Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013

Lord Taylor of Holbeach Excerpts

Wednesday 6th March 2013 Grand Committee

Moved By

[Lord Taylor of Holbeach]

That the Grand Committee do report to the House that it has considered the Electronic Commerce Directive (Trafficking People for Exploitation) Regulations 2013.

Relevant document: 18th Report from the Joint Committee on Statutory Instruments

[The Parliamentary Under-Secretary of State, Home Office (Lord Taylor of Holbeach)]

My Lords, these regulations are a technical measure to implement the EU directive on electronic commerce, known as the e-commerce directive, in respect of the new Section 59A of the Sexual Offences Act 2003, on trafficking people for sexual exploitation, and amended Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, on trafficking people for labour and other exploitation. These changes to trafficking offences were made by the Protection of Freedoms Act 2012.

The e-commerce directive supports free movement in the provision of information society services; broadly speaking, commercial activities that take place online in Europe. It covers online activities, such as selling goods and services, hosting a website or providing web or e-mail access. The trafficking offences can be committed online where the arranging or facilitating takes place over the internet. Therefore the e-commerce directive needs to be implemented in respect of the human trafficking offences.

I should mention some of the history regarding the implementation of the e-commerce directive, which was originally implemented by regulations in 2002. Those regulations applied the directive to all offences that existed at that time. For offences created after that date, as in this case arising from amendments to the Protection of Freedoms Act 2012, we have to implement the directive on a case-by-case basis.

I will address briefly some of the details of the regulations. Regulations 3 and 4 implement the directive’s country of origin rules. These rules broadly say that a provider of information society services must be regulated by the state in which the provider is established, not the state in which the services are received. This is provided for by Regulation 3.

Similarly, the country of origin principle means the UK must not restrict the freedom of service providers established in another European Economic Area state to provide their services in the UK unless certain conditions apply. Such providers will generally be regulated by the state in which they are based. We would expect EU member states, all of which are bound by the human trafficking directive, to pursue prosecutions under their relevant domestic trafficking offences.

Regulation 4 sets out that proceedings may not be brought against a service provider established in another European Economic Area state, unless specific public interest conditions are satisfied. The key question for these purposes will be whether a prosecution is proportionate. The CPS will take into account all relevant factors, including, first, whether a prosecution is to be brought under the domestic law of the state in which the service provider is established—if such a prosecution is to be brought, it will be difficult to show that it is proportionate to prosecute here as well; secondly, where the evidence is located; and thirdly, the nature of the offending that has taken place, for example, whether the service provider part of an organised crime gang focused on trafficking persons into the UK. Overall, the CPS will need to decide whether the conditions are met on a case-by-case basis.

Regulations 5, 6 and 7 implement the requirements of the directive in relation to intermediary service providers which carry out certain activities essential for the operation of the internet: those that act as mere conduits and those providers that cache or host information. The directive requires us to limit the liability of such intermediary service providers in specified circumstances. For example, a host is not liable if it had no knowledge, when the information was provided, that it was part of the commission of a trafficking offence. It is important that we do not unnecessarily criminalise service providers that will not always be aware of the use being made of their services.

The UK has always been a world leader in fighting human trafficking and has a strong international reputation in this field. In July 2011, the UK applied to opt in to the EU directive on human trafficking. Opting in sends a strong message that the UK is not a soft touch on this issue and supports the collaborative international work that is a vital element in dealing with such complex international organised crime. The UK already has a strong basis for such collaboration through the work the Serious Organised Crime Agency undertakes with foreign law enforcement agencies. In recent years, police forces have participated in a number of joint investigation teams, in support of the investigation and prosecution of traffickers.

The Government’s human trafficking strategy, published on 19 July 2011, identified four core themes: improving identification and care of victims; enhancing our ability to act early before harm reaches the UK; smarter action at the border; and more co-ordination of our law enforcement efforts in the UK. An update on the strategy was included in the first report of the Inter-Departmental Ministerial Group on Human Trafficking, published on Anti-Slavery Day, 18 October 2012.

At its heart, human trafficking involves the movement of individuals for the purposes of exploitation. That movement and exploitation, particularly when it has an international dimension, can involve extensive co-ordination in the planning, recruitment and transportation of victims. It is likely that criminals are using new technologies, or old technologies in more complex ways, to facilitate their communications and avoid detection. It is not known whether the use of new technologies has increased trafficking in persons, but it is believed that increased use of technologies has made trafficking activities much easier to perform.

We are commencing the amendments made by the Protection of Freedoms Act on 6 April, in line with the Government’s wider timetable for implementing the EU directive on trafficking in human beings. It is our intention that these regulations come into force at the same time. I commend the regulations to the Committee.

[Baroness Smith of Basildon]

My Lords, I thank the Minister for his explanation. These are very technical regulations. They are the kind of regulations that you wade through as the sun goes down and hope that you will follow all the information they contain. Therefore, the Minister’s explanation was helpful. Although the regulations are technical, they are extremely important. He, like noble Lords on this side of the Committee, will fully appreciate just how awful human trafficking is.

In preparing for today’s discussion, I read some accounts of people who had virtually been sold into slavery to provide cheap labour for companies or often to engage in illegal activities and prostitution. It really is horrendous. Modern technology is usually a way forward, but it is not always a force for good. In this case, it is a force for evil and enabling illegal activities, which is why these regulations are so necessary. Therefore, I welcome the regulations and am pleased that they have been brought forward today. One of the reasons why we are pleased to see them is because the Government were rather tardy in bringing forward the relevant measure as regards the previous EU directive on preventing and combating trafficking in human beings and protecting its victims. In fact, they were going to opt out of those provisions. However, I am pleased to say that the Government subsequently changed their mind, for whatever reason, and rightly decided to opt into that directive. These regulations extend that commitment, and we are grateful for them.

However, I wish to press the Minister a little further on opting in and out. An issue that has concerned me, and which the noble Lord and I have discussed across the Floor of the House, is that the Government intend to opt out of policing and criminal justice measures. I am worried that if they do so, these regulations would no longer be valid because they would have opted out of these provisions. I entirely agree with the noble Lord about their importance and am very concerned that we may face a situation whereby the Government decide to opt out of these provisions, having already opted in—a bit of a hokey-cokey, really. I hope that we stay in.

I have specific questions in relation to these regulations and to the other anti-trafficking orders that the Government have brought forward. My understanding is that the Government are now consulting on and preparing for measures to opt out of police and criminal justice. In that case, what consideration are the Government giving to interim measures? As the Minister and I know, those who are subject to trafficking in this way are among the most vulnerable of humans, in the most vulnerable position and need protection. If we are to opt out, it is all very well looking to opt back in in six months, a year or whenever we are given permission to do so by other member states, but there would be an immediate problem that these regulations would not be valid because we had opted out. I am not clear whether, in that situation, the Government would need to revoke these regulations individually or whether there would be a general opt-out and we would automatically be opted out of all EU police and criminal justice matters. I hope the Minister is able to say something about that. I agree with him about the reasons why he has brought these regulations forward today and about why they are so important.

My only other question is on the review. What will be the timescale for it? Will it coincide with the Government’s plans to opt out of police and criminal justice or will there be a set period? Normally such regulations say that they will be reviewed within three or five years, but there is no timescale in these regulations, and I wonder whether that is connected to the Government’s intention to try to opt out of policing and criminal justice. We support the regulations and think they are right, which is why I am concerned about this opt-out hokey-cokey that the Government have announced.

[Lord Taylor of Holbeach]

My Lords, I thank the noble Baroness, Lady Smith of Basildon, for her broad welcome for the directive and the regulations arising from it. I think we are all agreed on it. The opt-out of police and justice measures would not affect this order or the UK’s participation in the trafficking directive. It is not part and parcel of that situation. That is important to know.

I know the opt-outs are a matter that concerns the noble Baroness. The work in relation to all the opt-outs is ongoing negotiation and discussion. She knows that I and my noble friends in the Ministry of Justice will do our best to keep the House informed of the implications of anything that comes forward.

The first review of the regulations will be after five years. By that time, we will see what the implications are. We hope that we can anticipate relatively few prosecutions under these regulations because their existence is the key to making sure that e-trafficking is not used to reinforce this terrible trade.

[Baroness Hamwee]

Did I hear the Minister say that the first review will be after five years? Regulation 8(4) states:

“The first report … must be published before the end of the period of five years”.

Perhaps I am saying this only to register my presence, but we should be clear about that.

--- Later in debate ---

[Lord Taylor of Holbeach]

I am delighted to welcome my noble friend Lady Hamwee. I had written in my notes that I should welcome her contribution to the debate, and I had to excise that on the grounds that the noble Baroness had not contributed. I am pleased to say that, although my notes say “after five years”, I am sure that the review will be in accord with what is required by the regulations. Whether the report is made at five years or after five years, I hope that satisfies my noble friend that I expect the Government to be in a position to comply with the regulations. I beg to move.

Motion agreed.