Baroness Young of Hornsey
Main Page: Baroness Young of Hornsey (Crossbench - Life peer)Department Debates - View all Baroness Young of Hornsey's debates with the Home Office
(9 years, 6 months ago)
Lords ChamberThis amendment is intended to close a gap in the law, which currently does not provide sufficient avenues for all victims of modern slavery to seek remedies for damages and the suffering that they have endured. Again, I have to thank Parosha Chandran and Klara Skrivankova for their contributions in working on this amendment. I would also like to say how much I appreciate the work of all the NGOs which have contributed to our work on the Bill. They have done a fantastic job.
Very few victims have been able to receive remedies and compensation so far. This civil remedies amendment would provide an effective means to reduce the financial profitability of slavery, create a further deterrent effect and enable victims to be adequately compensated for the harm done to them. This proposed new clause does not seek to replace the existing remedies, such as those provided in employment law, but to add a more effective route to remedies that has been absent in English law and that, as experience from elsewhere shows, can be an effective means to enabling victims to get redress.
Those victims who have suffered physical harm will still of course be able to use existing remedies, but Amendment 16 is targeted at those for whom such routes remain out of reach. These are, for example, cases where there is an absence of direct physical harm but that involve debt bondage, abuse of an individual’s position of vulnerability, psychological control, threats of denunciation to the authorities, extortionate recruitment fees, and the threat or carefully nurtured fear of violence. Such actions are recognised in international definitions of trafficking and seen as indicators of forced labour. These are the very circumstances experienced by many victims of modern slavery, especially those exploited for their labour. This provision would, for example, allow a civil claim for forced labour to be brought against businesses or a gangmaster which have used and demeaned eastern European or British men for the purposes of slavery or forced labour, which have abused the men’s vulnerabilities to exploit them for profit and also imposed on them bonded debts via extortionate recruitment fees or accommodation charges for filthy living conditions, and which have failed to pay wages owed.
As I pointed out in Committee, when I brought forward an earlier iteration of this amendment, a further significant advantage of a civil remedy is that it is not dependent on criminal prosecution of offenders and can be brought where no criminal investigation has taken place. It was put to me during the debate in Committee that this proposed change in the law might not be necessary as the existing law is sufficient. I was grateful at that time for the helpful comments made by the noble and learned Lord, Lord Mackay, my noble and learned friend Lady Butler-Sloss, who is supporting this amendment, and my noble and right reverend friend Lord Harries. I also thank the Minister for taking the time to write to me about this matter after the debate.
In his letter of 8 December 2014, the Minister took the view that there exist common law and statutory torts, which may be relied on in civil proceedings for damages. I have consulted a number of legal experts on this matter—experts on the issues of human trafficking and forced labour, as well as experts on civil and tort law outside these areas. The advice I have received was unanimous: that the existing remedies are inadequate as they do not provide appropriate routes to redress for all victims. The various examples from civil law described in the Minister’s letter are unable to give due weight to the factors and circumstances encountered in situations of trafficking and slavery. None reflects the elements of control and exploitation inherent in such situations or the subtle means of control assumed over victims by traffickers. One might consider that false imprisonment comes closest to reflecting the element of control over an individual’s life. However, the traditional focus in jurisprudence is on the restraint of physical liberty, and there is no guarantee that the more insidious and very common forms of restraint, such as the confiscation of a passport or the use of vulnerable immigration status to control victims, would be found to amount to false imprisonment. Similarly, the types of individual instances of assault, battery or harassment that can arise in a forced labour scenario may be inadequately represented by existing torts. The long-term nature of abuse and the elements of control of the vulnerable may be quite different from those that arise in other situations.
My Lords, I am grateful to the noble Baroness, Lady Young, for moving this amendment and giving us the opportunity for a debate. As my noble friend Lady Hamwee said, we have agreed to continue dialogue on this issue with the Home Office and the Independent Anti-slavery Commissioner, who has expressed an interest in this area. This is also an opportunity to put on the record some remarks on our position, which the noble Lord, Lord Rosser, invited us to do. In doing so, I do not want to detract from the fact that we agree that this is something at which we need to look carefully.
Since Committee stage, we have been looking very closely at civil remedies and modern slavery, and have been exchanging letters about the details with Peers, as the noble Baroness, Lady Young, said. Amendment 16 seeks to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the House that we believe 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. 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. We have been unable to identify a modern slavery scenario that would not involve at least one of those torts. Given the serious nature of modern slavery, we consider that it is likely that a court would be able to establish that, on the balance of probabilities, at least one of those civil wrongs had taken place. Accordingly, we are currently of the view that the existing civil law already provides the necessary civil remedies for modern slavery cases.
Once a tort has been established, the court can award damages to the victim. Noble Lords previously expressed concern that such damages may be insufficient in light of the terrible experiences that the victim may have suffered. However, aggravated damages are available in relation to a number of civil torts, such as assault or wrongful imprisonment. This means that where the court, taking into account the defendant’s motives, conduct and manner of committing the tort against the victim, feels that the defendant has aggravated the victim’s damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded. Given the particular nature of modern slavery, we would expect most modern slavery cases to give rise to aggravated damages, which seem particularly apt for such situations, given their focus on the injurious and degrading effect on the victim, and consider that the availability of such additional damages will enable courts to ensure that victims receive an adequate remedy fully tailored to the particular effect on them.
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, and an amendment to the Bill will extend this legal aid provision to all modern slavery victims. I believe this amendment has been widely welcomed.
Amendment 17 would require the Secretary of State to complete a consultation on access by victims of modern slavery to the employment tribunal to make claims, including for payment of the national minimum wage. I assure noble Lords that all employees and workers in the United Kingdom are entitled to protection under our employment law, and those working legally in Great Britain will have access to the employment tribunal. In some circumstances this will include modern slavery victims. However, given the criminal nature of modern slavery, some victims will not have been in legal employment and therefore cannot benefit from all the same protections as those working under legal contracts. For example, access to an employment tribunal would be possible only in certain cases of discrimination. This is because, as a general principle, a court or tribunal will not enforce an illegal contract.
Where victims are eligible to make claims through the employment tribunal, there is a two-year restriction, which my noble friend Lady Hamwee referred to, which applies to most claims for unlawful deduction of wages, including underpayment of the national minimum wage. However, in practice, the majority of national minimum wage claims are handled by a separate enforcement route via Her Majesty’s Revenue and Customs. This route is not affected by our changes, and the national minimum wage can still be claimed for up to six years via HMRC enforcement. HMRC investigates every complaint made to the Pay and Work Rights Helpline. In addition, HMRC conducts risk-based enforcement in sectors or areas where there is perceived to be a higher risk of workers not getting paid the legal minimum wage.
An action founded on a civil tort to claim general damages would not be subject to a two-year limit and can usually be made up to six years after the cause of action accrued. In these cases, the amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that should have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. We are committed to doing as much as possible effectively to enhance support for and protection of victims of modern slavery, which includes ensuring that they receive compensation for the horrors that they have experienced.
While our current analysis is that the existing law provides sufficient access to civil remedies for victims of slavery and trafficking, these debates are providing very valuable information in exploring how civil remedies apply to modern slavery cases. We will continue to look carefully at the evidence put forward in the debates, including today’s Report stage debate, in future policy-making. Given the need to explore further the important points raised, I hope that noble Lords will agree that this is not an issue to address through the Bill at this stage. As I have given undertakings, which I mentioned at the outset, to continue the discussion but to put on the record these additional remarks, which represent the Government’s latest position on this issue, I hope that that will provide reassurance for my noble friend and for the noble Baroness, Lady Young, to consider withdrawing her amendment at this stage.
I thank the Minister for his reply, and for agreeing to meet us. However, it is interesting that there clearly is some kind of a problem here if all these practitioners, who are very diligent and very committed to the people with whom they work, cannot seem to find their way through what already exists. That takes me back to 2009, when we were looking at what became Section 71—which we often refer to now—of the Coroners and Justice Act. At that time, a number of arguments were put forward against doing anything about criminalising forced labour and servitude. It now seems impossible to think that anyone would argue against that, but the Government of the time felt that there was sufficient recourse through the civil courts, and we now know better than that. I reiterate part of what the noble Baroness, Lady Kennedy, was saying: we do not want to wait another three years before we get round to thinking, “Oh yes, there is something else—we can do a little bit better”. I therefore hope that we will come to some sort of agreement about a more productive way forward. In that context, I beg leave to withdraw the amendment.