Modern Slavery Bill

Baroness Garden of Frognal Excerpts

Wednesday 3rd December 2014 Lords Chamber

[Lord Rosser]

The noble Baroness, Lady Hamwee, and my noble friend Lady Lister have made reference to the views of the Joint Committee. Of course, reference has been made also to the fact that similar amendments were discussed in the other place. As we know, the response of the Minister in the other place was that, although the orders would be obtained through civil proceedings, the Government accepted that the threshold would be akin to the criminal standard of satisfied beyond reasonable doubt, in line with relevant case law. The Minister in the other place went on to express the view that since the relevant clauses in the Bill already met the evidential threshold that appeared to be being sought in the amendments that were discussed in the other place, the amendments were not needed.

Naturally, I am assuming that the reply that we are going to get from the Minister will be in line with the response that was given by the Minister in the other place, but I hope that the Minister will respond also to the point that has been made about why there is a reluctance to put this on the face of the Bill so that there is no doubt at all about it.

[Baroness Garden of Frognal (LD)]

My Lords, I thank noble Lords for speaking to this amendment and my noble friend Lady Hamwee for tabling it. It gives me the opportunity to explain the Government’s approach to safeguards in slavery and trafficking prevention and risk orders, and in particular the standards of proof required for the orders to be made. The purpose of these orders is to ensure that law enforcement bodies and the courts have appropriate powers to restrict the behaviour of persons who are likely to cause harm to another by committing a slavery or trafficking offence. For the prevention orders in Clause 14 and the risk orders in Clause 23, the courts must be satisfied that there is a risk that the individual may commit an offence, and that the order is necessary to protect a person or persons from the physical or psychological harm that would likely be caused by that individual committing a slavery or human trafficking offence.

These amendments seek to ensure that the court is required in each of these circumstances to be satisfied beyond reasonable doubt, which is the standard of proof in criminal courts, as has been mentioned. The intention of these amendments is to ensure that safeguards are in place to protect the rights of individuals on whom these orders will be imposed. I recognise the importance of ensuring that these orders, breach of which would be a criminal offence, are not made lightly.

Reference has been made to the Joint Committee on Human Rights. I take this opportunity to pay tribute to the work of that committee. There has been mention of the report that it has published recently. The Government are reflecting on that report carefully.

In this context, protecting the rights of the defendant is important. We have sought to draft these provisions to provide these protections and reflect the need to protect potential victims and remove the risk of harm to them, which is paramount. Although the proceedings by which these orders are obtained are civil proceedings, I put on record that the high burden of proof which applies by virtue of relevant case law in this area ensures that the threshold must in any event be akin to the criminal standard, as my noble friend said. This is the position in respect of existing orders under the Sexual Offences Act 2003, which have been used effectively for more than 10 years, and the new sexual harm prevention order and sexual risk order, and is therefore very well established. For these reasons, we do not believe that this amendment is necessary. Courts and practitioners are familiar with the existing evidential test. Departing from the established approach for these orders could cause uncertainty among practitioners and the courts, which may well reduce their effectiveness. There could also be a perception that, by expressly including a different and more rigid test in the Bill, we want these orders to be judged by a different standard from that applicable to the other orders, which would call into question why different approaches are taken in areas notwithstanding the similarities between them.

Under the system I have described, the court has flexibility in determining the standard to be applied and can take into account and balance all the circumstances of the case—for example, the seriousness of the risk posed by the defendant, the degree of relevance of each fact which must be proved by the applicant and the effect on the defendant of making the order. In the sex offending context, the courts have been able to carry out this exercise for many years in a way which protects the rights of both defendants and those persons at risk. Prescribing the standard as the criminal standard would deprive the courts of this necessary flexibility.

My noble friend made a comparison with the anti-social behaviour regime, to which she made a similar amendment. I think your Lordships will agree that, while anti-social behaviour can cause harm to both individuals and communities, it is not as serious as the horrific abuses of modern slavery. That is why we have modelled these orders on those which tackle sex offenders. Those orders do not prescribe the criminal standard of proof in legislation and were recently approved by Parliament.

I assure the Committee that there are several further safeguards as well as the standard of proof to ensure these orders are used appropriately. The type of harm to be prevented is specified and relates to very serious offences. Statutory guidance will be issued, which will describe risk factors and categories of restriction which may be contained in an order. In determining what measures are necessary, the court must have regard to the rights of both the person at risk and the defendant under the European Convention on Human Rights. The Government will also ensure that defendants have the same access to legal aid as is applicable to other civil order regimes.

Legal aid was raised on an earlier amendment. Individuals concerned will have the right to appeal the making, variation or extension of an order and apply to vary or discharge an order if circumstances change. Given that clarification, the substantial safeguards to ensure appropriate use of the orders and my assurance that we shall, of course, continue to reflect on the valuable work of the Joint Committee, I thank all noble Lords who have spoken on this amendment but hope that my noble friend will feel able to withdraw it.

[Baroness Hamwee]

My Lords, I was not surprised by anything that my noble friend has just said; her reply was very much what I anticipated. However, given both the JCHR’s comments and the recent experience with another order considered by your Lordships, I felt that it was appropriate to flesh out the Government’s reasons. I entirely understand the point about case law and comparisons.

The one thing that troubled me about her reply, if I may say so, was the suggestion that because these offences are more serious than anti-social behaviour—I agree with that—it is therefore unnecessary to be clear about the standard of proof, in the way we were with anti-social behaviour. I hope that that does not in any way detract from what my noble friend said about the standard of proof being equivalent—her words were, “akin to”; but I understand that to mean “equivalent”—to the criminal standard of proof. I do not think that that was what was meant but it sounded a bit like it in one paragraph in the middle of her reply. If it is necessary to confirm that after today, I would be happy for her to do so.

[Baroness Garden of Frognal]

My noble friend is quite right. It was not the intention to imply that they were in any way worthy of less serious measures.

[Baroness Hamwee]

Then I beg leave to withdraw the amendment.

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[Baroness Garden of Frognal]

My Lords, I thank my noble friend for moving the amendment, which aims to clarify this part of the Bill. Slavery and trafficking prevention orders are available in respect of individuals who have been convicted of a slavery or human trafficking offence and who pose a risk of causing harm by the further commission of such offences, which makes it necessary to obtain an order to protect the public from that harm. The provisions already have retrospective effect to the extent that the offence, on the basis of which a person can become subject to a slavery and trafficking prevention order, may have been committed before the coming into force of the Bill. As my noble friend has pointed out, this is reflected in the list of relevant offences in Schedule 1. It is important that these measures can be sought in relation to all relevant offenders and that we do not leave a gap in the availability of the new orders in respect of individuals who have been convicted of old offences or offences replaced by those in the Bill. The offences listed in Schedule 1 include old offences, as well as offences that will be repealed by the Bill, but which nevertheless relate to similar activities as their modern equivalents to ensure that the orders can be sought in respect of all offenders who pose a risk to the public, regardless of whether that offence is still on the statute book.

I understand that there may be concerns that defendants are not penalised again having already received, and possibly served, sentences from the court, but this is not novel. There is similar provision in the Sexual Offences Act 2003 and the Anti-social Behaviour, Crime and Policing Act 2014 in respect of the new orders dealing with sexual harm. While this does not amount to formal retrospection, the provisions have retrospective effect in that conduct committed prior to commencement will carry potential consequences that the person concerned may not reasonably have expected.

Moreover, as slavery and trafficking prevention orders are intended to be civil, preventive measures and not a punishment, Article 7 of the European Convention on Human Rights, which prohibits the retrospective application of a penalty, would not apply. This is supported by the approach taken by the courts to ASBOs and other similar civil orders where the courts have been satisfied that such orders are neither a conviction nor a punishment. In other words, these measures do not involve the imposition of a penalty.

My noble friend asked whether these orders would take place in open court. I can assure her that they would be in open court. The general public interest in the law not being changed retrospectively is firmly outweighed by the need to be able to tackle those involved in slavery or human trafficking as soon as these provisions come into force. With those assurances, I hope that my noble friend will feel free to withdraw her amendment.

[Baroness Hamwee]

I am grateful for that. I beg leave to withdraw the amendment.

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[Baroness Garden of Frognal]

I thank my noble friend and the noble Baroness, Lady Royall, for tabling these amendments. They raise the important issue of who should be able to use the slavery and trafficking prevention orders or slavery and trafficking risk orders proposed in the Bill, and indeed they relate to the powers of the police across different areas of operation.

The first orders have been designed to manage the risk of harm that would be caused by an individual committing a modern slavery offence. In developing the Bill, the Government have considered carefully who is best placed to be given the powers to apply for these orders and to be involved in the subsequent steps of the process, whether it is receiving the name and address details or applying for variations, renewals or discharge, or whether it is the persons for whom the guidance is intended.

The amendments, although not Amendment 39A, seek to remove immigration officers from the category of persons who can apply for an order. However, the cross-border nature of modern slavery means that it is often linked to immigration crime, and the individuals in the best position to deal with immigration crime are immigration officers. It is therefore appropriate for this group of law enforcement officers to have these powers. They already have law enforcement powers in this country and investigate and support prosecution of immigration and trafficking offences. Given the international nature of modern slavery, this power is appropriate, and to remove them from the list would restrict the role that immigration officers can play in dealing with traffickers and those likely to commit trafficking offences. It means that they would be required to call on the police to apply for the orders, which would add unnecessarily to the burden on the police and, of course, would cause delays as well.

I entirely understand that it is important to ensure there are safeguards in place so that immigration officers apply for these orders only in appropriate circumstances. The legislation is drafted using existing recognised legal persons, and the specific positions of more senior staff in immigration enforcement are not set out in legislation. However, I can assure the House that we will establish, through Home Office policy, that any decision to apply for a slavery and trafficking prevention or risk order by an immigration officer must be approved by the director of criminal investigations within the Home Office. I hope that those assurances will enable my noble friend to withdraw her amendment.

Amendment 39A seeks to include chief police officers for an area with which the defendant previously had a connection in the category of persons who can apply for an order. The role of the preventive orders is to look forwards to prevent the harm that could be caused by future crimes. The provisions about who can apply for an order reflect that. As the noble Baroness, Lady Royall, indicated, this was discussed in the other place and the Government’s position has not shifted from that. In cases where an individual no longer lives in an area, but the chief officer of police has reason to believe they are likely to return, there is a future risk of harm in that area and the chief officer can apply for the orders under the Bill as it stands. As the noble Baroness mentioned, in the few cases where an individual posing a risk is unlikely to return to an area, it would be appropriate for the police to inform the National Crime Agency, as it would be logical for it to take this forward across police boundaries, or indeed the police force for the area where the individual resides. Those two bodies would be best placed to manage the risk posed by an individual where they live now. We shall be coming on to discuss the role of the commissioner in more detail later in the Bill.

Clause 15 as drafted provides appropriate powers for the police in relation to slavery and trafficking prevention orders. For the moment we see no reason to take that further forward. We are satisfied that that will cover the cases in the Bill. Given that clarification, I hope that the noble Baroness will not press her amendment.

[Baroness Hamwee]

My Lords, I thank my noble friend for that reply. She said that the Government would not want to restrict the role of immigration officers. I still find it not so much confusing, but carrying the danger of muddling the issues in the way I explained. What intrigues me, in particular, and I am grateful for the assurance, is that the approval for an application would have to be made by the director of criminal investigation within the Home Office. If that is so, why cannot the police take the matter on and not involve the Immigration Service? I think I had better leave that question hanging and beg leave to withdraw the amendment.

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[Baroness Lister of Burtersett]

My Lords, the noble Baroness has not stolen my thunder at all, and again I am most grateful to her for tabling this amendment. It picks up on the recommendations made by the Joint Committee on Human Rights. I want to make one additional point on why this raises an important question of human rights. As we said in our report:

“In order to ensure compatibility with the right to respect for private life, any restriction must satisfy the requirements of legal certainty. It is essential that prohibitions contained in the orders are clear, as a breach of an order is a criminal offence”.

[Baroness Garden of Frognal]

My Lords, I thank both noble Baronesses for speaking to these amendments. They raise the important issue of the prohibitions that can be imposed by the slavery and trafficking prevention orders and risk orders. Prevention is critical to tackling modern slavery effectively and the purpose of these orders is to enable the courts to impose prohibitions on individuals who are believed to pose a risk of causing harm by the commission of a slavery or human trafficking offence. It is important that these orders provide law enforcement agencies and the courts with the ability to respond flexibly to the risks posed by an individual. Clauses 17 and 24 make it clear that slavery and trafficking prevention orders and risk orders will only contain prohibitions that the court is satisfied are necessary for the purposes of protecting people from the physical or psychological harms that would be likely to occur if the defendant committed the slavery or human trafficking offence. These prohibitions can be imposed anywhere in the UK or outside of the UK, they can be for a fixed period of at least five years, and some prohibitions may apply for longer than others.

To enable law enforcement agencies and the courts to respond to changing slavery and human trafficking practices and to tailor prohibitions to the specific risk posed by individuals, we have deliberately not specified the types of restrictions that can be included in the orders. This makes them flexible and capable of restricting any activities that a person undertakes if the court considers it necessary. The approach is in line with existing orders relating to the prevention of sexual harm. Making the amendment requested by my noble friend would restrict the flexibility that these orders need to have. We believe that we have already set substantial and appropriate safeguards to ensure that orders will only be used in appropriate circumstances when necessary to stop the harm caused by these very serious offences, by requiring that the court is satisfied that they and the prohibitions that they include are necessary.

I appreciate the power of the argument of my noble friend and the noble Baroness, Lady Lister, and of the arguments of the Joint Committee on Human Rights to ensure that operational law enforcement partners are clear on the types of prohibitions that might be helpful. In line with the Joint Committee on Human Rights recommendation we shall ensure that the statutory guidance in relation to the orders will include guidance on appropriate prohibitions. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.

[Baroness Hamwee]

My Lords, of course I shall seek leave to withdraw it. I had hoped that by referring to regulations that I described as having a degree of flexibility I might have met the point that I anticipated would come. Wanting flexibility in the range of prohibitions that might be applied raises in one’s mind a concern that they might be changed quite frequently. That would go against the certainty that we are seeking. However, I hear what my noble friend has to say and a little more clarity in the guidance will certainly be welcome. I beg leave to withdraw the amendment.

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[Lord Rosser]

My Lords, there are two amendments in this group and perhaps I may explain the purpose behind them.

Amendment 63A removes the maximum amount of the financial penalty that can be given for the breach of a slavery and trafficking risk or prevention order, as laid down in Clause 30(3)(b). Amendment 102A is in response to the Delegated Powers Committee report published last week on the power in Clause 30(5) that allows the Secretary of State to amend Clause 30(3)(b),

“to increase or remove the limit on the amount of the fine”.

Clause 30 sets out the penalties that could be imposed on an individual for breaching a slavery and trafficking risk or prevention order or an interim slavery and trafficking risk or prevention order. The penalties are,

“imprisonment for a term not exceeding 5 years”,

on conviction or indictment, and,

“imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000 or both”,

where there has been a summary conviction. In the other place we questioned the need for the £5,000 limit, both in relation to the limit and how appropriate it would be and the relationship between this and the provision that is coming into force in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would remove any upper limit on maximum fines in the magistrates’ courts.

In respect of the first amendment, while a prison sentence is adequate and serious, we are concerned that the £5,000 limit is too low. People trafficking is a profitable business where criminals make large sums of money at the expense of victims, and in order to tackle slavery and human trafficking we need to ensure that penalties act as a sufficient deterrent.

The Delegated Powers Committee was concerned about Clause 30(5) on penalties, since it confers a power on the Secretary of State,

“to increase or remove the limit on the amount of the fine”,

by regulations, subject to the negative procedure. The Government have said that this power has been included in order to allow for the removal of the limit on the fine when Section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. That section removes the £5,000 upper limit for fines which may be imposed on summary conviction in respect of offences that have been enacted before the date on which that subsection is brought into force. But that subsection has not yet been brought into force and the Minister in the other place said that the subsection would come into effect before this Bill receives Royal Assent and that this is why Clause 30(5) contains the provision in question in order to bring the Bill into line with the new policy.

However, the Delegated Powers Committee considers that,

“it is only justifiable to rely on section 85(1) for the use of the negative procedure where the power is exercised within a reasonable period of the commencement of that provision. Accordingly, we consider the power under clause 30(5) to increase or remove the limit under subsection (3)(b) should only be subject to the negative procedure where it is exercised during the period of 12 months beginning with the day on which section 85(1) is brought into force. In any other case, the power should be subject to the affirmative procedure”.

Achieving that is the thrust of our Amendment 102A, which I appreciate refers to the regulations being made,

“12 months after the passing of this Act”,

rather than 12 months beginning with the day on which Section 85(1) is brought into force, which is what I think the Delegated Powers Committee was seeking. I hope that the Minister will feel able to accept either the terms of our amendment on this point or alternatively—and we would certainly be quite happy with this—the Delegated Powers Committee’s recommendation, to which I have already referred. I beg to move.

[Baroness Garden of Frognal]

My Lords, I am very grateful to the noble Lord, Lord Rosser, for bringing this amendment forward.

As the noble Lord said, Amendment 63A seeks to remove the limit to the fine that can be imposed on summary conviction for not complying with a slavery and trafficking prevention or risk order. As he set out, these maximum fines have been set in line with existing limits on fines commensurate with the offence committed, and are in line with equivalent provision in relation to the sexual harm prevention order and the sexual risk order, which were passed in the previous Session of Parliament as part of what is now the Anti-social Behaviour, Crime and Policing Act 2014.

To ensure that the measure can respond flexibly to future changes in sentencing policy, Clause 30 also provides for the Secretary of State to amend or remove the maximum amount of the fine which may be imposed for summary conviction for breach of an order.

The Committee will be aware that, as the noble Lord has set out, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a provision which, when commenced, will remove an upper limit on maximum fines in the magistrates’ courts, which are on the commencement day set at £5,000 in the type of circumstances covered by this provision. We anticipate that by the time that the Bill reaches Royal Assent, the limit on fines imposed in the magistrates’ court will have been removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would make this amendment unnecessary. So I do not believe that we need to remove the £5,000 limit at this point.

Amendment 102A would make any future amendment to the level of fine by regulations subject to the affirmative resolution procedure if it takes place more than 12 months after Royal Assent. As the noble Lord said, this is in line with a recent recommendation of the report by the Delegated Powers and Regulatory Reform Committee. We welcome that report and will consider it carefully ahead of Report, including the recommendation on this provision.

Given that clarification and my assurance that this matter will have further consideration, I hope the noble Lord will feel able to withdraw this amendment.

[Lord Rosser]

I thank the Minister for that response. I am more than happy to beg leave to withdraw the amendment.