Nationality and Borders Bill (Fourteenth sitting)

Holly Lynch Excerpts

Committee stage
Tuesday 2nd November 2021 Public Bill Committees

[The Lord Commissioner of Her Majesty’s Treasury (Craig Whittaker)]

Identifying and supporting victims at an early stage is a key part of the Bill, and the new one-stop process. To underpin that process, clause 54 provides for legally aided advice on the national referral mechanism to be provided to individuals who are already receiving legally aided advice on an immigration or asylum matter. The additional advice will be free to the individual.

The provision of legally aided advice under the clause will help the individual’s lawyer to provide holistic advice on the individual’s situation as a whole, looking at the range of protection-related issues, including modern slavery. Advice under the clause will additionally help to identify and support potential victims of modern slavery at an earlier stage. Potential victims of modern slavery will be able to understand what the NRM does and able to make an informed decision as to whether to enter it and obtain the assistance and support provided under it.

The Government are firm in our commitment to identifying and supporting all victims of modern slavery. The clause seeks to ensure that individuals are provided with advice on the NRM at the same time as they are receiving advice on an asylum and immigration matter, which will enable more victims of modern slavery to be referred, identified and supported.

[Holly Lynch (Halifax) (Lab)]

It is a pleasure to see you in the Chair, Ms McDonagh. Clause 54 amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to enable advice on referral into the NRM to be provided as add-on advice where individuals are in receipt of civil legal services for certain immigration and asylum matters. Although I and many other colleagues welcome the fact that the Government have recognised the importance of legal aid as part of the process, we argue that legislating for it only as an add-on misses the opportunity to extend access to all those who would benefit from it—I include the Home Office as one of the main beneficiaries of people having access to proper advocacy and advice from an early stage.

In England and Wales, 63% of the population do not have access to an immigration and asylum legal aid provider, due simply to a lack of provision—what is known as a legal desert. Where there are providers, many are operating beyond capacity. Sadly, it is therefore commonplace for support workers to be unable to find lawyers for clients who are victims of trafficking.

It is not reasonable to expect vulnerable victims to be able to navigate the system without legal representation. It is vital that this is provided at the earliest stage possible. As the Public Law Project and JUSTICE have pointed out:

“The provision of legal aid to individuals who seek redress is not simply a matter of compassion, but a key component in ensuring the constitutional right of access to justice, itself inherent in the rule of law and an essential precondition of a fair and democratic society. Failure to provide it can amount to a breach of fundamental rights under the common law and/or the European Convention on Human Rights.”

We believe victims deserve better than what is set out before us in the Bill. The Anti Trafficking and Labour Exploitation Unit has highlighted how the single competent authority is currently sending out template witness statements as a guide for how they should be prepared. They warn of the legal implications of the document even in the absence of a lawyer. That is unacceptable. I am sure the Minister agrees that it would make for an improved system with more integrity and fewer errors—the very sort of system he proposes—if a broader approach to legal aid was adopted.

It is also fair to argue that access to legal aid remains somewhat of a postcode lottery, with many outside London and the south-east experiencing difficulties in accessing legal assistance. I take this opportunity to highlight the great work of the Anti Trafficking and Labour Exploitation Unit in attempting to widen access, having developed an online referral system for support workers to simplify the process for sourcing legal aid representation. However, it should not fall to organisations such as ATLEU to plug the gaps in the system. We wish to see improved access through this clause.

Similarly, the Government state in the explanatory notes to the Bill that clause 55 is designed to provide an add-on to legal aid on referral to the NRM if the victim has been granted exceptional case funding and is being advised in relation to the claim that their removal from or requirement to leave the UK would breach the Human Rights Act 1998. That means that clause 55 does not provide a route to pre-NRM advice for those who are not already in receipt of legal aid via the scope of another matter, and therefore does not provide free legal aid pre-NRM for all trafficking cases.

In scrutinising these measures, we have worked closely with the Immigration Law Practitioners Association, which I thank for having been so generous with its expertise, as I know it is for MPs right across the House, and for providing real-life examples that demonstrate the scale of the issue. It said:

“We assisted the pro bono department of a non-legal aid law firm when they helped a potential survivor apply for exceptional case funding—ECF—in August 2020. The funding was requested in order to provide advice on an NRM referral and associated immigration advice. This application was refused. A request to review the decision was refused. A decision on a second review is pending a final decision from the Legal Aid Agency. One ground of refusal at first review stage was that no decision had yet been made to remove the individual as they had not come forward to the authorities, and if a decision to deport or remove a client from the United Kingdom is made, an application for ECF could be made at that stage. The application remains undecided 13 months after the original submission.”

The system is a mess, Minister. It is the Opposition’s view that free legal aid and advice for potential victims of slavery and trafficking in the UK pre-NRM should not be limited to cases with existing immigration and asylum aspects. Only then will the Government’s offer of legal advice on referral to the NRM work in practice. In summary, the proposals contained within clauses 54 and 55 do not fully address the existing shortcomings in the system—another missed opportunity.

Question put and agreed to.

Clause 54 accordingly ordered to stand part of the Bill.

Clause 55 ordered to stand part of the Bill.

Clause 56

Disapplication of retained EU law deriving from Trafficking Directive

Question proposed, That the clause stand part of the Bill.

[Craig Whittaker]

The trafficking directive—the directive on preventing and combating trafficking in human beings and protecting its victims—was adopted by the UK on 5 April 2011. The Council of Europe convention on action against trafficking in human beings—ECAT—is the principal international measure designed to combat human trafficking. The trafficking directive is intended, in part, to give effect to ECAT. ECAT’s objective is to prevent and combat trafficking by imposing obligations on member states to investigate and prosecute trafficking as a serious organised crime and a gross violation of fundamental rights.

Following the end of the transition period on 1 January 2021, the UK is no longer bound by EU law, but ECAT remains unaffected. Therefore this Government intend, by means of clause 56, to disapply the trafficking directive in so far as it is incompatible with any provisions in the Bill. That will bring legislative certainty to the Bill and how its clauses will apply. It will also provide further clarity to victims about their rights and entitlements.

The Government maintain their commitment to identify and support victims of modern slavery and human trafficking, as part of the world-leading NRM. The Modern Slavery Act 2015 and ECAT, which sets out our international obligations to victims, remain unaffected, as do the UK’s obligations under article 4 of the European convention on human rights.

I commend the clause to the Committee.

[Holly Lynch]

I thank the Minister for his opening remarks on clause 56. The explanatory notes on the clause state that, as the Minister has just outlined,

“the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Bill.”

There are some substantial and quite technical inconsistencies here that need to be worked through, and to do so we have had to enlist legal expertise from the Anti Trafficking and Labour Exploitation Unit and others, so I thank them all for their service.

The trafficking directive is part of a suite of measures designed to combat the crime of trafficking. The EU has introduced several legislative measures to strengthen the protection of victims of human trafficking, including the 2011 EU directives on preventing and combating trafficking in human beings, and protecting victims of trafficking.

I turn first to the heading of clause 56—“Disapplication of retained EU law deriving from Trafficking Directive”. Subsection (1) refers to

“Section 4 of the European Union (Withdrawal) Act 2018”,

which saved the trafficking directive in domestic law, so that it continued to have effect on or after the UK left the EU at the end of December 2020. However, it has the opposite effect, by stipulating that any

“rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive”

that were saved cease to apply,

“so far as their continued existence would otherwise be incompatible with provision made by or under this Act.”

Therefore, our primary concern about clause 56 is that the power to disapply the rights derived from the trafficking directive will cease the rights and remedies available to victims generally as a matter of domestic or EU law that continues in force in the UK.

The world’s largest group of modern slavery researchers, Rights Lab, has argued:

“After eight years of the government’s general position being that the rights under the Trafficking Directive were already in domestic law, the choice to legislate now in the Nationality and Borders Bill—to reduce and restrict rights and entitlements through Part 4 of the Bill—and the presence of the express power to disapply them in the event of an incompatibility with the Bill in Clause 56 is concerning. The government should instead ensure that rights under the Trafficking Directive continue to apply in UK law, by incorporating it, and further, it should incorporate ECAT in domestic law and end the fragmented approach to victim identification, protection, and support.”

The clause will also threaten the Government’s ability to combat the perpetrators of human trafficking, as it will further undermine the response to criminal justice and the rights of victims of trafficking as victims of crime in the victims of crime directive and relevant codes of practice. Additional concerns have been voiced in relation to the rights under the NRM of victim identification and support and non-penalisation. For example, article 8 of the directive provides for the non-prosecution or non-allocation of penalties to victims, and requires the UK to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities that they have been compelled to commit as a direct consequence of being subject to any of the acts referred to in article 2.

Therefore, that directive is clearly threatened by clause 56 and other provisions of part 1 of the Bill, including clause 51, which I appreciate is precisely why this Government want to disapply it. However, I am afraid that that is just the wrong judgment call.

In conclusion, the clause is incompatible—

[Craig Whittaker]

I am not sure whether the hon. Member is aware that the transition period for this measure finished in January, so in effect it has already been disapplied.

[Holly Lynch]

I thank the Minister for his intervention. We are into the thick of the legal technicalities. These points are from some of the leading legal experts on the subject. They are not entirely satisfied that clause 56 is compatible, and that we are not missing some of the protections that have been hard fought for, with good reason.

In conclusion, the clause is incompatible with the UK’s legal international obligations and will have far-reaching consequences. For that reason, it should not stand part of the Bill.

--- Later in debate ---

[Craig Whittaker]

Let me start with amendment 150. I would say to the hon. Member for Sheffield Central that his amendment applies to all aspects of age assessments, not only the use of scientific measures. As such, it is extremely broad, although I do not know if that remains his intention.

The Home Office takes its statutory duties towards the welfare of children very seriously. The current age assessment system is desperately in need of reform. We have heard many reports from local authorities about the prevalence of adults posing as children and claiming services designed for children, including accommodation, education and social care. This poses significant risks to the welfare of genuine children in our care system and undermines the integrity of the immigration system. Equally, we need to safeguard vulnerable children from being placed in adult services, although I am not sure I agree with the hon. Member for Sheffield Central when he said that this is headline grabbing.

We must do everything in our power—whatever that is—to safeguard children, including vulnerable and unaccompanied asylum-seeking children.

[Holly Lynch]

The Government were less enthusiastic about protecting children under part 4 of the Bill.

[Craig Whittaker]

I do not think that deserves a response because I do not believe any Member of the House, wherever he or she sits, would advocate that we leave children vulnerable in the system.

One measure we look to pursue is the use of scientific methods, as has been said. Assessing someone’s age is an incredibly difficult task. It is only right that in this complex and sensitive area we seek to improve and expand the evidence base on which decisions can be made. We are aware there are ethical concerns around the use of certain scientific methods for age assessment, which is why new clause 32 includes a number of changes to the Bill to ensure proper safeguards are in place for those who are asked to undergo a scientific age assessment.

First, the Secretary of State may only specify a scientific method of age assessment in regulations once she has sought scientific advice and determined that the method in question is appropriate for assessing a person’s age. I expect that scientific advice to also cover related ethical considerations. Secondly, a scientific method of age assessment will not be performed unless the appropriate consent is given by or on behalf of the individual on whom the method is to be performed. We will be as transparent as possible about the nature and consequences of the specified method where consent is required once an appropriate method has been identified. Thirdly, where a person has reasonable grounds for refusing to undergo a scientific age assessment, they will not be required to undertake one. That decision will not then count against them.