Cities and Local Government Devolution Bill [HL]
Lord Warner Excerpts(8 years, 6 months ago)
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Lord Prior of Brampton (Con)
My Lords, I beg to move that the House do agree the Motion on Commons Amendments 45 to 51. I shall speak also to other amendments in the group, including the clause inserted in the Bill following Clause 19 by Amendments 51 and 74.
Your Lordships will remember our debates on the issue of safeguards for the devolution of NHS functions, culminating in the insertion of the amendment from the noble Lord, Lord Warner, at Third Reading, against the Government’s wishes. We have now accepted this amendment and have worked to provide even further assurances. I am grateful to the noble Lord, Lord Warner, for his ongoing co-operation and for his support for the further amendments as introduced in Committee in the other place. These amendments provide further clarity about the role of the Secretary of State for Health and what may and may not be included in any future transfer order giving local organisations devolved responsibility for health services.
The clause as amended also includes clear provision to exclude from the scope of transfers the oversight role of NHS England in relation to CCGs, and makes it clear that local devolution settlements do not change the responsibilities of our NHS regulators or their functions in protecting the interests and safety of patients.
The provision of the noble Lord, Lord Warner, as amended, protects the integrity of the National Health Service and makes it clear that, whatever devolution arrangements might be agreed with a particular area, the Secretary of State’s core duties in relation to the health service will not be altered. These clear statements in legislation, making provision for the protection of the integrity of the National Health Service, are intended to provide further confidence in future devolution deals. The amendments to the clause give further definition and clarity to support the valuable principles behind the amendment of the noble Lord, Lord Warner, and I commend them to the House.
Places such as Greater Manchester and London are calling for the ability to design and deliver better health and care services and the ability to make decisions at a level that works best for their communities, either locally or, where it makes more sense, at a regional or sub-regional level.
As we know, devolution deals must be tailored to the particular needs and circumstances of a local area. The Bill already allows government to devolve a range of powers and functions currently carried out by Whitehall departments or bodies such as NHS England to a combined authority or a local authority. In seeking to introduce Schedule 3A, which amends the NHS Act 2006, we are now taking the opportunity to make available further options in health legislation for combined authorities and local authorities to work together with clinical commissioning groups and NHS England across a wider area, such as Greater Manchester, to improve integration of services.
Crucially, wherever a responsibility for NHS functions is delegated or shared in this way, accountability would remain with the original function holder, whether that is NHS England or a clinical commissioning group. The original function holder would continue to be accountable via the existing mechanisms for oversight which ultimately go up to the Secretary of State. In respect of the arrangements which may be made for the exercise of the Secretary of State’s public health functions, each partner is liable for its own actions and, as with the rest of the health service—both public health and NHS elements—the Secretary of State remains accountable to Parliament.
We are seeking to introduce Amendment 45 to provide that the requirements for local authority consent do not apply to regulations revoking previous transfers of health service functions. Noble Lords will be aware also that Amendment 22, to which the noble Baroness, Lady Williams, has spoken, includes a similar provision whereby consent from a combined authority and local authorities is not needed where an order solely revokes a transfer of public authority health functions.
These amendments mean that, in the event that it becomes appropriate to restore NHS functions in a local area to NHS bodies, this can be achieved without the need for the consent of the combined authority and local authorities concerned. This reflects the fundamental principle for health devolution in Clause 19—that the Secretary of State for Health’s key responsibilities for the NHS will remain unchanged in any devolution arrangements. We would envisage using the powers to revoke only in circumstances where it was clear that duties and standards such as those referenced in Clause 19 were not being met, and that revoking the transfer was the best option to achieve the necessary improvement in performance. I beg to move.
Lord Warner (Non-Afl)
My Lords, I shall speak in a friendly way towards the Minister on his amendments to the amendment that the House was good enough to pass at Third Reading. I cannot guarantee to be quite as friendly towards the Minister on all matters relating to the NHS and social care in future. I suspect that we shall have a good canter around that course on Thursday.
What it shows is that this House has an important scrutiny function to perform. I know that we gave the Minister a pretty hard time on this issue, but the Government rather deserved it. I think that it was very foolish for the Government to bring the Bill to this House with the devolution of NHS functions in it without clarity about how that would work in relation to existing NHS legislation, particularly the 2006 and 2012 Acts. I am glad that the Government have seen the error of their ways and I am extremely grateful to the Minister and his colleague, Alistair Burt, for the considerate way in which they discussed with me this set of amendments.
I am happy to commend them to the House because they meet the concerns that were expressed at an earlier stage, and I accept the points made by the Minister about the need, very occasionally, to revoke some of these changes. I do not accept the advice from the BMA in its guidance that there should be more safeguards. Given the nature of NHS legislation in this country, it is inevitable that where the Secretary of State sees real damage being done in a local area, he has to step in and make some changes. It is almost inevitable that on the odd occasion that will be necessary, so I am quite happy to support the change proposed by the Minister.
This shows the House in a good state in its ability to exercise its scrutiny functions—and, at the time of the Strathclyde report, it does us well to pat ourselves a little bit on the back that we have actually helped the Government improve their legislation.
Lord Beecham
My Lords, Warner Brothers established a remarkable reputation in the field of entertainment. It would be churlish if the noble Lord, who perhaps no longer counts himself as a brother to some of us on these Benches, was not to be congratulated on effecting a substantive change to the Bill that improves it. Members on all sides will want to join the Minister in paying tribute to the noble Lord’s efforts.
As to the rather peculiar route taken by the Government in this matter, I think it became apparent to those of us who attended the meeting chaired by the noble Baroness at which the noble Lord, Lord Prior, was present, together with the silent presence of the Minister for devolution and the northern powerhouse, that at that point there really had been virtually no contact between the relevant departments, notably DCLG and the Department of Health. Clearly matters have improved since then and the House will be grateful to the two Ministers, who I suspect have got together much more effectively than had been possible at that stage. So far as the Opposition are concerned, we welcome the changes that have been made.
But questions still remain, some of which I referred to in my earlier speech in relation to the first group, about the position particularly in what are now county areas, where it is conceivable that certain districts may affiliate to combined authorities in an adjacent area. If, for example, there was a situation where there was a district council in Cheshire rather than a unitary, which joined the combined authority—it may or may not; I have no idea what is happening in the north-west, and no doubt my noble friend Lord Smith will enlighten us—and it affiliated for economic purposes with the combined authority and health was then taken over by that combined authority, what would happen to the social care part of the overall concept of health and social care? I do not think that that question has been resolved. It certainly has not been resolved in my mind, but that may be a defect on my part. It would be good to have some enlightenment about that situation.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 4 months ago)
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Baroness Williams of Crosby (LD)
My Lords, we have had some remarkable contributions to this debate. I certainly do not wish to delay the outcome but I would like to ask two or three questions before we make a decision on the Motion of the noble Lord, Lord Hylton. Before I do so, I pay tribute to the 30 years of his life that the noble Lord has given to the effort to get social justice for this particularly badly treated group in society. I have absolutely no qualification in saying that. Of course, like everyone else, I thank the Minister for his endless persistence in trying to get answers that will satisfy the House.
My questions are very simple. The first is about access. Noble Lords have referred to the extreme risks that domestic workers in difficult situations may face in attempting to access the system we have now begun to establish, including the NRM. We need to make sure that they do have access. I ask the Minister whether access to, for example, the churches or non-governmental organisations can then be passed on by them on behalf of the person who is objecting and concerned. Is that a possibility? I ask this because the trust that overseas domestic workers—for example, Filipinos—have in a church or an NGO might be much greater, sadly, than the trust they might place in the authorities. I am sorry to have to say that, but it has been my experience in talking in particular to Filipino migrants, who are among the most helpful and forthcoming that we have in this country. They have deep concerns—from their own experience back home as much as anything—about whether the authorities will be fair in the way that they treat their complaint.
My second question concerns the issue raised by the noble Lord, Lord Hylton, as well as by the noble Lord, Lord Deben, and others, including my noble friend Lady Hamwee. There is a complete lack of any form of legal aid for this pathetically waged group in society. I am not sure whether they would get any money at all to pursue these issues, which is why it is of such great concern to me that access to employment tribunals and the civil courts is not made available in some form that would enable these people to bring their cases forward. There may be no answer to that, but we cannot pretend to ourselves that passing laws that cannot be implemented because the people they affect do not have the money to do so is a satisfactory outcome.
I have two more questions. The third is about the inquiry. The Minister said that the inquiry would be in July, but my impression is that that is not when it will be concluded, but when it will be started. As we know, an inquiry can be a very long process indeed, particularly when it comes—as this one will—between the end of a Parliament and a general election that will be followed by the creation of an effective Government. Is the Minister telling us that the inquiry will start in July but not giving any indication of when it is likely to be terminated?
Secondly, will the inquiry look not only at the law but at the implementation of the law? It was mentioned in the Commons that there had been 63 cases where exploitation or other forms of slavery were clearly identified. There has been just one prosecution. That reminds me a little of the issues around the banks. It is no good having a law that is not implemented. Perhaps the Minister will be kind enough to say whether the inquiry will be able to look into the issue of implementation as well as at the law itself. This seems to me to be absolutely crucial.
My final point concerns the issue of serious crime associated with, for example, cases of exploitation. I will give an example from my own experience, because I used to lecture on this subject when I was at the Kennedy School in Harvard. One of the most dreadful pieces of evidence I came across was that one of the single largest exports to the Philippines from the Trucial States of Saudi Arabia was that of coffins for those who had been domestic workers. I do not point the finger now; maybe things have changed. However, they were very serious in the past.
My last question is this. If someone who makes a complaint refers to a capital or substantial crime such as rape or assault, could we take that into account in the way that we deal with the issues that are now before us? Will the Minister say how that is dealt with at present, because my impression is that sometimes it is not dealt with at all?
Lord Warner (Lab)
My Lords, a number of noble Lords who served on the Joint Select Committee with me have spoken against the Motion of the noble Lord, Lord Hylton. I will say a couple of words in support of the Motion and of the remarks made by the noble Lord, Lord Alton. First, it is worth remembering that we have known for some time about the problems arising from the changes made in 2012 to the Immigration Rules. The Government have come very late to the party on having a review into this issue. I suggest to noble Lords that they may have—finally—come late to the party only because this House, through its amendments, has put a good deal of pressure upon them to do so.
Secondly, I will draw attention to the key difference between the Motion moved by the noble Lord, Lord Hylton, and that of the Government. Essentially, the Motion moved by the noble Lord, Lord Hylton, whatever its shortcomings, gives a degree of protection as soon as the person comes into the country. The government Motion does not do that. It would seem to be a failure on our part as a scrutinising House if we give up this opportunity to put something into the Bill which will make it better and provide more protection while the review goes on. If the noble Lord, Lord Hylton, chooses to divide the House, I can see no reason why we should not vote in favour of his Motion. It does not in any way stop the Government getting this legislation through.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 5 months ago)
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Lord Warner
Lord Warner (Lab)
My Lords, Amendment 27 is in my name and in those of the noble Lords, Lord Patel and Lord Alton, and the right reverend Prelate the Bishop of Derby. I shall also speak briefly to Amendment 29 in this group, which is in the same names.
I begin by acknowledging the efforts made by the Minister to respond positively to the many points raised in Committee by Members of this House from across the Benches. The House will recall that in Committee there was great concern that the Bill did not go far enough to ensure the independence of the Independent Anti-slavery Commissioner. Simply to call the commissioner “independent” was not sufficient if the Bill did not fully reflect that description. The Government have eventually, after a struggle, recognised those concerns to some extent in their Amendment 28. However, I gently draw the Minister’s attention to the fact that it does not even go as far as the rather modest collective amendment we have put down as Amendment 29.
Unfortunately, there is a somewhat grudging flavour to Amendment 28, which makes me retain my concern about the extent to which the commissioner remains clearly on a leash—even if, admittedly, on a slightly longer one—from the Home Office. That is why I have tried to provide an override provision in Amendment 27, which would enable the commissioner to,
“bring any matter to the attention of either House of Parliament irrespective of other provisions in this Act”.
That means exactly what it says. If the commissioner at any time considers that he or she is being thwarted or nudged away from airing publicly any significant concern that he or she has, he or she can draw upon the provisions in Amendment 27 to access either House of Parliament to ensure that the issue is brought into the public domain.
Lord Warner
My Lords, that was all very interesting. I thought that there was a certain amount of scrabbling around by the Minister at the end when he went into the Sewel convention and letters of consent. He seemed to be struggling to put the old arguments together—and I can see that there has been some burning of the midnight oil in the Home Office to try to scratch together some of these arguments. It was interesting to hear the Minister talk of us going on a journey. It certainly has been a journey; it has been a rather hard slog through a lot of mud to try to get a bit more independence into this person’s role. I agree with him that this has been a journey. However, I have considerable doubts about whether it has been successfully completed.
I am genuinely grateful for all the work that the Minister has put in since the Bill came to the House, and I very much share the views expressed by the noble Lord, Lord Alton. However, that does not alter the fact that we are legislating for the future, not just for now. I have heard nothing in the Minister’s arguments which convinces me that this House should not include in the Bill an ability for this commissioner that is the same as that of the Children’s Commissioner to have direct access to Parliament when the need arises. I say to the Minister—
Lord Bates
The noble Lord claims that he heard nothing, but what does he say to the point about the Sewel convention? It is a serious constitutional point about how this proposal would affect the Scottish Parliament and the Northern Ireland Assembly.
Lord Warner
My Lords, if I may be allowed to finish what I was going to say, it would probably be helpful to the Minister. I am not one simply to reject out of hand some of these constitutional issues. However, we are also concerned about the position in this country—England—as well as the position in Scotland and other parts of the United Kingdom. We have the largest population and we are probably dealing with the largest number of enslaved, exploited and trafficked children. If the Government consider that this amendment needs to be amended between now and Third Reading, they could do so and have negotiations with the Scottish Parliament, the Northern Ireland Assembly and so forth. People have these discussions with other government departments when there is a reasonable period of time in which to do so.
In conclusion, on the basis of what I have heard, I see no reason for not testing the opinion of the House.
Lord Warner
“(4) The Secretary of State shall, within the approved budget—
(a) allow the Commissioner to appoint any staff he considers necessary for assisting him in the exercise of his functions; and(b) ensure that he has such accommodation equipment and facilities as he considers necessary for the exercise of his functions.”
Lord Warner
Briefly, as I am slightly provoked by the comments made by the noble Lord, Lord McColl, on Amendment 28, I was well aware that the commissioner could put people up to ask questions. I did not doubt that. However, it seemed to me that the issue—this is still a shortcoming of Amendment 28—was that Parliament should put beyond peradventure the commissioner’s independence. I am not going to move Amendment 29, but I suggest that it gives the commissioner more independence than the wording of Amendment 28. I am not going to progress this argument any further, but I want to put on record that I am not convinced that we have gone as far as we could have done. In the mean time, I will not move Amendment 29.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 5 months ago)
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Baroness Butler-Sloss (CB)
In the letter from Kevin Hyland, on page 4 on international collaboration, it is clear that the commissioner designate sees it as an essential part of his role to bring together the necessary partners, nationally and internationally. He talks about working with British embassies and high commissions and wanting a significant increase in bilateral, multilateral and joint investigations, some of them supported by EU funding. In the past there have been some excellent bilateral arrangements, particularly one with Romania called Operation Golf, and there were other very good arrangements that worked with Europol and so on. Do the Government think that the current powers of the commissioner are sufficient for him to carry out all the duties that he talks about on page 4—and, if so, is it necessary to have it in primary legislation?
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.
Lord Warner
“Establishment of the National Referral Mechanism
(1) The Secretary of State must as soon as practicable establish by order a National Referral Mechanism (“NRM”) to—
(a) identify trafficked, enslaved or exploited persons within the United Kingdom;(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and(c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support.(2) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a one-year renewable residence permit where a person (including a child) has been determined as having been trafficked, enslaved or exploited.
(3) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.
(4) An adult must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.”
Lord Warner
My Lords, Amendment 47 is in my name and those of the noble Lord, Lord Patel, and the right reverend Prelate the Bishop of Derby. The amendment is an amalgam of the amendments that I and my noble friend Lord Rosser moved in Committee. In essence, the amendment requires the Secretary of State to bring forward regulations to put the national referral mechanism on a proper statutory basis as soon as it is practicable to do so. I recognise that the Home Secretary needs time to redesign the NRM system following Jeremy Oppenheim’s excellent review report on it. I accept that that work needs to be completed, and possibly road tested, before regulations are made. There is nothing in my amendment to stop the Home Secretary giving proper consideration to the Oppenheim report and making sure that a redesigned NRM system is indeed fit for purpose.
Lord Warner
My Lords, I do not want to delay the House at this time of night, but I want to register two points. The first is that the right of appeal is a key issue, and trying to duck out of that, and not being clear that it is actually going to be operated through a statutory system, is, frankly, not credible in this day and age for a sensible public administration.
Secondly, there is an issue, which was brought up in the Joint Select Committee’s report, about the duration of care and support for victims. The 45 days is clearly unsatisfactory, as shown by all the evidence that was given to the Joint Committee. We have to address the issue. I am willing to park the whole issue of residence permits, but we have to be clear about the issue of what is an acceptable level and duration of care and support for victims.
Continuing to duck those two issues—the appeal and the duration of care and support—does not seem to be a satisfactory position. I would like to think further about what the Minister has said. I still think that there may be some scope by looking again at this on Wednesday, if I can whack down an amendment fast enough to deal with those two issues. In the mean time, though, I beg leave to withdraw the amendment.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 7 months ago)
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Lord Warner (Lab)
My Lords, I shall speak to Amendment 93, in my name, which adopts an approach similar to that of my noble friend’s Amendment 86P. I agree with what he said. We both agree that we should put the national referral mechanism on a statutory basis, as the Joint Committee recommended. I need to go over some of the same ground as he did, but there are also some other issues that I want to put into play in trying to convince the Government that a statutory basis is the right basis for the NRM.
Before I make my case, I should briefly explain why I am taking an approach different from that of the noble Lord, Lord McColl, in his Amendment 86M, which we discussed on Monday. I agree with him that Clause 48 is totally unsatisfactory, but I am not sure that it is right to put on the face of the Bill as much detail as there was in his amendment. That is why, in my amendment, I have gone for a set of regulation-making powers on given subjects.
My amendment is intended to give effect to the recommendation in the report by the Joint Committee on the draft Bill that the Bill should be amended,
“to give statutory authority for the NRM to ensure greater consistency in its operation, decision-making and provision of victim support services”.
Those are the critical reasons why this mechanism should be not an internal administrative system but one that has clearly been endorsed by Parliament. Our recommendation is clearly stated and set out in paragraph 82 of the Joint Committee’s report. My amendment would not hamstring the Home Office too much—I shall come back to that later.
Instead of laying out a lot of detail in the Bill, my amendment would enable the Home Secretary to make regulations in six key areas, and includes a provision for the inclusion of,
“such other matters as the Secretary of State considers appropriate to the new body”.
This approach to regulation-making gives the Home Office plenty of discretion for adapting the scheme as circumstances require. It does not fix for all time the role or the precise remit of the NRM. If we put a clause of this nature into the Bill, there will be plenty of flexibility in the regulation-making approach,
The six key areas in my amendment are the very ones identified by the Home Secretary as the subject of the Review of the National Referral Mechanism for Victims of Human Trafficking, as summarised in paragraph 2.1.3 of the report. I have not gone for widening the NRM’s role in any way; my amendment covers the topics that the Home Secretary said the review of the NRM had to cover. When Ministers set up that review, they knew that the Joint Committee would be recommending an NRM with a statutory basis. We came to that conclusion before we drafted the report and we informed the Home Office, so it did know that that was the road that we would traverse. There was plenty of opportunity for the Home Secretary to consider that issue in the context of the review. It is striking that, if we read the review fully, we find that it very much makes the case for putting the NRM on a statutory basis.
One point that I would draw attention to is in subsection (3) of my amendment, which gives effect to another Joint Committee recommendation, in paragraph 91 of its report, that,
“competent authority status be removed from UK Visas and Immigration”.
We saw a conflict of interest between determining immigration and asylum status and determining whether someone was a victim of trafficking. I will not detain the House with the evidence for that recommendation, but it is set out very clearly in paragraphs 84 to 90 of the Joint Committee report. The evidence and this amendment are absolutely consistent with the recommendations of the NRM review report at paragraphs 7.4.1 and 7.4.5. The amendment is drafted to be consistent with the findings of that review.
The Joint Committee heard a huge variety of evidence and arguments in favour of making the NRM a statutory-based mechanism, which were very much the same sets of arguments and evidence that was put before the review. We were told by Anti-Slavery International that the current arrangements,
“led to arbitrariness of application and access for victims”.
Others said that giving victims statutory rights would make claiming and enforcing those rights more straightforward and transparent. We were told that a statutory NRM was necessary for the UK to fulfil its international obligations as well as securing the most effective victim identification process.
Let me briefly illustrate the many concerns about a non-statutory NRM with the case of Ms O, who was a victim of trafficking, covered and cited in detail on page 61 of the Joint Committee report. Ms O was effectively kept in custody for nearly a year, despite the fact that people knew that she was a victim of trafficking. That is an appalling outcome for a person who was identified as a victim of trafficking, and that is what took place under a non-statutory-based NRM. All those issues are very clearly set out in the NRM review, which effectively makes the case, as I said earlier, for a statutory-based NRM.
I have spent much of the time in this Committee arguing for the Home Office Ministers and officials to get off the back of the anti-slavery commissioner and widen his remit. The NRM is a subject where the Home Secretary and her officials need to get more involved and design a statutory-based system that provides much more consistency and better identification and support for victims, has more credibility and speed of independent decision-making and is more fit to work alongside an Independent Anti-slavery Commissioner. I want the Home Office to get more involved, and I hope that in responding to the NRM review it will have a change of heart and commit to putting the NRM on a statutory basis.
I do not expect every “i” to be dotted and “t” to be crossed on this new system before Royal Assent but, before the Bill leaves this House, I hope that we can agree with the Minister the terms of a new clause that gives the Home Secretary regulation-making powers subject to the affirmative resolution procedure.
Finally, I have deliberately described in my new clause a “National Referral Mechanism replacement”. I do not regard the name, “national referral mechanism”, as particularly clear or helpful, and I would hope that we could find a better title, embracing words such as “slavery”, “victims” and “safeguarding”. How about the “Slavery Victims Safeguarding Authority”? Something along those lines would give a true indication of what this mechanism is actually all about. I support the amendment.
Baroness Butler-Sloss (CB)
My Lords, my Amendment 96 is in this group. I start by saying that I entirely support the idea of the previous speakers that we should have a statutory national referral mechanism, although perhaps with more felicitous wording, as the noble Lord, Lord Warner, has just suggested.
My proposal is much more modest. The reason for it is this. At the moment we have a very poor double system. There is the UKHTC in Birmingham, which provides, as we have heard, an 80% yes rate to victims, as opposed to the UKVI, which says that only 20% get through. Clearly, that is unacceptable. We also have two reviews from Jeremy Oppenheim which, in my view, are absolutely excellent. As I understand it, the Government have agreed in principle to the fundamental and radical changes that the second, final review has asked for. However, it seems to me that there needs to be some time for consultation, for arranging to get these panels around the country and for arranging how, in fact, a new, better described NRM should work.
My proposal is that the Secretary of State should have the power to make regulations to establish this statutory committee, leaving it to the Home Office to work it out. However, in order to keep them up to the mark, the Secretary of State must report to Parliament within 12 months of the Bill becoming law, in order to say that they will actually do it. At the end of the day, we undoubtedly need a statutory system. But I believe that we need some leeway to work out how it should be. That is why my amendments, in my view, are very modest.
If I may respectfully say so, it would be very unwise of the Government not to listen to this. We have the two reviews of the NRM and we have what the Joint Committee has said, which has been set out so well by the noble Lord, Lord Warner—of course, I was a member of the committee. I totally support the proposals of our Select Committee and of the two reviews. All I am saying is that the Government should have a bit of time to think it over, but not so much time that the matter goes into what is sometimes called the long grass, because this really has to come. The current situation cannot go on for much longer because it is so patently wrong. That has been set out very clearly in the two reviews of the national referral mechanism.
I hope that, at the least, the Government will accept my amendment. I would have no objection to the Government accepting either of the other amendments that have come forward. However, I have no doubt that, one way or another, within the next 12 to 18 months, we will need to have a statutory mechanism for dealing with victim identification and support.
Lord Warner
Will the Minister take away a broader issue when thinking further about this? The way in which this country has dealt with difficult social problems has often started with administrative responses because that is the fastest way of dealing with a more immediate problem. That is why, in 2009, the previous Government started with an administrative system. But if one looks at the field of health—for example, human fertilisation or human tissue issues—at some point or another, the Government of the day have to get into some kind of statutory system. There are whole sets of issues about public accountability and the transparency of the decision-making, and there is an expectation that Parliament will intervene.
This is nothing to do with getting at the Home Office; it is the way we do business in this country. Perhaps the Minister might go back to his colleagues and talk about this. They should ask themselves: has this work in the area of modern slavery got to that point? I suspect it has. When you see the kinds of criticism of the present administrative system in the report, I think it has got to—or is very close to—the point where there will be a public expectation that the Government of the day, whoever they are, will put this system on a more statutory basis. It would be a shame if we missed the opportunity in this Bill to get the drafting such that we could move quickly to put it on to a statutory basis should, as I suspect will happen, that need arises.
Lord Bates
I am grateful to the noble Lord for making that suggestion. That is exactly what we will do. I undertake to take it away and reflect on it. If we come back, it will be more along the lines that he is talking about, where we will set out some broad general principles rather than being too prescriptive. The luxury that we have is because when it was set up by the previous Government, it was not set up on a statutory footing—it was not all in the legislation—and therefore we have been able to undertake this quite fast-paced process of review and recommendation, which will enable us to move far more quickly to fixing the system along the lines that we all want to see.
Modern Slavery Bill
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Lord Warner
“(1) The Commissioner must encourage best practice in—
(a) the prevention of modern slavery;(b) the identification and protection of victims;(c) the prosecution of perpetrators of modern slavery;(d) the promotion of co-operation and partnerships to meet paragraphs (a) to (c).”
Lord Warner (Lab)
My Lords, I rise to move Amendment 66 and speak to Amendment 68 in this group. I am pleased to see that the noble Lord, Lord Bates, has been in his place for some time. No doubt he will have noted the warm words given to his colleagues from another department about the concessions granted during consideration of the Consumer Rights Bill in this House. I am sure that he will want to be no less able to receive such tributes from us all at the end of this particular Bill.
Amendment 66 would remove subsections (1) and (2) of Clause 41 and replace them with a broader, more ambitious and clearer description of the functions of the anti-slavery commissioner. These changes are more in keeping with the advice in the report of the Joint Committee on the draft Bill, of which I was a member, based on the evidence that we received. We received a very large amount of evidence on this issue, particularly from those rapporteurs and quasi-commissioners in other countries with long experience of working in this sphere.
My Amendment 66 proposes that the wording of the Joint Committee’s own draft Bill, at Clause 33(1) on page 28 of the Joint Committee’s report, should be used in place of the Government’s approach. Amendment 68 elaborates that role internationally and in terms of partnership working. There is a fundamental difference between the Joint Committee’s view of the anti-slavery commissioner’s role and that of the Government. As the Home Office Minister told us rather graphically in oral evidence—captured in paragraph 156 of the committee’s report for those who wish to see it in all its glory—the commissioner was intended to be,
“the person who put the rocket up the law enforcement agencies”.
Thankfully, she did not go into more detail on how that might be done.
The Joint Committee’s approach was to define the role rather less colourfully but more broadly. Based on the evidence from overseas, particularly that from the highly effective Dutch and Finnish national rapporteurs, we saw the commisioner’s role as covering what we called the three Ps of combating modern slavery: prevention, protection and prosecution. To these we added a fourth P: partnership. As we said on page 84 of our report:
“It is essential that the Commissioner is empowered to work with national and international partners and to promote and facilitate domestic and international collaboration on the part of others”.
My Amendment 66 is broadly drawn and enables the commissioner to undertake the four Ps that I have mentioned. My Amendment 68 makes the international dimension explicit and makes clear that the commissioner is not restricted to the enforcement agencies as to where he distributes his “rockets”, to borrow Karen Bradley’s terminology.
I recognise that this more widely drawn role may well not commend itself to Home Office Ministers and officials. However, I would ask them to go back and read, or reread, the evidence given to the Joint Committee from experienced overseas equivalent commissioners. The unanimity of view among those witnesses was astonishing. Perhaps I may give the House a few examples from that evidence specifically on the importance of the role of embracing protection of victims. The US Ambassador-at-Large to Monitor and Combat Trafficking in Persons, Luis CdeBaca, emphasised the indivisibility of protection, prosecution and prevention. The Dutch rapporteur said:
“Protecting victims and prosecuting criminals are two sides of the same coin”.
These witnesses found it strange that we should be going to all the trouble of fashioning a Modern Slavery Bill and then appointing an anti-slavery commissioner with such a narrow remit. The Modern Slavery Bill evidence review has recommended that the commissioner should,
“represent and give a voice to the concerns and best interests of victims and survivors of modern slavery”.
The UN High Commissioner for Refugees concurred.
Despite this evidence, the Home Secretary has chosen to draw the remit narrowly in the present draft of Clause 41. Even though the victims are mentioned in Clause 41(1)(b), it is only in terms of “identification”. There is nothing about their protection in the commissioner’s role, as the Joint Committee clearly recommended in paragraph 160 of its report. As we said there: this,
“is fundamental to achieving the Government’s aim of improved law enforcement”.
If the commissioner is to be given a wider role, as the amendments in this group all propose, he clearly has to have the freedom to decide the priority for his work within the budget available to him and to expect his reports to be available promptly to Parliament. That is why we had what I suggest was the forceful discussion on his independence during our previous Committee day, and why I and others will be challenging the Home Secretary’s control in the next group of amendments. These groups of amendments are all of a piece; they are all about the independence of this commissioner including a wide brief that will enable him to help the country to combat trafficking and exploitation of victims, both here and abroad. The Home Secretary really has to think again on these issues if she wants the kind of world-class Act which she claims will result from this Bill to be a reality. I beg to move.
The Lord Speaker (Baroness D’Souza)
If this amendment is agreed to, Amendments 66A to 67ZAA cannot be called by reason of pre-emption.
Baroness Royall of Blaisdon
In terms of independence, the point was made very forcefully by the noble Lord, Lord Deben, and others, that it is not a matter of personalities. The commissioner-designate is clearly a jolly good chap and all that but this is not about him. This is about the role of the commissioner, how the role is seen by other countries, and the ability of the commissioner to interact with other agencies both here and abroad. Therefore, I ask the noble Lord to address that point. Might it also be possible for him to organise a meeting with the commissioner-designate for all Peers who might be interested?
Lord Warner
When the Minister replies to my noble friend, could he say how what he said about Kevin Hyland’s views squares with Clause 40(4), which makes it very clear—if I understand the English in the Bill—that the Secretary of State is in the driving seat on the staff made available to the commissioner? If I may put this rather unkindly to the Minister, he may be dropping the commissioner who has been appointed somewhat in the cart, in that it may convey to your Lordships’ House that this man actually is a creature of the Home Office rather than the other way round.
Lord Bates
I certainly would not want to do that. I agree that there should be a meeting. I would be very happy to facilitate that meeting, perhaps between conclusion of Committee and Report. My reading of Clause 40(4) is that, as these appointments are within the Home Office and as the Home Secretary has made this a personal passion, then clearly from a procedural point of view there ought to be a sign-off from the Secretary of State to those positions. That would seem eminently sensible in the sense that they are accountable to your Lordships’ House, delivering on the strategy before us.
Lord Warner
I want to press this point with the Minister as we are in Committee. Is he saying then that other commissioners in the Home Office or outside, such as the Children’s Commissioner, get sign-off from the departmental Secretary of State before they appoint people?
Lord Bates
On that point, one of the things I was coming to in my rather conciliatory wind-up at the end—but I will bring it forward if I can—was to say that of course we are open to ensuring that, in the words of the noble and learned Baroness, Lady Butler-Sloss, the words match the deeds. If refinement is necessary to communicate what is happening—namely, that we have an Independent Anti-slavery Commissioner who is appointing his staff, in whom he has confidence, and setting up his operation in a way that he sees fit and will be held accountable for—then we will continue to look at that.
The noble Baroness, Lady Cox, reminded us of the global dimension. Again, that is extremely important and we are mindful that we need to look at ways in which that could be strengthened. In the strategy document—the noble Baroness referred to this element, as did the noble Baroness, Lady Kennedy of Cradley—we have strong sections on page 54, from section 6.9 on, which talk about country plans. I know the point was made that these country plans ought to cover all countries, all high commissions and all embassies. However, with limited resources, we want to make sure that at least those countries that we are all aware must be at the vanguard in stopping the trafficking and tackling the problem are the ones that we direct resources to. I am delighted to see on the Front Bench my noble friend Lady Anelay, who will confirm that we have a number of projects, though the FCO and DfID, working on tackling modern-day slavery in India, Bangladesh and west Africa under the Work in Freedom programme working in partnership with the ILO. Those projects are also working with girls and women in south Asia and in the Middle East in the domestic worker and garment manufacturing sectors. Therefore, those are specific projects that we are doing.
Does more need to be done? Yes. I recognise in particular the noble Baroness’s deep expertise in this area and long track record, as she very kindly gave me a copy of her latest book, This Immoral Trade. I was particularly struck by some of the chapters where she had taken direct verbatim evidence from people who had been victims in South Sudan and Uganda. There were some inspirational stories as well, such as the young man who had gone on to compete in the Olympics, despite having been trafficked as a young boy. Therefore, I am aware of the need for us to go further. I think that that will be something that can be included in the anti-slavery commissioner’s strategy and plan. In fact, we would like to see that enhanced and expanded.
We have also experienced over the past few days the major conference that took place at Lancaster House, addressed by the Home Secretary and the Independent Anti-slavery Commissioner designate. It was attended by 30 countries of the Santa Marta group—a group set up by the Home Secretary with other countries to try and get a more co-ordinated and robust international response. I hope that noble Lords will feel heartened by that. I can also advise noble Lords that, ahead of their next meeting next year, the group of 30 countries working hand in hand in this area, in partnership with the churches, including the Vatican and the Bishops’ Conference, have identified how this can be prosecuted further. They indentified four topics to work on: exploiting technology to tackle the problem; education and raising awareness among professionals, particularly with children; increased engagement with the diplomatic community and embassies; and the fact that new models of exploitation continue to emerge. That is the working task of the Santa Marta group. I would certainly be happy to facilitate a meeting and engagement between that working group of the Santa Marta group and noble Lords with an interest in that area.
Regarding the comments raised by the noble and learned Baroness, Lady Butler-Sloss, about the supply chain, I am getting briefing on that coming through to me, but it may well arrive in time for our next day in Committee on Wednesday, when we will look at the supply chain in more detail under Part 9.
The noble Baroness, Lady Royall, to whom I pay tribute for her long track record in this area, asked about, among other things, the operation of the interdepartmental ministerial group on modern slavery. I can confirm that the Home Office chairs that group and it works closely with the Foreign and Commonwealth Office and DfID, as would be expected. The Ministry of Justice, in which the Victims’ Commissioner my noble friend Lady Newlove is located, the Department for Education, where the Children’s Commissioner is represented, the Department of Health, the Department for Work and Pensions, the Attorney-General and the Department for Business, Innovation and Skills all take part in that cross-departmental group.
My noble friend Lady Hamwee asked for specific information on data sharing. Clause 41(3) sets out a non-exhaustive list, simply giving some examples of what the commissioner may do. The commissioner may already collect statistics if he feels it would be useful to him. Indeed, this is also covered by the express reference to research in Clause 41(3)(c). We are therefore not convinced that we should seek to insist that the commissioner focus on collecting statistics, given that the interdepartmental ministerial group on modern slavery is already formally tasked with reporting on trafficking statistics. Indeed, statistics are also a major element of the Review of the National Referral Mechanism for Victims of Human Trafficking, which has already been referred to. Section 9 highlights “Data and Intelligence” and the changes that should be made there. There are several recommendations on page 58 on data and intelligence gathering. The Home Secretary has already said that she accepts in principle all the recommendations.
The noble Lord, Lord Patel, asked whether the redaction of reports is different for the Children’s Commissioner. The Independent Anti-slavery Commissioner will be able to require law enforcement agencies to provide sensitive information concerning ongoing investigations into modern slavery offences. This may include information on law enforcement criminal investigation capabilities. The redaction powers are there to ensure that matters of important public interest are not inadvertently put at risk. We would not expect the Children’s Commissioner to request sensitive operational material, but this may be an important part of the anti-slavery commissioner’s role. We have therefore included the redaction power in the Bill.
My noble friend Lady Hamwee asked whether this works across the independent reviewer of terrorism legislation. I reassure my noble friend that the independent reviewer of terrorism legislation also has safeguards built into the legislation regarding reports. The Secretary of State must be satisfied that a report will not prejudice criminal proceedings, as set out in Section 36 of the Terrorism Act.
My noble friend also asked about introducing data-sharing protocols. The Home Secretary has agreed in principle all the recommendations in the national referral mechanism review. They included data-sharing protocols.
The noble Baroness, Lady Lister, was probably having another go at trying to get an answer, so I hope that this is a more satisfactory response. The focus of the commissioner is to drive improvements in the operational response to tackle modern slavery. On the ground, the Government expect that in pursuance of this objective there will be significant human rights benefits. However, the Government are confident that it is not necessary to create a national human rights institution like the Equality and Human Rights Commission in order to achieve this goal. I hope that goes somewhere. Perhaps when she reads it in Hansard, it might help. If not, then of course the opportunity to come back is there.
Lord Warner
My Lords, the last part of the Minister’s remarks was, I think, the most helpful. We have heard some extraordinarily powerful speeches this afternoon, particularly from the noble Lords, Lord Patel and Lord Deben. The Minister said he would reflect on those views. The mood of the House is very clear across the Benches that the remit of the anti-slavery commissioner needs to be widened and the shackles of the Home Office need to be loosened in the Bill. I noticed, slightly twitchily, that the Minister talked about the modern slavery strategy almost, on occasion, as a kind of substitute, avoiding memoranda of understanding—devices, I would suggest, for avoiding making some of these changes to the Bill. I think that most noble Lords who spoke this afternoon expect the Minister to come back with some changes in the Bill about the remit of the anti-slavery commissioner. As long as the Minister is clear about that, I am very happy to withdraw my amendment.
Lord Warner
Lord Warner
My Lords, I shall speak also to Amendments 72D, 73B, 74AA, 74CA and 74DA in my name. These amendments are all designed to give the anti-slavery commissioner greater freedom of manoeuvre in dealing with the Home Office and to prevent endless procrastination over the release of reports submitted to the Home Secretary and the Home Office, particularly if they contain what I would call “unacceptable messages”. We have been over this ground in both sets of amendments at some length. This is all of a piece with some of our earlier discussions. We have certainly seen in real life how reports of other independent sources of inspection or advice can—how can I put it?—languish in government department in-trays. Some of these amendments attempt to address real issues.
I accept that my amendments are pale imitations of the more radical amendments moved and discussed by the noble Lord, Lord Patel, in the previous group. I would certainly withdraw some of mine if the Government were moved to accept many of his. That is not bargaining across the Table but a statement of fact; the noble Lord has some very powerful amendments which deliver more effectively than my amendments. I do not always travel hopefully about whether Home Office Ministers in this place are able to deliver changes, so I shall press on with my more limited amendments.
Amendment 72ZZA requires the commissioner to produce a three-year plan, not just a one-year plan. That enables him—sensibly, I think—to plan ahead for a reasonable period of time. Amendment 72B removes the detailed control of the Home Office over the plan, as prescribed in Clause 42(4), (5) and (6). These seem totally superfluous, given that Clause 42(1) already gives the Home Secretary the power of approval over the strategic plan. Why do we need these extra, more detailed control methods, other than to demonstrate what we have said for some time about the Bill: that it too often finds ways of controlling the room for manoeuvre of the anti-slavery commissioner?
Amendment 73B removes the detailed Home Office control over the nature of the commissioner’s annual report by removing Clause 42(9). It is another attempt to loosen the shackles, in the phrase I used earlier. Amendments 74AA, 74CA and 74DA are designed to ensure that Ministers do not delay in laying the commissioner’s annual report before Parliament, the Scottish Parliament and the Northern Ireland Assembly. They all require the annual report to be laid within a month of receipt by the particular Ministers.
These amendments are in the best interest of the commissioner’s independence and safeguard the position of Parliament and the Northern Ireland Assembly. We have to remove some of these controls in order to give the commissioner more freedom of manoeuvre and to ensure that important reports are not delayed in reaching Parliament and public scrutiny. I beg to move.
Baroness Hamwee
My Lords, I have Amendments 73ZA and 74ZA in this group and it would be very odd if I did not agree with the noble Lord, Lord Warner, given the debate we have just had. I do not think that I need to lay it on with a trowel. However, I will use this opportunity to refer to the duties of the independent reviewer of terrorism legislation, because Section 36 of the Terrorism Act 2006, to which my noble friend referred, has a mere six subsections, and that is it—and he gets on with it. I have still not been able to find the constraints on his report, which would take the form of redactions, to which my noble friend referred. However, as I said, I can understand the need for them for the commissioner as well as for the reviewer.
Lord Bates
My Lords, I thank the noble Lord, Lord Warner, and my noble friend Lady Hamwee for tabling their respective amendments. The provisions that we have put in the Bill enable the commissioner to produce strategic plans and to report in a way that will make a real difference to the fight against modern slavery. Those are important and necessary aspects of the role.
Amendment 72D would remove subsections (4) to (6) of Clause 42, which set out what the plan involves. Removing those subsections would weaken the effect and focus of the plan. It is important that the commissioner sets out a clear plan of action for the time period they specify. The commissioner will be best placed, in consultation with the Secretary of State, to determine what should be in the plan and the period of the plan. Removing those subsections would also seriously weaken the constructive and collaborative relationship we want to establish between the Secretary of State and the commissioner, because the amendment would also remove the provision which permits the Secretary of State to propose modifications to the plan for the commissioner’s agreement.
I fully understand the intention behind this amendment and the concern that the independence of the commissioner should be guaranteed. However, I should set out at the start of my contribution why the provisions in the Bill which relate to the plan take the right approach. If the Independent Anti-slavery Commissioner is to make a real difference on the ground, it is important that he should have a constructive relationship with the Secretary of State. In that way, even if the commissioner’s reports are highly independent and very critical, there is a good chance that they will be implemented and make a real difference, not only through the Secretary of State but through the interdepartmental ministerial group.
The provisions in relation to the commissioner’s strategic plan and reports reflect that. It is the commissioner who prepares the strategic plan. He defines his own role: setting out priorities, objectives, areas he will report on and other activities he will undertake. It is the commissioner who decides how long the plan should last, between one and three years. There is then an opportunity to ensure that there is effective collaboration with the Secretary of State and the devolved Administrations through the process set out for the Secretary of State to approve the plan after consultation with the devolved Administrations. That ensures that the commissioner’s work will properly cover the whole of the UK and that it respects devolution settlements. However, the Secretary of State cannot rewrite the plan. She can approve a plan only where any changes are made with the agreement of the commissioner, so the principle of the independence of the commissioner is respected at all times.
Amendment 73B is consequential on Amendment 72D and removes what the annual report must include. Although I appreciate why the noble Lord has tabled such an amendment, it would not help the commissioner to focus on his key priorities. It is important that the plan indicates what the commissioner will do and the report provides an assessment of how the commissioner has undertaken the activities proposed in the plan. That would mean that the report is not structured or focused on tackling the issues that have been collectively identified as priorities.
Amendment 72ZZA seeks to require the commissioner to prepare a three-year plan as soon as reasonably practicable after their appointment. The commissioner can already prepare a three-year plan under the existing provisions. However, the commissioner may wish to draft a plan for a shorter time period, particularly when first in the role, which is why the provisions enable the commissioner to produce a plan that is between one and three years in length. That gives the commissioner the flexibility to decide the period of any plan, based on what he proposes to deliver in that specified time period and having regard for any other relevant factors.
Amendment 73ZA in the name of my noble friend Lady Hamwee seeks to require the commissioner to report on the voluntary sector’s role in relation to providing protection and support for victims and to make recommendations. I have made it clear that the commissioner will set the strategic plan, in consultation with the Secretary of State, and that the plan will be focused on delivering the commissioner’s key aims; namely, to encourage good practice in the prevention, detection, investigation and prosecution of modern slavery offences and the identification of victims.
At this point I join my noble friend in paying tribute to the remarkable work that the charities and NGOs which operate in this area have done over very many years. In many ways this has come to the fore. It has been picked up as an issue by government and is now in the public square. However, long before it arrived there, many of the NGOs and charities to which my noble friend referred had been doing invaluable work in looking after the broken lives that are the result of these crimes.
I firmly believe that the commissioner in setting out his plan will have full regard to the voluntary sector. The noble and learned Baroness, Lady Butler-Sloss, referred to her conversation with Kevin Hyland, who talked about the importance of NGOs and said that he would perhaps draw someone into his senior team who has a significant and respected NGO background to underscore the importance of partnership in that work. I firmly believe that the commissioner should develop his plan first and I am not convinced that it would be helpful to his independence to dictate very specific areas that he should include at this stage.
Amendment 74ZA seeks to require the commissioner to report on the extent to which he has undertaken activity in providing information, education or training. Of course, that is exactly the type of information that we would expect the commissioner to include in any annual report, as well as the other things he may do in pursuance of his functions as set out in Clause 41(3). However, it is not necessary to specify that the commissioner must report on this particular aspect over and above the other things he may do. In addition, we should not stipulate to such an extent the things that the commissioner must report on. That is exactly the type of constraint we are seeking to avoid.
Finally, Amendments 74AA, 74CA and 74DA require the Secretary of State, the Department of Justice in Northern Ireland, and the Scottish Ministers to lay any strategic plan or annual report they receive from the commissioner as soon as reasonably practicable and no later than within one month of receiving it. Again, I fully accept the intention behind these amendments—to get the reports and plans laid quickly—but they are not needed. The pre-legislative scrutiny report raised this concern. The Government responded positively by altering the Bill so that the annual report has to be laid as soon as is reasonably practicable, as was the Government’s intention in any event. In addition, to support the laying of the strategic plans and annual reports produced by the commissioner, we will be developing a memorandum of understanding between the Secretary of State, the Department of Justice in Northern Ireland and Scottish Ministers to ensure that plans and annual reports are laid promptly and simultaneously, following receipt from the commissioner. This is an area on which all the Administrations agree so that Parliaments and legislatures can undertake scrutiny of them.
In responding, I should deal with the point raised by my noble friend Lady Hamwee about Section 36 of the Terrorism Act 2006. With regard to redaction under subsection (5):
“On receiving a report under this section, the Secretary of State must lay a copy of it before Parliament”
as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings. That is the only element there.
With those comments and assurances, and in the spirit in which I dealt with the previous group of amendments—that we remain open to considering all the comments made—I ask the noble Lord to withdraw his amendment.
Lord Warner
My Lords, I accept the emollient way in which the noble Lord has responded. We seem to be making progress. When I tabled these amendments I recognised that they were makeweights to the rather wider, more sweeping amendments that were in the previous two groups. As the noble Lord goes away and reflects, he should look again at the evidence to the Joint Committee from the overseas rapporteurs. It shows a level of trust between the rapporteurs and Parliament and Government that does not require Government to specify in enormous detail, in primary legislation, how people are going to behave. If he looks at that, he will see why I tabled these amendments. In that spirit, I beg leave to withdraw the amendment.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 7 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Warner
“(3) The Secretary of State shall pay remuneration and allowances to the Commissioner, and—
(a) shall before the beginning of each financial year specify a maximum sum which the Commissioner may spend on functions for that year,(b) may permit that to be exceeded for a specified purpose, and(c) shall defray the Commissioner’s expenditure for each financial year subject to paragraphs (a) and (b).(4) The Commissioner may appoint staff and secure accommodation, equipment and other facilities, within the financial limits under subsection (3).”
Lord Warner (Lab)
My Lords, the amendment is in my name and that of the noble Lord, Lord Patel. My concern here is to make a greater reality of the independence of the anti-slavery commissioner by giving the postholder control over choice of staff and accommodation and suchlike within an agreed budget.
I believe that subsections (3) and (4) of Clause 40 give the Secretary of State too much detailed control over the commissioner that will in practice jeopardise their independence and will certainly jeopardise the perception of their independence, which is just as important.
I recognise that on Report in the other place the Government tried to respond to criticism by placing “independent” in front of “anti-slavery commissioner” in the Bill. That is certainly an advance, but it does not go far enough and does not meet the criticisms and recommendations in the report of the Joint Committee on the draft Bill, which are summarised in paragraphs 154 and 155 of that report.
As a member of the Joint Committee, let me briefly remind the Committee of a key passage in those paragraphs, which states:
“The draft Bill does not offer sufficient protection for the Commissioner’s independence in the long term. Failure to do will undermine the Commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups whose role in combating modern slavery is well-recognised”.
That is the central purpose of my amendment: to strengthen trust in the independence of the commissioner, with some specific ways of giving the postholder greater independence.
As the Joint Committee’s report went on to say, the anti-slavery commissioner is being treated less favourably in terms of independence than other comparable commissioners appointed by the Home Secretary: namely, the Independent Reviewer of Terrorism Legislation and the Independent Chief Inspector of Borders and Immigration. A critical part of independence in these posts is the clear right to appoint your own staff, to which I would add the symbolism of not being located in the same building as the government department that appoints you.
Those two issues—independence in selection of staff and premises—are in my amendment. I regard them as critical to conveying to the outside world the independence of the commissioner. That is even more the case if the commissioner’s remit is to be widened beyond the scope of the Home Office—a subject that we shall turn to in the next group of amendments.
My amendment is based on personal experience as a battle-hardened Whitehall warrior; it is not just a theoretical fancy. Let me briefly share with your Lordships my experience as the first chairman of the Youth Justice Board back in 1999, when I had to set it up with a chief executive and a secretary. The board was, in statute, clearly an independent body. However, that did not stop the Home Office encouraging our location within the Home Office, kindly offering us staff and, when we refused that, pushing on with endless reporting and meetings over our independent activities.
Control is in the Home Office DNA—whoever is the Home Secretary and whatever individual Home Secretaries may say. The default setting for the average Home Office civil servant—with due respect to those in the Box—is to protect the Home Secretary, irrespective of whether the Home Secretary needs or even wants protecting. Staff seconded to the commissioner will return to their department, and they will not be welcomed back with open arms if they are deemed to have allowed the commissioner endlessly to flourish attitudes independent of the Home Office on any specific issue. In any case, we put those staff in an impossible position by sending them to a commissioner’s office. They are conflicted: do they look after their future career or do they do what the commissioner wants if he or she wants to strike out independently?
It is this experience that has convinced me to run my own show as Birmingham’s children’s commissioner and politely decline friendly offers of support from DfE officials. I suspect that the newly appointed commissioner will run into trouble at some stage over the staffing issue if we do not give him more freedom to manoeuvre with an amendment similar to mine.
I am very supportive of the other similar amendments in the group. All I would like the Minister to do today is to accept that we have a considerable point and agree to consider with us an amendment which meets the concerns I have expressed. I regard the independent commissioner’s right to appoint their own staff as absolutely crucial to their success. I beg to move.
Baroness Royall of Blaisdon
My Lords, I shall speak to Amendments 65A and 69A in this group, and I of course welcome Amendment 65. I endorse everything that has been said by my battle-hardened friend, who speaks from experience.
We on these Benches are very supportive of the new anti-slavery commissioner, who will undoubtedly play a pivotal role in our fight against modern slavery. Although we acknowledge and are grateful for the good work that numerous central government departments, local government agencies and NGOs do in this area, a main point of contact to co-ordinate and oversee the entirety of the work to tackle modern slavery is invaluable—vital.
The Centre for Social Justice’s report looking into modern slavery in 2013 stated:
“Such diverse activity requires independent oversight and coordination for it to be effective”,
and:
“There is significant need in the UK for the appointment of a single individual to oversee efforts to fight modern slavery in the UK, in light of the disparate national response”.
So we warmly welcome the introduction of this post. As noble Lords will know, Kevin Hyland has already been appointed as the new commissioner. I am sure that this gentleman will do an excellent job and we welcome him to his post. However, I feel that it is a premature appointment; it has been made before this House has even finished its debate on this role and finalised its discussions. It cannot be right that any appointment is made before the job description is finalised. I just do not think that is the correct way to proceed.
At present, we do not feel that the clause as drafted would ensure that the independence of the anti-slavery commissioner is embedded. We thank the Government for introducing “Independent” into the title of the role but the insertion of the word is simply not enough. By merely calling the role independent without providing the structure to make that independence possible, the Government are almost setting the commissioner up to fail by making it virtually impossible for him to meet the expectations created by the title “Independent Anti- slavery Commissioner”. The funds, staff, accommodation and other facilities will still be determined by the Secretary of State, after consultation with the commissioner.
Amendment 65A, which is similar to that in the name of my noble friend Lord Warner and the noble Lord, Lord Patel, would change the wording of the clause to ensure that the Secretary of State may only determine how much money to give the commissioner, without having any involvement in the appointment of the staff or other matters. At Second Reading, the Minister stated:
“The commissioner’s role is set out in a similar way to other commissioners”.—[Official Report, 17/11/14; col. 239.]
However, I beg to differ. Having looked at the Borders Act 2007, we have used the same language and inserted it into our first amendment to enable this anti-slavery commissioner to have the same independence as others in similar roles. That is the same approach taken by the draft committee, which also adopted this wording in its alternative modern slavery Bill. Alongside this, the independent reviewer of terrorism stressed the need for a truly independent commissioner to the draft Bill committee to put it on an equal footing with himself and similar appointments, such as that of the Children’s Commissioner.
Our second amendment, Amendment 69A, is to ensure that the commissioner has full independence with regard to his activities, timetables, priorities, resources and funding. It has been drafted by the Anti-Trafficking Monitoring Group, with the help of respected and experienced barristers and legal experts. Rapporteurs in other European countries, such as the Dutch national rapporteur, all cite their autonomy and independence as being crucial to their role. We absolutely have to ensure that the wording in the Bill reflects the true independence of the commissioner. Although we know that the current Home Secretary visualises a strong and leading role for this commissioner, which is terrific, the same may not be said for any future Home Secretaries or Ministers down the line—and her assurances must be consistent with the language in the Bill. I note what my noble friend said about the Home Office as an institution.
The Independent Police Complaints Commission stressed the importance of the commissioner being able to appoint their own staff and said that the perception of that independence, if not its reality, may be affected by its statutory closeness to the department—in this case, the Home Office. The independent reviewer of terrorism legislation, David Anderson QC, told the committee that roles such as the one performed by his specialist adviser were essential, and that it was consequentially essential that he made the decision about the appointment himself. The Independent Chief Inspector of Borders and Immigration, John Vine, also pointed out the benefits of the commissioner being able to appoint their own staff in that they should be able to advertise for the roles freely and choose from a good mix of skills and applicants.
In written evidence, the Home Office stated that its intention was to have a small team of civil servants supporting the commissioner. If that situation arose, it is all very well to support but we do not want those people to be appointed by the Home Office. Is the Minister able to shed light on how they would be able to work in an independent manner if they were, at the end of the day, accountable as employees to the Home Office? There would seem to be a friction there.
In the Government’s response to the draft committee, they said:
“It would not be effective or efficient for such a role to be supported by an independent human resources function”.
Surely, appropriate assistance could be provided to the commissioner when choosing his own staff, if it were necessary and requested.
Our concerns were also echoed by the Joint Committee on Human Rights, which said that,
“the Commissioner looks very much like a creature of the Home Office, with very little interaction with Parliament”.
Notwithstanding the matters in Clause 41, which we will speak about next week, the Joint Committee also pointed to the inability of the commissioner to appoint their own staff. The committee recommended that the Bill be amended to change this, otherwise the commissioner’s operations would be largely controlled by the Home Office, as I have said before.
Lord Bates
My Lords, this has been an extremely interesting and welcome debate, and I pay tribute to the noble Lord, Lord Warner, for introducing it. He slightly got me on the wrong foot, from my limited experience of the Home Office, when he said that control is in its DNA. Many of us were thinking, “Would that it were so”. It is something that of course is very important, when we are talking about the anti-slavery commissioner. Before coming to the specifics of the amendments, I wonder whether I might note some general principles about where we are coming from. All the way through, I have been very grateful that on all sides of the House there seems to be genuine good will about where the legislation is going and a genuine desire to improve it on its passage.
When we began with the process of the Modern Slavery Bill and of putting in the commissioner, it was a very specific role. It was saying that the problem was that there were far too few prosecutions occurring because there was far too little understanding among victims of their rights of redress and far too little understanding among police, prosecuting authorities and those responsible at local authority level for them to come forward and make sure that victims are protected. That was the reason the role was set out as it was. There was a distinct argument that it was, effectively, for someone—I am searching for a more gentle legal term—to put a rocket behind the individuals on the front line to ensure that we do more to tackle this.
Then, of course, we had the appointment of the Independent Anti-slavery Commissioner designate, Kevin Hyland. He comes with impeccable credentials that were widely recognised at Second Reading when his appointment was announced, subject to the passage of the Bill. We recognised that here was somebody with excellent credentials, both from a law enforcement point of view and also from a victim’s point of view. We then added to that an element that was very clear from the pre-legislative scrutiny. The initial argument for the commissioner was that the Home Secretary wanted to have somebody, basically, who woke up every morning and went to bed every night thinking, “What have we actually done to clamp down on modern-day slavery?”
It then went through pre-legislative scrutiny, which identified that there needed to be a degree of independence in the role. There was a debate about that. There was a very strong belief, to which the noble Baroness, Lady Lister, referred, that the commissioner should have a specific role in relation to victims. Again, those messages were taken on board. As my noble friend Lady Hamwee said, there was also a view that there should be a sense of parliamentary involvement and accountability in this. Therefore, through that process, we designated the anti-slavery commissioner to be independent, in the very name. I accept that it is a name and that that needs to be backed up by action.
There was then the annual report that was going to be laid before Parliament, in accordance with previous legislation on how that is done. That then would give rise to debate, discussion and analysis and I am sure that the Independent Anti-slavery Commissioner will be a frequent visitor to the Select Committees and committees of your Lordships’ House and in another place. So this was very much the direction in which we were going. Where there is, perhaps, a little resistance, it is because we do not want to load this individual, capable through he is, with so many different responsibilities or make his entourage so wide that he loses sight of the fact that he has a very specific and serious task, which is to ensure that he brings more perpetrators of these evil crimes to justice in the courts.
In that context, there are other elements set out in the strategy—for example, that the role would involve working closely with others. It refers to a partnership with the Home Secretary. That is a crucial element. The department to which the police and the border agency are accountable needs to work in partnership with others to tackle this issue. The Modern Slavery Strategy, published last week, states at page 29:
“The Commissioner will also work closely with the Inter-Departmental Ministerial Group (IDMG) on Modern Slavery, whose remit is to oversee and coordinate anti-modern slavery efforts across the UK and bring about important and necessary change at the right level”.
That is a key part of the role. However, I accept that there are specific roles.
I very much wanted the noble and learned Lord, Lord Hope, to talk more about his experiences. I imagine that it would be very interesting to learn more about the setting up of the Supreme Court. I am sure that noble Lords would be very interested to hear about that. However, the noble and learned Lord also talked about the evolving role and said that it took two to three years to establish these things and that there was a sense of finding them out. We have always said from the outset that this Bill is a first step down the road towards tackling this crime which has been identified and therefore we want to make it as strong as possible.
Other commissioners were mentioned. The noble Lord made reference to the Victims’ Commissioner who is located in the Ministry of Justice. The Children’s Commissioner, to whom the noble Baroness referred, is located in the Department for Education, Sanctuary Buildings.
Lord Warner
To put the record straight, I did not mention the Victims’ Commissioner, I mentioned two Home Office commissioners, which was the point of my argument.
Lord Bates
Indeed, I am sorry. It was the noble Lord, Lord Rosser. I am tempting fate here because he will deny all knowledge of that. However, I think there was reference to the Victims’ Commissioner. I am sorry if that was not by the noble Lord, Lord Warner. As I say, the Victims’ Commissioner is located in the Ministry of Justice and the Children’s Commissioner is located in Sanctuary Buildings. That was seen as being helpful. I should say that the anti-slavery commissioner designate is located at present in Globe House. He shares that office—the noble Lord, Lord Warner, did refer to this—with the Chief Inspector of Borders and Immigration. That is where he is physically located at present.
I am grateful to noble Lords for tabling Amendments 65, 65A, 67A, 67B, 67C, 67D, 67E and 69A. The amendments relate to the independent anti-slavery commissioner’s power to appoint his or her own staff and their freedom to report on certain matters. I reassure noble Lords that the commissioner will be absolutely independent. We changed the title of the commissioner to include the word “independent” after debate in Committee in another place to reflect the Government’s commitment to respect the independence of the commissioner. The commissioner will have the freedom and independence to look at the prevention, detection, investigation and prosecution of slavery and trafficking offences and the identification of victims without fear or favour, and make reports which will highlight where improvements can be made. We want to ensure that the commissioner has the authority and autonomy he or she needs to carry out their functions effectively, while at the same time ensuring that their remit is clearly focused. The commissioner’s independence will be respected, just as the Government respect the independence of other similar office holders.
Amendments 65 and 65A would allow the commissioner to appoint his or her own staff and, in the case of Amendment 65, to secure their own accommodation, equipment and other facilities. The Government do not believe that the commissioner needs a statutory power to appoint his or her own staff. The commissioner’s role will be supported by a small team of analytical and support staff, so it would simply not be effective or efficient for such a role to be supported by an independent human resources function. However, we do want the commissioner to have full confidence in his team. Following normal government practice for roles of this nature, we would expect that staff would be recruited from the Civil Service, using Home Office human resources. In line with typical practice, we would expect the commissioner to take part in the selection process to ensure that he or she has confidence in their team.
Similarly, it would simply be inefficient to require the commissioner to find and secure their accommodation and facilities, although of course they will be involved in this process, as was the case with the provision of accommodation for the designate commissioner. We want a commissioner who is focused on catching the perpetrators and identifying more victims, not someone who is more concerned with administrative tasks. The purpose of the Secretary of State providing support to the commissioner is so that their time is free to do the job they have been appointed for—tackling modern slavery and improving the UK’s responses.
Lord Bates
I will come back to a few of the points raised there. I take the point the noble Baroness made about what was intended in the wording on the budget, but none the less, there is an element, in the way that the amendment is currently worded, that would allow the commissioner a degree of independence in the level of the budget that he sets.
We envisage that the staff will be analytical staff. There will be quite a lot of data collection on the number of prosecutions, the number of people going into and coming out of the national referral mechanism, and on the compensation and reparation orders that will go out. There will be quite a lot of data support. While I appreciate the olive branch from the noble and learned Baroness, Lady Butler-Sloss, suggesting a way forward on this, the independent person in this process ultimately is the commissioner himself. The commissioner will not be, by anybody’s standards, a Home Office place-person. He is somebody with genuine credentials and independence. I think that he will make a significant difference to the role, and I am sure that he will have a very clear view of what his role should be.
On the specific point of appointing staff, I am happy to give an undertaking that I will take this away and reflect a little more on it. In saying that, I would not want the Committee to be of the view that we do not envisage that the commissioner will have to have confidence in his team and that he will be part of the recruitment process. When we limit his pool of staff to people from the Home Office—we are not really limiting it; it is quite a large pool of several thousand—I am sure, from my limited experience, that he will be fishing in, and recruiting from, the finest pool of talent in Whitehall. However, I hear what is being said and we will return to this. I totally accept that appearance is very important in these matters.
The noble Baroness, Lady Lister, asked me a specific point about the human rights machinery. The Independent Anti-slavery Commissioner is not a national human rights institution as defined under the Paris principles but, as was felt by the Joint Committee, the commissioner will play a key part in improving our human rights response to tackle modern slavery.
I hope that with those words the noble Lord will feel able to withdraw his amendment, even if he has to come back and fight another day.
Lord Warner
My sympathies are entirely with the Minister in having to read out some of that stuff. It was almost a revelation and confirmed me in my view that Home Office speechwriters are not blessed with a natural perception of the perception of their words. At the end of the day, the real issue is whether the Home Secretary and the Government are willing to live up to the word that they have put in the title of the anti-slavery commissioner, that word being “independent”. Frankly, first, the Minister was erroneous in some of what he said, and I would just like to correct that. Secondly, he really has not dealt with all the remarks that have been made this afternoon. I will make those two points.
My amendment does not say that the commissioner will in any way fix his budget; it makes it absolutely clear that the Home Secretary fixes the budget. Therefore, there is no question of the commissioner running amok and incurring public expenditure willy-nilly because he or she wishes to do so.
On the recruitment system, I thought that we were almost going to get violins playing when the Minister talked about the qualities of the Home Office. I am sure that there are very talented people there, but that is not the point. The point is whether the independent commissioner can go out into the marketplace and recruit people from a wider circle than civil servants—which is where the pool seems to have been set—and bring into that office people, particularly from the NGOs, with real experience of the world that he will be operating in. The Minister did not give any assurances on that.
Lord Bates
I apologise for interrupting the noble Lord. When I talked about budget setting, I should have made it clear that I was specifically referring to the amendment in the same group in the name of the noble Baroness, Lady Royall, which states that the commissioner is able to determine,
“without limitation … the Commissioner’s resources and funding”.
That is what I was referring to. It was not the noble Lord’s amendment but it was in the same group.
Lord Warner
My Lords, I am nothing like as much of a spendthrift as that. I recognise that the Home Secretary will exercise control over that. However, the main point in everything that has been raised this afternoon concerns the ability to recruit your own staff. If there is no give whatever on that by the Government, the Minister must expect us to come back with an amendment on Report. I suspect that we would all be willing to meet the Minister to help him garner the arguments that might persuade his boss to take a different view. If he would like to have a meeting, I am sure that we would co-operate.
The message has to go back to the Home Secretary and Home Office Ministers that we need to see whether we can change the Bill to give some reality to the independence of the anti-slavery commissioner. With that, I beg leave to withdraw the amendment.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 7 months ago)
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Lord Warner (Lab)
My Lords, if I may, for the convenience of the Committee, I will group my Amendment 33 with Amendment 32 as my amendment is meant to help fill the pot that the noble Lord, Lord Alton, wants to distribute. I am sorry that I did not group it at an earlier stage.
My amendment is much less ambitious than the noble Lord’s amendment. It follows on from an amendment that my noble friend Lady Smith moved to the Serious Crime Bill. I was a member of the Joint Committee on the draft Modern Slavery Bill. We were concerned to maximise the confiscation of resources from perpetrators of slavery that could go to help victims much more than had happened in the past. Indeed, the confiscation of criminal assets under SOCA had not been one of the most glorious bits of public administration in this country, as I think was recognised by the Government following a PAC report. Therefore, we need to strengthen this.
I am the first to recognise that the Government went some way towards meeting the recommendations from the Joint Committee in this area and I am very grateful to the Government for moving some way. For example, I am glad that the Government have reduced the legislative requirement for a restraint order from reasonable cause to believe to reasonable suspicion. However, I remain concerned that they have not gone further and accepted the committee’s recommendation to remove the test that there must be a risk of dissipation of assets before action is taken by the prosecutor. Frankly, the advice that the Home Secretary seems to have been getting on this issue is a bit fanciful. The characters we are talking about in this area have a track record of dissipating assets. They move very quickly when it is known that they are going to be charged and prosecuted. I think that hanging on to the idea that they need to be protected from gung-ho prosecutors by actually keeping the intention that they have to show that they will dissipate their assets is rather fanciful. The Government need to look again at that area.
I will not spend very long at this late hour talking about the areas where the Government said they were going to look further at two or three of the other recommendations in paragraph 210 on page 97 of the Joint Committee’s report. Rather than detain the House now, perhaps the Minister could write to us about how things have progressed in those areas that the Government were reviewing further.
What I want to do on this amendment is to persuade the Government that it would be useful to have a consultation to look further at strengthening the arrangements around this very technical area. I understand the difficulties of actually finding technical solutions and I am not someone who is going to try to move complicated technical amendments to the Bill at this late stage in its passage. However, I think the Government need to have another look at this so we can maximise the confiscation of assets to produce the kind of fund that the noble Lord, Lord Alton, is talking about. It is no good having a grand scheme for distribution if there is nothing in the pot to distribute. We have to work a lot harder. The kind of consultation that we are proposing in this amendment is meant to be helpful to the Government so that we can move on and strengthen this area of confiscation to the maximum advantage of victims.
Baroness Butler-Sloss
My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.
Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.
Lord Bates
My Lords, I am grateful for the amendment moved by the noble Lord, Lord Alton, and grouped with the amendment spoken to by the noble Lord, Lord Warner. In many ways it might be easier if I sum up by taking the amendment of the noble Lord, Lord Warner, first, because it feeds into the principle of—if you like—the hopper, which then comes down to the general fund, which is the subject of the amendment of the noble Lord, Lord Alton.
I shall touch on a few things on the way through. The scale of the proceeds gained through this is widely acknowledged: the noble and learned Baroness, Lady Butler-Sloss, mentioned a figure she found on page 38 of the strategy document that we put out. We used a figure from the ILO, which estimates the global proceeds from this activity at about $150 billion. That equates to something like $34,800 per victim. So the amounts concerned—as we have heard all the way through—are very sizeable, and that is the underlying reason why organised criminals are moving increasingly towards the trafficking of human beings, rather than the drugs, guns and other weapons that we have seen in the past. It is because it is lucrative.
That is why we are absolutely determined that their financial resources—there is a financial motivation—ought to be the target of our activities. As my noble friend Lady Hamwee mentioned, this debate reflects a significant debate that we had on the Serious Crime Bill, where we talked about the process for doing this and inserted a legal test for obtaining such an order to be reasonable cause to believe that the alleged offender has benefited from his criminal conduct. The noble Lord, Lord Warner, was good enough to recognise that that was a step forward. There was a general feeling that if one applied for the restraint order or the freeze early in the proceedings, that could in some cases alert the perpetrators to the fact that there was an imminent investigation, and perhaps arrests, and that some of the jointly held assets might cause that to happen. That is not to say that this is our final position but it is something that we looked at very carefully before coming up with the current proposal.
The recovery regime, which has been strengthened in the Serious Crime Bill—your Lordships’ amendments to which are currently under consideration in another place—is aimed very much at increasing the resources recovered from organised crime. The noble Lord, Lord Alton, asked about the amount of funds that had been recovered. I think that in the order of £746 million worth of criminal assets have been seized across all four means of recovery, which is a record amount. We expect that to increase.
Noble Lords may also be interested to note that paragraph 4.32 of the strategy document states:
“Over £2 million has been recovered from slave drivers and traffickers in the past four years”.
Compared with the amount which has been earned, that is a pitiful and woefully low sum, and is why this legislation is before us to strengthen the law and to ensure that more assets are recovered. How is that to be done? I am not sure whether the noble Lord, Lord Warner, was at the Home Office when the Proceeds of Crime Act 2002 was going through.
Lord Bates
The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.
The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.
I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.
I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.
Lord Warner
“Recovering the proceeds of crime: consultation
(1) The Secretary of State shall consult on ways to strengthen and improve the legal framework in relation to the recovery and use of property derived from the proceeds of crime, which are recovered under the provisions of section 7.
(2) A consultation under subsection (1) shall include, but not be limited to—
(a) how to strengthen and improve the effectiveness of restraint and confiscation orders and in particular—(i) whether it should remain a condition of making a restraint order that there is a real risk that the defendant will dissipate his or her assets, and, if so, whether the burden should be reversed to require the defendant to show that he or she will not dissipate his or her assets;(ii) whether the costs recoverable by the defendant when an application for a restraint order is denied should be capped at legal aid rates;(iii) whether to provide the court with the power, when making an order, to require the defendant to disclose any interests, including third party interests, in realisable property;(iv) whether the court, when making an order, should be able to require the defendant to return to the United Kingdom any realisable liquid assets overseas;(b) how to improve the effectiveness of the United Kingdom’s mutual legal assistance arrangement with overseas jurisdiction in cases concerning the proceeds of crime; and(c) how to use the recovered proceeds of crime for the victims of modern slavery.(3) A consultation under subsection (1) shall end no later than 1 April 2015.”
Lord Warner
I wish to say briefly that I would like to withdraw Amendment 33 but want to register the point that the track record of confiscating assets from the proceeds of crime has not been a happy one. I want to keep open, until we have seen the review, whether we come back to the issue of a legal framework being looked at again and give the Home Secretary powers to take action if things do not work out as well as they might have done. I particularly want to consider the points made about civil orders by the noble and learned Baroness, Lady Butler-Sloss. There is a package of issues to which we may have to return on Report. Meanwhile, I beg leave to withdraw the amendment.
Modern Slavery Bill
Lord Warner Excerpts(9 years, 8 months ago)
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Lord Warner (Lab)
My Lords, let me, as the first Labour speaker since my noble friend Lord Cashman’s excellent speech, congratulate him on his maiden speech and commiserate with him on his loss. As someone heavily involved in bringing forward the Human Rights Act 1998, I was pleased to hear his trenchant words of warning about undermining important bulwarks of liberty; long may he continue to chide us, encourage us and speak to us about those bulwarks. I cannot improve on the tributes offered by the noble Lord, Lord Patel, but I have to confess that my own mother was a fanatical supporter of “Coronation Street”, so my filial duty was never to watch “EastEnders” under any circumstances at all.
I approach this Bill as a critical friend who was pleased to serve on the Joint Committee on the draft Bill under the excellent chairmanship of my right honourable friend Frank Field. Modern slavery is one of the great disgraces of our time, and none of us can be comfortable about how it continues to flourish. Our cheap food and clothing too often come at a terrible personal price at the point of their origin. Too often that price is paid by children. The Government are to be congratulated on their commitment to this Bill, particularly in the final legislative programme of a Government. Other people have commented on that well deserved congratulation.
However, as a number of noble Lords have said today, the Bill could still be improved considerably. I suggest to the House that a good starting point in looking at those improvements is the Joint Committee’s report, where there were a large number of well argued, backed-up-by-evidence recommendations which the Government have slightly turned their back on. They need to revisit that report and some of the evidence which led to those recommendations being made, particularly as we go into Committee. If they do not, we will probably bring forward amendments to encourage them further to have a look at some of those arguments again.
I am afraid that I am not as ambivalent as the noble and learned Baroness, Lady Butler-Sloss, on the offence of child exploitation—I rarely take issue with her on these matters—but I am four-square behind the noble Baroness, Lady Doocey. The lack of successful prosecutions of offences involving children does not suggest that the police and CPS have been doing a crackingly good job in this area. We need to try to do something different. The Joint Committee’s report argued that there was a danger in the way that Part 1 is framed, even as amended, of villains slipping through the net. We need to revisit this issue in Committee and have a good look at the arguments again.
Let me turn briefly to the unsatisfactory position on the national referral mechanism. It was a source of great frustration to the committee that the Home Office took so long to establish that review. It is true that what has come out from it is an extremely good and helpful piece of work which we now need to build on, but now that we have got the review’s report and the rather sorry picture that it paints of the NRM’s effectiveness, we need to consider very seriously—and the committee had some discussions on it—whether we put in the Bill some provisions relating to it. Because we need to consider the detail of that review report, we may well not be able to put a lot of detail in the Bill, but there is a strong case for what I inferred from my first read of the report: that we should make the NRM a statutory entity and should not be afraid to give wide powers to the Home Secretary in establishing that body to draw on the evidence from the report in making sure that it works more effectively. The arguments about leaving these matters to administrative practices will not be very reassuring to many stakeholders and will not do enough to safeguard the position of victims. I hope that the Minister will be receptive at a later stage to amendments in this area. It would be helpful to know how the Home Secretary proposes to deal with the review’s report.
I want briefly to flag up four other areas of concern: protection of domestic migrant workers; the remit of the anti-slavery commissioner; issues around the supply chain; and support for victims. On the first of these, it is very simple: the Government should reverse the 2012 changes to the Immigration Rules to restore the previous protections for domestic migrant workers. They can either assure us that they will amend the Immigration Rules, which may cause a bit of discomfort in some quarters, or must be prepared for us to consider amendments to the Bill.
On the second area, it is a missed opportunity to draw the remit of the new commissioner so narrowly. It is a big decision—a big call—to do so. The noble Baroness, Lady Hanham, has rightly made the point that there will be no quick revising regulation. To make the system work better, we should draw the commissioner’s remit very widely and at the same time take another, rather critical look at the remit of the Gangmasters Licensing Authority.
Thirdly, although the Government have moved on the supply chain, we need to check whether it is as far as we need to go. Like my noble friend Lady Kennedy, I was much impressed by the trenchant remarks from Australia and California about how they had gone about securing change in this area.
Finally, we need to think again about whether the Bill provides adequate protection for child victims. We have come some way since the draft Bill was first framed, but we have to consider providing much greater protection for children and much greater support for those who have been victims, and giving them the chance to make full recoveries from their experiences. I was much taken with the remarks of the right reverend Prelate and of the noble Lord, Lord McColl, about privileging victims in this area. I hope that the Government will look sympathetically at some of those issues.
This is an important Bill. We need to spend the time to put it in better shape and to help the Home Secretary achieve her ambition of a world-leading legislative measure to combat the scourge of modern slavery.
Serious Crime Bill [HL]
Lord Warner Excerpts(9 years, 9 months ago)
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Lord Warner (Lab)
My Lords, I support my noble friend’s amendment. I apologise to the House for not being able to participate in the earlier stages of the Bill. I am doing so now mainly as a result of my membership of the Joint Committee on the draft Modern Slavery Bill, which will be coming to this House later in the Session. The Minister may recall that the Joint Committee made a number of recommendations to improve asset recovery, given what I might describe as the lacklustre performance in this area under the 2002 Proceeds of Crime Act, which was heavily criticised by the Public Accounts Committee.
In the Government’s response to the Joint Committee’s report, they said that the regime in the 2002 Act would be strengthened through this Bill and that they would use what they called,
“a range of non-legislative proposals to improve performance”.
They committed to implementing most of the committee’s legislative recommendations through a combination of this Bill and the Modern Slavery Bill. I have some concerns that the Bill before us does not really cut the mustard in terms of protecting proceeds of crime for the benefit of victims under the Modern Slavery Bill. I do not want a situation where, when this House gets to the Modern Slavery Bill, we are told that we have not done all we should under the Serious Crime Bill.
The key issue for the Joint Committee was the ability of the police, prosecutors and the courts to move swiftly to ensure that there were some assets to confiscate on securing a conviction. This means that when the police are about to act, they have to enable prosecutors to go to the court to try to freeze assets, not only to secure proceeds but to prevent those assets being used for criminal purposes. It is far from clear in the Bill how this is to be achieved. Can the Minister point me in the direction of provisions that effectively allow this early intervention to safeguard assets for confiscation? What work has been undertaken on the non-legislative means, especially with the police and prosecutors, to ensure that the previous practices are put to one side and that their behaviour and conduct are changing more in line with the need to confiscate such assets? What confidence can we have, when we come to consider the Modern Slavery Bill, that the Bill before us has been toughened up sufficiently to improve the prospects of securing the proceeds of crime for the benefit of victims?
Can the Minister also explain why he thinks that the government amendment on third party goes far enough to secure control over third-party holdings of criminal assets? Asking people who are sophisticated criminals to provide information about the transfer of assets to them is hardly likely to produce much in the way of assets for victims. Why cannot the police and prosecutors seek restraint on suspicion of asset transfers or shared use at a much earlier stage in the proceedings? I accept that the transfer of assets abroad poses more difficult jurisdictional issues, but should we not be raising this issue while this Bill is before the House, rather than waiting for the Modern Slavery Bill? Many of us who were on the Joint Committee will assuredly be raising these issues if we do not think that the committee’s report has had an adequate response.
To sum up, I suggest that the Bill leaves too many questions unanswered about a more credible system for restraining the disposal of criminal assets before conviction. That is why my noble friend’s amendment is so helpful; I think it helps the Government off a hook. The Home Secretary has made it clear that the Modern Slavery Bill is a flagship Bill for her, so I do not think that she will be desperately pleased if we get to the consideration of that Bill and find that we have blundered over these provisions when we get there.
Baroness Smith of Basildon (Lab)
My Lords, perhaps I should have spoken to my Amendment 4 before the noble Lord, Lord Warner, but I first want to welcome the noble Lord, Lord Bates, to his new position. I know that it is not easy taking over in the middle of a Bill. I congratulate him on the amendments that he has brought forward and on some of the measures mentioned in his comments. I know he listened to the comments that we made in Committee. We spend a lot of time on Home Office matters in your Lordships’ House, and I am sure that we shall spend many happy hours debating this Bill and others.
We debated this issue at some length in Committee because nothing can be more important in this area than ensuring that proceeds of crime legislation is properly enforced. As I said at the time, we support many of the measures in the Bill, but we want to encourage the Government to use this opportunity to make the Bill as effective as it can possibly be. I shall not go into the detail of what we raised and discussed in Committee, other to say that the systems as a whole, including confiscation orders and restraint orders, are not working as well as they should. I think that was the point being made by my noble friend Lord Warner. We are not really recovering enough of criminals’ ill gotten gains. We can do better.
The noble Lord, Lord Bates, will be aware that in Committee my noble friend Lord Rosser and I went into a number of reasons why we feel the system is so ineffective and how it could be improved. These are some of the areas. The evidential threshold for freezing the subjects’ assets is very high and the cost to the CPS can be prohibitive. As we have heard, criminals often move their money overseas. There are those who try to move their money once they know that they are under investigation, and there are sophisticated criminals working here who have complex labyrinths of companies and transactions to try to hide the money. Moreover, confiscation orders are often an afterthought and the penalties for non-payments are not enough of a deterrent. Recoverable assets, including the third-party interests, are not identified early enough. There is a lack of leadership and strong incentives for the agencies involved in applying for and enforcing confiscation orders and, as we have heard, it is incredibly difficult to recover assets from overseas.
At the time, we tabled a number of amendments to address those specific areas. They were probing amendments, as we wanted to try to stimulate the debate and make some progress but also to prioritise those issues on which we felt serious progress could be made in the Bill. I say to the noble Lord, Lord Bates, that at the time I was disappointed by the answers from the noble Lord, Lord Taylor, as the then Minister. I felt that he was not really willing to engage to find ways to improve the Bill. I am delighted by the noble Lord’s comments today that I was at least partially wrong—if not entirely, unfortunately—because the Government have considered one of our amendments and I am pleased to see some amendments put down before us today.
At this stage of the Bill, we did not want to retable a whole raft of amendments that we felt could be helpful but there is still an opportunity to improve matters here. We could do better than what we have here and there is an opportunity to consider further some of the points we raised in Committee. Our amendment is a single amendment, which asks for a wider consultation to be undertaken on a number of ways in which we can improve the system as a whole. We have taken advice on this and spoken to those who are practitioners, have been involved and have given advice. There are things we could do better to really make a difference, so while we support many of the measures here and appreciate the amendment, we could be more effective. The fact that the Government have already taken on some of our suggestions indicates that room for progress remains.
I shall not go into detail on those matters that we have discussed previously but I want to focus on three areas that we think the consultation could take note of and improve. The first is the importance of early disclosure of third-party interests. The value of the money that is eventually confiscated is eroded when people other than the defendant crop up and say, “Actually, that property being confiscated is mine, or partly mine, and not the defendant’s”. Sometimes that will be genuine; equally, it is not unknown for it to be a ploy drummed up by the defendant. The practitioners have told us that this happens because the confiscation process is so lengthy and strung out that it ends up giving criminals plenty of time to be inventive in looking at ways to drum up bogus claims. It is very quick to tell the truth but it takes much longer to be imaginative.
At the moment, third-party claims are not addressed at the confiscation stage in the Crown Court. They get heard afterwards, at a different stage, in the High Court. The Bill seeks to address this by ending the split jurisdiction between the Crown and High Courts. Under the Bill, third-party claims will be determined by the Crown Court at confiscation stage. Clauses 1 to 4 introduce requirements for prosecutors to set out any known details of third-party interests in the statement of information that they provide to the court and for the defendant to detail any known third-party claims in response to the prosecutor’s statement. The court then has the power to determine the extent of any third-party interests in the defendant’s property, prior to making the confiscation order. It is good that that determination will be binding but we went further in our amendments in Committee, one of which suggested giving the court the power to order the defendant to provide information at any time under an order and details of any third-party interests in property.
The Government took that on board and we welcome the amendment the Minister has spoken to. Where a third party unreasonably fails to comply with the order, the court will be able to draw the appropriate inference. In our amendment we suggested a specific time delay of 21 days, but there is no time in the government amendment. What would be the time period here before the court can draw any inference from not providing that information? Will it be set out in secondary legislation or by order, and will they also have to notify the prosecutor of any change in circumstances—which is something we also suggested at the time.
I also assume that there will not be a reciprocal duty on the prosecutor and that the details of the investigation will not have to be disclosed to the defendant, but it would be helpful if that could be confirmed or if the Minister could tell me if I have misunderstood and if that is incorrect.
I also want to check whether the Minister has given any further thought to providing such a power to the court at the restraint stage. When I spoke in Committee, I quoted the impact assessment, which said:
“In many cases third party claims are made at a relatively late stage in proceedings and are deliberately used to frustrate confiscation investigations”.
In Committee, the noble Lord, Lord Taylor, said that it was not appropriate to bring the determination of third-party interests back to restraint stage. The reason he gave was that not all defendants were made subject to a restraint order and not all restraint orders lead to confiscation orders. That is an entirely valid point and we accept that. That is why it would be helpful for the further consultation that we are proposing to work through those points—which are important, crucial and very valid—to make sure that assets are not dissipated before we are even able to do anything about it.
The second point made in Committee which could make a lot of difference is the costs to the CPS of seeking to obtain a restraint order. One of the issues raised with us by practitioners is that when an application is unsuccessful, the prosecution is liable for the legal costs of the defendant. The CPS is undergoing cuts of 27% to its budget over the course of this Parliament. Obviously prosecutors want to minimise any risk of what could be an expensive failure. In Committee, the noble Lord, Lord Taylor, told us that it would not apply in most cases because the orders are obtained ex parte. That is correct, but we have looked into this further and, of course, not all orders are obtained ex parte. If an order is obtained ex parte, it is more likely to be appealed and significant costs can be racked up on appeal.
The amendments that we tabled in Committee suggested that defendants should be able to recover costs at legal aid rates only when an application requires an individual who has succeeded in setting aside a restraint order to pay his or her own costs. But if the alternative is to put the cost risk on to the prosecutor, there will be an inevitable dampening effect on the appetite for large-scale restraining orders, which is clearly not in the public interest. If I recall correctly, the noble Lord, Lord Taylor, said in Committee that the Government would look into this and draw it to the attention of the Ministry of Justice. Has there been any further thinking on this issue? What was the response from the Ministry of Justice?
The third point concerning deficiencies in the system is that we seek further consideration on the enforcement of orders against assets located abroad. This is perhaps one of the most important issues in the whole proceeds of crime debate. Practitioners tell us that this is one of the key problems that they face. Criminals hide their ill-gotten gains overseas. In an FOI response to the shadow Attorney-General’s office, the Serious Fraud Office revealed that £37 million of its £106 million of unpaid confiscation orders is thought to be located overseas.
Criminals are pretty savvy. When they have substantial assets, they often seek to put them where the UK authorities are least likely, and will find it hardest, to recover them. That usually means a jurisdiction with which the UK has no standing mutual co-operation agreements. Even where that is not the case, without mutual recognition of confiscation orders in the jurisdiction where the assets have been hidden, those charged with enforcing the orders effectively have to relitigate the issue abroad. It is hard, it is slow and it is not very effective. There are countries that want to co-operate with us to return criminal assets, but the process by which they would have to do so is quite difficult and drawn out, and they may not have much experience or expertise in doing so.
There is an example on page 5 of the fact sheet that is quite useful in illustrating that. So we have included in the consultation proposal a legal obligation to repatriate liquid assets subject to a restraint or confiscation order that have been removed overseas. When we tabled this in Committee, the noble Lord, Lord Taylor, said that the Proceeds of Crime Act already allows the court to make any order that it believes is appropriate for the purpose of ensuring that the restraint order is effective. But it is not being effective; time and again the issue is the ability to enforce any order.
Lord Warner
My Lords, before the Minister sits down, I have a question for him about his answer to me on restraint orders and third parties, which left me extremely puzzled. If he does not have the answer today, perhaps he could write to me. As I understood what he said—and I do not, in any way, disagree with it—restraint orders may well be taken certainly before someone is charged and possibly before they are arrested, because the investigation may give the police and the prosecution reason to believe that the people have considerable assets which may disappear at the point of arrest. However, as I understood him, he then said that it made no sense to make that restraint order deal with dissipation of assets to a third party. If the person does not know that the restraint order has been taken out because they have not been arrested or charged, what is to stop the courts including a provision about dissipation of assets which the person may have or subsequently engage in dissipation of? If the chap or woman does not know they have actually got a restraint order on them, I cannot see at the moment why it should not be drawn more widely to cover dissipation at the point when restraint is introduced. However, the Minister seemed to be saying that was not possible. If I have got it wrong, he can answer me now; if I have not, could he explain what the Home Office lore is on why that does not make sense?
Lord Bates
I will, of course, take very seriously what the noble Lord said. I do not think that was exactly what I said, but I will check the record and clarify it if necessary. The point I was making was that if it was necessary to identify third-party interests at the restraint stage, which Amendment 4 seeks to do, that might alert people who are not unconnected to the person of interest that an investigation is under way. This might damage the prospects of bringing a successful prosecution. I was seeking to make a point of argument rather than a point of law or lore. However, I will read the record and clarify this, if need be, for the noble Lord.