had on the usage of new psychoactive substances in that country, since the main purpose of such legislation, and indeed of this Bill in the United Kingdom, must be to reduce the NPS market, and thus the numbers of people who suffer as a result of taking these substances? Is the experience of the impact of the legislation in the Republic of Ireland positive in respect of usage in addition to its impact on head shops and websites? What impact on usage of NPSs do the Government estimate this Bill will have in the United Kingdom? To what extent do the Government consider that the Bill will lead to the market in NPSs going underground, with the potential risks that that might involve? What is the experience in the Republic of Ireland in regard to the supply going underground as a result of its 2010 Act?

In respect of websites and online selling, what steps will the Government take to reduce sales of these substances to people in this country, via websites and online, from outside this country? Are discussions taking place with other Governments to address this point? Will the offence under the Bill of importing or exporting such substances fit with existing EU directives?

The Bill provides for listed substances which are capable of producing a psychoactive effect to be exempt from the Bill, either because they are already controlled through existing legislation, such as alcohol, tobacco or medicines, or because their psychoactive effect is negligible, such as caffeine. Is it the Government’s intention that it should be possible to add to this list of substances that are exempt from the Bill? If so, in what circumstances would the Government envisage this might occur, and what process would have to be gone through before this could happen, and on whose advice or recommendation would it happen?

The Bill provides for it to be a statutory aggravating factor when sentencing an offender if the supply or offer to supply took place at, or in the vicinity of, a school. Another area of significant concern is the situation in our prisons. A number of inspection reports have shown high levels of use of synthetic cannabis by inmates and there have been reports of debt, bullying and violence associated with the use of legal drugs, which are not identifiable through mandatory drug-testing. Have the Government also considered making the supply or assisting the supply of NPSs at or in a prison an aggravating factor when sentencing an offender, since many prison inmates are, in reality, highly vulnerable people—albeit they may not come under the Home Office definition of “hard-working citizens”, for whom apparently this Bill is intended?

During the discussions on the Bill we will also want to find out exactly what the Government are doing and intend to do to address the point made by the expert panel in its report that the response to the challenges on legal highs through,

“intervention and treatment, prevention and education, as well as information sharing”,

needs to be enhanced. Currently only 15% of English schools provide teaching about drugs for one hour per term or more. The Minister mentioned the Angelus Foundation, the charity raising awareness of the harms of these substances, which has campaigned, as he said, for provisions like those in the Bill. Its figures show that in school surveys, 13.6% of 14 to 18 year-olds have taken a legal high, and a survey of university freshers showed 19% had tried one.

A recent Parliamentary Question from the shadow Home Office Minister Diana Johnson MP on drugs awareness elicited the information that between 2013 and 2015, only £180,000 was spent on NPS campaigns. The Home Office seems to rely on its Talk to FRANK scheme as the basis of its education commitment. However, the scheme does not reach out to young people through film or social media, and the provision of information does not necessarily equate to greater awareness. The Government have previously stated that 34% of people who visited the scheme website were less likely to take legal highs as a result. What they did not mention was that, as I understand it, 22% of visitors to the site were more likely to take a legal high as a result. By inference, the website also had little impact on an even bigger percentage of those visiting the site. If equal attention to that given, rightly, to legislative changes is not paid to the key point raised by the expert panel about prevention, education, intervention, treatment and information, the desired objective of the Bill to address much more effectively the increasing concerns over the spread and impact of legal highs will just not be achieved. Changing the law in isolation will not deliver.

I am sure there will be a lively debate on the Bill, in particular over the extent to which it will achieve its stated objectives. Clearly, the current position is unsatisfactory—indeed, dangerous—and cannot be allowed to continue. Action needs to be taken—action that will improve the situation and provide much better protection to all citizens than is given at present from the risks posed by untested, unknown and potentially harmful drugs. There are too many victims already and whatever views may be held on the Government’s proposed legislation—and I have set out where we stand—those victims should be at the forefront of our thoughts in our discussions on the Bill.

Clandestine Migrants

Lord Rosser Excerpts

Monday 8th June 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I thank the Minister for repeating the Statement.

The people found at Harwich are victims of criminal gangs, just like those found on boats in the Mediterranean. What action are the Government taking to ensure that there is a more concerted UK and EU drive to seek to stop this trade in human beings at its source? To secure our borders, what percentage of lorries and containers are now routinely checked at UK ports of entry? John Vine, the former inspector of borders, stated at the weekend that good intelligence and experienced staff were critical but that a lot of experienced staff were leaving and not being replaced. Is that true? Finally, can the Minister say whether or not Border Force funding is ring-fenced from the Home Office funding cut that was announced by the Government last week?

[Lord Bates]

My Lords, I will take the points raised by the noble Lord, Lord Rosser, in turn.

The noble Lord is absolutely right to say that it is one thing to try to tackle these problems when they arrive in the UK but far more productive to focus that effort in areas and countries where there is insecurity. That is part of the reason why so much of the work of DfID and the Foreign Office in places such as Syria is about trying to intervene to provide stability and security in those areas so that people do not undertake the perilous journey, in the case of the Mediterranean, or become victims of the criminal gangs that we have talked about.

The second thing that we can do in that regard is to strengthen the laws in relation to this. With a large degree of cross-party support in the last Parliament, we introduced the Modern Slavery Act, the Counter-Terrorism and Security Act and the Serious Crime Act, all of which were aimed at trying to disrupt activity and increase the penalties for those concerned.

The noble Lord asked some specific points about the operations and the percentage of checks that are carried out. This work is very much intelligence led. Border Force works very closely with the National Crime Agency and it will pass on intelligence to particular ports for the screening of vehicles. The actual percentage may change from port to port on the basis of intelligence that is received at that point. We can also take some confidence—without for one second being complacent—from the performance of Border Force in areas such as Harwich for the examples that I gave earlier.

There is a three-pronged approach: the first is tackling the issue upstream; the second is the greater use of technology; and the third is greater use of intelligence. We must also strengthen the legal framework to ensure that those people who engage in this pernicious activity of trafficking people across countries get the punishment that they deserve.

Police and Crime Commissioners

Lord Rosser Excerpts

Wednesday 3rd June 2015 Lords Chamber

[Lord Bates]

The funding of the panels and the offices of the police and crime commissioners is a matter for the police and crime commissioners, which they must do and for which they must be accountable in their plan to the electorate.

[Lord Rosser (Lab)]

My Lords, first, I congratulate the Minister on his promotion, which is certainly well merited. Bearing in mind that this appears to have happened in some instances last year, do the Government regard it as being within the existing powers of any police and crime commissioners to prevent or seek to prevent their chief constables from signing a letter likely to go into the public domain expressing concerns about their ability to maintain public safety within their existing or proposed budgets?

[Lord Bates]

I would obviously need to look very closely at the example which the noble Lord gives. I do not have it, in fact. But we would take that very seriously. It is important to recognise that while police and crime commissioners are of course accountable to the public, they are also accountable and available to be scrutinised by the Independent Police Complaints Commission. If there were claims of undue influence of the type that he has alluded to, that would be one route. But I would be happy to look at further details if he wanted to share them with me.

Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015

Lord Rosser Excerpts

Monday 23rd March 2015 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I, too, thank the Minister for his high-speed explanation of the purposes of these two orders which relate to emergency legislation enacted last year—namely, the Data Retention and Investigatory Powers Act, which goes under the happy name of DRIPA, which sought to retain existing data retention powers called into question, as the Minister has said, as a result of a European Court of Justice ruling. The subsequent regulations to the 2014 Act added a requirement for a code of practice on data retention to the existing requirement for a code on acquisition. Both codes are intended to set out how the legislation is to be implemented in practice. The two orders we are discussing bring the two codes into effect.

The two codes of practice before us set out the processes and safeguards governing the retention and acquisition of communications data which, as we know, can be a key factor in combating crime and terrorism and protecting children by law enforcement and intelligence agencies and other relevant public authorities, since communications data can show who was communicating, when, from where and with whom.

Both codes have been the subject of public consultation. As has already been said, the Government received some 300 submissions from organisations and individuals. When the issue of where those 300 submissions could be found was raised during the debate on these orders in the other place last week, the Minister in the Commons said he would write to my colleague, Diana Johnson MP, on this point. By the end of last week no written communication had apparently been received indicating where the responses could be seen. Perhaps the Minister could ensure that that information is provided.

The Regulation of Investigatory Powers (Acquisition and Disclosure of Communications Data: Code of Practice) Order 2015 before us enhances the operational independence of the authorising officer from the specific investigation for which communications data are required. It includes new enhanced protections for those who may have professional duties of confidentiality or privilege, particularly journalists. It reflects additional requirements on local authorities to request communications data through a magistrate, improves the record-keeping requirements for public authorities and aligns the code with best practice in regard to international co-operation and emergency calls.

The Retention of Communications Data (Code of Practice) Order 2015 deals with the new retention code implementing the requirements in the Data Retention and Investigatory Powers Act and the subsequent data retention regulations. The new retention code covers: the issue, review, variation and revocation of data retention notices; the communications service providers’ ability to recover their costs; data security; oversight by the Information Commissioner; and safeguards on the disclosure and use of retained data by communications service providers. It also outlines the scope and definitions of relevant communications data, including data that may be retained in the light of provisions in the Counter-Terrorism and Security Act 2015.

However, the 2014 emergency Act and these two codes of practice do not complete the legislative process. The Government have stated that one of the most important safeguards in the acquisition code covers access to journalistic material. The Interception of Communications Commissioner recently made recommendations following his own inquiry into police acquisition of journalists’ communications data. The acquisition code provides that an application seeking the communications data of a journalist in order to determine sources will be decided by a judge through the terms of a production order under the Police and Criminal Evidence Act 1984.

However, this is only a stop-gap measure—the Government’s words—since it is the intention of the Home Office to put this change in primary legislation in the next Parliament. The Independent Reviewer of Terrorism Legislation is currently examining the operation of the Regulation of Investigatory Powers Act 2000 and his report, which is expected to be completed before May, in a few weeks’ time, may well lead to changes in legislation. The Data Retention and Investigatory Powers Act 2014 itself has an end date of 31 December 2016, so will presumably require further consideration by Parliament.

It is all a very fragmented process of emergency legislation, of stop-gap measures, of imminent further reviews by the counterterrorism reviewer, of further primary legislation already flagged up for the next Parliament and of legislation passed only last year coming to an end in 21 months’ time. The process that has been and is being pursued for dealing with these very important issues does not exactly give the impression—whatever the reality may be—of a carefully planned, thought-through approach to what are very significant matters. Could the Minister say when it is expected that the codes of conduct we are discussing today will need to be updated and reissued in the light of the pending developments I have just mentioned?

Paragraphs 2.21 to 2.23 of the code of practice for the retention order refer to internet-based communications. Paragraph 2.21 states:

“Internet email under DRIPA is considered to be any text, voice, sound or image message sent over a public electronic communications network which can be stored in the network or in the recipient’s terminal equipment until it is collected by the recipient and includes messages sent using a short message service”.

Does that definition include social media or simply refer to internet-based email providers such as Hotmail and Gmail? Does the code of practice include messages sent on social media platforms such as Facebook? If it does, there does not appear to be a section in the guidance devoted to social media. If social media are covered, does a message extend to tagging another person? Specifically, if a person is tagged in a Facebook or Instagram post, does that count as a message for the purposes of this code? What about a person included in a tweet—does that count, as far as the code is concerned? In a situation where there is no user-generated content but there is an interaction, such as liking a post on Facebook, loving a photo on Instagram or favouriting a tweet, would these come within the code of practice?

Paragraph 2.23 says:

“An internet communications service under DRIPA as amended by the CTSA is a communications service which takes place on the internet and can include internet telephony, internet email and instant messaging services”.

The Minister in the Commons hardly clarified the position when he said in the debate on 16 March:

“The code provides that the Home Office may give further guidance to those implementing the requirements”.

He then went on to enlighten us with the statement:

“In other words, there can be further drill-down to give further specificity”.—[Official Report, Commons, 16/3/15; col. 559.]

No doubt, hopefully without too much further drilling down, the Minister will be able to assist in clarifying and placing on the record—which is quite important—how the code, including paragraphs 2.21 and 2.23 to which I have referred, should be interpreted in regard to the points and questions I have raised in respect of social media. That clarification is important and necessary.

The code of practice appears to give the Secretary of State considerable discretion over the review of retention notices, and indicates that factors leading to a review could include significant technological change. How will the dialogue with communications service providers operate and how will it ensure that the Secretary of State will be aware of major technological changes? The Minister in the Commons simply made the somewhat unhelpful and bland statement:

“The Home Office works closely with providers to ensure that it is aware of future technological changes that may lead to a review of a data retention notice”.—[Official Report, Commons, 16/3/15; col. 559.]

I do not really think that is an answer to the question that I have just asked—and was indeed asked in the Commons.

Can the Minister say why no impact assessment has been prepared in relation to the orders we are discussing? As far as I can see, these codes of practice cover the process for decisions regarding the level and extent of compensation payments provided to communications service providers and thus could have financial implications, as well as the potential to affect compliance requirements on businesses. In that regard, can the Minister say what is the total spend on compensation agreed with the communications service providers in each of the past five years?

I hope that the Minister will be able to respond—either now or subsequently—to the queries that I and the noble Baroness, Lady Hamwee, have raised on certain aspects of these two orders, which we do actually support, despite the comments I have made.

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[Lord Bates]

It is an excellent question, but I covered that in my pacy opening remarks because I was conscious that an important Statement was due to follow.

The noble Lord, Lord Rosser, asked whether paragraph 2.21 covers social media. As Minister James Brokenshire said at the Report stage of the then Counter-Terrorism and Security Bill:

“A communication can include any message sent over the internet. The legislation relates not to the retention of what the message contained, but purely to the fact that a message was sent”.—[Official Report, Commons, 6/1/15; col. 236.]

RIPA makes that clear and extends the machine-to-machine communications examples, such as the ones that were given.

[Lord Rosser]

In the light of what the Minister has said, does that mean that it does cover social media or it does not?

[Lord Bates]

To the extent that social media are messages communicated machine to machine, it does. As to whether the specific examples that the noble Lord, Lord Rosser, talked about, such as tagging on a Facebook page or a tweet, I am going to have to get some further clarification on that and will write to him. But certainly messaging over those platforms would of course be covered.

Modern Slavery Bill

Lord Rosser Excerpts

Wednesday 4th March 2015 Lords Chamber

[Baroness Butler-Sloss]

My Lords, the points made in this amendment seem to me of considerable importance. However, if the Minister could go back to his department and be reasonably certain that these aspects will be reflected in the regulations, it would not be necessary to test the opinion of the House.

[Lord Rosser (Lab)]

I will make a few brief comments, largely in line with the views that have already been expressed. A number of noble Lords have already referred to the Minister’s comment on Report that the government amendments would,

“allow for regulations to be made about accommodation, financial assistance, assistance in obtaining healthcare … the provision of information, and translation and interpretation services where a person is a victim of modern slavery or there are reasonable grounds to believe that they are”.—[Official Report, 25/2/15; col. 1684.]

However, the indications that the Minister gave about what could be included in regulations did not appear in the enabling clause and are not in the Bill. That is precisely the point that the noble Lord, Lord McColl, made.

I assume that the Minister does not intend to accept the amendment—I think that he would already have indicated if it was his intention to do so. However, as has been pointed out, we are facing the prospect that victims of trafficking in England and Wales will have fewer statutory rights than victims in Scotland and Northern Ireland, where statutory support services are set out in detail in the relevant legislation. As the noble Lord, Lord McColl of Dulwich, said, the purpose of his amendment is to provide clarity at least about the fundamental principles of support.

I ask the Minister only to give a helpful response to the amendment. He has been asked in particular to commit to the various issues that he said the regulations could cover. Will he stand up now and say that they are not, in that sense, meaningless words and that the regulations will cover the specific issues to which he referred when he spoke on Report? Ideally, noble Lords would like to see this in the Bill—but if the Minister is not able to agree to that, I hope that he might at least be able to say something rather firmer that will leave people with a very clear view that these issues most certainly will be in the regulations when they come out.

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[Baroness Mobarik (Con)]

My Lords, I, too, add my name in support of the noble Lord’s amendment, which I believe will be helpful to both businesses and consumers. I am particularly pleased to note that the business community, through the Ethical Trading Initiative, has expressed its support. I echo what it said about the need for a level playing field. I am proud of what we have achieved on the Bill and I am committed to the journey that we have begun, so I very much hope that my noble friend will feel able to accept the amendment.

[Lord Rosser]

I will make one or two brief comments. I certainly do not want to repeat all the powerful arguments that have been put forward in support of these two amendments. But to reiterate what the noble Earl, Lord Sandwich, said a moment or two ago, this is an enabling power for the Secretary of State. The amendment states “may by regulations”. It does not say “must”, and it does not specify who should be appointed. It simply says,

“appoint an organisation or an individual”.

I would have hoped that the Minister would feel able to go down this road, since it does not make a very specific commitment but it gives a positive indication of the direction in which we should be going.

It is heartening to hear from the noble Lord, Lord Alton of Liverpool, that Mr Hyland is in favour of what is proposed in the amendment and has described it as being “able to make a positive difference”. I think that that was the wording that was used. I would only conclude by reiterating what the Minister himself said on Report. He said:

“I think it is more important to get the principle there—that we are saying, with all these statements coming together, that clearly they need to be in one place. Whether that is civil society, an NGO, a commissioner or a government body is something that can be sorted out. But the principle is that we want to see these statements in one place so that people can monitor and evaluate them to ensure that the intended action takes place”.—[Official Report, 25/2/15; col. 1750.]

I really cannot see the difficulty with this amendment, since it achieves precisely the thing that the Minister said that he and the Government want to achieve.

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[The Earl of Sandwich]

My Lords, I have no problem with the amendment but have picked up a concern that, although it is in line with much that has been done already, it possibly raises the whole question of the GLA. A future Government might come in and say, “We have had this consultation and perhaps the GLA is not the right way forward”. I do not know whether the Minister has heard that comment before but it would be helpful if he could give some reassurance on the record that this could not be a consequence of the consultation and this amendment.

[Lord Rosser]

The comment that I wanted to make was in line with that made by the noble Earl, Lord Sandwich. I appreciate that the Minister can talk only about the intentions of this Government and not those of a future Government. The amendment refers to publishing,

“a paper on the role of the Gangmasters Licensing Authority”.

Will the Minister assure us that the Government are not looking to extend the role of the GLA into other new and very different areas such as crime control or anything to do with border security, but that they will consider whether to extend its existing remit and resources to enable it to continue to fulfil the very successful role that it plays in labour inspection, enforcement and standards? There must surely be a need to concentrate on its core functions and perhaps extend the area in which it carries them out given that it is highly successful at achieving those core functions which are crucial in the fight against modern slavery.

[Lord Bates]

My Lords, I am grateful to the right reverend Prelate for welcoming this amendment. I again thank him for his work in this area. In answer to the point made by the noble Earl, Lord Sandwich, the consultation will look across all aspects of the GLA’s work and will consider how it can make an effective contribution to tackling worker exploitation through asking questions about how we can improve the way that it gathers and shares intelligence with other agencies and the way that it interacts with other agencies. The consultation will also examine possible changes to its enforcement activity and powers as well as to its licensing functions. Given that that is the intent, I certainly think that the scenarios outlined by the noble Lord, Lord Rosser, would not arise. We are talking about the mistreatment and exploitation of workers. The GLA performs excellently in its present role and we are seeking to ascertain whether, given this new piece of legislation, it can play a part in supporting the work of tackling exploitation. I hope that I have reassured the noble Earl.

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[Lord Bates]

My Lords, the new advice from the Procedure Committee is that it is at this stage, in moving that the Bill do now pass, that we make some traditional remarks marking the end of this stage. I want to take that opportunity.

To start naming particular individuals is perhaps invidious, since so many have engaged in this process. This has been a genuine cross-party effort. All sides of the House, including the Cross Benches, have played an incredibly important role. That also includes the Bishops’ Benches—they have played a very important role in shaping this legislation.

In all the legislation I have ever been involved in, this has perhaps been one of the most significant. Procedurally it has been one of the best for Parliament. I am delighted to see the Minister for Modern Slavery at the Bar of the House. It is appropriate that she is there. When the Bill was published it went through pre-legislative scrutiny. It was then republished. It was taken through a substantive series of Committee stages in the other place, where amendments were made. It then came to your Lordships’ House where it has been engaged with again. The amendment that I just passed, Amendment 8, was the 100th government amendment that we have made to the Bill in the House of Lords. That is a tribute not only to the deep passion that we all share on this issue, but to the thoroughness with which we have engaged.

From my point of view, I thank in particular my noble friend Lady Garden for her support through this process. I thank members of the Bill team, who have done such a tremendous job. We have put them through an incredible pace. The number of letters, bilateral meetings, interested Peers’ meetings and telephone calls that we have had has put a tremendous strain on them. I am very conscious of that, but they have performed their role perfectly in support of our discussions in your Lordships’ House.

I take great pride in this Bill. It was more than 200 years ago, as the noble Lord, Lord Alton, often refers to, that legislation abolishing slavery was passed by this House. It was this country that took a lead in the world to produce legislation to bring about that effect. What we have done in our work is of a similar magnitude and similarly groundbreaking. It needs to send a message to the victims that we are here and will provide them with support, and to those who are perpetrating this evil crime that there are powers, capabilities and institutions that are now on their case in tackling their inhumanity to other human beings. With that, I beg to move.

[Lord Rosser]

I thank the Minister for his very kind comments. I, too, add my appreciation for the work that both he and the noble Baroness, Lady Garden, have done. I express my thanks to the members of the Bill team. Whether with 100 government amendments they ended up in a state of despair, I do not know, but if they did they never showed it and we are extremely grateful.

I also express appreciation from these Benches to all noble Lords who have taken part in our discussions, whether from a political party, the Cross Benches or the Bishops’ Bench. We have had numerous meetings which have all been extremely helpful. They have certainly all been extremely good-natured and conducted on all sides with a view to trying to resolve any differences of view and to come up with solutions that have been acceptable to us all. I also thank those organisations and individuals who have provided advice and briefings. I am sure we have found them all very useful and helpful. Whether or not we have always taken the road that the advice suggested is another matter, but we appreciated receiving it.

This Bill has been interesting because at heart it has not been a party-political issue. We have all been trying to achieve the same objective. We may have had slightly different views as to how that objective should be achieved, but nevertheless this Bill has avoided some of the rancour that can go with highly party-political issues. As the Minister has said, at the end of the day we have achieved real progress on behalf of the victims of modern slavery and I am sure this Bill and its terms will be much appreciated by all those concerned for what it will achieve.

The Minister said there had been 100 government amendments. They were obviously put down in part as a result of the patience, good nature and willingness to listen of the noble Lord, Lord Bates, and the noble Baroness, Lady Garden, which has been widely commented on in this House and widely appreciated. Of course, in so doing, the Minister has denied us the excitement and thrill of a number of votes, but in view of the outcome of the last one, perhaps that is just as well.

[Baroness Hamwee]

My Lords, from the Liberal Democrat Benches I also thank all those who have already been mentioned. It is only so as not to be tedious that I will not go through the list again but my thanks are sincere.

This has been such a good example of how Parliament can work well across parties, with people of no parties and with organisations outside this House, as the noble Lord said. I have been particularly struck, which I am sure is in no small part thanks to the efforts of both Minsters present, that even at this last stage, with the last of the substantive amendments on the Gangmasters Licensing Authority, the Minister came forward with an amendment which he did not need to make. I do not think there would have been complaints. We would have taken the good faith of what he had said about the work that the Government were going to be doing on this. I know that he will agree that this is the end of the beginning rather than anything further, including at a personal level. I do not know whether the Bill team has counted up for him the number of commitments to extra meetings that he has made following the passing of what will soon be an Act but I know that we will all want to continue to be involved in making sure that the Bill, as implemented, fulfils its promises.

Modern Slavery Bill

Lord Rosser Excerpts

Wednesday 25th February 2015 Lords Chamber

To come to the particular point for today, I wonder whether the noble Earl, Lord Howe, could consider including healthcare and perhaps other care in the pilots that are to be undertaken. Might there be a mechanism piloted as part of the new NRM to test turnaround times, for instance? There might be ways of recording the reasonable grounds assessment that could be quicker than the sort of bureaucracy that, all too often, gets in the way, involving, for example, telephones, emails and so on. My request to the Minister is that there be an imaginative and extensive use of pilot testing in the case of some of the items of care and support that are so important.

[Lord Rosser (Lab)]

My Lords, we are not directly associated with any of the amendments in this group, but the proponents of Amendment 78 have certainly made a powerful case in support of it. They referred to the Northern Ireland Act and to the Bill in Scotland which are much more specific on support and assistance for victims than this Bill as it is currently worded. We will wait to see whether the Government are going to give a helpful response to Amendment 78 in particular; or, alternatively, whether, when the Minister comes to propose his amendments, he can persuade us that they actually address the point.

There must surely be a need for the Government to say something now at least on what minimum level of assistance and support they would expect would be provided to victims of slavery or human trafficking and in what circumstances. This major question should not be left so much in the air as is the case in the Bill as it is worded. It would still appear to be the case—we will wait for the Minister to speak to his amendment—in government Amendment 82.

[Lord Bates]

My Lords, I shall speak to Amendment 74, moved by my noble friend Lord McColl, to the amendments tabled by him and other noble Lords and to the nine government amendments standing in my name in this group. I shall speak, first, to the government amendments and then respond to the amendments tabled by other noble Lords and address at that point some of the questions which have been raised. I am grateful to noble Lords for tabling these amendments relating to the identification and support of victims, particularly through the national referral mechanism. I shall move government amendments on this issue.

The quality of the identification and support of victims is an essential issue. As I have said before, the victim is at the heart of the Government’s approach to tackling modern slavery. It is right that we had a thorough debate in Committee on issues relating to victims and we are very grateful that so many noble Lords took part in the excellent discussions we had outside the Chamber ahead of Report. Given the importance of identifying and supporting victims I entirely understand the sentiment behind Amendment 78—tabled by the noble Lords, Lord McColl, Lord Anderson of Swansea, and Lord Morrow, and the noble Baroness, Lady Grey-Thompson—which would place support of victims on a statutory footing immediately.

At this point I pay tribute to the work of the noble Lord, Lord Morrow, in introducing this important, ground-breaking legislation in Northern Ireland. We have been following closely the excellent work by the Assembly—by the noble Lord and David Ford—in bringing this forward. It is an example of the way in which we can learn together. There is the potential for the role of the Independent Anti-slavery Commissioner—who I know has had constructive meetings in Northern Ireland—to be UK-wide. This would help ensure consistency of standards and support as we move forward. I want to place on record my thanks and our respect for what the noble Lord has done.

As I set out in the debate on a previous group of amendments I have some concerns about moving immediately to a statutory footing for the NRM. We have just had a review of the system which found that major changes are needed, and we have, in principle, accepted all its recommendations. Many have referred to the NRM and Jeremy Oppenheim’s excellent review, which has received widespread approval. However, he stopped short of recommending that there should be a statutory element to the NRM at that stage.

Some of the changes in the national referral mechanism reflect key concerns raised in Parliament through the pre-legislative scrutiny process and since, for example, changing the decision-making process so that final decisions are taken by multiagency panels rather than UK Visas and Immigration or the NCA alone. We are setting up pilots to test out the new arrangements. I do not believe that an immediate move to a statutory footing while the system is in flux would be appropriate. I am also concerned that we need to consider the conclusions of the review of the national referral mechanism, which raise concerns that a statutory footing could lead to a loss of flexibility.

However, the Government have listened carefully to the debates on the issue, particularly the imaginative and practical idea put forward by the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, in Committee; and under Amendment 48, which we have already debated, we have brought forward that change. Given the changes being made currently, an enabling power which allows for the Government to place the national referral mechanism on a statutory basis once we have a more settled and effective system is an excellent idea. That is why I am bringing forward today government Amendments 76 and 77, 81 to 87 and 107, which place an enabling power in the Bill to make regulations in relation to the support and assistance of victims of modern slavery. The amendments will allow for regulations to be made about accommodation, financial assistance, assistance in obtaining healthcare—a question that was raised by my noble friend Lady Hamwee—the provision of information, and translation and interpretation services where a person is a victim of modern slavery or there are reasonable grounds to believe that they are. These are exactly the types of support that were previously covered by Amendment 78.

Amendment 74, tabled by my noble friend Lord McColl, seeks to require the statutory guidance set out in Clause 49 to be developed in conjunction with the commissioner. We are determined to involve the commissioner fully in the development of the statutory guidance set out in Clause 49, and have also committed to a formal public consultation. One of the commissioner’s core functions is encouraging good practice in the identification of victims of modern slavery. Given that we already have a clear intention to involve the commissioner in the development of the guidance, I do not believe that the amendment is necessary, although I think that we are very much in the same area on the points made by my noble friend.

I turn now to some of the specific questions which have been raised. The noble Baroness, Lady Howe, talked about minimum standards. As part of our work to retender the adult victim care contract, we have included minimum standards of care which will ensure that the care provided through the contract is routinely inspected.

On average wait times, individuals who need support immediately will be accommodated under the adult victim care contract from the point they come to the attention of the first responder and are referred for support. There will be no gaps, 48-hour delays or anything like that; it comes into play as soon as they come to the attention of the first responder. Of course, a huge section of the NRM dealt with the effectiveness of the first responder system, and clearly some were much better than others. Most of the referrals to the system were coming via the Home Office, perhaps fewer than one might expect were coming from local authorities, a small number were from NGOs and an even smaller number were from the Gangmasters Licensing Authority. One of the key elements that we need to look at is the quality of the training that people are provided with, and this was recognised by Jeremy Oppenheim. We need to make sure that the first responders are more able to deal with these issues.

My noble friend Lord McColl said that we need the words “the right to support” in the Bill. The Government are under a duty to provide support services to victims under the Council of Europe convention and the EU directive on trafficking. Placing this phrase on the face of the Bill would not change this duty, as the NRM review set out. In fact, Jeremy Oppenheim said in the review that:

“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. 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”.

I simply repeat that to demonstrate that neither here nor throughout the Bill are we objecting out of hand to the proposals. We are trying to move forward on the basis of the evidence and the advice that we are getting from various expert groups, and that was a clear recommendation. The fact that we have tabled these amendments is a good indicator of that.

My noble friend Lord McColl also asked about support prior to the reasonable grounds decision. The NRM pilots will be implemented as soon as possible. They will include testing the amalgamation of the referral and reasonable grounds decision, which will allow victims to access support and accommodation immediately. Currently, support and accommodation can be provided to the individual prior to receiving a reasonable grounds decision, which I know was at the heart of the concern of the noble Baroness, Lady Grey-Thompson. Where there is a need, this is provided for on a case-by-case basis, recognising of course that the local authority has the first responsibility to provide immediate care, particularly in the case of vulnerable children.

I am happy to reflect on those outlines and explanations further, and indeed to look again at the comments made in this debate—as the noble Lord, Lord Rosser has invited me to do; I am happy to continue doing that, as I have done throughout. With that, I hope that my noble friend Lord McColl will consider withdrawing his amendment.

--- Later in debate ---

[Lord Rosser]

I shall say a few words in support of the amendment that the right reverend Prelate has moved, as I think that he made a reference to the Joint Committee on the draft Bill. Of course, it said in its report that the:

“Gangmasters Licensing Authority (GLA) has been much praised as an internationally-respected model of good practice. The weight of evidence we received suggested that expanding the GLA’s powers and industrial remit would yield positive results”.

Those views reflect a widely held view: that the authority is an example of an effective body that UK industry helped to establish to manage and mitigate risks of slavery in the food and agriculture sector. What has been pointed out about the amendment is that it has the provision for consultation but also, within it, the power given to the Secretary of State—if the Secretary of State wants to use it; it is “may” not “must”—to amend by order the Act to sectors outside its current limited remit where evidence demonstrates that,

“abuse and exploitation of workers or modern slavery or trafficking may be taking place”.

The amendment does not require the Secretary of State to do that; it gives them the power to do it if they come to the conclusion that it is necessary and desirable to do so.

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Lord Rosser Excerpts

Wednesday 25th February 2015 Lords Chamber

[The Earl of Sandwich (CB)]

My Lords, I know that the hour is late but I want to add a minute or two of support for my noble friend’s amendments. I, like many others, spoke of the evils of some supply chains and companies’ responsibilities, but on Report it is not necessary to go into case studies again, as we are now talking about minor amendments.

My noble friends are right: proper reporting is an essential element in the legislative response and should satisfy retailers and consumers at the same time. I am a firm believer in corporate social responsibility, although it is going out of fashion, and greater transparency. Generally, I have been impressed by the extent to which businesses have been ready to accept minimum requirements. Of course there is a balance to be struck, and these amendments respect that balance. Who could quarrel with the amendments of the noble Baroness, Lady Young? Companies will differ in their relationships with the supply chains, but Amendment 97A goes a little further than the Government’s amendment by requiring a statement while retaining some flexibility.

Amendment 98A, to which the right reverend Prelate just spoke confidently, simply requires the statement to be entered on the website. My noble and learned friend disagrees over whether the commissioner-designate is going to want to do all this for himself, but we must include a provision in the Bill that companies have to provide such a statement; we can work out later where the central website will be. The commissioner-designate has already indicated his agreement in principle, and I hope that the Minister will do so, too.

[Lord Rosser (Lab)]

I should like to speak in particular to Amendments 97A and 98A, but that certainly should not be taken as diminishing the importance of the other amendments in this group.

One value of transparency over the actions taken to tackle modern slavery in the supply chain is that it creates a level playing field. I suggest that government Amendment 97, welcome though it obviously is, would still leave it optional as to what companies put in their statement and thus not necessarily achieve the level playing field that is surely required. Ensuring a level playing field between businesses on what kind of information they must disclose will also allow for easier comparisons between businesses, even if they are in different industry sectors.

However, to achieve really effective comparisons, we need the terms of Amendment 98A. This would introduce a requirement to put slavery and human trafficking statements on to a central website maintained by the office of the Independent Anti-slavery Commissioner in order both to facilitate those effective comparisons across companies and sectors and to assist with the monitoring of compliance and public accountability.

The noble Lord, Lord Alton of Liverpool, said that the commissioner-designate is supportive of this, but the noble and learned Baroness, Lady Butler-Sloss, said he might have lost a degree of enthusiasm, because he might have to do it himself as opposed to somebody else doing it. I am afraid that I have not had a personal meeting with Mr Hyland, so I am unable to add a third version of what his views might be on this particular issue, but it seems as though he is supportive, even though there might be a difference of view as to who should be carrying it out. Without a central site for statements, holding organisations to account will be very difficult, if not impossible, to fulfil. It is surely clear that having that central site where those statements would be is actually quite crucial. That is really one of the things that Amendment 98A is seeking to address.

Amendment 98A would also help ensure boardroom responsibility for the eradication of slavery and human trafficking from corporate supply chains. It would also draw the slavery and human trafficking statement to the attention of mainstream investors who might otherwise not have been aware of it, and enable them to ask questions of the company, which is another form of accountability and another pressure point to take the appropriate action.

Once again, I hope that the Minister will feel able to give a helpful response. Perhaps he might feel able to reflect further before Third Reading on the points that have been made tonight from all around the House, particularly in relation to the two amendments to which I have specifically spoken. In the spirit in which the Minister has been operating up till now—which has, indeed, been highly successful—with the amendments that he has put forward and made, which have been much appreciated around the House, I hope that he might be able to agree to reflect further on this issue before Third Reading.

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

My Lords, the noble Lord tempts me to go further and I am grateful to him for doing that. I can promise him a full response: whether it is a helpful response will be something that noble Lords will be able to judge at the end. It is quite a large group and there are some new developments and new amendments there about which I want to put some remarks on the record.

I am conscious that on this area, we have had a long journey. I remember a debate initiated by the noble Baroness, Lady Kennedy, on supply chains last year. At that time, when I was answering, we did not even have the politics of the Bill in place, so that was an addition. Of course, as is always the case, one goes back and says to colleagues in government, “If you can just do this, I am sure that that will meet the concerns”, and then, after huffing and puffing, we came forward with Part 6. I totally understand that people want to start making amendments and expounding on that. The noble Earl, Lord Sandwich, is saying that these are relatively small elements but we will consider that as we move through.

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Monday 23rd February 2015 Lords Chamber

[Baroness Kennedy of Cradley (Lab)]

My Lords, I add my voice in support of Amendment 16. I will be brief. There is no need for me to repeat the arguments for having a civil remedy in the Bill as this case has been eloquently and well made by the noble Baroness, Lady Young of Hornsey. I just want to emphasise three points. First, we have a duty to give victims of slavery every type of support to help them rebuild their lives. That is why I support this amendment. Effective civil remedies for modern slavery are another tool that we can agree that will help victims gain access to the justice they so rightly deserve. Through our debates in this House we have been increasing and developing the right provisions to support victims of slavery, which has rightly moved up the agenda. Amendment 16 is an essential element of the package of support. Survivors must have the right to pursue civil compensation claims and to recover damages from their abusers for offences carried out against them.

Secondly, like others, I worry that the current civil law is inadequate for the victims of modern slavery. The criteria for existing civil claims which can be brought against perpetrators seem too narrow for slavery victims. Not all victims of modern slavery have been subjected to physical or sexual assault or false imprisonment. The law is highly complex, and the circumstances of each enslavement situation are highly complex. Increasingly there is no physical violence but there is extreme emotional and psychological manipulation. We therefore need civil law to cover all the complexities of a modern-day slavery situation.

Thirdly, and finally, we need to learn the lessons from the US and not repeat its mistakes. As the noble Baroness, Lady Young of Hornsey, mentioned, the US Victims of Trafficking and Violence Protection Act of 2000 did not include a civil liability offence. That was soon recognised as a glaring omission, so in 2003 a federal right of action was introduced for survivors of trafficking. Let it not take us three years to recognise that more needs to be done. The amendment is before us here and now. I hope the Government will take the opportunity before them to respond favourably to this amendment now, or soon through discussions in future.

[Lord Rosser (Lab)]

My Lords, I will be brief. The noble Baroness, Lady Young of Hornsey, has once again made a powerful case in her amendment. We support the principle of a civil remedy for victims of modern slavery against a person who commits an offence against that victim or who benefits financially. As the noble and learned Baroness, Lady Butler-Sloss, said, civil proceedings are likely to be less of an ordeal for victims than the criminal courts and cases will be determined on the lower threshold of balance of probabilities rather than beyond reasonable doubt, which increases the prospect of a successful outcome for the victim.

In Committee, there was some discussion about whether there was already recourse to relevant and appropriate civil law remedies for all victims. There was clearly not unanimity of view on that point. The amendment would clear up any doubt by putting a clause in the Bill providing for civil action and remedies for victims of modern slavery, and if the Government are going to oppose this amendment all the way down the line, they will need to be rather more convincing than they were in Committee in persuading the House that adequate civil remedies are already available and that that view is not open to serious doubt. I hope that the Minister will be able to respond in a helpful way.

--- Later in debate ---

[Lord Alton of Liverpool (CB)]

My Lords, as the noble Lord, Lord Warner, indicated, I am one of those who put my name to the amendment, and I am very happy to add my support to it in a short intervention this evening. Before doing so, I endorse what the noble Lord, Lord Warner, said about the thoughtfulness and thoroughness of both the noble Lord, Lord Bates, and the noble Baroness, Lady Garden of Frognal, in dealing with Members from all sides of the House during the passage of this legislation, whether in the series of meetings organised in your Lordships’ House or in the face-to-face meetings with some of us who participated at the Home Office. We are all grateful to them for that. It is exemplary and it should recommend itself to other Ministers who are keen to facilitate their legislation through Parliament. This, of course, does not mean that we have always been of one mind or that we are necessarily going to agree about Amendment 27 to Clause 40.

The issue is the accountability of the Independent Anti-slavery Commissioner. I suspect that it may be one of those issues where we will not find agreement because it cuts right into lines of accountability through the Home Office. Departmental issues may take precedence over what I think may well be the private views of members of the Government but which they may not be able to voice here this evening.

The amendment of the noble Lord, Lord Warner, is commendable for its clarity. However, as he also indicated, it is a shrewd amendment, not least because it is based on the Children and Families Act 2014. If what we did a year ago was right in that context, surely it is right to follow exactly that precedent here again this evening.

It seems to me that one of the most important things is to recognise that, however good the nature or good will of individual Ministers, they, and even Home Secretaries, come and go. We are in a period where we face a general election. There may be a different set of Ministers—perhaps from the same party or maybe from other parties—in the very near future, so assurances given on the Floor of your Lordships’ House in the course of debate, even though they are given in good faith, cannot carry over in the same way that legislation carries over. Parliament does not come and go, unlike individual Ministers, and that is why it is so important that we place these words on the face of the Bill.

There have been plenty of precedents where uncomfortable, inconvenient and untimely issues have arisen, and departments have endeavoured to shelve them or kick them into the long grass, to suppress them or simply to ignore them. This amendment would prevent that. If we deemed such a provision to be necessary to protect children, surely it is necessary to protect victims of slavery, many of whom will in any case be children.

In a letter to me just a couple of days ago, on 20 February, the Independent Anti-slavery Commissioner, Mr Kevin Hyland, said:

“My independence will be unwavering, whether that be toward law enforcement, government, the private sector or indeed any organisation”.

I repeat:

“My independence will be unwavering”,

in the direction of government, as he specifically states. Either he is independent or he is not, and this amendment gives him the parliamentary access which will guarantee him that unwavering independence. I hope that this evening the Government will indicate either that they will take this matter away and look at it between now and Third Reading or that they will recognise the spirit in which the amendment is being moved by the noble Lord, Lord Warner, and give some guarantees to the effect that he is seeking.

[Lord Rosser]

While the government amendment is welcome in extending the remit of the anti-slavery commissioner and allowing the commissioner to appoint his or her own staff, there are other areas where there still appear to be constraints on the commissioner's independence.

The commissioner must still seek prior approval of strategic plans from the Home Secretary on his or her activities and areas of focus, and annual reports may also be subject to redaction before they are laid before Parliament and published. Apart from the impact on the commissioner’s independence, it is not clear within what timeframe this checking and seeking clearance has to be undertaken in order to avoid the prospect of delays, for example, in the publication of a report or the approval of a plan or programme. The delaying of the publication of reports by the Home Office is an experience apparently not unknown to Mr Vine, the Independent Chief Inspector of Borders and Immigration.

Annual reports from the anti-slavery commissioner may be redacted on the grounds that material may jeopardise the safety of an individual, prejudice an investigation or, in the view of the Secretary of State, be against the interests of national security. Perhaps the Minister could say how frequently it has been necessary to redact reports where the same conditions and criteria as it is proposed to place on the Independent Anti-slavery Commissioner’s reports already apply in relation to comparable commissioners or bodies.

As has been said, following the passing of the Children and Families Act 2014, the Children’s Commissioner can bring any matter to the attention of Parliament. And again, as has already been said, the Explanatory Notes to the 2014 Act state that the commissioner might do this, for example, through annual reports to Parliament or by writing to the chair of a relevant Select Committee. Under the 2014 Act, the Children’s Commissioner must as soon as possible lay a copy of his or her annual report before each House of Parliament.

In his letter of 16 February, the Minister said that,

“the Government’s intention has always been that the Independent Anti-Slavery Commissioner will be independent”.

But it appears that there are varying degrees of independence—or lack of independence, depending on which way one wants to look at it. Perhaps the noble Lord could say whether the Independent Anti-Slavery Commissioner will be in the same position when laying his annual report before each House of Parliament or writing to the chair of a relevant Select Committee as is the Children’s Commissioner under the Children and Families Act 2014—and, if the answer is no, why that should be the case.

[Lord Bates]

The noble Lord, Lord Rosser, put a direct question to me that other noble Lords have asked. It is because the nature of the information often involves serious crime and young children, and there are matters that may not be appropriate. That is something that is applied to other organisations—for example, with Borders and Immigration, with which the Independent Anti-slavery Commissioner shares an office.

I shall make some contextual remarks and thank the noble Lord, Lord Warner, for returning to this issue. He acknowledged that we have been on a journey with this Bill. The word “independent” was not in the Bill when it was in the other place. That was added and then, rightly, your Lordships asked what it actually meant in precise terms and whether the person has the right to appoint their own staff, or whether they should be able to draw them just from within the pool of the Home Office. Then we found out and were able to confirm that he had already been appointing staff from outside in his designate position, and that he had brought in people from NGOs working in this area to assist in this role.

One point that was helpful in the discussion when Kevin Hyland, the designate commissioner, came to speak to Peers, was that, from his own role, he wanted to be closely aligned to the Home Office because he felt that it gave him a certain amount of authority in dealing with modern slavery—not just within the Home Office but across government. We now have a cross-government strategy, which we have published. He felt that that was very important and that the fact of reporting to the Secretary of State at the Home Office would strengthen his ability to get the changes he wanted in engaging with police officers and other agencies. From his own point of view, he saw no contradiction—to pick up the point of the noble Lord, Lord Alton—and he wanted to be unwavering in how he put forward his case and reacted to his role, as he put it in his letter. I emphasise that that came out on 20 February; I do not think that anybody in the Home Office was consulted about it—and, of course, it was absolutely welcome. He wants to build a strong relationship with parliamentarians and to engage in that process.

The idea of any of us who have had the privilege of meeting Kevin Hyland thinking that he would be anybody’s poodle, let alone on a leash, is something that we do not accept. We want to make sure that he has a very serious statutory role to perform, charged by and answerable to the Secretary of State. His task is to ensure that victims are protected and perpetrators prosecuted. Under previous groups, we talked about how that might be done. This is a very good example of how that might be moved forward.

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Lord Rosser Excerpts

Monday 23rd February 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, in speaking in support of the amendment I want to ask the Minister a question. We had a discussion earlier today about the Secretary of State fixing the budget for the commissioner and we had a debate about public bodies being required to co-operate with the commissioner. Is it the Minister’s understanding that the amendment on setting the budget for the commissioner embraces the whole area of overseas travel and maintaining those international relations? Why are embassies not included in the public bodies that are expected to co-operate with the commissioner? It would be helpful to have some clarification on those two issues.

[Lord Rosser (Lab)]

I wait with interest to hear the Government’s reply. They have an amendment which refers to Clause 41(3)(f) and to,

“things that the Commissioner may do in pursuance of subsection (1)”,

which is about encouraging good practice. As it stands, the paragraph says that it may include,

“co-operating with or working jointly with other persons, in the United Kingdom or elsewhere”.

The amendment would make it read “or internationally”. I have no doubt that the Minister intends to do this, but it would be helpful if he could explain the extent to which he feels that his amendment differs in spirit and objective from the one moved by the noble Lord, Lord Alton of Liverpool.

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

My Lords, I am grateful to the noble Lord, Lord Alton, for proposing these amendments and to all noble Lords who have spoken in this debate.

This is yet another area where we have seen considerable progress since Second Reading. The noble Lord, Lord Alton, referred to powerful speeches made by a number of noble Lords at Second Reading, particularly the noble Baroness, Lady Cox, who spoke passionately and persuasively about this issue. That speech was very influential in shaping the Modern Slavery Strategy. A particular element is involved here which I will come back to. I say to the noble Lord, Lord Rosser, that the strategy is helpful in that it is a cross-government strategy. Rather than being domestically focused—clearly, by definition, the Home Office is domestically focused—the strategy reaches across all government departments. Importantly, the Modern Slavery Strategy complements the Bill as it says what the Government will do as a result of the legislation that is passed.

Page 10 of the Modern Slavery Strategy highlights the fact that, as part of Pursue, we will work internationally to,

“improve our own capabilities and cooperation with international partners”.

The work being done in the Santa Marta group is part of that. I pay tribute particularly to the work being done by the Vatican in that respect. On 9 and 10 April last year, the Home Secretary and international law enforcement representatives attended a historic event at the Vatican to discuss how the church and law enforcement could work together to combat modern slavery. At the conference, the Home Secretary announced the creation of the Santa Marta group—a group with senior law enforcement officers from around the world chaired by the Metropolitan Police Commissioner, who will work on joint practical measures to strengthen and co-ordinate our response to tackling modern slavery globally. The Santa Marta group met again in London on 5 and 6 December 2014 and has committed to meet again in Spain later this year. The meeting in December was very successful. I think that it was attended by all the 40 or so country representatives from around the world and reflected the two sides of the operation—the country plans undertaken by DfID and the FCO, which have already been referred to, and the crucial work undertaken by the National Crime Agency in tackling the organised crime dimensions by placing people overseas.

The Modern Slavery Strategy goes on to describe in some detail on page 54 the overseas Protect work in which we are engaged. That is not to suggest that this is a sentiment or gesture comprising words only. In the past 18 months, 14 modern slavery projects have been delivered in seven countries. Does more need to be done? Of course, much more needs to be done. I am trying to paint a picture to show that even when this issue was being subjected to pre-legislative scrutiny, the Santa Marta group was involved in it. We recognise that the international dimension is absolutely critical in tackling this heinous crime, as the noble Baroness, Lady Kennedy, and the noble Lord, Lord Judd, said. We cannot do it alone. We need to have the Pursue and Prevent programmes. The aims of the Prevent programme will clearly be international.

The designate Independent Anti-slavery Commissioner, Kevin Hyland, wrote that he saw international collaboration as being a key part of his operation. I know that he is just about to visit Nigeria and he has been to Spain. All his visits have been facilitated, as one would expect, by the missions in the respective countries. That work is therefore being undertaken.

--- Later in debate ---

Is the Minister willing to at least give an assurance to the House that any regulations made under the Government’s amendment would indeed cover the topics I have identified? Even better, before Third Reading will he consider making the Government’s amendment more specific as to what the regulations will cover, along the lines I have suggested? I hope that the Minister, having moved some way along this road in his journey, would like to take another few steps in this particular area. I beg to move.

[Lord Rosser]

The Government have tabled amendments, to be debated on another day, enabling the Secretary of State to introduce regulations to provide assistance and protection for victims on top of the requirement on the Secretary of State to introduce guidance on identifying and supporting victims. However, as my noble friend Lord Warner has already said, these government amendments do not give any specific guarantees of support and assistance on basic principles of protection and assistance, which would provide appropriate consistency for victims in the way that they are treated within a firm framework; nor do they address the consequences of the national referral mechanism not being on a statutory basis since its introduction. That lack of a statutory basis has contributed to feelings of arbitrariness in the application of the national referral mechanism, which have been compounded by the absence of a formal right to appeal an NRM decision, making the system somewhat unaccountable and potentially unjust.

The Home Office’s NRM review, published late last year, to which my noble friend Lord Warner referred, recognised the issues related to the involvement of United Kingdom Visas and Immigration in the current system and recommended that UKVI be included in the future as a participant in the mechanism rather than as a lead agency. The Government have expressed their commitment to improving the identification of and support for victims of modern slavery and, in the light of their own review, recognised that final decisions about who is a victim cannot be left to UKVI, which has another remit to fulfil, and, whatever the reality, will struggle to be regarded as impartial and open-minded on this issue.

However, further changes are needed. What is being sought in the amendment that my noble friend has moved is not new within the United Kingdom. The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 and the Human Trafficking and Exploitation (Scotland) Bill both contain provisions for support of victims that go beyond what is contained in this Bill. The result could well be, if this Bill is not further amended, that there are significant differences in support and assistance provided to victims across the different nations within the United Kingdom, which is surely not the objective.

The amendment would place the framework of the national referral mechanism in statute, create a statutory duty on the Secretary of State to set out in regulations the arrangements for a system of victim identification and support and provide for a formal right of appeal against any decision made through the system. However, the Government appear to be saying that they are not prepared to go down this road. The argument in the Minister’s recent letter is that, because this is a time of major change in how we identify and support victims, putting the national referral mechanism on a statutory footing now would be unhelpful and mean a loss of flexibility to improve the system. Instead, the Government have put down an amendment which would provide an enabling power for them to make regulations about identifying and supporting victims.

In his recent letter, the Minister said that the Government had tabled such an amendment to provide an enabling power to place the national referral mechanism into statute by regulations, albeit there does not appear to be any specific reference to the referral mechanism in the amendment. However, there is no reason why adopting the provisions of the amendment that has been moved by my noble friend would lead to potential inflexibility developing, although that is something on which the Minister may wish to comment. The argument that regulations are somehow better for establishing something in statute, such as the NRM, because they can be changed without the requirement for further primary legislation could be used in relation to any organisation or process that is being put on a statutory footing and, in so doing, avoid proper discussion and debate with the ability to amend proposals, which would be provided for by including the terms of this amendment in the Bill.

The amendment which my noble friend has moved, unlike the Government’s enabling power amendment, means that the NRM will be placed into statute on the basis set out in it. The current problems of feelings of arbitrariness in the application of the process of the referral mechanism would be addressed and some consistency achieved in improving the identification and support of victims of modern slavery, to which the Government have expressed their commitment. The Government’s amendment, which is still to be discussed, is simply an enabling power. It is not a guarantee and it is not a requirement. I hope that the Minister will be able to give a helpful response to Amendment 47.

[Baroness Hamwee (LD)]

My Lords, I had my name to an amendment moved in Committee by the noble and learned Baroness, Lady Butler-Sloss—I was about to say my noble and learned friend. That amendment is tabled again today and is much simpler: in order to avoid the need for primary legislation, it is for regulations to be made. Like others, I want the national referral mechanism to be on a statutory basis, and I welcome the government amendments which we will debate on Wednesday—although I have one or two questions about them.

I would be worried about including the new clause proposed by the noble Lord, Lord Warner. To establish it now or “as soon as practicable”—I am not sure what that means in a statutory context, but let us say that it is pretty soon; it is not waiting for the end of a trial, as I interpret it—must, as trials of the new procedures proposed by Jeremy Oppenheim are to be undertaken, risk establishing one statutory basis and then changing it by regulation. Some of the language in the amendment seems to me problematic. The noble Lord will correct me if I am wrong, but I do not think that the term,

“trafficked, enslaved or exploited persons”,

is defined in the same way as victims of,

“slavery and human trafficking offences”,

which is what we have in Clause 41, where the general functions of the commissioner are set out.

I have confidence in what we are being told by the Government about moving to a statutory basis. Without trying to analyse every dot and comma, I would worry that there might be hostages to fortune in the new clause which would require primary legislation to change, rather than the opportunity to rely on regulations, which is what the Government propose.

--- Later in debate ---

[Baroness Hamwee]

My Lords, when I read the Hansard of our first debate on this issue, I realised how much I agreed with the noble Baroness, and I agree with her tonight. I am also concerned about applying the reasonable person test to a child for the reasons she gave and because children develop at different stages. To ask a jury, as I suppose would have to be the case, not only to see what a reasonable adult person would do but to take account of the variables of a child’s development makes the test so complicated that it would be inappropriate. That is the sort of word one uses to be polite, is it not? I do not think we should be requiring this of a child. It adds to the complications and is not the direction in which we should be going.

I have been at meetings where I have heard the noble Baroness say to the Minister that we should not be constructing legislation that allows people to say, “I was trafficked, therefore I should be let off doing anything wrong”. She has been very upfront and quite blunt about that, and she is not trying to resile from that attitude here. I support her amendment.

[Lord Rosser]

I shall be very brief. As has been said, the Government’s amendment removes the need for child victims of trafficking or slavery to prove that they did not have a realistic alternative and puts the onus on the prosecution to show that they acted unreasonably. However, as has been said by my noble friend Lady Kennedy, trafficked children will still need to pass a reasonable person test to benefit from the defence, which will, essentially, presumably require an adult juror to decide whether a similar child in similar circumstances would have acted in the same way.

I assume that the Minister will respond to this point anyway, but given the inherent restrictions of the defence in the Government’s amendment to Clause 45 and that it applies only to offences committed as a direct result of trafficking, slavery or servitude, do the Government maintain that it is necessary to ask a potentially traumatised and vulnerable child victim then to pass an additional test of reasonableness and, in effect, show that they have behaved reasonably to achieve legal protection? When the Minister responds, if he feels unable to give a helpful reply—which I hope he will feel able to do—is it the Government’s intention that it is necessary to ask a child victim, potentially traumatised and vulnerable, to have to pass this additional test of reasonableness, given that there is considerable restriction of the defence in the Government’s amendment to Clause 45 in that it applies only to offences committed as a direct result of trafficking, slavery or servitude?

Counter-Terrorism and Security Bill

Lord Rosser Excerpts

Wednesday 4th February 2015 Lords Chamber

[Lord Phillips of Sudbury]

My Lords, I have one more technical question to ask the Minister; I have given him notice of it. His Amendment 14E starts by saying:

“Guidance issued under subsection (1) takes effect on whatever day the Secretary of State appoints”—

so it appears to start by saying that this is solely about the timing of when the guidance should be brought into effect. But the second part of the amendment is technical, stating:

“A statutory instrument containing regulations … may not be made unless”,

it is approved by both Houses.

That seems a very odd way to put the fact that the guidance is to be approved as to content as well as the timing of its coming into effect. It would have been much happier if the provision had said at the start explicitly that not only is the guidance taking effect on the day set out in the regulations, but that the content will be laid before Parliament.

One can erect a technical, logical argument that the content must be included within the timing, so to speak, but as this is so important, I would be most grateful if the Minister can confirm that Amendment 14E as drafted is intended to mean that both Houses of Parliament must affirmatively approve the content as well as the timing of the guidance.

[Lord Rosser (Lab)]

My Lords, I will be brief. We thank the Minister for the meetings we have had with him on the Prevent guidance, and also for his words about the important contribution of my noble friend Lady Smith of Basildon. We also thank the Government for responding positively to the arguments we and other noble Lords have made for the Prevent guidance and any future revisions to be subject to the affirmative procedure. Clearly the guidance will be crucial, and hopefully in drawing up that guidance following the conclusion of the consultation the Government will take full note of the views that have been expressed.

In Committee my noble friend Lady Smith of Basildon asked what action was proposed to counter radicalism, recruitment and grooming online, and said that this did not seem to be catered for in the guidance which at that time was out for consultation. I ask the Minister if this issue of online radicalisation will be covered in the guidance.

Finally, the Government wish to extend the duty to have due regard to the need to prevent people from being drawn into terrorism so that it covers three and four year-olds in nurseries nationwide. Will the Government respond to another question put in Committee by my noble friend Lady Smith of Basildon, by at some stage providing information on how many nurseries, preschool providers and childminders had access to the Prevent guidance consultation document and were aware that they could respond? How many in this group did respond, and in what vein?

[Lord Bates]

My Lords, I am grateful for the wide welcome which the amendments have received from your Lordships. I can well understand that noble Lords want to hear more about the consultation that we had. The consultation finished on Friday, and we are now three working days in. I am blessed not only with a first-class colleague on the Front Bench in my noble friend Lord Ashton, but also with an outstanding Bill team behind me. However, even they might struggle to evaluate the 1,700 responses that have been received thus far in such a short period of time. I also know that there is a slight uneasiness—and quite rightly so—about my pre-empting the consultation outcome, as I did in Committee in relation to the provisions on advance notice of speakers. I probably should not go too much further down that route. However, this again is part of the process and part of the consultation. We will take this debate into account.

The noble Lord, Lord Rosser, asked about online safety. In paragraphs 68 and 69 on page 20 of the consultation document there is a provision which asks people to look at safety online. I also agree that the guidance will be absolutely critical in making sure that we get the right message across. We need to avoid a situation in which people see this as something which they have to fear as clamping down on freedom. They need to see it as good practice in ensuring not only the safety of their campus, but also the safety and security of our wider society. With that, I am happy to move my amendment, and I invite my noble friends not to move Amendment 14F.