Modern Slavery Bill

Lord Rosser Excerpts

Monday 1st December 2014 Lords Chamber

Moved by

[Lord Rosser]

1A: Before Clause 1, insert the following new Clause—
“Victims of modern slavery: general duty
(1) In interpreting the provisions of this Act, courts must have regard to the best interests of a victim of slavery, trafficking and exploitation.
(2) In exercising their powers and duties under the provisions of this Act, public authorities and the Secretary of State must have regard to the best interests of a victim of slavery, trafficking, or exploitation.
(3) In performing the duties under subsections (1) and (2), courts, public authorities and the Secretary of State must have particular regard to the personal circumstances of the victim including but not limited to—
(a) the victim’s age,(b) the victim’s gender,(c) the victim’s ethnicity and background,(d) whether the victim has a physical or mental disability; and(e) other relevant characteristics relating to the victim’s vulnerability.”

[Lord Rosser (Lab)]

My Lords, the amendment that I am moving proposes a new clause, right at the beginning of the Bill, which would place a duty on the courts in interpreting the provisions of the Bill to,

“have regard to the best interests of a victim of slavery, trafficking and exploitation”.

The new clause also requires public authorities and the Secretary of State, in exercising their powers and duties under the Bill, to have regard to the best interests, likewise, of a victim of slavery, trafficking and exploitation. The amendment then goes on to state:

“In performing the duties under subsections (1) and (2), courts, public authorities and the Secretary of State must have particular regard to the personal circumstances of the victim including but not limited to … the victim’s age … the victim’s gender … the victim’s ethnicity and background … whether the victim has a physical or mental disability … and other relevant characteristics relating to the victim’s vulnerability”.

Some references to examples of a victim’s personal circumstances and relevant characteristics are already found in Clauses 1 and 45.

The purpose of the amendment is to ensure that the Bill, whatever the intentions, does not appear primarily geared to increasing prosecutions, important though that is, but that it also places the victim and the best interests of the victim at the heart of the Bill. At Second Reading, the Minister described the Bill’s purpose as being to consign the crime of modern slavery to history. He said:

“It will ensure that we can effectively prosecute perpetrators, properly punish offenders and help prevent more crimes from taking place. It will enhance protection and support for the victims of these dreadful crimes”.—[Official Report, 17/11/14; col. 238.]

However, this aspect of support and protection for victims is not addressed in the Bill, which instead contains a clause—but not until Clause 48—requiring the Government, through the Secretary of State, to,

“issue guidance to such public authorities and other persons as the Secretary of State considers appropriate”

about the support that should be available to victims of slavery or human trafficking. Guidance is not the same as a commitment in the Bill to provide a laid-down, minimum level of support, for which some have called, and neither is it the same as placing a statutory duty on the courts, public authorities and the Secretary of State to have regard to the best interests and personal circumstances of a victim of slavery, trafficking or exploitation in interpreting and exercising their powers and duties under the Bill, as provided for in the new clause set out in this amendment.

The new clause, coming at the beginning of the Bill, makes it clear that it is the victims of these awful crimes, and their best interests and personal circumstances, which are at the heart of the Bill, and not just the process, important though it is, of pursuing cases to greater effect and with greater success through the criminal justice system. The impact of these crimes on the victims can extend way beyond the conclusion of any criminal prosecution. Unless we ensure that victims are at the heart of the Bill and that having regard to their best interests and personal circumstances will be a key issue for as long as necessary, with the impacts of these crimes, both physically and emotionally, being addressed, we will not get victims to come forward and provide the evidence to pursue successfully the prosecutions that will be necessary and needed if we are to make a significant and lasting impact on the incidence of modern slavery crimes.

As my noble friend Lady Kennedy of The Shaws reminded us at Second Reading, prosecutions are difficult to bring because,

“victims are in abject terror … Their fear is not just for their own lives but those of their children … of their parents, and of other people they love”.

My noble friend went on to say of victims:

“They know the consequences of involving the authorities. They are often also fearful of authority”.—[Official Report, 17/11/14; col. 291.]

Before a case comes to trial, many witnesses are found by their traffickers or family members are prevailed on to induce them to retract their evidence. There is a need to place victims and their best interests and personal circumstances at the heart of the Bill if we are to get successful prosecutions and get at the traffickers rather more successfully than we do now. Having regard to the best interests of victims and their personal circumstances is not simply something that we ought to do, powerful though that reason is, it is crucial to the delivery of the objective of the Bill, which, in his speech at Second Reading, the Minister said was to eliminate the crimes that constitute modern slavery.

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[The Parliamentary Under-Secretary of State, Home Office (Lord Bates) (Con)]

My Lords, I am grateful to the noble Lord, Lord Rosser, for proposing the amendment and to all other noble Lords who have contributed to an interesting opening debate in this first day in Committee. I guess that we will return to many of these themes as we move through this, but this is also an opportunity to put our views on record. Those views are set out in the Modern Slavery Strategy that was published by my right honourable friend the Home Secretary on Saturday, in which she made it clear, in her opening remarks on page 5, that victims would be at the heart of all we do.

In many ways the debate highlights two different views. One says that we help the victims directly by looking after their welfare. We agree with that. The other view was set out eloquently by my noble and learned friend Lord Mackay when he said that you also aid the welfare of the victims by ensuring that there are fewer perpetrators. That point was also made by the noble Baroness, Lady Lawrence. We accept that, and all the way through this we will return, probably amendment by amendment, to this careful balance that exists between these two approaches.

Before turning to the specifics, I would make one point to the noble Lord, Lord Rosser, who probably did not mean it that firmly when he said that we were making up policy on the hoof. Sometimes when the Government listen and respond they are accused of making up legislation on the hoof, but when they do not listen they are accused of being intransigent and not responding. I am proud to be associated with this legislation because not only is it ground-breaking and leading the world in this type of legislation but it is being put through in an appropriate way after consultation with Members. It went through pre-legislative scrutiny, and I pay tribute to the work of the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord McColl in making refinements. It is worth putting on the record what has actually changed for victims as a result of that process.

The Bill itself changed quite dramatically before it was published. When it went through the House of Commons, we added specific changes on children and an enabling power for the Secretary of State to set up child trafficking advocates. There is a change in the slavery offence so that the court may have regard to the alleged victim’s personal circumstances, including age. A number of provisions in this amendment relate to Clause 1(4), which says that,

“regard may be had to any of the person’s personal circumstances”.

The right reverend Prelate the Bishop of Derby, who has immense experience and awareness in this area, talked about personal circumstances. Clause 1(4) mentions,

“age, family relationships, and any mental or physical illness”.

However, it is not limited to those, as it also refers to those,

“which may make the person more vulnerable than other persons”.

In other words, there is a catch-all element to Clause 1(4), in that regard may be had to a much wider group of circumstances. That is one change that was brought forward.

This has all been as a result of the parliamentary process. We have also introduced a statutory defence for victims who have been forced into criminality. Reparation orders have been introduced, to ensure that victims are properly compensated, and the Secretary of State is required to issue guidance to front-line professionals on identifying and supporting victims. Changes have been made to broaden the Independent Anti-slavery Commissioner’s remit specifically to include the identification of victims. Changes have been made all the way through, and there will be more changes. I shall not anticipate the details before your Lordships’ House reaches that point, but we have tabled government amendments, which will be debated in the next group, that seek to strengthen that element further.

In addition the strategy, as part of our response for victims, focuses on four elements: pursue, prevent, protect and prepare. The protect element is very important and has victims very much at its heart. We are also currently considering the review of the national referral mechanism for victims of human trafficking, which was published a few weeks ago. We are working our way through it, but one of the things that the review is considering is where victims’ interests lie and how we can strengthen their position.

I am struck by a few statistics that lie at the heart of this matter. The Modern Slavery Strategy sets out that in 2013 there were 226 convictions. However, the scale of the problem is much greater than that. Professor Bernard Silverman, the chief scientific adviser at the Home Office, estimates that the number of victims is more like 10,000 to 13,000. The scale is very wide, yet the number of prosecutions is very low in comparison. Through the anti-slavery commissioner, and all that we do, we are focusing on the victims, including by ensuring that the evil perpetrators of this crime are brought to justice and that the sentences available to the courts are increased from 14 years to life imprisonment. That is all directed towards that end.

The noble Lord, Lord Rosser, will respond to the precise technical questions about his amendment that have been so ably asked by my noble friend Lady Hamwee and the noble Lord, Lord Quirk, and others. Although we remain open, as we always have been, to ways in which we can strengthen protection for victims, I would not want to let this moment pass without pointing out that it would be wrong to think that without this amendment there would not be, running right through the core of the legislation, a belief that victims deserve the absolute protection of the Government.

[Lord Rosser]

I thank the Minister for his response. Having heard what he said, I am not quite sure what the difference between us is. The thrust of his answer appeared to be that the Government believe that giving support and protection to victims, and taking account of their best interests and their personal circumstances, are already covered in the Bill, in different clauses. Clearly, that view was not shared in the debate at Second Reading, because a number of noble Lords expressed their concern that the Bill appears to be geared too much towards the important issue, which no one denies, of trying to bring more of the perpetrators to justice and does not reflect the issue of providing support and protection for victims.

I repeat the point I made in moving the amendment: if we do not take steps to provide some support and protection for victims and recognise that we have to take account of their best interests and personal circumstances, we will find that they will not come forward to give the evidence that is needed in order to secure successful prosecutions. Once again, a number of noble Lords made that point at Second Reading. I do not see these as two separate issues: one of prosecuting the perpetrators and the other of giving support to victims to make sure that they feel able, willing and encouraged to give the evidence necessary to bring the perpetrators to justice. We have all spoken about the lack of prosecutions and some of the reasons why that has happened.

The purpose of the amendment is an attempt to address some of the concerns that were expressed at Second Reading, and I take very much on board what the noble and right reverend Lord, Lord Harries of Pentregarth, said about it setting the tone. I think that this amendment does seek to set the tone that if we are to have a successful Modern Slavery Bill which delivers on the objective of bringing perpetrators to justice, to which the Minister referred, we need to take a long, hard look at what we are doing for victims to encourage them to come forward and give evidence.

A number of comments have been made about the wording of the amendment. I do not wish to maintain that it is perfect; I am not a lawyer, and I am sure that it could be improved. But what I am not clear about is whether, from the Government’s point of view, the issue is that they do not like the wording of the amendment or that they do not like its basic objective, which is to raise the profile in the Bill of the importance of the approach to the victim. Once again, that is a point which was made by a number of speakers at Second Reading.

Frankly, in that sense I am disappointed with the Minister’s reply. If we could reach agreement that a clause along the lines set out in the amendment is needed and desirable, I for one would certainly not argue that it should be worded exactly as I have it here. I recognise from the comments which have been made that the proposed new clause could be improved or changed. If there was some general accord that we want an amendment along the lines of the objective of raising the profile of the victim for the reasons I have mentioned, then for me the wording is certainly not an important issue.

I accept, for example, the point made by the noble Lord, Lord Quirk. It is a valid one, not least because I cannot explain why the word “and” is used in one case and “or” in another. As I say, I am not concerned about defending to the death the actual wording of the proposed new clause. What I would like to see is some understanding that, with the assistance of the Government and of many noble Lords who have spoken, a clause could be produced that would receive wide support for both its wording and its objectives.

I am going to ask leave to withdraw the amendment, but perhaps I may say in conclusion that I think the Minister rather misunderstood what I was saying when I referred to things being made up on the hoof. I was referring to the comments made by the Victims’ Commissioner for England and Wales during the course of her contribution. She said that it was almost as though the physical, emotional and practical impact on those affected by the terrible crime of modern slavery has been forgotten in the drive to bring the perpetrators to justice.

The Minister’s response was quite rightly to compliment the noble Baroness, Lady Newlove, on the work she does as Victims’ Commissioner, but he then said that the newly appointed commissioner should address it and make recommendations. I may be wrong, but I did not get the impression that the Victims’ Commissioner was aware that she was going to be involved in addressing that and making recommendations. She made no reference to it in her contribution.

It was the part about the Victims’ Commissioner making recommendations which I felt was being made up on the hoof. It was not an adverse comment about the content of the Bill; I know that it certainly was not made up on the hoof. An awful lot of thought and care has been given to it, but there are areas—and I do not think I am the only one of this view—where it could be improved, one of which is the subject of this amendment. I am disappointed that the Minister has not felt able to make any move, not even to hold further discussions to see if a wording could be found that the Government would feel able to accept—but I note his reply and can only beg leave to withdraw the amendment.

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[Baroness Butler-Sloss]

Following on from what the noble and learned Lord, Lord Mackay, said, might it be sensible to look at a further amendment on Report that does not involve the various issues pointed out by the noble and learned Lord, Lord Mackay, and the noble Lord, Lord Quirk? Could there be a short general clause about the purpose of the Bill being to look after the best interests of victims? The Minister has said that the best interests of the victims come into each of the clauses, but a very short clause of two sentences might perhaps set out the primary purpose of the Bill. Indeed, the Home Secretary has mentioned the victim focus in her introduction. I wonder whether that might be a way out of all the points we have been making.

[Lord Rosser]

I am more than happy to consider that. I think I have made clear that I am not going to any barricades over the wording of the amendment. It is more about trying to achieve an objective that, in my view and that of many others, improves the Bill for victims. I take on board the point made by the noble and learned Baroness, Lady Butler-Sloss. Would the Minister be prepared to have discussions which include all those who have spoken in this debate—if they wish to take part—on getting some wording into the Bill that might satisfy the Government as well as the other parties? I realise that the Government have their interests and reasons for taking the stance that they have, but the objective of us all is to improve a Bill which we all support and which we are not voting against.

[Lord Bates]

All the way through this, we have tried to listen very carefully to suggestions as to how the Bill can be refined in the way that we all want to go. Our starting point was very much one that we all recognised—that implicit in every strand, clause and subsection of the Bill is the victim’s interest—and that is repeated in the strategy. Whether there is a form of words that could be inserted which would answer the questions that are being asked here—simply to have a very clear statement—is something that we could look at. I am very happy to have a meeting between now and Report with the noble Lord, Lord Rosser, and other interested Peers to examine that.

[Lord Rosser]

I am very grateful to the Minister for what he said, which is most helpful. I really appreciate that and I beg leave to withdraw the amendment.

Amendment 1A withdrawn.

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[Baroness Doocey (LD)]

My Lords, the amendment introduces a new, separate child exploitation clause aimed at filling the gaps which, despite the Government’s amendments, still exist in the Bill. Clause 1 requires evidence of slavery, servitude and forced or compulsory labour. However, force or compulsion should not be required in the case of children because a child can be controlled far more easily than an adult, and in many cases without direct force or compulsion. That is one of the reasons why we need a separate child exploitation clause. Clause 2 does not require just evidence of trafficking; it also requires proof that the trafficking took place with a view to exploitation. Proving that somebody was trafficked is difficult enough, but proving that they were trafficked with a view to exploitation is almost impossible, and proving both in the case of children, who are moved at the behest of adults, sets the bar far too high for the CPS to be able to prosecute.

There are a number of circumstances in which children are being exploited that would not be deemed offences under the Bill: children who had not been trafficked but had been sent out to the streets by family members to beg or to steal; children used to make multiple claims for benefit; children brought in from baby farms overseas to be illegally adopted. I shall give two examples of what is actually happening. When I was serving on the Metropolitan Police Authority, the police went into a house and found a young girl of about 12 years of age who was looking after three children under six. She was working from dawn to dusk: cleaning, cooking, washing, ironing, looking after the children. The bed was a mat by the fire. She had never been to school. The police removed her from the house and took her to social services. However, social services brought her back to the same house the next day, saying that compared to some of the children that they had pulled out of crack joints, she was living in the lap of luxury. The only thing the police could prosecute for was the fact that she had not been to school and they could not home-school her. Once the aunt and uncle—so-called—had promised to send her to school, they basically got off scot free, because there was no way the police could prove that she had been trafficked with a view to being exploited.

In another case, a girl of 12 was sold by her mother in west Africa to a woman who brought her to London to exploit her in domestic servitude. After about a year the woman’s next door neighbour started to ask questions about the girl: where she had come from, what she was doing. The woman immediately sold her on to another man, who also exploited her in domestic servitude. When the police were finally contacted, they said that they could not prosecute this man because he had not trafficked the girl into the country.

If either of these cases of exploitation happens after the Bill becomes law the authorities would still be unable to prosecute, because they would be unable to prove the trafficking element required under Clause 2. I am not alone in believing that a separate child exploitation clause is essential. The Joint Committee on which I sat, which scrutinised the Bill, recommended such a clause. The 41 NGOs which form the Refugee Council’s consortium, including ECPAT, the NSPCC, UNICEF and the Children’s Society, believe that such a clause is necessary. Leading barristers whose daily work is to prosecute these cases, several of whom gave evidence to the Joint Committee, also believe that the clause is necessary. The amendment that I propose makes it an offence to exploit a child, but it also defines that exploitation using the exact words of article 2 of the EU directive on human trafficking, by which our courts are already bound.

This amendment makes explicit the fact that a child cannot consent to their own exploitation and it removes the need to prove any threat, coercion or deception. The Government have tabled an amendment that says that consent is irrelevant for the offences in Clause 1. That is very welcome because it brings Clause 1 into line with the trafficking offence in Clause 2. However, it does not change the fact that we still need a separate exploitation clause, because in many cases exploiting a child will simply not meet the threshold required for slavery, servitude or forced or compulsory labour.

I cannot say with any certainty how many children are being trafficked and/or exploited in the United Kingdom today—no one can, because our system of justice has failed properly to recognise that such offences exist, let alone to investigate how often they occur. That is a sadly familiar tale, as we have seen recently in the evidence from the Jay report into child sexual exploitation in Rotherham. We must take the opportunity afforded by this Bill to provide a legal framework which offers the very highest standards of protection to children, recognising, as we do in so much other legislation, that children need a higher standard of protection than adults and, sadly, sometimes a higher standard of protection from adults. We need a specific offence of child exploitation to tackle the deficiencies in the Bill. If we do not get it, we will fail the many hundreds, if not thousands, of children who are exploited in our country every day. I beg to move.

[Lord Rosser]

My Lords, we have Amendments 24 and 26 in this group, which have a very similar theme to that of the amendment proposed by the noble Baroness, Lady Doocey.

The recent report on child sexual exploitation in Rotherham shocked a great many people, not least due to the extent of the abuse that had taken place. Approximately 1,400 children were sexually exploited over the full inquiry period from 1997 through to 2013. Victims were raped by multiple perpetrators, trafficked to other towns and cities in the north of England, abducted, beaten and intimidated. This was against a background in May this year of the case load of the specialist child sexual exploitation team being 51.

Many victims were unable to recognise that they had been groomed and exploited, and some blamed themselves for not just their own abuse but for what happened to other victims. Although there have been a small number of prosecutions for offences against individual children, many children refused to give evidence or withdrew statements as a direct result of threats, intimidation and assaults against them or their families. We have had similar cases in Oxford and Rochdale that the authorities concerned did not appear to pick up, perhaps because of a lack of awareness of the offence of child exploitation. That is a reason for wanting to see the specific offence of child exploitation as well as the offence of child trafficking included in the Bill.

Around a third of all known victims of modern slavery in the United Kingdom are children and the number is growing, not least because they are being specifically targeted due to their age and vulnerability. Yet according to Crown Prosecution Service data, there have been no cases where the victim was a child at the time of the prosecution since the introduction of Section 71 of the Coroners and Justice Act 2009 on slavery, servitude and forced or compulsory labour. The significance of this point is that the Section 71 offence appears to have been transposed into Clause 1 of the Modern Slavery Bill.

The Joint Committee on the Modern Slavery Bill recommended that an offence of child exploitation should be included in the Bill to make clear that child exploitation is even more serious than that of an adult and that consent elements can never be an issue for children. The Sexual Offences Act, for example, already accepts the principle of separate and more serious offences against those under 18. This Bill as it stands does not contain any explicit criminal offence of child exploitation. Our amendments make clear that children do not have the legal capacity to consent to any form of exploitation as recognised in international law and would increase the likelihood that many more of those who traffic, exploit and abuse children would be brought before the courts.

As has been said, children are also at a disadvantage when it comes to providing evidence since they do not usually understand that they have been trafficked or even understand what it means, let alone be aware of what kind of evidence is needed to pursue a prosecution in relation to being trafficked to a location or situation of exploitation. That will be particularly likely if parents or others close to the children concerned have been involved in the trafficking, with the result that while a child may be able to say what happened when they were exploited—through, for example, domestic servitude or prostitution—they are much less likely to be able to help in terms of the perpetrators of a trafficking offence.

It has already been said that since movement or travel is a key component of exploitation, the reality that children are often unable to explain who brought them to a particular house or location where they have been exploited—our amendments include examples of the many different forms of child exploitation—means that no prosecution happens.

Creating separate offences of child exploitation and child trafficking will help to overcome the significant and crucial problem in respect of children and help to achieve the objectives of the Bill, which are to reduce the incidence of modern slavery in its different forms and bring more perpetrators to justice. The separate offence of child trafficking will ensure that those involved in this equally awful activity can be brought to justice for this offence as well as for exploitation.