Slavery and Human Trafficking (Definition of Victim) Regulations 2022

Lord Paddick Excerpts

Wednesday 20th July 2022 Lords Chamber

It makes what has happened here a sad reflection on the way in which, for some reason, the Home Office wants to diminish the impact of the Modern Slavery Act. I find it astonishing that it should want to do so. I strongly support what other noble Lords have said, and I too ask the Minister to look at this regulation again, withdraw it, and bring it back when she has looked at what the 30 or so, very sensible, anti-modern slavery organisations are saying about it.

[Lord Paddick (LD)]

My Lords, I thank the Minister for explaining these regulations. It is probably totally out of order but, if I may, can I commend her for demonstrating selfless integrity by her intervention at the weekend?

I am very grateful to the noble Lord, Lord Coaker, for tabling this regret amendment, which we support. We agree with him, the House of Lords Secondary Legislation Scrutiny Committee and organisations such as CARE—Christian Action, Research and Education—that there should have been formal consultation before the Government came up with the definitions of victim of modern slavery and victim of human trafficking. Without consultation with the anti-trafficking sector, any definition used to determine whether someone is a victim of modern slavery is likely to wrongly exclude victims from the support and protections to which they are entitled.

It was clear from the debates that we had in this House that the whole impetus of the Nationality and Borders Act was to reduce abuse of the national referral mechanism, and it is likely that these definitions are consistent with the Government’s approach in that Act. In fact, when we debated the legislation, my assessment was that all the provisions of Part 5 were about making it more difficult to be recognised as a victim of modern slavery and tightening the restrictions on the support available. In particular, as the noble and learned Baroness has just said, the change to

“significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced or compulsory labour”,

compared with the language in the Modern Slavery Act, which states

“which may make the person more vulnerable”,

appears to be a significant restricting of the definition.

I pay tribute to the honourable Jess Phillips MP for her passionate and detailed critique of these regulations when this draft statutory instrument was considered in Committee in the other place, based on her own experience as a first responder in the NRM process and her subsequent casework as an MP. Many other organisations agree with her that the definitions raise the threshold for identification; set a definition of exploitation that is far too narrow; are not in alignment with international law; do not distinguish between adult and child victims; do not explicitly include criminal exploitation; do not feature “practices similar to slavery”, as detailed within ECAT; and overemphasise arranging or facilitating travel.

Yet again, the Government have taken the cavalier approach of saying they can interpret something—in this case, the European convention against trafficking, ECAT—in whatever way they think fit, when even the Secondary Legislation Scrutiny Committee concludes that the definitions in the SI make the situation even more unclear, the exact opposite of what the Government claim to be doing. I agree with the noble and learned Baroness, Lady Butler-Sloss, about the enormous progress made by the Modern Slavery Act, significantly improved by this House, but these regulations and the Nationality and Borders Act row back from that progress.

In conclusion, this statutory instrument appears to narrow the definition of who can be recognised as a victim of modern slavery or trafficking and to create confusion rather than clarity, both of which could have been remedied through a formal consultation process, which was not undertaken. We support this regret amendment.

[Baroness Williams of Trafford (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, both for their contributions and for their continued engagement on what is clearly a very important topic for us all. I join the noble and learned Baroness, Lady Butler-Sloss, in paying tribute to the right honourable Theresa May for all that she did on modern slavery. I think that, ultimately, we all have the same goal: to ensure that victims of modern slavery are identified and supported.

Before I turn to some specific points raised, I highlight again that in drafting these regulations, our focus has been on achieving alignment with the definitions currently used operationally and set out in the existing statutory guidance for England and Wales and the equivalent non-statutory guidance for Scotland and Northern Ireland. I was most grateful to be able to speak to the noble Lord, Lord Coaker, earlier. One thing that noble Lords quite often do, particularly during the passage of legislation, is request of me that they can see draft regulations before they are brought forward to the House. It is something that was not requested on this occasion, but I would say that, generally, where they are available, I am always happy to share them with noble Lords.

As for some of the other engagement processes that we have undertaken, during the engagement our approach to align the definition with ECAT and the Palermo Protocol was welcomed. We have ensured that this advice is reflected in the draft regulations, which align with ECAT and existing definitions set out in statutory guidance and allow for identification of victims of currently unknown forms of human trafficking or slavery. There has also been a thorough engagement process within the Home Office and with partners such as the police and other first responders, to which noble Lords referred, particularly the noble and learned Baroness, Lady Butler-Sloss, to thoroughly identify potential risks and ensure that no unintended consequences or impacts arise from the regulations. The cost and time considerations of running a full public consultation following the new plan for immigration consultation therefore outweighed the potential benefits, given the opportunities to engage on the issues relating to the regulations, but I think we can all agree that there is something to be learned from this process.

Noble Lords also mentioned the report of the Delegated Powers and Regulatory Reform Committee. The committee expressed one concern: that the powers conferred by what was then Clause 68(1) gave Ministers unlimited discretion to define the terms, rather than setting out in the Bill that they should reflect the provisions of Article 4 of ECAT and Article 4 of ECHR, as intended.

We have ensured that the definitions reflect those international provisions in their drafting, and the committee did not raise any other concerns that the regulations would not receive sufficient scrutiny. However, we recognise the evolving nature of these types of exploitation, and the Government can commit to keeping the terms of the regulations under review in the light of operational experience in the Home Office. The Nationality and Borders Act will also be subject to post-legislative scrutiny three to five years after Royal Assent. These regulations can be considered in that review.

The noble Lords, Lord Alton and Lord Paddick, talked about the definition of “exploitation” being too narrow and said that the drafting fails to consider the specific circumstances of child victims. It is very important that a range of factors are taken into account when considering whether an individual is a victim of slavery. It does not diminish the consideration of age at all. This way of drafting means that the list is inexhaustive and allows decision-makers to bring in various other conditions or factors relating to the individual’s circumstances, including of course their age. The regulations are compliant with ECAT and we make it clear that they allow for different types of exploitation which emerge over time.

The noble Lord, Lord Coaker, posited that the definitions are limited and do not include practices similar to trafficking, including debt bondage, forced marriage and certain forms of exploitation, including criminal exploitation. As I have said, the definitions as drafted in the regulations provide scope for various forms of human trafficking and slavery to be identified that are not explicitly defined. This is set out in statutory guidance. For example, criminal exploitation is covered by the definition of either human trafficking or slavery, depending on the precise nature of that exploitation, and will remain as currently defined in the statutory guidance. Regulation 3(6)(d), which includes force, threats or deception to induce the provision of services, would cover child soldiers, given the low threshold at which a child would be deemed to have been forced, threatened or deceived, and exploiting children for illicit activities. In the current statutory guidance, debt bondage is set out as a situational and environmental indicator of modern slavery and will remain as such.

Similarly, the current guidance on adoptions and forced marriage will remain the same. For forced marriage, for instance, this is set out in paragraph 2.65 of the statutory guidance. The Government’s position on illegal adoption is covered in the statutory guidance at paragraphs 2.61 to 2.64. While there are restrictions on arranging adoptions, as set out in Sections 92 and 93 of the Adoption and Children Act 2002, whether this will constitute forced or compulsory labour depends on circumstances. The position will remain the same. More broadly, slavery includes many of these practices. Debt bondage, which the noble and learned Baroness, Lady Butler-Sloss, referred to, and forced marriage mean exercising control over someone in a way that significantly restricts their liberty. The guide is Article 4 of the ECHR, in relation to which slavery is interpreted in the regulations by virtue of Regulation 1(3).

Noble Lords have also raised concerns about the compatibility between these regulations and ECAT. I stress that the definitions set out in the regulations are compliant, as I have just said, with our international obligations, including ECAT, and align with existing operational practices. They will ensure that potential victims are identified and that those involved in identifying victims have very clear parameters on which to rely. They are compliant because, put simply, the activities and forms of exploitation mentioned in ECAT are covered by the draft regulations. Following the approach of ECAT, we have intentionally avoided including reference to all specific forms in recognition, again, of the evolving nature of trafficking and slavery, and so as not to exclude victims of currently unknown forms of exploitation.