Nationality and Borders Bill

Baroness Butler-Sloss Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

[Baroness Butler-Sloss (CB)]

I recognise the concerns that adults should not be able to be treated as children—that is a serious matter. None the less, I support not Amendment 64 but Amendment 64A for the following reason, in addition to what the noble Baronesses, Lady Neuberger and Lady Lister, said.

Thanks to Safe Passage I had the opportunity to visit one of its children’s homes, where there were a number of young asylum seekers from Afghanistan. I talked to a group of half a dozen of them. All of them, aged 16, had moustaches, and several had incipient beards. To anyone who did not know that those from other countries are more advanced physically than those from this country, who are much less likely to have moustaches or beards at 16, they would automatically look like adults and would be treated as such. Safe Passage was absolutely certain that they were only 16 and it had a lot of evidence to support that. I am extremely concerned that the amendment of the noble Lord, Lord Green, together with the existing clause in the Bill, will in fact treat young people like those Afghan 16 year-olds as though they are adults.

[The Lord Bishop of Durham]

My Lords, I support Amendment 64A, in the name of the noble Baroness, Lady Neuberger, to which I have added my name. I declare my interests in relation to both RAMP and Reset as set out in the register. I am very grateful to the noble Baronesses, Lady Neuberger and Lady Lister, and the noble and learned Baroness, Lady Butler-Sloss, for outlining all the arguments for why this amendment is the right route to take. On Amendment 64, I hear the words about safeguarding but it is a dangerous route to take.

The needs of children have been starkly left unaddressed in so many areas of the Bill. The policies proposed to determine the age of the child are particularly concerning. The child and their best interests, rather than deterrence, must be the starting point in designing these policies. I support the amendment because it is imperative that such assessments are up to standard and based on scientific evidence. We should be seeing help for local authorities to improve their practice through multiagency working so that social workers conduct these assessments and that they are better supported with appropriate funding and training. Making the process stricter will lead to more children being treated as adults. This is extremely concerning given that they will then be placed alone in adult accommodation, with no support or safeguarding.

We have been assured that they will have the recourse of appeal at the tribunal. However, as we are hearing in other debates, the focus of the Home Office must be to get decisions right correctly at the first instance in a timely manner. We should not be introducing policies which will add to backlogs and lead to lengthy appeals. Our tribunal system does not need this, and neither do the children. I simply support this amendment, which sets out what an expert and fair age assessment should look like from the expertise of a coalition of more than 60 organisations, all of them professional, in this field.

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In saying those words, I commend to the House Amendments 67 and 68.

[Baroness Butler-Sloss (CB)]

My Lords, I declare my interests, which include being a vice-chairman of the Human Trafficking Foundation.

I would like first to thank the Minister, the noble Lord, Lord Wolfson, for including me in the letter to the noble Lord, Lord Randall. Very unfortunately, the noble Lord, Lord Randall, has just tested positive for Covid, as a result of which I shall move Amendment 68A at the appropriate point on his behalf, as my name is down.

I would like to start by asking two questions of the Government. First, why do the Government, as they have for years and years, always see victims of modern slavery through the lens of immigration? It is extremely sad. In the years I have been in this House, I have fought against this, as many other noble Lords have, with absolutely no success. It remains not only in the Home Office but absolutely wedded to issues of immigration. No more stark an example of that could be seen than Part 5 of this Bill.

Secondly, why not listen to the whole modern slavery sector, opposed to the whole of Part 5, including, as we have already heard, the Salvation Army, the anti-slavery commissioner, the United Nations rapporteur and, perhaps most interestingly, Caroline Haughey QC, who has been advising the Government for many years on issues of modern slavery? The Government seem unable or unwilling to listen to a sector that knows what it is talking about. It really is extremely sad. The sector has been telling the Government this from the moment that the Bill came on the stocks.

I am also very concerned about the impact of Clauses 58 and 62, particularly in relation to the statutory guidance issued on modern slavery last month—in Committee, I read passages, which of course I will not do on Report. Throughout that statutory guidance, it is clear that those who will be dealing with potential victims of modern slavery will have to bear in mind the trauma of what they have gone through. Very careful advice is given, and particularly helpful parts are at pages 102 and 106, under Annex D, that set out the difficulties that victims of trauma have in giving appropriate and truthful answers at the very beginning. Then, for goodness’ sake, one looks at Clauses 58 and 62 and sees that, if information is not given quickly, you are seen as someone who is not reliable and likely not to be a genuine victim. It is utterly contrary to the Home Office’s own statutory guidance.

I find this absolutely astonishing, because, as all of us who have any interest in or knowledge of this area will know, it is very difficult for victims of trauma, in whatever situation, including modern slavery and human trafficking, to come clean about what really happened to them at an early stage. My goodness, Members of your Lordships’ House have now heard about this over a number of years on various Acts of Parliament. This part of Part 5 will do irreparable damage to those sort of people, who are the majority.

I turn now to children. I vividly remember talking to a Minister in this Chamber—it was probably the noble Baroness, Lady Williams—when I suggested that it was wrong for children to go through the NRM. The Minister agreed that children should not go through the NRM. Part III of the Children Act 1989 places an obligation on local authorities to take children into voluntary care when they come to their area and need help. Most children generally go through this process. The local authorities look after these children and the Modern Slavery Act has provided what we now informally call “guardians”. That is the right process.

Amendment 70ZA should not be necessary. The noble Lord, Lord Coaker, quite rightly tabled it because the Government refuse to exclude children from Clauses 58 and 62, but they should not be in Part 5 at all because children, from whichever country, should be dealt with through the care service. I find it very sad that the Minister did not say in Committee, or indeed in the letter to the noble Lord, Lord Randall, which I have been able to read, that these children will not go through the NRM. He assumes that they will and they will have to be dealt with like adults. Other noble Lords have spoken about that, so I will not repeat it.

Amendment 68A is intended to do what Clause 62 requires but without being as vicious. It would ameliorate the clause and it certainly deserves to be supported, but I also support the other amendments in the group.

[Baroness Meacher (CB)]

My Lords, I have written a short speech but I will not deliver it in view of the time pressure. I have put my name to Amendments 65 and 66. I feel very strongly that Clauses 57 and 58 show a complete lack of any understanding about the impact of trauma. Three members of my family went through a terrible trauma 10 years ago. It is only now, 10 years later, in the safe context of trauma therapy, that each of them has been able to talk at length about what they went through. The idea that traumatised people—children or adults—are expected to talk to a complete stranger early on in the process about what they have been through is terrifying. They will not be able to do it. I ask the Minister to please listen in particular to the noble and learned Baroness, Lady Butler-Sloss, who really understands these things—I understand it on a personal level—the noble Lord, Lord Coaker, and others, and remove the whole of Part 5. I support all the amendments in the group. Noble Lords will be glad to know that I will certainly not talk to them, but I leave that request pleading, if you like, with the Minister.

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[Baroness Butler-Sloss (CB)]

I am sorry to interrupt but will the Minister deal with why children are going through the NRM? The Home Office, through the Minister, told me that the NRM was not suitable for children, who should be dealt with under the Children Act.

[Lord Wolfson of Tredegar (Con)]

I do not think I am saying anything inconsistent. I am saying that, for the reasons I have set out—I was just starting on the point and hope I will be able to develop it—we do not want to create a two-tier system. Of course, we recognise the vulnerabilities of children. The modern slavery statutory guidance, which I think the noble and learned Baroness referred to, provides for the specific vulnerabilities of children. This clause does not change that. It is also right that our domestic legislation should align with our international obligations, and that includes ECAT. Children get protection from the NRM because they are recognised as victims of modern slavery; that is why they get protection.

On Amendments 67 and 68, I want to reassure noble Lords that we are currently working with stakeholders and operational partners to develop the guidance in a way that is clear for decision-makers and victims. The reasonable grounds threshold is, and will remain, low, as intended by ECAT, to identify potential victims. The House will forgive me, but we need to be clear about this: ECAT sets out that signatories have certain duties when there are reasonable grounds to believe that a person has been a victim or “is a victim” of modern slavery or human trafficking. The right reverend Prelate the Bishop of St Albans raised concerns that Clause 59 was raising the threshold. Respectfully, it is not. Clause 59 aligns the Modern Slavery Act 2015 with ECAT, but it is already the language used in the modern slavery statutory guidance for England and Wales, under Section 49 of that Act.

Indeed—I have it on my iPad—paragraph 14.50 of the guidance sets out the test of

“whether the statement …‘I suspect but cannot prove’ the person is a victim of modern slavery … is true ... or whether a reasonable person having regard to the information in the mind of the decision maker would think there are Reasonable Grounds to believe the individual is a victim of modern slavery”.

So, in the guidance, the two tests are each used; we are not raising the test at all but aligning it. Nothing will change in practice; we are aligning our domestic legislation to our international obligations. The guidance also uses the phrase “suspect but cannot prove” as part of the test. Both phrases that I have read out are used in the guidance as being indicative of when the threshold is met. We are not raising the threshold and have no intention of doing so, but it is right that we keep setting that out in guidance and not in primary legislation.

Turning to Amendment 70, I thank my noble friend Lord McColl of Dulwich for his continued engagement. We are of course committed to providing support to victims of modern slavery but we believe that this should be provided on a needs basis. We are committed to maintaining our international obligations under ECAT, and this Bill confirms that, where necessary, support and protections are provided from a positive reasonable grounds decision up to the conclusive grounds decision. Indeed, there is a five-year contract, currently valued at over £300 million, which demonstrates that commitment. Importantly, however, support for victims, including safehouse accommodation, financial support and access to a support worker are already available based on need. There is no time limit for that support.

Each individual victim will have different needs. The amendment, however, removes any needs-based assessment and treats all 12,727 victims who entered the NRM in 2021 as being one of a kind, assuming that they will all need the same level of support. We committed in the other place to providing, where necessary, appropriate and tailored support for a minimum of 12 months to all those who receive a “positive conclusive grounds decision”, and I have just repeated that here.

Finally, Amendment 70 would also reduce clarity, because it refers to assisting the individual in their personal situation. There is no definition of “personal situation” within ECAT, and Clause 64 addresses this issue by setting out circumstances where leave will be granted to confirmed victims. However, Amendment 70 requires no link to the relevant exploitation, which means that a victim could be granted leave to pursue an entirely unrelated compensation claim or assist with an unrelated investigation, and that is not what ECAT was all about.

Before I sit down, I should respond to the noble Lord, Lord Alton of Liverpool, and the right reverend Prelate the Bishop of Durham, as well as the noble and learned Baroness, Lady Butler-Sloss, who all mentioned guidance in one form or another. I can confirm that officials would be very pleased to engage on the development of the guidance, to which I have referred on a number of occasions. It will be published over the coming months, but we welcome that engagement. I also assure them and the rest of the House that we will bring forward modern slavery legislation as soon as parliamentary time allows.

I apologise for the length of my response, but there were a number of amendments in this group. For the reasons I have set out, I invite noble Lords not to press their amendments.

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Moved by

[Baroness Butler-Sloss]

68A: Clause 62, leave out Clause 62 and insert the following new Clause—
“Identified potential victims etc: disqualification from protection
(1) This section applies to the construction and application of Article 13 of the Trafficking Convention.(2) A competent authority may determine that it is not bound to observe the minimum recovery period under section 60 of this Act in respect of a person in relation to whom a positive reasonable grounds decision has been made if the authority is satisfied that it is prevented from doing so—(a) as a result of an immediate, genuine, present and serious threat to public order, or(b) because the person is claiming to be a victim of modern slavery improperly.(3) Any determination made under subsection (2) must only be made—(a) in exceptional circumstances,(b) where necessary and proportionate to the threat posed, and(c) following an assessment of all the circumstances of the case.(4) A determination made under subsection (2) must not be made where it would breach—(a) a person’s rights under the European Convention on Human Rights,(b) the United Kingdom’s obligations under the Trafficking Convention, or(c) the United Kingdom’s obligations under the Refugee Convention.(5) For the purposes of a determination under subsection (2)(b) victim status is being claimed improperly if the person knowingly and dishonestly makes a false statement without good reason, and intends by making the false statement to make a gain for themselves.(6) A good reason for making a false statement includes, but is not limited to, circumstance where—(a) the false statement is attributable to the person being or having been a victim of modern slavery, or(b) any means of trafficking were used to compel the person into making a false statement.(7) This section does not apply where the person is under 18 years at the time of the referral.(8) Nothing in this section affects the application of section 60(2).”Member’s explanatory statement
This new Clause is an alternative to clause 62. It ensures that the power currently provided for in Clause 62 is exercised in line with the UK’s obligations under Article 13 of the Trafficking Convention. This amendment also protects child victims of modern slavery from disqualification from protection.

[Baroness Butler-Sloss (CB)]

On behalf of the noble Lord, Lord Randall, I should like to test the opinion of the House.