Counter-Terrorism and Security Bill
Lord Rosser Excerpts(9 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, the Government have tabled this amendment to provide that civil legal aid may be made available at hearings of applications to extend the 14-day time period in which an individual’s travel documents may be retained in England and Wales. This issue was raised by my right honourable friend Dominic Grieve in Committee on 15 December and it is a matter in which the Joint Committee on Human Rights has expressed an interest.
Legal aid for judicial review is already available in England and Wales, subject to the statutory means and merits test, including for legal challenge by those subject to the temporary passport seizure power. However, this amendment is necessary to ensure that, subject to the means and merits test, civil legal aid may be made available in relation to applications to extend a temporary passport seizure to a district judge—magistrates’ courts— in England and Wales, as set out in paragraph 8 of Schedule 1 to the Bill.
The Scottish Government have confirmed that civil legal aid is already available in Scotland under the Legal Aid (Scotland) Act 1986. The secondary legislation which sits under that may require some amendment and that will, of course, be taken forward through the Scottish Parliament. We are speaking to the devolved Administration in Northern Ireland about whether civil legal aid is already available there, subject to the statutory means and merits test, for individuals subject to the power in that jurisdiction. If an amendment is necessary to cover the availability of legal aid in Northern Ireland, we will bring one forward in due course.
Amendment 1 will amend Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012, or LASPO for short. It will add the provision of legal aid in the proceedings set out in paragraph 8 of Schedule 1 to the Bill as a form of civil legal services for which legal aid may be made available in England and Wales. The matters covered are subject to all the exclusions set out in part 2 of Schedule 1 to LASPO. The amendment also ensures that advocacy before a district judge—magistrates’ courts—may be included in the civil legal aid that may be made available for these proceedings by amending Part 3 of Schedule 1 to LASPO.
The amendment does not alter the statutory means and merits test, nor does it make civil legal aid available for any other civil legal services in England and Wales. The Government consider that an amendment to the scope of the civil legal aid scheme in England and Wales is appropriate in these circumstances due to the important nature of the proceedings set out in paragraph 8 of Schedule 1 to the Bill, the limitations on an individual’s ability to present their own case in these circumstances and the absence of an alternative route to resolution. I beg to move.
Lord Rosser (Lab)
My Lords, as the Minister has said, the amendment provides for legal aid for proceedings before a district judge in the light of an application for an extension of the 14-day period. We fully support the Government’s change of heart on this point about legal aid. As the Minister mentioned, the amendment states that its provisions are subject to the exclusions in Parts 2 and 3 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So that we are clear on exactly what those exclusions mean, it would be helpful if the Minister could clarify what their impact would be in reality, in respect of legal aid being provided, or not, in applications for an extension of time for retention of travel documents, which is the issue covered by the amendment.
Baroness Hamwee (LD)
My Lords, I too am glad that the Government have addressed the matter of legal aid. There was clearly going to be a call for that. My question, which is a sort of prequel, is about whether advice would be available to a traveller at the point when travel documents are seized and retained. Legal aid is becoming confined to proceedings rather than advice, but this is an important point in the whole process.
Lord Rosser
“( ) This section shall be in force for two years from the date of the passing of this Act and shall operate thereafter subject to an affirmative resolution in each House of Parliament.”
Lord Rosser
My Lords, Amendments 2 and 55 provide for the new powers in the Bill to seize travel documents, including passports, from individuals thought to be leaving the country for purposes related to terrorism and the power to place an individual on a temporary exclusion order in order to provide for what the Government have described as a managed return to cease two years from the date that this Bill becomes an Act unless both Houses have passed affirmative resolutions providing for the powers to continue in force until a later date.
The powers in question in the Bill would enable immigration officers, customs officials, qualified officers and senior police officers to take a passport away from an individual and leave them in a situation where they were no longer a passport holder for a period of 14 days or, following a court review, 30 days. The powers in the Bill also provide for the Home Secretary to make whatever arrangements he or she thinks appropriate in relation to the individual concerned during the period when they have no passport or on that period coming to an end.
The temporary exclusion order requires an individual not to return to this country unless that return is in accordance with a permit issued by the Secretary of State prior to the commencement of the journey back or, alternatively, the return is the result of the individual’s deportation to this country. As the Bill says, the effect of the temporary exclusion order while it is in force is that the issue of a British passport to the excluded individual while he or she is outside the United Kingdom is not valid. These two measures in the Bill as it stands will be as permanent as any other legislation passed in this House which likewise does not contain a clause providing that it ceases to have effect on a certain date unless both Houses have passed resolutions before then providing for it to continue.
The reason for these new powers being sought is that the security situation has deteriorated, particularly as a result of some hundreds of people leaving this country, often at very short notice or unbeknown until a very late stage by family or friends, to join up with, or otherwise become involved with, terrorist organisations, not least in Syria and Iraq. The power to take away the passport and other travel documents is to give the authorities an opportunity to make inquiries about an individual in question and their intentions, and within 14 days or 30 days decide whether to return the passport or travel documents or take another course of action. The power to invalidate an individual’s British passport while a temporary exclusion order is in force is to enable that individual’s return to this country to be made subject to complying with terms determined by the Secretary of State.
It may be that it is the Government’s view that the worsening in the security situation as a result of individuals leaving the country to engage in terrorist activity, or subsequently seeking to return, is effectively a permanent development. If that is the case, it would be helpful if the Government said so. If it is not their view, there is a real danger that this measure, which, presumably, most if not all would prefer it had not become necessary to enact, will remain on the statute book long after it is really needed. Governments of all political colours and relevant authorities do not always willingly give up powers—in this case significant powers in relation to retention or invalidation of passports—which they might feel, even after the immediate need has passed, could still come in useful at some time in the future.
The purpose of our amendments is to ensure that there is a proper debate on the need for these powers to continue, in this case, beyond a period of two years from this Bill becoming an Act. The knowledge that Parliament has to agree will help concentrate minds on whether the case still exists, which it may well might, and will at least ensure that the measures which are being introduced in the light of a particular security development in respect of people from this country travelling to engage in terrorist activity or subsequently returning from such activity or involvement does not continue on our statute book longer than the national security situation demands. I beg to move.
Lord Phillips of Sudbury (LD)
My Lords, I strongly support Amendments 2, 3 and 4. The measures contained in the Bill are of fundamental importance, but they are extremely difficult to construct in a way which holds an appropriate balance between state security and individual liberty. The notion in the amendments that the outcome of what we are doing should be reviewed by the independent reviewer within two years and put to Parliament is eminently sound. My only query is whether or not the role of the independent reviewer in looking over the consequence of this part of the Bill might not be better addressed to the whole of it. There are other parts of the Bill whose outcomes are no less difficult and problematic to anticipate. I hope the Government will give a positive response to these amendments.
Lord Bates
I see the distinction between the issues—as did the other place and the Constitution Committee. But in this area, we believe that a sunset clause is not necessary in relation to this chapter of the Bill. In other parts, such as Part 2, when we will come to TPIMs, the sunset clause is there. It is not a general principle written through the Bill; we are looking at this area by area, and we remain open to advice from your Lordships’ House, Parliament and the independent reviewer as to what their thoughts are on the necessity of that.
People have not happened upon the sunset clause up to now because they have found it too difficult to arrive at a precise point for where the amendment should be. Should it be at two, three or four years? We have heard a range of different discussions. It remains there, open to review, and the procedures will be subject to regulations, which will give rise to further debate and scrutiny, but it is not appropriate to offer a fixed and arbitrary time limit for this chapter of the Bill.
Lord Rosser
I thank all noble Lords who have taken part in this debate. I have not been sitting here counting up the numbers but I have a feeling that there was rather more support for the general thrust of my amendment than opposition to it. Obviously, I am grateful to the Minister for saying that he will take away what has been said today and reflect further on it—without, I accept, making any commitment to come back with a change—and I am grateful to him for saying that he will look at the matter in the light of the comments that have been made today.
I have to say that I find a little odd the Minister’s comment at the end that the problem was—at least this is how it came over to me—how long should it be before the powers cease unless they are continued by affirmative resolution of both Houses? I have been asked the question; I am not wedded to two years. If it is possible to have discussions and come to an agreement on another period that might gain wider support, the issue at stake is that there should be, after a certain period, a look at whether we still need these powers in force, in view of the fact that they are quite significant new powers. If the issue that the Government have is determining the appropriate length of time—because, after all, not to put anything in the Bill in a sense determines a period of time; that is, there is no review at all—I hope that the Minister will be willing to have discussions on that point.
We have already had different views expressed about the message that the powers ceasing to continue after a certain period, unless renewed, sends. I am afraid I rather subscribe to the view that the message that it sends if you do not have it in is that these powers could continue, metaphorically speaking, for ever and a day, although I appreciate that another view has been expressed that they might be seen as a sign of weakness on our part. As I say, that is not a view to which I subscribe. I do not think that reviewing the need for the continuation of these powers is a sign of weakness at all because obviously there is a distinct possibility that in looking at the situation one might decide that the powers should be renewed.
We have also had a discussion about the role of the independent reviewer, which presumably will be discussed in the next group of amendments. Of course, the issue of the sunset clause covers the question of the current worsening of the security situation, with people from this country going abroad, apparently to engage in acts of terrorism, and subsequently returning. That involves the two issues we are talking about: passports and temporary exclusion orders. I say only to the Minister that within not too long a period of time—although I am flexible about what that should be—the problem arising from people going from this country to engage in terrorism and seeking to return may be a lesser problem than it is now, as opposed to other issues related to terrorism still being fairly high up the list.
That is what the proposed sunset clause deals with: specifically, people going from this country to engage in terrorism and subsequently coming back. It is because we consider it a problem at present that we are talking about and supporting the powers in the Bill. But it is conceivable that, over not too long a period, that specific point may not be the problem it is at the moment, and we ought to have some powers in the Bill to be able to reflect on whether the case is still there for continuing the powers that we are talking about today.
As I say, I am grateful to the Minister for agreeing to reflect further and to all noble Lords who have taken part in the discussion. I beg leave to withdraw the amendment.
Lord Rosser
“( ) The Secretary of State shall commission an annual report to be laid before each House of Parliament by the Independent Reviewer of Terrorism Legislation on the exercise of powers contained in this section.”
Lord Rosser
As mentioned in the debate on the previous amendment, the group of amendments to which Amendment 3 belongs requires the Secretary of State to commission an annual report to be laid before both Houses by the Independent Reviewer of Terrorism Legislation on the exercise of the powers contained in Chapters 1 and 2 of Part 1 and in Part 2, which relate to the seizure of travel documents and temporary exclusion from this country. The amendments also require the Secretary of State to publish annual figures on the usage of these powers, and for an annual review of the arrangements made by the Secretary of State under the powers in paragraph 14 of Schedule 1 to be published and laid before both Houses.
I think I am right in saying that in its recent report the Joint Committee on Human Rights drew attention to the fact that neither of the new powers in Part 1 concerning the seizure of passports and managed return are made subject to independent review. It seems that the Minister told the JCHR that the Government had considered independent review, but apparently they were satisfied that any review of the extensive new powers in Part 1 should not extend beyond that carried out by parliamentary Select Committees. The Joint Committee on Human Rights referred in its report to the fact that the Independent Reviewer of Terrorism Legislation had commented on this issue, saying that if the powers we already have under the Terrorism Act need independent review, then surely the new powers in Part 1 also need independent review. It could be said that if that review took place it might help to inform a discussion on whether the powers needed reviewing if there was a sunset clause in the Bill. The Joint Committee on Human Rights said that, like the Independent Reviewer of Terrorism Legislation, it believed in principle that the operation in practice of the new powers to impose restrictions on the travel of terrorism suspects should be subject to independent review, and therefore it was recommending that the powers in Part 1 concerning passports and managed return should be subject to review by the independent reviewer.
In moving Amendment 3, I am also speaking to the other amendments in this group. I hope that the Minister will be able to give a positive response to them.
Baroness Hamwee
My noble friend Lord Carlile has already referred to the fact that the independent reviewer can, does and did look at far more than is spelled out in statute. My inclination would be to spell that out, but to spell out that the independent reviewer’s powers extend to all terrorism legislation. I have half a clause drafted to that effect for later in Committee stage. That does not mean to say, as these amendments suggest, that that should necessarily be annual. It may need to be done more than annually. Some legislation—I think it is the asset-freezing legislation—requires quarterly reports. As time goes on, subject to the eventual decision about a sunset clause, it may be not so necessary to report as frequently. Perhaps more importantly, I would prefer that a report was not subject to commissioning by the Home Secretary. A future Home Secretary might decide not to commission a report, and we can all see where that might go.
This is an important issue. I am glad that it has been raised, and it has been covered quite substantially already this afternoon. I am not convinced that this is quite the way to go about it. We need to look at the comments made by David Anderson on the scope of the role and the balance between its constituent parts, and not pick bits off in individual parts of the Bill.
Lord Rosser
Once again, I thank all noble Lords who have taken part in this debate. I hope that if I have misunderstood, the Minister will immediately put me right, but, as I understand it, he is saying that the Government will look at the issue of independent review of these parts of the Bill, or how that might be done, as part of discussions we will have on a later section of the Bill. Have I understood that correctly, or have I misunderstood it?
Lord Ashton of Hyde
The noble Lord has understood it correctly. We will discuss these matters further in Part 7. I also said separately that we are considering the report of the Joint Committee on Human Rights.
Lord Rosser
I thank the Minister for that clarification. Obviously, I am very grateful to him for his comments, which are extremely helpful. I will withdraw my amendment in a moment, not least in the light of his very helpful response.
I hope that the noble Baroness, Lady Ludford, will not mind if I do not give a detailed response to her question. However, I will look at the issue she raised about some of the amendments that we have tabled. In the short time since she raised the point—obviously, I was trying to listen to what was said in the debate—I have not had a chance to do so. Clearly, if they are wrong, that has been a slip-up on our part. However, I will have a look at the wording to see whether I share her view that that may be the case. I beg leave to withdraw the amendment.
Lord Rosser
My Lords, we have Amendment 16 in this group. Paragraph 4 of Schedule 1 deals with authorisation by a senior police officer for retention of a travel document. The travel document could, of course, be a non-UK passport. The purpose of our amendment, which provides for the relevant embassy to be informed immediately if a travel document is being retained, is to ascertain how the Government intend to manage the seizure of non-UK travel documents and the individual concerned, including where there is dual nationality.
Bearing in mind that the individual in question, who will presumably be a foreign national, will be unable to leave this country for a period of time, who or what will be informed of this who would not have been so informed if the individual in question was a British national with a British passport? If the country of which the individual concerned was a national became aware, or was made aware, that the passport had been retained and travel denied, would we, if that country so requested, prevent the individual travelling until it had carried out and implemented the kind of measures and procedures which we are providing for under the temporary exclusion orders?
If we were satisfied that the foreign national in question whose passport had been retained was seeking to go to another country, which was not their own, for purposes associated with terrorism, what action might we take? Would we consider legal proceedings against them in this country; would we deport them back to their own country; or would we allow them subsequently to continue on their way to wherever it was they were going?
This is very much a probing amendment to find out how the Government would manage the situation, or what actions they would take in relation to the seizure of non-UK travel documents and the individual concerned. I hope that the Minister will clarify some of the issues that I have raised, as well as those raised by the noble Baroness, Lady Hamwee.
Lord Bates
My Lords, I am grateful to my noble friends Lady Hamwee, Lord Thomas and Lady Ludford for tabling Amendment 5 and for providing advance notice of their amendments. The debate on this group has also concerned Amendment 16, tabled by the Opposition, and to which the noble Lord, Lord Rosser, has spoken. I will seek to address the issues that both amendments raise.
Amendment 5 would amend the definition of a passport to exclude,
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.
It would prevent police officers and designated Border Force officers exercising the power against individuals travelling on a foreign passport. This would mean that the police could not use this power to disrupt the travel of foreign nationals they reasonably suspected to be travelling overseas for terrorist-related activity. In the case of British citizens with dual nationality, the amendment would have the effect that the person’s British passport could be seized but their foreign passport could not. I accept the probing nature of the amendment, and I am sure that my noble friend is aware of that point but is seeking to elicit further information and reassurances.
The increasing number of people leaving the UK and Europe for the purpose of engaging in terrorism-related activity overseas—and returning with enhanced terrorist-related capabilities—means that we need proportionate powers to counter the real threat that we face from terrorism at home and abroad. This power will send out a robust message to anyone considering travelling to and from the UK for the purpose of involvement in terrorist activities.
It would not be appropriate—indeed, it may unlawfully discriminate against British citizens—if the police were able to use this power against British citizens suspected to be travelling overseas for terrorist-related activity but unable to use this power to disrupt the travel of foreign nationals. The power therefore applies to British citizens and foreign nationals, including European Economic Area nationals. Databases at a port would be updated to disrupt any further attempts at travel for the period in which the travel documents have been retained.
Passports are the property of the issuing authority—my noble friend sought clarification on this—and it is an International Civil Aviation Organisation, ICAO, standard for the issuing authority to be shown on the passport. There is no legal requirement to inform other issuing authorities when passports are seized or surrendered in other circumstances, such as to meet bail conditions. That would be the same for a British national in another country subject to similar actions.
Amendment 16 would require the police to inform the relevant embassy or high commission if the police exercised the power at Schedule 1 against their country’s citizens. If a foreign travel document is seized under this power, we will consider whether to notify the Government concerned on a case-by-case basis. In some cases, there could be concerns about the consequences for an individual if information like that is made available. Individuals affected can, of course, if they choose, seek consular assistance from their Government’s representatives here.
Foreign Governments are not routinely notified when their passports are seized or surrendered in other circumstances, such as under Schedule 7 to the Terrorism Act 2000, when a passport can be held for up to seven days for examination purposes, or when an individual subject to a terrorism prevention and investigation measure is prohibited from possessing a travel document.
My noble friend Lady Hamwee asked about the definition of travel documents. Our definition is anything that is or appears to be a passport, ticket or another document that permits a person to make a journey by any means from within the UK to outside the UK. It would include, for example, a boarding pass. A passport means a UK passport or a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom or by or on behalf of an international organisation or a document that can be used in some or all circumstances instead of a passport.
I was asked whether the power applied to diplomatic passports. Under international law and treaty diplomats may enjoy certain immunities. This power cannot be used to breach one of those. I think that is fairly clear.
The noble Lord, Lord Rosser, asked whether we would return a foreign national’s passport to their country, if it was requested. Passports are the property of the issuing authority, as I have already mentioned. There is no legal requirement to inform issuing authorities when passports are seized or surrendered. If the issuing authority requested it to be returned, we would consider whether it was appropriate to do so. In most circumstances we would expect to return it unless it was required, for example, as evidence in connection with a prosecution.
I have tried to answer the points of what I know were probing amendments. I hope with those bits of explanation and justification my noble friend will feel free to withdraw her amendment.
Lord Rosser
Lord Rosser
My Lords, my amendments in this group are Amendments 8, 14 and 15. Amendment 8 provides that, for the powers relating to search and seizure in respect of travel documents in paragraph 2 of Schedule 1 to be exercised, a constable must have “evidence or intelligence” to suspect that the person in question is there with the intention of leaving this country for the purpose of involvement in terrorism-related activity rather than “reasonable grounds” as provided for in the Bill.
This power of seizure of travel documents in this way is a new one and is presumably expected to be exercised only where the relevant authorities have either some hard evidence in respect of the individual whose travel documents they intend to retain or intelligence of a nature which they believe, bearing in mind its nature and source, may well prove accurate.
The Bill does not make provision for the person whose passport is seized to be informed, even in outline, of the reasons for the authorities suspecting that they may wish to travel abroad for purposes associated with terrorism and neither does the draft code of practice require a person who is subject to the exercise of the power to search for and seize travel documents to be told anything about the reasons underlying the suspicion that the person is intending to leave the country for the purpose of involvement in terrorism-related activity.
It is important that this new power should be exercised, as I have no doubt whatever is the intention, in a responsible and proportionate manner. The question is this: what do the Government intend the phrase “reasonable grounds” to mean if it does not mean suspicions based on evidence or intelligence? If it does mean that, why not say so in the Bill? No doubt the Minister will address that point in his reply.
Amendments 14 and 15 provide that an individual whose travel document has been removed may appeal against this decision in the courts over the evidence on the basis of which the conditions in paragraph 2(1)(a) and (b) of Schedule 1 were met. Those conditions relate to suspicions that the person is leaving the country for the purpose of involvement in terrorism-related activity or has arrived in this country with the intention of leaving it soon for that purpose. The use of these new powers of seizure of travel documents, including passports, will no doubt be undertaken in an appropriate, reasonable and proportionate manner. But since the tests as set out in the Bill are to be ones of “reasonable suspicion”, there is inevitably scope for genuine mistakes to be made on occasion. Our amendments provide for a right of appeal in court following the temporary seizure of a passport, initially for up to 14 days, over the reasons which led to that administrative decision under the terms of the Bill, a decision which, if wrong, could have significant implications for a person who found themselves, because of that decision, unable to travel outside the country for a period that could be up to 30 days. No doubt if further information had come to light in the mean time prior to the appeal which either strengthened or weakened the case for the original decision to seize the travel documents, that would also be placed before the court. Judicial review alone would not achieve this objective since it would not enable the person whose passport had been seized to challenge directly the basis on which the power had been exercised; namely, whether there were reasonable grounds to suspect that they intended to leave the country to become involved in terrorism-related activity.
It is of course the case that under the Bill the police have to apply to a court for an extension of time up to a maximum of 30 days if they wish to retain the seized travel documents beyond the maximum of 14 days laid down in the Bill. However, the court making that decision is not reviewing the reasons that led to the decision being made to seize the travel documents, but simply whether the authorities considering whether further disruptive action should be taken against the individual concerned had been acting diligently and expeditiously. An authorisation process of the decision to seize travel documents will exist up to the level of chief constable, but there is no provision within that process for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. That authorisation process surely cannot be regarded as an alternative to a right on application to have the decision to seize travel documents reviewed by a court. I hope that the Minister will be prepared to consider carefully the points I have made in support of my three amendments. I beg to move.
Lord Hope of Craighead
My Lords, I should like to say a word about Amendment 8. With great respect to the noble Lord, Lord Rosser, I think that the phrase used in the Bill, if it is properly understood, accommodates the point he is seeking to raise. I speak about this with a certain amount of background because the very first judgment I was asked to write when I began my career as a Lord of Appeal in Ordinary in this House was in a case called O’Hara against the Chief Constable of the Royal Ulster Constabulary, reported in 1997 as Appeal Case 286. What we had to do in that case was consider the meaning of the phrase. A bit of research revealed that it has actually been with us for something like 100 years and has been used repeatedly in measures such as the Public Order Act 1936 and other measures where a constable is being asked to take a decision as to whether to exercise a power of search, entry or something of that kind. That situation is analogous to the one we are contemplating in regard to the position of the constable under this schedule.
What, then, do the words mean? As we said in the judgment, they concentrate on what was in the mind of the constable at the time that he exercised the power. But it is important to appreciate that there are two aspects to what was in his mind. One is what we described as the subjective aspect, which is whether he formed a reasonable suspicion. However, the important point, which is a reply to the noble Lord, Lord Rosser, is that there is also an objective element, because he has to be able to say what the objective element was. There must have been reasonable grounds for the suspicion that he formed. They are the grounds that were in his mind at the time when he was judging whether they were reasonable. That is directed to the information that he had when he decided to do what he did. That raises certain questions. What was his information? Where did it come from? What was its content? How could one say whether it was reliable? In particular, who imparted the information to him?
These are the kind of questions that anyone examining the issue would wish to have answers to. The point is not so much whether the information was true or not, because that is not something that the constable can judge at the time. The point is what information did he have and did it include information that purported to be intelligence, which is the kind of point that the noble Lord was raising.
Properly understood, this phrase, which every constable is trained to understand, and the courts are well used to, is really able to accommodate the point quite adequately, and I suggest that the safest course is to stick to the familiar phrase, given the import of the phrase as understood and as explained in the case of O’Hara.
Lord Bates
I am happy to expand further on that but, effectively, the justification I referred to was that the police officer would have had to have arrived at a position where he believed that there was a reasonable suspicion, and that the reasonable grounds test had been met. He would then have to justify that to a senior officer of the rank of superintendent or above and then, after 72 hours, that would have to be a chief superintendent and it would have to go to the chief constable, so it was in that setting that I was referring particularly to the justification rather than gisting.
Lord Rosser
I thank all noble Lords who have taken part in this debate and thank the Minister for his very full reply which, as the noble Baroness, Lady Hamwee, has already commented, will probably need to be read through fairly carefully in Hansard to make sure that the different points that he made are fully digested. As I understand it, based on the Minister’s reply, the Government do not have any intention of going down the road of either my Amendments 14 and 15 on judicial oversight or, indeed, of the proposition made by the Joint Committee on Human Rights, which was of a different nature but clearly addressed the same issue. I think I am right in saying that the Government are not making any movement at all in the direction of either my amendments, or, indeed, the views of the Joint Committee on Human Rights. Have I understood that correctly?
Lord Bates
My Lords, the noble Lord seeks to draw me on this. This is the Committee stage of a very important Bill and we are very much listening and reviewing your Lordships’ comments. I am inviting the noble Lord to withdraw his amendment and therefore, obviously, signalling that we are not comfortable with it as it stands.
Lord Rosser
I give the assurance now that I intend to withdraw the amendment, so there is no need for the Minister to think that I am about to test the opinion of the Committee, if that is what is running through his mind. I was seeking to ensure that I had correctly understood the thrust of his reply on behalf of the Government, which I think I have interpreted correctly. I suppose that we can all wait in hope that the Government may change their mind, but the Minister did not say that he intended to reflect on the points that were made in the debate today, as he did in relation to other groups of amendments, so I think, for that reason alone, one puts a rather different interpretation on what he said on this group from the interpretation that one might justifiably put on what he said in response to previous groups.
I do not think that we have moved any further on the issue of people being given some indication of the reasons for the powers that be having suspicions that they intended to leave the country for the purpose of involvement in terrorism-related activity. I will need to read Hansard, but I thought that the Minister said that it was open to an individual to make representations at any time, including on seizure, but perhaps I misunderstood what he said. If he did say anything along those lines, I was going to ask him exactly what representations and to whom, but perhaps I misunderstood the reply.
I think that we have different views about what can and cannot emerge as a result of judicial review, since I think the Minister was of the view that somehow that contained a power to review the grounds on which a decision had been made as opposed to not being able to look at that issue, which is my understanding of what judicial review would involve. It would not encompass that question. However, once again, I will read carefully what the Minister said.
We then had the comments in relation to the application to court to extend the period from 14 days up to a maximum of 30 days. Once again, as I understand it, that court is considering only whether the authorities are acting diligently and expeditiously and is not considering the reasons behind the decision—that is, the reasons behind the suspicion. So, in that sense, we do not seem to have moved any further forward in the light of the Minister’s reply. Likewise, I do not think that he responded to another point I made, although I did not specifically ask him to do so. I simply made the statement that, under the authorisation process, there is no provision for the senior officers involved to consider representations from the person from whom the travel documents have been taken or from a representative of that person. As I say, I do not think that the Minister commented on that, so I assume that my version is correct and that there is no provision for them to consider representations. So I think the point of view of those who have tabled the amendments must be that they have not made any progress so far. However, as I said, I will want to read carefully the Minister’s response, as I am sure will all other noble Lords who have taken part in this debate, in order to ensure that we have fully understood it. In the mean time, I beg leave to withdraw the amendment.
Baroness Hamwee
Amendments 22, 42 and 43 in this group are also in my name, and Amendment 11 is in the name of the noble Lord, Lord Rosser.
Amendment 9 has rather an automatic, almost knee-jerk—or perhaps wrist-jerk—wording that anyone who has dealt with contracts for more than five minutes is likely to produce; namely, if something is in someone’s possession, does that adequately cover the situation or do you need to refer to the item as being under that person’s control? Again, this issue is about workability. I raised it with the Bill team some two or three weeks ago, before Christmas, and asked what would happen if it were not the individual but a companion who was holding the travel documents, and what powers would be available to get at those documents. When people are travelling as a pair or in a group, an individual does not always carry his own documents at every point. I understand that the amendment’s wording is wide enough because I think that the documents must always come into the individual’s possession, but I thought that it was worth getting clarity on that in Committee.
Amendment 22 seeks to amend paragraph 6(4). That paragraph states that on reviewing the retention of travel documents:
“The relevant chief constable must consider those findings and take whatever action seems appropriate”.
That is a wide phrase and I do not think the Minister will be surprised that my point boils down to whether he can share with the Committee what is anticipated to be within the range of “appropriate” and how this will be dealt with. Will it be covered by guidance, a code of practice and so on?
My other amendments in the group, Amendments 42 and 43, concern the perception of discrimination in the exercise of these powers—an issue that I have already raised today. I accept that this is an immensely difficult area; I have referred in the amendments to training, including equalities training, and recording the performance of the exercising of the powers. The latter is certainly covered by the draft code, which I saw after I had tabled the amendment. However, I will probably not be the only Member of the Committee who is aware of concerns about discrimination or who has received from one organisation a copy of a briefing to its members to make representations to MPs. It says:
“The proposed legislation could bear serious consequences for British Muslims including”,
and lists a number of items. It then states:
“This is a deeply troubling piece of legislation for British Muslims and will change our lives forever it is passed in its current form”.
I have no easy answer on how to deal with this but the Government must, I am sure, have been considering the perception, particularly in the light of the fact that those against whom it is sought to exercise those powers are likely—that may be the wrong word—to come disproportionately from Muslim communities. I felt that the matter had to be aired for us to seek some reassurance, which I hope the Minister will be able to give. I beg to move.
Lord Rosser
I have Amendment 11 in this group, to which I wish to speak. Schedule 1 includes the procedure for the authorisation by a senior police officer for the retention of a travel document, and states in paragraph 4:
“The document may be retained while an application for authorisation is considered. Any such application must be considered as soon as possible”.
The effect of my amendment, which is more a probing amendment, is to provide a time limit within which the application for authorisation must be considered—namely, within 12 hours—rather than leaving it somewhat open-ended, as provided for in the Bill.
No doubt, the Minister will indicate in his reply why it was felt desirable not to lay down a specific maximum time limit but to leave the provision without any time limit at all by using the phrase “as soon as possible”. The length of time taken for the application for authorisation to be dealt with is presumably—although I should be grateful if it could be confirmed or otherwise—in addition to the period during which the travel document can be seized, as laid down in the Bill. If that is the case, it is important that such authorisations are not delayed but are dealt with expeditiously. How long do the Government believe it will take for applications for authorisation to be considered, and how long do they consider is reasonable in that context? Who will decide whether it has been dealt with as soon as possible? Who can take any action, and through which channels, if they consider that the application has not been dealt with as soon as possible? How will they obtain the evidence for that?
I was going to ask the Minister: in what circumstances do the Government envisage that it would not be possible to consider an application within 12 hours? It may be that he will say in reply that he considers that an application should be dealt with in considerably less time than that but, bearing in mind my amendment, which aims to find out more about the reasons for the government wording, it would be helpful if the Minister could say what kind of factors leading to a delay—for example, beyond the period laid down in my amendment —the Government would believe were still compatible with dealing with the application as soon as possible. I hope that he will respond to these points, either now or subsequently.
Counter-Terrorism and Security Bill
Lord Rosser Excerpts(9 years, 8 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser (Lab)
My Lords, I do not wish to detain the House for too long, frankly because of the hour. Secondly, I am not sure for how long my voice will hold up. This has been a calm and measured debate on an issue that can and does arouse diverse and very different reactions. We have heard from nearly 40 Members of your Lordships’ House with considerable knowledge of the issues addressed in the Bill, including two thought-provoking maiden speeches approaching the subject of counterterrorism and security from different standpoints and experiences. I hope it will not be too long before we are able to hear again from the noble Lords, Lord Evans of Weardale and Lord Green of Deddington, when they will no longer be constrained by the accepted conventions applicable to maiden speeches.
Inevitably, the recent atrocities in France have played a part in this debate. However, the Bill is not of course a response to what happened in Paris, although no doubt many feel that what happened there has underlined the case for it. The Bill relates to counterterrorism and security issues in this country, and sets out the measures and changes that the Government are asking this House to agree to in addition to existing statutory revisions. However, we are not alone in having faced and continuing to face the reality and prospect of terrorist acts. Pakistan, Australia, India, Canada, Belgium, America, and of course France, to name just some countries, have been and potentially still are in a similar situation to us. Home Office Ministers have previously referred to the 40 or so terrorist plots that have been disrupted since the attacks in London in July 2005, and 2013 saw the first terrorist-related deaths in this country since 2005. We know that there is a very real prospect that British nationals, following involvement with terrorist groups in Syria and Iraq, will seek to persuade others to go down the same route or will carry out attacks here, or both.
The Government have said that they believe that about 600 people of interest to the security services have travelled to Syria, with about half having already returned to the United Kingdom, some of whom pose a significant threat. The problem is not unique to the United Kingdom: the United Nations estimates that foreign fighters from 80 countries may be in the region, mainly fighting for ISIL. Over the past five years or so, more than 800 people have been arrested for terrorism-related offences, more than 200 have been charged, and nearly 150 have been successfully prosecuted. Last year alone, the Metropolitan Police made some 270 arrests following counterterrorism investigations, and with other agencies it has disrupted several attack plots.
The recent Intelligence and Security Committee report set out the serious challenges our security services and police face in keeping us safe, and they deserve our gratitude and thanks. As my noble friend Lady Smith of Basildon said at the beginning of this debate in setting out our position on the Bill, we agree that the terror threat has grown, and we will support the Bill because it responds to new and changing threats and addresses some past mistakes, not least on terrorism prevention investigation measures. The Government have at last recognised the need to restore relocation powers, the abolition of which led to the effective demise of TPIMs for those extreme cases where prosecution cannot be successfully pursued but the threat continues.
However, there is a need to examine closely the detail of the provisions in the Bill and to ask: whether what is proposed will in each case achieve the stated objective; whether the stated objective is clear, unambiguous and proportionate in the light of the situation we now face; and whether there are sufficient checks and balances in place to prevent powers which should be proportionate from being abused and discredited, thus undermining the fight against extremism. A number of the contributions today have homed in on one or more of those considerations, and a number of concerns have been expressed. It is for the Government to seek to allay those concerns, either in their response to this debate today or, probably more realistically, during the further stages of the Bill’s consideration.
One such concern which has already been raised is in connection with the provision in Part 5 for a new statutory duty on certain bodies, including local authorities, schools, colleges and universities, to have due regard to the need to prevent people being drawn into terrorism. I doubt that too many people would disagree with that as an objective, but there is a need for the Government to be clear about exactly what powers the Bill gives to the Secretary of State, who will be able to make a direction to one of the bodies covered by that power, such as a university, if it is deemed to be failing to exercise its statutory duty. The Government also need to state clearly what a body would have to do to show that it had met a duty to have regard to the need to prevent people being driven into terrorism. When asked in the other place if she envisaged the Home Secretary making a direction in order to tell a university or institution not to allow somebody to speak, the Home Secretary replied that that was not the intention of that power of direction. The question that does need to be answered, though, is whether the Government consider that a Home Secretary could make such a direction, under the powers in Part 5.
There will also be a need for the Government to provide more detail on exactly how the proposed temporary exclusion orders will work in practice, bearing in mind that they will be dependent on the co-operation of other countries, which will presumably also have to be acting within the provisions of their own laws, and international law. It is not clear at the moment just how practical or otherwise, or how bureaucratic or otherwise, the proposed arrangements for what the Government describe as a “managed return” will be, how long it is envisaged that those covered by the proposed arrangements could be detained, or even if they will be detained on foreign soil, pending their being allowed to travel back to this country.
The Government appear to have changed tack on the issue of judicial oversight of the temporary exclusion order power, following pressure on this point in the other place, although the Home Secretary may have left the door ajar to not doing anything, since she said in the other place last week that,
“the Government have committed to look very carefully at judicial oversight of the temporary exclusion order power”,
and that the Government,
“will return to this issue in the House of Lords”.—[Official Report, Commons, 7/1/15; col. 340.]
Perhaps the Minister in his reply could give a specific commitment that the Government will bring forward amendments to provide for judicial oversight of the temporary exclusion order power.
We will want to discuss further the role of the Privacy and Civil Liberties Board, since the Bill itself reveals very little on this point. It contains more on the make-up and composition of the board than it does on its purpose and powers. Like the noble Lord, Lord Butler of Brockwell, I was interested in what the noble Lord, Lord Carlile of Berriew, had to say, because I thought he was indicating something about the intentions of the Government in respect of the board which I do not think I have heard from either the lips of the Minister or in writing from his pen. No doubt the Minister will want to clarify the intentions of the Government. The Bill says that the board will advise and assist the independent reviewer. Will the board be able to overrule or outvote the independent reviewer on any issues related to the carrying out of his role and responsibilities? Will the existence of the board create a bureaucracy which will divert the time and attention of the independent reviewer away from his existing crucial role, and will the board have its own separate support staff, and if so what will their role be? Will the independent reviewer still be able to seek advice—if he so wishes—from outside the board, and will he be required to seek the advice of the board on any specific issues, or will it be a matter for him to decide whether he wants their advice or not?
I appreciate that the Government have published a consultation paper, but presumably they did not provide for the setting up of the board in the Bill without having come to the conclusion that it was needed, and what its working relationship and role would be in respect of the independent reviewer. As my noble friend Lady Smith of Basildon said, our response to the threats we face can never just be a legislative one. Community action, pressure, and involvement is needed; and understanding and tackling the reasons why people—mainly young people—become radicalised and go down the road of violence and extremism is crucial. We hope that putting Prevent on a statutory footing will assist the situation in this regard, but we need to examine how the arrangements will work in practice, including, in the light of the resources previously cut, what will be made available. While we share the view that there is a need to take quick action to stop someone who it is believed is about to leave the country to become involved in terrorism-related activity, we believe that checks and balances are needed to minimise the possibility that the power to seize travel documents will be misused, or otherwise result in an injustice, a view that the government parties do not apparently share.
We very recently had the benefit of the views on the Bill of the Joint Committee on Human Rights, as well as those of the Constitution Committee. The Joint Committee on Human Rights has raised a number of points of concern, no doubt all of which will be considered and debated at Committee stage. Bearing in mind that there appears to be pretty widespread support in your Lordships’ House for the overall objectives and intentions of the Bill, the Committee and Report stages are likely to be the crucial ones. It is at those stages that the detail of how it is intended that the proposals will actually be implemented should be provided by the Government so that a considered view can be reached on the practicality and feasibility of what is being proposed, as well as on the adequacy or need for checks and balances to ensure that powers cannot be abused and that the possibility of injustice occurring can be minimised.
We have already indicated our support for the objectives and intentions of the Bill. It is the detail that needs careful and considered debate, but with a recognition that we need both liberty and security in a democracy if the goal of safety for our citizens is to continue to be delivered and sustained.
Child Sex Abuse Inquiry
Lord Rosser Excerpts(9 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
My noble friend is absolutely right. I also pay tribute to her work as the Victims’ Commissioner, which she carries out assiduously. Of course more needs to be done to help the victims. We are consulting with the Department of Health to find out what additional help we can provide, and in the interim we will be announcing a further package of £2 million of support for victims’ groups in the ongoing discussions.
Lord Rosser (Lab)
We seem to be getting nowhere fast on this one, which is in marked contrast to the successful work done by my noble friend Lord Harris of Haringey on campaigning to close the loopholes on soliciting sexual material from a child—an issue which the Government have at last decided to take on board. Frankly, that they have still failed to find a chairman suggests that suitably qualified candidates are perhaps now being put off by the inevitable trawling through their personal lives, backgrounds and families by the media which the Government’s ineptitude has ensured will now occur. Can the Minister tell us why the Home Office failed to carry out basic background checks on Fiona Woolf, having had the first appointee stand down? Further, while I think the Minister has said that the survivors and victims of abuse are being consulted on the issue of the new chairman, can he say whether the terms of reference and the format of the inquiry are also being discussed with them?
Lord Bates
The noble Lord’s latter point is of course central to the discussion with the survivors. They want to have confidence that individuals can be compelled to give evidence and that that evidence will actually be available to them. Perhaps I may say that it is a bit unfortunate for the noble Lord to take that tone in relation to the appointments. Both the people who were appointed to the role of chair are eminently qualified to do the work, but the question mark was over whether they would command the confidence of the survivors’ groups. It became apparent that that was not the case, and that is the reason the Home Secretary is going to the lengths that she is to listen to them now.
Passports
Lord Rosser Excerpts(9 years, 9 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
Yes, for overseas passports it is Durham and Liverpool and we have put in an extra 1,100 staff to clear the backlog and improve our performance. Of those, so far 500 have been appointed and the rest will be appointed in the next few months.
Lord Rosser (Lab)
At the peak of the summer holiday season, the Passport Office had a backlog of more than half a million passport applications. Thousands of people who had booked and paid for holidays were left uncertain whether they would be able to travel. In an editorial on 10 July on the great passport backlog, the Times wrote:
“The Passport Office has failed. The minister responsible … has failed”.
The Times was right. What guarantees can the Government give that there will not be the same shambles in the first half of next year?
Lord Bates
There was a failure. That is why the Home Secretary intervened to annul agency status and to bring the problem into the Home Office to get a grip on it. That is why the delay in the process time for applications—which had sunk as low as 20%, which is appalling and for which we apologise—is now above 50% and heading towards 60% to 70%. That is as a result of the actions that have been taken and the grip that the Home Secretary has on the situation.
EU: Justice Opt-ins
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
That is absolutely right. The noble Baroness has great expertise in the workings of Europe, and the report to which we are referring is just an academic report, not a Commission proposal.
Lord Rosser (Lab)
The Government are rejoining 35 EU justice and home affairs measures. My noble friend Lady Smith of Basildon asked questions of the Government—raised, I believe, on four previous occasions—about how many of the justice and home affairs measures that the Government have opted out of have any value, or even apply to the UK, how many were being used in an operation prior to the opt-out decision and how many were harmful to the interests of the UK. Again my noble friend’s questions were not answered, which rather supports the point made by the Chairman of the EU Committee in the same debate, about the need for the Home Office to take parliamentary scrutiny and accountability seriously. Will the Minister now answer those questions, or is there a grim determination to ensure that, for these particular questions on opt-outs, the Government Dispatch Box will remain an answer-free zone?
Lord Bates
It would help if the noble Lord had actually listened to the previous debates. On Monday we had the very same question: his noble friend Lady Smith asked me that question. I replied by referring her to Command Papers 8897 and 8671, which set out in exhaustive detail—enough even to satisfy the level of scrutiny on the opposition Benches—what our position is on every single one of those matters.
Modern Slavery Bill
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser
“Establishment and function of the National Referral Mechanism
(1) The Secretary of State must establish a National Referral Mechanism (“NRM”) to—
(a) identify trafficked, enslaved or exploited persons within the United Kingdom;(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and (c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support.(2) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a renewable residence permit provided for under subsections (5) and (6).
(3) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.
(4) An adult must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.
(5) A person who is determined in the NRM process to be a trafficked, enslaved or exploited person shall be entitled to a one-year renewable residence permit permitting them to remain in the United Kingdom where one or other, or both, of the following situations apply—
(a) a competent authority in the NRM considers that their stay is necessary owing to their personal situation; or(b) a competent authority in the NRM considers that their stay is necessary for the purpose of the person’s co-operation with the authorities in connection with their investigations or criminal proceedings.(6) A residence permit for child victims shall be issued where it is in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.
(7) The protection, assistance and support provided to trafficked, enslaved or exploited children (including those to whom the presumption of age applies) in accordance with the provisions in this Act shall be at least equivalent to the protection, assistance and support provided to adults, save that where other legislation provides for greater protection for children that legislation shall, to the extent of any inconsistency with this Act, prevail.”
Lord Rosser (Lab)
My Lords, Amendment 86P is in substitution for Amendment 86N. The difference is in proposed new subsection (4). Amendment 86N refers to:
“A person (including a child)”.
Amendment 86P refers to “an adult”. This amendment was not meant to include a child. That is the difference between the two amendments.
The purpose of our amendment is to put the national referral mechanism on a statutory footing with its overriding role and objectives laid down in respect of persons trafficked, enslaved or exploited within the United Kingdom, including the right of appeal by an individual against a decision in the national referral mechanism process that they are not a trafficked, enslaved or exploited person. Despite the views to the contrary expressed by a majority of interested parties who participated in a recent Home Office internal review of the national referral mechanism, the Government have not been prepared to go down the road of placing the NRM on a statutory footing as it would, in their view, make it inflexible and unresponsive to changing demands.
No doubt that might be a problem if all the detail about the role and operation of the NRM were included in the Bill, but that is not what we are proposing. We are talking about the key principles and functions that the NRM should be seeking to address and deliver in respect of victim identification and support. The Joint Committee on the draft Bill recommended that the Bill should be amended to give statutory authority for the national referral mechanism in order to ensure greater consistency in its operations, decision-making and provision of victim support services. The committee went on to say that the statutory basis should also provide for a mechanism for potential victims to trigger an internal review and to appeal against decisions taken by competent authorities.
Among the arguments that, as I understand it, led the Joint Committee to make its recommendation were that the current arrangements led to arbitrariness of application and access for victims; that giving victims statutory rights would make claiming and enforcing those rights more straightforward; that a statutory footing gave greater transparency and accountability and would also raise awareness of the national referral mechanism among front-line agencies; and that having the NRM on a statutory basis would provide an opportunity to establish a clear review and appeals process compared to the present system of informal requests for decisions to be reconsidered. While judicial review offers a more formal route, it can be used only to challenge the way a conclusion has been reached rather than the merits of the conclusion, and judicial review is also likely to be expensive.
Since placing the NRM on a statutory footing should increase awareness and accountability within the system, it would also help to ensure that victim identification and assistance is prioritised across the board. The evidence suggests that the NRM is underused and is not as widely known about as one might expect. Many involved in dealing with victims of trafficking and modern-day slavery regard referral to the NRM as a non-mandatory process on which there is no training or scrutiny of decisions to not refer, even for children within the child protection system. Without a statutory underpinning of victims’ rights to identification and specialist support there is more than a possibility that practitioners will either continue to disregard the national referral mechanism entirely or see it solely as best practice as opposed to something to which victims have a right.
Referral into the national referral mechanism can be pretty significant for victims. Those who have a positive NRM decision may have a higher likelihood of a prosecution against them being dropped if they have been trafficked and forced to commit a crime, and, in turn, positive NRM decisions are used by police as corroborative evidence in prosecutions against traffickers. Specialist support and accommodation, and access to legal aid, are also often dependent on a positive decision within the NRM.
In the light of this and the significant known increase in the level and extent of trafficking and exploitation since the NRM was established, it is not clear why there is this apparent unwillingness on the Government’s part to place the NRM on a statutory footing and help to ensure that both the underlying principles of the system of victim identification and support, which are already set out in existing international legislation to which the UK is bound, are included in the Bill, and that there is greater accountability for those who fail to assist or refer potential victims of modern slavery for identification.
The preface to the recent review of the national referral mechanism stated:
“Since its introduction in 2009 the National Referral Mechanism has grown somewhat wildly over time”,
and that it is,
“now a complex system operating in a challenging and painful area of public life”,
and,
“a difficult system to grip”.
It stated:
“Many level criticism at the current system and we have found that it does need to change”.
The review drew attention to the fact that the number of potential victims who are referred to the NRM is low, given what we know about human trafficking. It also said that the current system is,
“fragmented and lacking an overall performance framework … and … cannot be described as efficient or effective”.
The review continued, saying that there was,
“insufficient accountability for the outcomes of the process or the appropriate management of the process itself”.
The review also heard the views of the voluntary organisations that work with victims of trafficking, which include calls for the,
“removal of responsibility for the National Referral Mechanism from the Home Office and the establishment of an independent body outside of UK Visas and Immigration and the Police … a desire to place the National Referral Mechanism on a statutory footing”,
and,
“a right of appeal to challenge those decisions which are believed to be wrongly made”.
It is difficult to see how the extensive concerns and recommendations set out at the beginning of the review could be addressed and delivered effectively without putting the NRM or a similar body on a statutory footing and moving away from what seems closer and more akin to an internal administrative process. It is also worth pointing out that while the review was asked to look at six key areas, including governance of the national referral mechanism, it was not specifically asked to examine the issue of placing the NRM on a statutory footing.
The reality is that at the present time some 80% of referrals—I am sure that I will be corrected if I am wrong—on behalf of EU citizens as victims of human trafficking, which are dealt with by the UK Human Trafficking Centre, which is part of the National Crime Agency, are accepted. It is also true, I believe, that some 80% of referrals on behalf of non-EU citizens as victims of human trafficking, which are dealt with by UK Visas and Immigration, which is part of the Home Office, are not accepted. At the very least, decisions on non-EU referrals as victims of human trafficking, which involve issues of UK residence, should be dealt with as a statutory decision by a statutory body.
Our amendment does not in any case go into great detail that might, in the Government’s eyes, leave the NRM inflexible and unresponsive to changing demands, since it primarily sets out the overriding role and objectives of the national referral mechanism, provides for the Secretary of State to seek to specify in regulations the procedures to be followed and applied, and provides for a right of appeal by an individual against a decision that they are not a trafficked, enslaved or exploited person.
Not being on a statutory footing does not seem to be providing an effective and efficient national referral mechanism, in the light of the situation today on the incidence and nature of human trafficking and exploitation in this country. I hope that the Government will be able to respond favourably to our amendment, which I beg to move.
Lord Bates
I accept that. I do not want to yield, as it were, to the position of saying that because we are being pressed by distinguished Members, we should give way on this. I have tried to put forward quite a robust argument as to why we have arrived where we have. We have before us a significant review of the national referral mechanism, which seems to address many of the concerns that people have recognised. That review, which everybody was in favour of and many people were involved in, came out against putting it on a statutory footing. We must take that into account but I give the assurance that, in the spirit that we have tried to keep all the way through this Bill, we will look at that very carefully and continue that discussion between now and Report.
Lord Rosser
I thank the Minister for his response and the indication that we can at least continue to discuss this issue, which is very helpful. As the noble Baroness, Lady Hamwee, said, the review argued for a well governed national referral mechanism, so in the light of all the criticisms that it made—no doubt quite rightly—of the present system, it is a question of whether one feels that can be achieved without it being on a statutory basis. I think a lot of people will feel, in the light of those criticisms, that we need to put it on a statutory basis. As the right reverend Prelate said, it would provide consistency and clarity for victims in how they were treated and give a clear framework. I think there is a lot to be said for doing that.
I acknowledge the point the Minister made: when the national referral mechanism was set up in 2009, it was not done on a statutory basis. Equally, the situation in relation to the incidence and nature of human trafficking and exploitation in this country has changed quite dramatically since 2009. Certainly, there has been a bit of an awakening as to what exactly has been going on. I can only repeat what the review said:
“The National Referral Mechanism has grown somewhat wildly over time. It is now a complex system operating in a challenging and painful area of public life”.
That would seem to reflect a view on its part that perhaps the situation has changed since 2009.
There are three amendments in this group, one of which the noble and learned Baroness, Lady Butler-Sloss, spoke to. That one does not suggest instant action since it refers to the Secretary of State reporting to Parliament within 12 months. I rather sense from some of the comments the Minister made that the biggest drawback to putting this on a statutory basis at the moment appears to be that the Government feel the situation is somewhat fluid with changes to the national referral mechanism, and they therefore feel that this might not be the appropriate time to put it on a statutory footing. I am not entirely clear—and I am not asking the Minister to respond at the moment—whether the Government object in principle to it being on a statutory footing. That is not the way it came over. I felt that the Minister was saying that the situation is fluid in relation to the NRM and this is not the appropriate time to do it. I hope I have not misunderstood him but I welcome his proposal that there should be further discussions about this, which is extremely helpful. In the light of that, I beg leave to withdraw my amendment.
Lord Hylton
My Lords, I happen to have been involved with this situation, which allows serious abuses of incoming domestic workers to happen, since the early 1990s. I have never known such universal support for the need for a reform as we have heard today. I leave it at that.
Lord Rosser
My Lords, the name of my noble friend Lady Royall of Blaisdon is attached to this amendment. I certainly do not wish to speak at any length, because the arguments have already been made, but I shall reiterate one or two things. Under the tied visa system, introduced in the changes in 2012 to the Immigration Rules, overseas domestic workers who are being exploited no longer have the option of seeking other employment to get away from an employer who is exploiting them since they are tied to their employer for a non-renewable period of six months. Under the tied visa system, people who are being exploited are normally not willing to go to the relevant authorities because they fear that, if they leave their employer, the outcome will be that they will be deported as an immigration offender. If they are being paid anything at all—evidence suggests that more than 60% may not be—they will lose what may be a source of income being sent to support dependants in their own country.
One would have thought that the Government would have wanted to abolish the current tied visa system for overseas domestic workers, since tying migrant domestic workers to their employer institutionalises their abuse, as has been said already, and precludes acting decisively to protect victims of modern slavery. Of course, as also has already been said, it is unrealistic for such domestic workers to take any kind of legal action against an employer who potentially has trafficked them, exploited them and denied them their most basic rights while still living in the home of their employer.
The impact assessment that accompanied the 2012 changes stated that the ability of these workers—that is, overseas domestic workers—to change employer and access the UK labour market was,
“contrary to general Government policy on low skilled migration”.
However, the impact assessment also acknowledged the,
“vulnerability to abuse and exploitation”,
of these workers. I do not know whether the Government’s resistance to date to going down the road of this amendment is related, in the light of that comment in the 2012 impact assessment, to a view that it would lead to an increase in immigration. Perhaps the noble Baroness could say what, if any, increase in immigration the Government believe there would be if the amendment that we are debating is adopted. Reversing the 2012 changes for the overseas domestic worker visa would, at the very least, allow organisations and agencies to remove a worker from an abusive employment situation immediately. It also would enable the abuse to be reported to the police without fear that the victim would be deported as a result and that, in turn, would facilitate the prosecution of modern slavery offences, which, surely, is the purpose of the Bill we are now discussing. I hope that, in responding, the Minister will take account of what has been said far more eloquently than I can manage by so many of your Lordships in this Committee today.
Baroness Garden of Frognal (LD)
My Lords, I thank the noble Baroness, Lady Cox, for introducing this amendment and speaking with such eloquence and acknowledge her expertise and campaigning work in this area. Holding anyone in modern slavery is totally unacceptable; I am sure that, around the Committee, we can all agree on that. Overseas domestic workers, like anyone else, deserve protection from modern slavery and support and help if abuse takes place. Noble Lords around the Committee have raised passionate concerns about some of the appalling situations that people find themselves in.
I shall set out why the main issue is not the nature of the visa that somebody has. Through both the Bill and wider policy changes, we will seek to provide protection to anyone who needs it, regardless of their employment type or any visa they may have. Obviously, we are focusing here on overseas domestic workers and seeking to strengthen their protections further.
The best way to prevent an abusive working relationship from being brought to the UK is to test its genuineness before a visa is issued. A number of noble Lords have raised these issues. Private household employers must prove to immigration officials that they have a pre-existing employment relationship of at least 12 months with their domestic worker, for example by providing pay slips or work records. All individuals applying to come to the UK on an overseas domestic worker visa must also provide evidence with their application that they have agreed in writing the core terms and conditions of their employment in the UK. That helps to establish that the worker is employed under terms that they find acceptable and allows us to ensure that these are appropriate. The evidence is to be provided in the form of a prescribed template—although, of course, I hear from around the Committee the concerns that these documents will not be adequately and legally kept to. The requirement for a written statement of key terms and conditions has been in place only since April 2012 and we believe that it could be improved to reflect international best practice. Officials have been working on a revised template to try to ensure that both employers and employees have an opportunity to see what standards are expected on both sides before workers come here and that they are aware of rights and responsibilities, including, sections on passport retention, sleeping accommodation and all the other things that noble Lords have mentioned, which so often are open to abuse.
Lord Rosser
“( ) A slavery and human trafficking statement by a commercial organisation must contain specific information in relation to the steps they have taken in the following areas—
(a) accountability for tackling modern slavery and forced labour, including policy commitments, resourcing and actions to exercise due diligence,(b) investigation, monitoring and auditing of modern slavery and forced labour risks in the UK and throughout their global supply chains,(c) support and access to remedy for victims of forced labour and modern slavery, and(d) training of staff and suppliers, and access to expertise and advice.”
Lord Rosser
My Lords, the movement the Government have made on this issue during the last stages of the Bill’s progress through the other place is welcome. We cannot accept products made using slave labour being sold here if we are determined to tackle modern slavery in this country. Over four out of five members of the public in this country want legislation on this issue, as do the overwhelming majority of companies themselves. The public will want to be satisfied that progress is being made to eliminate modern slavery in businesses and in supply chains, since awareness has arisen in the light of some high-profile cases that slavery or forced labour can be and is associated with the production of goods for major UK companies.
The public will want to be satisfied that the provisions of this Bill will lead to the end of products made using slave labour being sold on our streets. Although most commercial organisations are tackling this issue, it can be hard to see and measure tangible progress. There needs to be a way for consumers in particular to be able to judge the relative performance in this area of companies whose products or services they may wish to purchase. To achieve this, there is a need to introduce mandatory reporting requirements to ensure that companies adopt similar processes and approaches in reporting, which is what this amendment seeks to do. This will also help create the level playing field that responsible companies want to see and is the reason why so many companies are seeking effective legislation on this matter.
The Bill refers to a commercial organisation being required to prepare a slavery and human trafficking statement, which is defined as,
“a statement of the steps the organisation has taken during the financial year to ensure that slavery and human trafficking is not taking place … in any of its supply chains, and … in any part of its own business, or … a statement that the organisation has taken no such steps”.
The relevant clause, Clause 51, goes on to say that the Secretary of State,
“may issue guidance about the duties imposed on commercial organisations by this section”,
and that the guidance,
“may … include guidance about the kind of information which may be included in a slavery and human trafficking statement”.
Indeed, the Home Secretary’s title appears all over Clause 51.
While that clause goes on to say that,
“The duties imposed on commercial organisations by this section are enforceable by the Secretary of State bringing civil proceedings”,
it appears that the duty in the Bill in respect of preparing a slavery and human trafficking statement extends no further than producing a statement of the steps that the organisation has, or has not, taken. There is no duty imposed on what kind of information should be provided to substantiate or provide some specifics on the steps taken, since that requirement will be in the form of guidance which “may” be issued by the Secretary of State and which “may” be included in a slavery and human trafficking statement.
Thus, guidance, in effect, may not be issued at all. If it is—and the guidance may be specific or generalised—it is optional whether the kind of information that it suggests should be included in a slavery and human trafficking statement is actually included. Frankly, that is all pretty vague and woolly. It certainly does not ensure that companies provide sufficient information to be able to judge whether they are effectively addressing the issue of modern slavery in their own organisations and in supply chains and taking effective steps to ensure that, if modern slavery or exploitation exists, it is being eliminated.
If the Government believe that the prospects of civil proceedings will be rather more potent than I have suggested, perhaps the Minister could spell out the situations in which they could be initiated under the terms of the Bill, beyond a commercial organisation failing to produce a statement of the steps that it has, or has not, taken during the financial year to ensure that slavery and human trafficking is not taking place. Are the Government saying that, under the terms of Clause 51(9), civil proceedings can be brought on other grounds and, if so, in respect of which other duties imposed on commercial organisations by the clause?
Our amendment seeks to set out the specific information that must be provided in a slavery and human trafficking statement by a commercial organisation in relation to the steps that they have taken to ensure that modern slavery is not taking place. The requirement is information that must be provided, so if it is not provided that could be the subject of the civil proceedings. If the information is provided but suggests that very little is being done, that fact will be exposed in a way that would not happen under Clause 51 as it stands.
Our amendment would also better enable meaningful comparisons of the performance of different commercial organisations, in addressing and eradicating modern slavery in their own organisations and supply chains, to be made by consumers and other interested parties, including shareholders, relevant voluntary organisations and the media, in a way that Clause 51 does not provide. It would also better enable interested parties to examine whether what is said in slavery and human trafficking statements in fact represents an accurate assessment of the situation, or whether they are statements whose relationship to the facts is not immediately obvious.
The ability for interested parties to compare the performance in this field of different companies, and the knowledge that the content of statements which have to address specific points could be checked for their fairness and accuracy, will act as an incentive for commercial organisations to address properly the issue of modern slavery in their businesses and supply chains, because of the reputational damage likely to be caused if it is shown that their performance on this issue is poor, or that the slavery and human trafficking statements they produce—which, under our amendment, would have to contain the specific information laid down—are not as accurate as they might have been. That situation, and the pressure that it will place on commercial organisations to act, will not be there under the requirements of Clause 51. I simply ask the Government: how do they believe that the wording in Clause 51 provides a means of checking effectively on what some commercial organisations are doing in comparison with others, and of being able to check on the accuracy of the content of a slavery and human trafficking statement?
While Clause 51 is most welcome as movement on this issue by the Government, with its vagueness, its repeated use of “may” and its guidance rather than requirements, the clause is based too much on the “It’ll be alright on the night” approach. That is, frankly, not adequate on a matter as serious as this, involving the exploitation of and contempt for other human beings. This is something impacting on our own doorsteps, since it involves the goods and services that we buy. We need to get Clause 51 right first time. We need to place prominent emphasis on the position of those who are being exploited and to ensure that the terms and requirements in the Bill are strong enough to address and eliminate, over not too long a time, the evil that is modern slavery where it exists in businesses and in their supply chains. I beg to move.
Baroness Goudie (Lab)
My Lords, I support my noble friend Lord Rosser on this amendment. I feel extremely strongly about this as, throughout this evening, we have heard about not having enough money but we have to remember that we are talking about people. They are not robots or goods; they are human beings. It is really important to remember that when we talked earlier about the cost of implementing this, we are talking about saving people’s lives and ensuring that they have a life as good as we have, or even better.
The way I see this operating is that accountability in companies should be handled by their procurement department. Every large and small company has a procurement department or somebody who goes to the middle companies that they order from. We should not say that the middle people should be responsible. The companies should be able to tell us and, if necessary, go and inspect where and how the goods are made, and how the people are paid. They spend enough time on decorating, branding and PR, but instead of spending so much time and money on those things, they should spend it in their new procurement department. Some of them have these procurement departments; I see them as being as important as health and safety has become, thanks to the way that Governments have pushed that forward.
It is so that the companies can say, when the audit is done every year and in their annual report, that they have visited the factories and the building sites. It may be something that the construction industry here is responsible for in Bahrain, Beijing or Qatar. This should apply not just to companies but to government departments, when we are assisting as museums or parts of new universities are built abroad. What we are trying to say is that every company and organisation involved in labour or goods, abroad or here, should be audited and that the procurement department should be responsible. “May” is not strong enough; we have to say that this is to be done annually in the audit and that it can be inspected and questioned.
Lord Bates
Those are very good points well made. My home town, Gateshead, is the proud home to Traidcraft, which does tremendous work in this area doing ethically sourced coffees and foods, which are often a particular problem, but I do not want to get into advertising around Christmastime otherwise I will get into a whole other set of problems. Ultimately the consumer has great power here, although perhaps they do not realise it. In the same way that they have the power to drive down prices and standards around the world, they also have the opportunity to drive them up through their purchasing patterns.
The interdepartmental ministerial group is one part of this but I want to talk about another important part: what the Government can do. The Government can do more by putting their own house in order. The Government are a huge procurer—I do not know whether that is the right term—and a major purchaser of goods and services. It is important that we do everything that we can to prevent modern slavery from infiltrating our public sector supply chains. Taxpayers’ money should not be allowed to drive demand for these heinous crimes. That is why we are already taking concerted action on this issue. Individual departments have already taken clear steps. For example, the NHS standard terms and conditions for suppliers have clear conditions on labour standards in the NHS supply chain, and it has developed a labour standards assurance system that encompasses issues on forced labour.
The interdepartmental ministerial group on modern slavery will help to encourage best practice across the Government and the devolved Administrations. Home Office standard terms and conditions already require compliance with the law, which will of course soon include ensuring that suppliers have complied with our transparency and supply chain measure. We are also strengthening the labour standards section within our annual corporate social responsibility assessment in order to seek specific assurances from the Home Office’s largest suppliers that they have policies in place to address the risk of modern slavery. In addition, we are currently seeking ways to go further and require specific assurances from suppliers about steps that they are taking to stamp out modern slavery, which is an approach that we hope to then roll out across central Government. As a result, we are already proactively going beyond the measures in the Bill to address this issue. This is a bit like what we are asking people to do: to make a public statement and then be held to account for it. I wanted to put that on the record and expect to be held to account for it, being careful not to tempt fate too much. It is right that that is where we start.
With that rather longer than expected introduction, aware that we have two further groups to come in this area of consideration and having put those points on the record, perhaps the noble Lord, Lord Rosser, would accept that as a response on the Government’s position on his amendment and consider withdrawing it at this stage.
Lord Rosser
Before I do that, did the Minister early in his reply refer to coming back at a later stage or not?
Lord Bates
Coming back at a later stage to spell this out in greater detail?
Lord Bates
I do not think I actually said that. I think I related it to the consultation. The Government’s position is: let us have a consultation, let us try to bring industry with us. The consultation will start in January, it will finish at the end of March and it will then be evaluated, so we will probably be beyond Royal Assent before that is available. That was in my statement. I may have alluded to the fact—this may have given rise to the confusion—that we will be coming back to this issue in subsequent groups in Committee today, but the consultation will extend beyond Royal Assent.
Lord Rosser
I thank the Minister for clarifying that point and for his reply. I suppose one’s observation would naturally be that if the Government had put this in the Bill in the first place or had agreed somewhat earlier to Clause 51, the consultations could have been completed before the Bill had gone through all its stages in Parliament, and we might have been able to have a rather more meaningful debate. That is what happens when a Government had to be dragged kicking and screaming to put something in a Bill as it went through its last stages in the House of Commons.
I am still not clear what the Minister is saying about what action can be taken if a commercial organisation produces the slavery and human trafficking statement but it is a bit thin or vague in its content. The Minister said that the measures under Clause 51(9), civil proceedings, would relate to whether the organisation had actually prepared the statement—which has nothing to do with the content—and published it on its website. It did not address the issue which I raised as to what would happen if the statement was a bit vague in its content. After all, the purpose of my amendment was to stipulate the areas that had to be addressed in the statement. The Minister has not really responded to that point.
Surely, enough information needs to be required in the statement to enable a consumer, a voluntary organisation or the media to form a view on how well or otherwise a company is doing compared to other companies in ensuring that slavery and human trafficking is not taking place in any of its supply chains or any part of its own business. Frankly, the Minister has not said anything to provide me with any comfort that the Government intend to include anything in the Bill that will ensure that the necessary information is provided to enable those meaningful comparisons to be made. In moving the amendment, I referred to the issue of guidance. The Secretary of State “may issue guidance”—it is not “must issue guidance”—which,
“may in particular include guidance about the kind of information which may be included in a slavery and human trafficking statement”.
We still have the problem: what action can actually be taken if the statement is produced and published but is a bit vague in its content and does not really enable the consumer, the voluntary organisation or the media to make a proper and effective assessment of the action that has been taken by that company, compared with other companies, to ensure that slavery and human trafficking is not taking place?
Lord Bates
I did not mean not to give the courtesy of addressing the specific amendment. We believe that it would be for civil society and the wider community to examine and assess whether a company’s statement on its supply chain is sufficient, rather than it being for the Government to do that. While trying to be courteous and respond precisely to the point that the noble Lord, Lord Rosser, made, the noble Lord, Lord Alton, asked a specific question about whether the anti-slavery commission might collect data on that. As worded within the anti-slavery commissioner’s remit, he can undertake research, consult, produce documents and engage in education and information. Of course, he is independent. I should have thought that a key part of that might be to consider transparency of supply chains.
Lord Rosser
I can only comment that it is very difficult for civil society to make a judgment if there is not enough information in the statements in the first place. There is no requirement, in my opinion—and there is nothing in what the Minister said to cause me to change my view—in Clause 51 to ensure that the necessary information is provided.
Still, I note what the Minister said in reply. I am obviously disappointed with it, as Clause 51 still does not go far enough and will not enable those judgments to be made by society, whether it be consumers, voluntary organisations, the media or others. That is a matter of regret. However, I note that that is the Government’s position and I beg leave to withdraw the amendment.
Lord Rosser
My Lords, I will be brief. These two amendments are wider-ranging than my amendment but their intentions and objectives are similar, and I wait to see whether they will elicit a more enthusiastic government response. I also await the response to what I believe to be the request of the noble and right reverend Lord, Lord Harries of Pentregarth, for discussions involving the Government on this matter before the next stage in the passage of the Bill through this House.
Lord Bates
I cannot quite match the noble Lord’s brevity, but I will try to go as far as I can, because some interesting proposals have been made. The first was the idea, suggested by the noble Lord, Lord Alton, of reconvening, between now and Report, his group, including the noble Baroness, Lady Royall, on the issues of the supply chain. That would be a very helpful thing to do, and I would be happy to take part in it. The noble Lord talked about the process—the journey that we are on—starting when the new clause was tabled. Some may use the term “kicking and screaming”, but I think that a sinner who repenteth ought to be welcomed into the kingdom of heaven—and into Parliament. I believe we are making progress down that route.
Many points were made about the regulatory framework, to which the noble Lord referred in great detail. The regulatory framework is setting out the long-term strategy. That is where we want to be. There are some stages to go through, in relation to the point made by the noble and right reverend Lord, Lord Harries of Pentregarth. He raised the desire to see more bite than there is at the moment. I cannot give any assurances that that will be there by the time the Bill reaches Royal Assent. However, by the time of the process of consultation is complete and the guidance has been issued—
Modern Slavery Bill
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Rosser (Lab)
Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.
The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.
On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.
Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.
Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.
One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.
Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?
Baroness Hamwee
My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking, by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:
“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—
the context of human rights—
“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.
I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.
Lord Rosser
Before the noble Baroness sits down, I referred in my contribution to the evidence from the Poppy Project of the 55 women who have been helped in the past year. They were identified as trafficking victims only once they were in prison, usually on remand.
Am I to take from the Government’s response to Amendment 84 that they are now satisfied that with the Bill they have put measures in train to prevent that kind of situation arising? The purpose of our amendment was to say that the prosecution had to be reviewed at the top level, by the Director of Public Prosecutions, before going to trial. Referring to the DPP issuing the guidance was an attempt to stop that kind of situation arising. If the Government are saying that they are satisfied that what they are doing will also address the situation to which I referred, I would be grateful to have it confirmed and on the record.
Baroness Butler-Sloss
My Lords, it is entirely understandable that Schedule 3 should be part of the Bill. It is important that the serious offences should not be included in a defence. However, listening to what the noble Baronesses, Lady Kennedy and Lady Hamwee, said, and looking through Schedule 3, it seems to me that a great deal of it is utterly unnecessary. I remember discussing this with the former Attorney-General, Dominic Grieve, at a time when he was eventually agreeing that there should be a defence at all. He said that Schedule 3 would apply and I cheerfully said, “Yes, of course it will apply”, but I did not read all the way through. It was not until this version of the Bill came, with all these exceptions to the defence, that one sees that this really goes beyond what is necessary, as the noble Baroness, Lady Kennedy, has put out extremely effectively. As the noble Baroness, Lady Hamwee, says, that may be a problem.
I would have thought that this was absolutely a situation in which the Government, with the assistance of the Director of Public Prosecutions, could sort the wheat from the chaff. A great deal of these offences are not applicable or appropriate for victims of slavery, although they are entirely appropriate in other areas of criminal law where you should not have a defence on these issues. The Government should look at this and consider whether they want the whole of Schedule 3.
Lord Rosser
My Lords, I, too, would like to raise one or two questions about Schedule 3, since my noble friend Lady Kennedy of Cradley has given us the opportunity to consider it.
As I understand it, under Clause 45, a victim is not guilty of an offence only if they have done the act which constitutes the offence because they have been compelled to do that act, the compulsion is attributable to slavery or the relevant exploitation and a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to doing that act. If the victim has managed to meet these requirements, Clause 45(1) still does not apply if the offence committed is listed in Schedule 3, which, as has already been pointed out in another way, extends to six and a half pages of offences. Some are easily understandable for being on that list, such as murder, manslaughter and kidnapping, but others are not so obvious bearing in mind the requirements under Clause 45 that the victim will already have had to meet in order to use Clause 45 as a defence.
In view of that, how does the Minister justify the need for such an extensive list of offences for which a victim can be found guilty even though they have met the three requirements to which I have already referred under Clause 45(1)? How and against what criteria was this list of offences compiled? To look at one example, included in the list is an offence under Section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state, which is an offence one might normally associate with a trafficker rather than the victim. Is there evidence that victims of trafficking are committing this offence of assisting unlawful immigration to a member state unrelated to their being trafficked themselves? If there is, is it also appropriate that they could be found guilty of such an offence, despite meeting the requirements in respect of compulsion and the reasonable person test under Clause 45(1) to show that they cannot be guilty of an offence unless it is listed in Schedule 3?
Lord Alton of Liverpool
My Lords, like the noble Lord, Lord Rosser, I am puzzled by this. In Part 5, Clause 45(1) seems clearly to set out, in paragraphs (a), (b) and (c), under what terms prosecution would ensue or not ensue. As the noble Baroness, Lady Kennedy of Cradley, has rightly told us, the danger with lists is that there may well be things that have not been included on the list that might in due course pertain. I simply ask what may be an entirely innocent and naive question: why is it not possible to put in the Bill a generic term rather than having to have all these details in the legislation?
Baroness Garden of Frognal
My Lords, I thank the noble Baroness, Lady Kennedy, for tabling Amendment 83A and for asking whether Schedule 3 should stand part of the Bill, which relate to the offences excluded from the statutory defence for victims. I also thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alton and Lord Rosser, for their contributions.
As we have previously discussed, Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. As we discussed in the previous group, this builds on the existing use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process.
Noble Lords questioned how Schedule 3 was drawn up. It was drafted very carefully in consultation with the DPP and CPS. As the noble Lord, Lord Rosser, mentioned in his previous intervention, it is very important that we get involvement from the DPP and CPS in drafting these pieces of legislation. As I have said, it was with approval and consultation that this list was drawn up. There is a need for appropriate safeguards to ensure that a new defence is applied effectively and is not open to abuse, for example by organised criminals, even if they once have been trafficked themselves. There is a delicate balance to be struck and we want to get that balance right.
Amendment 83A, together with the suggestion that Schedule 3 should not stand part of the Bill, would mean that the defence could apply to any offence, including serious sexual and violent offences such as murder and rape. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances and it will not always be the case that a defence is justified. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but also society. As we developed the statutory defence, our approach was always to ensure that we covered the types of offences often committed by those who are enslaved or trafficked. We have taken detailed advice from the Crown Prosecution Service on this point. As I have mentioned, the offences listed in Schedule 3 reflect those discussions and discussions with the DPP.
The defence is therefore designed to provide an effective protection against prosecution in the types of circumstances that actual victims of modern slavery find themselves in—for example, cannabis cultivation. The list of excluded offences in Schedule 3 can be amended by statutory instrument if experience shows the offences listed are not right and fail to protect vulnerable victims. But, in order to avoid creating a dangerous loophole for serious criminals to escape justice, we think it is right that the defence is not available in the cases—mainly serious sexual and violent offences—as listed in Schedule 3. This does not mean that a victim who commits a Schedule 3 offence in a modern slavery context will automatically face prosecution. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so. It is right that in very difficult cases involving very serious crimes, including rape and murder, the Crown Prosecution Service carefully considers both the victim of trafficking and the victim of a very serious crime, and seeks to act in the public interest.
I understand the concern of noble Lords that victims should not be inappropriately criminalised; we agree on that, but that is why we are strengthening protections for victims in the Bill. We must be careful, however, that we do not create a loophole for very serious criminals. In the most serious cases, it is right for the CPS to use its discretion—and I emphasise that there is always discretion in these cases—to act in the public interest, based on the specific facts of the case. We are, of course, open to further discussion before Report, but I hope that these assurances will enable the noble Baroness to withdraw her amendment.
Lord Rosser
My Lords, I ask the following question seriously and not frivolously: if this has been the subject of discussion with the DPP, is it therefore the case that there are already examples of victims of trafficking having committed all those offences listed in Schedule 3?
Baroness Garden of Frognal
No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.
Fraud: Phone Scammers
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
Right, but the point is that that provision is there. A lot of what we have to do is in terms of making people aware of their rights in the disclosure of information, as well as being responsible.
Lord Rosser (Lab)
As we know, a joint declaration by the UK banks, supported by the police, has been issued to make it clear what kind of information the banks would never request over the phone. Will the Government be taking any action to help spread that message, particularly to older people, who seem especially vulnerable to this sort of scam? Secondly, has the number of officers and civilian staff in local police forces engaged full-time in fighting the ever rising incidence of phone and computer scams and fraud increased or decreased over the past three years?
Lord Bates
The number of individuals tasked with looking after cybercrime in the National Crime Agency has significantly increased, and that is mirrored by regional operations. We are working with various organisations, including the Financial Ombudsman Service and Ofcom, which we have already talked about. There is also an online facility at actionfraud.police.uk, where people can report suspected frauds. All those help in the intelligence-gathering operation. It is more difficult dealing with people who are not familiar with online operations, but perhaps that is where family members and friends can gather round, as they do in the instance of dementia, to help and protect those they know and love.
Modern Slavery Bill
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Baroness Young of Hornsey (CB)
My Lords, I am grateful to Parosha Chandran, standing counsel to Anti-Slavery International, of which I am a patron, for her support and advice in tabling this amendment, and to Focus on Labour Exploitation for its briefing on the subject.
The point of the amendment is to provide another tool to help gain access to justice for the victims of trafficking and enslavement. In the Bill, compensation is currently limited to providing compensation as a result of criminal prosecution. Civil remedies tend to be simpler and more accessible. This amendment on civil remedies has three interrelated objectives: first, to provide an effective way of reducing the financial profitability of slavery, trafficking and exploitation by imposing civil damages against those who engage in the activity; secondly, to create a deterrent effect; and, thirdly, to enable victims to be adequately compensated for harm done.
As many noble Lords will know, the civil standard of proof is set at a different level from that required in criminal prosecutions. These cases will be judged on whether it is probable that a civil offence took place rather than beyond reasonable doubt, as is the case with criminal offences. Amendment 34 will not affect other existing remedies, such as employment law claims, other civil actions for damages or claims under the criminal injuries compensation scheme, which will still operate where necessary and appropriate. This set of new modern slavery civil liability offences will not prevent a victim’s reliance on those instruments; they will still have a job to do.
The characteristics of contemporary forms of slavery and exploitation are very diverse and include: debt bondage; the physical and psychological abuse of vulnerable people; the absence of direct physical harm; threats of denunciation to the authorities; and fear of actual or potential violence directed at the victim, their families and loved ones. The nature of these contemporary forms of slavery and the lasting harm done to victims is not always best served by the existing, more traditional routes to civil remedy. Thus the amendment seeks to identify civil law counterparts to the criminal offences of trafficking, forced labour and enslavement. This is needed because, for example, false imprisonment or harassment in civil law do not relate to the totality of the experience of being enslaved and its psychologically damaging aftermath. How can a claim be brought against a trafficker for breach of contract when there is no contract in most of these cases?
The amendment is worded to ensure that civil actions do not jeopardise criminal proceedings as the civil action may be halted pending the outcome of a criminal trial. Equally, civil actions may be pursued where no criminal investigation has taken place. In some cases, a successful civil action may be the precursor to a successful criminal investigation and prosecution. An important feature of the amendment is that individuals, organisations or businesses that escape criminal prosecution due to insufficient evidence to meet the criminal standard can be named in any civil action brought, which will serve as a powerful deterrent; for example, a civil claim for damages for human trafficking may enable compensation claims to be brought by British girls and young women against men who trafficked and sexually exploited them as children anywhere and where no commensurate compensation orders were made.
The outcome of the civil action will not be dependent on the criminal prosecution of offenders, so the victims in the recent Rotherham cases, for example, would also be enabled to bring civil claims for damages for the harm done to them by the men who trafficked them and who may never face criminal prosecution.
On the limitation period for bringing a claim, we have determined that this should be at least commensurate with contract claims—that is, six years—and that the provisions should apply for a longer period should a court find it appropriate to extend the period available in which to bring a civil action. This corresponds with the extension of time provision under the Human Rights Act 1998.
In the USA, the Trafficking Victims Protection Act—the TVPA, as it is known—became federal law in 2000. The Act criminalised human trafficking and contained numerous provisions for victim protection, but did not at that time contain a civil liability offence. It was quickly recognised that the omission was detrimental to the operation of the Act, and this was remedied by the introduction in 2003 of a federal right of action for survivors of trafficking.
This autumn, it was reported that 35 individual states in the USA and the District of Columbia had chosen to introduce their own civil liability clauses within their state’s legislation, thereby enabling victims directly to claim damages against their abusers. The take-up of this method of pursuing enslavers and traffickers in the USA strongly indicates the importance and effectiveness of such civil liability clauses in reducing the profits of modern slavery offenders, deterring other perpetrators and securing appropriate redress for the victims of trafficking and enslavement-based harm directly from those who seek to profit from human misery. I beg to move.
Lord Rosser (Lab)
My Lords, I will be brief. We have an amendment in this group that is considerably briefer in detail but not dissimilar in intention to the amendment moved by the noble Baroness, Lady Young of Hornsey, providing for a civil remedy for a victim of an offence under Clauses 1, 2 and 4 of the Bill.
Our amendment refers to a victim bringing a civil action against the perpetrator in the county court and states that the victim may recover damages and reasonable legal costs, with subsection (2) of our proposed new clause going on to define one aspect that damages should include.
I do not wish to repeat the arguments for having a civil remedy in the Bill, since these have been powerfully and eloquently put by the noble Baroness, Lady Young of Hornsey, who reminded us that the standard of proof in the civil courts is the balance of probabilities rather than beyond reasonable doubt. As the noble Baroness also reminded us, we need to ensure that victims of modern slavery can recover damages from their abusers and perpetrators of the offences against them.
Unlike Amendment 34, our amendment does not refer specifically to legal aid, which has sometimes on other issues been an area of difficulty for the Government. I hope that the Minister’s response to the amendments on civil remedies will be favourable and that, if the Government do not like the precise wording of the amendments, they will accept the principle that they seek to lay down in the Bill and agree to discussions on seeking wording acceptable to all relevant parties.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I thank the noble Baroness, Lady Young, for introducing this debate, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for moving and speaking to their amendments, giving us the opportunity to discuss a very serious issue. I think we were all struck by the words of the noble Lord, Lord Stevens, about the delay that people are experiencing at present in getting compensation for the horrendous suffering that they have gone through in this process.
Before turning to the amendments, I want to make two points that deal with matters of principle. The first point, which runs through many of the groups that we have considered already, is that the Government’s view, right or wrong, is that we should make it a priority to secure an increase in the number of convictions of the people who have been guilty of these offences. We believe that it is a two-pronged approach. The first prong is the compensation and protection of the victims, but that is best done in the first instance by ensuring that the organised criminal gangs that are perpetrating this are brought to justice. Therefore, the second prong follows from that: we want to encourage victims, although it may be difficult and painful for them to do so, to go down the criminal justice route and secure those convictions. We have made provision in the Bill for protections and help, particularly for children and vulnerable adults, in making contributions and presenting their evidence before a court so that we can secure those convictions. That would be the first point that I would make.
Secondly—my remarks on this are of necessity briefer than they would otherwise be—I have been assisted immensely by the wise words of my noble and learned friend Lord Mackay of Clashfern and the noble and learned Baroness, Lady Butler-Sloss. They have very effectively made the case that we have arrived at; namely, the belief that civil remedies to the civil wrongs that have been cited in this case already exist. In the particular instance where there is a need for clarification on this, my noble friend Lady Hamwee asked—in fact, I think this is the purpose of Amendment 36—whether it was possible to have a reparation order and a compensation order. The answer is yes because they would be dealing with two distinct elements. Where an offence has been committed under the Modern Slavery Bill under the group of offences highlighted in Sections 1 to 3, there would of course be a reparation order. If, however, the person had been the victim of slavery and had been subjected to rape, for example, there would be additional compensation orders as well as the criminal charges that would be brought. So in that instance there would be a case for having the two together, and I hope that helps to clarify the situation.
Lord Rosser
My Lords, may I ask the Minister for a point of clarification? I stress again that I am not a lawyer, otherwise I probably would not be asking this question. If the Government’s view is that civil remedies already exist, is he saying that they are dependent on having first achieved a criminal conviction, or is he saying that they exist without having to go down the criminal court route? If the latter, presumably his argument that the Government wish to increase the number of convictions—they want to encourage victims to go down that route, thus they are not very keen on the civil remedies—has already been weakened by the fact that, as he is saying, civil remedies already exist.
Baroness Lister of Burtersett (Lab)
My Lords, I rise very briefly in support of the noble Baroness and thank her for tabling the amendment, which takes up one of the recommendations of the Joint Committee on Human Rights. We wrote to the Government about this and in response the Government stated that an explicit reference is unnecessary due to case law that establishes the principle that in the context of civil orders applying to anti-social behaviour the requisite burden of proof is the criminal standard. That was a reference to the other Bill as well. However, given that I speak as another member of the non-lawyer sisterhood in your Lordships’ House, perhaps the Minister could explain a bit more about that. Would he not accept that the principle of legal certainty is a very important one, particularly in such a charged area?
Lord Rosser
The noble Baroness, Lady Hamwee, and my noble friend Lady Lister have made reference to the views of the Joint Committee. Of course, reference has been made also to the fact that similar amendments were discussed in the other place. As we know, the response of the Minister in the other place was that, although the orders would be obtained through civil proceedings, the Government accepted that the threshold would be akin to the criminal standard of satisfied beyond reasonable doubt, in line with relevant case law. The Minister in the other place went on to express the view that since the relevant clauses in the Bill already met the evidential threshold that appeared to be being sought in the amendments that were discussed in the other place, the amendments were not needed.
Naturally, I am assuming that the reply that we are going to get from the Minister will be in line with the response that was given by the Minister in the other place, but I hope that the Minister will respond also to the point that has been made about why there is a reluctance to put this on the face of the Bill so that there is no doubt at all about it.
Baroness Garden of Frognal (LD)
My Lords, I thank noble Lords for speaking to this amendment and my noble friend Lady Hamwee for tabling it. It gives me the opportunity to explain the Government’s approach to safeguards in slavery and trafficking prevention and risk orders, and in particular the standards of proof required for the orders to be made. The purpose of these orders is to ensure that law enforcement bodies and the courts have appropriate powers to restrict the behaviour of persons who are likely to cause harm to another by committing a slavery or trafficking offence. For the prevention orders in Clause 14 and the risk orders in Clause 23, the courts must be satisfied that there is a risk that the individual may commit an offence, and that the order is necessary to protect a person or persons from the physical or psychological harm that would likely be caused by that individual committing a slavery or human trafficking offence.
These amendments seek to ensure that the court is required in each of these circumstances to be satisfied beyond reasonable doubt, which is the standard of proof in criminal courts, as has been mentioned. The intention of these amendments is to ensure that safeguards are in place to protect the rights of individuals on whom these orders will be imposed. I recognise the importance of ensuring that these orders, breach of which would be a criminal offence, are not made lightly.
Reference has been made to the Joint Committee on Human Rights. I take this opportunity to pay tribute to the work of that committee. There has been mention of the report that it has published recently. The Government are reflecting on that report carefully.
In this context, protecting the rights of the defendant is important. We have sought to draft these provisions to provide these protections and reflect the need to protect potential victims and remove the risk of harm to them, which is paramount. Although the proceedings by which these orders are obtained are civil proceedings, I put on record that the high burden of proof which applies by virtue of relevant case law in this area ensures that the threshold must in any event be akin to the criminal standard, as my noble friend said. This is the position in respect of existing orders under the Sexual Offences Act 2003, which have been used effectively for more than 10 years, and the new sexual harm prevention order and sexual risk order, and is therefore very well established. For these reasons, we do not believe that this amendment is necessary. Courts and practitioners are familiar with the existing evidential test. Departing from the established approach for these orders could cause uncertainty among practitioners and the courts, which may well reduce their effectiveness. There could also be a perception that, by expressly including a different and more rigid test in the Bill, we want these orders to be judged by a different standard from that applicable to the other orders, which would call into question why different approaches are taken in areas notwithstanding the similarities between them.
Under the system I have described, the court has flexibility in determining the standard to be applied and can take into account and balance all the circumstances of the case—for example, the seriousness of the risk posed by the defendant, the degree of relevance of each fact which must be proved by the applicant and the effect on the defendant of making the order. In the sex offending context, the courts have been able to carry out this exercise for many years in a way which protects the rights of both defendants and those persons at risk. Prescribing the standard as the criminal standard would deprive the courts of this necessary flexibility.
My noble friend made a comparison with the anti-social behaviour regime, to which she made a similar amendment. I think your Lordships will agree that, while anti-social behaviour can cause harm to both individuals and communities, it is not as serious as the horrific abuses of modern slavery. That is why we have modelled these orders on those which tackle sex offenders. Those orders do not prescribe the criminal standard of proof in legislation and were recently approved by Parliament.
I assure the Committee that there are several further safeguards as well as the standard of proof to ensure these orders are used appropriately. The type of harm to be prevented is specified and relates to very serious offences. Statutory guidance will be issued, which will describe risk factors and categories of restriction which may be contained in an order. In determining what measures are necessary, the court must have regard to the rights of both the person at risk and the defendant under the European Convention on Human Rights. The Government will also ensure that defendants have the same access to legal aid as is applicable to other civil order regimes.
Legal aid was raised on an earlier amendment. Individuals concerned will have the right to appeal the making, variation or extension of an order and apply to vary or discharge an order if circumstances change. Given that clarification, the substantial safeguards to ensure appropriate use of the orders and my assurance that we shall, of course, continue to reflect on the valuable work of the Joint Committee, I thank all noble Lords who have spoken on this amendment but hope that my noble friend will feel able to withdraw it.
Lord Rosser
Lord Rosser
My Lords, there are two amendments in this group and perhaps I may explain the purpose behind them.
Amendment 63A removes the maximum amount of the financial penalty that can be given for the breach of a slavery and trafficking risk or prevention order, as laid down in Clause 30(3)(b). Amendment 102A is in response to the Delegated Powers Committee report published last week on the power in Clause 30(5) that allows the Secretary of State to amend Clause 30(3)(b),
“to increase or remove the limit on the amount of the fine”.
Clause 30 sets out the penalties that could be imposed on an individual for breaching a slavery and trafficking risk or prevention order or an interim slavery and trafficking risk or prevention order. The penalties are,
“imprisonment for a term not exceeding 5 years”,
on conviction or indictment, and,
“imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000 or both”,
where there has been a summary conviction. In the other place we questioned the need for the £5,000 limit, both in relation to the limit and how appropriate it would be and the relationship between this and the provision that is coming into force in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would remove any upper limit on maximum fines in the magistrates’ courts.
In respect of the first amendment, while a prison sentence is adequate and serious, we are concerned that the £5,000 limit is too low. People trafficking is a profitable business where criminals make large sums of money at the expense of victims, and in order to tackle slavery and human trafficking we need to ensure that penalties act as a sufficient deterrent.
The Delegated Powers Committee was concerned about Clause 30(5) on penalties, since it confers a power on the Secretary of State,
“to increase or remove the limit on the amount of the fine”,
by regulations, subject to the negative procedure. The Government have said that this power has been included in order to allow for the removal of the limit on the fine when Section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. That section removes the £5,000 upper limit for fines which may be imposed on summary conviction in respect of offences that have been enacted before the date on which that subsection is brought into force. But that subsection has not yet been brought into force and the Minister in the other place said that the subsection would come into effect before this Bill receives Royal Assent and that this is why Clause 30(5) contains the provision in question in order to bring the Bill into line with the new policy.
However, the Delegated Powers Committee considers that,
“it is only justifiable to rely on section 85(1) for the use of the negative procedure where the power is exercised within a reasonable period of the commencement of that provision. Accordingly, we consider the power under clause 30(5) to increase or remove the limit under subsection (3)(b) should only be subject to the negative procedure where it is exercised during the period of 12 months beginning with the day on which section 85(1) is brought into force. In any other case, the power should be subject to the affirmative procedure”.
Achieving that is the thrust of our Amendment 102A, which I appreciate refers to the regulations being made,
“12 months after the passing of this Act”,
rather than 12 months beginning with the day on which Section 85(1) is brought into force, which is what I think the Delegated Powers Committee was seeking. I hope that the Minister will feel able to accept either the terms of our amendment on this point or alternatively—and we would certainly be quite happy with this—the Delegated Powers Committee’s recommendation, to which I have already referred. I beg to move.
Baroness Garden of Frognal
My Lords, I am very grateful to the noble Lord, Lord Rosser, for bringing this amendment forward.
As the noble Lord said, Amendment 63A seeks to remove the limit to the fine that can be imposed on summary conviction for not complying with a slavery and trafficking prevention or risk order. As he set out, these maximum fines have been set in line with existing limits on fines commensurate with the offence committed, and are in line with equivalent provision in relation to the sexual harm prevention order and the sexual risk order, which were passed in the previous Session of Parliament as part of what is now the Anti-social Behaviour, Crime and Policing Act 2014.
To ensure that the measure can respond flexibly to future changes in sentencing policy, Clause 30 also provides for the Secretary of State to amend or remove the maximum amount of the fine which may be imposed for summary conviction for breach of an order.
The Committee will be aware that, as the noble Lord has set out, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a provision which, when commenced, will remove an upper limit on maximum fines in the magistrates’ courts, which are on the commencement day set at £5,000 in the type of circumstances covered by this provision. We anticipate that by the time that the Bill reaches Royal Assent, the limit on fines imposed in the magistrates’ court will have been removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would make this amendment unnecessary. So I do not believe that we need to remove the £5,000 limit at this point.
Amendment 102A would make any future amendment to the level of fine by regulations subject to the affirmative resolution procedure if it takes place more than 12 months after Royal Assent. As the noble Lord said, this is in line with a recent recommendation of the report by the Delegated Powers and Regulatory Reform Committee. We welcome that report and will consider it carefully ahead of Report, including the recommendation on this provision.
Given that clarification and my assurance that this matter will have further consideration, I hope the noble Lord will feel able to withdraw this amendment.
Lord Rosser
I thank the Minister for that response. I am more than happy to beg leave to withdraw the amendment.
Police and Crime Commissioners
Lord Rosser Excerpts(9 years, 10 months ago)
Lords ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts
Lord Bates
My Lords, first, I pay tribute to the noble Lord’s distinguished service in the police service. I recognise his points, and will respond to one of them by saying that when he was serving in the police he was accountable to political leadership through the police authorities. What we now have is directly elected police and crime commissioners and, whereas only 7% of people knew that the police authorities existed, 5.8 million people have now voted for their police and crime commissioner. That is progress.
Lord Rosser (Lab)
My Lords, the National Audit Office has said that there are “few checks and balances” on police and crime commissioners between elections. The Home Secretary has referred to placing PCCs on probation because of cronyism in the hiring of deputies from groups of friends and political associates. The Deputy Prime Minister has described PCCs as a failed experiment, and polls indicate that few people believe that PCCs give them more say in how their local area is policed. Despite the good work done by some PCCs, do the Government not realise that the system—created at considerable expense—is flawed and that fundamental reform is needed to give people a greater voice in how they are policed, with proper accountability at force and neighbourhood level, as we are proposing?
Lord Bates
In relation to that, the National Audit Office has actually said that the commissioners could add important benefits in providing faster decision-making and greater transparency. The Home Affairs Select Committee acknowledged that individual police and crime commissioners are providing “greater clarity” for policing in their areas, and an increasing number of people are voting in the elections. I would have thought that that was to be welcomed.