Modern Slavery Bill

Lord Rosser Excerpts

Monday 23rd February 2015 Lords Chamber

[Lord Warner (Lab)]

My Lords, in speaking in support of the amendment I want to ask the Minister a question. We had a discussion earlier today about the Secretary of State fixing the budget for the commissioner and we had a debate about public bodies being required to co-operate with the commissioner. Is it the Minister’s understanding that the amendment on setting the budget for the commissioner embraces the whole area of overseas travel and maintaining those international relations? Why are embassies not included in the public bodies that are expected to co-operate with the commissioner? It would be helpful to have some clarification on those two issues.

[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.

--- Later in debate ---

Is the Minister willing to at least give an assurance to the House that any regulations made under the Government’s amendment would indeed cover the topics I have identified? Even better, before Third Reading will he consider making the Government’s amendment more specific as to what the regulations will cover, along the lines I have suggested? I hope that the Minister, having moved some way along this road in his journey, would like to take another few steps in this particular area. I beg to move.

[Lord Rosser]

The Government have tabled amendments, to be debated on another day, enabling the Secretary of State to introduce regulations to provide assistance and protection for victims on top of the requirement on the Secretary of State to introduce guidance on identifying and supporting victims. However, as my noble friend Lord Warner has already said, these government amendments do not give any specific guarantees of support and assistance on basic principles of protection and assistance, which would provide appropriate consistency for victims in the way that they are treated within a firm framework; nor do they address the consequences of the national referral mechanism not being on a statutory basis since its introduction. That lack of a statutory basis has contributed to feelings of arbitrariness in the application of the national referral mechanism, which have been compounded by the absence of a formal right to appeal an NRM decision, making the system somewhat unaccountable and potentially unjust.

The Home Office’s NRM review, published late last year, to which my noble friend Lord Warner referred, recognised the issues related to the involvement of United Kingdom Visas and Immigration in the current system and recommended that UKVI be included in the future as a participant in the mechanism rather than as a lead agency. The Government have expressed their commitment to improving the identification of and support for victims of modern slavery and, in the light of their own review, recognised that final decisions about who is a victim cannot be left to UKVI, which has another remit to fulfil, and, whatever the reality, will struggle to be regarded as impartial and open-minded on this issue.

However, further changes are needed. What is being sought in the amendment that my noble friend has moved is not new within the United Kingdom. The Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 and the Human Trafficking and Exploitation (Scotland) Bill both contain provisions for support of victims that go beyond what is contained in this Bill. The result could well be, if this Bill is not further amended, that there are significant differences in support and assistance provided to victims across the different nations within the United Kingdom, which is surely not the objective.

The amendment would place the framework of the national referral mechanism in statute, create a statutory duty on the Secretary of State to set out in regulations the arrangements for a system of victim identification and support and provide for a formal right of appeal against any decision made through the system. However, the Government appear to be saying that they are not prepared to go down this road. The argument in the Minister’s recent letter is that, because this is a time of major change in how we identify and support victims, putting the national referral mechanism on a statutory footing now would be unhelpful and mean a loss of flexibility to improve the system. Instead, the Government have put down an amendment which would provide an enabling power for them to make regulations about identifying and supporting victims.

In his recent letter, the Minister said that the Government had tabled such an amendment to provide an enabling power to place the national referral mechanism into statute by regulations, albeit there does not appear to be any specific reference to the referral mechanism in the amendment. However, there is no reason why adopting the provisions of the amendment that has been moved by my noble friend would lead to potential inflexibility developing, although that is something on which the Minister may wish to comment. The argument that regulations are somehow better for establishing something in statute, such as the NRM, because they can be changed without the requirement for further primary legislation could be used in relation to any organisation or process that is being put on a statutory footing and, in so doing, avoid proper discussion and debate with the ability to amend proposals, which would be provided for by including the terms of this amendment in the Bill.

The amendment which my noble friend has moved, unlike the Government’s enabling power amendment, means that the NRM will be placed into statute on the basis set out in it. The current problems of feelings of arbitrariness in the application of the process of the referral mechanism would be addressed and some consistency achieved in improving the identification and support of victims of modern slavery, to which the Government have expressed their commitment. The Government’s amendment, which is still to be discussed, is simply an enabling power. It is not a guarantee and it is not a requirement. I hope that the Minister will be able to give a helpful response to Amendment 47.

[Baroness Hamwee (LD)]

My Lords, I had my name to an amendment moved in Committee by the noble and learned Baroness, Lady Butler-Sloss—I was about to say my noble and learned friend. That amendment is tabled again today and is much simpler: in order to avoid the need for primary legislation, it is for regulations to be made. Like others, I want the national referral mechanism to be on a statutory basis, and I welcome the government amendments which we will debate on Wednesday—although I have one or two questions about them.

I would be worried about including the new clause proposed by the noble Lord, Lord Warner. To establish it now or “as soon as practicable”—I am not sure what that means in a statutory context, but let us say that it is pretty soon; it is not waiting for the end of a trial, as I interpret it—must, as trials of the new procedures proposed by Jeremy Oppenheim are to be undertaken, risk establishing one statutory basis and then changing it by regulation. Some of the language in the amendment seems to me problematic. The noble Lord will correct me if I am wrong, but I do not think that the term,

“trafficked, enslaved or exploited persons”,

is defined in the same way as victims of,

“slavery and human trafficking offences”,

which is what we have in Clause 41, where the general functions of the commissioner are set out.

I have confidence in what we are being told by the Government about moving to a statutory basis. Without trying to analyse every dot and comma, I would worry that there might be hostages to fortune in the new clause which would require primary legislation to change, rather than the opportunity to rely on regulations, which is what the Government propose.

--- Later in debate ---

[Baroness Hamwee]

My Lords, when I read the Hansard of our first debate on this issue, I realised how much I agreed with the noble Baroness, and I agree with her tonight. I am also concerned about applying the reasonable person test to a child for the reasons she gave and because children develop at different stages. To ask a jury, as I suppose would have to be the case, not only to see what a reasonable adult person would do but to take account of the variables of a child’s development makes the test so complicated that it would be inappropriate. That is the sort of word one uses to be polite, is it not? I do not think we should be requiring this of a child. It adds to the complications and is not the direction in which we should be going.

I have been at meetings where I have heard the noble Baroness say to the Minister that we should not be constructing legislation that allows people to say, “I was trafficked, therefore I should be let off doing anything wrong”. She has been very upfront and quite blunt about that, and she is not trying to resile from that attitude here. I support her amendment.

[Lord Rosser]

I shall be very brief. As has been said, the Government’s amendment removes the need for child victims of trafficking or slavery to prove that they did not have a realistic alternative and puts the onus on the prosecution to show that they acted unreasonably. However, as has been said by my noble friend Lady Kennedy, trafficked children will still need to pass a reasonable person test to benefit from the defence, which will, essentially, presumably require an adult juror to decide whether a similar child in similar circumstances would have acted in the same way.

I assume that the Minister will respond to this point anyway, but given the inherent restrictions of the defence in the Government’s amendment to Clause 45 and that it applies only to offences committed as a direct result of trafficking, slavery or servitude, do the Government maintain that it is necessary to ask a potentially traumatised and vulnerable child victim then to pass an additional test of reasonableness and, in effect, show that they have behaved reasonably to achieve legal protection? When the Minister responds, if he feels unable to give a helpful reply—which I hope he will feel able to do—is it the Government’s intention that it is necessary to ask a child victim, potentially traumatised and vulnerable, to have to pass this additional test of reasonableness, given that there is considerable restriction of the defence in the Government’s amendment to Clause 45 in that it applies only to offences committed as a direct result of trafficking, slavery or servitude?