Modern Slavery Bill

Baroness Lister of Burtersett Excerpts

Monday 8th December 2014 Lords Chamber

[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.

--- Later in debate ---

[Baroness Butler-Sloss]

My Lords, I have put my name in support of these amendments in the name of the noble Lord, Lord McColl of Dulwich. He and I have battled for three years—he having taken the lead—and this is a great moment. The Government are to be congratulated on Clause 47. They are to be congratulated on going as far as they have, but they have not gone far enough.

One of the most important points made by the noble Lord, Lord McColl, was on the child advocate having an absolutely clear statutory position. I remember discussing this with representatives of Barnardo’s who had had to work from time to time with local authorities on children in whom they had an interest and who found that some local authorities would not help them because they had no statutory power. This is a serious matter. You have to be able to say to a local authority, “You’ve got to give this to me”, and not, “Please would you mind giving it to me?”. It is a crucial distinction. In Clause 47(4), to which the noble Lord referred, the fact that it says:

“The Secretary of State may make regulations about functions”,

and about,

“requiring public authorities to co-operate with, and provide information to, child trafficking advocates”,

is not good enough. The word has to be “must”; “may” will not do.

As the noble Lord, Lord McColl, also pointed out, certain basic things are to be found in our Amendment 86H, the majority of which have to be in primary legislation. However, I can see that much of Amendment 86 could be done by regulation. It seems to me that the Government should go away and have a look at these two amendments. Some provisions could appropriately be made by regulation but the really important ones need to be made in primary legislation to give the child trafficking advocate the jurisdiction, to use a legal word, or actual control over what they wish to do for the child by working with local authorities, the police and other agencies, including the National Health Service. They would need to have the right to require those agencies to provide them with documentation and information about the child who is a trafficked victim. Other than that, each of these agencies may, and probably would, be very difficult about supplying the information. That information is crucial for the advocate, who should be there from the beginning of the identification of the child to the moment when the child is settled. With these amendments tabled by the noble Lord, Lord McColl, three years on from when we started, we have got a long way, but the Government need to listen to see that it is not quite sufficient. We need to give the child trafficking advocate the powers as well as the duties.

My last point is about the power to appoint and instruct legal representatives. It is also absolutely crucial to give that child trafficking advocate the powers that these children—mainly brought over from other countries, although there are also some internal children—actually need from them. For those reasons, I strongly support these amendments. As I say, some provisions could be in regulation but there are basic points that have to be in primary legislation.

[Baroness Lister of Burtersett]

I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.

The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights of Unaccompanied Migrant Children and Young People in the UK. In that report we pointed out that,

“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.

We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.

I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.

I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.

I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.

I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.