Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Baroness Hamwee
Baroness Hamwee (LD)
My Lords, I shall speak also to Amendments 62, 63 and 64. The Committee will be pleased to know that I am aiming to be extremely brief on all the amendments left in my name for today.
Amendment 57 is an amendment to Clause 3(6), which provides:
“If a temporary exclusion order is revoked, it ceases to be in force when notice of its revocation is given”.
I am intrigued to know why the effect of the order continues until notice is given. By definition, there is a delay between the decision to revoke and the notice of revocation. Although this is not the whole of the point I am making, I am not sure whether notice being given means a notice received or a notice, as it were, sent out. In any event, there is a time difference between the decision and the notice, and I should have thought that the revocation should take effect immediately.
Amendment 62 is an amendment to Clause 8, which provides for the obligations on an individual who returns under an order. Here, the notice imposes the obligations on an individual who is subject to the order and who has returned to the UK. Are there no obligations in a period before the return to the UK or is this something to do with the proceedings which have taken place in the UK? The status of somebody who is subject to an order but has not returned intrigues me. Are there no obligations which may apply to an individual before he returns to the UK? The obligations are backed up by Clause 9, which is about offences if restrictions are contravened. My question here is about status.
Amendment 63, also an amendment to Clause 8, is similar to Amendment 57. I note that the notice of the obligations comes into force when it is given and is in force until the order ends. Is there a point at which the notice is deemed to be given? My amendment will provide for it actually to be given. My noble friend will understand that I am seeking to understand when it comes into force.
Amendment 64, also to Clause 8, is similar to Amendment 57 in that the variation or revocation should come into effect immediately, not take effect when notice is given, and the same questions are raised as for the earlier amendment. I beg to move.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to my noble friend for bringing forward these amendments, which provide an opportunity to put further information on the record as to how temporary exclusion orders will work in practice. Amendment 57 seeks to provide that a temporary exclusion order ceases to be in force immediately when revoked, not when notice of revocation is given. We believe it is important that notice of revocation is given and that this is the point at which the order ceases to be in force. It is right that the individual concerned is made aware that the restrictions and obligations imposed on them will no longer be in place.
Similarly, Amendment 64 seeks to ensure that any variation or revocation of the in-country obligations placed on an individual come into effect immediately rather than once notice has been given to that individual. In the same way, we believe that it is right that notice of revocation is given and that this is the point at which the obligations cease to be in force. It is important that the individual concerned is made aware that the obligations imposed on them will no longer be in place. More importantly, it is vital that the individual is informed of any variation to the obligations before these variations take effect to avoid an unintentional breach, which could lead to prosecution.
Amendment 63 seeks to provide that notice of any in-country obligations comes into force when an individual is actually given the notice. As the individual will have returned to the UK under the terms of the temporary exclusion order, we will usually know the whereabouts of the individual and, in practice, should always be able to serve the notice on them in person. But it may be expedient for an individual as well as for the authorities for notice of a variation, for example, to be posted to the individual rather than served in person. In addition, there may be circumstances in which an individual absconds and is therefore no longer at the contact address. In all those circumstances, it is right that notice can be deemed to have been given, provided proper procedures are followed. Parliament will be able to review those procedures, but I can assure your Lordships that they will be based on well established practice in relation to immigration decisions.
Finally, Amendment 62 seeks to allow the Secretary of State to impose the in-country obligations of a temporary exclusion order on an individual who is about to return to the UK, as well as on those who have already returned to the UK. The in-country elements of a temporary exclusion order cannot be imposed until the individual has returned to the United Kingdom, a point on which my noble friend sought clarification. This will allow law enforcement partners to assess the most appropriate measures to manage the risk posed by the individual at that time, which may be a matter of years after the decision to impose the order was originally taken. It may even be appropriate to arrest and prosecute the individual, rather than impose any in-country measures on them. Therefore, it would not be appropriate to apply the in-country measures to someone who is about to return. It is better to wait until the individual is in the UK and form an assessment about the in-country measures at that stage.
In terms of the obligations and when they come into effect before return to the UK, the obligations made against the individual will apply only when the individual returns to the UK. Before that point, the individual will be subject to the temporary exclusion order in that their return will be disrupted and controlled, and they may be subject to conditions under the permit to return. But they will not be subject to in-country measures until they return for the reasons that I have outlined. I trust that that is a helpful reply to my noble friend and I invite her to withdraw her amendment.
Lord Bates
I am grateful to my noble friend for seeking clarification on this issue. The clause follows the same procedures as apply to other measures that might be introduced, such as those concerning immigration. Clearly, we would like to serve the notice in person but, given that the person might be overseas and engaged in terrorist activities, that might not be possible. However, that cannot be a reason why the order cannot be deemed to have been served. Therefore, we have followed the same routes as in immigration cases and the notice would go to their last known address.
I am grateful to my noble friend for giving me the opportunity to expand on this point. The key issue is that we want the individual to get the message that they are subject to a temporary exclusion order because we want them to make contact with the authorities so that they can have a properly managed return to the UK. We do not want the risks which might occur of somebody turning up and seeking to board a flight and only at that point discovering that their travel documents have been invalidated. It would serve everyone’s purpose that the procedures are followed and that people are made aware. I hope that is helpful to my noble friend.
Baroness Hamwee
My Lords, I thank my noble friend for his reply. At the same time as he was saying that it is important that the individual knows—I absolutely go along with that—he also said that it is possible for there to be deemed notice. I need to read how those two fit together. I take the point that there is a distinction between variation of obligations and the revocation of an order. Of course, one is accustomed to a notice sometimes having to be served by post or whatever—there are many instances where a notice is deemed to have been given—because if that were not the case the prospective recipient of the notice could always avoid being given it by slipping around.
I was a little alarmed by my noble friend’s comment, if I heard him aright, on Amendment 62 that it could be years before an individual came back, which takes us back to earlier discussions. However, the Minister has covered the ground and I will do my best to cover his answer properly when I read it. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 4(3) provides that an individual’s,
“failure to comply with a specified condition has the effect of invalidating the permit to return”.
My amendment would confine that to a “material failure to comply”. A deliberately absurd example would be if the individual was 10 minutes late for an appointment. There must, presumably, be some de minimis provision around this and I would be grateful if the Minister could flesh this out. In my view, minor or trivial breaches should not invalidate the permit to return.
Amendment 60 is on similar lines. It is an amendment to Clause 5 under which, specifically, the Secretary of State can refuse the permit if the individual fails to attend an interview. Amendment 60 proposes that the individual’s failure to attend should be an unreasonable failure—the bus is late or whatever. I am picking trivial examples in order to point up what I think needs to be pinned down.
Finally, Amendment 61 would leave out subsection (3) of Clause 5 which provides that the,
“return time must fall within a reasonable period after the application is made”.
I can see that we would not want the individual roaming the world for a year and going off the radar, but I would like to probe how this would operate. I am concerned, as much as anything, with the workability of the provision. At the end of the day, it would be for a court, but how is “reasonable” to be determined and who determines it? I beg to move.
Lord Ashton of Hyde (Con)
My Lords, this brief debate has discussed the permit to return which would be issued under a temporary exclusion order so that an individual can return to the UK. The amendments tabled by my noble friends seek to specify that a permit to return is invalidated only if the individual’s failure to comply with a specified condition is material and that the Secretary of State may not refuse to issue a permit to return for failure to attend an interview unless the individual unreasonably fails to attend that interview. I appreciate the rationale behind these probing amendments but I hope I can reassure my noble friends that they are not necessary in this instance.
Conditions will be put into a permit to return where the Secretary of State considers they are necessary in order to protect national security. Any failure to comply with a specified condition will therefore be material, on a common-sense definition of the word. Amendment 58 would have the effect of ensuring that a person is not criminalised by an inadvertent failure to comply, but this is already provided for by the “reasonable excuse” defence in Clause 9 and the amendment is therefore superfluous.
Amendment 60 seeks to provide that the Secretary of State may not refuse to issue a permit to return for failure to attend an interview unless the individual unreasonably fails to attend that interview. I can reassure your Lordships that, in such instances, the Government would exercise discretion on what constitutes a reasonable or unavoidable failure. The Bill already provides that the Secretary of State retains the ability to issue a permit to return even if she has required someone to attend an interview and the person has failed to do so. Clearly, in the case of a reasonable failure, the Secretary of State would be minded to allow the person to return in a controlled manner, which is, after all, the object of the exercise.
Finally, Amendment 61 seeks to probe the timeframe for return specified in a permit to return. The Bill provides that the return time specified in the permit must be within a reasonable period after the application is made. This is a key provision for the temporary exclusion power because it ensures that it meets our requirements under international law. What constitutes a reasonable period, which is what my noble friend Lady Hamwee asked, will of course be determined on a case-by-case basis, and it will need to take account of factors such as the frequency of flights to and from the country where the person subject to the order is.
On the basis of these explanations, I hope that my noble friend feels that I have addressed the issues being probed by these amendments. I invite her to withdraw Amendment 58.
Baroness Hamwee
My Lords, on the explanation about material failure and so on, it seems that there is a distinction between the consequences of failure under Clause 4, the situation under Clause 5, and the offences which are dealt with in Clause 9, to which the Minister pointed the Committee. There are other consequences to the failures which are the subject of my first two amendments. I would like to think about that a little further. I thought that I was going to get a reassurance based on case law as well as common sense, which do come together quite often. I had not quite expected to be pointed forward to Clause 9, so I will have a think about that after today. For now, certainly, I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, at Second Reading it was clear that a number of us were finding it difficult to get our heads around how this would work at the point of the process that the noble Baroness has indicated. I wrote down a list of questions and I have crossed most of them out, because she has been so thorough in the questions that she has asked of my noble friend.
Whether in this form of amendment or something similar, it is immensely important that there is transparency and general understanding of what the processes are, and of how they should work. First, this is because of the civil liberties and restrictions inherent in all of this. Secondly, we want regular reports on how the process is working. We want the independent reviewer to be able to report and he probably needs criteria to report against. The issues that the noble Baroness has raised are hugely important. I am sorry to use the term “workability” again. Shall I slightly change the tune to “operability”? We want the operability to be satisfactory.
Baroness Warsi (Con)
I support this important probing amendment. I hope it will provide an opportunity to iron out some of this detail. With a provision such as this, especially when there are real concerns within certain communities about the motivation for it and the impact that it will have on them, transparency of process is essential. Therefore, the more that we can get in the Bill, and the more of detailed process that we can have, the more that will help to get what we want to achieve.
This amendment returns to the purpose of the exclusion orders. In many ways, the temporary exclusion order would probably have better been called the controlled entry order or even the managed return order. In that way, it would have been much more reflective of what the TEO is trying to do. It would have said what it was on the tin and would have dealt with some of the controversy that surrounds it. It may be that this is something that Ministers will want to reconsider. Maybe they will. It is general election year, so maybe they will not.
Following on from the noble Baroness, Lady Smith, on the importance of the detail of the process, I should like to ask one or two questions. Have we considered the implications of what we would be expecting other states to do in relation to our commitments under other international obligations? We can take the example that the noble Baroness gave, of someone being detained but subsequently tortured or mistreated somewhere overseas, wherever it may be. There is a lot of talk of places such as Turkey, but this person could be engaged in terrorist activity in Afghanistan and return via Pakistan. What are implications of this and what assurances about these countries would we have?
How would these people be returned? If a person is considered to be a dangerous individual who has in some way been involved in terrorist activity, I am not sure I would want to be sitting on a commercial flight back from Istanbul with them. Have we considered the implications of returning these people and the resource implications of having to pay for individual flights for them to be returned?
Baroness Hamwee
My Lords, I am grateful to my noble friend for giving way. I was not going to go back to the points I had made although my point about the independent reviewer having criteria against which to report is actually sort of overarching, picking up on the other points. I want to put to him that while we all understand that decisions have to be taken case by case, that does not negate the need for a structure and clearly understood procedures to which reference can be made for all the reasons given about not further alienating the subjects of orders, their families and so on. The noble Baroness was very clear about the dangers, as was the noble Lord, Lord Harris.
I am not, of course, dismissing the assurances that the Minister has given, but I do not think they are quite on the point that I have been alerted to by this debate about having a framework and procedures that are not made up on the hoof but which are known and understood before they are ever applied.
Baroness Hamwee
Baroness Hamwee
My Lords, Clause 10(3) provides:
“The Secretary of State may make regulations providing for legislation relating to passports … to apply … to permits to return”.
The amendment, which would rather inelegantly extend this by adding “and generally with regard to the passport of an excluded individual”, is designed to probe how a passport becomes valid again. If a passport is invalidated under Clause 3(9), what provisions will there be about the return of a passport on revocation or in the event of an unfavourable outcome of proceedings? In other words, there are more issues around passports than are dealt with in the relatively narrow provisions of Clause 10(3) and I hope that my noble friend will be able to add something to our understanding of how this will operate. I beg to move.
Lord Bates
My Lords, we have had a long day of debates which has benefited from the great insight, experience and expertise in your Lordships’ House. I am grateful to all noble Lords who have contributed.
Amendment 67 seeks to provide that regulations are made by the Secretary of State relating to passports of individuals who are subject to temporary exclusion orders. Under a temporary exclusion order, an individual’s British passport will be cancelled and invalid for travel. In the event that the order was quashed, revoked or otherwise came to an end, it would be open to the individual in question to apply for a further passport. There will be no need for the Secretary of State to make further regulations for circumstances in which the individual no longer had a valid passport as there is a well established process already in place for obtaining passports.
I hope this helps and reassures my noble friend and that she will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, I confess that, stupidly, that had not occurred to me. If the individual applies for a passport, it will not be available instantly—they rarely are. However, most importantly, he should be informed that that is what he has to do. This takes us back to the points that have been made on clarity. I am glad now to understand how this will operate. However, as ever, it raises extra points—probably far more than I have mentioned—but the Minister will be pleased to know that I beg leave to withdraw the amendment.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Lord Rosser (Lab)
My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.
Baroness Hamwee (LD)
My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.
Lord Rosser
As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.
I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.
In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.
Baroness Hamwee
My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.
This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.
Lord Pannick
My Lords, I agree with the noble Baroness, Lady Hamwee: these amendments raise a very important subject. For my part, I agree with paragraph 7.8 of the report from the Joint Committee on Human Rights that it is absolutely essential that the independent reviewer’s remit is extended to cover all terrorism legislation. I would be quite content to leave it to the independent reviewer to decide when it is appropriate to publish reports. It seems entirely unnecessary and inappropriate to require reports to be published annually.
Baroness Hamwee
Baroness Hamwee
This is a probing amendment, picking up a point which I raised at Second Reading. The passport which can be seized is either a United Kingdom passport or, according to paragraph 1(7) to the first schedule, one issued by another country,
“or by or on behalf of an international organisation”.
It is the passports of other countries and the international organisations’ documents that I would like to ask my noble friend about. UK passports are not the property of the passport holder and I believe it is the case in some other countries that the passport remains the property of the state. Perhaps my noble friend can confirm the position. Therefore, the first and obvious question is: what international discussions have there been and what agreement, if any, has been reached about this provision? Are other states happy, or at least relaxed, about the seizure of their property? Might there not be occasions when they would themselves ask to have the passport back?
Some international organisations issue laissez-passer documents, of which I think the UN is one. Is this provision compatible with our obligations to those international organisations? As I say, this is a probing amendment, as, I think, are all our amendments today. I hope that my noble friend can assist. I beg to move.
Lord Bates
That seems to be excellent legal advice and I am sure that it is absolutely correct. Certainly we will review it and, if that is not the case, we will write.
Baroness Hamwee
My Lords, the point about not passing through immigration control occurred to me as well as noble Lords were speaking. Then my mind turned to the question of what would happen if someone was travelling on one passport but carrying the passport of another country and switched half way through the journey. All this goes to the workability of these provisions, which is really the overarching question that noble Lords are asking. I do not think that I am alone in finding it a little difficult to imagine quite how the powers will operate in some circumstances.
It is not always easy to probe something without suggesting the opposite of what one intends. There is another example of that coming up shortly. So the noble Lord is right: I was not trying to take the words out but merely probing.
I am not sure—I may have missed it—whether the Minister referred to international organisations other than quoting what is in the schedule. Perhaps I may look at that after today and, if necessary, have another word with him. It looks as though I may not need to withdraw the amendment quite yet.
Lord Bates
I am just looking for help in order to answer my noble friend Lady Hamwee. The answer that I gave on diplomatic immunity was that, under international law and treaties, diplomats may enjoy certain immunities, and this power could not be used in breach of those. Therefore, that is clear. In relation to the point that the noble and learned Lord, Lord Hope, and the noble Lord, Lord Pannick, raised on transit passengers, my briefing note says, reassuringly, “Yes, your answer was accurate”. That is helpful. There may be cases where it is appropriate to use this power against transit passengers and, in practice, these will mostly occur following prior information provided to the police about an individual’s intention to travel. The power can be exercised both air side and land side, including against passengers who do not present at immigration control. I hope that that is helpful to noble Lords.
Baroness Hamwee
My Lords, that depends on somebody knowing that the passengers are there if they remain air side. I may have this wrong and I accept that my amendment did not take out the reference to international organisations. They may have the equivalent of diplomatic immunity. I was not thinking of that; I was thinking of the large international organisations which issue a laissez-passer, as I understand it. Maybe that is something on which I could have a word with my noble friend. He nods; I am grateful for that. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I shall also speak to Amendment 7. Amendment 6 is one of those probing amendments which may seem a bit unexpected or counterintuitive coming from me. It seeks to inquire whether the reference to intention in paragraph 1(10) covers recklessness. The words I have used are, “recklessly as to the consequences”. Will my noble friend share with the Committee the Government’s thinking on restricting the term to intentionality?
My second amendment, already trailed by the noble and learned Lord, refers to humanitarian assistance. This is another probing amendment to ask how the Government plan to deal with workers travelling out who are associated with reputable organisations such as the Red Cross. I accept that this is a difficult area because there can be individuals who are not with such organisations but who, in their own minds, are going out to provide humanitarian aid. They might be so closely associated with those who are fighting that they would be seen by others as providing something which is closer to military support than the broader humanitarian assistance.
We need to find a way through this difficult area, but at this stage perhaps my noble friend can explain the Government’s thinking on this issue and what work they have done with the big, overstretched—I am sure they could do without a further consultation, but there you go—humanitarian organisations working in the Middle East. I beg to move.
Lord Hope of Craighead
My Lords, as I hinted earlier, I wish to add a little more detail in support of Amendment 7, in the name of the noble Baroness. The background to what I am going to say comes from my experience chairing the Joint Committee on the Draft Protection of Charities Bill, which has been considering a clause which would seek to add offences under the Terrorism Act 2000 to the list of offences a conviction for which will result in automatic disqualification from being a trustee of a charity. That may seem a little bit removed from what we are considering this afternoon, but we have heard evidence on that issue from various witnesses speaking about the chilling effect of the risk of prosecution under the terrorist legislation on the efforts of those who seek to provide humanitarian assistance in areas which are under the control of, for example, proscribed organisations.
Among our witnesses was the chairman of the Muslim Charities Forum, who said:
“I go to difficult areas like Afghanistan, South Sudan and Chechnya. Recently, two weeks ago, I was in Iraq, in Baghdad. I have been in Somalia, in Mogadishu and other countries. I think counter-terrorism legislation is preventing us from having access to the neediest people. There are proscribed groups in those areas, and we know them. They are the gatekeepers. How can we go through the gatekeepers to reach the neediest people in Syria, Somalia or different parts of the world?”
That was the problem to which he drew our attention.
Among our other witnesses was the Independent Reviewer of Terrorist Legislation, David Anderson QC, to whom the noble Lord rightly paid tribute early this afternoon and I entirely endorse his remarks. He said that charities operating in these areas run the risk of falling foul of terrorism law—for example, by delivering relief to a general population which may include individuals or groups designated as terrorists. He suggested that increased risk could deter charities and their trustees from delivering humanitarian support. He was talking about the risk that would be created by extending the definition that disqualifies people from being trustees on conviction for these offences. As I mentioned earlier, we are talking about a rather softer mechanism, which is very important but depends on a decision taken by a constable at the point of entry.
One of the points to which David Anderson drew our attention was that there are examples in other countries where this issue has been addressed. The Minister might be interested to know that the kind of exception which the noble Baroness is suggesting can be found in connection with the broad definition of terrorism when one studies, for example, legislation in Australia or New Zealand. They have specific exceptions in terrorism law to meet that point, including that of association with proscribed organisations for the purpose of providing humanitarian aid. That is very important and it is rather odd that it is raised as a tiny, probing amendment in a debate on a temporary exclusion order. It runs right through the effect of the broad definition of terrorism, which Mr Anderson described as quite disturbing because of its breadth, and adds a great deal of force to the noble Baroness’s amendment.
I invite noble Lords to think carefully about that because the humanitarian effort is something all of us would wish to support. Given the amount of effort that the Government rightly put into providing aid overseas, it would be most unfortunate if it is being cut off because of this kind of measure. Of course, there are ways in which it can be done without embarking at all on this kind of risk area, but those who are right at the frontier in these very difficult areas should not be discouraged by legislation of this kind if it is possible to protect them against its effects. The humanitarian exception may be one of the more important issues that we are considering today. I would be very interested, and I am sure that the noble Baroness would be too, to hear how the Minister would wish to consider the point.
Lord Ashton of Hyde
I completely agree that there is a difference between those two words, but they are not mutually exclusive.
Baroness Hamwee
My Lords, of course there is a difference and it is not just about mutual exclusivity, but I do not wish to pursue that at this point.
On the second of the amendments in this group, one never knows where one’s probing is going to lead. Although the noble Lord, Lord Harris of Haringey, may disapprove of my drafting, I am glad that I raised it. I do not think that it will necessarily be palpably obvious to an immigration official why somebody is seeking to leave the country. I accept that the point is not confined just to this schedule and I think it is worth consideration. I would be grateful to have a conversation with the noble and learned Lord, Lord Hope, as to whether we can use the opportunity of this legislation to try to deal with the point more widely. I beg leave to withdraw the amendment.
Baroness Hamwee
My Lords, with no such authority —neither mine nor anyone else’s—I wrote, against Amendment 8, “If it is reliable intelligence is it not already covered?”. Intelligence may be less than reasonable; evidence may be more than is reasonable. I am not clear what standard would be required by the provision as amended. The noble and learned Lord has made my point much more clearly and authoritatively.
I have a number of amendments in this group. Amendments 10, 12, 13 and 21 all provide for the giving of reasons for the suspicion and for allowing the person the opportunity to make representations at the different stages of the process. I hope that both those items are self-explanatory: there should be an explanation, at the very start and at each stage, and the person concerned should be able to make representations—make representations is about the right level; I am not quite saying make a case—and to state their position.
Amendments 17, 18 and 19—
Lord Harris of Haringey
Before the noble Baroness moves on, she said that she felt the arguments to be self-explanatory. Perhaps, for the assistance of the Committee, she could talk a little about what she means by the reasons. If you present an individual with the reasons, are you in fact asking that all the material that has led to that reasonable view being taken be presented? That could require the provision of intelligence material, which could have an implication for government. It would be helpful, therefore, to understand what the noble Baroness thinks would be sufficient to meet the requirement to provide reasons.
Baroness Hamwee
I do not think that the noble Lord was present when I said that all our amendments today, and no doubt on subsequent days, will be probing ones. I think he was here when I said that many of our amendments—not just the ones that I and my noble friends have tabled—are about the workability of these provisions. I am sure that the Committee would like to understand what will happen at each stage.
I do not of course expect an immigration officer to come out with the kind of address that might be made to the Bench at a later point, but there is a very great difference between that and seizing the document under the provisions in Schedule 1. I dare say that the code of practice—and any additional guidance—will deal with this. I hope that it does, because I think it ought to. I am going to talk later, under a different amendment, about perceived discrimination, which I am sure the noble Lord will be as concerned about as I am. That is, in part, addressed when those who are exercising powers are as clear as they reasonably can be at any given stage about why they are doing so.
One set of amendments would change the 14-day period to seven days. The Joint Committee on Human Rights raised this point and drew comparisons with other provisions, such as those relating to property rights under the Anti-terrorism, Crime and Security Act, where an application must be made to a court to retain cash after 48 hours; equally, where a person is arrested under Section 41 of the Terrorism Act 2000 on reasonable suspicion of being a terrorist, a judicial warrant of further detention must be applied for within 48 hours of arrest. The JCHR recommended that seven days should be substituted for 14 days. I would have hoped that the committee did not make this point, but that would be adequate time to assemble the material that needs to be presented—and indeed to assemble the presentation—to the court, which in any event can extend the time.
The last of my amendments in this group, Amendment 28, amends Schedule 1(8). Under paragraph 8(4),
“the judicial authority must grant an extension if satisfied that the relevant persons have been acting diligently and expeditiously”.
My amendment would add a reference to “reasonable grounds”. In other words, it seeks to ensure that the judicial authority would apply the same test as under paragraph 2.
Baroness Ludford
My Lords, in relation to this group, without I hope stretching anyone’s patience, I will just repeat two questions that I asked at Second Reading, to which I do not think I got an answer. The first question, which may be very daft, is why it is not possible to use powers under Schedule 7 to the Terrorism Act to retain passports for up to seven days. Why can those not be used for outward travel? The Minister may not be able to instantly answer that. Secondly, how do you stop a rolling renewal? I gave the analogy of declaring the whole of Greater London a terrorism exclusion zone. How do you stop that just being renewed on a repetitive basis?
Baroness Hamwee
My Lords, I realise that there is plenty of material in the Minister’s response for us to read and think about. However, at the start of his response, he said that an officer should not have to justify his suspicion. I wondered whether he was equating that with gisting, which was raised by the noble Lord, Lord Pannick, and others, because I do not think that they are the same thing. If he does not want to commit to answering that point now, perhaps I may have a word with him about that between now and the next stage.
Lord Bates
I am happy to expand further on that but, effectively, the justification I referred to was that the police officer would have had to have arrived at a position where he believed that there was a reasonable suspicion, and that the reasonable grounds test had been met. He would then have to justify that to a senior officer of the rank of superintendent or above and then, after 72 hours, that would have to be a chief superintendent and it would have to go to the chief constable, so it was in that setting that I was referring particularly to the justification rather than gisting.
Baroness Hamwee
Baroness Hamwee
Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.
Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.
Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:
“The relevant chief constable must consider those findings and take whatever action seems appropriate”.
That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?
My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:
“The proposed legislation could bear serious consequences for British Muslims including”,
and lists a number of items. It then states:
“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.
I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.
Lord Rosser
I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:
“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.
The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.
No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?
I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.
Baroness Hamwee
My Lords, I had intended to say a word about Amendment 11. Given that this is Committee, I may do so. I am sympathetic to the questions that the noble Lord has asked, although—as I suspect he may agree—12 hours is too long. However, the point that has been exercising me is whether it is a good idea to have a maximum period, or whether that might become the standard and efforts to deal with the matter as soon as possible will not be made. Perhaps the individuals will think, “I’ve got so long to deal with it and will therefore take that long”.
Lord Harris of Haringey
My Lords, I wish to comment on Amendments 42 and 43 in this group. I have to say that the grouping is slightly odd because it relates to a whole range of different issues. I assume that the purpose of the amendments of the noble Baroness, Lady Hamwee, is to ensure, first, that the way in which the action of removing someone’s passport is carried out is mindful of equalities issues and the background of the people concerned; and, secondly, that a proper record is kept of what is done, so that any subsequent look at how the powers had been applied can show that they had been applied proportionately. I have no objection to that; indeed, it goes to the essence of the point about this power and the subsequent powers—the extent to which they will be exercised in such a way as to achieve their purpose but avoid a situation in which they alienate a particular community by reinforcing the narrative that suggests that that community is being oppressed or whatever.
In that context, it would be helpful if the Minister could indicate how frequently it is anticipated that these powers will be used? Are we talking about six, 600, 6,000 or 60,000 times a year? It makes a significant difference because if every time people from a particular community try to leave the country they have to go through these procedures—and these documents are held for a period, whether for six, 12 or even two hours—that will produce resentment. If the powers are to be used in a much smaller number of cases, it may be that the proportionality will seem to be more reasonable. It would be useful if the Government, in asking for these necessary powers, were to confirm how frequently the powers would be used. I am sure they have considered that. Perhaps the Government can say, having thought through the information and intelligence that has been available for, say, the past six months, how many times they think they would have sought to use these powers.
Lord Ashton of Hyde
A lot depends, of course, on how many responses there are to the consultation. I am unable to make a firm commitment today but it will be as soon as possible and if I can get more and clearer information on the subject I will let the noble Lord know.
I hope noble Lords will feel some reassurance and I would be grateful if the noble Baroness will withdraw her amendment.
Baroness Hamwee
My Lords, I am grateful to noble Lords who made the points on equalities, discrimination, the perception of discrimination and so on far better than I did. There is, again, material to consider and perhaps I—and others—should be encouraging responses to the consultation on the draft code. The Government may not wholly welcome a shedload of comments but that is what consultation is about. I beg leave to withdraw the amendment.
Baroness Hamwee
“12A A judicial authority shall have the power to direct payment of compensation by the Secretary of State to any person whose travel document is seized (whether or not retained).”
Baroness Hamwee
Amendments 35 and 40 relate to practical and legal provisions. The first, probing, amendment allows a judicial authority the power to direct the payment of compensation to a person whose travel document has been seized. I would not suggest that such a power might be used in anything other than the exceptional circumstances, but there would be disruption and damage—I think that is the right term—to a person whose travel documents have been seized and whose travel has been massively disrupted. If you miss a flight, you miss a flight. You might be delayed by some hours or, depending on your destination, by some days. You might miss some important engagement or event, even if you are delayed by only a couple of hours, because you miss a connection, and so on. I do not think I need to labour the point. Have the Government considered whether there should be a power to direct payment of compensation? If not, why not?
Lord Ashton of Hyde
My Lords, we have had an interesting debate on this small group. I hope that I will be able to address most of the points raised by your Lordships.
Amendment 35 seeks to allow the court to direct that the Secretary of State should pay compensation to any person whose travel documents have been seized under Schedule 1. This is regardless of whether or not these travel documents have been retained. Protecting the public from terrorism is the central aim of this power. The power to seize and retain travel documents can play an important role in the detection and prevention of terrorism, and using the power fairly makes it more effective. The Government completely accept the dangers involved with minority groups, as referred to by the noble Lord, Lord Harris, and my noble friend Lady Warsi in another debate, and the effect if this power is not used fairly.
However, if the power—this is exactly what the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, said—is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss. This principle is consistent with the exercise of other police powers: if a power was exercised lawfully, there is no requirement to compensate the individual. I take completely the point made by the noble Lord, Lord Harris, that this can have effects that have wider ramifications but, to use the noble Lord’s own words, that would open up a mare’s nest. Therefore, we do not agree that we should change precedent so that compensation is paid in these circumstances.
Complaints about the conduct of examining officers or the treatment of an individual during the seizure and retention of travel documents may be directed to either the police or the Border Force, depending on which officer seized and retained the travel documents. The draft code of practice explains how an individual may complain. If an individual wishes to challenge the police officer’s decision, she or he may seek redress—again, the noble Lord, Lord Pannick, referred to this—including compensation, from the courts. This is the appropriate avenue to challenge the police’s operation of this power and is in line with procedures in similar circumstances.
The noble Lord, Lord Hylton, asked about travel costs and whether the Government would compensate. As with the compensation principle generally that I outlined, if it is exercised in good faith, this would not lead to a requirement to pay compensation. However, at present, if someone’s flight is disrupted due to the use of Schedule 7 to the Terrorism Act and the police judge that no further action is required, they will often work with the individual and the airline to help them get on another flight, which happens reasonably often. They would do the same with this power where reasonably practicable. Under this Bill, we could also provide assistance to individuals who have had their documents seized, are not resident in the UK and do not have any means to provide for their continuing stay in the UK.
Amendment 40 seeks to illustrate the type of arrangements that may be made by the Secretary of State in relation to a person whose travel documents are retained under Schedule 1. The illustrative examples provided are to include payment for accommodation and making alternative travel arrangements. The power to seize and retain travel documents can play an important role and using the power fairly makes it more effective. The Government are clear: the power in Schedule 1 must be used fairly and proportionately, with respect for the person to whom the power has been applied, and must be exercised in accordance with the prescribed procedures and without discrimination. A failure to use the power in the proper manner will reduce its effectiveness. Amendment 40 is superfluous, as the power under paragraph 14 in Schedule 1 is deliberately broadly framed and could include the Secretary of State making arrangements which include payment for accommodation and alternative travel arrangements for those whose travel documents have been retained.
Protecting the public from terrorism is the central aim of this power, but it is right that we make such provisions to meet our obligations under the European Convention on Human Rights. Therefore, if necessary, an individual who has no means to provide for himself or herself would be provided with basic support for the period that his or her travel documents have been retained. This would involve basic temporary accommodation and subsistence if the individual has no other means to support themselves.
However, we assess that the use of this power against those who do not already reside in the UK will be infrequent. In other cases, where for instance a UK resident has had their travel disrupted, if the power is exercised lawfully on the basis of reasonable suspicion, there is no legal requirement to pay compensation for any associated loss, which is consistent with the exercise of other police powers. For the reasons that I have set out, I hope that my noble friend will feel able to withdraw the amendment.
Baroness Hamwee
My Lords, the explanation given by the noble Lord, Lord Pannick, was exactly as I had understood the position to be. However, for the reasons covered by the noble Lord, Lord Harris of Haringey, I felt that it was important that we set out during our proceedings the reasons for compensation not being payable. I took care to use the phrase “very exceptional”. Perhaps that was not quite strong enough. As to the suggestion made by my noble friend Lord Thomas of Gresford about the possibility of an ex gratia payment, one would not presumably need statutory provision for that by definition. However, it is an interesting suggestion.
Lord Ashton of Hyde
My Lords, I apologise that I did not refer to that in my reply. There is no provision at the moment. We have not decided or made any provision to make ex gratia payments.
Baroness Hamwee
I was suggesting that it would not need provision by virtue of being ex gratia. After today, perhaps we can think about whether specific provision would be needed to allow an ex gratia payment to be made. The examples given in paragraph 14 are helpful and some of the examples given in response to Amendment 35 probably were at least equally applicable to that paragraph. However, we are at Committee stage and, as I keep saying—I hoped that I was being reassuring—all our amendments today are probing. I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, Amendments 37, 38 and 39 are also amendments to paragraph 14. They are probing amendments as to what arrangements the Government might have in mind for the companions of an individual whose travel documents are seized. The Minister may feel that he has covered the ground in his answer to the previous group of amendments but, to put it briefly, if there is anything more that he can say to flesh out the provision, I am sure that the Committee will be glad to hear it. I beg to move.
Lord Ashton of Hyde
My Lords, this will be a brief debate—in fact, hardly a debate.
The amendments in the names of my noble friends have allowed us to think about the implications of this power for the travelling companions of a person whose passport has been seized. Amendments 37 and 39 seek to extend the protections in paragraph 14 of Schedule 1 to any persons travelling with an individual whose travel documents have been retained. It would allow the Secretary of State to provide assistance to the accompanying persons during the retention period and would provide that his or her presence in the UK was not unlawful under the Immigration Act 1971 for the retention period.
As I previously set out, the police can exercise the power in Schedule 1 only based on reasonable suspicion. It is possible that the police may reasonably suspect the intentions of one person travelling in a family group but have no suspicions that the entire family is planning to travel overseas for the purpose of terrorism-related activity. In such a hypothetical circumstance, the accompanying family members may require means to lawfully remain in the UK with the stopped person while the police investigation was on-going and the person’s travel documents were retained. This may be particularly relevant if the power was exercised against a person who was under 18.
These amendments would also allow the Secretary of State to provide assistance to those accompanying an individual who had his or her documents seized, or were not resident in the UK and did not have any means to provide for their continued stay in the UK. I am grateful to my noble friends for shining a light on such a circumstance. However unlikely it may be to occur in reality, they have highlighted a potential gap in the current provisions and the Government are committed to considering this issue in greater detail.
Paragraph 14 provides protections to the individual that would apply during the period that his or her travel documents were retained and he or she was unable to leave the UK. Amendment 38 seeks to alter this to include where a person is “unable to make the journey to which the travel relates”. The additional wording is unnecessary, as being unable to make a journey to which the travel relates is captured in the current drafting, which is “unable to leave the United Kingdom”. However, as the amendment has raised some interesting points on how this provision could be applied, the Government are committed to considering this issue, too, in greater depth.
I hope that my brief reply has satisfied my noble friend and has done all that is required.
Baroness Hamwee
Yes, indeed. I wonder whether officials in the Home Office have been undertaking role-play as to all the different circumstances that might apply when these powers could be exercised, because, as I said, one of the concerns of the House is always about workability. I am grateful to my noble friend. I beg leave to withdraw the amendment.
Baroness Hamwee
My noble friend is aware of this point—at least I hope that he is, because I sent an e-mail on it. Schedule 1 provides for the usual 40-day period in paragraph 19 and I had intended to ask the Minister to confirm that that period is suspended during the Dissolution of Parliament. However, the question now has a second limb, because the Government have tabled Amendment 45, which refers to a similar 40-day period but actually spells that out. I wonder why there is a distinction between these two. I am not objecting to this. The Statutory Instruments Act 1946 covers the point, but dealing with it in detail in the new schedule raises a question that needs to be sat upon with regard to the first schedule.
Lord Bates
I am happy to respond to my noble friend and to thank her for giving advance notice that she intended to speak on this. She asked whether the 40-day period described in paragraph 19 is suspended during Dissolution. I can confirm that the period would be suspended. However, in reality, our intention is for the code of practice to come into force the day after Royal Assent, using the affirmative procedure, as these powers are urgently needed by law enforcement. My noble friend noted that the new schedule in Amendment 45 suspends the 40-day period. It may not be possible to timetable the debate on the court rules necessary to implement the temporary exclusion order provisions by Dissolution. However, we are confident that the House will debate the code of practice on the exercise of the passport seizure provision before Dissolution.
Baroness Hamwee
I am grateful for that answer, but I am not sure that I entirely understand the procedure that the Minister referred to at the start of it. I wonder if he might write to noble Lords about how this would operate.
Lord Ashton of Hyde
I think it would be better if I clarified that and came back to the noble Baroness. I do not want to say something that is incorrect on the precise details of this. I could make a guess, but I would rather not.
The noble Baroness’s amendment would mean that the Home Secretary would be required to have evidence that an individual has engaged in terrorism-related activity abroad rather than having a reasonable suspicion. The reasonable suspicion may well be based on intelligence, which is clearly not always the same as evidence. This change would greatly reduce the number of individuals against whom the Home Secretary could use this power. The result of this would be that the Government would not be able to control the return of individuals suspected of fighting alongside terrorist groups and would have fewer tools available to manage the threat these individuals posed to the British public.
Furthermore, where there is clear evidence that an individual is engaged in terrorism-related activity, it is likely that we would be in a position to seek their prosecution, which would be preferable to placing them under the conditions of a temporary exclusion order. Such a high test would also bring them within scope of the much stronger TPIM regime. Given the less stringent obligations of a TEO compared with the other measures, the Government’s view is that such a test would be disproportionate. On that basis, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I am glad that my noble friend made those concluding remarks, referring particularly to prosecution where it is possible.
Should we be comforted by the distinction between the words in Condition A, “reasonably suspects”, with an emphasis on “suspects”—the noble Lord referred to “reasonable grounds for suspicion”, which we covered earlier today—as against, in Conditions B and C,
“the Secretary of State reasonably considers”?
That seems to require more of the Secretary of State. Conditions A to D must all be met, so we can look at them together and see an escalation of the seriousness of the Secretary of State’s views, if I may put it like that. I could understand the concerns of the noble Baroness if we were to look only at Condition A, but I do not think that we can look at it in isolation.
Baroness Smith of Basildon
I am grateful to the noble Baroness for trying to help the Minister but the purpose of the amendment was merely to probe the issues around the evidence base for “suspects”. She was taking me very literally on that.
I am grateful to the Minister for his response and glad that he will write to me on the point that I raised with him. Could he also write to me on the second point, which he did not address? This was about somebody who might have dual nationality and was fighting against terrorism, for instance. I gave the example of a British Iraqi Kurd who was fighting against ISIS. It would be helpful if he could clarify that.
The purpose of this amendment and my next, Amendment 56, is to tease out how this will work. The Government need to answer some of these complex questions. It is a big and important power, but we need to understand how it will work. I am grateful for the Minister’s help and his offer to write to me, and I beg leave to withdraw the amendment.
Baroness Hamwee
Baroness Hamwee
My Lords, I wondered whether the noble Baroness was adopting this one.
Baroness Hamwee
I think we are all being as co-operative as we can be on this: we are aiming at the same thing.
Briefly, Amendment 56 amends Clause 3, which provides that notice of the imposition of an order must include an explanation of the procedure for making an application under Clause 5. My amendment would provide that it should also include,
“the Secretary of State’s reasons”.
This is simply for the reasons that we discussed earlier: an individual affected needs to have an understanding, not necessarily—almost inevitably not—of the fine detail, but of the gist of the reasons why. This might not be the right term in this context, but in normal terminology it covers what I mean. Having knowledge of the procedure is not a great deal of use unless one knows the reasons for the Secretary of State’s decision. I did not quite keep that to under a minute but I beg to move.
Lord Bates
My Lords, I appreciate that this is the last group of amendments before we seek the permission of the House to break. I am grateful to my noble friend for raising this point, which relates to the information provided to the subject of a temporary exclusion order.
It is, of course, important that the individual is informed that they are subject to a temporary exclusion order—after all, that is the point of it—and that they are given some indication of why this is the case. However, I trust your Lordships will understand that it is not appropriate for the individual to be provided with detailed reasoning behind the Secretary of State’s decision, which is likely to include sensitive information, the disclosure of which could damage national security and put lives at risk.
Any notice given to the individual would state that the Secretary of State has reasonable suspicion that they have been involved in terrorism-related activity abroad. We believe that this is sufficient disclosure, which informs the individual of the basis for the decision while protecting sensitive information.
My noble friend was brief in moving her amendment. I have been fairly brief in responding to it but I hope I have answered the point she was making. I therefore ask her to withdraw her amendment.
Baroness Hamwee
My Lords, I am conscious of the time. I think that was one of those answers that may raise further questions, which perhaps I will keep for another day. As there is another debate about to happen, I beg leave to withdraw the amendment.
Higher Education: Overseas Students
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Baroness Hamwee
To ask Her Majesty’s Government what assessment they have made of the impact on students, universities and international relations of requiring overseas students to leave the United Kingdom immediately upon graduating.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, our reforms have clamped down on the student migration abuse allowed under the last Government, while ensuring that our excellent universities continue to attract the brightest and best students. Ensuring that immigrants leave at the end of their visa is just as important as controlling who comes here to study in the first place.
Baroness Hamwee (LD)
My Lords, I am sorry that the Minister used the term “abuse” in this context. There has been much criticism, including by eminent businesspeople and economists, about,
“shutting the door on some of the very individuals who help the UK’s unique global service economy to thrive”,
to use the words of the British Chambers of Commerce. I tabled the Question in the Recess, when the proposal referred to appeared from the Home Office—I am glad that it seems not to be making progress—but can the Minister tell us what current Conservative thinking is on visas for new graduates?
Lord Bates
I can certainly inform my noble friend what government thinking is on the position. In the same spirit, I reflect that it seemed to be the position of her party that we ought to count people in and count them out. Last year we counted 121,000 students in and 51,000 out. That leaves 70,000 people who were here without an appropriate visa, and we think that that is wrong. If you are here on a study visa, you should be studying. You should not be working. If you want to come here to work, you are very welcome but you ought to apply for the right visa to uphold that.
Terrorist Attack in Paris
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Lord Bates
Taking the last point first, I certainly agree that information sharing needs to improve. That is why we signed up for the ECRIS security system data checks and the Schengen information sharing system and why dialogues are happening at this very time in the US—the Prime Minister departs soon for Washington to engage in conversations with our partners there—and elsewhere in Europe.
On the noble Lord’s first point about image, when people resort to violence and intimidation the result, as is so often the case, is exactly the opposite of what they try to do. They tried to divide and spread terror but instead they brought confidence onto the streets of Paris which was shared across Europe. That was a welcome sight and a very bold message to send to those who would challenge our liberties.
Baroness Hamwee (LD)
My Lords, the view was widely expressed in yesterday’s debate that Prevent, and the Channel programme within it, is the most difficult and most important strand of the counter- terrorism strategy. I welcome the reference in the Statement to the investment of time, resources and money in the counternarrative. Money, time and energy are not unlimited. Do the Government agree that it may be more productive to apply these to quiet, informal, non-traditional and imaginative support and advice and will they remain open to not using up those resources on putting Prevent on a statutory basis?
Lord Bates
Some 45,000 people have had contact through the Prevent programmes but their provision across England and Wales is, one might say, patchy. The idea behind putting it on a statutory footing—something which the Independent Reviewer of Terrorism Legislation, David Anderson, supported—was to try to raise standards to ensure that we get better value for money from it. In doing that, it is important to work with those in the Muslim community. They are our partners and they want to work with Government and the wider community to identify people who pose a potential risk and to challenge the notion that these acts of terror are anything other than brutality and have absolutely nothing to do with their faith.
Counter-Terrorism and Security Bill
Baroness Hamwee Excerpts(9 years, 10 months ago)
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Baroness Hamwee (LD)
My Lords, it is apposite today to refer to the words attributed to Voltaire:
“I disapprove of what you say, but I will defend to the death your right to say it”,
because it is sadly topical and neatly expressed. I start with the importance of language in both general discussion of the issues and the Bill. Messages are taken from tone and emphasis as well as from the detail.
The term “temporary exclusion orders” immediately made me think of Shakespeare’s words in “Richard II”, when two of Richard’s court are exiled after allegations of treachery:
“England’s ground, farewell;
Where’er I wander, boast of this I can,
Though banish’d, yet a trueborn Englishman”.
TEOs are not banishment; they are about the converse—managing return to the UK. I am worried about misleading language being misunderstood and suggesting something more aggressive and alienating than is intended. I refer to the tone at the start of the Bill, because the application of money often follows tone and because the softer measures, to which the noble Baroness referred, must not be relegated. The most effective dissuasion of individuals from going out to fight may come from those who return disillusioned.
The Minister indicated, and I very much welcome, that the House will have the chance to consider changes to the scheme, particularly judicial oversight. I hope that any revised scheme will address where decisions are taken as well as what the decisions are. It will be very difficult for a court in this country to consider action taken overseas. I am also concerned that an individual who comes back to this country on a permit should not be taken to have incriminated himself. That point is made by the JCHR with regard to TPIMs.
I confess that I have not got my head around quite how the TEOs will operate on the ground. The possibility of being picked up at an airport in Turkey on the way back from Syria to the UK will obviously quickly become known, but what if the individual books to, say, Frankfurt with a view to travelling through Europe, where there is free movement? My question underlying that concerns what discussion the Government have had with our European partners.
The same question occurs to me—I am sorry that I have not managed to give my noble friend notice of this one—about the power in Schedule 1 to seize a passport that is not a UK passport. UK passports are not the property of the passport holder. I assume that the same is the case with other nationalities. Are UK authorities entitled to seize them? If the individual is travelling to somewhere close to the war, or simply buying a return ticket to Frankfurt, great care will be needed to avoid both discrimination and the perception of discrimination. The individual must be given reasons for the exercise of the power under Schedule 1, and be given them immediately. It is a separate matter from there being reasonable grounds for suspecting an intention to become involved in terrorism-related activity and the judicial oversight of that.
I believe these powers should be statutorily subject to review by the independent reviewer and we should consider all the points that Mr Anderson has made so cogently about his remit, his powers and his resources. My admiration for the current postholder—this is not a comment on any predecessor of his—knows almost no bounds but, like the JCHR, I have not quite made the link between this specific power of TPIM relocation and a change in the nature of the threat other than,
“wider powers are always useful to deal with the challenges a growing threat might throw up”.
The JCHR also referred to Mr Anderson’s heavy heart on the topic.
On TPIMs, the increase in the maximum penalty for breach of the provision condition to 10 years seems harsh, given that there has been no conviction for an offence. The independent reviewer’s points about requiring attendance at meetings with probation and others resonate more comfortably with me. As he said, do not waste opportunities—there is a positive strategy of engagement to be used.
I want to dwell on engagement because not everything is capable of being dealt with in legislation. I am pleased that a number of my noble friends are speaking today and I know that others wanted to. At least two of my noble friends will mention data retention but I will simply say that for the agencies it must be not just a matter of powers but of resources.
There is less formal, more imaginative work that warrants a lot of our attention. How should we counter peer pressure, usually on young men but also, to a lesser extent—although it is still a significant number—on women? What is the impact of social media and how can they be used to dissuade people from going to fight for what they may wrongly see as a humanitarian mission, and to encourage those who have gone to come home? These people are a source of intelligence. They can provide an excellent counternarrative, and if we drive them away we may never solve the problems.
I have heard some interesting discussion about the need not just to talk the counternarrative but also to do it. Rather than focusing on taking down content from the internet—which is probably impossible to deal with completely because of the volume involved—we should put up content to dissuade people. I have heard that this can be effective and it is thought to be effective because of the material ISIS itself is seeking to put up in response. A lot of the propaganda is about lifestyle, not ideology, so those who have had experience of conditions on the ground can counter that.
The Prevent strategy of Contest and the Channel programme are in some ways bound to be the hardest. Prevent has lost funding and, perhaps, focus. I have considerable reservations about putting it on a statutory basis. There is, I have heard, some resentment from those who have been doing the job about the implication that they have not been doing it well. Those who have not been doing it well may need assistance rather than direction.
I declare an interest as one of the joint presidents of London Councils, which says that the boroughs are “ready to play their part” but asks for the comfort of on-the-record confirmation that the “new burdens” principle—that is, that new burdens will be funded—will apply to costs not covered by the Home Office, including costs that it expects to be revised upwards following consultation on the statutory guidance. They also make points about who can refer individuals to the panels, which is the sort of detail we can come to in Committee.
We are all aware of concerns in the education sector—not just in higher education—about whether the duties proposed are appropriate or practicable. My noble friend Lady Sharp wanted to speak on that. I will simply say that as a result of a crossed wire her name is not on the list, but she will make her points in Committee.
A number of different approaches have been developed across Europe to prevent potential foreign fighters leaving, to minimise the threat when they return, and to strengthen the knowledge and capacity of families and communities to play a proactive role. To give support to these approaches is not fluffy but hard-nosed and self-interested. The Hayat programme in Germany works at an ideological, pragmatic and effective level. It includes giving support to families who remain in touch with their children while they are in Syria and Iraq. It is said that parents are, in effect, negotiating for their children’s lives. Returnees often need support, which in itself is a prevention measure, and programmes of deradicalisation and disengagement, provided by people trusted by the recipient and everybody else involved, are invaluable. There is also the Aarhus model in Denmark, which is very structured and centralised. All this is very nuanced; it needs attention and effort and, as I say, it is not secondary.
Finally, on the Privacy and Civil Liberties Board, the independent reviewer made what I thought were very modest and moderate points about resourcing and support, and his comments on the proposals have been masterly in their understatement. The independence that comes from the postholder being part-time is not to be undervalued, although I suspect that his and his predecessor’s “part-time” is the equivalent to the aggregate full-time of several other people. However, it seems that there is not yet complete agreement over the role of the board, and we need to consider its relationship to the independent reviewer; what work it undertakes; its role as a check and balance on—let me put it this way—a currently hypothetical future reviewer who might need to be balanced or checked; and its role as a voice that might challenge assumptions within the wider decision-making process regarding legislation where civil liberties issues are at stake.
It is frustrating not to have the time to refer to all the provisions of the Bill, but we will of course have Committee. The Bill has come to us at a moment of high tension, so the task of careful, calm scrutiny is all the more important. I do not dismiss being tough, but we should be tough where there is evidence, other than very exceptionally and without forgetting proper process. Effectiveness is not the inevitable outcome of talking tough. What is even tougher is protecting our freedoms and creating an effective narrative of our own.
Modern Slavery Bill
Baroness Hamwee Excerpts(9 years, 11 months ago)
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Baroness Butler-Sloss (CB)
My Lords, my Amendment 96 is in this group. I start by saying that I entirely support the idea of the previous speakers that we should have a statutory national referral mechanism, although perhaps with more felicitous wording, as the noble Lord, Lord Warner, has just suggested.
My proposal is much more modest. The reason for it is this. At the moment we have a very poor double system. There is the UKHTC in Birmingham, which provides, as we have heard, an 80% yes rate to victims, as opposed to the UKVI, which says that only 20% get through. Clearly, that is unacceptable. We also have two reviews from Jeremy Oppenheim which, in my view, are absolutely excellent. As I understand it, the Government have agreed in principle to the fundamental and radical changes that the second, final review has asked for. However, it seems to me that there needs to be some time for consultation, for arranging to get these panels around the country and for arranging how, in fact, a new, better described NRM should work.
My proposal is that the Secretary of State should have the power to make regulations to establish this statutory committee, leaving it to the Home Office to work it out. However, in order to keep them up to the mark, the Secretary of State must report to Parliament within 12 months of the Bill becoming law, in order to say that they will actually do it. At the end of the day, we undoubtedly need a statutory system. But I believe that we need some leeway to work out how it should be. That is why my amendments, in my view, are very modest.
If I may respectfully say so, it would be very unwise of the Government not to listen to this. We have the two reviews of the NRM and we have what the Joint Committee has said, which has been set out so well by the noble Lord, Lord Warner—of course, I was a member of the committee. I totally support the proposals of our Select Committee and of the two reviews. All I am saying is that the Government should have a bit of time to think it over, but not so much time that the matter goes into what is sometimes called the long grass, because this really has to come. The current situation cannot go on for much longer because it is so patently wrong. That has been set out very clearly in the two reviews of the national referral mechanism.
I hope that, at the least, the Government will accept my amendment. I would have no objection to the Government accepting either of the other amendments that have come forward. However, I have no doubt that, one way or another, within the next 12 to 18 months, we will need to have a statutory mechanism for dealing with victim identification and support.
Baroness Hamwee (LD)
My Lords, I added my name to the noble and learned Baroness’s amendment for all the reasons that she has given. Never say never; in fact, let us say, “Let’s get on with it”—but let us get on with it in an appropriate way, which must include consultation. Jeremy Oppenheim’s review made very clear the lack of understanding of processes and the variability in standards across the mechanism. I found myself thinking, “Well, no wonder, because it is such a loose process that it is quite difficult to get to grips with”. When I first heard of it, a few years ago, it took me some time to understand just what this was about, given that it is so lacking in obvious governance arrangements and so in need of something against which one could appeal if one was dissatisfied with an outcome.
The two paragraphs—there may be more—of the NRM review that refer to the possibility of a statutory basis do not actually put it out of the question. Paragraph 8.2.14 says that,
“we believe strongly that to put the National Referral Mechanism on a statutory footing now would not guarantee”,
remedying the flawed system. At paragraph 8.3.1, it says:
“Although there is much support for … a statutory footing or providing a right of appeal, these may not be necessary if we have a well governed National Referral Mechanism”.
The prospect is certainly not dismissed by the reviewer.
Baroness Hamwee
My Lords, I have tabled Amendments 88A and 91A in this group. I take the point about pre-emption, but the reason for my amendments remains, and will remain if the clause is amended only as the Government propose. At the heart of this is my concern that it should not only be a specified public authority with a duty to notify the Secretary of State, or whoever else it might be, if the authority believes that someone is a victim of slavery or human trafficking. The clause provides that there must be notification if the public authority has reason to believe that a person is such a victim. However, should not all public authorities have that duty, rather than just specified public authorities? If the authority has no reason to believe that a person is a victim, the duty to notify is not triggered—but even if an apparently unlikely public authority comes across a victim, should it not give notification?
When I was trying to think of an example, the Highways Agency seemed to be one of those authorities. In engaging a contractor to undertake work on a motorway, the Highways Agency might well be concerned that with some of those operating machinery or doing the heavy work, the contractor has engaged forced labour. We know that the construction industry is a sector which is at risk, if I can put it that way. Surely, then, it should have a duty, just as a local authority visiting premises—for example, for environmental health—would have the same obligation. I am quite concerned that without any good reason—because, as I say, the duty would not be triggered unless there was a reason to believe—the Government are unnecessarily narrowing the provision in the clause.
Baroness Garden of Frognal
I am grateful to my noble friend for speaking to her amendments, which gives me the opportunity to explain the Government’s approach on who the duty to notify will apply to. We thought carefully about how to define the duty to notify, and to which authorities it should apply. Modern slavery is a complex and hidden crime and we need to ensure that those who are charged with the duty to notify in the Bill have the appropriate expertise to discharge their responsibilities. If we extend the duty too widely, we risk placing a duty on public authorities that lack the necessary skills to identify victims of this complex crime.
We recognise that identification of victims is an area that needs further development. We have ensured that encouraging good practice in the identification of victims is part of the commissioner’s remit and have included statutory guidance on victim identification in the Bill. We will also work with public bodies to improve training and awareness of the issue. The flexibility of specifying public authorities to whom the duty applies means that when we consider that further public authorities have the expertise effectively to identify victims of modern slavery, they can be added to the duty.
The Government do not want to place a legal and administrative burden on public authorities unnecessarily. For example, requiring authorities which simply will not come into contact with victims to provide training to staff and set up data recording systems would not be an efficient use of public funds.
My noble friend mentioned the Highways Agency. If an authority such as the Highways Agency had concerns over modern slavery, it should call the police or voluntarily notify according to the process set out in the duty of notify, so it will have access to people who have more expertise in that area.
Given this clarification, I hope that my noble friend is satisfied that the Bill strikes the right balance between ensuring that the right bodies are subject to this duty and enabling flexibility for changes in the future. I hope she will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I certainly will not press the amendment today, but I wonder which is the chicken and which is the egg here. Of course, there is a concern about skills in identifying possible victims, but because this is an issue, it seems to me that it is all the more important that a duty to do something—maybe not to notify the Secretary of State, but to do something—ought to apply.
This is an unprocessed thought from when my noble friend was speaking. She said, rightly, that anyone who is concerned can go to the police. As we are talking about public authorities—and the Government have a relationship with public authorities—should we be thinking about guidance to all public authorities? As a minimum, it would say, “You may not have the skills, but all public authorities should be aware of this and if you have a concern, go to the police—if you think that there is nothing else you can do, always go to the police”. I think there is some scope—maybe not on the face of the Bill—for a bit more thought to go into the way we are operating our response to these issues.
I think that the Box has had time to process the thought that I did not. What I am saying is that I would be uneasy about leaving it there, because we have all identified that there is a problem that needs getting to grips with.
Lord Hylton (CB)
My Lords, may I help the noble Baroness, Lady Hamwee? Perhaps the words she is looking for are “reasonable suspicion” rather than 100% identification?
Baroness Hamwee
My Lords, I was taking words from the Bill; “reason to believe” is what triggers the duty.
Baroness Garden of Frognal
Indeed, my Lords. In my reply I mentioned that we are working with public bodies to improve training in awareness of the issue. There will be guidance for public authorities on identifying victims. So my noble friend is quite right to raise this as an issue, but the Government are already working towards that end.
Baroness Kennedy of Cradley (Lab)
My Lords, I, too, add support for the amendment moved by the noble Baroness, Lady Cox. This is a very important issue, affecting a group of extremely vulnerable workers, so it is right and fundamental that it forms part of the Bill. The change to the overseas domestic workers visa back in 2012, tying domestic workers to their employer, was too heavy-handed a response when you look at the number of domestic workers involved and the vulnerability of those workers. In 2010, visas issued to domestic workers accounted for just 6% of all employment-related visas issued. At the time of the change, the Government argued that this visa was a route to settlement that was abused. However, very few overseas domestic workers were granted the right to settle; between 2006 and 2010, an average of just 700 domestic workers a year were given the right to settlement. That figure taken as a percentage of the 2013 settlement figures represents less than 0.5%.
I understand, as the Government will argue, that because of their isolated working conditions this group of workers was vulnerable to, and suffered, abuse before the change in visa rules. But the research by Kalayaan, as others have said, has shown that abuse and exploitation has increased as a result of the new visa rules, figures that the Minister in the other place made clear are not disputed by the Government. This visa change has created the perfect storm, with work carried out in isolated conditions, employers having excessive power afforded to them and a legal system that offers absolutely no protection. It is therefore unsurprising that the abuse has increased.
The Minister will no doubt talk about having stronger pre-entry checks, a stronger written contract with explicit terms and conditions and more information given to overseas workers on their rights but, as the noble Baroness, Lady Hanham, said, the effectiveness of those provisions has yet to be proven in practice. Also, these actions are not mutually exclusive to any other action; it is not a choice between stronger support mechanisms or a change in the visa rules—we should be doing both.
The amendment has a lot of support inside and outside this Chamber. Three parliamentary reviews have supported a change to the visa situation for overseas domestic workers. I hope that the Government can support it too, and include this amendment, or a version of it, in the Modern Slavery Bill.
Baroness Hamwee
My Lords, it happens here—it happens even in Scotland, as we have heard, that most civilised country.
A number of noble Lords have used words such as “unimaginable” but, like the noble Baroness, Lady Hanham, I can only too well imagine the card—and I share her concerns about the card itself—being slipped into the passport as it is handed over. Of course, the passport is then very often taken by the employer.
I do not want to repeat the very powerful speeches made by so many noble Lords. I was grateful to hear from a number of people, including, most strongly and emphatically, from the three workers themselves to whom the noble Baroness referred, and at the meeting that she organised with Virginia Mantouvalou, who has written a report. Clearly, it is far too long to read here, but one thing particularly struck me. She gives the history of the overseas domestic worker visa and the diplomatic visa. When the concession was originally introduced, it was from concern to enable workers who had been with a family overseas to come here. The comment was made that it was for “a humanitarian reason”—to look after the domestic workers—and look where we have got to.
At that meeting, Kate Roberts from Kalayaan explained how her organisation could no longer help workers who managed to find their way to it, which must be a tiny percentage, because the organisation has to explain the problem with the Immigration Rules. Indeed, it often cannot help because of threats from employers to workers about criminalisation.
A number of noble Lords have also said that we must remember the realities. Measures such as dealing more effectively at the port of entry are important, but they are not enough. One thing that occurs to me on that is that, at the border on exit, when there is suspicion that a girl is being taken abroad for a forced marriage—the border officials are trained to recognise this—there are arrangements whereby they can be taken aside to be interviewed. The noble Baroness is right to point to that. I do not see why it should not happen in the other direction. We need to think about the realities. What people seem to be able to do to get around formal systems is almost beyond our imagining, and it is the realities that we need to fix on.
Lord Hylton
My Lords, I happen to have been involved with this situation, which allows serious abuses of incoming domestic workers to happen, since the early 1990s. I have never known such universal support for the need for a reform as we have heard today. I leave it at that.
Lord Whitty (Lab)
My Lords, I will intervene very briefly because I agree with almost everything that has been said. I was the Minister who brought in the Gangmasters Licensing Authority. At that time there was considerable scepticism as to whether we could use administrative means to clean up what was broadly recognised as an exploitative situation within horticulture and agriculture. I wished then that it had been slightly broader than that because, even more than 10 years ago, it was evident that some of these terrible practices extended to some other industries. Indeed, the same workers were being used. However, we decided to focus on horticulture and agriculture. The general message is that, although we have not entirely eliminated exploitation, bad living conditions and illegality from those sectors, they are a lot cleaner than they were. The effectiveness of the GLA is widely recognised.
The important point that has not really been emphasised is that the GLA has the ability to sanction the users of the labour. It is not just the gangmasters who are in the frame but the farmers and the horticulturalists as well, and that has driven a change of behaviour and attitude which has been backed up by those who use the produce—the retailers and the processors. There is a whole supply effect because the direct employer of labour that is being provided under these terrible conditions can be sanctioned.
This situation pre-eminently applies in parts of construction and it very evidently applies in catering and hospitality and in the care sector. If pressure is not put on the apparently respectable users of that labour then the sanctions, although not entirely ineffective, are less than complete. I recognise, as other noble Lords have done, the need for more information and more resources but we must use this legislation to enable the Government to extend this kind of approach to these other sectors at the appropriate point.
Baroness Hamwee
My Lords, I have added my name to Amendment 97 tabled by the noble and learned Baroness, Lady Butler-Sloss. It is clear that the Gangmasters Licensing Authority is widely respected and its role in preventing the increase in forced labour is very effective. The sectors that we are concerned about have all been mentioned and so I do not need to repeat points that have been powerfully made. It is not just a question of extending the sectors covered by the GLA. We should also not overlook its powers and duties. For instance, I understand that the GLA does not have the power to recover arrears of pay on behalf of workers. That sort of power or function might be one for further consideration.
The issue of resources arises. My noble friend Lady Suttie, who cannot be here at the moment, commented to me that there should be some sort of cost-benefit analysis of the extension of the sectors because of possible savings elsewhere. We know how hard this is in government. The DWP, the Department of Health and even the Home Office perhaps would not readily concede this, although they might be involved in some sort of analysis.
I am sorry to see that the CBI is reluctant to consider an extension. Its briefing refers to the GLA being,
“most effective in those sectors in which it currently operates”,
and to focusing on not extending work to “low-risk areas”. As noble Lords have said, construction, care, catering and hospitality are high-risk areas. The CBI is concerned about scrutiny of the compliant rather than action against the non-compliant. The obvious answer is that when there is compliance there need not be too much of a burden.
The British Retail Consortium takes a different view and has briefed a number of noble Lords about the GLA being an example of an effective body in helping to manage and mitigate the risks of slavery. It supports a review of the role and remit of the GLA, including extending its investigative powers, as long as it is sufficiently resourced, into other, as it puts it, high-risk areas. It is obvious that there is, if not unanimity, quite a lot of support. This surely must be something that the Government could at least leave on the agenda rather than exclude it.
Baroness Garden of Frognal
My Lords, I am grateful to the noble and learned Baroness for tabling this amendment, and to other noble Lords who have spoken with such concern about the issues around the Gangmasters Licensing Authority, particularly its remit.
This Government are committed to ensuring fairness in the workplace, tackling worker exploitation and encouraging and raising levels of compliance with workplace rights across all sectors. We are already doing this through the use of existing enforcement arrangements. We very much welcome the many comments that have been made in support of the GLA and its vital work. It has been operating for less than 10 years but it is a successful organisation doing excellent work in tackling harmful activity affecting workers who are particularly vulnerable to exploitation in the sectors that it currently covers.
We need to consider this carefully and ensure that in seeking to broaden the GLA’s remit, we do not risk undermining the good work that is being done already. As the noble and learned Baroness pointed out, it is a comparatively small body, with only 66 staff. It performs a targeted role in an effective way and has a positive influence in the broader fight against exploitation. We very much want that to continue.
Following the Red Tape Challenge exercise and the triennial review, the GLA is implementing changes that will lift unnecessary burdens on compliant businesses while enabling a stronger focus on enforcement action. It is important that both these aspects are developed and move forward together.
Amendment 97 provides for a very broad power, enabling expansion of the GLA’s scope, remit and powers. Changes in the scope or remit of the GLA may very well be sensible; that is something that we will wish to consider further and which the Government have said that they wish to keep under review. However, we are not convinced that Amendment 97 meets that need or is the appropriate way to deal with the issue at the moment.
The amendment is open-ended. The enabling power could be used to set up the GLA to tackle all forms of slavery, trafficking and exploitation far beyond employment. That is a very big step away from the GLA’s current remit, where it has been so effective. It would require a dramatically different organisational and funding model to achieve a much broader role, which would likely require further primary legislation, as has been alluded to. Amendments 97A and 101A focus specifically on the remit, enabling the current licensing regime to be extended to additional industrial sectors beyond agriculture and food. Noble Lords have mentioned a number of sectors where this would be particularly relevant.
I pay tribute to the noble Lord, Lord Whitty, who introduced the Bill in 2004 that established the GLA as a body to carry out a licensing regime and to take enforcement action against unlicensed activities. We need to progress on both these fronts. It would be interesting to discuss with the noble Lord why he did not seek to extend the remit from the two sectors that were mentioned in the original Act.
We have concerns about extending the regime to new sectors without clear evidence that that represents the most effective and efficient approach. Licensing affects the compliant business and the rogue gangmaster alike. The majority of gangmaster businesses are highly compliant small and medium-sized enterprises that are generating employment and economic growth for the UK. We would not want to burden them unnecessarily with regulation.
Simply extending the current licensing regime into new sectors would not necessarily improve efforts to tackle exploitative employers who flout the law. We need to focus on seeking and bringing to justice serious criminals who enslave innocent victims. So we wish to see a GLA with a strong focus on anti-slavery and worker exploitation that will support the Government’s broader strategy on modern slavery. We are working for that through an approach that builds on the GLA’s already excellent work.
I will set out some of the work that is already happening to develop the GLA. Bringing it into the Home Office has already increased collaboration and capability through easier contact with other law enforcement agencies engaged in addressing and disrupting serious criminal activity, including human trafficking for worker exploitation in the UK. The GLA is playing a full part in the better business compliance partnerships—a programme that will begin operation shortly. These pilots will look at more efficient ways of bringing together a wide range of compliance and enforcement officers locally. We expect the GLA to bring knowledge and experience to the problems identified in these areas to tackle worker exploitation and illegal working.
The GLA is working with the University of Derby to devise training and to develop an anti-slavery training academy for use by supply chain businesses. This will build on the GLA’s excellent existing collaboration with business in its regulated sectors. The GLA is well placed to tackle the serious worker exploitation that lies between the more technical compliance offences that fall to be investigated by HMRC and the serious and organised crimes that are addressed by the National Crime Agency.
My noble friend Lady Hamwee raised the concerns of the CBI, which we share, about the appropriateness of this measure and the expansion not just into other sectors but of the remit of the GLA. We have a very good working agency in the GLA and it is tempting to extend it beyond its natural remit too quickly and without due consideration of all the factors that would be required to make entirely sure that any extension was appropriate and as efficient as the GLA.
The noble Baroness, Lady Kennedy, mentioned the inadequacy of the fines and the sentencing. Sentencing is a matter for the courts and there have been some low fines issued against convicted unlicensed gangmasters, but she may be reassured to know that the first custodial sentence for an offence under the Gangmasters (Licensing) Act was imposed in December 2013 when a Lithuanian national was given seven years for operating without a licence. He ran an organised crime operation in Norfolk and controlled scores of workers brought over from his homeland, using tactics including debt bondage, psychological and physical intimidation, and violence. We have heard from other noble Lords of some appalling examples of the way in which workers can be treated by gangmasters. Fines have been increased for magistrates’ courts and Crown Courts, depending on the seriousness of the offence, so hopefully the levity of the fines is currently being tackled.
I can assure the House that there is a great deal of work going on within government to improve the work of the GLA and to consider its future. We will, of course, ensure that today’s contributions are considered during that work and we will further consider whether it might be expanded in sector or in remit. For the moment we do not feel that this particular legislation and these particular amendments are the best way of moving forward, but obviously we will discuss this again and I hope that meanwhile noble Lords will feel able not to press their amendments.
Baroness Hamwee
My Lords, I am very pleased to hear of the work that is going on. I do not know whether I missed it but is any work being undertaken to obtain the evidence of the need for an extension of the remit and an extension into other sectors? Many of us have been told about this but more evidence is needed. Is work being undertaken by the Government to satisfy themselves in response to the sorts of concerns that have been expressed? I accept that the Minister may not have that information now but I think that it is a question which it is appropriate to ask at this point.
Baroness Garden of Frognal
It is indeed. I do not have that evidence directly to hand but it is probably something that the University of Derby will be considering in its work in investigating and reviewing this.
Baroness Goudie (Lab)
My Lords, I support my noble friend Lord Rosser on this amendment. I feel extremely strongly about this as, throughout this evening, we have heard about not having enough money but we have to remember that we are talking about people. They are not robots or goods; they are human beings. It is really important to remember that when we talked earlier about the cost of implementing this, we are talking about saving people’s lives and ensuring that they have a life as good as we have, or even better.
The way I see this operating is that accountability in companies should be handled by their procurement department. Every large and small company has a procurement department or somebody who goes to the middle companies that they order from. We should not say that the middle people should be responsible. The companies should be able to tell us and, if necessary, go and inspect where and how the goods are made, and how the people are paid. They spend enough time on decorating, branding and PR, but instead of spending so much time and money on those things, they should spend it in their new procurement department. Some of them have these procurement departments; I see them as being as important as health and safety has become, thanks to the way that Governments have pushed that forward.
It is so that the companies can say, when the audit is done every year and in their annual report, that they have visited the factories and the building sites. It may be something that the construction industry here is responsible for in Bahrain, Beijing or Qatar. This should apply not just to companies but to government departments, when we are assisting as museums or parts of new universities are built abroad. What we are trying to say is that every company and organisation involved in labour or goods, abroad or here, should be audited and that the procurement department should be responsible. “May” is not strong enough; we have to say that this is to be done annually in the audit and that it can be inspected and questioned.
Baroness Hamwee
My Lords, at the end of Second Reading the Minister, referring to one noble Lord—but I think it might have applied to many of us—commented that he spent a minute welcoming the Bill and then several minutes asking for more. Clearly, this clause falls into that category.
I have tabled Amendments 97B to 97E, which come from a meeting that a number of us had with the Minister, after which we were looking for a peg on which he could hang the very helpful assurances given in that meeting. I appreciate that this is a developing area of work for the Government. As has been said, Clause 51 has not been in the Bill for very long. It is also clear that many colleagues feel that it needs to be strengthened. My amendments would provide a power for the Secretary of State to make regulations about the form of the statement and how it is to be reported—something that particularly concerned those who have spoken and features in briefings that we have had. They would also allow the Secretary of State to issue regulations about the duties imposed on commercial organisations, not just guidance.
Modern Slavery Bill
Baroness Hamwee Excerpts(9 years, 11 months ago)
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Baroness Hamwee (LD)
My Lords, I have Amendment 67F in this group but, before I discuss it, I should say how much I agree with the thrust of everything that has been said this afternoon. I tabled some amendments which we discussed at the end of our proceedings last Wednesday, which went in the same direction as many of the amendments in this group. It is perhaps as well that the group was not made even longer by having those amendments in it.
The noble Lord, Lord Warner, asked why we should go to all this trouble and then constrain the commissioner’s remit and role. That seems to me to go absolutely to the heart of the issue. The commissioner should be able to take a holistic—I do not much like that word—viewpoint of everything that is going on that relates to trafficking. The issues are very complex and interrelated and our understanding of them is developing fast, so the commissioner should be allowed the scope that the commissioner designate has clearly identified. However, as others have said, we should not leave it to him to find ways round the legislation, as it were, which is what it sounds as if he is seeking to do, although I am sure that he would not put it that way.
Moreover, I wonder whether the Secretary of State should have a power to redact passages from reports in the interests of national security. I am not sure whether I am right about this, but I could not find a similar power for the Secretary of State in respect of the reviewer of terrorism legislation, where you would think that would certainly be needed. I think what this boils down to is that we have to respect the fact that the commissioners who are appointed will be entirely sensible.
My amendment picks up the point about data collection and would insert a power to collect, compile, analyse and disseminate information and statistics. The Government’s response to the report of the pre-legislative scrutiny committee, which argued for the ability to deal with data, did not, as far as I could see, address that. As Governments always do, they said that the scrutiny was welcome. However, the point was also picked up by the Joint Committee on Human Rights, which commented:
“National human rights institutions … generally do not have the Ombudsman-type power to take up individual cases, but they do have a significant role in collecting data in order to monitor the State’s performance in observing the rights of individuals”.
If I can put it less assertively, may I ask my noble friend whether he can confirm that research, which is mentioned in the clause, covers the points which I have included in my amendment? Even if the role is restricted to enforcement, which I very much hope it is not, data collection is important in enforcement. Enforcers need to know what they are up against. I also ask my noble friend whether the Government will be producing a data-sharing protocol, which is recommended in the review of the NRM. There will be another point on data later, but if the Minister is able to answer, that would be interesting.
Baroness Lister of Burtersett (Lab)
My Lords, I rise in support of these amendments aimed at strengthening and broadening the remit of the anti-slavery commissioner, which is very much in the spirit of the recommendation put forward by the Joint Committee on Human Rights, of which I am a member. The JCHR concluded that the commissioner’s mandate,
“remains weak … and narrowly focused”.
Following questioning of the Government, the committee accepted the need to avoid any overlap or confusion with the role of the Victims’ Commissioner—I see that the noble Baroness is in her place—but we said that we did not consider this to be an inevitable result of broadening the role beyond its narrow focus on law enforcement.
Amnesty made the point in its briefing that the Home Secretary has emphasised the need for a co-ordinated and holistic approach, mentioned by the noble Baroness, Lady Hamwee, to tackling modern slavery. It said that this is why it is so important that the commissioner is properly resourced and empowered to look fully across the piece. I agree with that.
The JCHR recommended that the Government should follow the model of the Office of the Children’s Commissioner, which the noble Lord, Lord Patel, has talked about. When we discussed this at our last sitting, I commended the Government for having strengthened the position of the Children’s Commissioner and made it a much stronger body than it was. That was very much to the Government’s credit, although I would add that the Minister mentioned on Wednesday the fact that the Children’s Commissioner is housed in a Department for Education building, as if that meant that it was fine for this commissioner to be. The JCHR strongly recommended against that, because it impinges on the commissioner’s independence—but that is by the by.
Despite having set up this very good model of the Office of the Children’s Commissioner, the Government deliberately decided not to pursue that model for the anti-slavery commissioner. They then pointed out that this was reflected in the much smaller budget for this commissioner than for the Office of the Children’s Commissioner. I could not help but wonder whether this was partly about trying to save money. Are they trying to have an office of the anti-slavery commissioner on the cheap? The old proverb about a ha’p’orth of tar came to mind.
I want to return to a question I asked the Minister at our previous sitting, when perhaps I did not make myself fully clear. I asked the Minister why the Government do not see the anti-slavery commissioner primarily as part of the human rights machinery, as they told the JCHR. The Minister replied that the commissioner,
“is not a national human rights institution as defined under the Paris principles”.—[Official Report, 3/12/14; col. 1382.]
However, he agreed that it would play a key part in improving our human rights response to tackle modern slavery. In my speech last week I quoted from the exchange between Humpty Dumpty and Alice in Lewis Carroll, on how we understand the meaning of words. When I reflected on the Minister’s reply to me, I rather felt as though I had walked through the looking-glass. It was, of course, perfectly open to the Government to make the anti-slavery commissioner compliant with Paris principles. That was a political decision and choice. However, they chose not to.
So let me rephrase my question. Why did the Government choose to make the anti-slavery commissioner not compliant with the Paris principles? That is: why do they believe it should not be part of the human rights machinery—not why it is not technically part of the human rights machinery—when we are all agreed that it has this key role in improving our human rights response to modern slavery? I am baffled, I have to say.
Lord Warner
My Lords, I shall speak also to Amendments 72D, 73B, 74AA, 74CA and 74DA in my name. These amendments are all designed to give the anti-slavery commissioner greater freedom of manoeuvre in dealing with the Home Office and to prevent endless procrastination over the release of reports submitted to the Home Secretary and the Home Office, particularly if they contain what I would call “unacceptable messages”. We have been over this ground in both sets of amendments at some length. This is all of a piece with some of our earlier discussions. We have certainly seen in real life how reports of other independent sources of inspection or advice can—how can I put it?—languish in government department in-trays. Some of these amendments attempt to address real issues.
I accept that my amendments are pale imitations of the more radical amendments moved and discussed by the noble Lord, Lord Patel, in the previous group. I would certainly withdraw some of mine if the Government were moved to accept many of his. That is not bargaining across the Table but a statement of fact; the noble Lord has some very powerful amendments which deliver more effectively than my amendments. I do not always travel hopefully about whether Home Office Ministers in this place are able to deliver changes, so I shall press on with my more limited amendments.
Amendment 72ZZA requires the commissioner to produce a three-year plan, not just a one-year plan. That enables him—sensibly, I think—to plan ahead for a reasonable period of time. Amendment 72B removes the detailed control of the Home Office over the plan, as prescribed in Clause 42(4), (5) and (6). These seem totally superfluous, given that Clause 42(1) already gives the Home Secretary the power of approval over the strategic plan. Why do we need these extra, more detailed control methods, other than to demonstrate what we have said for some time about the Bill: that it too often finds ways of controlling the room for manoeuvre of the anti-slavery commissioner?
Amendment 73B removes the detailed Home Office control over the nature of the commissioner’s annual report by removing Clause 42(9). It is another attempt to loosen the shackles, in the phrase I used earlier. Amendments 74AA, 74CA and 74DA are designed to ensure that Ministers do not delay in laying the commissioner’s annual report before Parliament, the Scottish Parliament and the Northern Ireland Assembly. They all require the annual report to be laid within a month of receipt by the particular Ministers.
These amendments are in the best interest of the commissioner’s independence and safeguard the position of Parliament and the Northern Ireland Assembly. We have to remove some of these controls in order to give the commissioner more freedom of manoeuvre and to ensure that important reports are not delayed in reaching Parliament and public scrutiny. I beg to move.
Baroness Hamwee
My Lords, I have Amendments 73ZA and 74ZA in this group and it would be very odd if I did not agree with the noble Lord, Lord Warner, given the debate we have just had. I do not think that I need to lay it on with a trowel. However, I will use this opportunity to refer to the duties of the independent reviewer of terrorism legislation, because Section 36 of the Terrorism Act 2006, to which my noble friend referred, has a mere six subsections, and that is it—and he gets on with it. I have still not been able to find the constraints on his report, which would take the form of redactions, to which my noble friend referred. However, as I said, I can understand the need for them for the commissioner as well as for the reviewer.
Baroness Hamwee
Baroness Hamwee
My Lords, I have two short amendments in this group. I will come back, outside the Chamber, to just what Section 36 says. I am not taking issue with the substance, in any event.
Amendment 76A would delete Clause 43(4). The clause is about the duty to co-operate with the commissioner. It provides that complying,
“does not require or authorise any disclosure of information which contravenes any other restriction on the disclosure of information (however imposed)”.
Looking at Clause 43(4) alongside Clause 43(3), which provides that disclosure,
“does not breach any obligation of confidence”,
I would like to ask my noble friend why one is accepted by the legislation and the other is not. Why does data protection, as I assume it is, apply but not confidential—I am not sure about privileged—information?
My second amendment, Amendment 77A, is quite different, but it is to enable me to ask a question. Clause 43(6) refers to regulations being allowed to be exercised by Scottish Ministers and by the Department of Justice in Northern Ireland. I have suggested that the Welsh Assembly Government be added to the list in order to ask my noble friend about the question of health. Health, after all, is one of the issues to which we need to have regard when we are looking at the needs of people who have been trafficked or enslaved. This seems to me very relevant. I do not know whether it is intended that Wales should come under Clause 43(6)(c), as “any other public authority”—I think that they might be a bit insulted if that were the case—or whether I have got it wrong that health is not intended to be covered in all of this. I beg to move.
Lord Bates
My Lords, I am grateful to my noble friend for moving this amendment and I will try to deal with the questions of clarification that she raised.
The effect of Amendment 76A would be to permit public authorities to provide information to the commissioner where it would otherwise contravene restrictions on the disclosure of information, other than those as a result of an obligation of confidence under the common law. Therefore, public authorities would, for example, be obliged to disclose information to the commissioner where such a disclosure would otherwise be restricted by statute or order of the court. While we want to ensure that the commissioner is able to gain access to information from relevant authorities to improve the UK’s response to modern slavery, in doing so we must ensure that we are not requiring those authorities to provide information in breach of existing restrictions on information sharing or permit authorities to disregard court orders, although we recognise that a balance has to be struck.
For this reason the public authorities and officials have been given a certainty that they will not be breaching any obligation of confidence under the common law when providing information to the commissioner. We consider that this subsection ensures that we achieve the right balance between respecting existing information safeguards and ensuring that the commissioner has the necessary powers to carry out the role effectively.
My noble friend’s Amendment 77A seeks to create a power for the Welsh Government to specify which Welsh public authorities are required to co-operate with the commissioner. The Welsh Government play a key role in the UK’s effort to tackle modern slavery. They are active participants in the interdepartmental ministerial group on modern slavery, and we have worked innovatively and determinedly to raise awareness of modern slavery and improve the response in Wales. We have worked closely with the Welsh Government on the development of the Modern Slavery Bill.
The focus of the commissioner’s work, and indeed of this entire Bill, is to combat crime and protect its victims, which are non-devolved matters as regards Wales. Engagement with Welsh authorities by the commissioner would seek to deliver on these objectives and any infringement on those authorities’ devolved functions is entirely incidental to, or consequential on, this purpose. It is therefore wholly appropriate, and consistent with the devolution settlement for Wales, for the Home Secretary to specify that a Welsh public authority is required to co-operate with the commissioner without the need for regulations made by the Welsh Government.
The Welsh Government have been regularly consulted on the role of the commissioner and it is worth nothing that they have not requested the inclusion of a regulation-making power within this clause. We will, of course, consult fully with them before specifying Welsh public authorities in regulations. I pay tribute to the good co-operation which is already taking place between the Welsh Government and the UK Government in relation to modern slavery issues.
Given this explanation, I hope that my noble friend will feel able to withdraw her amendment.
Baroness Hamwee
My Lords, I will, of course, do so. I felt that the response to Amendment 76A was more about “the what”, which I think I understand, than “the why”. However, I do not want to comment further without having had the opportunity to read what my noble friend had to say.
I am not sure that I am persuaded about Wales but that is perhaps not a discussion for now: we may have other opportunities to do so. I will think about that further and perhaps have a word with my noble friend about it. I beg leave to withdraw the amendment.
Lord Rosser (Lab)
Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.
The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.
On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.
Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.
Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.
One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.
Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?
Baroness Hamwee
My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:
“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—
the context of human rights—
“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.
I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.
Baroness Garden of Frognal
My Lords, I thank noble Lords for their contributions to the debate, and I am grateful that they felt able to welcome the government amendments.
I turn to the amendments tabled by the noble Baroness, Lady Kennedy of Cradley. As she set out, Amendments 80A and 82 would remove the “reasonable person” test for children and adults. Whenever any statutory defence is created, we must be very careful to ensure that the line is drawn in the right place so that the people who need it can access it, but also to avoid unfairness or injustice to potential victims of serious crime and to prevent the defence being abused by those seeking to escape justice.
The noble Baroness raised concerns that the reasonable person test would breach EU directive requirements, which would make it difficult for us to work in cross-border operations. However, it does not place the UK in breach of the directive. As the pre-legislative scrutiny committee identified, the UK is already compliant with all its international obligations. The test will have no impact on cross-border operations. However, I note what she said, and the comments of my noble friend Lady Hamwee and the noble Lord, Lord Rosser. Perhaps we can agree to discuss this again before Report.
The reasonable person test is an objective test. The “no realistic alternative” formulation in the reasonable person test came directly from the case law that the noble Baroness mentioned. In response to the noble Lord, Lord Rosser, on whether the reasonable person would be someone who has suffered the same sort of experiences, that is indeed how that would be applied in these cases. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances. Such a defence may not be justified in every case. For example, the courts have consistently ruled that the defence of duress can never apply in cases of murder. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but society. An objective test plays a crucial role here: allowing a prosecutor or jury to consider all the circumstances, while also considering the accused’s characteristics, such as age and the other characteristics set out. We consider that removing the objective test would leave the defence dangerously broad.
Turning to Amendment 84A, which deals with Director of Public Prosecutions’ guidance on non-prosecution of victims, the Code for Crown Prosecutors is issued by the Director of Public Prosecutions. It gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code requires the prosecutor to complete two stages: is there sufficient evidence to provide a realistic prospect of conviction, and is a prosecution required in the public interest? It is not the case, and never has been, that just because there is sufficient evidence to bring a prosecution the public interest will require one. That discretion is a vital protection and helps avoid unnecessary or unjust prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures, which includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law or any other changes and is published on the CPS website.
Baroness Kennedy of Cradley
In Schedule 3 there are very serious, violent crimes listed and it is understandable why they have been included. However, there are over 130 different offences to which the non-prosecution defence will not apply and along with the very serious—murder and rape—there are offences relating to immigration, criminal damage and theft. Schedule 3 has ramifications for victims, so the offences listed, and the existence of such a schedule, should not become law without a debate in this House. We should probe a little deeper and consider five issues with the Schedule.
First, does such a list help the trafficker? Evil minds work in evil ways. To a trafficker, Schedule 3 could be an escape strategy. It has been described, by Parosha Chandran, an award-winning human rights barrister, as a traffickers’ charter. It is a list of crimes that traffickers know the state will prosecute for—they just need to find victims to do them—and traffickers will make sure that victims know that the state will prosecute for those crimes. Will the Schedule therefore have the unintentional effect of dangerously exacerbating the vulnerabilities of those who are already enslaved or trafficked and lead them to become involved in more serious crimes?
Secondly, does such a list lead police and prosecutors to stop looking for the signs of slavery and trafficking for these offences? Despite clearly listing the offences most frequently committed by enslaved and trafficked adults and children, the guidance we already have has not been effective in stopping victims being prosecuted and convicted for these offences. There are a number of examples where no police investigation into the victim’s situation, as a trafficked or enslaved person, has taken place and the victim has been wrongly imprisoned. Even when crimes are flagged as frequent crimes of trafficked victims in the CPS guidance, there is still little or no investigation. So a list of crimes specifically for non-prosecution may never lead to an investigation into the trafficked or exploited situation of the victim. This means that, once again, the traffickers get clean away.
Thirdly, does such a list contain the right offences? As pointed out in the other place, the impact assessment of this Bill states that Schedule 3 is drawn from Schedule 15 to the Criminal Justice Act. However, immigration offences are in Schedule 3 but not in Schedule 15. As Michael Connarty MP rightly asked, how can we deny a trafficked victim the right to a statutory defence because they resist arrest? We know that children especially—and adults too—are suspicious of authority, because the traffickers have made them that way; they are scared and do not understand the language. Should this offence be included?
Fourthly, the crime that a victim is typically forced to commit today is not what they may be forced to commit tomorrow. Even though there is provision in the Bill for Schedule 3 to be reviewed, this takes time. In this time, victims are being criminalised by our system and the traffickers are making their escape.
Finally, the facts are established for each individual case, no matter what the crime. If a crime is committed, whether or not it is listed in Schedule 3, the police will investigate and the CPS will still consider whether the evidential threshold has been met, whether it is in the public interest to prosecute and whether the non-prosecution defence applies. If the police and CPS can satisfy themselves that they can secure a conviction by being able to prove their case beyond reasonable doubt, they will proceed to prosecute—whether the offence is listed on Schedule 3 is immaterial, as the child or adult will be prosecuted. If the offence is serious it would, inevitably, be in the public interest to prosecute. Why is the list of exceptions necessary? In Committee in the other place, Peter Carter QC, said:
“I think legislating by list of exceptions is a recipe for disaster and confusion”.—[Official Report, Commons, Modern Slavery Bill Committee, 21/7/14; col. 36.]
I agree. I beg to move.
Baroness Hamwee
My Lords, I support the points made by the noble Baroness, who has pointed to unintended consequences, among other matters. This is a list of the most serious offences and there has not been much consideration of offences which may very often be committed in the context of trafficking. The noble Baroness rightly referred to the violation of immigration law. We heard this afternoon of an instance of false information relating to travel documents. To my mind—I am completely unbiased of course—this sort of thing is entirely understandable.
Looking at the list, I was interested in the inclusion of Sections 1 and 2 of the Bill, when we know that some victims of trafficking and slavery are forced into positions where they act on behalf of their own slave-masters in carrying out some of the acts which are comprised in those offences. But that is no different in substance from the concerns that the noble Baroness has raised about other matters. I share that concern. I do not think that by including the list we are doing anything other than creating difficulties for ourselves in applying the non-prosecution provision.
Lord Browne of Belmont
My Lords, I am pleased to speak in support of Amendment 86H in the name of the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I am sure that other Members of this House will want to thank the noble Lord and the noble and learned Baroness for their persistence and perseverance in repeatedly bringing the need for a child advocate for trafficked children before this House.
As we look today at Clause 47 of this Bill, which in some ways makes provision for child trafficking advocates, I am sure we can agree that we have come a long way on this subject from 2011. I am aware that the Government seek to justify the rather weak nature of the clause on the basis that they want to wait for the conclusion of the advocate trials before providing more detail. In some ways I think this argument stands up to scrutiny but in others I have to say that I find it wanting. No doubt important things will be learnt from the trials that will inform practical questions regarding matters such as implementation, but I do not accept that that should be used as a reason for not providing a clear and up-front statutory definition of the role of the advocate. It seems odd that we should sign up to the name “child trafficking advocate” in the Bill without signing up to a proper definition of the role.
There are at least two major problems. First, in terms of the basic definition of a child trafficking advocate, the definition is set out in numerous international best practice documents and confirmed by our own experience. The Still at Risk report, for example, recommends that an independent trusted adult should be appointed as soon a trafficked child comes to that authority’s attention. Amendment 86H makes it clear that this should happen. The Still at Risk report also says that that person,
“would ensure that all potential victims of trafficking are able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes they are engaged in”.
I am very supportive of the principle of setting out the functions of the advocate in the Bill, as exemplified in Amendment 86H.
It is significant that this same definition and approach are also reflected in all the relevant international best practice documents developed by the EU, UNICEF and the UN. For example, the UNICEF guidance states:
“The role of a guardian is to be an advocate for the child in a wide range of discussions and decisions about what should happen to the child, in particular to ensure that the decision-making process primarily considers the best interests of the child. The role is also to be a link between the child and the various agencies the child comes into contact with, to ensure the child is kept informed of any relevant developments with respect to him or her, and to accompany the child in a physical way, in particular when she or he is moved between various places”.
It is also essential that the role of the advocate should be recognised by other public authorities, otherwise, as the noble Lord, Lord Henley, said just over three years ago,
“it risks creating confusion for children if plans for their care are not effectively co-ordinated”.—[Official Report, 25/11/11; col. 1282.]
The second reason for my belief that this is not a strong enough clause as it stands is observing the debate on guardians that has occurred over the past few months in Northern Ireland, which the noble Lord, Lord McColl, has referred to. Noble Lords may be aware that the noble Lord, Lord Morrow, has introduced a Bill on human trafficking to the Northern Ireland Assembly. He is sadly not able to give his own wisdom to the House today, as he is in Northern Ireland speaking on other matters on human trafficking before the Assembly. The key point is that, in another part of the United Kingdom, a clearly independent adult will be appointed to a child who has been or who is about to be referred to the NRM or to a separated child. That adult, an independent guardian, will be trained, qualified and supported in that role and the functions are set out in statute in Clause 21 of the Northern Ireland Bill, which will very soon now become law. That person needs to ascertain and communicate the views of the child, represent them, and liaise with other organisations involved in their care and making decisions in relation to the child—for instance, a court or tribunal. They will assist the child to obtain legal advice, keep the child informed about relevant proceedings, contribute to a plan for the long-term welfare based on an individual assessment of the child’s best interests, accompany them as necessary, and work to establish contact with the child’s family where it is in their best interests.
Interestingly, the Department of Health, Social Services and Public Safety may add to their functions as necessary by order so that if new functions arise they can be added. I suggest that this freedom to adjust provides a crucial model for the United Kingdom Government given that, on the one hand, it is simply not credible to include a child trafficking advocate provision in the Bill without a proper definition—especially when, thanks to domestic and international best practice, the definition is clear—yet, on the other hand, adjustment may be desirable in the light of the experience of the trials. It provides a mechanism whereby we could give child trafficking advocates a proper definition but not remove scope for that definition to be amended, although I stress that I think the real usefulness of the trials will pertain to practical matters of implementation rather than that of definitions. If I were to add anything to Amendment 86H, it would be the power to make such additions to the list of the advocates’ functions.
The other thing I should note about the Northern Ireland definition, like that of proposed new subsection (8) in Amendment 86H, is that it makes plain that other persons or bodies providing services or taking decisions about the child have to recognise the role of the guardian and provide the guardian with relevant information so as to allow the guardian to carry out their role effectively. In contrast, Clause 47(4) only enables the Home Secretary to issue regulations to this effect if she so wishes. It seems to me that the provision of child trafficking guardians in Northern Ireland goes much further than the current proposals in Clause 47. The reason we are rightly concerned to help victims of trafficking is because they are, without doubt, among the most vulnerable people in our society and that vulnerability is greatest when dealing with children.
Given their greater vulnerability, it seems very odd that the Government should have included such a weak clause in the Bill. While I am happy to celebrate that Northern Ireland will provide the best protection for child victims in the whole of the United Kingdom, it pains me to consider the many trafficked children in England and Wales who will not benefit from this greater protection. I am not satisfied with this, and I very much hope the Government will not settle for such an inequality. The good news is that Amendment 86H closes the gap. I very much hope that the Minister will accept it.
Baroness Hamwee
My Lords, the determination of those who have pursued this cause is admirable. The noble Lord and the noble and learned Baroness are a formidable pair. I simply want to comment on one point in Amendment 86H, about legal representation. From my—now not very current—experience as a solicitor, I well know the importance of being able to take clear or reasonably clear instructions, and to be able to rely on those instructions. I take the point about the voice of the child but I do not think that that is inconsistent with the role of representatives.
Baroness Hamwee
“Assessment of victims
A person suspected of being a victim of an offence under sections 1 or 2 shall be assessed psychologically during the investigation of the offence.”
Baroness Hamwee
My Lords, I have Amendments 86J, 86K and 86L in this group. Amendment 86J seeks to insert a new clause. I contacted a member of the Bar who practises in this area and asked him whether the provisions available to protect and support victims in court and in their dealings with the police were adequate, even if they were not always well used. In other words, should we be thinking of anything to go in the legislation or is it really a matter of guidance and practice? He came straight back to me with the thought which I have incorporated in this amendment.
Of course, protection in court is very much a matter of practice, in line with some legislation and with guidance. The practice needs a foundation. This would be a foundation for something quite wide. My counsel friend said:
“Every other measure follows from an assessment and those presenting a case will do so fully informed if they have the psychological assessment”.
The victims of slavery and trafficking are so very unlike others. There are many issues that befall them and their presentation in court is difficult. My counsel friend believes, as is obvious, that an assessment should be mandatory.
This is not about referral to the NRM; it is about investigation and prosecution as well as support. An assessment may say that there is nothing too much to be concerned about, but it may say that this individual is very damaged, very vulnerable and that the best way to investigate is as follows. Or, in court, someone with the appropriate knowledge can say, “The victim giving evidence is not able to articulate what, from my work with him, I believe he is feeling. A different line of questioning may be appropriate”. This is not just about support; it is also about the resilience to give evidence and to assist the police, and resilience in proceedings.
My other two amendments can be put very briefly. The first adds a reference to consultation to Clause 48 —the Secretary of State’s guidance on the items listed. I am suggesting that this should be after consultation. I hope that my noble friend will be able to reassure me that it will be after consultation. The second amendment—in order to get the grammar right, it requires a few more words—essentially changes “determining” to “identifying” in Clause 48(1)(c)—the arrangements for identifying whether a person is to be treated as a victim of slavery or trafficking. This is to probe whether this provision is about the NRM, where the term “determination” is used, but so is the term “identifying”. Determination has a whiff of formal proceedings which may be wider than the Government intend. As I say, this is a probing amendment.
Amendment 86M is probably the central amendment in this group and I do not want to steal any thunder by speaking to it, save to say that it is an extremely important amendment and I am very glad that it has been tabled. If we are establishing rights for victims, the logic is that those with the power to grant or deny the right must also be held to account—and that would be via a right of appeal. My first amendment is 86J and I beg to move.
Lord McColl of Dulwich
My Lords, I am pleased to introduce Amendment 86M in my name, that of the noble Baroness, Lady Howe, and that of the noble Lord, Lord Judd. I am grateful for the input of the charities involved in its development, including CARE, ECPAT and the Anti-Trafficking Monitoring Group.
The amendment deals with what is, for me, a foundational aspect of any modern slavery Bill worthy of that name, yet it is not adequately provided for in the current draft. The Bill will be the foundation of legislation for all action on modern-day slavery for decades to come. As such, it must have the victims at its heart and make proper provision for them. I welcome the addition of Part 5 following the recommendations of the pre-legislative scrutiny by the Joint Committee on the draft Bill, of which I was privileged to be a member. However, I feel that Clause 48, which provides a mechanism for guidance on identifying and supporting victims, does not go anywhere like far enough to ensure that the Bill is victim-focused.
I thank the Minister for his comments in his letter sent to Peers following Second Reading, sharing the concern that we provide victims with the services that they need. I am pleased to know that the Government are considering the recommendations of the review of the national referral mechanism and hope that this will lead to a significant improvement in the identification of victims and the provision of support services. However, I do not share the view implied in the Minister’s letter that legislating for the NRM will make the system inflexible, nor do I believe that legislation is a distraction from the process of improvement.
In my opinion, Amendment 86M provides a much needed statutory foundation for operational and structural improvements, in response to the critique of victim identification and support in the review. The flexibility of guidance can be useful in responding to changing circumstances, but guidance is not the place to establish fundamental principles. It is my view that the fundamental principles for identifying victims and providing them with support and assistance should be laid out in legislation. Amendment 86M lays out these core principles. The clause relates broadly to two issues: first, the processes around identifying victims; and secondly, supporting victims—how long we should support them and with what types of services.
Let me first turn to the matter of identifying victims. Amendment 86M addresses the fundamental principle that the formal process for identifying victims and conferring on them a certain status that makes them eligible for services and support needs to be transparent through proposed new subsections (1) to (4). During our scrutiny of the draft Bill, the Joint Committee heard evidence from many NGOs that, because the national referral mechanism is established only in policy and guidance, there is a lack of transparency about decision-making. Anti-Slavery International described this as leading to,
“arbitrariness of application and access for victims”.
The 2013 report from the Anti-Trafficking Monitoring Group, Hidden in Plain Sight, indicates that existing guidance relating to processes under the NRM does not seem to be consistently followed, which gives me great cause for concern over the Government’s proposal that guidance under Clause 48 will be sufficient to ensure the correct operation of the NRM process.
I welcome the review of the NRM that has been undertaken and I am pleased that the Modern Slavery Strategy states that the Government are giving serious consideration to its recommendations for a radical restructuring of the process. However, I believe that any such restructured process should ultimately be established in regulations. This was also the view of the Joint Committee, which said that the Home Secretary should set out the process for identification by order. This approach will provide the flexibility which the Minister mentioned in his letter, but equally allows for greater transparency in the process than exists at present.
Amendment 86M requires the Home Secretary to establish the identification process in regulations and to seek the input of an Independent Anti-slavery Commissioner on the guidance about the identification of victims. One key aspect of this transparency is the process for which Amendment 86M specifically provides. It is the creation of an internal and external appeals process. The current NRM process has no such formal mechanisms for review. Where individuals wish to challenge a negative decision, they must either make an informal request for reconsideration or seek judicial review. The informal process, relying as it does simply on the discretion of an official, is in no way transparent and provides no sense of security for victims when they enter the system. On the other hand, judicial review is extremely formal and costly and does not review the substantive merits of the person’s case. A formal built-in appeals process, with the possibility of a second-tier external review, is needed to provide appropriate transparency and accountability. This is why I have proposed new subsection (1)(c). I was rather disappointed with the response of the NRM review to this point. I am not convinced that its proposals for regional multidisciplinary panels will reduce the need for challenge, nor that the review’s suggestion—that another panel chair could offer a second pair of eyes when a review is requested—will be adequate to provide the transparency that is so important. I hope the Government will support my proposal for a more formal process set out in regulations.
I was also disappointed to read that the NRM review reported that the submissions from many NGOs showed overwhelming support for the preservation of the national referral mechanism solely for victims of trafficking. I am sorry, but I disagree. I recognise that international reporting structures and data comparisons mean we need the clarity of specific statistics on victims of trafficking, but we must ensure that there is a clear mechanism for the identification of victims of slavery who have not been trafficked. Without such a mechanism, we are left, once more, with the problems of transparency which I am seeking to address through Amendment 86M. As it stands, Clause 48 applies to victims of the offences under both Clauses 1 and 2, and this is right. Amendment 86M also applies to victims of slavery and trafficking offences and would require a formal mechanism for identification to be established in regulations.
Having set out the requirements for identification, I turn to proposed new subsection (5). This sets out how long the assistance must be provided for under the reflection and recovery period. There are two questions for your Lordships. First, how long should it be and, secondly, should we set this time period in statute? Those of your Lordships who have studied the European convention will know that our international obligation is to provide a so-called recovery and reflection period of at least 30 days. Such a period shall be sufficient for the person concerned to recover. The UK already has a recovery and reflection period of 45 days, so we are ahead of the minimum. However, I have heard NGOs say, time and again, that even 45 days is not long enough for a victim to properly reflect and recover and that 90 days would be far more appropriate. This is what I am proposing in Amendment 86M. Indeed, the NRM review says:
“Many to whom we spoke thought that victims ‘are failed’ at the end of the 45 day period”.
This is a very sobering assessment of how we are treating victims. Studies show that, during the first three months, a high proportion of victims of human trafficking display symptoms of post-traumatic stress disorder and that longer reflection periods can greatly improve chances of providing substantial assistance to victims of trafficking. That is why I am supporting a 90-day reflection and recovery period.
Lord Bates
My Lords, I am struck in these amendments by how prescient contributors are of the arguments I am about to deploy. I was wondering how it could be that people were so aware of this. The reality is that we have had a rather open and extensive consultation period. Indeed, the officials working on the team are constantly meeting with outside groups and talking to people. Alongside that, my noble friend Lady Garden and I have been trying to do the same with your Lordships’ House. Therefore, I suppose that it is not too much of a surprise that respective positions are known—but that does not mean that they cannot be moved on either side.
I take slight issue with one of the caricatures put forward, perhaps unintentionally, by the noble Lord, Lord Browne, that somehow victims’ protection in the United Kingdom may not be of the same standard outside Northern Ireland. I do not accept that. Not least, of course, we are going to have an Independent Anti-slavery Commissioner, who will cover Northern Ireland. I am sure that that would be a key part.
The other point is that, as I have said before, we are open to looking at the legislation and experience in Northern Ireland and to sharing best practices with each other. The notion that somehow victims are just a passing shot in the Bill does not stack up to the discussions we are having or the legislation, where we talk about victim reparation orders, enhanced access to legal aid—which has been widely welcomed—special proceedings in court to encourage victims to come forward, presumptions about age, child trafficking advocates, and statutory defence if they are involved in committing a crime. All the way through, we all shared a commitment that those who have suffered most should be considered most. At the same time, we recognise that one of the best ways that one can serve victims is by ensuring that others are not added to their number by making prosecutions.
Those points made, I am not quite sure I will live up to the creative billing the noble Lord, Lord Alton, urged on me, but I shall respond as best I can to the points made. I am grateful for the tabling of Amendments 86J, 86K, 86L, 86M, 102B and 102C, which deal with crucial issues relating to identifying and supporting victims of modern slavery and to legal aid. This is why the Modern Slavery Bill includes a provision requiring the Secretary of State to issue guidance to ensure that front-line professionals understand how they might encounter and identify potential victims of modern slavery and how they can help them to access the support they need.
This guidance will focus on the effective identification of both child and adult victims of modern slavery and will provide information to front-line professionals and others on potential signs that someone may be a victim and on what to do. It will also set out the assistance and support on offer to victims through the government-funded adult victim care contract, currently operated by the Salvation Army, and local authority child welfare and safeguarding arrangements, including the presumption about age provisions in Clause 49. The Independent Anti-slavery Commissioner will also have a key role in ensuring that victims can be quickly identified by all front-line professionals. We are fully intending to consult on this guidance so that we can get it right, and therefore I do not believe that the amendment is necessary.
Amendment 86J seeks to require all victims to be psychologically assessed during the investigation of a modern slavery offence as set out in Clauses 1 or 2. While I appreciate my noble friend’s intention of ensuring that an assessment of victims’ needs is undertaken at an early opportunity and her awareness of the often deep psychological trauma these heinous crimes can inflict, I do not believe that this amendment is the right approach to achieve those laudable aims. The amendment may force victims to undergo a psychological assessment, even if they do not want one. I am sure that that is the last thing we should do. Added to that, all the way through this victim-focused legislation is the idea that victims have to consent to all the actions taken on their behalf. Instead, I offer the following reassurance. Adult victims who are referred to the national referral mechanism are entitled to receive psychological support through the national victim care contract currently run by the Salvation Army. Any such support would be provided following an appropriate assessment of an individual’s needs.
I now turn to Amendment 86L, tabled by my noble friend Lady Hamwee. I believe it is a probing amendment in relation to the intention of Clause 48(1)(c), which sets out that guidance should include,
“arrangements for determining whether a person is to be treated as a victim of slavery or human trafficking”.
The purpose of this paragraph is to ensure that such guidance covers the national referral mechanism decision-making process to determine whether a person is to be treated as a victim of slavery or human trafficking. The wording of the Bill reflects the terminology used in relation to the national referral mechanism. “Determination” is used to describe the reasonable and conclusive grounds decisions by the competent authority, whereas “identify” is used to refer to the initial identification of potential victims by first responders. I reassure my noble friend that the paragraph as presently drafted covers both these elements of the national referral mechanism process, and I trust that the intention of the amendment is not to limit the scope of the guidance in any way.
Amendment 86M seeks to put a referral mechanism into statute which ensures that victims get at least 90 days’ support which is not conditional on the willingness of the person to act as a witness in any criminal proceedings. Although administratively we provide potential victims with a minimum of 45 days to recover and reflect, in practice many victims are supported for a much longer period. As noble Lords may know, we are currently retendering the contract for adult victim care services and have reflected on the national referral mechanism review recommendations in building the requirements for the new contract. That includes consideration of how we might provide ongoing support to victims once they have received a decision confirming that they are a victim of modern slavery. Our aim is to help these individuals move on with their lives so that they are not revictimised through being retrafficked.
Finally, Amendments 102B and 102C will enable the commissioner to exercise functions in relation to individual cases until amendments are made via secondary legislation to legal aid provisions. The Government are strongly of the view that it is not the role of the commissioner to champion individual cases or to track victims who receive support. Their role is to strengthen our collective response to modern slavery, working closely with law enforcement agencies and other stakeholders, including civil society organisations, to identify more victims and prosecute more perpetrators. We recognise the importance of understanding the longer term outcomes of victims. That is why we are considering how we can work with the victim care contractor to best achieve this. Of course, information from individual cases may help inform the commissioner’s work in this regard, but it is not for the commissioner to advocate for individuals.
Potential victims of trafficking currently gain access to legal aid following a positive reasonable grounds decision of the national referral mechanism. Legal advice is not necessary for an NRM referral. The reasonable grounds decision is generally made within five working days after an individual has been referred to the NRM, and the decision has a low threshold. This test is an important gateway to avoid abuse of a system that provides access to a range of support, including legal aid. We recognise that there are concerns about the operation of the NRM. That is why we commissioned a full review of the system and will be piloting a new approach to the NRM in response to that review. We will ensure that any wider changes to the NRM are reflected in the provision of legal aid.
I thank noble Lords for tabling these amendments and allowing us to discuss some crucial issues. I hope that I have addressed noble Lords’ concerns and that—with the undertaking, as with previous groups, that we will continue reflecting on the detailed comments that have been made—they will take that reassurance and not press their amendments.
Baroness Hamwee
My Lords, I was looking to see if the noble Lord, Lord McColl, wanted to come in. I know that all noble Lords are very appreciative of the time and effort that Ministers and officials are putting in to meetings and discussions outside the Chamber. I hope that the teasing and the prescience does not deter them from continuing with that; I am grateful to the noble Lord, Lord Alton. My amendment about psychological assessment—I take the point about consent —is really not about the NRM or about support for victims and their recovery; that is obviously extremely important. I was seeking to pick up the role of psychological input into an investigation and prosecution. That is a different matter. It is clearly not appropriate now for me to expand on that any further, but if I can test the Minister’s patience, maybe this is something for outside the Chamber.
I note what the Minister said on my other two amendments—I am happy about those—and I beg leave to withdraw Amendment 86J.
Modern Slavery Bill
Baroness Hamwee Excerpts(9 years, 11 months ago)
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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?
Modern Slavery Bill
Baroness Hamwee Excerpts(9 years, 11 months ago)
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Baroness Hamwee (LD)
My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.
However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.
Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.
The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.
I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.
I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.
I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.
I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.
Baroness Butler-Sloss (CB)
The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.
We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.
Baroness Royall of Blaisdon
I believe that the noble Lord’s amendment will come before mine in the pecking order. I want to make two points. Of course, I hear what he says about the views of the DPP, but a huge number of lawyers and other people involved in the system are looking at these issues, including charities and various organisations. They are all deeply concerned that notwithstanding the fact that we have this plethora of laws at the moment, as was said at Second Reading, the UK Human Trafficking Centre last year identified 2,744 victims of trafficking, including 600 children. Yet, since the introduction of that offence there have been no prosecutions when the victim was a child, and there have been very few prosecutions at all. I agree with the noble Lord that awareness training is terribly important but there must be something wrong with the current offences if they cannot be used to prosecute people who are perpetrating the most evil of crimes. Therefore, I ask him to look at this again.
In relation to the definition of trafficking, I listened carefully to what the noble Lord said, but it would be very good if he could respond on Report to the points made by the noble and learned Baroness, Lady Butler-Sloss. I still think that there is something missing, and it is not in the Bill that we are absolutely in tune with our European partners. That needs to be on the face of the Bill. I would be content with that in terms of human trafficking but I certainly want to come back to the issue of an offence. We have to do something about getting more prosecutions for these heinous crimes.
Baroness Hamwee
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Lord Bates
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.
Lord Alton of Liverpool (CB)
My Lords, I would very much like to support my noble friend Lord Hylton, and I follow the noble Lord, Lord Rosser, in his support for Amendments 28 and 95. The noble Lord, Lord Rosser, has rightly reminded us that when we get to Amendment 94 there will be a chance to have a wider debate about the whole question of the overseas domestic worker visa.
Many of us would say that the subject of denying someone the right to go to an employment tribunal—that is what my noble friend’s Amendment 28 specifically deals with—is a sort of curtain-raiser to the debate that will come later. Enabling migrant domestic workers to change employer, to apply to renew their visa annually if in full-time employment, and to have the right to go to an employment tribunal, would be a significant step towards preventing abuses against migrant domestic workers, including forced labour for their employers, and would enable them to seek redress without fearing deportation from the United Kingdom.
My noble friend Lord Hylton has a long and honourable record of raising this question for all the years that I have been in your Lordships’ House, so it comes as no surprise to me that he has tabled these amendments. He is not, of course, alone in raising this question. Amnesty International UK, the Anti Trafficking and Labour Exploitation Unit, the Anti-Trafficking Monitoring Group, Human Rights Watch, the Immigration Law Practitioners’ Association, Kalayaan and Liberty are among those who support moves in this direction.
Evidence since the introduction of the tied ODW visa in 2012 demonstrates how the current tied visa system facilitates the abuse of migrant domestic workers in the UK and therefore undermines the objectives of this timely and very welcome Bill and the Government’s efforts to fight modern slavery. Because of its deleterious effects, the 2012 decision, whether it was made wittingly or otherwise, is something we need to return to in the course of our deliberations, to see what we can do about it.
The Joint Committee on the draft Modern Slavery Bill identified the 2012 policy as having,
“unintentionally strengthened the hand of the slave master against the victim of slavery”,
and said:
“Tying migrant domestic workers to their employer institutionalises their abuse”.
The Joint Committee on Human Rights reported that it,
“regards the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers, particularly as the pre-2012 regime had been cited internationally as good practice, and recommends that the Bill be amended to reverse the relevant changes to the Immigration Rules and to reinstate the pre-2012 protections in the Bill”.
We have heard a great deal already today about the importance of having what my noble and learned friend Lady Butler-Sloss described earlier as flagship legislation. I know that it is the Government’s wish that this should be seen as an international gold standard piece of legislation that others will be able to imitate, and that they hope it would be capable of implementation worldwide. But that is in doubt unless we put right this defect that was incorporated into our legislation. I recognise that it may not be possible to do that today, but I hope that when the noble Baroness replies to the debate she will indicate to my noble friend that we will continue to discuss this issue to see what we can do to remedy something that was done in 2012 and has, wittingly or unwittingly, brought about these consequences. One of those consequences is, as is highlighted in Amendment 28, that people are prevented from having access to employment tribunals.
Baroness Hamwee
My Lords, one of the things that has struck me in our discussions about the rights of overseas domestic workers is the importance of enabling them to enforce their rights. That is what the amendment aims to do. This should not need saying, but it has come through to me very strongly that we need to give people the tools and make sure that they are available.
The Earl of Sandwich (CB)
My Lords, I have been trying to think of the adjectives that would best describe my noble friend’s amendment, and I have come up with “reasonable”, “ingenious” and “brave”. It is reasonable because we all feel indignation about this issue; there is no question about that. It is ingenious because I think my noble friend is anticipating the result of Amendment 94. We must not be drawn into that today, but it will be interesting to see whether this presents a way out for the Minister in relation to Amendment 94; I hope it does not. The amendment is brave because my noble friend is trying to tackle the question of diplomatic immunity. I think that the Government would like to do that on many fronts at the moment. My noble friend is to be commended.
Finally, I have to say that the Bill does nothing to release domestic servants from their bondage. They are, fundamentally, in this Bill, so I do not know—the Minister may like to reflect on this—why this category has somehow been left out or gone unnoticed. We will wait and see how the Bill can correct the situation at a later stage—but this amendment is a very clever alternative.
Modern Slavery Bill
Baroness Hamwee Excerpts(9 years, 11 months ago)
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Baroness Hamwee (LD)
My Lords, a focus on the victims is absolutely right. At this stage, though, I want to make a point that was made by others at Second Reading: we must be careful to avoid detracting from the concept of survival. I am trying to keep in mind in the Bill the imperative of badging trafficked and enslaved persons as survivors, if this is at all possible, rather than as victims, which has a rather more negative connotation.
This Bill has raised quite extraordinary passions. I am finding it one of the most difficult that I have ever dealt with in my time as a Member of your Lordships’ House, in part because of the technicalities that we are having to look at, I hope your Lordships will forgive me if, in my comments on this amendment, I focus on the technicalities.
I am not really clear what this amendment would actually achieve—and that leaves me rather concerned. How are best interests to be assessed; what standard does one apply? We are all accustomed to the principle of best interests in relation to children because that is linked with the listed rights of the child in the UN Convention on the Rights of the Child; but maybe when he responds the noble Lord can explain what is engaged by the principle in the case of an adult trafficked or enslaved or exploited? For instance, would it mean an automatic referral to the national referral mechanism even if the adult does not want that? That would obviously go against the trafficked person’s right to decide for herself matters relating to her, assuming there is no lack of capacity. I am sure that it is not intended to be paternalistic, but the intention seems to be to make decisions for or on behalf of the victim in the name of best interests when she herself may disagree with what is in her best interests.
Without losing focus on the victim—or as I say, survivor—if there is a concern that particular parts of the Bill lack a victim focus, which I have to say I think is the case, that is where we should focus our changes rather than on an umbrella clause. Maybe by the end of this debate I will be clearer as to what it means, but at the moment I think that it is unclear and therefore possibly a problem.
Lord Quirk (CB)
My Lords, I would like to just draw attention to a very small point in this amendment, which on the whole I fully support. The amendment before us today is an amendment of an amendment in which proposed new subsection (1) ends, “slavery or trafficking”. In the amended amendment that we have in front of us this afternoon, proposed new subsection (2) ends with, “slavery, trafficking, or exploitation”. That is unchanged from the previous one. However, proposed new subsection (1) says, “slavery, trafficking and exploitation”. Surely that is not meant and this proposed new subsection (1) should end with the same wording as subsection (2)?
Baroness Hamwee
Baroness Hamwee
My Lords, I also have Amendments 3, 5, 6 and 100 in this group, all of which are directed to the best interests of the victim or survivor. I say to the noble and learned Baroness that I regard it as my job—and all our jobs—to worry. I accept that sometimes I worry a little too much but I doubt I will change that now.
As we have just been discussing, Clause 1 refers to a person’s “personal circumstances”. My amendment seeks to add “or characteristics”. The terms in parenthesis in Clause 1(4) are, in one case, a circumstance—“family relationships”—but others, such as illness, are more of a characteristic. Maybe they are circumstances as well, but I regard circumstances as being more external and characteristics as more about the person himself. I do not suppose that there is a neat or clear dividing line but I am concerned that “circumstances” may not be as broad as I would like it to be. If the Minister agrees, perhaps one can look at Clause 1(3) as well.
The list in parenthesis in Clause 1(4) is obviously not intended to be exhaustive—it starts “such as”—but it refers to “mental and physical illness” without mentioning disability. I am suggesting adding “or disability” because elsewhere in the Bill there is reference to both disability and illness. Obviously, they are not the same and inclusion here would avoid any doubt about that.
Perhaps this tips over into characteristics as well but in my view circumstances certainly include experiences, particularly a position into which a victim has been forced and has been found. Experiences go to make up the person, and if we are embarking on the sort of description that is included here, that is a term that also might be considered. To be appropriately broad, I am suggesting changing “such as” to “including”.
Perhaps I could take this opportunity to ask my noble friend whether in Clause 1(3), where it says:
“In determining whether a person is being held in slavery … regard may be had to all the circumstances”,
“may” means “shall”. What is the extent of the court’s discretion here? In particular, after having regard to all the circumstances, could the court determine that, despite other evidence, a case is not so extreme that it could be described as slavery? In adding these provisions to what is in the current legislation in Section 71 of the 2009 Act, I am not really clear what we are gaining. I suppose that, once the question about “may” or “shall” in Clause 1(3) has been answered, the same issue or something similar arises in Clause 1(4). Perhaps another way of putting this is to ask whether there have been difficulties in prosecuting under Section 71 that would have been addressed by having these two provisions, although my noble friend may not know the answer to this given the small number of prosecutions, to which he has referred.
This group also includes Amendment 100, which was tabled in my name. This amendment is rather different. It looks at a new offence of exploitation, and really does no more than just consider it. This amendment was also tabled in the name of the noble Baroness, Lady Young of Hornsey. I will not have been the only one who, in seeking to get to grips with these issues, has become interested in the ill treatment of labour in a much wider sense than we are dealing with in the Bill. There is a spectrum—or, as it has been termed, a continuum—from direct, decent work to slavery. This is very much a probing amendment. It would obviously not be appropriate to jump straight into a new offence without careful consideration and, indeed, without wide consultation.
The concept of a continuum is not mine. I was interested to read a report from the Joseph Rowntree Foundation by Klara Skrivankova, which talks about a continuum reflecting the real life experiences of workers whose employment relationships are not static. It discusses the variability in their working conditions resulting from the circumstances, their personal vulnerabilities and external pressures. The model of the continuum also considers the spectrum of substandard working conditions that might not constitute forced labour but are identified as underlying causes, and perhaps are on the way to forced labour. Putting it another way, such an offence would apply the convention according to modern standards.
This was particularly put into my head in conversations with Focus On Labour Exploitation—or FLEX—which is a small charity with a very big agenda. I discussed this very recently with a counsel who has undertaken many prosecutions in this area. Indeed, I recognise one of the case studies referred to in the strategy that was recently published. The first thing the counsel said was that to have such as offence, which was not as severe as forced labour, would make things easier for the Crown. There would be more guilty pleas. He immediately followed that by saying that it would take the heat off the victim. The jury would naturally think that a victim must be vulnerable, and the jury would not succumb to the tendency, which he has observed, to assume that forced labour requires violence.
The counsel also said that the maximum sentence of life imprisonment—although I am not arguing with that being provided for here—can be something of a deterrent to a jury, in his view. He compared this with rape. That carries high maximum penalties, but he believes that a jury has been unwilling to convict because it is worried about the penalty that might be imposed, which it thinks would be inappropriate.
In the same conversation, a psychologist said that there being a maximum sentence of life can be an enormous burden on a victim, who, in the very complex relationships that are created in such situations, may feel quite a responsibility to the slave master. The counsel with whom I discussed this even said that he thought that there would be no need to define exploitation because the best assessors of whether somebody had been exploited would be a jury. He compared it with affray, where a jury does not have a difficulty in assessing whether a reasonable person would fear for their safety on the streets.
I am suggesting in this amendment the instigation of a review, including of the legislation establishing the public authorities that I have listed—they are regulators but not only regulators, and are in a position to get a very good handle on what may be going on; for instance, on a construction site—and very wide consultation working towards a report. This may not be the way to word the amendment—I am sure that it is not—but, crucially, the Minister could tell us, even if not today, that the Government will consider this and take it on, and that it does not actually need to be in legislation. I beg to move.
Baroness Hamwee
My Lords, I thought that I would have to find about seven minutes’ worth of response so that we did not get on to the next group of amendments before 4.45 pm. However, I will take possibly more than one minute to respond. I am grateful to noble Lords for their comments.
As regards the 12 months, I had it in mind that a review should have taken place within 12 months, not that one should postpone it, but that is in a sense a detail as against the principle of whether there should be an offence that is less than slavery. The Minister said that the Government have been looking to see whether anything has slipped through the gaps, and he talked about—as I understood it; obviously I will read what he said—not criminalising lesser actions. My point is that we should look to see what lesser actions should be criminalised, and seek to consider a new offence.
On the Minister’s answer on “may” or “shall”—some noble Lords will go to their graves with “may”, “shall” and “must” written on their hearts, will they not?—am I therefore to understand that the court must consider the person before considering whether an offence has been committed? His answer seemed to indicate that, although again, one must read it properly. However, if that is so, and if the resilience of some people is such that the behaviour meted out to them could be considered not to be slavery, forced labour or servitude, is that consistent with the convention? I said that the Bill raises a lot of technical issues, and that is one of them.
On my smaller, and certainly shorter, amendments to Clause 1, and in reply to the noble Lord, Lord Hylton, my term “experiences” aimed to cover exactly the sort of experience he mentioned. However, of all those amendments, I would be concerned not to lose the one on “characteristics”, and if I had to pick one to come back to in order to pursue it further between now and Report, and possibly on Report, it would be that one. We will of course look at the question of an offence of exploitation later in our debate today as well. Whatever we end up with, I would certainly not wish to lose sight of that one. However, I beg leave to withdraw Amendment 2.
Baroness Howarth of Breckland
My Lords, I would ask for some clarification. I am becoming very confused about the difference between the idea of slavery and trafficking and that of child neglect and exploitation, which we have been dealing with for many years through general children’s legislation. Listening to the noble Baroness, Lady Doocey, describe her cases, as an ex-director of social services and a social worker, I am appalled that action was not taken. However, I know that it is difficult to work between the criminal and the civil law. Under civil law, social services will act to remove a child and protect it, while at the same time trying to act through the criminal law against the perpetrators. There may be a gap there. Others have worked for years trying to ensure that those things hold together, but that is different from having a new piece of law about exploitation that then overrides the existing provisions in children’s legislation. Is the Minister prepared to look at this, maybe with lawyers, to see whether there is a gap in children’s legislation which this could plug and whether we are not being firm enough about practice and training?
We have seen what happened in Rotherham. In talking to the police this morning at a round-table meeting following the work that the all-party parliamentary group did on children and the police, it was quite clear that they have learnt a great deal and are moving in their practices and procedures. We will see change there. I would like to ensure that similar change happens in local authorities because, although there is good practice, as a former local authority worker I am sometimes appalled and ashamed at what we do about poor practice. I have two questions for the Minister. First, is there a gap? Secondly, what are the Government doing to ensure that everyone is encouraged to practise within the existing law to the highest possible standards?
Baroness Hamwee
My Lords, “cautionary” strikes the right note. I am glad that the noble and learned Baroness added to my lexicon. I was searching for the right term and I share her caution.
The EU Rights of Victims of Trafficking in Human Beings, which was published last year, makes it clear that:
“The child’s best interest shall be a primary consideration and shall be assessed on an individual basis”.
That reflects the directive, which refers to a child-sensitive approach but does not provide for a separate offence relating to children. It deals with penalties and special treatment but makes it quite clear that children are within the overall offence. The noble and learned Baroness also referred to the issue of consent, with which we have just dealt.
The forms of exploitation that are listed in the amendments and about which we have heard today are absolutely abhorrent, but I am one of those who are concerned that we do not inadvertently weaken the position in looking after children. In its pre-legislative scrutiny of the Bill, the Joint Committee on Human Rights refers to,
“the Optional Protocol to the Convention on the Rights of the Child”,
and says what a shame it is, in effect, that the Government have not responded to that in time for the detail of the response to feed into the Bill. Having made that criticism and referred to that more up-to-date piece of work, the committee goes on to say that although it is “sympathetic”, it recognises that,
“there is considerable evidence to support the Government’s view that there is likely to be a serious practical problem in prosecuting child-specific exploitation and trafficking offences”,
for the reasons that it sets out in the report. I, too, take the Government’s—and indeed the DPP’s—point about proof of age. Age may be an aggravating factor that will go to sentence, which is how I think it should be dealt with.
Reference has been made to article 2 of the directive. Indeed, as has been said, the amendment quotes from article 2. However, as I read it, those words are there not as a stand-alone offence but, in effect, to define exploitation in the context of trafficking for exploitation. Those words are in article 2.3, although the offence is in article 2.1. We will come on to this, and I am prepared to at least be persuaded that we have not got the definition of trafficking wrong. There is a lot of concern that trafficking, as it is dealt with in Clause 2, is not spelt out sufficiently extensively. Article 2 of the directive uses terms including “harbouring” and “reception”, which might answer at least one of the examples that we have heard about. The description of exploitation in article 2 is not there, as I read it, as a separate stand-alone offence.
I cannot let this go without echoing the points that have been made about both practice and training. They are not central to these amendments but, my goodness, they are central to the whole way in which, as a society, we respond through a number of different agencies—and indeed as individuals—to the abhorrence of slavery and trafficking.