Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016

Lord Dunlop Excerpts

Tuesday 18th October 2016 Grand Committee

Moved by

[Lord Dunlop]

That the Grand Committee do consider the Human Trafficking and Exploitation (Scotland) Act 2015 (Consequential Provisions and Modifications) Order 2016

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Dunlop) (Con)]

My Lords, it is appropriate that we should be considering this order today, as today is Anti-Slavery Day. The order before your Lordships is made under Section 104 of the Scotland Act 1998, which allows for “necessary or expedient” changes to UK legislation in consequence of an Act of the Scottish Parliament. The Act in this case is the Human Trafficking and Exploitation (Scotland) Act 2015. To summarise, the objective of the Act is to consolidate and strengthen the existing criminal law in Scotland against human trafficking and exploitation and to enhance the status of and support for the victims of these crimes. After passing through the Scottish Parliament, the Act received Royal Assent on 4 November 2015.

The 2015 Act is in six parts. Part 1 introduces two new offences: a new single offence of human trafficking for all types of exploitation and a new offence of,

“slavery, servitude and forced or compulsory labour”.

These replace existing offences in Scots law. The maximum penalty for human trafficking has increased from 14 years to life imprisonment. Part 2 includes provision on the support and assistance to which adult and child victims of human trafficking are entitled. The remaining parts deal with, among other things, the confiscation of property and proceeds of crime, in Part 3, and the introduction in Part 4 of two new preventive and risk orders in Scotland. In Part 5 the Act also places a duty on Scottish Ministers to prepare a trafficking and exploitation strategy.

As I said, if passed, this draft order would amend UK legislation as a consequence of the Act. The order updates existing UK legislation to give the 2015 Act full effect: to reflect the new Scottish offences, to ensure that the relevant powers of UK immigration officers are updated in line with the new offences so that they are able to detain vehicles, ships or aircraft where a person has been arrested for the offence of human trafficking, and to reflect new powers conferred on the police under the 2015 Act.

The order will, for example, update references to existing Scottish offences in relevant legislation applying in other parts of the UK. These changes, primarily to the Modern Slavery Act 2015 but also to the Immigration Act 1971 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, will refer to the new single offence of “human trafficking” and the new offence of slavery, servitude and forced or compulsory labour in Scottish legislation and the repeal of existing offences.

The order will enable English and Welsh courts to enforce the two new Scottish trafficking and exploitation prevention and risk orders, which will ensure joined-up and robust enforcement. It will also implement the policy intention of some aspects of the Modern Slavery Act 2015 that relate to Scotland by ensuring the scope of the UK’s Independent Anti-Slavery Commissioner’s work and the duty of large companies to report on transparency in supply chains are both updated so that, in Scotland, these flow from the new Scottish offences.

The UK and Scottish Government Ministers and officials have worked closely together to ensure that this order makes in an effective manner the necessary amendments to UK legislation in consequence of the Act of the Scottish Parliament. I believe that this order demonstrates the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work.

I hope noble Lords will agree that this order is an appropriate use of the powers in the Scotland Act and that the practical result is something to be welcomed. I commend the order to the Committee.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the Minister for his careful introduction to this draft order. I should point out at the very outset that it goes without saying that I am entirely in sympathy with the aims of the Act itself and the draft order for the reasons which the noble Lord has given. The reason I have risen to my feet is to draw attention to two problems with the wording of Article 2, which deals with the detention of a “vehicle, ship or aircraft” in circumstances where a person has been arrested and there are “reasonable grounds” for thinking that it might be forfeited. The article itself is very well laid out and extremely clear in its terms, and it is only because of the clarity of the terms and the way it is laid out that two matters have come to my attention which I respectfully suggest may require further thought.

The broad structure is to identify first the power to detain in paragraph (1) of Article 2. The second is paragraph (2) of Article 2, which says that the,

“vehicle, ship or aircraft may be detained”,

until certain things have happened. It is important for the protection of the individual who owns the article in question, be it a vehicle, ship or aircraft, that the date at which the detention comes to an end—if, indeed, it is to be released from detention—is clearly identified. One has in mind, of course, Article 1 of Protocol 1 to the European Convention on Human Rights, which gives a right to the peaceful enjoyment of one’s possessions, of which one may be deprived only in the public interest and subject to conditions prescribed by law. This is fulfilling the requirement that the conditions should be prescribed by law and it is important that they should be properly set out.

If one works through Article 2(2), one sees that the detention may come to an end when a decision is taken as to whether or not to begin solemn proceedings or, if solemn proceedings are begun against a person arrested for the offence, until certain things happen. I have no complaint about sub-paragraph (a); it is sub-paragraph (b) that begins to open up some possible points of difficulty. Where solemn proceedings are begun, they may result in the acquittal of the individual, which is set out there. That indeed would be a point at which the article would be released from the detention. Heading (ii) refers to conviction and identifies correctly that the question of whether the article is released from detention will depend on whether the High Court or the sheriff, as the case may be,

“decides whether or not to order forfeiture”.

When that decision is taken, if it is not to order forfeiture, it is clear that the detention comes to an end. The problem arises when one looks at heading (iii), which uses the phrase “proceedings are otherwise concluded”. Very properly, the drafter has gone on to seek to identify the stage at which proceedings are otherwise concluded. It begins by saying:

“For the purposes of paragraph (2) … solemn proceedings begin”—

in well-understood circumstances where there is a first appearance or the indictment is served. I have no problem with that part of the article. The problems arise when looking at paragraph (3)(b), which says that,

“proceedings are taken to be otherwise concluded if … the proceedings are deserted simpliciter”.

That is a very clear point of time. When the Crown deserts proceedings simpliciter they are brought absolutely to an end, there are no further proceedings and it is perfectly proper that the article should no longer be detained. It identifies the point of time very accurately.

Under heading (ii), however, we are dealing with a different kind of desertion of proceedings, “pro loco et tempore”, which is a phrase used in the Scottish courts for the situation where the prosecutor decides that the case cannot proceed for the time being because, for example, the witness is seriously ill or absent and the Crown simply cannot lead the evidence needed to enable the proceedings to go on. The judge or the sheriff, as the case may be, has to decide whether it is proper that proceedings should be stayed temporarily for that purpose. He may refuse to do that, in which case it may be that the Crown is driven to deserting the proceedings simpliciter, but we are dealing with a situation where a decision is to accede to the Crown’s request that the proceedings be deserted “pro loco et tempore”, and,

“no further trial diet is appointed”.

The problem with that concluding phrase is that it leaves in the air the date at which one knows for certain that there will be no further trial diet. Under the Scottish system, the prosecution is entirely in the hands of the Lord Advocate. With great respect, I suggest that it might be better to clarify in some way the point of time at which one can be certain that no further trial diet will be appointed. That is frequently done by the Crown Office writing to the accused saying that it has decided to take no further proceedings. If a letter of that kind is written, it binds the Crown not to proceed any further and the date of the letter is be the date on which one knows for certain that the vehicle, ship or whatever it is should no longer be detained. The better way in which to phrase it might be for a certificate by the Lord Advocate himself or herself to be obtained which would identify his or her decision that there should be no further proceedings. That would achieve absolute clarity and ensure that the decision was ultimately taken by the law officer. Given the importance of what we are dealing with, which is really a very serious crime indeed, it would be best to obtain his or her decision that there should be no further proceedings.

The same point arises in paragraph (4), where we are dealing with three things that are added together. First,

“the indictment falls or is for any other reason not brought to trial”.

Secondly,

“the diet is not continued, adjourned or postponed”,

and, thirdly,

“no further proceedings are in contemplation”.

I do not have any problem with the first two, but with the last one, how does one know that,

“no further proceedings are in contemplation”?

Again, the suggestion is that the best way of ensuring certainty about that would be to obtain a certificate from a law officer—preferably the Lord Advocate—which would identify the decision at that level that there should be no further proceedings.

There are some situations in which a statute intervenes to say that if proceedings are not taken within a given period of time the indictment necessarily falls. In summary proceedings there is a cut-off date of, I think, six months—it may be 12 months—but when one is dealing with proceedings on indictment, as we are here, there is generally no absolute cut-off date in Scots law. I am subject to correction but I do not think that the statutes which we are dealing with as background to this order actually lay down a period of time within which the indictment must be brought. One is dealing with this problem in an area where there is no statutory backing to give a certain date at which the detention of the vehicle or whatever it is should be brought to an end, and therefore something has to be written into the order to make this clear.

I emphasise that I am not in any way raising these points to cause problems for the Minister. However, I suggest that in the interests of everybody it is better to be quite sure that one has identified correctly a cut-off date at each of the various stages with which this order is dealing. Article 2 has identified some of them perfectly correctly in accordance with Scots procedure, but in the two paragraphs that I have identified, in Article 2(3)(b)(ii) and Article 2(4)(c), I suggest that there is a lack of clarity and that it would be better for the Minister to take time and advice to see whether that clarity can be provided.

--- Later in debate ---

[Lord Dunlop]

I thank noble Lords for this short debate. I am particularly grateful, as ever, to the noble Lord, Lord McAvoy, for his offer to occupy the crease—that would be a way to put it—so that I have sufficient time to answer the detailed points made by the noble and learned Lord, Lord Hope. I also thank the noble and learned Lord for giving notice of the questions he intended to ask. He raised a number of detailed points. I recognise that his expertise in Scots law is of an altogether different class to my own. I understand that the wording he refers to is consistent with the wording in the 2016 Act of the Scottish Parliament. I therefore fear that I do not have a clear answer for him on the detailed points he has raised this afternoon. Obviously, however, I undertake to take advice and to consider carefully the points he has raised, and, having done that, I will come back to him in writing to address those points.

I echo what the noble Lord, Lord McAvoy, said. This order is testimony to the joint commitment shown by this Parliament and the Scottish Parliament to take action and to tackle the scourge of trafficking and slavery, and I therefore commend it to the Committee.

Motion agreed.