draft Modern Slavery Act 2015 (Code of Practice) regulations 2016
Mark Durkan Excerpts(8 years ago)
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Mark Durkan (Foyle) (SDLP)
It is a pleasure to serve under your chairmanship, Mr Nuttall. The questions that I would like the Minister to address relate to the extent of the code in respect of the territorial waters of England and Wales. Will she clarify how well attuned the code of practice will be with what is planned to happen with the territorial waters of Northern Ireland and Scotland, in terms of the understandings that exist around hot pursuit should there be controversies after a maritime intervention in respect of modern slavery? These issues often arise, so we should make sure that there are no problems.
There is also the question of Irish territorial waters. As someone who represents a border constituency in Northern Ireland, I am closely aware of the issues and sensitivities around the whole concept of territorial waters and where they are or are not. As well as the engagement with devolved Administrations on bringing the code of practice forward—I understand the intention is that all the Administrations will have their arrangements and legislation in place from 31 May of this year—have the conversations gone further than just the commencement date of those codes?
Given that there would be a common and shared objective in respect of modern slavery across all jurisdictions of these islands, including not just the Republic of Ireland, Scotland, Wales, Northern Ireland and England, but the Isle of Man and Guernsey—we all share those waters—would there be merit in using the British-Irish Council so that there is a clear and consistent stand? That would bring together Government representatives of all those territories to discuss these issues, alongside other issues of maritime management and co-operation that they should also be looking at.
Beyond those questions, and as the hon. Member for Rotherham did, I ask the Minister to address some of the questions that have been raised by the anti-slavery commissioner, and whether the Government would be in a position to take on board some of the suggestions about ensuring greater compatibility, comparability and consistency in all these matters.
Proceeds of Crime
Mark Durkan Excerpts(8 years, 3 months ago)
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Mark Durkan (Foyle) (SDLP)
It is a pleasure to make a short speech in this short debate. The Minister for Security, the right hon. Member for South Holland and The Deepings (Mr Hayes), gave us a Yeatsian introduction to what is actually a fairly prosaic set of statutory instruments, and I would not want to provoke him any further in that direction. I just want to use this opportunity to make a couple of points clear. We support these measures, which will properly even out a number of anomalies and inconsistencies. We need to ensure that we have proper codes of practice and guidance on the use of these powers, and that is what the statutory instruments will provide.
In Northern Ireland, there has at times been sensitivity when the Home Office has introduced legislation here. An example would be the introduction of the National Crime Agency, when not enough attention was paid in advance to the Patten architecture or to ensuring that any additional policing systems and powers were consistent with the Patten principles. It took time to get that right, but it has now been got right. The statutory instruments before us tonight to build on that work that has already been done. They do not transgress the principles and they will not trigger any of the Patten tripwires in any way.
Most people in Northern Ireland will welcome the fact that there is to be full, even and consistent pursuit of the proceeds of crime. During the last set of negotiations at Stormont House, paramilitarism was a vexed issue among the parties. There was an impression abroad that not all the proceeds of crime were being fully pursued, and that some of those in possession of assets that were deemed to derive from years of paramilitary activity were being allowed to enjoy a life of ease and economic largesse that would otherwise have been discomfited by the relevant authorities. It was also thought that some of those assets were treated as personal rather than organisational, because some of those persons were deemed to be friends of the peace process. Both Governments, north and south, tried to reassure parties that that was not the case, and they undertook to ensure that in all legal measures and in all future practice, there would be a clear working assurance that no bye ball was given, no blind eyes were turned and there was no acceptable level of criminal enterprise, current or historic.
In so far as these statutory instruments add to that suite of reassurance to everyone and are compatible with the very important architecture derived from Patten in relation to the policing environment in Northern Ireland, my party is happy to endorse these statutory instruments.
Sexual Exploitation: Protection of 16 and 17-year-olds
Mark Durkan Excerpts(8 years, 4 months ago)
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Mark Durkan (Foyle) (SDLP)
On the topic of public attitudes and misperception, is the hon. Gentleman aware of the case of Maria Cahill, who bravely came forward to the authorities, and eventually to the media, with her story of abuse within the republican movement, as a member of that movement, and how her story was suppressed? Ever since the BBC revealed it, she has been subjected to punishment tweeting by Sinn Féin supporters and, indeed, by Sinn Féin politicians, who have cast slurs on what age she was to imply that she did “know better” and was somehow complicit in her own victimhood.
Kit Malthouse
I am sad to say that I do not know of that particular case, but the hon. Gentleman makes a powerful point.
This point is so obvious that it should not need stating, but I will do so anyway, because even when it is intellectually understood, people still do not “get it”: not fighting someone off, not objecting vociferously, or not attempting to take oneself away from a situation does not equal consent. That is even more obvious when we think of common factors in the cases that have come before the courts. We are talking about victims with mental health problems and learning disabilities. We are talking about children recovering from traumas and encouraged to take drugs or drink alcohol so that they would submit. Complacency about this matter is the biggest encouragement that the attackers look for. It needs to be clear in law that these children are to be considered vulnerable and that the targeting of vulnerable people will never be accepted in the United Kingdom.
All this points to the fact that the sudden removal of protections at 16 is not working, and that we can protect children better with our actions in this House. Let me reiterate what we are asking for: the Government must clarify, and put the clarification in statute, that when a victim of sexual assault is aged 16 or 17, it is an aggravated offence. They must make it clear that drugs and alcohol can never be viewed as consent for a sexual act. They must recognise that vulnerable people are deliberately targeted, and that this should be further considered as an aggravating condition. Passing this motion will move us towards doing a better job of helping parents, police and child protective services to look after children, and we must do so.
I do not advocate these reforms as a Conservative but as a father and as a Member of Parliament. I believe that it is in that spirit that other hon. Members joining us today also back this motion. As we do so, we lay claim to the best traditions of social reform that Britons have offered from within and without these walls through the ages. Every party in this House can lay claim to this, the most honourable of political traditions—the tradition that looks the vulnerable in the eye and says to them, “I will use the good fortune and power that society has given me to protect you.” When it comes to this kind of reform, I do not believe that any Member is sitting on a particular side of the House.
Draft Investigatory Powers Bill
Mark Durkan Excerpts(8 years, 6 months ago)
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Mark Durkan (Foyle) (SDLP)
May we have some idea of any benchmarks that may have informed the Home Secretary’s declaration that these will be world-leading oversight arrangements?
Mrs May
As I think was mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry), other countries look to this legislation precisely because they feel that we are forging a path ahead. They will be looking very closely at what we do in the Bill, and, indeed, may wish to adopt some elements of it in their own legislation.
Modern Slavery Bill
Mark Durkan Excerpts(9 years, 1 month ago)
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Karen Bradley
Thank you, Mr Speaker, and I do apologise for that.
It is important to make it clear that victims who go through the national referral mechanism and who have a conclusive grounds decision that they are a victim of slavery will, at that point, have the right to claim six months to stay and work here in the UK. Whether they take up that claim is entirely down to the individual. If that victim assists police with their inquiries, they will receive an additional year and a day discretionary leave.
Returning to my former point, the Government believe that, given the very different views on the effect of the visa tie, this independent review—the one being conducted by James Ewins—is a great opportunity for a careful and objective look at the issue, and we should not pre-judge its findings. It is particularly important that we allow the review to do its work, because I am deeply concerned that the approach in the Lords amendment will not encourage victims to report the perpetrators of these heinous crimes, so that they can be held to account, or help victims access the support they need to recover.
If an overseas domestic worker who has fallen victim to modern slavery on their short stay in the UK has the ability to change employer, the likelihood is that, if they can escape, they will simply look for another employer and not tell the authorities what has happened to them. The perpetrator would then remain free to go on to abuse other domestic workers either in the UK or in their home country.
If we are to catch these very serious criminals and stop them offending again, we must incentivise overseas domestic workers who suffer abuse to come forward; it is absolutely crucial that we do that. My main concern is to ensure that victims, who are often deeply traumatised and vulnerable, receive the care and support they need to recover from the abuses they have suffered.
Mark Durkan (Foyle) (SDLP)
Given that the Minister has said that the Government amendment requiring victims to go through the national referral mechanism is aimed at ensuring that there are prosecutions, what is the evidence to date that shows that such cases have led to successful prosecutions and convictions?
Karen Bradley
The hon. Gentleman, who was a distinguished member of the Bill Committee, knows that there are not enough prosecutions. But this Bill is designed to secure more. Increased prosecutions combined with the reviewed national referral mechanism, which we will be piloting shortly and hope to roll out nationally very soon, will mean that we will get the evidence and information that we need. This is about not just legislation but the modern slavery strategy. We want all the agencies working together to ensure that we identify victims and treat them as victims, and that those victims get the support they need, so that they can give us the information we require to find the perpetrators of these awful crimes.
A victim who manages to leave an abusive employer and who is not receiving appropriate support would be very vulnerable and at risk of moving on to yet another abusive employer, leaving the original abuser free to abuse again. There is a real danger that Lords amendment 72 will allow abuse to go unchallenged. However good the intentions, that would not protect overseas domestic workers. It risks giving a free pass to the criminals who abuse them, creating the conditions for yet more victims. Quite frankly, if eliminating modern slavery was as simple as being able to change employer, we would have no UK nationals or EU members as victims as they could simply move on. As we all know, the truth is very different, and we have all heard the traumatic accounts of those abused by unscrupulous agricultural gangmasters or tarmac gangs.
This is a complex topic, and simplifying the issue to whether an overseas domestic worker can change employer risks doing a grave disservice to victims. That is not just the view of the Government. I have taken advice from the law enforcement professionals responsible for investigating modern slavery. Chief Constable Shaun Sawyer, the national policing lead for modern slavery, and Ian Cruxton, the director of the Organised Crime Command at the National Crime Agency, have both expressed concern that the Lords amendment would inadvertently undermine the fight against modern slavery because victims will not come forward.
Mr Hanson
There is a disagreement between us, as ever. That is the nature of the debate that we have in the House. I support the Government in trying to tackle long-term abuse by poor employers. I support the Government in trying to drive out abuse carried out through pay and conditions. I hope the National Crime Agency, the anti-slavery commissioner and others will work hard to do that. The difference between us today is the question of the tied visa for employment. The House of Lords, the Committee chaired by my right hon. Friend the Member for Birkenhead, and the charities and organisations outside the House that are working on this issue believe that the Government should accept the Lords amendment. So do I.
Mark Durkan
Does the right hon. Gentleman recognise that the Minister has said that the employers could go on to employ someone else and subject them to abuse? Does that not expose the risk of the tied visa system? The abuse that the Minister is referring to is an abuse that stems from the tied visa. That is what we need to eradicate.
Mr Hanson
I am eternally grateful that I allowed my hon. Friend to intervene and I am grateful for his support in Committee when we debated this matter. He has helpfully cemented the central argument that the tied visa is a wrong-headed approach. There were challenges before April 2012; undoubtedly there will always be challenges in this type of situation. However, the tied visa exacerbates it. We have to make this change. I hope that the Government will listen, but if they do not—
Mark Durkan
Unlike the hon. Member for Rochester and Strood (Mark Reckless), having been here throughout this debate, having sat through the Public Bill Committee and having been present for all the Bill’s other stages in the House, I am not surprised at the heat generated by Lords amendment 72 and the Government amendment to it.
I will not rehearse the issues raised in Committee. Instead, I will concentrate on some of the issues heard this afternoon. It has been argued that because this is such an important and welcome Bill, it is untoward to argue over amendments. It is an abuse of the procedural requirements of this place for Government Members to suggest that anybody pressing a point in relation to these amendments threatens the Bill at large or would be happy to see it frustrated or set aside. The attempt, here in this Chamber, where we talk about being mature legislators, to create the impression of an abuse of process and a scaring process should give us pause for thought about what is at play in these amendments.
The Government amendment provides that if an overseas domestic worker wants to exit a position of slavery, they can do so only if they participate in the national referral mechanism. They will have to engage in a process they might not know about or understand, and they might have their own particular fears, misgivings or hang-ups. They will have been subject to intimidation, having effectively been employed as chattels of their employer, courtesy of the kafala-style system that operates for domestic visa workers. The idea is that these victims—people on the margins of the margin—should have confidence that their position will be transformed by the national referral mechanism. I wish that were the case.
The Minister has emphasised that the Government amendment aims to ensure that when a domestic worker leaves a situation of slavery, that can help to ensure prosecution. The national policing lead and the director of crime command for the National Crime Agency have been quoted as saying that the Lords amendment would be at fault because it would undermine the capacity of the authorities to secure more prosecutions. When I asked the Minister about the experience of the national referral mechanism in terms of the number of conclusive decisions made compared with the number of successful prosecutions, she did not answer, although the right hon. Member for Slough (Fiona Mactaggart) subsequently gave us an indication. In quoting the figure from the legal advice to Anti-Slavery International, she gave the example of Kalayaan, which supports victims, and mentioned that 29 conclusive decisions had been made. However, there is only on record one conviction of an overseas domestic worker employer, so the link between the national referral mechanism and successful prosecutions is not strong. For that reason, the argument used by Government Members—that supporting the Lords amendment would undermine or wash away any prospect of prosecution—is entirely false.
I understand that the Minister will probably argue that that has been the case with the national referral mechanism historically—we all accept that it has had its flaws—but the reform of the mechanism that is to be implemented follows last autumn’s publication of a review, and of course that review will be subject to pilots that will have to be implemented and then evaluated, which will probably take a year or more. Separately, as we heard from the right hon. Member for Birkenhead (Mr Field) and others, we know that the Government have instituted a review of tied visas by James Ewins. If the Government are conducting a review of tied visas, and if we have acknowledged that there are issues with the national referral mechanism—issues that I hope will be addressed by the reforms that are to take place but which are as yet untested and unproved—surely it would be reasonable for the Government to accept the Lords amendment and then revisit the issues around tied visas, first, following the review and evaluations of the changes to the national referral mechanism, and secondly, after the review by James Ewins has reported. At least victims on overseas domestic worker visas would then have the autonomous right to escape their victimhood.
It is interesting that in one of her interventions today the Minister said that the reason the Government amendment rested so much on the victim co-operating with the national referral mechanism was to give victims control. Surely victims would have control if they could vacate their exploitative employment autonomously and then have the right to seek alternative employment. If the Government are worried that the abusive employer might then escape scrutiny and employ somebody else, that brings us back to the hole in the bucket, dear Liza, of this whole question: the tied visa system is a licence to employers to exploit and abuse employees. If the Government’s best argument against the Lords amendment is the likelihood of employers using the device of the tied visa system simply to repeat the same abuse, the Government should be questioning their position more fundamentally, rather than relying on their amendment.
Mark Reckless
Is the hon. Gentleman not concerned that subsection (b) of the Lords amendment, which would allow workers in these categories to extend for up to 12 months each time, might create a sub-category of foreign domestic servant, separate from the domestic labour market, and that would make exploitation more likely?
Mark Durkan
As any evidence emerges, we will have to consider what it suggests about this sector of employment in general and individual employers in particular. This goes back to some of the arguments the Government have used in support of their own amendment and against the Lords amendment. If a domestic worker were to change their employer under the visa entitlement the Lords amendment would give them, it would be known to an authority, and the authority should be duly asking questions. It would then be for somebody else—perhaps not the victim—to notify the national referral mechanism and for issues to take place there.
In separate interventions today, the Minister seemed to make different arguments. On the one hand, the Government amendment was defended on the grounds that it would lead to more prosecutions of abusive employers by ensuring that victims co-operated with the national referral mechanism and therefore that their victimhood would translate into active cases. That is what we were being told by the policing lead and the National Crime Agency. Then, in another intervention, the Minister made the point that the national referral mechanism was not of itself hidebound in achieving prosecutions and not necessarily police or prosecution-driven in any way. We cannot have both arguments being used in contradictory ways here.
I ask the Government to listen to their own arguments and to think about some of the things they are relying on in respect of their own amendments. They should think again about pressing those amendments; the chances are that they will have to revise them in the light of subsequent reviews and evaluations. The sensible thing to do—and most in keeping with the spirit claimed for this Bill, as being “world-leading” legislation—would be to accept the Lords amendments and, if necessary, qualify them by revisiting the issues in the light of subsequent reviews.
Counter-Terrorism and Security Bill
Mark Durkan Excerpts(9 years, 4 months ago)
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Sir William Cash
There are very sound reasons why the Secretary of State should have the right to determine these questions, as she does in many other cases. I have already made the point that at every stage in conditions A to D the Secretary of State may take only such action that she “reasonably” considers appropriate under the circumstances. The Bill already takes account of the possibility of judicial review.
Mark Durkan (Foyle) (SDLP)
The hon. Gentleman refers to conditions A to D, which refer to the Secretary of State “reasonably” suspecting or considering something. Amendment 22 states that
“the Secretary of State has provided evidence, whether or not conditions A to D are met”.
Provided evidence to whom or to what?
Sir William Cash
Provided evidence to those who will be making decisions about terrorism-related activities. It is not just about providing evidence to the court, which I think is implicit in what the hon. Gentleman is suggesting; it is about providing evidence about the facts described in the amendment. It is not necessary for the case to go to court, and the amendment leaves out the word “reasonable” in this context for that reason. If the Home Secretary provides evidence that is based on the person in question having repudiated their allegiance to the United Kingdom, and if that person has provided evidence of their allegiance to the new state by virtue of their actions and statements, that is enough in itself. That individual has done those things, and that is the evidence in question.
The legislative framework of this measure has already been mentioned, and I say to the Minister and my colleagues—some of whom I thoroughly disagree with on these matters—that it will be extremely difficult to exclude the operation of the charter of fundamental rights in applications of the kind likely to arise under the Bill. That is a serious problem because it will mean that under sections 2 and 3 of the European Communities Act 1972, the charter of fundamental rights will apply. That has already been made applicable—the European Scrutiny Committee has established that without a shadow of doubt, over and against the continuing belief, which has now been abandoned, that that charter does not apply to the United Kingdom. The charter of fundamental rights will apply, as will the Human Rights Act 1998. In those circumstances, the question of whether decisions will be taken by the British courts is a matter of extremely grave doubt; in fact, I would go further and say it is an impossibility. On the basis that the charter of fundamental rights does apply, if a decision were to go to the courts as in the Opposition amendments, it would be decided by the European Court of Justice under matters covered by the charter. That is a fatal objection. If the measure were to be carried out notwithstanding the European Communities Act 1972 it would be another story, but that is not what the amendments would do.
In conclusion, these are grave issues with great sensitivities, beliefs, convictions and principles at stake. There is an honest disagreement, to say the least, between myself and other Conservative colleagues, and I think we should put the British subject first, by which I mean those liable to be affected by jihadist atrocities, and not put forward the generalised view that the human rights lobby would prefer. This matter is too serious and too dangerous. It is not just about allegiance in its own right, but about a physical danger to the British public.
Mark Durkan
Like other Members, I have listened to the debate and to the various points that have been made. What strikes me is that the parties, in the political ballet of this place as people swap Benches, have taken different positions on judicial oversight on previous occasions, adding to the observation that irony in politics is often hypocrisy with panache. It also reflects the fact that people are trying to deal with a Bill that may not be the Bill we designed. Certainly, I have profound reservations about the whole idea of temporary exclusion orders, based on my experience in Northern Ireland where counter-terrorism legislation was often counter-productive. Along with all the other dangers that other hon. Members have rightly highlighted in terms of the dangers posed directly by terrorism itself, we have to remind ourselves of the dangers of feeding what we are trying to fight. If people are trying to foster alienation and radicalism, we have to take care not to propagate the seeds they are trying to sow with legislation that might be misdirected or misguided.
Following your strictures, Mr Deputy Speaker, I will focus on the clauses and amendments before us. I want to make a point that relates to both the Opposition amendments and the Bill. The Bill contains conditions A to D in respect of temporary exclusion orders, while the Opposition new clause proposes conditions A to E. The difference is whether there should be judicial oversight to the issuing of a TEO. In some of the previous exchanges and interventions, questions have been raised about whether the option of a judicial review mechanism would provide a degree of judicial oversight. People have questioned where a court might be asked to look at something differently.
A court may find itself asked to consider whether an order has been issued appropriately, for example when somebody is prosecuted for breaching an order by returning. It may well be that somebody who has been found and charged in the UK, and who is the subject of a TEO, will say, as part of their defence, that condition C of the order was flawed. Part of their defence may be that they were in the United Kingdom when the order was made and that the Secretary of State should have had cause to know that. They may well be able to point to evidence that an element of the security services or police could, would or should have been aware that they were in the United Kingdom at that time. The order might well be challenged at the stage when it is meant to apply most—at the point of prosecution for a breach of the order. That would be a huge point of weakness. The Secretary of State could then be left to try to smother things, under closed material proceedings, and say that no evidence had been given that that person was known to the security services and that the security services knew that they were there.
We have seen that happen often. The hon. Member for Stone (Sir William Cash) referred to the experience of the troubles in Northern Ireland. How many times were there cases in Northern Ireland in which people, who found themselves in court in relation to charges for illegal paramilitary activity, gave evidence as part of their defence, and as part of the obfuscation against the charges brought against them, that they were actually acting as an agent or with the full cognisance of elements of the security services, the police or somebody else? That created a whole situation of disrepute and a sense of scandal around the application of the law, which did not do the rule of law, or confidence in the administration of justice, any good. It helped the propaganda efforts of many of those who were trying to challenge, with a subversive interest, the order of the state. There will be those who say that, in passing the Bill, we have to be alert to those dangers and to the wider malicious agendas of all sorts of nefarious forces and interests. We need to be alert to that.
The Bill states:
“Condition C is that the Secretary of State reasonably considers that the individual is outside the United Kingdom.”
If an order has been issued under judicial oversight on the subject of court approval, when it comes to any subsequent prosecution for breach of the order, the court making the criminal decision will have already known that a court had decided that the Secretary of State was acting reasonably. If the person claims that they were in the United Kingdom at the time of the order, the criminal court would be able to rely on the fact that the person should have challenged the order at that stage, by virtue of the fact that they were in the United Kingdom and could have presented themselves or got a legal representative to make that case or that suggestion, and so could remove that ground of challenge.
I raise that point not as some vague, remote technicality that somebody might say that they were in the United Kingdom when they were thought not to be. In current circumstances not related to the troubles in Northern Ireland, there is a situation—I will not go too deeply into the specifics of a case that is ongoing—where a constituent of mine was believed to have been fighting in Syria. It turns out that in the period the authorities believed that that person was in Syria, the person had in fact already returned to the United Kingdom and to my constituency. That person has been arrested and is now before the courts, but a judge has already said that he is minded to give consideration to the fact that in Syria the person was fighting against Islamic State and against the Assad regime.
That is not the material point I want to address, but the fact is that there have been circumstances where the authorities seemed to believe for a period that a person was outside the United Kingdom when the record now shows that they were inside the UK. The person may not have been making it evident, or going out of their way to advertise the fact that they were present in the UK. However, if the arrest of that person had been on the basis of breaching a TEO, they could well have been able to say that it did not stand or apply because they were in the UK and that the authorities should have known that.
The fact is that we have experience in Northern Ireland, and not just in Northern Ireland, where elements of the security services have known people to have been involved in certain things and have not necessarily shared that information with all the other forces of law and order, including the police service. We are to believe, from the de Silva report and so on, that often, and for their own purposes, different elements of the intelligence and security services know things that they do not share with others, and allow Ministers to act, speak and issue orders in full ignorance of what the intelligence and security services know. We cannot rule out that possibility in the future for all sorts of reasons. The best way of proofing against the risk of TEOs being brought into disrepute whenever someone is arrested for breaching the order, the best way of protecting the Secretary of State’s position in those circumstances, and what Members who support the Bill more than I do want to see, is judicial oversight when orders are made.
Sir Edward Garnier (Harborough) (Con)
The experience of the constituent of the hon. Member for Foyle (Mark Durkan), which I was interested to learn about, illustrates the difficulty that faces us. I do not suppose that anybody in the House—certainly not the Home Secretary or the Minister—wants to do anything that makes it more difficult to catch terrorists and others who wish to do us, our allies and our citizens harm. None the less, in our enthusiasm to deal with the problem, we need to come up with the best answer, and in my view the best answer includes much greater judicial oversight than is currently in the Bill.
I share the great honour, with my hon. Friend the Member for Stone (Sir William Cash), of being a former shadow Attorney-General. In fact, I was shadow Attorney-General twice, although I do not know whether that makes my arguments twice as good or half as good—I do not imagine it is of any relevance whatsoever. However, I think we need to extract from the Government a little movement. I hope that the Minister, in his response, can reassure me on this matter. I do not mind whether that movement comes in this House or the other place. I do not share the objections of my hon. Friend the Member for Cities of London and Westminster (Mark Field) to altering the Bill in the House of Lords. We are a bicameral Parliament, and if the Lords can come up with an answer that is politically acceptable, elegant and efficacious, let them do it. If it satisfies me and the Government, I am all for it.
Counter-Terrorism and Security Bill
Mark Durkan Excerpts(9 years, 5 months ago)
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Caroline Lucas
I have no problem with talking about barbaric ideology or about actions that are barbaric, but if we frame the whole debate in those terms, we do not get any closer to being able to understand why some young people are getting more and more attracted to going out to take part in wars in Syria. We certainly do not get any closer to understanding how we can get them back safely and deradicalise them. All of us share that as the overriding priority. What we want to do is to keep our country safe by trying to ensure that people who get involved in this kind of activity are prevented from doing it in the first place and by deradicalising them if and when it happens. I am simply arguing about the best way to reach out to those people. I am not sure that what the hon. Gentleman is describing is the best way to do so.
Mark Durkan (Foyle) (SDLP)
The situation in Northern Ireland has already been mentioned, where the emphasis has been on a process of inclusion, rather than one of labelling and exclusion. Indeed, there is a veritable infrastructure for inclusion through EU moneys and other mechanisms that were used precisely to work at community level to ensure that people had a real stake in new beginnings and new processes. Attempts to exclude through broadcasting bans, vetting of community funding and all the rest of it did not work. We have to take people at the level they are at so that they can move forward while thinking that they retain the integrity of their outlook.
Mark Durkan
The hon. Gentleman is exactly right to warn of the dangers of hon. Members helping to feed the very things they say they want to fight. If there are those who are out to sow the seeds of radicalism, extremism, cynicism and alienation, people should take care not to propagate those seeds by measures that, in relation to international policy, only feed the cynicism of those who see them as double standards, or in relation to this country, even propose to create a twilight zone around the very concept of citizenship. How does that help to counter the very disillusionment of which the hon. Gentleman speaks?
Pete Wishart
I am grateful to the hon. Gentleman because he is right to say that we must see this in the round. That is one of the reasons why I have difficulties with what is suggested in the Bill. I will not support the amendment moved by the right hon. Member for Salford and Eccles (Hazel Blears), as I think she knows, because I just do not like this type of language. It does not really address the difficulties we face and the things we have to take on. In looking at anti-radicalisation or ensuring that our communities are resilient in fighting against such messages, as the hon. Member for Foyle (Mark Durkan) set out so eloquently, we must work holistically—in the round—and ensure that that is combined and merged with all other community issues that would help us.
We are trying to work towards that in Scotland. Historically, we have taken that approach. We have had responsibility for the Prevent programme for eight to 10 years, and I believe that we have made real progress. With our distinct legal system, we have our own means of doing this sort of thing, and we are making great attempts and efforts to do so. We just take a different view of such things: we have a different type of community and a different approach to the issues that have emerged during the past few years.
The Minister for Security and Immigration is now deep in conversation, but I hope he will allow us to pursue our agenda on such matters. Scottish public bodies that were initially listed in schedules 3 and 4 are no longer included, so I hope that the Minister, when he finishes his conversation, might be of a mind to allow us to make our own progress when it comes to such things. The Minister is now back with us. I was saying—I know he missed this—that Scotland has been excluded from the schedules of public bodies. I know that there have been conversations with the relevant Scottish Minister, and that the Minister for Security and Immigration understands that we have our own particular agenda for this sort of thing.
I hope that in time—perhaps amendments tabled during the remaining stages of the Bill will help him to come to this conclusion—we can have our own strategy without the combat and the fighting language that we do not like. We do not think it works or believe that it adds much to achieving the objective that we in this place all want, which is to make our communities safer and resilient enough to ensure that we get the right type of result and response. I hope that the Minister will be open to further suggestions that will exclude Scotland from part 5 and allow us to pursue our own agenda. We do not like some of the language, and we do not believe it works. Perhaps even in his response, he could satisfy me and my colleagues that we will be allowed to pursue our own agenda and do this our own way.
Counter-Terrorism and Security Bill
Mark Durkan Excerpts(9 years, 5 months ago)
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Mr Hanson
I am grateful to my hon. Friend for that comment. She will see that under paragraph 1(7) of schedule 1, passport means “a United Kingdom passport” or
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom, or by or on behalf of an international organisation”.
It is imperative that we consider the issue of appeals because foreign citizens or citizens of the UK might have two passports.
If information is provided about an individual, this measure will allow the serious act of removing their passport and stopping them travelling. Although it will no doubt be very well researched, very well executed and very well managed by the security services, the police, immigration officers and others who are allowed to undertake these matters under schedule 1, the possibility of wrong or disputable facts will always be there. Those wrong or disputable facts will mean that a UK citizen loses their liberty, their passport and their ability to travel. We need to be cognisant of that issue.
Mark Durkan (Foyle) (SDLP)
Further to the point that was made by the hon. Member for North Down (Lady Hermon), if a passport that was issued by a state other than the UK was seized, does my right hon. Friend envisage that that state would seek to join the appeal against the seizure? Does he believe that Ministers have fully taken account of the diplomatic implications of that?
Mr Hanson
Again, that demonstrates why the issue of appeals is important. Paragraph 1(7) of schedule 1 refers to
“a passport issued by or on behalf of the authorities of a country or territory outside the United Kingdom”.
I can envisage a situation in which an individual who is the citizen of and holds the passport of not, dare I say it, the Irish Republic, but another country in the European Union or even a country outside the European Union, but who is resident in or travelling from the UK, is suspected for a range of reasons of involvement in terrorism-related activity under paragraph 1(10) of schedule 1. Again, the UK would be in the difficult situation of depriving an individual from another country of their passport on the basis of a range of suspicions that may or may not prove to be factual. I am in danger of repeating myself and am being careful not to do so, but we need to examine such facts carefully. The purpose of amendment 17 is to stimulate a debate about that.
James Brokenshire
I understand the hon. Lady’s sincerity and the manner with which she has advanced her point, and we must be vigilant about risks and threats that may be posed to the United Kingdom, whether in Northern Ireland or any other part of the UK. There is good work between the Police Service of Northern Ireland and the Garda Siochana, and the United Kingdom and the Republic of Ireland have a clear joint interest in ensuring border security. Indeed, we very much consider the common travel area to be an external border, which is why we work closely with the Republic of Ireland to ensure that it remains effective and in no way goes down the path mentioned by the hon. Lady. The Government must maintain that sense of vigilance and focus.
Mark Durkan
I represent a border constituency and we do not particularly want the border demarcated further in ways that applied historically. Schedule 1 defines the border area as one mile from the border with the Republic of Ireland. Is that as the crow flies, or when travelling? If there is a dispute about where the person was stopped and had their passport seized, how will the question of where the seizure took place be resolved?
Modern Slavery Bill
Mark Durkan Excerpts(9 years, 6 months ago)
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Mr Frank Field
I, too, want to pursue the theme just followed by the hon. Member for Enfield, Southgate (Mr Burrowes) in congratulating the Government, but drawing attention to just how important new clause 11 is. The Home Secretary made it very plain in her first article in The Sunday Times that she wanted a clause on supply chains in the Bill. I therefore congratulate her, her very able Minister and the person in No. 10 who changed his mind at this very late stage in the Bill’s passage. Heaven rejoices at the sinner who repents even at the eleventh hour, and some credit should go to the Prime Minister for changing his mind on this matter.
My hon. Friend the Member for Kingston upon Hull North (Diana Johnson) has played a valiant role in spearheading our approach to the Bill and has borne all the heat of the day on it. However, I think we all accept, whatever efforts we have put in, that the legislation is the easy part of the process. The next part will be very hard—to get a genuinely mass consumer movement of people who do not buy goods if they are not kitemarked as being free of slavery.
As we draw stumps on this House’s proceedings on the Bill, it is important to commend it, as the hon. Member for Enfield, Southgate has just done—it will not just be a good Bill, but a world leader when it leaves the other place—but the real work will be on enforcement and on convincing consumers that they have the vital job of not buying goods that are tainted by slavery.
Mark Durkan (Foyle) (SDLP)
In following the right hon. Member for Birkenhead (Mr Field), I want to acknowledge the Minister’s efforts in making good the serious deficit in the Bill, but also those of the right hon. Gentleman and many other colleagues during the pre-legislative scrutiny, on Second Reading and ever since. Those efforts by him and the many others who spoke on Second Reading and in Committee have reflected the very strong concern of some of the groups that have worked so hard to support and promote the Bill and that understand the issue so well.
I am one of those who can take yes for an answer, now that the Government have made good on this matter. However, I would say, “Yes, up to a point, but maybe it could be improved.” I believe that the Bill could go further. The hon. Member for Kingston upon Hull North (Diana Johnson), who tabled new clause 5, has shown that there are important issues. The headings given in subsection (3) are clear and useful, and it is right for them to be in primary legislation, rather than left to remote chance by way of secondary legislation.
New clause 5 is also important in what it would do with respect to the Companies Act. I understand what the Minister said about not only using that Act as the way to deal with the problem, but how it brings in very clear corporate responsibilities. In that context, it also highlights relevant professional obligations, which would give real meaning to what the Government and others are trying to encourage in relation to ethical investment, and in relation to the understandings we should all have about any investments—all the new pension provision and everything else—for which we are the source of the money.
The hon. Member for North East Cambridgeshire (Stephen Barclay) has referred to financial services legislation. We have said that more and more needs to be done to ensure full and due transparency in that context. We should complement such provisions in the Bill. I therefore hope that the Minister—I support her new clause 11—can see her way to accepting new clause 5 as well.
I tabled two of the new clauses in this group of amendments. The Minister has addressed new clause 15, but let me point out that throughout the gestation of the Bill, we have been told that it is meant to be world leading. New clause 15 is an attempt to bring in the clear standards in EU directive 2011/36/EU on preventing trafficking in human beings. If the Government are at pains to consolidate and codify much existing law in the Bill and to present it as world-leading legislation, the question arises whether we should not also use it to show that we are at least matching and adhering to international standards and obligations, including EU ones. My clause on the legal liability for the beneficiaries of slavery would be consistent with the EU directive, and I see no reason why we should not explicitly ensure that our legislation is up to that standard.
New clause 14 seeks to go further on questions of the supply chain and sourcing, and the possible use of slavery or exploited labour. We are meant to be discussing world-leading legislation, but the new clause reflects legislation that was introduced 84 years ago in the United States of America. We hear a lot about Californian legislation on supply chains, but the Tariff Act 1930 in America gave power to prohibit the importation of
“goods, wares, articles, and merchandise mined, produced, or manufactured wholly or in part in any foreign country…by forced labour.”
The new clause is therefore hardly a radical view or innovation, and the Californian legislation—referred to often in debates on the Bill—exists in wider US legislation.
New clause 14 does not just rely on language in the 1930 legislation, which puts responsibility on the Secretary of State at the Treasury to prescribe the necessary regulations, but it also reflects the essence of the code of federal regulations in the United States, which establishes the process whereby anyone can petition the Department of Homeland Security. That explicitly provides for:
“Any person outside the Customs Service who has reason to believe that merchandise produced in the circumstances mentioned is being, or is likely to be, imported into the United States.”
The United States legislation does not guarantee that the state will fully police all those issues, but it indicates that it will respond to legitimate petitions or legitimately presented evidence that gives rise to concern, and that it will act. Legislators in the US have ensured that the state reserves that power to act to prohibit the import of a good.
In the Government’s new clause 11, the onus is—understandably—on companies, which have to be able to show what they are doing regarding their supply chains. We wanted supply chains included in the Bill not as a badge for companies, but as a shield for workers in developing countries and other places—including the UK—who could be exploited. The difference is between this measure being a corporate badge or a shield for human beings. If companies have only to present what they say they are doing, and consumers then make their judgment and choice, why—if we are legislating for company responsibility but also for consumer responsibility and activism—is there still no rule for the state or Government?
New clause 14 clearly states:
“The Secretary of State shall have the power to prohibit the import at any point of entry to the United Kingdom of any good, ware, article, or product mined, produced, or manufactured wholly or in part in any foreign country that can be demonstrably shown to have been produced by slavery, forced labour, child labour or with the involvement of human trafficking.”
By rejecting that new clause we are saying that even if exploitation can be demonstrably shown, we do not want the state or any Secretary of State to be able to act against that. Whether in relation to the T-shirts that were in the newspapers recently, or anything else, we are saying that when such issues are raised, we do not want anybody or any part of the state to have responsibility for saying, “The nature of those products in terms of the quality of the supply chain is clear, but it is nobody’s job to move to do anything other that what companies are inspired to do, or what consumers are mobilised to do.”
Mark Durkan
On consumer action, what are the Government’s intentions with regard to public procurement, because the public purse will be a significant consumer? On sourcing and supplying, will there be a Government public procurement standard for companies?
Karen Bradley
I addressed that point briefly in my opening comments, but I will come on to it again in a moment. I will just finish the point about enforcement.
The courts can force companies to disclose, but that is different from the issue that some companies may make disclosures that consumers, shareholders and campaigners feel show that inadequate steps are being taken to eliminate slavery from supply chains. The courts can act if no disclosure is made, but there is action that civil society can take if it feels that companies are not making appropriate disclosures. The Government believe it is for civil society to put pressure on businesses that are not doing enough to eliminate modern slavery from their supply chains. The Government’s new clause makes this as easy as possible by ensuring that disclosures are easily accessible. The link to disclosure must be in a prominent place on a business’s website home page.
Before coming on to public sector procurement, I would like to address the concerns expressed by the hon. Member for Foyle (Mark Durkan) on the extent of the new clause. I can confirm that the new clause on supply chains will apply to England, Wales, Scotland and Northern Ireland. This is made plain by later amendments to be taken later. I want to put it on the record that I am grateful to the Northern Ireland Executive and all the devolved Administrations for the excellent work we have done together to ensure that this provision can extend to the entire UK. He will know, from our discussions in Committee, that there were points on which we needed agreement—not just on this matter, but on many others as well. I am pleased that we have made so much progress. It was important throughout that this was not Westminster imposing on the devolved Administrations. Action has been taken because the devolved Administrations wanted to take that action.
On public sector procurement, all public sector suppliers are required to comply with applicable law, including relevant human rights and employment rights law. UK public procurement policy is that social, environmental or ethical issues can be taken into account in the procurement process where that is relevant, proportionate and non-discriminatory. We expect public sector procurement to be as transparent as other procurement, which is covered elsewhere. We will consult on this matter, and I encourage people who are concerned to respond to the consultation. It should be noted that whatever action is taken will be taken only following the affirmative procedure to ensure that Parliament has its say. We will ensure that points are put forward.
Mark Durkan
The hon. Member for Kingston upon Hull North (Diana Johnson) referred to my amendment 138, which is mainly what I wish to address. However, I fully endorse what the hon. Member for Enfield, Southgate (Mr Burrowes) said about the amendments standing in his name and the wider issue of consent, which is also touched upon in amendment 143.
Amendment 138 aims to make good a clear deficit in the Government’s provision in the Bill for a statutory defence. That defence is inadequate and certainly is not fit to deal with the position of children. The amendment seeks to change that so that child victims of trafficking would be fully protected. Clearly, children have already suffered if they are detained in the process, and if they find themselves subject to a prosecution or even the speculation about a prosecution. That becomes traumatic for children who have come through trafficking, slavery or exploitation, as it would for any victim. So it would be wrong to have a requirement that children have to show that there was compulsion—that should not exist in law. The presence of any other means including compulsion should be irrelevant when defining a child as a victim of trafficking or exploitation. Children in such a situation will be frightened, confused and traumatised. They should not face further isolation and distress and all the other psychological pressures as they go through what will be to them a fairly unknown process.
Despite the Crown Prosecution Service guidelines, children are still prosecuted. It should be an imperative for us in this legislation to stop that occurring in the future, and this Bill provides us with an opportunity to do that.
I point out to the Minister that in July the UN Committee on the Rights of the Child urged the Government, in relation to trafficked children and to all children covered by the optional protocol on the sale of children, to establish
“a clear obligation of non-prosecution in the criminal justice system and ensuring that [children] are treated as victims rather than criminals by law enforcement and judicial authorities.”
Basically, that is what amendment 138 tries to do; it tries to bring the Bill up to that standard. However, I recognise that there is the wrinkle in relation to schedule 3, and for that reason amendment 138 addresses a very important issue that needs to be considered further. I will not be pressing the matter to a Division, because, as the hon. Member for Kingston upon Hull North has said, there is an outstanding issue in connection with it.
Karen Bradley
I am grateful to all Members for tabling and speaking to a number of amendments that relate to the offences set out in clauses 1 and 2, the ability to seize the assets of those convicted of offences and the defence for victims who are compelled to commit an offence, as outlined in clause 41.
We had a thorough, detailed and lively debate on the offences and their practical application in Committee. I am extremely grateful to all Members of this House and others who have contributed to the debates on the offences and have made their thoughts known to the Government to enable us to continue our thinking.
I made it clear in Committee that the Government’s approach is to consolidate and simplify existing offences into a single Act, which will make it easier for law enforcers to understand. We want to see clear offences that can be used effectively by prosecutors and others to convict serious criminals who will now face a potential life sentence.
The offences in the Bill deliberately tackle serious criminal conduct that can be said to amount to modern slavery. Given the time available and the amount of discussion that we have had, I want to put it on the record at this stage that the Government continue to listen to all points that are made on this matter. We want to ensure that we reflect the concerns that have been raised and that we have clear and simple offences that achieve the convictions that we all want. Members should remember that we are looking here at international conventions and protocols that are written in civil law, which is a different type of law. Putting them straight into UK common law sometimes creates unintended consequences, and I am keen to ensure that we do not do that.
Clause 1 targets those who hold a person in slavery or servitude or who require another person to perform forced or compulsory labour in this country, without any requirements for movement. The clause 2 offence targets a different type of wrongdoing, which is the movement of human beings with a view to exploiting them. That different type of wrongdoing has been the subject of international legal instruments such as the Palermo protocol and the EU directive. That is fully justified because we know that there is an international and national trade in human beings. It is right that we have a separate offence targeting those involved in the movement of people to be exploited, and that is what this offence achieves.
These measures are part of a wider strategy to improve the law enforcement response to modern slavery, and to increase the number of successful prosecutions. Let me highlight that there is no magic bullet by which we can transform the situation simply by amending the technical definition of the offences. The Committee heard from the Director of Public Prosecutions that the offences set out in this Bill are clear and welcome. However, the issue is often not the definition of the offence, but getting the evidence required for a conviction, which is a point that was made by my right hon. Friend the Member for Uxbridge and South Ruislip (Sir John Randall).
I want to touch on the Kinsella case, which the shadow Minister raised. We discussed a number of cases in Committee. It is important to put it on the record that the offenders in that case were convicted of false imprisonment, and that offence carries a maximum of a life sentence, whereas under the current law, slavery carries a maximum of only 14 years. It is completely understandable that those offenders faced the criminal charge conveying the highest possible penalty, but this Bill will ensure that slavery and trafficking offences carry a maximum sentence of life imprisonment, and I want to see those offences used in prosecutions in the future. So the solution to obtaining more prosecutions is better work by law enforcement, better support for victims and witnesses, and clear offences with the more severe penalties set out by this Bill.
New clauses 3 and 4 and the amendments seek in different ways to widen the scope of the offences to create a new criminal offence of exploitation, which will carry a life sentence. I fully understand why right hon. and hon. Members have tabled such amendments. I share the concern to ensure that this Bill criminalises modern slavery effectively. The wider criminal law needs to tackle exploitation that should properly be criminal but might fall short of the conduct required for the serious offences in this Bill.
I know that we debated this issue at length in Committee and I continue to look seriously at where there may be any gaps in the legislation. I have been absolutely clear throughout that our approach to offences is to take seriously how they will work in practice. For example, we have taken advice from the Director of Public Prosecutions. The director gave evidence in Committee that
“We much prefer the clarity of the offences in the Bill as drafted by the Government.”––Official Report, Modern Slavery Public Bill Committee, 21 July 2014; c. 4, Q2.]
rather than the more complicated and confusing alternative presented by the pre-legislative scrutiny Committee, which included exploitation and child exploitation offences.
Introducing exploitation offences would risk causing confusion. “Exploitation” is potentially a very broad term, and there is a real risk that we would capture much wider behaviour than was ever intended in this Bill, which focuses rightly on the very serious crimes of slavery and human trafficking. The risk is that, by making the offences too broad, the public will no longer be clear on the conduct that we are targeting through very serious criminal offences that carry a life sentence as a maximum. And the effect of the Bill on law enforcement will be diluted, as the conduct we are targeting will be less clear and so will law enforcement’s focus on the victims of serious crime. It is only right and proper that, where we are dealing with less serious conduct, we prosecute those responsible using less serious offences.
A second issue raised by new clauses 3 and 4 is whether separate child offences are needed in this Bill. In some circumstances, child offences are helpful to enable a tougher sentence to be given to criminals who target and abuse children. This Bill introduces a maximum of a life sentence for the main offences in relation to slavery and human trafficking and current sentencing guidelines already highlight offences against children as an aggravating factor for sentencing purposes. There is no practical benefit in establishing a separate child-specific offence when offenders already face the maximum penalty possible—life. That is why there is no need for a separate child murder offence.
The Director of Public Prosecutions gave clear evidence to the Committee that
“If you separated out offences into adults and children, it would make it more complicated because we know from the number of cases we prosecute that defining and identifying someone’s age is often extremely difficult…There is absolutely no need for it to be separated out; that would make it more complicated and more difficult to prosecute some of these offences.”––[Official Report, Modern Slavery Public Bill Committee, 21 July 2014; c. 6, Q11.]
So I do not believe that a separate child offence would help to deliver the objectives of the House.
Amendments 135, 136, and 143 seek to remove any requirement for consent to be considered by the court when looking at clause 1. While I do not favour the wording of the amendments tabled today, which could make prosecution harder, I want to be clear that the Government are open to clarifying this aspect of the offences. We have already altered the Bill following pre-legislative scrutiny to make it clear that the court could look at all the circumstances when determining whether an offence had taken place, including any vulnerability of the victim. I am now seriously considering the issue of consent in clause 1 and whether the law could be clarified to make it clearer that consent does not preclude a determination that a child is being held in slavery or servitude or required to perform forced or compulsory labour.
Turning to the trafficking offence, the pre-legislative scrutiny Committee also raised a concern that the offence in the draft Bill might not be as broad as the international definition, for example on receipt or harbouring of the victim. We responded and made it clear in the Bill that arranging or facilitating the travel of another person includes all of the ways through which human trafficking may be committed, as set out in the Palermo protocol and EU directive. So a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words reflecting those used in the international instruments.
In Committee, we debated whether there should be a requirement for travel in the offence. Those instruments are explicitly concerned with “human trafficking”. The evil that we are trying to tackle is trafficking, and clearly trafficking involves movement or travel of the victim.
On asset recovery, I am grateful to my hon. Friend the Member for North East Cambridgeshire (Stephen Barclay) and the right hon. Member for Birkenhead (Mr Field) for raising the important issue of asset recovery in relation to modern slavery offences. We have amended the definitions of modern slavery offences to make them lifestyle offences for the purposes of the Proceeds of Crime Act 2002 and introduced a reparation order, but we are seeking through the Serious Crime Bill to look at a number of other measures that would tighten up asset recovery overall. I hope that my hon. Friend and the right hon. Gentleman will allow us to have that debate when the Serious Crime Bill reaches this place.
The provisions of the Proceeds of Crime Act are already tougher—
Child Abuse Inquiry
Mark Durkan Excerpts(9 years, 6 months ago)
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Mark Durkan (Foyle) (SDLP)
I know that the sensitivity expressed towards survivors extends also to the victims who unfortunately have not survived up to this point. The Home Secretary knows that many of us in Northern Ireland have not been persuaded by the line call in respect of Kincora. Regardless of whether people are giving evidence to the Hart inquiry or to the panel inquiry, who will make the call in relation to the Official Secrets Act? She has referred to agencies that will co-operate. Will those agencies control the evidence that might be given by former officers or agents, or will those people be able to give evidence to these inquiries on an unfettered, unfiltered basis?