Nationality and Borders Bill

Lord Bishop of St Albans Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Alton of Liverpool (CB)]

My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is

“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”


My explanatory statement says—I will not read it all—

“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”—


the point the noble Baroness has just referred to—

“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—”

the guidance.

One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.

Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.

However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.

There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.

Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.

It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.

Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.

I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.

Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.

Article 10(2) of ECAT says that

“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.

Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.

No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.

I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.

[The Lord Bishop of St Albans]

My Lords, I shall speak to amendments 156A and 156B in the names of the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Prashar, to which I have added my name. I hope I can be fairly brief because much of the ground has been set out brilliantly by the noble Lord, Lord Alton, and I am very grateful for that.

The reality of Clause 59 is that raising the threshold—from “reasonable grounds” to believe that someone maybe a victim of modern slavery, to “is” such a victim—could lead to the national referral mechanism failing to identify victims of modern slavery, effectively shutting them out of the support that they so desperately need. That was picked up yesterday in our General Synod debate across the road, to which the right reverend Prelate the Bishop of Bristol has already alluded.

The Clewer initiative, to which she has also alluded, is our response to modern slavery. It was set up in 2016 and published three strategies for 2022. Two of these included promoting victim identification and providing victim care and support. Our concern, along with the Clewer initiative, is not just to get down to the legal minimum but to try to accompany people on what is the most traumatic journey, through which many of them will need considerable help. Part of the reason for that—many Members of your Lordships’ House will grasp this but many people in wider society do not—is that much modern slavery is effectively hidden, and sometimes so subtle that even the people involved in it do not always get what is going on. That is why it affects drug traffickers, fruit pickers, beauticians, people working in nail bars and so on, as well as the obvious areas where people find themselves caught up—for example, in the sex industry.

This coercion is a subtle thing, but it plays a central role in keeping individuals in this misery. It can range from violence to substance addiction, debt bondage and, of course, withholding people’s papers. So, it is a long and complex process. The CURE initiative states that beyond these factors, one of the key elements in controlling victims of modern slavery is creating a fear of any authority so the victims simply do not know where to go. Often, victims will hide.

Nationality and Borders Bill

Lord Bishop of St Albans Excerpts

Report stage
Tuesday 8th March 2022 Lords Chamber

It is not a matter of balance. Is it any wonder that victims do not have the confidence that they will be regarded as victims if one of the criteria for support is that they will co-operate with a prosecution? It is not a new point. We support all the amendments in this group. I would like to have longer to say so but we do, and we are not reassured.

[The Lord Bishop of St Albans]

My Lords, I will speak to Amendments 67 and 68 in the name of the noble Lord, Lord Alton. I spoke to these amendments in Committee because I was concerned that Clause 59 was effectively raising the reasonable grounds threshold for identifying a victim of modern slavery. With respect to the Government, I confess that I remain unconvinced by their desire to alter reasonable grounds thresholds, and was not adequately assuaged in my fears that this could erect an unnecessary barrier to victims accessing the national referral mechanism.

The noble Lord, Lord Alton, made the argument in Committee that reasonable grounds decisions on the standard of “suspect but cannot prove” would allow the Modern Slavery Act to be more in line with ECAT. I am not a legal expert so this may well be the case. However, I made the point that since we currently use “maybe” as it exists within the Modern Slavery Act, as opposed to “is” or “are” as proposed by the Government —indeed, rather than “has been” as appears in ECAT—in supposedly bringing ourselves in line with ECAT we would effectively raise the threshold for access to the NRM.

There are then two possibilities here. Either by opting not to have a “suspect but cannot prove” reasonable grounds, we are moving away from ECAT, or we are essentially raising our reasonable grounds threshold away from a standard of “suspect but cannot prove” to be in line with ECAT. If it is the former, the amendments presented by the noble Lord, Lord Alton, would better achieve the Government’s stated aim. If it is the latter, it begs the question as to what the benefits are of aligning ourselves to ECAT if we are in effect raising the threshold and making it more difficult for victims to access the NRM.

I recognise that we have obligations under ECAT but, as the noble Lord, Lord Deben, previously pointed out, we do not break our international obligations by going further than them, and by seeking alignment via Clause 59 we would effectively withdraw to an obligation that is weaker than our existing legislation. It is slightly bizarre that Her Majesty’s Government seem happy to diverge from Europe when it comes to regulation and standards, as was recently announced with regard to the prospective Brexit freedoms Bill, but when it comes to reducing a threshold for the victims of modern slavery it appears that they are rushing for alignment.

As far as I am aware, there is no evidence that the NRM is being abused. In 2020, the single competent authority made 10,608 reasonable grounds referrals, of which 92% were later confirmed as victims, and 81% of reconsidered claims were later positive. There is an obvious fear that, through this higher standard, a number of victims may not even enter the system at all and, furthermore, that exploiters and slavers will be able to lean on this increased threshold to further manipulate and control their victims and deter them from seeking help. Surely this cannot be the Government’s intention.

I will listen with great interest and care to the Minister’s response. I hope that rather than just talk about the need for legal clarity in relation to both the statutory guidance and ECAT, which I recognise is important, he will address the pressing problem about whether this increased reasonable grounds threshold would have a negative effect on people using the NRM or indeed on referrals being made. I believe that this is the central concern that many of us have in this whole group of amendments, which I support.

[The Lord Bishop of Durham]

My Lords, forgive us for having two Bishops in a row. We do not normally do this—it is the way the groupings have fallen out. I support Amendment 70ZA tabled by the noble Lord, Lord Coaker, to which I have added my name with the noble Baroness, Lady Hamwee, and I declare my interests in relation to both RAMP and Reset. My interest comes from my ongoing engagement in the House with issues concerning children and their well-being and safety, and ensuring that their best interests are central to legislation.

I am deeply concerned that the protection of children identified as victims of modern slavery or human trafficking is not of primary concern in the Bill. I note again that not all children who are in modern slavery or human trafficking are brought into this country from outside. Some are born and raised here but find themselves held in slavery. This is a safeguarding matter, not an immigration matter, and the legislation should recognise that children require special protection. They are covered by the Children Act 1989, as the noble and learned Baroness, Lady Butler-Sloss, pointed out earlier. Why on earth is there no specific provision for the greater protection of children despite all our international and domestic obligations? As with many other parts of the Bill, it is simply not satisfactory for a Minister to rely on unscrutinised guidance at a later date, applied on a case-by-case basis. Safeguards must be built into legislation so there is no doubt that children receive the protection they deserve and that this is not left to chance. Can the Minister say when the guidance will be produced so that it can be properly scrutinised, and how can he reassure us that children are properly protected?