Lord Rosser (Lab)
I wait with interest to hear the Government’s reply. They have an amendment which refers to Clause 41(3)(f) and to,
“things that the Commissioner may do in pursuance of subsection (1)”,
which is about encouraging good practice. As it stands, the paragraph says that it may include,
“co-operating with or working jointly with other persons, in the United Kingdom or elsewhere”.
The amendment would make it read “or internationally”. I have no doubt that the Minister intends to do this, but it would be helpful if he could explain the extent to which he feels that his amendment differs in spirit and objective from the one moved by the noble Lord, Lord Alton of Liverpool.
The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)
My Lords, I am grateful to the noble Lord, Lord Alton, for proposing these amendments and to all noble Lords who have spoken in this debate.
This is yet another area where we have seen considerable progress since Second Reading. The noble Lord, Lord Alton, referred to powerful speeches made by a number of noble Lords at Second Reading, particularly the noble Baroness, Lady Cox, who spoke passionately and persuasively about this issue. That speech was very influential in shaping the Modern Slavery Strategy. A particular element is involved here which I will come back to. I say to the noble Lord, Lord Rosser, that the strategy is helpful in that it is a cross-government strategy. Rather than being domestically focused—clearly, by definition, the Home Office is domestically focused—the strategy reaches across all government departments. Importantly, the Modern Slavery Strategy complements the Bill as it says what the Government will do as a result of the legislation that is passed.
Page 10 of the Modern Slavery Strategy highlights the fact that, as part of Pursue, we will work internationally to,
“improve our own capabilities and cooperation with international partners”.
The work being done in the Santa Marta group is part of that. I pay tribute particularly to the work being done by the Vatican in that respect. On 9 and 10 April last year, the Home Secretary and international law enforcement representatives attended a historic event at the Vatican to discuss how the church and law enforcement could work together to combat modern slavery. At the conference, the Home Secretary announced the creation of the Santa Marta group—a group with senior law enforcement officers from around the world chaired by the Metropolitan Police Commissioner, who will work on joint practical measures to strengthen and co-ordinate our response to tackling modern slavery globally. The Santa Marta group met again in London on 5 and 6 December 2014 and has committed to meet again in Spain later this year. The meeting in December was very successful. I think that it was attended by all the 40 or so country representatives from around the world and reflected the two sides of the operation—the country plans undertaken by DfID and the FCO, which have already been referred to, and the crucial work undertaken by the National Crime Agency in tackling the organised crime dimensions by placing people overseas.
The Modern Slavery Strategy goes on to describe in some detail on page 54 the overseas Protect work in which we are engaged. That is not to suggest that this is a sentiment or gesture comprising words only. In the past 18 months, 14 modern slavery projects have been delivered in seven countries. Does more need to be done? Of course, much more needs to be done. I am trying to paint a picture to show that even when this issue was being subjected to pre-legislative scrutiny, the Santa Marta group was involved in it. We recognise that the international dimension is absolutely critical in tackling this heinous crime, as the noble Baroness, Lady Kennedy, and the noble Lord, Lord Judd, said. We cannot do it alone. We need to have the Pursue and Prevent programmes. The aims of the Prevent programme will clearly be international.
The designate Independent Anti-slavery Commissioner, Kevin Hyland, wrote that he saw international collaboration as being a key part of his operation. I know that he is just about to visit Nigeria and he has been to Spain. All his visits have been facilitated, as one would expect, by the missions in the respective countries. That work is therefore being undertaken.
Baroness Butler-Sloss
As Amendment 48 is in my name, I have perhaps been a little slow in getting to my feet. I am content with what the Government propose in principle and therefore did not feel it necessary to propose my amendment with any particular enthusiasm, but I am concerned that at some stage there should be a statutory basis for the NRM. I do not believe that it is appropriate for the power to be other than to enable the Government to make such a statutory regime without going through primary legislation. I entirely support what the noble Baroness, Lady Hamwee, said. I share her concern about Amendment 47, moved by the noble Lord, Lord Warner, because it is so specific. If the trials are effective, the Government may well find that changes are necessary, and because of the way in which Amendment 47 is framed, as the noble Baroness, Lady Hamwee, said, they would probably require further primary legislation. The whole point of what she and I want is to have the statutory process in a way that can be produced by regulation, not further primary legislation. For that purpose, I support my amendment, as far as it goes, and I am not at all happy about Amendment 47.
Lord Bates
My Lords, I am grateful to the noble Lord, Lord Warner, for moving the amendment. This is another example of where we are moving towards a general principle of the statutory footing of the national referral mechanism, but not going as far as he would like in his amendment. The noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Hamwee have set out some of the reasons why his amendment would need further work in any event. I will respond to the issues briefly, being aware that we will of course come back to consider this in more detail in the second day on Report.
Baroness Butler-Sloss
I have had considerable concerns about this requirement for someone under the age of 18, but I can see that there is a problem if a person who was under the age of 18 when the act that constitutes the offence was done does not raise that issue for a very long time, and then perhaps in middle age says, “The offence I committed was because of my situation at that time”. It crosses my mind, following what the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser, said, that it might be possible to deal with this issue of not raising a defence until many years later by making slight changes to Clause 45(4)(b) to say that that defence has to be not only,
“as a direct consequence of the person being”,
but also within a reasonable time, so that it does not come 30 or 40 years later. If something of that sort was brought forward by the Government at Third Reading, it would protect a particular aspect that has been dealt with and considered in the past. I share the concerns of the noble Baroness, Lady Hamwee, and the noble Lord, Lord Rosser.
Lord Bates
My Lords, I am grateful to the noble Baroness, Lady Kennedy of Cradley, for bringing forward this amendment again and for again seeking to get more information on the record about what the Government’s intent is. I will come to the points that have been raised, but I acknowledge and thank the many noble Lords who have taken part in this discussion so far. The discussions have certainly caused us to think about whether further action was needed, and help explain why I tabled a government amendment to ensure that the defence would be easier for child victims to access.
It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective, through the 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. Clause 45 establishes a crucial additional safeguard: a statutory defence for slavery or trafficking victims.
As the House will recall, at Second Reading I brought forward amendments to make the defence for victims easier to access for child victims. Those amendments removed the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation. We had another good debate in Committee on the detail of the defence. This was followed by further, very constructive, discussions outside the Chamber, which also focused on the needs of child victims. The Government have also engaged further with non-governmental organisations that are expert in this area. Genuine and important concerns were raised then, as they have been today, that the reasonable person test, as currently phrased, could amount to an effective requirement for compulsion for child victims.
I have listened carefully to that concern. On reflection, I, too, see the risk that a test involving the words “no realistic alternative” could be interpreted by some courts and juries as requiring something akin to compulsion of the child victim. I therefore believe that we can go further to ensure that child victims are not unfairly criminalised and that there is no question of an effective requirement for compulsion. Therefore, government Amendment 49 changes the reasonable person test for child victims by removing the reference to the child having “no realistic alternative” to committing the offence.
I know that there remain concerns that somehow the revised test might still require some proof of compulsion. I want to be very clear: the effect of the amendment is that for the defence to apply, there will be no requirement whatever, either implicitly or explicitly, for compulsion of a child victim. If a case reaches court, they will simply need to evidence any source to raise the defence. The evidence need not be extensive. It could involve, for example, the child’s account in evidence, in which they explain in their own words what happened. It is then for the prosecution to prove beyond reasonable doubt either that the child was not the victim of trafficking or exploitation or that they acted unreasonably in committing the offence. If the prosecution cannot reach the very high threshold of showing beyond reasonable doubt that the child acted unreasonably, the test in the revised defence is met.
I know that there are concerns that at times the hypothetical situations which we debate in this House fail to match the realities on the front line. I want to ensure that the new defence informs Crown Prosecution Service decisions about whether to prosecute, rather than just having an impact when cases reach court. I am pleased that the Crown Prosecution Service has committed to ensuring that, once the Modern Slavery Bill is passed, the current CPS legal guidance for prosecutors will be updated to reflect the new legislation. This will include guidance for prosecutors regarding the application of the statutory defence, and specifically the different provisions relating to adult and child victims of modern slavery. This type of practical guidance for front-line professionals is essential to ensure that the defence acts as we intend—as an extra safeguard preventing victims, and particularly child victims, of modern slavery ever facing inappropriate prosecutions.
I have listened to the debate and I know that some noble Lords would like me to go even further down this line. However, I believe that it is appropriate that we retain some limited safeguards. I know and accept that, as my noble friend Lady Hamwee said, the noble Baroness, Lady Kennedy of Cradley, has never gone down that particular line, but I do not believe that it would be appropriate to give broad immunity from the criminal law so that a person could use this defence even when they have committed a crime in completely unreasonable circumstances.
Having proposed the amendment and given me the opportunity to build upon what has already been put on the record with additional assurances and wording— which can of course be taken into consideration should these circumstances ever arise in a court—I hope that the noble Baroness will feel able to withdraw her amendment, recognising that she has, again, moved the Government further along the road along which she wants us to travel.
Baroness Kennedy of Cradley
I thank the Minister for that reply, and repeat that I am very grateful for the constructive way in which he and his staff have engaged with me and other noble Lords, and with NGOs that have worked tirelessly on this Bill and on this issue. I recognise that the Government have listened and rethought; I hoped that they might rethink a little further, so I am disappointed that the reasonable persons test will remain in place. I see it as another test of compulsion, and I see it going further than it goes now. I find it hard to imagine how other adults could place themselves in the shoes of an emotionally manipulated child.
I accept what the Minister says and welcome his comments. The final assurances that I asked for—CPS consultation with stakeholders, the new guidance that will be produced, the training for prosecutors and how the new statutory defence will be engaged in the field—are all crucial to make sure that we never see a child convicted for a trafficking offence that they have been forced to do. With those assurances given by the Minister, I beg leave to withdraw the amendment.
Lord Bates
Baroness Hamwee
My Lords, I wonder whether the Government have made any assessment of the number of people who would fall within the cohort identified by the noble Baroness. I have been looking through the review of the NRM to see whether I can work that out. I have not been able to do so but I have found the table, which shows that the proportion of potential victims referred to the NRM who received a positive, conclusive decision in 2013 in the UK was 88%. In other words, we are talking about 12% who did not receive the “conclusive grounds” decision. I do not know what that represents in numbers but the argument will go from there that, if the numbers are tiny, the amounts would not be great. As the noble Baroness said, the merits test means that the lawyer concerned is the one who bears the risk. In that connection, it has to be a lawyer who gives advice because of the provisions that make it a criminal offence to give legal advice on immigration if one is not qualified or regulated by the Office of the Immigration Services Commissioner. The ask is, therefore, not very great.
Lord Bates
I am grateful to the noble Baroness, Lady Kennedy, for returning to move her amendment and giving us an opportunity to again look at this important area.
The Government are keen to ensure that we get right the legal support available to victims through the Bill. That is why we amended the Bill in Committee in this House to extend the existing legal aid provision for victims of trafficking to those who have experienced slavery, servitude or forced labour. This support will be provided once an individual has received a positive “reasonable grounds” decision in the NRM, which is generally made within five working days of an individual being referred to the NRM. I accept totally the point made by the noble Baroness about it being essential that good decisions are made early, and that might be done within that definition. I do not consider that this short period of time without legal aid should have a significant adverse impact on individuals. We want as many victims as possible to gain access to the safety and support provided by the national referral mechanism. Once referred to the NRM, individuals will have 45 days’ reflection and recovery in which to make informed decisions about their immigration choices in a safe environment and with access to legal aid.
I am concerned that providing access to legal aid without any link to the NRM may encourage some victims to not opt for the support available to them. Opening up legal aid to those not in the process would not only risk incorrect use of the system but would mean that individuals could bypass the safeguarding system in place for them, and risks individuals remaining in situations of exploitation. For this reason, I think it is right that legal aid is available only once individuals have entered the national referral mechanism.
However, we are open to changes from the existing system. We have committed to piloting a range of changes to the NRM in light of recommendations made by the recent review, which will include incorporating the “reasonable grounds” decision into the initial referral. In practice, this would have the effect of providing earlier access to legal aid because “reasonable grounds” is the trigger by which that would happen. Any changes to the NRM would be reflected in the provision of legal aid and could be made through secondary legislation.
I hope that the House will be reassured that, through the NRM pilots, we will be testing moving access to legal aid for victims of modern slavery to the point of referral, as was being suggested. Given the concern that this amendment could inadvertently discourage victims from leaving a situation of slavery, I hope that the noble Baroness will consider withdrawing or not moving her amendments.
I should just answer a couple of points raised by my noble friend Lady Hamwee and by the noble Baroness. I was asked about the NRM pilots. Those pilots will test the provision of legal aid at the point that a case enters the NRM. The NRM review did not recommend access to legal aid prior to this point. We do not currently intend to test this proposal.
A point was made about the comparable system for asylum seekers. Advice is available for potential asylum seekers to understand their rights under the refugee convention. There are limited funds available for more general immigration advice that a victim of modern slavery would seek. We need to ensure that advice is therefore appropriately targeted and best assists the victims. Asylum seekers come to the UK as a place of safety and may then seek advice on their next steps. This is not the same as a victim of modern slavery, who may still be in a situation of exploitation. We think that linking legal aid to the NRM process is the best way to ensure that such advice is received by the right people and that victims are encouraged to gain access to the protection and support available in the NRM mechanism.
For those reasons, I ask the noble Baroness to reflect on her amendment.
Baroness Kennedy of The Shaws
I am grateful to the Minister for explaining how the pilot scheme will operate and that the whole intention is to direct people towards the national referral mechanism. The hope is that that mechanism will work much more effectively than it has been doing and that it will provide the kind of support that is needed. However, the concern that providing legal aid earlier might in some way direct people away from the national referral mechanism in many ways highlights the very problem that worries me and others who are directly involved in immigration cases. In fact, there is evidence that lots of people—I say “lots of people”; I am not sure that we know what the numbers are—are not leaving abusive circumstances and circumstances of slavery because they do not know what their legal position is. They do not seek legal advice to take the steps that we are hearing about. The suggestion was made that we limit it to the circumstances in which a lawyer would bear the burden of making the assessment that somebody meets all the tests, as the noble Baroness, Lady Hamwee, said. An application would then be made for legal aid. That lawyer would then know that the usual legal aid assessment would be made and that they would carry the financial can if their assessment was not accepted as reasonable. That will gather up those people who are afraid of taking the big step of going to authorities when they do not know what the risk will be to them.
I know that the Government’s intention is that the authorities will act in a much more embracing and supportive way, but you cannot overcome people’s fear as easily as that. That is why having something available beforehand is being urged on the Government. I understand the automatic response that we have got to be very careful about not expanding the parameters of legal aid in this area because we are trying to cut it down but, by doing that, there will be a detriment to a category of people who are too afraid.
It is interesting that the noble Baroness, Lady Hamwee, raised the issue of numbers. It is not thought that the numbers here are considerable but they are often the most serious cases, where people are really suffering and afraid because they are in total ignorance of what their rights are. The point where they go to somewhere like Kalayaan and are referred to a lawyer is when they can be told what their rights are and understand that their case will fall into a category which will allow them the protections that they need through the processes of the national referral mechanism, which is being reformed in a way which will give people confidence.
I hear what the Minister is saying and I will withdraw my amendment at this stage. However, I ask the Government to consider piloting for this category of person, too, to see whether there is a way in which a kind of “green form” scheme can be created to provide that preliminary advice. Secondly, I ask the Minister to look at the numbers. I suspect, as the noble Baroness, Lady Hamwee, suggested, that the numbers are not very great. So we are not talking about a great cost but it will catch, perhaps, some of the most vulnerable. I beg leave to withdraw the amendment.