Slavery and Human Trafficking (Definition of Victim) Regulations 2022

Lord Coaker Excerpts

Wednesday 20th July 2022 Lords Chamber

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[Lord Coaker]

At end insert “but this House regrets that the draft Regulations have not been subject to consultation, and give rise to concerns that the changes will narrow the ability of victims to be identified and to access support”.

[Lord Coaker (Lab)]

My Lords, this amendment stems from the regulations needed following the passage of Section 69 of the Nationality and Borders Act. Given the controversy around that Act, and the general criticism of the inclusion of Part 5, which dealt with modern slavery in an immigration Bill, you would have thought the Government would have been especially careful around the definitions to be left to secondary legislation—but indeed not.

The Delegated Powers and Regulatory Reform Committee warned the Government:

“One thing which is noticeable about the power conferred by clause 68(1)—


now Section 69(1)—

“is the absence of any express link to Article 4 of ECAT or Article 4 of the ECHR. The power is simply a power to define the terms in regulations without limiting in any way the provision which may be contained in the regulations. We consider this to be inappropriate. The policy is for the definitions of the terms ‘victim of human trafficking’ and ‘victim of slavery’ to reflect the provisions of Article 4 of ECAT and Article 4 of the ECHR.”

The committee was saying to the Government that they needed to be extremely careful, given the powers being given to Ministers through secondary legislation, rather than in the Bill, to ensure that the definitions were extremely well thought through and had the support of those who worked with them.

The Government say that there is broad agreement. I thank the Minister for her introduction, but perhaps she can explain why, if there is broad agreement, on 15 June in a letter to Dame Diana Johnson MP, who is chair of the Home Affairs Select Committee, 39 separate organisations wrote saying: “There has been no formal consultation about these regulations, despite the existence of established stakeholder groups, and we are concerned that the definitions are incompatible with international law and that they narrow the definitions and therefore scope for identification of victims”. That does not sound to me like broad agreement. Those organisations include ECPAT, the Anti Trafficking and Labour Exploitation Unit, Hope for Justice, Slave-Free Alliance, Focus on Labour Exploitation, the Helen Bamber Foundation, Unseen, the Refugee Council and the Scottish Refugee Council, and the Children’s Rights Alliance for England. The list goes on; 39 separate organisations wrote saying that they were unhappy with the consultation and what was going on. Why are they all wrong and the Government right? Given the sensitivity we had during the passage of the Nationality and Borders Bill, surely the Government should have gone out of their way to make sure that the sector was happy with what was going on. We would not then have the situation where I felt it necessary to bring this amendment before your Lordships.

It is not just these 39 organisations; in contrast to what the Minister said, the Secondary Legislation Scrutiny Committee tells us that

“The Home Office confirmed that, while they did hold a number of talks”—


the Minister outlined these for us—

“with stakeholders including the Victim Support Modern Slavery Strategy Implementation Group and various police, immigration and enforcement authorities, it was about the principles and objectives of these definitions”.

In bold, the report goes on to say:

“the specific wording proposed was not available to them. Neither was any material with the proposed definition available to people outside that stakeholder group.”

So, if the Home Office—the noble Baroness and her colleagues—is concerned to ensure that the sector agrees with the definitions that the Government are bringing forward, given the controversy around the Act, why was no wording shared?

There is a world of difference between a consultation that brings a few people together to have a discussion about what may not happen and laying before a group of people the proposed wording that you will use in the definitions, and then saying, “Does this meet the thresholds that you think are important?” That clearly did not happen, which is why I am bringing this amendment: it is partly about the lack of consultation. No wonder there is debate about the wording—they were not consulted about it. Could the Minister say exactly why?

With respect to Article 4 of ECAT, further criticisms are that, as the Secondary Legislation Scrutiny Committee says, the debate is not helped by supporting documentation from the Home Office describing the regulations as being “compatible with”, “aligning with”, “reflecting” and so on. As I say, no wonder there is concern.

The Home Office’s inability to properly consult and create that broad consensus looks an ever more serious error, particularly when it is confirmed, as I say, by the noble Baroness and Rachel Maclean, the Minister in the other place, that

“We have not mirrored the convention word for word”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 29/6/22; col. 4.]


That is the very point that petitions from front-line professionals have raised: this is a cause for concern and will lead to confusion and uncertainty. If you are not going to mirror a convention absolutely word for word, it becomes even more vital that you consult on the actual words that the Government propose to use.

As we know, the national referral mechanism is crucial. When considering whether someone is a victim of modern slavery, the process needs to open up access to support and services for those who are confirmed to be so. The consequences of incorrect processes are immense—they frighten people away from engaging in the formal state system, which is already happening with the huge rise in the figures for the duty to notify through the national referral mechanism. People are too scared to be formally referred, so the first responder has to send a duty to notify—why has this happened?

But these regulations, albeit perhaps unintentionally, narrow the definition of a victim, depart from international standards and provide insufficient distinction between adults and children. I will give a couple of specific, practical and concrete examples of how the regulations have narrowed the definition—I will take some time on this because it is really important. As I say, Regulation 2(2)(a), which deals with the identification of a victim of slavery, raises the threshold for this: the language has been increasingly strengthened from Section 1 of the Modern Slavery Act, which talks about identification. I say again that I am not a lawyer but someone who uses simple language. Section 1 says:

“In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances … For example, regard may be had … to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons”.


This is from 2015—it says, “may make”.

--- Later in debate ---

I hope I have not bored noble Lords too much to death, and that has been a full explanation of the position.

[Lord Coaker (Lab)]

The noble Baroness certainly did not bore people. That was an interesting exposition of the Government’s position, which could lead us to a full debate, particularly around what “consent to exploitation” means for children.

I start by apologising to the House for not declaring at the beginning my interests as outlined in the register: my position as an honorary research fellow at the Rights Lab at the University of Nottingham and as a trustee of the Human Trafficking Foundation. I apologise for that; I forgot.

On the serious points we are raising, I was interested when the noble Baroness seemed to concede that there may be a problem with these regulations: she said, “Of course, we will keep things under review”. I know that Governments always say that they will keep things under review, but not normally while they are passing something—it is usually said soon after. It is important that the Government keep this under review, but that is not the point. The point is that we are passing defective regulations that do not meet certain criteria and do not clearly explain definitions that will have serious consequences for identifying potential and actual victims of human trafficking and modern slavery.

It is all very well to keep regulations under review—we welcome that—but these regulations are defective, and they are a significant change from what went before. Again, I use the example, as used by other noble Lords, of the inclusion of the words “significantly impair”. We have one of the most premier judges we have had in this country telling us that “significantly impair” will make a significant difference in the courts and in any process. I thank the noble and learned Baroness, Lady Butler-Sloss, for that, as I thank the noble Lords, Lord Alton and Lord Paddick, for their support and their remarks. All the Government can turn around and say to that is, “No, it doesn’t”. That is not an argument; that is not a clarification. That is blind refusal to address a very real problem being put to them by one of the most eminent legal minds we have had in this country in decades. The Government’s response is to say, “No, it isn’t”—what sort of response is that? That is ridiculous; it means that we are passing legislation that is defective, will not work and, as I say, is a significant difference from what went before. We welcome the review that the noble Baroness said the Government will carry out, but it is not good enough.

Going back to a point that was made before, the Government said that they adequately consulted. They said, “This happened, that happened and we spoke to people”. That is not the same as consultation. I say to your Lordships’ House that having a general chat with people is not the same as putting before them the actual regulations and the wording you intend to use for all of those trafficking organisations and bodies to look at the definition and say to the Government, “We think you’ve got that wrong; it will not deliver what you want”.

I know that the Government’s intention is to tackle modern slavery—no one is saying that they are not going to do it. However, what I am saying to the Government and what my regret amendment seeks to say to your Lordships’ House—and, I hope, gain its support—is that the regulations are defective and will not allow the Government to fulfil their own intent. Surely the sensible thing to do would be to review the regulations: to withdraw them and look at them again to address the very serious points made.

Thirty-nine bodies have told the Government that the regulations in their current form are far too narrow and therefore incompatible with international law. The Government’s response is to say, “You’re wrong”. That is not consultation or working with the sector to identify how you move forward to build a consensus. It is simply saying, “We know best and, frankly, we don’t really care what you say”. It has to stop. The Government should withdraw these regulations and I ask your Lordships to support my amendment. I wish to test the opinion of the House.