Immigration and Social Security Co-ordination (EU Withdrawal) Bill

Lord McColl of Dulwich Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Monday 7th September 2020 Lords Chamber

Moved by

[Lord McColl of Dulwich]

7: Schedule 1, page 8, line 35, at end insert—
“( ) The reference in sub-paragraph (1) to any other EU-derived rights, powers, liabilities, obligations, restrictions, remedies and procedures does not include a reference to any rights, powers, liabilities, obligations, restrictions, remedies and procedures arising under the EU Anti-Trafficking Directive (2011/36).”Member’s explanatory statement
This is a probing amendment to confirm the status of the EU Anti-Trafficking Directive under EU retained law and how it might be affected as a result of Schedule 1, paragraph 6.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I have tabled Amendment 7 because, as I raised at Second Reading, there is a great deal of concern about the situation that will be faced by victims of modern slavery after the Brexit transition period concludes at the end of December. Other noble Lords raised this concern at Second Reading, including the noble Lords, Lord Morrow and Lord Randall, the right reverend Prelate the Bishop of Bristol, who has kindly added her name to my amendment, and the noble Lord, Lord Kennedy, who was gracious enough to support the Private Member’s Bill in my name, to which I shall return later.

The Minister will know that I firmly support the Government’s aim of bringing immigration policy solely within the control of the UK Government and that leaving the EU should also mean that the UK is not bound by EU law, other than that which we have chosen to incorporate into domestic law. However, I was and remain a strong advocate for the content of the EU anti-trafficking directive which the Government agreed to adopt in 2011. Having left the EU, exercising our sovereignty does not compel us to make fewer provisions for victims of trafficking than those available under the directive. Indeed, I suggest that we should use this freedom to ensure that we have the very best provisions for victims of human slavery.

Since the Government opted into the directive, we have passed the excellent Modern Slavery Act 2015. However, that does not contain any provisions relating to immigration status or access to support or benefits for victims, something which my Private Member’s Bill, the Modern Slavery (Victim Support) Bill currently before the House, seeks to rectify.

The directive has filled this gap to a degree, since the direct effect of the EU directive in practice made it part of domestic law, unlike the statutory guidance and the Council of Europe anti-trafficking convention. The statutory guidance is valuable but does not have the force of law and can easily be changed; the convention creates obligations for the Government, but these are not rights which would take precedence over other UK law such as, for example, immigration law.

I hope noble Lords will bear with me as I detail some background to my amendment. In a nutshell, there is uncertainty about whether aspects of the directive remain part of what is known as EU retained law. If parts of the directive are retained EU law, it is also uncertain whether they could then be disapplied by this Bill under paragraph 6 of Schedule 1, because they conflict with immigration policy

On the first uncertainty—namely, whether rights under the anti-trafficking directive remain recognised and available in domestic law—the answer depends on whether rights under the directive fall within the relevant definitions in the European Union (Withdrawal) Act 2018. The key definition is set out in Section 4(2)(b) of the 2018 Act, which requires that the rights in question are

“of a kind recognised by the European Court or any court or tribunal in the United Kingdom”.

Given that definition, part of the problem associated with trying to understand whether rights will obtain after the end of this year is because, to my knowledge, the phrase “of a kind” has yet to be interpreted by the courts. The Explanatory Notes to the 2018 Act offer some assistance, indicating that where a UK or EU court has recognised rights arising under directly effective provisions of directives, these will remain in law, meaning that they

“could be relied upon by other individuals who are not parties to that case”.

What is less clear, however, is the status of other rights in the same directive that may meet the test for having direct effect but have not yet come before the court. Will these be “‘of a kind” with those other rights and be available in domestic law? Or, as the Explanatory Notes—but not the legislation itself—seem to imply, will those rights no longer be available simply because they will not yet have been tested in court?

The second area of confusion relates to those rights that do fall within the withdrawal Act definition and have been retained in domestic law. The issue here is the broad nature of the terms used in paragraph 6 of Schedule 1 to this Bill, which could see those retained rights being disapplied because they conflict with immigration policy. Since the majority of the victims of modern slavery in the UK are not British nationals, there is necessarily an intersection between immigration policy and the rights relating to the support and other treatment of those victims. It is the combination of these two uncertainties that compounds the risk for victims of trafficking.

Experts who support victims of modern slavery, including the Immigration Law Practitioners’ Association —the ILPA—have said that, in the light of the above concerns, some of the protections which may be lost include the

“protection against removal of a victim of trafficking because they never received sufficient support and assistance under Article 11, or because an investigation was never conducted, or the protection against removal during their reflection and recovery period.”

--- Later in debate ---

[Lord Parkinson of Whitley Bay (Con)]

I am very happy to make that commitment to speak not just to my noble friend but also to the relevant Minister, Victoria Atkins, who I know is looking carefully at the legal framework here and will want to be sure that she has taken note of the contributions made this evening. I will pass them on to her and have that discussion.

[Lord McColl of Dulwich (Con) [V]]

My Lords, I thank all noble Lords who have taken part in this debate, and I am very grateful to the noble Baroness and to the Minister himself. It is very encouraging. I think the gist of it is that victim support rights specifically within the directive will definitely be part of retained EU law. I am thankful for that, and beg leave to withdraw the amendment.

Amendment 7 withdrawn.