Modern Slavery Bill

Lord Hylton Excerpts

Monday 8th December 2014 Lords Chamber

[Baroness Kennedy of Cradley (Lab)]

My Lords, I rise to speak in support of Amendments 72, 73 and 74 in the name of the noble Baroness, Lady Cox. Her amendments rightly seek to ensure that the Bill has an international remit by providing that our diplomatic missions across the world have a duty to engage with foreign Governments and international NGOs on human trafficking and slavery, that the anti-slavery commissioner has a duty to receive those reports and learn from and act upon them, and that through the annual plan, Parliament can debate them. Having each embassy and high commission produce an annual report on government action to fight slavery and trafficking would mean that there will be more thorough research into slavery across the world. It will mean greater dialogue with a wide variety of world government officials, NGOs, journalists, academics and survivors. It will mean that the issue of slavery and trafficking will rise up the world’s political agenda.

Through these annual reports, the UK will be fulfilling an important global leadership role. Involving embassies and high commissions in preparing annual reports about trafficking and slavery in its areas of operation is not new. The US has been doing it for the past 14 years —since 2001 it has produced a Trafficking in Persons Report—and the UK should do the same. I ask the Minister why the UK cannot do the same. The more information we collate and share across the world, the better our national and international responses will be. Having official reports on an annual basis which set out the scale of the problem in each country, the forces that lead to the slavery, the conditions that need to change to fight the slavery and what works best to tackle the root causes of slavery, protect the victims and prevent it from happening in the first place, will lead to the global solutions we need to eradicate this global problem. There is much we can learn from around the world.

Although I welcome the notes in the Modern Slavery Strategy that modern slavery will be included in the country’s annual plan, those embassies target only a small number of countries. If we can increase embassy engagement throughout a wider group of countries we can learn much more. For example, a pilot project conducted in the Netherlands offers specialised assistance and shelter to male trafficking victims. There is also a partnership with the Government of Norway whereby caseworkers in the field are using mobile technologies in Uganda to collect information about the protection needs of young trafficked children. In Austria, youth public awareness campaigns about local trafficking are taking place through school exhibitions and the provision of resources for teachers.

In this way, the annual reports would play a key role in shaping the debate and have a positive contribution to our ongoing dialogue here in the UK. As well as being a valuable source of information, these reports would also prove very useful for NGOs and civil society. They would serve as an additional tool for advocacy and a benchmark for evaluation. They would allow NGOs and others to build stronger relationships with high-level policymakers across the world. The reports would also, I hope, allow us to hear more clearly the international voices of survivors. There is much that we can learn from survivors. They know better than anyone what Governments need to do to identify and protect those who are enslaved and to bring to justice those who are responsible.

Finally, one particular feature of the US Trafficking in Persons Report which I think we should replicate here is the annual recognition that it gives to individuals around the world who have devoted their lives to fighting human trafficking. This year, among others, they honour a former orphan from the Democratic Republic of the Congo who has spent his life providing support for vulnerable children; a leader of 75 front-line anti-trafficking workers in northern India; a director of a centre for victims in South Korea; and the first trafficked victim in Peru to face her traffickers in court. These are inspirational people working day in, day out to fight slavery and trafficking, deserving of international recognition but not wanting it. For them, having British embassies and, through them, the British Government take an active interest in their work, listen to their survivor stories and learn from their work, are recognition enough. We should give it to them. I therefore hope that the Government will support the amendment in the name of the noble Baroness, Lady Cox.

[Lord Hylton (CB)]

My Lords, I have listened to the debate on this group of amendments, and I agree very much with the noble Lord, Lord Deben, and with a number of previous speakers. I do not know to what extent the Foreign and Commonwealth Office was consulted during the drafting of the Bill, but even at this stage I think it should be consulted.

I am glad that Clause 51 is in the Bill, but it must inevitably bring in an international dimension—and who else will deal with that dimension if not the commissioner?

It would be most helpful if the Minister could say that he will take away all these amendments and come back with appropriate government ones on Report. If such government amendments could be published at least a few days in advance of Report, that also would be very beneficial.

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[Lord Hylton]

Following those congratulations, it appears to me that Amendment 85 is, on the face of it, desirable. Is it the Government’s intention that the provision will apply to overseas domestic workers in this country? If that is the case, how will such people get access to the benefit of this proposed new clause? In particular, how will they get access if they have already been deprived of their passport by their employer, if they are locked in by the employer or if they happen to be working seven days a week and perhaps 16 hours or more a day? These are very important and relevant questions, and I look forward to a response.

[Baroness Garden of Frognal]

They are indeed very important and relevant questions. We shall be coming on to this issue in a later group of amendments, so I suggest that we take up the debate on this topic with the later group of amendments that is related to these particular workers.

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[Baroness Cox]

My Lords, I rise to speak to Amendments 102B and 102C as probing amendments in order to return to the important issue of legal aid for victims of trafficking and slavery. Possibly these amendments might be more appropriately grouped with government Amendment 85, which has been widely welcomed and on which I would like to add my own congratulations.

These amendments have two aims, identified by the Immigration Law Practitioners’ Association, the Anti-Trafficking Monitoring Group and the Refugee Children’s Consortium. The first is to clarify the Government’s reason for preventing the commissioner from examining individual cases; and the second is to highlight the concern that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, many will continue to fall through the cracks of provision of desperately needed help. There is currently a protection gap that should be filled by the full provision of legal aid for all trafficked and enslaved persons from the first point of contact with a lawyer.

The amendments highlight the situation that, as things stand, the anti-slavery commissioner will be prevented from investigating individual cases when Clause 44 comes into force. They provide that Clause 44 cannot come into force until such time as legal aid is expanded for victims of slavery and trafficking. That is not to say that Clause 44 should then do so. The powers of the commissioner can be brought into force without the restrictions that Clause 44 would impose. It would give the commissioner a power to investigate individual cases and to be able to respond appropriately, including responding to emergencies.

By making orders under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Lord Chancellor can change which cases are eligible for legal aid. Orders under Section 9(2)(a) are orders to broaden the scope of legal aid. My amendment is not more precise than that. One reason for this is that the national referral mechanism is under review. We do not yet know exactly what the new system for victims of trafficking and slavery will look like. Indeed, the Home Office review of the national referral mechanism states:

“In the event that reasonable grounds determinations were to be phased out … Legal Aid, Sentencing and Punishment of Offenders Act 2012 would need to be amended. This is done through the making of an Order under Section 9 of the Act …six months should be allowed for drafting this process”.

The other concern is the great need for more legal aid to be available at an earlier stage in the process. Victims of trafficking currently qualify for legal aid for their immigration cases if they have a decision that there are “reasonable grounds” to believe that they have been trafficked. Until the competent authority and the national referral mechanism have made a positive “reasonable grounds” decision, a person is not eligible for legal aid. If the competent authority subsequently reaches a negative decision at the final conclusive grounds stage, this renders them ineligible once more. I have been advised by the Immigration Law Practitioners’ Association that the Government’s amendment on legal aid for victims of slavery is subject to the same limitations.

It is of great concern that legal aid is not available to those who are afraid to approach the national referral mechanism in the first place. According to the anti-trafficking and labour exploitation unit, a person who escapes from a trafficker or situation of exploitation and comes to them is likely to be destitute. The person is usually frightened and often illiterate and unable to speak English. In most cases that person has no immigration status, papers or passport. Traffickers keep control of the passports of their victims in many cases. Perversely, fear of immigration enforcement has therefore become a tool in the traffickers’ arsenal. Traffickers tell their victims that they are illegal and threaten to report them to the immigration authorities, which they say will arrest them, detain them and remove them from the jurisdiction. These are not idle threats; victims of trafficking are often disbelieved and detained.

Before turning to the authorities, including the statutory services such as police, who are first responders, victims of trafficking want to know what their options are. Will they be allowed to stay in the UK? Will they be safe? They have been in situations of powerlessness and subject to abuse. They are inherently very vulnerable, so victims of trafficking and slavery need advice about immigration. Without it, some opt to stay in situations of exploitation. It is a crime to give immigration advice if not authorised to do so, and for good reason—to protect people. Yet this means that NGOs providing shelter, which are first responders but not authorised to give immigration advice to the necessary level, cannot step into that breach left by the lack of legal aid.

If I may give one example to illustrate the dire predicament of such vulnerable people, Pranjali is an Indian national whom the excellent charity Kalayaan has assessed as having been trafficked. Pranjali is afraid to approach the national referral mechanism. She was subjected to appalling labour exploitation in the Middle East and here in the UK. She has tried to commit suicide multiple times and has visible scarring on her body. However, Pranjali is the sole provider for her family back in India. She became vulnerable to being exploited because her husband at home is disabled and needs money for his medical treatment. She entered on the tied, six-month domestic worker visa scheme last year but escaped from her employers, yet the Immigration Rules prevent her working for a different employer. She needs advice now as to whether she is likely to qualify for a residence permit as a victim of trafficking, which is her only option to regularise her status. She is weighing the risks of approaching the national referral mechanism, including the risks of being detained and removed, penniless, back to India—jeopardising her ability to provide for her husband’s medical treatment.

Victims of trafficking and slavery are thus in a Catch-22 situation. They will not receive help from a lawyer unless they get a positive decision but are far less likely to get a positive decision without a lawyer to assist them, both in making disclosures about what happened to them and in supporting those disclosures with evidence. The Home Office review of the national referral mechanism records that:

“Victims who escape and present themselves may not know where they have been held or the names of those holding them and the only evidence they have is the story of their experience. Research has shown that those who are severely traumatised have difficulty in providing a coherent story. These factors together can create a perception that decision-making is heavily (and wrongly) based on credibility whereas the decision-maker may feel constrained by the lack of evidence of a crime”.

Mistakes at this stage are difficult to rectify later and can adversely affect the rest of the case. It may be claimed that legal aid is available for everyone who claims asylum but not every victim of trafficking or slavery is a refugee.

In essence, my amendments seek to clarify the situation where a legal adviser encounters a person whom they determine needs legal advice on the immigration consequences of a referral to the national referral mechanism as a victim of trafficking or slavery. That person should surely be eligible for legal advice and for representation in their immigration matters whether or not a referral is ultimately made. Without such eligibility victims of trafficking and slavery, who are already inherently immensely vulnerable in so many ways, are also vulnerable to falling through the gaps of provisions that they so desperately need. I would be very grateful for any clarification or reassurance that the Minister is able to provide.

[Lord Hylton]

My Lords, Amendment 86M, tabled by the noble Lord, Lord McColl, is important in its own right and I am happy to support it. The amendment includes a period for reflection and recovery, which will be particularly helpful to overseas domestic workers who have been exploited or abused and who may have little or no English. I believe the amendment could be a ladder by which these overseas domestic workers in England, and particularly in London, could have access to legal aid and due process in civil cases as provided for by the Government’s Amendment 85, which was accepted earlier. In particular, if applications on behalf of aggrieved persons could be made by NGOs and law centres, the thing might be made to work and it would help those who particularly need it. For years we have seen bad and vicious employers enjoying a large measure of impunity. This must be ended. The amendment seems to agree with the Government’s stated wish to improve protection for victims.

[Lord Alton of Liverpool]

My Lords, I would like to be associated with the remarks from my noble friend Lady Cox concerning the potential gaps that people could fall through and her remarks and questions about the national referral mechanism and legal representation for those who are caught up in trafficking.

I particularly support Amendment 86J, moved by the noble Baroness, Lady Hamwee, and Amendment 86M, tabled by the noble Lord, Lord McColl. There is a link between these amendments because the noble Baroness quite rightly identifies those who may have been psychologically traumatised by their experiences. She rightly said that people could be extremely vulnerable and very badly damaged. Any of us who have met people who have been trafficked know that that must be true. If people have been concealed in a vehicle, smuggled into the country and exploited in the ways that have been described in speech after speech in Committee, these grotesque experiences will have maimed them psychologically. Hence it is important that there should be some psychological assessment and support for people who may be suffering from acute trauma and mental illness of one kind or another—something that is always neglected anyway in the National Health Service for our own citizens, let alone for people who have come through these kinds of experiences.

The noble Baroness, Lady Hamwee, is right to say that people should be assessed psychologically during the investigation of the offence. That theme is picked up in Amendment 86M, in subsection (6)(c) of the proposed new clause, where the noble Lord, Lord McColl, would make provision,

“to assist victims in their physical, psychological and social recovery”—

a point returned to in proposed new subsection (10)(c) with,

“medical treatment, including psychological assistance”.

This is a recurring theme in these two amendments and I am surprised that provision is not being mandated anyway by the Bill and wonder whether it is not possible to do what the noble Baroness and the noble Lord have argued for. What do the Government intend to do to safeguard people who may be suffering from mental illness and who may have been traumatised through their experiences?