Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Hamwee Excerpts

Wednesday 18th January 2012 Lords Chamber

I hope the Minister accepts that the Government have overlooked the effects of cuts upon this relatively small, special group of people. The wording of Amendment 61A could undoubtedly be improved, particularly in terms of identifying who is actually a victim of trafficking, but to penalise this group of seriously disadvantaged people would be contrary to the EU directive, the European convention and, perhaps more importantly, the Government’s own excellent strategy document. I beg to move.

[Baroness Hamwee]

My Lords, I support these amendments with great enthusiasm. The noble and learned Baroness referred to the convention, and at the end of her remarks she referred to the government strategy which I think was published in the middle of last year. That, as I read it, has two limbs: one is to deter and disrupt trafficking; and the other, quite explicitly, is improved victim identification and care. These amendments fall absolutely squarely within the strategy that has already been articulated.

Trafficking by its nature is very largely hidden. It seems that as the unwilling but nevertheless host country in which victims find themselves, we have a number of duties. One of those duties is to enable these people to use the facilities of the state. The issues that have been listed in these amendments would fulfil that obligation. The noble and learned Baroness referred to migrant domestic workers. Those who may have been trafficked to work in cannabis farms or sometimes in restaurants—in the kitchens, not where you see them—would have similar sorts of claims. I do not want to repeat all the points that have been made or turn this into a hearts and flowers argument, as I see it as a matter of duty and central to what the Government have already identified.

--- Later in debate ---

[Lord Bach]

My Lords, we absolutely support the noble and learned Baroness in her amendments in this group. Very few crimes engender more opprobrium or anger both within and between Governments than crimes involving human trafficking. It is dispiriting that even today the illegal trade of people in this form still exists and perhaps even flourishes.

As the noble and learned Baroness said, we should rightly be proud that the international community has worked together to promulgate the protocol to prevent, suppress and punish trafficking in persons, especially women and children, adopted by the United Nations in Palermo in 2000. I am proud again that nine years later our country ratified the Council of Europe Convention on Action against Trafficking in Human Beings. The noble and learned Baroness quoted from part of that convention. The quote that I have is from Article 15 of that convention, to which she referred. She quoted from Article 12, I think, but Article 15.2 says:

“Each Party shall provide, in its internal law, for the right to legal assistance and to free legal aid for victims under the conditions provided by its internal law”.

It goes on at paragraph 4 to say:

“Each Party shall adopt such legislative or other measures as may be necessary to guarantee compensation for victims in accordance with the conditions under its internal law, for instance through the establishment of a fund for victim compensation or measures or programmes aimed at social assistance and social integration of victims, which could be funded by the assets”—

and it goes on to describe those assets. It is a pity that the Government have, so far at least, shown a somewhat less generous view of their obligations.

The Government stated in their response to consultation on this matter:

“There will be instances in which the Convention”—

meaning the Convention on Action against Trafficking in Human Beings —

“requires legal aid to be provided to victims of trafficking to fund their claims. However, we estimate that the volume of these cases is likely to be small and any obligation to provide legal aid will be met by the proposed new exceptional funding scheme that will provide legal aid where failure to do so would be likely to result in a breach of the individual’s rights to legal aid under the Human Rights Act 1998”.

The feeling around the Committee seems to be, and I very much share it, that that approach on this matter is unacceptable. Neither is it worthy of our legal system and our commitment to access to justice. It is not enough to rely on the Human Rights Act 1998 and say that anything that might not be in breach of it is somehow okay.

If legal aid is taken out of scope, it threatens to force victims of trafficking—acknowledged by the Government as some of the most vulnerable people in our country—to navigate an unfamiliar system in a language they may not understand, when they are almost certainly highly distressed and seeking legitimate redress against their persecutors. The noble and learned Baroness described the state of a number of those who had suffered in this way. To abandon them in the way that the Government intend, if this Bill were to go through unamended, for such small savings would be a violation of our positive obligations under the treaty and of our obligations under any sensible framework for deciding when the state should provide legal advice to those who need it.

If I use an unparliamentary expression, forgive me, but this amendment really should be a no-brainer. Victims of trafficking deserve not just our compassion and help, but that of the state when they require it. If we take the Government's own analytical framework for decisions on scope for legal aid, this would seem to be a group that perfectly fits the criterion of a,

“physically or emotionally vulnerable group”.

ILPA, the immigration lawyers’ association, described this group as a kind of paradigm of that criterion and I hope that the Committee would agree.

As far as the gateway to which the noble and learned Baroness referred in opening this short debate is concerned, it must always be remembered that the gateway is there only for matters that remain in scope. In any matters that come outside scope, the person who receives a phone call from a would-be client has to say, “I am sorry, this is not in scope”. Maybe they will give the name of some solicitor or other but they will not be able to take it further themselves, because the matter is out of scope. How horrific it would be if this matter became out of scope, so that even when a telephone call was made—and that is not the most satisfactory way of doing it—they could not be helped.

Secondly, some years ago the noble Baroness, Lady Young of Hornsey, who is not in her place and the noble Lord, Lord Carlile, among others, came and saw me about an issue in a criminal justice Bill that was going through this House which involved this sort of vulnerable victim. They asked us to take some action in regard to it. It was not to do with legal aid or anything like that, but I mention it because we listened to what they had to say. The arguments then were powerful; they are very powerful tonight on behalf of this group. I very much hope that the noble and learned Lord will at least take this away, and consider whether the Government cannot make what would be generally received as a very acceptable concession, if concession is the word, to the present wording of the Bill. Given all the difficulties the Government have and the criteria they set down, I ask them to reconsider their approach to this group of people. These are very powerful amendments indeed.

[Baroness Hamwee]

My Lords, I wonder whether the noble Lord has had the professional experience that I have had, where somebody who is faced with a claim which may result in quite a hefty award of compensation or damages against him finds that his mind is quite concentrated. That in itself is a very significant deterrent to continuing in the business, and trafficking is a business.

[Lord Bach]

I am afraid—or should I say that I am glad?—that my professional experience as a lawyer never included cases of this kind.

[Baroness Hamwee]

Not trafficking, but generally.

[Lord Bach]

In general terms, I am sure that the noble Baroness is right.