Baroness Hamwee
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Baroness Hamwee (LD)
My Lords, I have Amendment 36 in this group, and I have put my name also to the amendment moved by the noble Baroness. I shall take the amendments in the group in reverse order. Amendment 36 would provide that a compensation order could be made to reflect injury and so on resulting not just from the principal offence, if that is the way that one should describe it, but from other relevant offences taken into consideration by the court when it determines the sentence.
The amendment comes from Section 130 of the 2000 Act, which is the subject of Clause 10(1). When I read that section, I saw the reference to offences taken into account in sentencing and wondered whether it needed to be made explicit in the Bill. If it is implicit, fine; if it is not covered, it should be.
My comment on the noble Lord’s amendment is that while obviously we are on the same page as him, I would hope that any provision that results from this debate will allow for claims not only in the county court but in the High Court. The county court is the court for lower claims and the High Court for higher claims, as is the case with all civil claims. I think that we agree that the damage to individuals can sometimes be very great.
One of many reasons why a civil claim would be appropriate is that those who have survived forced labour, slavery or exploitation have different levels of vulnerability, different reactions and different responses. Some are more resilient than others. Current civil remedies may not provide a remedy for those who are resilient enough not to suffer an injury, such as a diagnosable psychiatric condition.
There are, of course, recognised bases for bringing civil claims in tort, contract and employment, but often they do not adequately reflect the gravity of the situation. I add to the mix the possibility of exemplary damages and perhaps civil remedies being available to be pursued against not only those who committed the offence but those who knew or ought to have known—I am picking up language from elsewhere—of the offence and who have benefited from it.
I conclude by saying that I am aware that, for some, the experiences they have suffered are articulated in comments such as, “Twelve years and no money”. That is the way that some victims are able to put it, because they cannot necessarily express everything that they have undergone, but many years for no pay is something keenly felt, and the noble Baroness’s amendment would meet that.
Lord Mackay of Clashfern (Con)
My Lords, I wonder whether anything covered under Clauses 1, 2 and 4, creating these criminal offences, is not already, under the ordinary law, a civil wrong. If it is, it would carry a claim of damages and other remedies for civil wrongs with it, such as injunction. If I am wrong about that, this is a good move. On the other hand, if I happen to be right about it, the people who are wronged before this becomes law would have a right of action which the Bill cannot confer on them until it is enacted. I also wonder whether there may be more scope in the civil remedies that exist now in respect of the people who are involved in the perpetration—not the actual perpetrators, but those who organise it and are behind it; they are sometimes called the brains. Whether that is appropriate, I shall not comment. We need to think about that question in relation to this group of amendments. I am all in favour of having people who damage others under conduct which is made criminal by Clauses 1, 2 and 4 being subject to civil action. What I am wondering is whether that is not true already.
Baroness Butler-Sloss (CB)
My Lords, I agree in principle with what lies behind the amendments but I would like to take up what the noble and learned Lord, Lord Mackay of Clashfern, has said. I am no civil lawyer but I believe that these are what are called in civil law torts; that is to say, civil offences. There is at least a very real possibility that they are covered by existing civil law. If they are so covered, there is no need for these amendments. I am afraid that I have not done any research on it, as I have not put forward an amendment, but some research needs to be done as to what is already covered before we ask the Government to accept these amendments.
Baroness Hamwee
My Lords, if I may respond, the point has been brought to us by several lawyers, both members of the Bar and solicitors, who are concerned that the remedies available are not adequate. The noble Baroness and I ought to ask the two noble and learned Lords if they would like to conduct a seminar before Report for those who have been briefing us.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Baroness, Lady Young, for introducing this debate, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for moving and speaking to their amendments, giving us the opportunity to discuss a very serious issue. I think we were all struck by the words of the noble Lord, Lord Stevens, about the delay that people are experiencing at present in getting compensation for the horrendous suffering that they have gone through in this process.
Before turning to the amendments, I want to make two points that deal with matters of principle. The first point, which runs through many of the groups that we have considered already, is that the Government’s view, right or wrong, is that we should make it a priority to secure an increase in the number of convictions of the people who have been guilty of these offences. We believe that it is a two-pronged approach. The first prong is the compensation and protection of the victims, but that is best done in the first instance by ensuring that the organised criminal gangs that are perpetrating this are brought to justice. Therefore, the second prong follows from that: we want to encourage victims, although it may be difficult and painful for them to do so, to go down the criminal justice route and secure those convictions. We have made provision in the Bill for protections and help, particularly for children and vulnerable adults, in making contributions and presenting their evidence before a court so that we can secure those convictions. That would be the first point that I would make.
Secondly—my remarks on this are of necessity briefer than they would otherwise be—I have been assisted immensely by the wise words of my noble and learned friend Lord Mackay of Clashfern and the noble and learned Baroness, Lady Butler-Sloss. They have very effectively made the case that we have arrived at; namely, the belief that civil remedies to the civil wrongs that have been cited in this case already exist. In the particular instance where there is a need for clarification on this, my noble friend Lady Hamwee asked—in fact, I think this is the purpose of Amendment 36—whether it was possible to have a reparation order and a compensation order. The answer is yes because they would be dealing with two distinct elements. Where an offence has been committed under the Modern Slavery Bill under the group of offences highlighted in Sections 1 to 3, there would of course be a reparation order. If, however, the person had been the victim of slavery and had been subjected to rape, for example, there would be additional compensation orders as well as the criminal charges that would be brought. So in that instance there would be a case for having the two together, and I hope that helps to clarify the situation.
Lord Bates
If I may, I will come back to the noble and learned Lord’s point and perhaps write to him in clarification, but the compensation orders and the reparation orders relate to criminal convictions. The position would be that they are separate and adequate civil remedies. I realise that does not answer the particular point the noble and learned Lord raised, but I will respond to that during the course of the afternoon.
Baroness Hamwee
My Lords, the Minister says that they are, in effect, compensation for crimes. The particular concern that the noble Baroness and I have is that victims should be compensated—that word seems completely inadequate in the context, but noble Lords will understand it—without there necessarily having been a criminal conviction.
Lord Bates
I will come back to that, if I may. We have before us two proposed new clauses in Amendment 34, which was moved by the noble Baroness, Lady Young, and Amendment 35, which seek to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the Committee that civil remedies in tort already exist for victims of trafficking and slavery to claim damages from perpetrators through ordinary civil law and the Human Rights Act, which was raised by the noble Earl, Lord Sandwich. Damages can, for example, be recovered for loss or damage caused to victims under the torts of intimidation, harassment, assault, unlawful imprisonment, negligence and breach of duty. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 retained civil legal aid for damages and employment law claims for trafficking victims to support them in making such claims. An amendment I have tabled would extend that legal aid provision to all modern slavery victims.
Amendment 35, tabled by the noble Lord, Lord Rosser, and the noble Baroness, Lady Royall, further suggests that such compensation should be linked to the national minimum wage that an individual would have to receive in legal employment. I reassure the Committee on that point. Damages in civil claims are intended to make good the loss or damage caused by the wrongful act. The principle will apply to actions relating to slavery and trafficking. The actual amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that would have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. The cavalry coming to the rescue advises me that we have agreed to write to noble Lords on exemplary damages.
We are committed to doing as much as possible to enhance support and protection for victims of modern slavery, including ensuring that they receive compensation for the horrors they have experienced—although I accept, as the noble Baroness, Lady Hamwee, said, that one could never fully compensate someone for what they have suffered with a mere cash payment. However, we consider that existing law provides sufficient access to civil remedies for victims of slavery and trafficking. I hope that with those assurances and the undertakings that I have given today, the noble Baroness will feel able to withdraw her amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, this amendment takes us to Part 2 of the Bill, which deals with prevention orders. My amendment deals with prevention orders and Amendment 52 with risk orders, on the same point.
The clauses provide that the court may make the orders if it is satisfied that there is a risk of commission of a slavery or human trafficking offence, and so on. As I say, this deals with two different clauses. I am aware of the assurance given by the Government in the Commons that the standard of proof required for the court to be satisfied is,
“akin to the criminal standard”.
This issue also arose when we debated the Anti-social Behaviour, Crime and Policing Bill. I raised the same point in connection with anti-social behaviour orders, and the Government at the last knockings of the Bill agreed to put the words “beyond reasonable doubt” into the Bill.
I appreciate that there are differences between that Bill and this. There was a reference elsewhere in that Bill to the civil standard of proof relating to another action that might be taken. I am aware also that the current sexual offences risk orders do not have this spelt out. However, in its report, the Joint Committee on Human Rights did feel that this should be made clear in the Bill. It said, at paragraph 1.38:
“In our view, an explicit reference to the applicable standard of proof on the face of the Bill would enhance legal certainty”.
It, too, referred to the Anti-social Behaviour, Crime and Policing Act 2014 and said that that would be in line with the drafting of that Act. It went on:
“Statutory provisions for civil orders of this type should make clear on the face of the Bill that the criminal standard applies and we recommend that the Bill be amended to put this beyond doubt”.
I do not think it intended any pun in that. I beg to move.
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
Baroness Hamwee
My Lords, the defendant may have been convicted and served a sentence but this seems to be another sanction. I know that if one looks at this through a different lens, the focus is on the victim. However, I thought it appropriate to table the amendment and raise some questions about the prevention orders because, as I say, this is, in effect, another sanction for the defendant for a sentence that has been served.
Clause 14(5) relates to the list of offences that can prompt these orders, including many offences that have already been repealed or which will be repealed when the Bill is enacted. The purpose of my amendment is quickly to probe whether it is the case that if the legislation creating such an offence has been repealed the orders can, following the conviction or finding of the court, or whoever makes the finding, nevertheless be applied. Are the prevention orders exactly the same as those which apply under current legislation? I am not sure whether I should use the word “retrospectivity”, but will they be prompted in the same way as they would be by offences under legislation that is no longer in force?
Thinking about this from the point of view of the potential subject of an order, I assume that there will be no particular arrangements regarding court proceedings. I am thinking of potential publicity. I assume that this will be in open court and there will be no anonymity for a defendant who may not have been convicted of anything to prompt the application for an order in court. I beg to move.
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
Baroness Hamwee
My Lords, this may be the longest grouping of amendments, but it may be one of the shortest debates. I note that the noble Lord and the noble Baroness opposite also have an amendment in the group. Amendment 39 and the other amendments in my name ask what place an immigration officer has, or should have, in instigating an application for a slavery and trafficking prevention order or a risk order. They are also to ask, if an immigration officer has this power, how it will work in practice. Are we talking about a suspicion at the border? If that is so, would it not be appropriate for the immigration officer to bring in the police, rather than for the immigration officer to start on this line of applying for one of these orders, even though, as the noble Baroness has said, it does not criminalise? Would the immigration officer have some power to detain linked with this?
I was prompted to table these amendments because of my concern not to confuse slavery and trafficking with immigration offences, at least to the extent of not letting it be thought that this is a problem that is being imported into this country—because, as in the title of the report from a year or so ago, it happens here. My questions are really about the operation of the provision and the place of immigration officers throughout these clauses, which is why there is such a long list of amendments. I beg to move.
Baroness Royall of Blaisdon
My Lords, I shall speak to Amendment 39A in this group. Part 2 makes arrangements for slavery and trafficking risk orders and prevention orders. At present, Clause 15 makes provision for when a magistrate may make a slavery and trafficking prevention order against a person. A chief officer of police may make an application to the magistrates’ court, alongside an immigration officer or the director-general of the National Crime Agency. However, a chief officer of police may make such an application only in respect of a person who lives in that chief officer’s police area or who the chief officer believes is in that area or is intending to come to it.
We tabled the same amendment in the other place to question whether a chief officer may also be able to make an order with respect to someone who has previously been to their area or has had connections with the area. The current drafting of this clause does not cover that possibility. At present, it would be possible for a chief officer to apply for a trafficking prevention order for someone in their area but not for anyone who had previously been there and who may still have connections with the area through friends, family or business or in other ways.
I will adapt an example given by my right honourable friend David Hanson in the other place. At present, it is possible for the chief constable of Gloucestershire police to apply for a trafficking prevention order for someone who lives in the Forest of Dean, which is my area. She could also do that if she thought that they were in or would come to the area. There might be individuals who were previously involved in trafficking in my area but who are not currently resident in the area or intending to return there, but they might have connections with it through their family or business or in other ways.
I tabled the amendment because paragraphs (a) and (b) of subsection (4) do not cover every base, but the amendment could mean that the police would have full powers. To use my area of Gloucestershire again, it is quite possible that an individual could conduct activity that should be covered by a slavery and trafficking prevention order but the chief of police is not able to make an application for an order because the individual does not live in the area, is not in the area and does not intend to come to the area, although they have been to it previously or have connections with it.
In her response, the Minister in the other place said that in such a case the chief officer would be able to ask the National Crime Agency or the police force where the individual resides to take the appropriate steps to make an application for an order. In addition, the new Independent Anti-slavery Commissioner would be able to ensure that police officers could work coherently and co-operatively. While of course that is welcome, it is not certain, and the functions of the commissioner as outlined in Clause 41 do not reflect this.
Furthermore, the Minister was hesitant when asked what would happen if an individual left the area. The chief officer would not be able to take any action and would have to rely on other police forces to act. This could be dangerous, weaken the application of slavery and trafficking prevention orders and allow perpetrators to slip through the net. Personally, I do not see the harm in giving an extra power in this subsection to extend it to individuals who may not be covered in paragraphs (a) and (b).
In the Public Bill Committee in the Commons, the Minister, Karen Bradley, indicated that she was willing to reflect on this. It would be good to know whether the Minister was able to provide us with any reassurance on this issue.
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.
Baroness Hamwee
“( ) The Secretary of State shall by regulations specify the prohibitions which may be included in an order (including an interim order) or any variation of it.”
Baroness Hamwee
My Lords, under the Bill the court can make a prohibition for any period, and the criterion is that the prohibition is “necessary to protect” a particular person or persons generally from physical or psychological harm likely to arise from slavery or a trafficking offence by the defendant. Obviously, that goes very wide in terms of the court’s powers. The Joint Committee on Human Rights made the point—I hope that I am not stealing the noble Baroness’s thunder again—that there should be certainty as to the prohibitions which can be applied and recommended that there might be, for instance, an indicative list of the sorts of prohibitions that can be imposed in such orders. Considerations of legal certainty should also be given prominence in the development of the statutory guidance. That statutory guidance will apply to the police, to immigration officers and the NCA. I am not sure where the courts stand in this and whether it is improper to issue guidance to a court. The police can apply for a particular prohibition order and the court will have unlimited discretion.
It seems to me that if these prohibitions are capable of being set out in guidance, they are capable of being set out more formally. My amendment proposes that they should be included in regulations rather than in guidance. That would provide certainty as to what prohibitions might be applied and give Parliament the opportunity to debate those prohibitions, and having regulations rather than primary legislation would allow for quite a degree of flexibility. Wishing to see certainty and not to provide completely unconstrained discretion without knowing until case law has developed what might be included in the prohibitions, I am proposing the use of regulations. I beg to move.
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.
Baroness Butler-Sloss
My Lords, I support the amendment of the noble Lord, Lord Warner. As a member of the commission, I thought originally that the Government putting in the word “independent” was sufficient. I have to say that I have been reflecting on that, though. I have listened to what the noble Lord, Lord Warner, and the noble Baroness, Lady Royall, have said about this, and I have gone back to what was said by our Select Committee. The noble Baroness has set out many of the points that were made under Part 4 of our report, particularly in paragraphs 146 and 147. There was one quotation she did not make, though, which was from the Independent Police Complaints Commission. It stresses the importance to the commissioner’s independence of the freedom to appoint staff, saying:
“The perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner)”—
really a very important part—
“the Anti Slavery Commissioner … will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department”.
In our recommendation, we point out that failing to have sufficient protection for the commissioner’s independence in the long run 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.
On Monday I made a point to the Minister about perception and the enormous importance of the Bill being seen as an iconic Bill that will lead not just in this country and Europe but across the world. I do not doubt the integrity of Kevin Hyland and have great respect for him, but the anti-slavery commissioner must have the ability to speak independently and a group of staff on whom he can rely to be responsible to him, rather than to the Home Office. If he does not have that, it will have a real impact, I regret to say, on the ability and willingness of NGOs to want to deal properly with the anti-slavery commissioner. This is a very important point, and the more I have thought about it, particularly listening to the two speeches that the Committee has just heard, the more I think that the Minister should take this matter away and reflect upon it. To have entirely Home Office staff appointed by the Home Office will not look good to NGOs.
Baroness Hamwee
I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.
I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.
Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.
Baroness Lister of Burtersett
My Lords, I support all these amendments, which aim to ensure the genuine independence of the anti-slavery commissioner and to establish a relationship with Parliament. As I said, they are very much in line with the recommendations of the Joint Committee on Human Rights, of which I am a member. I am grateful to all noble Lords who tabled them; a very powerful case has been made. I apologise if I echo some of the arguments, but some of them bear repetition.
The JCHR welcomed the creation of the office of the anti-slavery commissioner as,
“a potentially significant human rights enhancing measure”.
However, whether it fulfils that potential depends very much on it being genuinely independent of government. As we have heard, a very constructive debate in the Public Bill Committee led to an amendment on Report which added “independent” to the statutory title of the commissioner, as my noble friend Lord Warner, explained. I welcome that, as it reflected the all-party consensus around the importance of the commissioner’s independence. As the JCHR observed,
“the post cannot be made genuinely independent merely by adding a label”.
We listed the provisions and omissions that mean that it cannot be described as independent in any meaningful sense, which are for the most part covered by noble Lords’ amendments, so I will not go through them.
In light of those severe limitations on the commissioner’s independence, we asked the Government in what sense the role is independent and why it is less so than the Office of the Children’s Commissioner. Their response was to accept that there were significant differences in the legislative framework governing the two bodies, but, as we heard, they maintained that both models produced independent bodies. Yet the widespread view both inside and outside Parliament is that that does not constitute independence because, as the JCHR said, the role would largely be controlled by the Home Office, serving simply as an adjunct to it. My noble friend Lord Warner spelt out very graphically what that might mean in practice.
This debate on what constitutes independence brings to mind the famous exchange between Humpty Dumpty and Alice:
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’”.
I thought that was rather appropriate in the context of a debate about slavery. Surely, ultimately, in deciding what constitutes independence here, Parliament should be the master, and the related concern of the JCHR, taken up in the amendment in the name of the noble Baroness, Lady Hamwee, was about the commissioner’s relationship to Parliament.
The JCHR has sought to strengthen the relationship between Parliament and a number of bodies which form part of the human rights machinery, including the Office of the Children’s Commissioner, and I very much commend the way the Government have strengthened and ensured the independence of that office. We stated in our report:
“In our view, the Anti-slavery Commissioner proposed in this Bill has the potential to be another part of that machinery with an important human rights role”.
However, we were surprised and disappointed, to put it mildly, by the Government’s statement that they do not see the commissioner’s role primarily as part of the national human rights machinery. I find it extraordinary that in one of the most human rights-enhancing Bills brought forward by the Government, the machinery to implement it is not seen as part of the human rights machinery. Can the Minister explain why, and does he accept that that rather diminishes the potentially human rights-enhancing role of the Bill?
We have heard from members of the Joint Committee on the draft Bill how that committee itself stressed the importance of the independence, which is crucial for both credibility and establishing the trust of NGOs and other stakeholders. I would add to that list, most importantly, the victims of modern slavery themselves. The committee heard from the Dutch equivalent, who said that,
“the long-standing effectiveness of her own role lay in its statutory independence and the trust engendered as a consequence”,
as my noble friend Lady Royall has said. It expressed sympathy with,
“those who cautioned against relying on either the good intentions of the holder of the office of Home Secretary”.
We all know and appreciate the commitment of the current Home Secretary on the issue of modern slavery. But when even the autonomy of the Chief Inspector of Borders and Immigration has been undermined by the Home Secretary’s recent refusal to publish five inspection reports, leading to his recent warning to the Public Accounts Committee that the independence of his role has been compromised, that must send out warning signals for a role that has less statutory independence.
Baroness Royall of Blaisdon
My Lords, I meant to mention one more point, which was the one made by the noble and learned Lord, Lord Hope, about the experience that he had setting up the Supreme Court. We probably got it wrong in that instance; we should have had more foresight. We put up our hands if we get things wrong. Now that we have that lesson before us, we should learn from the experience of the Supreme Court and not say, “Oh, well, we’ll see how it goes”. That is a great lesson and we should learn from it.
Baroness Hamwee
My Lords, we will come to the staff’s functions and powers next week, but we should not lose sight of the fact that some of them need to have experience that is far wider than and quite different from that of the Home Office: we are talking about health and the whole of the welfare system, at least. That point has been made in the context of the powers, but let us mark it in the context of staff as well.
Baroness Lister of Burtersett
At the risk of overloading the Minister with questions, I asked a very specific question that I do not think he answered: why do the Government not see the office of the anti-slavery commissioner primarily as part of the human rights machinery?