Lord Bates
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
The noble Baroness, Lady Goudie, has caught us slightly on the hop with her amendments, so we have got to government Amendment 13. This is one of a number of amendments I have tabled to ensure that we are clear and consistent in showing that the offences in the Bill are effective for children. The amendment makes clear that the consent of a victim to their travel is irrelevant, regardless of whether they are an adult or a child. This reflects the fact that many adult victims of trafficking believe, for example, that they are travelling into the UK to do a job or for a better life, and so they consent to that travel without knowing the severe abuse which may lie ahead of them. This provision has been in the Bill throughout, but we thought it helpful to spell out that it applies to all people, including children.
I now turn to a number of amendments further on which relate to trafficking. The approach we have taken in the Bill in defining trafficking reflects the same broad approach that has been taken in our legislation since trafficking was first created as an offence here in 2002, an approach that is tried and tested and well understood by law enforcement. I acknowledge the real concerns that defining the offence differently in the Bill would add unnecessary confusion for law enforcement and prosecutors, who understand and use the trafficking offence, when we want them to focus on gaining more convictions in practice. When giving evidence to the Public Bill Committee in another place, the Director of Public Prosecutions highlighted that the offences in the Bill are clearer than the alternatives which the pre-legislative scrutiny committee suggested.
Both alternative approaches to defining trafficking also, probably inadvertently, could make prosecution harder than under the offence as set out in the Bill, because they seek to tie the conduct element of the offence to the specific means set out in the EU directive. There is no requirement for any particular means to be involved in the conduct element of the offence in the Bill or in existing law, so replacing this approach with an exhaustive list which indicates the means through which someone may be trafficked would have a narrower effect than the current provision. I doubt that anyone would want to see that happen. That relates to Amendment 13, which stands in my name. I am happy to respond to other amendments as they are spoken to by other noble Lords. I beg to move.
Lord Bates
My Lords, I thank the noble Baroness, Lady Royall, for speaking to the amendment and, as is so often the case, expressing sentiments and views which are shared on all sides of the Committee. It is perhaps not unusual that we are rehearsing some of the general principles discussed on previous groups of amendments. It is interesting to note that paragraph 2.3 at page 15 of the Modern Slavery Strategy document underscores the point made by the noble and learned Baroness, Lady Butler-Sloss. It states:
“However, we also know that a high number of victims are UK nationals, including children. Not all victims of modern slavery are trafficked across the border. We know that the internal trafficking of victims to other parts of the country takes place, and other forms of modern slavery take place that involve no movement of the victim at all”.
My noble friend Lord Deben made a very interesting point. We want to see the Palermo Protocol used as a basis for harmonisation. The Palermo Protocol sets out an international definition of trafficking in persons as,
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
That definition is relevant to the point made by my noble friend Lady Hamwee. She asked about a particular set of circumstances. I will look at that case study. Case studies are extremely helpful in this world, because they provide us with an opportunity to explore the options. All case studies will be matters for the police, the Crown Prosecution Service and ultimately the courts to adjudicate on. I would certainly have thought that the individual to whom she referred would, at a minimum, be caught by Clause 4, “Committing offence with intent to commit offence under section 2”. It states:
“A person commits an offence under this section if the person commits any offence with the intention of committing an offence under section 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section)”.
I will be happy to come back to this and look further at it, but that is my initial thought in relation to that question.
I turn to the specifics of the amendment and some of the questions which were raised. The alternative trafficking offence set out in Amendment 23 also removes the reference to travel. I fully appreciate the intention behind the amendments. However, I am confident that the language used in Clause 2 is already entirely consistent with the EU directive—the point made by my noble friend Lord Deben. The offence of arranging or facilitating the travel of another person with a view to exploitation includes all the ways through which human trafficking may be committed, as set out in the Palermo Protocol and EU directive, to which I have already referred. Those international instruments are explicitly concerned with human trafficking. The serious evil they rightly identify is trafficking and clearly trafficking involves some element of movement or travel of the victim.
The noble and learned Baroness, Lady Butler-Sloss, referred to Clause 2. I must pay tribute to her incredible sharpness of mind, despite her having flown in from sub-Saharan Africa and arrived at something like 5.30 this morning. I just got the train down from Newcastle and I have to say that I am feeling a little bit groggy. I think that probably reflects the difference in mental capacity between the two of us, but we will carry on. In Clause 2, we have already responded to concerns during pre-legislative scrutiny and made clear on the face of the Bill that a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words which are used in the protocol.
The noble Baroness, Lady Royall, asked specifically whether we needed a general exploitation offence, because forced begging is not covered in the offences of the Bill. Forced begging is an offence under Clause 1 as it amounts to forced or compulsory labour and therefore our view is that it would be caught by that.
My noble friend Lady Hamwee asked whether the trafficking offence covers incitement of the victim to travel to a particular location, which was the example that was given. The trafficking offence can cover inciting a victim to travel somewhere with a view to exploiting them—for example, the perpetrator telling a victim to meet them at a particular time and in a particular place with a view to exploiting the victim. There is no requirement that the perpetrator physically moves the victim. Any kind of arranging or facilitating their travel is enough.
In the case of grooming a victim for use in prostitution or for rape, as in my noble friend’s example, then telling the victim to meet them at a hotel—to hang out, as she asked—would certainly be covered by the trafficking offence. Inciting a victim for prostitution is a form of exploitation under Clause 3 and such conduct is an offence under Part 1 of the Sexual Offences Act 2003. As I referred to from the strategy document, any arranging or facilitating a victim’s travel, including travel within the UK, for that purpose will amount to an offence under Clause 2.
My noble friend also asked whether the trafficking offence covers all the acts proscribed in Article 2.1 of the EU trafficking directive. The UK is fully compliant with all our international obligations in relation to human trafficking, including in relation to the EU directive. It is not inconsistent with the international instruments to retain the concept of travel in the offence. Our offences, ever since they were created, have had that element. The international instruments are explicitly concerned with human trafficking. The evil that we are trying to tackle is trafficking and clearly trafficking involves some element of movement and travel of the victim. Following pre-legislative scrutiny, we took the opportunity to make clear in Clause 2(3) that a person may,
“arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”.
The words reflect those used in Article 2.1 of the EU directive. Therefore, we do not think that there is a need for a specific reference to Article 2, as suggested by the noble Baroness.
Baroness Hamwee
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Baroness Hamwee
The Minister used the term “incitement”. That is why I picked it up.
Lord Bates
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.