House of Lords
Monday, 23 February 2015.
Prayers—read by the Lord Bishop of Carlisle.
Death of a Member: Lord Mackie of Benshie
My Lords, I regret to inform the House of the death of the noble Lord, Lord Mackie of Benshie, on 17 February. On behalf of the House I extend our condolences to the noble Lord’s family and friends.
Business Rates: High Streets
To ask Her Majesty’s Government, in addition to business rates reform, what steps they are taking to support high streets in the United Kingdom.
My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest in that a member of my family works in the retail trade.
My Lords, since 2010 the Government have helped to create over 360 town teams and given over £18 million to towns, funding successful initiatives such as the Love Your Local Market and the Great British High Street portal and awards. In addition to over £1.4 billion in business rates support, we have eased restrictions on planning and are strengthening the role of business improvement districts and tackling aggressive parking enforcement.
It is very welcome to be reminded of all that the Government have done so far. Indeed, it is fair to say that this Government have done as much as any Government to help business in general. Nevertheless, are Her Majesty's Government aware that there is a real crisis in the high street? In particular, the high street is facing increasing competition from online, where businesses pay no business rates, as well as from out-of-town stores, where there is free parking and lower business rates? Against that situation, is it not bizarre that a 2% business rate is to be imposed, when the CPI is 0.5%? Against that, will my noble friend ensure that the review will bear those points in mind?
My Lords, I thank my noble friend for pointing out what this Government have done to help the high street and businesses in general with business rates, relief corporation tax, help with national insurance contributions and easing up on some of the parking enforcement issues that are holding trade back.
My noble friend asked about online trade putting further pressures on the high street. In fact, online trade has in some ways benefited the high street through the massive increase in click and collect. I do not know about my noble friend, but every time I click and collect I click and collect some more while I am there. He also talked about out-of-town shopping centres and parking. What he says is true but, as I have said, we are clamping down on harsh enforcement. He also asked about the review of business rates. That is forthcoming, and there will be details on that shortly.
My Lords, it is not a question of clicking, picking up what you have bought and buying a bit more; the Question is really about people shopping on the internet and the goods being delivered to their front door. In many towns and villages—this is most certainly happening where I live—shops are closing.
My Lords, many online retailers also have a presence on the high street. My point was about the big increase in the popularity of click and collect. Online trade is certainly increasing more and more each year, but in December high street retail sales also increased, compared with the previous December.
My Lords, is the Minister aware that many local authorities, especially in London, are saying that the fairly recent planning deregulation to allow the conversion of offices into residential properties is having a very damaging effect on their local economies? Will the Government consider establishing an independent review to get some accurate information on the effect of this change?
My Lords, a report by the distressed town centre property task force acknowledged that the UK has too much retail space. Clearly, we also have a huge demand for housing. Houses in town centres can help to revitalise our high streets for both the daytime and the evening economy, making them much more vibrant and safe places to be.
My Lords, I declare an interest as an elected member of Lewisham Council. Our high streets are in crisis. Recent figures show that 16 shops a day are closing in our town centres. When will the Government give local authorities real powers through planning and other processes to enable our high streets to have the variety of shops that local communities need and to make them more sustainable?
My Lords, in fact, vacancy rates were down in the second half of 2014 compared with February 2012, although I accept that there will be some regional variations in that. As I said in answer to a previous question, retail sales were up in December 2014 compared with December 2013, and click and collect is becoming very popular. The Government have outlined a number of measures, many of which are being implemented, on planning, clamping down on the use of CCTV in parking enforcement, help with employers’ national insurance contributions and corporation tax. Corporation tax will be down to 20% by April 2015. That is a reduction of 8% since 2010, making us one of the countries with the lowest corporation tax in the G20, and by far the lowest in the G7, and therefore making our high streets a good place to do business.
My Lords, while my noble friend is absolutely right to draw attention to the measures which the Government have taken, and the reduction in corporation tax is very welcome, online retailers such as Amazon do not pay any corporation tax or any business rates and are therefore at very considerable competitive advantage compared with ordinary high street retailers. Is it not time that we looked at the tax system with a view to recognising that the world of retailing has changed because of technology?
My noble friend is absolutely right: the world of retail has fundamentally changed over the last 10 to 20 years, with online sales hugely increased. Actually, our high streets are being used for a different purpose than they were 20 years ago, for example. The Government are committed to tackling the avoidance of business rates and have published a discussion paper, which closes for comments at the end of this month.
My Lords, the Minister has already referred to the threat from online shops to the neighbourhood high street and to the action that the Government are taking against “harsh enforcement of traffic regulations”. Is she aware that this is often not manifest on the ground, and that enterprising new firms such as Hubbub, which are trying to enable high street shops to compete by providing a home delivery service, are finding huge problems with any enforcement of traffic regulations; they are simply unable to load in the high street? Can she be more specific about the action she is taking to tackle this problem?
My Lords, there are a number of initiatives, including business improvement districts, to provide flexibility certainly around loading areas, but there seems to be quite a mixed picture: in some areas, parking enforcement is overly harsh, whereas in others it is perhaps not being enforced enough. CCTV is now being used for a purpose for which it was not originally intended.
VAT: Colleges and Schools
To ask Her Majesty’s Government what assessment they have made of the effect of VAT on the finances of sixth form colleges and non-maintained special schools.
My Lords, the Department for Education estimates that for sixth-form colleges their VAT costs are equivalent to approximately 3% of their income. Non-maintained special schools are able to cover the full costs of provision, including VAT costs incurred, from their total funding from the Education Funding Agency and local authorities. The effect of VAT on their finances is therefore minimal.
My Lords, this is not a satisfactory situation at all, and has been the subject of a letter written by 76 Members of Parliament of all parties to the Education Secretary. They make the point that maintained schools and academies are able to reclaim VAT on their purchases but sixth-form colleges are not. The effect on those establishments is the loss of around £335,000 a year, even though they are highly graded by Ofsted and, indeed, perform better than the majority of other schools and colleges, being rated as good or outstanding. As far as the special schools are concerned, my information is a little different from that which the Minister has just given us, and I should be grateful if she would look again at that information, because my understanding is that they are at a serious competitive disadvantage compared with local authority special schools and special academies. I am thinking particularly of colleges such as New College Worcester, which caters for blind and partially sighted pupils.
I entirely agree with the noble Lord about the high standard of sixth-form colleges and the great service they provide. The position is that schools are able to retain VAT costs because they are part of the local government sector, and academies are able to reclaim VAT beca use specific legislation allows them to do so. Sixth-form colleges are liable for VAT because they were categorised as private sector organisations by the Office for National Statistics. Non-maintained schools would normally include VAT in the fees they charge outside and, in that respect, they would be able to reclaim the VAT that they have paid.
My Lords, is it not strange, not to mention unjust, that a 16 year-old studying at a secondary school receives more funding than a 16 year-old studying exactly the same subjects at a sixth-form college? Is this not doubly strange when research shows, as my noble friend alluded to, that sixth-form colleges provide better education outcomes and better value for money, and do more to improve social mobility? Given all that, does the Minister agree that relentlessly cutting the 16 to 19 education budget is not the cleverest idea that the Government ever had? Would she, by any miracle, support our policy on this side of the House to protect the 16 to 19 education budget and increase it by the rate of inflation, so that we invest in all our young people, including those studying at sixth-form colleges?
The noble Baroness is a wonderful optimist in her assumption. Of course we would do so in an ideal world, but, as we know, funding has been restricted. The Government’s policy has been to focus on those earlier years, where the most difference can be made to young people’s aspirations and futures. The differential in funding has been as a result of successive decisions by successive Governments. It is not just the coalition Government who have brought about this change.
As no one else is standing up, I ask the Minister why Sure Start places have been cut if that is the case? Secondly, these sixth-form colleges are providing better outcomes, so let us protect that budget. That is a policy commitment in our manifesto and it would be fantastic if the Government could give sixth-form colleges the same protection that we are offering.
Sure Start is somewhat wide of the remit of this Question, but the likely annual cost to the department of reimbursing sixth-form colleges for their VAT costs is currently estimated to be £31 million. That, in the totality of things, is not something that we can currently afford. We intend—or we would have intended—to look at this issue again in the event that we are in the next Government. We cannot predict what will happen for the next Government, but we hope that we would be able to level the playing fields rather more than they are at the moment.
Will my noble friend confirm that the Government intend to maintain the current tax arrangements in so far as they affect independent schools, and reject completely the proposals put forward by the Labour Party towards the end of last year?
Once again, that is somewhat outside the remit of this particular Question, so it would probably be wisest if I let it lie.
My Lords, given the answer that the noble Baroness gave to my noble friend, £31 million is being transferred from one hand of government to another. Why on earth can that not be reimbursed to the colleges?
If we extend the scheme to the sixth-form colleges that are charities it would make it much more difficult for the Government to justify not providing similar systems for other charities. According to the Treasury, providing a VAT refund to all charities in this way would simply not be affordable at the current time.
There is an injustice here. We are talking about children aged up to 18 and then, of course, those in early adulthood, who are being treated in a different way from other children going through the same educational process. I find it difficult to understand why we are talking about a level playing field at some future stage, when here is an injustice at this moment.
As I said, the categorisation of sixth-form colleges was a matter for the Office for National Statistics, which categorised them as private sector organisations, hence the different approach to funding. In spite of the fact that the colleges cannot reclaim VAT, they have other benefits from being in the private sector: for instance, they can borrow and provide other ways of raising money to keep their provision going.
My Lords, how can the Minister justify her Government’s policy, which has led to pupils in different categories of school getting totally different amounts of money? Free schools have been overfunded, as have academies; we now have another example, which the noble Baroness just referred to. Why on earth will the Government not treat every pupil and student as equally important, instead of trying to bribe, at worst, or muddy the water by allocating the money badly? We are not asking at this time for more money, but for fair allocation.
As I said, this is not a matter that has been a decision of this Government. Successive Governments have had this distinction between schools and sixth-form colleges. Were the money there, of course we could do amazing things, but that is currently the position.
Crown Prosecution Service
To ask Her Majesty’s Government what assessment they have made of the performance of the Crown Prosecution Service following recent cuts to its budget.
My Lords, by next year the Crown Prosecution Service will have successfully achieved cash savings of 24% since 2010-11 through structured cost reductions. By focusing on reducing the costs of accommodation, IT and HQ functions, the department has maintained or improved performance against many key performance measures.
My Lords, I thank the noble and learned Lord for his Answer. We all of course want to see the Crown Prosecution Service succeed. It has a vital role to play in our criminal justice system and, in recent years, has been particularly well led. However, as part of the cuts to which the noble and learned Lord referred and the 24% real-terms reduction in its budget, at the present time it has to advise and prosecute, among other things, some very old, serious and complex sex allegations. Does the noble and learned Lord support the recent request from the Director of Public Prosecutions for an up to £50 million increase in this year’s budget? What steps are his department taking to obtain the Chancellor of the Exchequer’s support?
My Lords, I think I am right in saying that this is the first time the noble Lord, Lord Bach, has been at the Dispatch Box in his new role as Shadow Attorney-General. I want to congratulate him on his appointment to that role. I share his view that the Crown Prosecution Service has performed exceptionally well and has been exceptionally well led in recent times. With regard to his specific question, he is absolutely right to say that there have been a number of large and complex cases, including historic child abuse, violence against women and terrorism matters. CPS officials are working closely with Her Majesty’s Treasury to analyse and manage the impact on the prosecution of the increasing number of large and complex cases to ensure that there are enough resources in place to tackle crime effectively and efficiently. The department will continue to assess and reprioritise resources where possible. Obviously, future funding will be determined as part of the spending review process in the normal way, informed by the analyses which are taking place.
My Lords, have the Government yet considered the recommendations of the recent Leveson review on efficiency in criminal proceedings, particularly concerning charging decisions, case ownership involving continuity of prosecution decision-makers and the early instruction of prosecuting counsel, and how these might help the CPS to increase efficiency within its budget? Have the Government also considered Leveson’s recommendation for 12 to 18 months of transitional funding to enable the CPS to implement the review’s proposals?
My Lords, I think it is fair to say that the Crown Prosecution Service is already doing much to improve efficiency. Obviously, we are well aware of the review undertaken by Lord Justice Leveson. The CPS finds it a very constructive piece of work. I can assure my noble friend that it is being given active consideration by the CPS.
Is the Minister aware that legal practitioners are increasingly voicing their apprehension about the efficacy of the Crown Prosecution Service? What discussions has the Minister had with the practitioners? Is he not concerned about their lack of support for the CPS?
My Lords, I have not had the discussions that the noble Lord asks about but I am sure that my right honourable friend the Attorney-General is regularly in touch with all parts of the profession that have an interest in and are working with the Crown Prosecution Service. I have mentioned the cost savings that have had to be made and it should be put on the record that it is greatly to the credit of the staff working for the Crown Prosecution Service that they have sought to make these efficiencies while maintaining quality.
My Lords, will the noble and learned Lord assure the House that, despite the financial stringencies, the criteria as to whether a case is of sufficient strength to justify prosecution remain exactly the same? Will he kindly tell the House how that role is currently enunciated?
My Lords, there is the code that is issued and I can assure the noble Lord that the tests remain the same: sufficiency of evidence that there is a realistic prospect of a conviction and, if that test is met, the ensuing public interest test. I think that that has been enunciated on a number of occasions.
Is my noble and learned friend aware that the failure of the Crown Prosecution Service to prosecute the allegations of female genital mutilation recently was greeted with despair on all sides of this House? It is a crime and the evidence is absolutely clear, yet we have been unable to prosecute a single case in this country. Is there nothing that the Government can do to ensure greater effectiveness and a greater sense of justice in this matter?
My Lords, I can assure my noble friend that it is the resolve to bring to justice those who commit female genital mutilation where there is evidence to do so. Female genital mutilation is a form of child abuse and we should recognise it as that. With regard to the trial to which my noble friend referred, it was right for the Crown Prosecution Service to put this case before the court. On three separate occasions—once before the trial and twice during the trial—the judge dismissed applications by the defence to stop the case, thereby agreeing that the evidence should be considered by the jury. The jury considered the evidence and came to a verdict, which we respect. In this year, the 800th anniversary of Magna Carta, when we have talked so much about the jury system being a bulwark of our civil liberties, it is important that the jury system does work.
Is the noble and learned Lord aware that the situation in some parts of the country, in particular the West Country, is so serious that the Criminal Bar regards the Crown Prosecution Service as being on the point of collapse? The first part of many a criminal trial is spent by barristers trying to explain to the judge why advice that had been given in writing months before in relation to important parts of the preparation, with evidence and disclosure, has not been acted on as a direct result of chronic understaffing.
My Lords, I am not aware of any specific issue with regard to the West Country but I know that efforts are certainly made to reduce the number of cases that do not go ahead on the day or very early on because of the prosecution. It is my understanding that considerable steps have been taken to improve that position.
My Lords, to what extent do the Government expect the Crown Prosecution Service to liaise with Her Majesty’s Revenue and Customs about decisions to prosecute? How satisfied is the noble and learned Lord about the state of liaison between the two organisations? How satisfied are the Government about the performance of the prosecuting authorities in relation to financial crime and tax evasion in particular?
My Lords, obviously where there is evidence and the tests are met, prosecutions should be brought. I do not have any specific information on the current liaison between the Crown Prosecution Service and Her Majesty’s Revenue and Customs. If there is anything of note I can find out about it and advise the noble Lord.
To ask Her Majesty’s Government what discussions are taking place with the governments of other European Union member states regarding the handling of conflict in Ukraine.
My Lords, on behalf of my noble friend Lord Campbell-Savours, and at his request, I beg leave to ask the Question standing in his name on the Order Paper.
My Lords, on 9 February, the European Union Foreign Affairs Council discussed Ukraine and reconfirmed its decision to apply additional sanctions on a number of Russian individuals. The informal European Council on 12 February also discussed Ukraine and welcomed cautiously the implementation agreement reached in Minsk. The Foreign Secretary has travelled extensively around the EU in recent months. He has raised Russia and Ukraine consistently with his EU counterparts.
My Lords, does the Minister recall that on 10 February she told the House that it was up to each individual NATO country to decide whether to supply lethal aid and that it was not the UK’s intention to do so? Is she aware that three days later, 20 armoured vehicles arrived in Ukraine, which President Poroshenko said would be armed and sent to the front to fight? This sale was organised by the Disposal Services Authority of the Ministry of Defence. How does she reconcile that?
My Lords, I am able to reconcile it, but it is still a matter of concern and the noble Lord is absolutely right to raise it. Export licences were agreed in December for the sale of 75 Saxon light-armoured personnel carriers. However, they were not carrying weaponry when we sent them. The exports were assessed fully against the consolidated EU and national arms export licensing criteria. I am aware of the report to which the noble Lord has accurately referred. Twenty vehicles have so far been delivered to the Ukrainian MoD. We are reviewing the licence against the consolidated criteria under the circumstances. The circumstances appear to be that an off-the-cuff record was made by one person to the effect that this non-lethal equipment would be retro-fitted and used. The circumstances in which we supplied it fully kept to the commitment I gave to this House. Our subsequent action is, again, fully in accord with the commitment I gave to this House.
My Lords, will my noble friend tell the House what her assessment is of the EU Select Committee’s report on relations with Russia and its principal recommendation that the European Council should take a more proactive line in determining that relationship? Will she also comment on whether we will have an opportunity to have a debate in this House before we rise? There will be a long break, during which we will not be able to do any scrutiny of Russia and Ukraine, so may we have a debate before we rise?
My Lords, I have to take refuge in the usual response that others would make when I was Chief Whip and say that it is not my decision; it is for the usual channels. However, my noble friend has raised a very strong point. Of course, it was she who led the House in a debate on Russia and relations with it back in October, in which so many noble Lords took part. On Friday last week, a significant report was published by the EU Sub-Committee on External Affairs. It took the committee seven months of hard work to produce it and I would not wish to dismiss it in the few minutes we have left; it deserves very serious consideration. The report makes it clear that the most important miscalculations were those made by President Yanukovych and President Putin in failing to foresee how the Ukrainian public would react to Yanukovych’s last-minute refusal to sign Ukraine’s association agreement with the EU. We should not fall into the trap of trying to blame ourselves for Russia’s invasion and destabilisation of another sovereign European state.
My noble friend has made an important point. The European Council will meet on 20 March. It is vital that it should roll over the tier 3 sanctions at that point and that, just as it has been, it takes a leadership role and has ready other sanctions to put in place if the current ceasefire disintegrates.
My Lords, does the Minister agree with the statement in the EU sub-committee’s report that cuts in Russian experts at the FCO and less emphasis on analysis led to a misreading of the depth of Russian hostility to EU plans for a closer relationship with Ukraine? Does the Minister also agree with the wider criticism levelled by the report at the failure of the UK to be active and visible in dealing with Ukraine? Is that not symptomatic of the UK’s broader failure over recent years to take a traditional leadership role in the area of foreign policy?
No, my Lords. I am afraid that the Opposition have broken ranks with their support on Ukraine at the wrong time. This country has shown leadership at the United Nations Security Council, where we have been securing negotiations on this matter with regard to sanctions. The report is very clear in what it says. I read it quickly over the weekend and now I shall read it more carefully. I can quote from the evidence given to the committee by David Lidington, who said that,
“pretty well every western Government had made various assumptions about the Gorbachev and Yeltsin years and, indeed, the early indications in Mr Putin’s first term as President, showing that Russia wanted integration into a global rules-based system, and steps such as G8—Russia’s participation continues in, for example, the dialogue of the six with Iran on its nuclear programme—showed that Russia was serious about being an international partner”.
Subsequently, Russia changed its attitude and we have responded to that.
With regard to Foreign Office matters, I refer the House to a letter I wrote to the noble Earl, Lord Sandwich, subsequent to when he spoke in the debate called by my noble friend Lady Falkner back in October. I am happy to put a copy of the letter in the Library if it is not there at the moment. It sets out in detail the training that is in place.
This House has a benefit that others do not. As I look around the Chamber, I see experience that only age can bring, and that is an experience that we should not forget. Those in the outside world, whether they are in the media, the Civil Service or in private service, do not have the experience that people in this House have, which is that we lived through the Cold War and therefore have a closer appreciation of what Russia can do.
My Lords, forgive my abusing the procedures of this House, but I just wanted to make it clear that the Opposition have not in any way broken our stance on Ukraine and I would ask the noble Baroness to take that back.
My Lords, I certainly would not wish to take any words back, although I welcome entirely the noble Baroness’s use of her position as Leader of the Opposition to make that statement. This is a self-governing House, and she made that intervention in a perfectly proper way. I am very pleased to hear her remarks, particularly as we are about to hear an EU Council Statement. Ukraine may be part of that, of course, and she will have another opportunity to respond.
Insolvency Act 1986 (Amendment) Order 2015
Companies Act 2006 (Amendment of Part 18) Regulations 2015
Protected Disclosures (Extension of Meaning of Worker) Order 2015
Motions to Approve
That the draft Orders and Regulations laid before the House on 12, 13 and 15 January be approved.
Relevant documents: 19th and 20th Reports from the Joint Committee on Statutory Instruments, considered in Grand Committee on 9 February
Road Safety Act 2006 (Consequential Amendments) Order 2015
Passenger and Goods Vehicles (Recording Equipment) (Downloading of Data) Regulations 2015
Motions to Approve
That the draft Order and Regulations laid before the House on 8 and 16 January be approved.
Relevant document: 20th Report from the Joint Committee on Statutory Instruments, considered in Grand Committee on 10 February
Modern Slavery Bill
Report (1st Day)
Clause 1: Slavery, servitude and forced or compulsory labour
1: Clause 1, page 1, line 17, at end insert “person’s characteristics or”
My Lords, I also have Amendments 2 and 3 in this group. The Minister has, quite understandably, urged noble Lords not to endanger the Bill by continuing to seek to improve it—or, to use his words, to improve it “even further”. We must all accept that the Bill has been improved significantly and will be improved, the more so when we get to the end of this stage. We will be considering, I think, 72 government amendments this week.
I well understand, of course, the point that he makes. As much as with any Bill that I have ever known, there is a passion within and outside this House to end up with the best Bill possible, and we owe a lot to a lot of people who work on these issues. What is possible may not be quite the same as what would be if we had another six months, and I accept that some of what some of us would like to see in the Bill needs time for consideration and consultation—more time than we have before the end of the Parliament. I prepared all that to allow other noble Lords to leave the Chamber before I got to the point of my amendment.
We have opportunities for changes or to make sure that the Bill does what we think it does, which we can do without the best endangering the good. With my amendments in this group, I want to be quite sure that Clause 1, whose first two subsections reproduce Section 71 of the Coroners and Justice Act 2009, does not itself, in its additional subsections, become the victim of the best. The term used in subsection (3) is that “regard may”—and I would like to inquire about the purport of that—
“be had to all the circumstances”.
Subsection (4) gives examples of “personal circumstances” that may make someone particularly “vulnerable” to servitude, slavery, forced labour and so on.
I tabled amendments to the same effect in Committee, because I was concerned then, and remain concerned, that “circumstances” is a term used for external matters, while “characteristics”, which is the term I use in my amendment, means things that are intrinsic to the person. Yesterday I went to the Shorter Oxford English Dictionary. I am ashamed to say that I had not realised until then that “circumstance” comes straight from the Latin: “circum” meaning “around” and “stance” from “stare”, meaning “to stand”: in other words, something surrounding—as I say, something external. On the other hand, “characteristic” is defined by that dictionary as,
“a distinguishing trait or quality”.
The distinction that I had been concerned about is borne out by the definitions. A characteristic is not a circumstance.
The examples given in Clause 1(4) are not an exhaustive list—I accept that. The list includes at least one item that is both a characteristic and a circumstance: that is, “family relationships”. They are an externality, if you like, but they impact very much on who a person is. My Amendment 3 would add “disability” to the list because disability is not an illness. The list refers to “mental or physical illness”. I think the days are past when people often confused mental illness and disability.
I mentioned this to a colleague, who pointed me to the Equality and Human Rights Commission guidance that deals with what are called “protected characteristics”, of which disability is one, along with age, sexual orientation and five others. Disability is recognised as distinct from illness later in the Bill, in Clause 3(6), which deals with exploitation for the purposes of trafficking. It is also distinguished in Clause 45(4), which deals with the defence for victims who themselves commit an offence; that refers to “relevant characteristics”. I think that mental disability, such as learning difficulties, could be more likely than mental illness to make someone vulnerable to being picked up and forced into labour. Psychological characteristics—I am using very non-clinical language here—such as being unable to cope with life could make someone very vulnerable.
The point, of course, is that one would not want a prosecution to fail because the term “circumstances” is too limited. My noble friend might tell me that the formula “regard may be had” might be a safety net here, or he may be able to point to case law since,
“references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention”.
In Committee, the Minister said:
“Through its decisions, the European Court of Human Rights has provided clear guidance on the meaning”,—[Official Report, 1/12/14; col. 1134.]
of the term “servitude” and so on. I looked at the guidance and it is certainly clear, but I got no help on the term “circumstance”.
The Minister will come to his Amendment 4 in due course, but I welcome bringing closer the actions that constitute an offence under Clause 1 and exploitation for the purposes of trafficking. I hope the Minister will address points made about this by the Equality and Human Rights Commission, which I assume he has received, that the amendment does not capture all those who facilitate or arrange exploitation where there is no movement or movement cannot be evidenced—this was something that we spent some time on in Committee; that it does not cover situations where there is no overt threat of physical force; and that it may reduce protection for children.
I look forward to the noble Baroness, Lady Young of Hornsey, introducing her Amendment 7. In Committee, the Minister said that the EU trafficking directive covers liability for,
“offences by third parties that occur as a result of lack of supervision”,—[Official Report, 1/12/14; col. 1198.]
but I was unclear, reading Hansard again, where that takes us on enforcement. I do not want to pre-empt what she might have to say on this, but I am offering her some support when she comes to probe that point.
I also take the opportunity to raise a point on that EU trafficking directive. I hope the Minister is aware that I was going to raise this, as I emailed him this morning about it. I understand that the UK has still not submitted a report to the EU on the implementation of the directive, which was due last year, although most of our partner states have done so. This is specifically in relation to Article 20 of the directive, where the deadline was last October. I am told—I have no evidence other than one email, but it was from someone I trust—that the UK has not been participating in EU meetings of the national rapporteurs and equivalent mechanisms, and that in the last meeting it was the only member state not to be represented. This is obviously important in itself, and because delay means that there is a problem in having civil society organisations comment on the report.
Having gone through some rather inquiring comments—I do not want to say that they are critical, because I very much support what the Government are doing in this area—I come back to my original points on circumstances and characteristics. I beg to move Amendment 1.
My Lords, first, I thank the noble Baroness, Lady Hamwee, for her support on my Amendment 7. I raised this issue in Committee, but since then I have made a little refinement to this proposed new clause to make it clearer. I thank Klara Skrivankova again for her help in talking me through the importance of this provision. I should declare an interest as a trustee of the charity Aid by Trade, which supports the Cotton made in Africa project—the House will perhaps see the relevance of that later on—and as a patron of Anti-Slavery International.
I do not want to take up too much time because, like the noble Baroness, Lady Hamwee, I agree that we want to push on with the Bill and make sure that we get it into the best possible shape that we can in the limited time that we have. However, it is worth while just going through some of the background to this amendment. The amendment tries to draw attention to the fact that those who benefit financially from forced labour, which is now recognised to be something like a $150 billion-trade, are not only those who are directly involved in the exploitation of their victims. It goes wider than that. The individuals and companies that choose to disregard information about slavery in their supply chains so as to ensure continued revenue maximisation are also culpable.
The business model behind forced labour demonstrates that the two main reasons for using it, and for implicitly accepting exploitative practices in the supply chain, are of course cost reduction and revenue generation. The total cost of someone who is working in a coercive situation for an exploitative employer is clearly less than it would be if the arrangement were lawful. In a very competitive environment where there is constant pressure to cut costs, many agents promise to provide workers for an extremely low outlay. While the Bill provides for significant penalties for those who enslave or traffic others, it currently omits liability for those who benefit from the enslavement of others through the acts of third parties. This allows those who choose to do so to ignore a situation where there is exploitation and to escape justice, even though they derive profit from such unlawful activities.
The issue of liability for benefiting from modern slavery is addressed, as the noble Baroness, Lady Hamwee, has already mentioned, in the EU trafficking directive to which we are a party. I reiterate the question which the noble Baroness asked of the Minister: to explain why it seems that we are a little behind in endorsing that in an active way.
The directive requires member states to establish liability for benefiting from the exploitation of others committed by a third party and to make provision for criminal and non-criminal sanctions for those who benefit in this way. There is a similar provision in the United States under Code 1589, which makes it an offence punishable by a fine or imprisonment of up to 20 years to knowingly benefit financially or receive anything of value from forced labour or services.
When I raised the earlier version of this amendment in Committee, I shared the example of a Belgian motorway restaurant company that was held liable for the exploitation of the workers who were cleaning the toilets at its premises. Those cleaners were actually employed by a subcontractor, not directly by the restaurant company, but essentially that company was brought to justice for its role in ignoring the very clear evidence that this form of exploitation was taking place on its premises in its business.
I am concerned, though, that there are British businesses that benefit from forced labour. A number of noble Lords will be aware of the situation in Uzbekistan with regard to cotton harvesting, but unfortunately it looks as if a couple of British companies are continuing to trade in cotton from Uzbekistan, despite the fact that it is well known that the authorities there use forced labour from their own citizens to pick cotton, most of which is destined for international export. Children and adults are forced to pick cotton under threat of punishment or incarceration, and the only way out is to try to find the money to pay someone else to do that job for you. We know—there is masses of evidence—that trading in cotton from Uzbekistan means trading in a commodity that is effectively produced entirely by slave labour. If you are trading with Uzbekistan, you are profiting from that slave labour, and under the amendment you would be liable to be brought to justice for doing so. I understand that two UK companies currently buy and trade in cotton from Uzbekistan despite their knowledge of what is going on there.
If we are serious about stamping out enslavement and forced labour, particularly that involving children and young people, we have to make it unprofitable, and that is what this amendment seeks to do. It would also address instances where a person is exploited in domestic servitude in a private household and is lent to friends or relatives as free help in the knowledge that this worker has been treated like a slave by the employer. It would cover landlords who know that their property is being used to harbour those in a situation of slavery but who choose to ignore it because of the revenue from renting out the property. Clearly no one in the UK should be profiting from enslavement—that is the driving force behind the Bill—so I hope that the Minister will give careful consideration to this in the same manner as he has to all the previous arguments and debates on the Bill. Obviously we all want to achieve the same result, but we want to make it as hostile as possible for people to benefit from trafficking and enslavement, even if indirectly.
The obvious villains are the traffickers and enslavers—they are the big baddies who we can obviously go after—but, as I have tried to outline here, there are a number of companies and organisations, not just in Britain but around the world, which are profiting from that in a knowing way, and that is wrong. As I said, we have an obligation under EU law to do something about this, so perhaps the Minister can explain to us why the Government seem to be slightly reluctant to put the principles underlying the amendment in the Bill and to reinforce its message on forced labour and trafficking.
Bizarrely, my Lords, I support government Amendment 4 in the name of the noble Lord, Lord Bates; it has not yet been moved but I am sure that he will wish to respond to the debate as a whole. I am grateful to the Minister for the huge amount of work that he has done behind the scenes in Committee and on Report, bringing forward a number of changes to the Bill, including on offences. I do not think that the amendment goes far enough, as will be clear when I speak in the debate on the amendment tabled by the noble Baroness, Lady Doocey; we would have liked to have seen clearer and better defined offences, as was recommended by the draft Bill committee. However, we recognise that the government amendment before us today is a step in the right direction in bringing to justice those who have exploited others—adults or children—so we welcome it as far as it goes.
In a letter to me, the Minister spoke of the very good way in which the collaborative nature of this Bill has worked. It vindicates the enthusiasm that we all have for pre-legislative scrutiny, which not only improves a draft Bill but enables all those concerned to be properly engaged and makes the legislative process a lot better, so I look forward to more of it.
I thank the noble Baroness, Lady Royall, for her welcome for the amendment which I shall move later. I appreciate it as it gives me an opportunity to respond and to speak to all the amendments in this group. I reiterate what I said in correspondence, which is that this Bill has been an exemplar of the legislative process. A Bill was published, it was given pre-legislative scrutiny and, following that detailed scrutiny, a revised Bill was published which went through its stages in another place. Let me be generous to the other place and say that sometimes things go through at a bit of a speed and without careful scrutiny to the level that we would like to see, yet this Bill received that level of attention, such is the interest that we all have in seeing the changes made.
Many changes were made in the other place. Between consideration in the other place and here, the Government added the new clause on the supply chain and during the detailed process we went through in Committee, 23 amendments were tabled. There was then an extensive period of meetings with interested Members of the House of Lords. The level of engagement, not only from Peers but from NGOs and charities that work in this area and have deep concerns, was incredibly impressive and helpful. They brought their expertise, and we were able to hear from the Independent Anti-slavery Commissioner, who gave us an insight into how he sees his role. As a result, the Government have tabled a record number, I think, of amendments—72—which we will go through. I set that out as context to show that there is cross-party commitment to see this legislation on the statute book as soon as possible to make sure that victims are protected and that law enforcement agencies have the powers they need to be able to tackle people who are guilty of these crimes.
I now move to the amendments in this group. I am grateful to my noble friend Lady Hamwee and the noble Baroness, Lady Young, for their amendments and for this opportunity to debate Clause 1. It sets out the offence of slavery, servitude and forced or compulsory labour. This group of amendments, which includes the amendment I shall move, relates to the circumstances the court can consider when assessing whether an offence has taken place. I am grateful to the noble Baroness, Lady Young of Hornsey, for tabling and speaking to Amendment 7, which is to ensure that committing modern slavery offences does not benefit offenders or third parties who either benefit from these crimes or look the other way when they are committed.
One of the improvements the Government have made to the Bill following pre-legislative scrutiny is to make clear that the court can consider all the circumstances when assessing whether a Clause 1 offence has been committed, including the vulnerabilities of the victim. I am grateful to my noble friend Lady Hamwee for testing through her argument whether this provision is drawn widely enough to cover all possible forms of vulnerability. After looking carefully at it, I am confident that it does.
Amendments 1 and 2 aim to ensure that characteristics intrinsic to a person can be considered by the court in determining whether a person is a victim of the Clause 1 offence. I am grateful to my noble friend Lady Hamwee for so effectively testing the Government’s approach. However, I assure your Lordships’ House that the term “circumstances” is broad enough—even as defined by the Oxford English Dictionary—to cover any relevant characteristics of the victim. That is made clear by the non-exhaustive list of vulnerabilities that can be considered which are set out at Clause 1(4), and which includes mental or physical illness and whether the victim is a child.
Amendment 3 seeks to include disability in the list of personal circumstances which may make a person vulnerable at Clause 1(4). I assure the noble Baroness that the list of circumstances simply gives examples. The court may consider all circumstances that may make a victim vulnerable, which include disability.
On government Amendment 4, tabled in my name, we had a very healthy debate on child exploitation in Committee, and I have reflected on those exchanges carefully, as the noble Baroness, Lady Young, reminded us that I said I would. We will have a full debate on child exploitation in a moment. The Government are determined to give law enforcement the powers needed to tackle child exploitation, and exploitation more broadly.
I have not brought forward a separate offence after taking the advice of the Director of Public Prosecutions, the Independent Anti-slavery Commissioner, the national policing lead for modern slavery, Chief Constable Shaun Sawyer, and the National Crime Agency, which argue that there is no gap in the law and that a new offence would make prosecution harder. That point was underscored again in the letter which Kevin Hyland circulated to many Peers ahead of this debate.
However, I share noble Lords’ concerns that we need to make sure that we have effective offences in the Bill which tackle serious exploitation. That is why I brought forward government amendments in Committee to ensure that the Clause 1 offence fully reflected the specific vulnerabilities of child victims. The House will recall that we amended the Bill to make it clear that consent by the victim does not prevent a conviction. We also made it explicit that the vulnerability of a child victim can be considered.
Having reflected on our Committee debates, I will address a different concern, about the range of conduct that can be covered by the Clause 1 offence. I know that there are real concerns that it might not be possible to use that offence in relation to a victim, particularly a child, who is forced to beg or pickpocket. However, we can see that the breadth of the offence may not be well enough understood, including by front-line professionals dealing with these cases. That is why I have tabled government Amendment 4. It clarifies that, for the Clause 1 offence of slavery, servitude and forced or compulsory labour, the court can consider any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within Clause 3. That deals in particular with the point raised by the noble Baroness, Lady Young, and the example she helpfully gave us, and it will help law enforcement, prosecutors and the police understand the breadth of that offence better. The court will be able to look at exploitation in Clauses 3(5) and 3(6) and understand that conduct captured there such as begging and pickpocketing is capable of being work or services for the purposes of the forced or compulsory labour offence as set out in Clause 1.
We also need to strengthen the knowledge and awareness of the front-line professionals who come into contact with vulnerable victims and make decisions about investigations and prosecutions. My noble friend Lady Doocey will speak to that subject later, which she feels passionate about. Those professionals need to understand the behaviour they are seeing and the offences they can use to tackle areas such as child exploitation. That is why I am pleased that the Director of Public Prosecutions and the national policing lead have agreed to work together to drive up awareness among front-line professionals of their powers to tackle child exploitation and build stronger cases together.
We all share the determination that the criminal law should protect the vulnerable, including children. The Government are determined that the Bill should achieve this, which is why we have already made a number of important changes to the offences in the Bill, and have gone further in that regard today.
On Amendment 7, in Committee we had an excellent debate on how the Modern Slavery Bill will ensure that committing modern slavery offences does not benefit the offenders or third parties who benefit or look the other way when these crimes are committed. I am grateful to the noble Baroness for tabling the amendment to provide further scrutiny of our approach. It would make it an offence for persons, including legal persons, to benefit from modern slavery when the offence was committed for their benefit, and their lack of supervision or control enabled the commission of the offence. As I explained in Committee, we believe that it is absolutely right that companies that profit from modern slavery can be held responsible, as well as individual perpetrators. That is why the offences in the Bill can be committed by all persons, including legal persons. This means that they can be committed by companies, providing that the usual legal principles of corporate criminal liability apply. This extends to aiding and abetting in an offence. Companies can also be held liable under the civil law, such as negligence and proceeds of crime legislation, when they benefit from modern slavery committed for their benefit. So companies that make money as a result of modern slavery committed for their benefit can be deprived of those profits and pursued for damages by their victims, which is what we all want.
In Committee, I committed to keep this subject under review. Having looked closely at the debate, we remain confident that currently, and under the Modern Slavery Bill, we are fully compliant with the requirements of the EU trafficking directive around liability of legal persons. The UK Government are fully compliant with the directive and committed to fulfilling its reporting obligations. Given the extensive positive changes being made to the UK’s response to modern slavery through this Bill, which we are still in the process of, the national referral mechanism review and the implementation of the modern slavery strategy, the UK Government will make a full report on progress shortly, once these legislative processes have been completed. That will enable us to more fully demonstrate the UK’s activity in this area. We are working to agree this approach with the EU anti-trafficking co-ordinator.
On the assessments from the Equality and Human Rights Commission, the Clause 1 offence can be used against anyone who holds a person in slavery, servitude or subjects them to forced or compulsory labour. This includes someone who aids or abets an offence—for example, by arranging or facilitating the victim’s exploitation. Today’s government amendment does not change that point.
I want to set this compliance in the context of some of the wider action that we are taking in this area. As noble Lords are aware, we are also taking action in the Modern Slavery Bill to require large businesses to disclose what they have done to ensure that their supply chains are slavery-free. We believe that the resultant transparency will encourage others who have not yet taken decisive steps to take action. We will discuss ensuring that this provision is effective later on in the Report stage. I also want to reassure noble Lords that we are committed to ensuring that we recover the ill gotten gains of slave-masters and traffickers. That is why Clause 7 subjects those convicted of slavery and trafficking to the most robust available asset recovery regime.
Given the House’s concern to tackle exploitation, I ask noble Lords to consider supporting my amendment, which makes it clear that the courts can look at exploitation to help them understand the breadth of the Clause 1 offence. I hope, given my assurances that they are not needed, that noble Lords feel able not to press their amendments.
May I take the Minister back to what he said in answer to the arguments made by the noble Baroness, Lady Hamwee, on Amendments 1 and 2? I may have misheard him, but was he saying that “circumstances” were identical with “characteristics” on his reading of the dictionary? It seems to me that one is by definition endogenous and the other exogenous. If I say that the noble Lord handles the debate very well “under the all the circumstances”, I mean that around the House there is a huge degree of expertise and interest in this Bill, and he handles that very well. If I said, “under his characteristics”, it would imply that I was casting some aspersion on the Minister, which is the last thing I would wish to do. Surely the argument that he advanced against the noble Baroness’s amendment does not hold water? Characteristics and circumstances are intrinsically different.
It is difficult to know how to respond to that, although I obviously welcome the noble Lord’s clarification. Of course, I accept that the two words have different meanings in a grammatical sense. However, I was referring to the legal context, in which we believe that the term “circumstances” is broad enough to cover any relevant characteristics of the victim. I know that that is using both words in the same sentence but we believe that the term is wide enough to cover both elements. Again, I am happy to look at that point further to make sure that we have got this absolutely right and, if necessary, I will write to the noble Lord.
My Lords, I wholeheartedly agree with the Government’s determination to see more perpetrators of these terrible crimes prosecuted, punished and prevented from reoffending. Unfortunately, the evidence we heard in the Joint Committee during pre-legislative scrutiny of the draft Bill highlighted some difficulties of using the existing offence of slavery, servitude and forced or compulsory labour in certain situations involving exploitation, with which the Minister has dealt.
One very experienced prosecutor told us:
“Clause 1 should potentially be extended to exploitation as well. I have a concern about the definition of exploitation within the Bill, which applies, it seems, to the trafficking element but not to the slavery, servitude and forced or compulsory labour element. There are cases where you can fall between the two of them”.
I am therefore very pleased to support Amendment 4, in the name of the Minister, which will bring situations of exploitation that apply for the trafficking offence in Clause 2 into consideration when determining whether a Clause 1 offence has been committed. From the evidence the draft Bill committee heard, cases involving child victims would particularly benefit from the consideration of wider forms of exploitation under Clause 1 because trafficking may be difficult to prove and establishing evidence for servitude or forced labour without looking at other types of exploitation could be problematic. I have been concerned about the evidence I have heard of the limited use—
I apologise for interrupting my noble friend but the Minister has made a winding-up speech on this set of amendments. I wonder what relevant points the noble Lord is making at this stage. I think he may be referring to the next group.
My Lords, the noble Baroness may not be entirely right as the Minister was putting forward the government amendment. As it happens, the noble Baroness, Lady Royall, spoke to that amendment before it had formally been put forward. As I understand it, the noble Lord, Lord McColl, is now speaking to the government amendment, and I believe that he is entitled to do so.
My Lords, I understand that my noble friend was responding to Amendment 4, in which case I apologise.
I have been concerned by the evidence I have heard about the limited use of the equivalent existing offence for crimes against children in Section 71 of the Coroners and Justice Act 2009. This is not because no children are exploited; there is clear evidence to the contrary. I hope, therefore, that this amendment will make Clause 1 more useful to the CPS in prosecuting those who exploit children, for whom I have a particular concern, as your Lordships know.
I wish to ask the Minister two questions. He has made it clear through this amendment that situations in which children are forced into slavery through threats or coercion will come under the offence set out in Clause 1 through Clause 3(5), and, if the child is targeted specifically because they are a child, they would be covered under Clause 3(6). Both of these are welcome reassurances.
Will he please clarify what the situation would be where there is no force or coercion but it is difficult to prove whether a child has been specifically targeted? I also wonder whether he has given consideration to strengthening the imperative to consider these situations of exploitation in Clause 1(4) by requiring that regard “should” be had to them, rather than the present suggestion that regard “may” be had. I look forward to his reply.
In her foreword to the draft Bill, the Home Secretary wrote:
“I want a strong message to go out to any individual or group involved in the enslavement of victims; you will not get away with it, we will catch you and you will go to prison for a very long time”.
I completely agree. We must ensure that offences of exploitation of all kinds, as well as trafficking, slavery, servitude and forced labour, can be properly and regularly prosecuted. I believe that Amendment 4 will help to do this and I commend it to your Lordships.
My Lords, I wish I had thought of “exogenous” and “endogenous”. I will resist changing the term “characteristics” to “circumstances” when it appears later in the Bill.
However, I remain concerned, for the reasons I gave. I was not just playing with words for the pleasure of playing with words but because of the impact that the wrong word may have on the success or otherwise of a prosecution. It is not really the way to go about it if there is a better way of doing so. One should not rely simply on examples that strain the meaning of the term about which the examples are given. There are better ways of doing it.
As I said at the start of the debate, I understand the Government’s concern to make sure that we get the Bill on the statute book. However, if the Minister is able to look at this matter before Third Reading, I would be very happy for him to do so; I shall certainly not pursue the point today. With regard to the trafficking directive, I look forward to finding out how long “shortly” is in this circumstance. I beg leave to withdraw the amendment.
Amendment 1 withdrawn.
Amendments 2 and 3 not moved.
4: Clause 1, page 2, line 4, at end insert—
“(b) to any work or services provided by the person, including work or services provided in circumstances which constitute exploitation within section 3(3) to (6).”
Amendment 4 agreed.
5: After Clause 1, insert the following new Clause—
“Offence of child exploitation
(1) A person who exploits a child commits an offence.
(2) Where the exact age of the child cannot be determined, it shall nonetheless be an offence under subsection (1) to exploit a person if the accused believed, or had reasonable grounds for believing, that the person exploited was under 18.
(3) It shall be an offence even if there was no threat or use of violence, or other form of coercion, deception or any abuse of a position of vulnerability.
(4) Exploitation means the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, including begging, slavery or practices similar to slavery, servitude, or the exploitation of criminal activities, or the removal of organs.
(5) A child may be in a situation of exploitation whether or not—
(a) escape from the situation is practically possible for the child; or(b) the child has attempted to escape from the situation.(6) Where the person exploited is a child, the consent or apparent consent to the exploitation of the child, or of any person having lawful authority over the child, is irrelevant.”
My Lords, the amendment would introduce a separate offence of child exploitation. I acknowledge that the amendment that the Government have just moved goes some way to meeting the concerns expressed in Committee by noble Lords across the Chamber and by the large number of voluntary organisations that work with exploited children. I very much welcome the government amendment as a major step forward; however, I still have two key concerns that I ask the Minister to address.
First, the Bill is not clear enough on the issue of children who are exploited but where the child is not forced to commit a crime. I know that the Government are seeking to ensure that the offence of,
“Slavery, servitude and forced or compulsory labour”,
in Clause 1 reflects the fact that children can be influenced in subtle ways. However, for Clause 1 to have the same effect as a separate child exploitation offence, the Government need to make explicit their intention that it shall be an offence, even if there is no evidence of force. The Minister, in his letter of 16 February to the noble Baroness, Lady Royall, said that the Bill makes clear that:
“Where a person deliberately targets a vulnerable person, such as a child, there is no requirement for any force, threats or deception to be used to induce the child into being exploited”.
If the Government were willing to include this wording in guidance, that would go a long way to meeting my concerns in this area. Children who are groomed into criminality or begging often become very attached to their exploiters, identifying with them so closely that they do not understand that they are being exploited. This presents a problem for prosecutors when deciding whether a case has a realistic prospect of a conviction. Because of this uncertainty, many of these cases never get to court. Perhaps the Minister will deal with this point when he responds.
My second area of concern is to ensure that the definition of “exploitation” is crystal clear to everyone. Criminality is ever-changing, as are the ways people find to abuse and exploit the vulnerable. Children are being specifically targeted for use as domestic slaves, to guard cannabis factories, for harbouring guns, for serial theft and increasingly for use as drug mules. However, the evidence available to police in these cases often does not reach the threshold required to prove slavery, servitude or forced or compulsory labour. That is why it is so important to ensure certainty over what constitutes exploitation, so that people who exploit children can and will be brought to justice.
I was interested to hear the list that the Minister read out of all the really important people who do not think a child exploitation clause is necessary, such as the Director of Public Prosecutions and the national policing lead. However, the myriad offences that the Government and these people say can currently be used to prosecute child exploitation are simply not being used. This is reflected in the pitifully low number of convictions. Charities and other organisations working in this area on a daily basis are encountering cases of exploited children slipping through the net time after time. In the past two years, the police have identified more than 1,000 child victims of human trafficking, but the Government have been unable to indicate a single prosecution of forced labour involving a child victim. In total, there were just 41 prosecutions for human trafficking offences last year.
I very much welcome the Minister’s statement that the Director of Public Prosecutions and the national policing lead will now work together to raise awareness on how to prosecute child exploitation, but I hope that there will also be appropriate recognition by police and crime commissioners to prioritise child exploitation and to provide training for front-line police officers. This training must make use of face-to-face lectures by recognised experts in this field. Too often, so-called training involves nothing more than giving police officers a CD and asking them to sit in front of a computer screen and listen to it when they get time.
I shall keep a very close eye on how this new legislation is implemented. If expectations are not fulfilled, there will be clear demands to reopen the legislation all over again to enable more effective prosecutions, because we must protect the most vulnerable in our society: our children. I beg to move.
My Lords, I rise to support the noble Baroness, Lady Doocey, in her Amendment 5. As I mentioned in the last grouping, while I welcome government Amendment 4, in my view it does not go far enough. It is evident that something is missing in the current legislative framework that is preventing criminals who exploit people of whatever age being brought to justice—but especially with regard to children.
The noble Lord, Lord McColl, referred to the Coroners and Justice Act 2009. Nationally, according to Crown Prosecution Service data, there have been no cases of a prosecution where a victim was a child since the introduction of Section 71 of the Coroners and Justice Act on slavery, servitude and forced labour. Yet, of the 59 defendants charged with human trafficking offences in 2013-14, there was only one case that was not sexual exploitation in cases relating to child victims. Clearly, the numbers are not adding up.
Although we were grateful for the views of the Director of Public Prosecutions, Alison Saunders, the national policing lead for modern slavery, Chief Constable Shaun Sawyer, and the director of the Organised Crime Command at the National Crime Agency, Ian Cruxton, in the letter that we received last week, we still feel that there is a legal difference of opinion on this issue which has not been resolved. The noble and learned Lord, Lord Judge, who was until recently the Lord Chief Justice and the most senior criminal judge in the country, said of the Bill:
“We are making provisions for slavery, servitude and compulsory labour in clause 1 of the Bill. In clause 2, trafficking is the offence. It becomes an offence because you do it with a view to exploitation … You could have an offence of trafficking, full stop, and a separate offence of exploitation”.
Alongside him, the former DPP, Keir Starmer, and Nadine Finch, a barrister specialising in children’s law, have identified a need for separate offences for exploitation and human trafficking. In particular, with regard to children, she said in her evidence to the Public Bill Committee in the other place:
“Children are at a huge disadvantage in evidential terms. They very rarely understand they have been trafficked—what trafficking means—or what kind of evidence is needed … Many of my child clients can tell me about what happened when they were exploited in domestic servitude, in a restaurant or in prostitution; but they actually did not understand enough about the links between people who brought them across England, Europe or the world, and therefore they are not able to assist the police or prosecutors in terms of a trafficking offence. They can assist in the matter of exploitation, and I have got quite a few children who have been able to take the police to a house where they have been kept in domestic servitude or sexual exploitation, but they are not able to explain who brought them to that house, and therefore no prosecution happens”.
In his letter of 16 February, the Minister outlined his reservations with regard to the prospect of creating a separate child exploitation offence. I have a couple of questions relating to some of the points he made. Why would providing age in cases involving child victims be difficult? Again, I quote from the evidence of Nadine Finch to the Public Bill Committee. She stated:
“I appeared last year for the Children’s Commissioner in the case of L and others and one of the issues we took up was the difficulty of addressing age assessments in a criminal court. Lord Judge, the highest judge in the criminal courts at that time, accepted that the criminal court already has case law that enables a judge to adjourn a hearing if there is an age dispute. The court can seek expert evidence on its own, but it can expect both prosecution and defence to bring evidence that will enable them to resolve an age dispute. That is set out in detail in the case, and there was no doubt in the mind of the Lord Chief Justice that it was workable. It has worked for decades in terms of age assessments, so that issue, in many ways, is a red herring”.—[Official Report, Commons, Modern Slavery Bill Committee, 21/7/14; col. 35.]
The Bill is intended to consolidate existing offences in order to get more prosecutions. I therefore ask why adding a separate child exploitation offence would cause confusion or make policing and wider criminal justice procedures less straightforward. Surely we want our offences to be watertight in order not to leave any gaps.
I come back to an issue raised by the noble Baroness, Lady Doocey. The Minister spoke earlier of the CPS and the national policing lead working more closely together. Like the noble Baroness I welcome that. However, how will specific training now be provided for front-line police officers? As the noble Baroness said, often training is provided that is not adequate. I think that we all wish to hear from the Minister that the training will be incisive and will enable police officers to identify child exploitation.
As I mentioned earlier, the government amendment is not ideal and we would have preferred to see separate offences of adult exploitation and child exploitation. However, I trust that we will return to this matter, either as the noble Baroness mentioned or in post-legislative scrutiny, to see whether the offences as outlined in the Bill have resulted in a sharp increase in prosecutions and victims coming forward. I very much hope that they will. I take this opportunity to thank the noble Baroness, Lady Doocey, for her tenacity in pursuing this issue—which, I have no doubt, was a catalyst for government action thus far.
My Lords, I agree with everything that the noble Baroness has just said. It is a particular privilege for me to speak in support of the amendment moved by my noble friend Lady Doocey. Those of us who have known her for—I hesitate to say it—some decades know her to be careful, accurate and tenacious, the word used earlier by the noble Baroness, Lady Royall. I pay tribute to my noble friend for her tenacity in pursuing what many of us regard as an extremely important issue.
My noble friend identified the issue with great clarity. She said that if the law is as clear as the Director of Public Prosecutions and others have said it to be, why are there no prosecutions? Why is this successful, clear and full law resulting in no outcomes at all for exploited children in this country? I look forward to hearing the Minister’s response to those questions when he replies to this short debate.
Many of us are surprised and disappointed that there is no specific offence of child exploitation in one place in the law. The noble and learned Lord, Lord Judge, has said much the same previously and most lawyers who have to consider child exploitation would welcome a single offence in a single place which could readily be assessed and understood. The noble Baroness, Lady Royall, spoke about age disputes. I hope the Minister will confirm that the suggestion that age would create a difficulty in enacting an offence such as the one proposed in Amendment 5 is a false point. Age disputes are litigated almost every day in the Administrative Court—they are extremely common—and there are clear ways in which such disputes are determined. They are determined—surprise, surprise—by evidence, and the evidence available to determine such disputes is now expert, well-tried and tested, and capable of speedy decision when such disputes occur.
If the Minister rejects, as I apprehend he will, my noble friend’s amendment. I hope he will give a government commitment to plug any gaps that may emerge hereafter if his views are proved to be incorrect. It is shocking that there has not been a single case brought of child exploitation, at least of the kind envisaged here. We heard discussion earlier about the number of prosecutions for female genital mutilation. If one takes child exploitation and female genital mutilation as two of the most important and horrifying offences committed against children in this country and reflects that there have been two prosecutions so far—one monumentally unsuccessful recently—in both those categories added together, one has the right to be concerned.
I ask the Minister to tell your Lordships what he expects to be the outcome of the work which has now been started, apparently, between the Crown Prosecution Service, the police and others. If the outcome is merely to discover that there have been no prosecutions because there is an inadequate understanding of the law, one is bound to ask why. I suspect the answer will be because the law is confusing, and so we go round the full circle and arrive at the conclusion that there ought to be the new offence—albeit with assistance from government draftsmen—proposed by my noble friend Lady Doocey.
I would ask the Minister to ensure that, if he rejects the amendment, he can leave us in a frame of mind of genuine optimism that there will be more prosecutions and an increased prospect of convictions even if no change is to be made to the law. Somehow I doubt it and I suspect that we shall be returning to this very important issue in the not too distant future.
My Lords, I rise to support the amendment moved by the noble Baroness, Lady Doocey. I have added my name to it. I will be brief as both the noble Baroness, Lady Doocey, and the noble Lord, Lord Carlile, who has just spoken, have made the case clearly and forcefully that the current law must be inadequate as there have been no convictions. I have heard the argument before that there is no issue with the law, but that it is the practice which is the problem, and that is why there have been no convictions. However, as the noble Lord, Lord Carlile, has just said, it cannot be that it is just the practice, it must be that the law is deficient in some way, otherwise there would have been convictions against those who commit this horrible crime against children.
The treatment of cases involving children must reflect that in international law children are a special case because of their particular vulnerability and so cannot consent to exploitation. As it stands, Clause 1 of the Bill does not state clearly enough that there is no need to show that force, threats or deception were present in cases of child exploitation. Subsection (3) of the proposed new clause set out in Amendment 5 makes the point that there is a need to include that in the Bill.
The noble Baroness, Lady Doocey, mentioned the letter written by the Minister to the noble Baroness, Lady Royall, on 16 February. It stated:
“Where a person deliberately targets a vulnerable person, such as a child, there is no requirement for any force, threats or deception to be used to induce the child into being exploited”.
This statement perfectly encapsulates what the Bill itself should state so that there are no grey areas and those prosecuting cases are 100% clear what the thresholds of proof are in children’s cases. Government Amendment 4 is welcome, but in my view it does not go far enough towards including that. The Government must formally commit to their intention that force, threats or deception are not required in children’s cases. A failure to improve the current Clause 1 offence leaves the Bill open to interpretation on this key issue, which would be a major disservice to child victims. They must be able to trust in our laws to protect them and ensure their access to justice for the heinous crimes committed against them. I hope that the Minister will be able to comment on that, if not in the Bill, then to state it clearly for the record that that is the Government’s intention.
My Lords, I am the first person not to support the amendment moved by the noble Baroness, Lady Doocey. I have sympathy for the points she has made and I am very relieved by government Amendment 4 which was discussed earlier. However, one important point that the noble Lords, Lord Carlile and Lord Patel, have rather overlooked is that the present law will be changed by this Bill. Therefore one hopes that when it becomes law, there will be the prosecutions which have been so lamentably absent under the previous law.
A lot of what has been said turns on issues of training and practice. This morning I met the Independent Anti-slavery Commissioner, who was at pains to tell me that he sees his job as commissioner to include pushing the College of Policing, pushing the chief constable, Shaun Sawyer, with whom he has been in conversation several times and is seeing again next Monday, and pushing the Crown Prosecution Service towards better practice and better training. He sees all this as some of the most important parts of his work.
I hope that when the Bill becomes law much of what has been said so far today will fall into the background. It is also important to remember that when the joint pre-legislative scrutiny committee, of which I was a member, discussed child exploitation, we rather bravely and rashly put forward our own Part 1 of the Bill. In it, we had a child exploitation clause, but within the wording that we put forward in the clauses that we recommended. The Government did not accept our Part 1 of the Bill and have put in, under Clauses 1 and 2, different propositions. If we now have a child exploitation clause, it will clash with and to some extent repeat what is already in Clause 1. There will therefore be a degree of confusion for the police, the Crown Prosecution Service and even at the end of the day, I suspect, for the judge instructing the jury as to what the position really is. It is very important that when the noble and learned Lord, Lord Judge, for whom of course I have the greatest admiration and respect, spoke about the child exploitation clause, he was doing so in the context of giving evidence to the Select Committee at a time when he was looking at our draft as well as at the former government draft, which is not the same as the present one.
Another point, made by the noble Lord, Lord Carlile, is that age dispute issues in the Administrative Court are easy to resolve. They appear, from what I am told, to be a great deal less easy to resolve in the criminal courts. Indeed, Kevin Hyland, the commissioner, said to me that when he was head of the human trafficking group in the Metropolitan Police, he was present at a trial when an issue was raised of whether the child was or was not a child under 18. It took up so much of the time, and the jury clearly was not satisfied whether the child was or was not a child and acquitted. There is no shortage of young women coming into this country who are attractive and mature; they may well be 14, or they could be 19 or 25. We are not talking perhaps so much about English children brought up in this country, but children from Nigeria.
I am very grateful to the noble and learned Baroness for giving way. Does she not recognise, first, that exactly the kinds of dispute she is describing now are litigated on a daily basis in the Administrative Court and, secondly, that good case management, which is part of the Leveson reforms and recommendations, can make the preparation of these issues and their determination very much easier and as routine as analogous issues?
I certainly hope that the noble Lord, Lord Carlile, is right about that. However, with the government position under Clauses 1 and 2, including with Amendment 4, you do not have to prove that the young person is 16, 17 or 18 in order to get a conviction. You will have an aggravated situation if you show that it is in fact a child, say of 14 or 15, and not a young woman of 20, and the judge’s sentence will no doubt be greater. However, the issue of age will not arise for the jury to try because, under Clause 1, you do not have to have an age—anybody who is treated in the way that Clause 1 describes can be found to be a victim. This seems to me to be something introduced by the Bill which has not come in before and which will, I certainly hope, make a very dramatic difference to the way in which prosecutions are dealt with.
Another point that Kevin Hyland made, which I think is of some interest, is about control and prevention orders, on which we have spent virtually no time at all in this House. He told me about a group of Roma—not all of whom are Romanian; some are from other parts of Europe—who apparently are camping at the moment in either Park Lane or Hyde Park. They are begging, and the children are no doubt thieving, in Edgware Road and Oxford Street. He says that when the control and prevention orders come into place, if you can find that these children are doing this, a control or prevention order can be made against the adult—many of whom, of course, are not the parents of these children—and that can last for up to five years and will protect the children, who can also be taken into care. He also made the point that this could be done at the border by the border police, who can get a magistrate’s order in order to protect these children well before you have to come to a prosecution because the children are being exploited. I thought that these were quite interesting points to relay to the House.
My Lords, I am somewhat bemused about where we are in this debate. My view has always been quite clear: we already have enough legislation. I think that some of these cases are already appearing before the courts under general children’s legislation.
As I understand it, CAFCASS has recently been involved in a situation where a child was begging. We have to remember that very often the people who are exploiting children are the children’s own parents or relatives. This child was being exploited and selling the Big Issue 12 hours a day on the streets. She was exploited by her father, who went to prison. That seems to be just the sort of case we are talking about, but prosecuted under quite different legislation—the children’s legislation concerning neglect. Maybe that is where we should also look. We should see where else action is being taken.
I listened to the noble Baroness, Lady Doocey, very carefully. I do not agree with her amendment but I am very much in sympathy with what she was saying in her speech. She identified some very important issues. One issue that perhaps we have missed throughout this debate is the one found in proposed new subsection (6) of the amendment, about vulnerable children who find themselves in difficulties because they do not understand what they are being expected to do, and even if they do, they have been so groomed or so frightened that they carry out whatever action is undertaken quite unconsciously; and even if it is consciously, they are in difficulties. We need to look at that and make absolutely sure that we are not going to be prosecuting children and young people when they are in those sorts of difficulties.
However, I am still of the belief that if we look at all the horrific incidents in the newspapers that have happened to children and young people recently—never mind all the ones that we in the profession know about: the thousands of children on child protection registers and the hundreds of cases that go through the courts every day—we know that there is legislation that could have protected those children. There is no doubt that the girls of Rotherham could have been protected by the legislation that is there. That is what the inquiry found: they could have been protected. So I disagree with my noble friend—
I have huge respect for him, but I really do think that this is a question of practice and of training. We keep repeating those words like a sort of mantra. What happens is the real issue—what action is taken to make sure that not just the police and the prosecutors but the health workers, social workers and voluntary workers, not those in the specific field of action but those who come across children in different ways, understand what they are seeing. I fear that, certainly in my area, modern social work training is not as precise in helping people to understand what they are seeing and then giving them courage and a legal understanding of what they can do next.
I say to the noble Baroness, Lady Doocey, that I stand somewhere in the middle on this issue. I have never been a great believer that more legislation will make a difference. My experience—and history—tells us that it does not. Some legislation will make a difference. The Government’s clause may well give a little jolt to the whole issue, but I hope that they will tell us what they are going to do to encourage all the professions to take this seriously. That goes not just for this area but for the whole range of child care and protection. We are at this time in this country in serious difficulties in making sure that our children are adequately cared for and protected.
My Lords, I rise because I have been quoted both in judgments and in evidence that I have given, and if I sit here and do not say anything, some might think that I did not agree with what I said last time. Well, I do.
I am concerned about child exploitation. I think that there are cases—and we have certainly been aware of them in court—where children have been exploited in circumstances which it would be difficult to describe as slavery or servitude or forced labour or even human trafficking. Children are exploited in many different ways and I do not think, if I may say so with respect, that the law caters adequately for those who exploit children who are not under some kind of parental or guardian responsibilities.
For that reason, I support the amendment. One problem with this area of the law seems to be that although we can often find the child who has been exploited we do not seem to be very good at hunting down through the chain of exploitation. For instance, we are very concerned, and obviously so, with children who come from abroad and are left in charge of cannabis factories. So far, we prosecute the child. We do not wait to see who is bringing the food once a week that is thrown through the prison door—because the house is no more than a prison. Where are they going? Who are they looking at? Who are they talking to? Who is making the money from the cannabis plant that the child is looking after?
The other feature that I want to draw attention to is how we relate to the provision on the protection of victims—that is, the defence under Clause 45. We provide a defence, which I strongly support, for slavery or trafficking victims who have committed an offence in circumstances that are defined, but the Bill speaks in Clause 45(1)(c) of “relevant exploitation”. Relevant exploitation in the Bill cannot address child exploitation of the kind that the amendment is designed to address. I ask the Minister to look at that, too.
My Lords, no one could possibly fault my noble friend for lack of persistence or focus, and no one would not want the best legislation for tackling—or, better, preventing—offences against children. I am afraid that I cannot support her amendment. I am sorry about that because I know her ambitions for the Bill, but I understand many of the points made by the noble Baroness, Lady Howarth, about practice. I would have thought that the point just made by the noble and learned Lord about cannabis farms was also one about practice and observation by the police; I would not have thought that a new offence was needed for that to be dealt with properly.
I have heard it said that a separate offence would mean that the police would take the matter seriously, but what we have heard from the criminal justice professionals, as other noble Lords have said, is that it is not a matter of an alternative but that there would be real risks to Part 1 of the Bill. They argue not just that a separate offence is not necessary—we often hear in this Chamber that something is not necessary and tend to ask, “Well, what harm would it do?”—but that in this case there would be harm. Alison Saunders and Kevin Hyland referred to the issue of determining age, which noble Lords have mentioned. This has bedevilled claims for asylum and responses to asylum seekers for a long time.
To add to the point that the noble and learned Baroness made, in relation to the letter that several of us received today from Kevin Hyland, the point about the case which he discussed with her was not just that so much time was spent on the issue of the woman’s age but that, as he writes, it was,
“distracting the jury from the real issue of her exploitation”.
I take that very seriously. I also take the point made by Alison Saunders that the clause would require evidence beyond reasonable doubt that the accused,
“believed, or had reasonable grounds for believing”,
that the person was under 18.
One briefing that we had asked how the evidential barriers would be overcome. The Government’s answer is not to require that bit of evidence. Consent and issues of age are in a sense excluded when one looks at other changes that have been made to the Bill.
Mention was made in the statements that the Minister circulated to guidance and sentencing guidelines. I have already referred to the fact that Clause 1 provides that regard “may be had” to certain factors. I do not know whether the Minister can help us about the weight of that “may”. Is it in normal parlance “shall” when we couple it with “have regard to”—because of course age is an issue in all this?
I very much take the points made about training. We have compared trafficking with domestic violence and how practice in dealing with domestic violence—which is by no means perfect—has progressed over the years. That, too, has been a matter of applying existing law in many cases.
In Committee, the noble Baroness, Lady Kennedy of Cradley, referred to future-proofing. She was of course right about new forms of evil being found, but we cannot future-proof at the expense of clarity in the present. The term in the clause, “practices similar to slavery”, worries me on that score.
Finally, I do not want to risk devaluing or demoting offences against adults by introducing the possibility that they would not be recognised because they are treated differently and separately from those against children. Vulnerable adults, too, need that help and support.
In Committee, I mentioned the directive which refers to a child-sensitive approach, but it does not provide for a separate offence. Thinking about it again, it seems to me that being child sensitive—we should be and the Bill is—does not require a separate offence.
My Lords, having listened to all the various learned speeches on the matter, I should like to tackle the matter from a slightly different angle. Although it is very hard to find a different angle at this stage of this short debate. What harm would be done if the new clause were included in the Bill? The Government have already moved forward with Amendment 4 but, as other noble Lords have asked: is that enough? The telling point has been made that it would clash with and be repetitive of other legislation. Are we saying that there is no legislation in this land which does not clash and is not repetitive? We have that all the time; perhaps we should not.
However, the question we must ask here is, I hope, this. If the amendment under consideration, as proposed by my noble friend Lady Doocey and supported by the noble Baroness, Lady Royall, the noble and learned Lord, Lord Judge, and others, was passed by this House or taken into account by the Minister after this debate, would there be a possibility of even one child not being exploited where previously that child or children may have been? I think that the numbers will be great but even if it was one child not being exploited, surely it would be worth while having this specific provision in the Bill. It would mean that it would be clarified and made more important for those who enforce the law. I hope that when my noble friend the Minister replies, he will say that the Government—
Perhaps I might ask the noble Lord about the other point that I made on confusion. What does he have to say about confusion?
I thank the noble and learned Baroness very much. We are talking about semantics and about circumstances, confusion and all the other words in the English dictionary. I would in fact be cheerful if there were some confusion, if it saved one child from being exploited. At the moment, I can see that there may be some modest confusion but I do not see that that weighs in any way with having specific legislation to protect the child. Are we saying that for fear of being confused, or of clashing or being repetitive, we desire to be in the middle, which I call sitting on the fence with the nails sticking in you where they should not? That is not enough; what we want is the best protection for the child.
I have not heard any Member of your Lordships’ House, on any side on this debate, say that they are not against the exploitation of children. I think we are all of a mind on that but what is not in agreement is whether this amendment is needed. I am not a lawyer and I shall not nitpick about confusion or circumstance, or any other such word in the dictionary. But having listened to the debate, to my mind we need a strengthening of Clause 4. I believe that this amendment would do that and that it is worth any confusion—any sitting on the fence, any clash or repetition—if it saves the exploitation of even one child.
My Lords, my Amendment 6 is in the same group. I suspect that the followers of Amendment 5 are now well past number 11 and following on in the second innings, so I wonder if I could be forgiven for taking over to speak to my Amendment 6. It is the consequence of a long-running dialogue between the Minister and I, where we have failed to agree having had a long time together on the subject, so I have brought this amendment back from its first appearance in the early stages.
Your Lordships will recall that I first raised this subject when I was reminded of my experience in working for the Australian Civil Service in London. I recounted in Committee that I was deeply suspicious of the circumstances in which I was being required to herd small children on to boats at Tilbury for transportation to Australia. They did not have names; they did not know who their parents were, or where they came from, and they were completely terrified. I was suspicious that these children were improper migrants—that they did not have the proper authority to go—and it was a very strange position. Since then, I have done a lot more research and a lot of very interesting things have come to me in the post, including a little hate mail, which was actually very useful. Because of the fact that I had admitted overseeing the transportation of some 2,500 children, I was accused of being worse than Jimmy Savile. I think that Jimmy Savile might have been quite offended at that because he is being accused in relation to 300 children, whereas I have about 2,500 on my slate.
However, in the circumstances that was interesting because it raises two questions. First, was it illegal at the time that these children were being transported and, secondly, is it something which could occur again? My own belief is now, emphatically, that it was illegal and that there was no proper authority for the transportation of those children. It involved many tens of thousands of children over 15 years; we should be deeply ashamed of it, and make sure that the Bill cannot talk about controlling slavery without making it absolutely certain that we can never again repeat this dirty little secret of our history.
I need to give a bit more detail. I am going to quote the reference for a committee report that was brought to my attention by the Child Migrants Trust, and which I was initially told by the Library no longer existed. However, I am happy to say that our wonderful Library found the only copy that it thinks officially exists today. I will read its number into the record for the House: HC 755 I and II in volume XCVI, 1997-98. That report has now been found and is on the shelf behind the inquiry desk in the Library for any noble Lords who want to verify it. I have mentioned this at the start of what I am going to say because everything I will say is verifiable somewhere in that huge book. The committee in question was a Department of Health committee from 1997 to 1998. It was a rare committee because it was funded to travel to Australia to carry out its investigations on the ground for nine days. I am afraid we do not have committees like that any longer.
The story starts at Christmas 1944, when the Prime Minister of Australia contacted the coalition Government in England and said, “You’re getting towards the end of a war and you’re going to be overrun with orphans. We want to help you. We’d like to take 17,500 orphans from you every year for the next 15 years. We want at least 150,000”. The British Government thought about this for a while and said, “We’ll talk about it”. Then they brought in the orphanages and social services. Of course these were coalition times, so Herbert Morrison was in charge. By a quaint quirk of fate, I knew Herbert Morrison very well later on because he was president of a cricket club where I was the secretary, and I could not have asked for a man of greater integrity, personal charm or dedication. He was a very human being indeed, and I cannot believe that he would ever have done anything disreputable whatever. However, what happened under his hands was appalling.
They set about getting together a policy to find 17,500 children a year who could be given to the Australians. They brought in the heads of the orphanages and got Dr Barnardo’s to head the exercise. They got the local councils to get their heads of their child agencies, which I suspect was then an industry somewhat in its infancy compared with what it is now, and started to put the process together. Then came an election. The Labour Party won it with the very high promise of Beveridge’s social reforms, including the National Health Service. I do not remember anyone telling the electorate at that time that if they wanted a health service they would have to accept that we were going to dispose of 195,000 of our children to a foreign country without trace or record being kept, but that is in fact what happened. As the head of Barnardo’s says in a clear and precise statement at the opening of the committee, “It was an economic necessity. We couldn’t afford to look after the children we had. There were too many of them. We hadn’t got enough beds and couldn’t feed them. We had to do it. It was a Government-led initiative which we had to do”. That is an interesting comment and someone might want to look it up on the record one day.
So they did it. On the face of it, things were going to be fine because the Australian Government were falling over backwards to be helpful. They said, “You send the children to us. We will have prearranged adoption homes and domestic places for each of the children and we will ship them off directly as soon as they land, after giving them a medical check, and we will then give a maintenance cash allowance to every home that takes one to look after these children. Then we’ll get the adoption process carried through the courts”. So the British Government said, “Sounds fine to us”. However, Morrison said, “We will insist upon the British Home Office maintaining an oversight responsibility for their welfare afterwards”. We need to remember that because there is no evidence that it was ever done, and we need to see what happened to that.
A change of Government having taken place, Morrison steps aside and Chuter Ede becomes Home Secretary. There was nothing wrong with Chuter Ede but there might have been something wrong with a few of his servants. The process goes like this: the Labour Government take office on 26 July 1945, and on 16 September that year the first ship sails full of children, 2,000 of them. The 2,000 children set off into the blue and are the first of 155,000 who are sent between that date and the end of 1960. After 1960, another 120,000 are sent, bringing about a total in aggregate of 295,000 children, all from orphanages and local council overspills, which could not cope with them.
These children, having been sent away, were supposed to have been going to homes. Unfortunately, disaster struck as soon as the first boat reached Australia. The courts immediately refused to sanction a single adoption on the grounds that there was no parental consent for any of them. Without parental consent, the Australian courts did what a British court would have done and said there could not be adoption. Consequently the Australian Government cut off the supply of maintenance to the households that were going to pick them up and the households threw the kids out on the street, where a great many of them have been ever since to this very day. That is the issue. On any actuarial basis, as we sit here today debating this, some 25,000 to 30,000 of those children are sleeping somewhere rough in the semi-outback of Australia tonight. We had better think about them a bit. There is a real, ongoing problem.
When the Minister says that we do not need to ban child transportation because it will never happen again, we cannot be sure. All right, we have a coalition Government at the moment who certainly would not do it. I hope that if we get a Government represented by the Benches opposite back in, they will have learnt the lesson of last time and would not do it again, but we do not know that by next time round, perhaps in two or three years’ time, we are not going to have little purple men from Mars in power the way things are going on in this country at the moment. For all I know, they may be better than the options available to us, but for the moment we have to put up with what we have. We cannot trust the moral hazard of leaving this as an issue that could recur in future.
It got worse after the court would not sanction the adoptions. The worst thing possible happened: two charitable organisations stepped forward and said they would look after the children, that they were very rich and that they would take control. They were the Sisters of Mercy, an organisation of Catholic nuns, which was very improperly named, and the Christian Brothers, who were already known in government service as the “Christian buggers”. They took control of the whole process and created two networks of homes, one for girls and one for boys, state by state across Australia, with an average of 350 people in each. The Christian Brothers published their rules. The homes were to be run as strictly as possible like borstal institutions in England. These children had not done anything wrong and should not have been in a borstal of any sort, but they were being subjected to this. The rules of a Christian Brothers home were that if you were abused by one of the holy fathers, that was an act of god, and if you complained about the holy father, that was a sin against god and you would be flogged for it. By the way, the flogging was with a metal hacksaw replacement blade. It did not leave much of a kid. This went on.
Eventually, after 150,000 of these children had gone, the penny dropped that there was something wrong with it. The Government of the day could not look back today and say that they did not know about this abuse because something called the society of social workers or social advisers—something like that; I have written it down as I had never heard of it before yesterday—told the Labour Government in 1948 what was going on in Perth at the Christian Brothers home, and there was no doubt from that moment on. Any ship that was allowed to sail from that date on was allowed to sail in the knowledge that the inmates were going to be raped and abused. That is beyond just simple migration. Still nothing was done to demand from the Australian Government that they brought this thing up to date or did something about it. Nothing was done to stop the transportations. They went on and on.
In the vast resources I have now been allowed to read on this subject, there are just four stories I am going to tell which illustrate how awful this was. They are four out of more than 600. Before the committee got to Australia, the Australian Government agreed that they would write to every known migrant and ask them to write an account of their experience. They could find only 600 out of 295,000 to write to. They got those replies. Those reports, uncorrected as to spelling or grammar, are in the report which is in the Library. They are all cross-referenced by code number and name, but they are there as they are written. I will quote four little stories from there.
The first one, to make clear how dreadful it was, happened not in Australia but in Sheffield. A single parent and her daughter, seven years old, are already known to the local child authority—we do not know why. They get a message that they are to report one day to a council office in the centre of Sheffield, taking nothing with them. They do that, and at the office they find four nuns waiting for them, who pounce upon the two of them. They pin the mother to the ground while they tie a clothesline or something like it round the daughter, binding her very securely, and proceed to drag her through the streets of Sheffield to the railway station, where she is mixed up with a lot of other girls, taken on the train to Liverpool, put on the boat that night, and sails away. Mother and daughter have never said a word to each other from that day to this. That is how the councils worked, and there are many other examples like that; it is not an isolated example, although it is a terrible one.
For me, the worst story in the entire book is that when the committee was going through this, it asked to meet the authors of selected reports, and the Australian authorities set up 263 interviews for them. They ran for an hour each, and the committee broke itself into units of two and three to get maximum productivity. They walked in to meet a man who was 50 years old at the time—this was in 1997—and he was in tears over the table. “What’s wrong?” they said. “Go away—don’t talk to me. Please go away”, he said. “What’s wrong?” they asked again. “No, you mustn’t talk to me—you’ll destroy everything”. They asked why, and gradually got it out of him. He had been in the Perth home of the Christian Brothers and had got away at the age of 18 and got lucky—he got a job with a timber merchant. The timber merchant had been very kind to him; he fed him and let him sleep in his shed. He got paid a wage, and eventually he married a local girl. Twenty years later, they have two boys, who have finished their schooling and have places at university. He explained, “If it gets out that I have been interviewed by you, it’ll be known that I am a migrant child and we will never again be allowed to work for—”
My Lords, there is guidance as to the length of time noble Lords should address the House on Report. The noble Lord has very graphically illustrated the point he is trying to make, but I ask him to wind up this contribution on Report in the interests of the other Members present who want to hear the following business.
I can very easily move to the end. I quoted that last example because it indicates how, in the words of that fellow of 50, all migrant children are now regarded as the untouchables of Australian society. They have no place, no identity—nothing. When the Minister says that he does not think that we need to ban this once and for ever, I say that we do, because the reasons he gives for it being safe are the very reasons it happened at all. He says that it requires a court order, but it got a court order when it was done 50 years ago, relying on the fact that the order was endorsed or signed over by the orphanage or whatever local council had the authority. Therefore we cannot do that, as it is only the same situation. We have to stop the possibility of anybody doing this again in any circumstance. I want to see that point completely written into the Bill so that we ban this dreadful thing once and for all from ever happening in our society. We got it badly wrong last time; let us not even think of doing it again.
My Lords, it might be helpful at this point if I first speak briefly to my noble friend’s Amendment 6 to put some remarks on the record, and then return to Amendment 5, on which a number of other Members of the House will probably wish to comment further or to listen to particular points I will make.
When this case was raised by my noble friend Lord James at Second Reading and in Committee, it was a new chapter of this country’s history that I had not been particularly aware of, and a very regrettable one too. We went into some detail of this in correspondence and at a number of meetings with my noble friend, as well as with my noble friend Lord Freeman. It was quite a harrowing experience, and I know that for my noble friend the recollection is personally very harrowing. At the conclusion of those meetings, I said that I would put some words on the record regarding the Government’s response and previous Governments’ responses to what had happened as an acknowledgement of our apology, which I will come to. I hope that that reassures him that we believe we now have in place the safeguard, chiefly through the courts, of a court order being required for any child being moved outside this country. That is a significant enhancement.
On 24 February 2010, the then Prime Minister, Gordon Brown, made a formal apology in Parliament on behalf of the nation, expressing the nation’s regret for the misguided child migrant scheme. The Prime Minister spoke for all of us when he expressed his deep regret for those flawed policies and expressed sorrow that child migrants were allowed to be sent away when they were at their most vulnerable. Almost five years to the day since that apology was made, I am sure that noble Lords will join me and my noble friend Lord James in echoing that regret and that apology.
I want to take a little time to reassure your Lordships that the Government have taken action to support child migrants in regaining their true identities and reuniting them with their families and loved ones. We cannot undo the past but such action can go some way to repair the damage inflicted. I know that that is what my noble friend Lord James wants.
Alongside the formal national apology in 2010, the Government announced a £6 million child migrants’ family restoration fund to support travel and other costs for former child migrants who wish to be reunited with their families. Since its launch in 2010, the fund has provided more than 700 former child migrants and their families with support in travelling to be reunited. In September 2014, the Government announced that the fund will continue until March 2017. By then, the Government estimate that the fund will have helped around 1,000 former child migrants and many thousands of family members.
I also pay tribute at this point to the work of the Child Migrants Trust, which administers the fund. It is the key charity that focuses on family tracing, social work and counselling services for former child migrants and their families. I specifically pay tribute to the work of the trust’s director, Margaret Humphreys, who, like my noble friend Lord James, has done so much to raise awareness about this issue.
I reiterate that it is our belief that the legal guarantees are now in place to prevent any such activity ever happening again. Moreover, I believe that, together with the courageous apology made five years ago, the reparations and the work of the Child Migrants Trust, the guarantees go some way towards redressing the wicked wrong of the past. On behalf of this Government, I reiterate our apology for previous Governments’ involvement in that terrible episode.
It is right that chapters such as the one in 1944 but also those that went on until the late 1950s and even the early 1960s remind us to have an element of humility when we talk about child protection issues in this country. Therefore, I am grateful to my noble friend for raising the issue. I very much hope that the remarks that I have again put on the record and the guarantees that I have underscored will allow him to draw not only a legislative line but a personal line under this very sad chapter.
I turn to the child exploitation offence, which has been the substantial part of a very interesting debate, as it was in the previous stages of this Bill considered in your Lordships' House. The catalyst for that has been my noble friend Lady Doocey, whose description as tenacious I can say, as the Minister involved in this matter, is probably a bit of an understatement. She has taken on, engaged in and championed this issue in the best traditions of parliamentary work. I pay tribute to her and to the work that she has done.
In many ways, the debate that we have had on this issue highlights the difficulties that the Government have had in approaching it. The Government do not come from any position of an ideological or principled approach to this matter. Clearly, the amendments that we have made by the score to this Bill would suggest that, if we genuinely felt that this was something that, in the words of the noble Lord, Lord Palmer, would lead to one more successful prosecution, without hesitation we would support this amendment. That is without doubt. The contrary argument has been made by the DPP, the national policing lead and, of course, by the Independent Anti-slavery Commissioner, who was in charge of human trafficking until taking up his post.
The noble and learned Baroness, Lady Butler-Sloss, referred to her conversations with Kevin Hyland, which are very much echoed by my own experiences with him, when he gave case after case where he feared that, if he had had to prosecute on a particular age-related offence, it could have meant that he was not able to get the prosecution. That is very much the argument for and against. One believes that it will secure an additional level of prosecutions, while the other view, which we have heard very clearly articulated by the noble and learned Baroness, Lady Butler-Sloss, the noble Baroness, Lady Howarth, and my noble friend Lady Hamwee, is that it could make it more difficult and we could be put in a position that people might get away with this and there could be fewer prosecutions rather than more.
I turn to the central point being put forward by my noble friend Lord Carlile, who asked why the law that was in place has not been used. Why have there not been more prosecutions? The argument was made that there has been only one—in fact, somebody said that there had not been any, but there has. I have an example of one, which the Crown Prosecution Service made successfully under Section 71 of the Coroners and Justice Act 2009, where there was a slavery, servitude and forced or compulsory labour offence involving child victims. The offence was used to convict a mother who sought to sell her baby for £35,000, and a man who acted as agent. They were both convicted and received sentences of seven and nine years respectively. The fact that those are all too few instances—I recognise that, and the noble Baroness, Lady Royall, said that it was a troubling concern—is in many ways a reflection of the fact that it is the practice of the law that is at fault here rather than the word and letter of the law. That is why it is very important that, in addition to the words that I put in my letter to the noble Baroness, Lady Royall, which I will happily repeat on the record here today, the most crucial element is what is going to happen in terms of the prosecutions going forward and what is going to happen with the training. We received a letter today from the Independent Anti-slavery Commissioner in which he talked about the very important role of providing training and engaging with the College of Policing. That is in addition to the measures that the Director of Public Prosecutions and the Crown Prosecution Service have announced they want to work together on.
The effect of the Bill will be measured and evaluated in post-legislative scrutiny or through the annual report to be laid before Parliament by the Independent Anti-slavery Commissioner. Someone will keep a tally and ask how many successful prosecutions are being brought forward and put on the record. Clearly, we are talking about something which is a quantum leap above the DVD/CD type of approach and is more of a systemic change. My noble friend Lady Hamwee is right: we are talking of a systemic change almost along the lines of what we have seen in tackling domestic violence in terms of understanding it, seeing it from a victim’s point of view and people being trained how to deploy the resources available under the law to achieve successful prosecutions. That process is augmented by other measures in the Bill.
I listened carefully to all the contributions, but particularly carefully to that of the noble and learned Lord, Lord Judge. The Bill contains a defence for victims, and children are included in that. We have introduced child trafficking advocates and are applying a modern-day strategy for the first time. We have introduced the control orders, which were mentioned, as well as the overhaul of the national referral mechanism to make it more effective in protecting children in particular. All these things are being introduced together with two elements, the first of which is the clarification which we have introduced through Amendment 4. I was very grateful for the support of my noble friend Lord McColl on that. That is very significant given that I refer to him as the father of the Bill. I very much appreciated his support on that amendment. Therefore, we have included a provision on exploitation and given a commitment and clarification in the letter which I wrote to the noble Baroness, Lady Royall. We have given a further absolute commitment that training and collaboration need to be provided and that your Lordships and the Government expect to see a significant increase in the number of successful prosecutions being brought, particularly as regards child exploitation. We have increased the sentences and tariffs available to the courts and we expect them to be used.
With those reassurances that I offer to my noble friend—I again acknowledge the commitment and tenacity that she has shown in highlighting this issue—I hope that there is sufficient on the record here and elsewhere to enable her to say that for the moment she is content to see how this issue progresses. We will keep an eagle eye on it as it goes forward to make sure that the arguments which have been put forward by the DPP, the Crown Prosecution Service, the Independent Anti-slavery Commissioner and the national policing lead are backed up in the number of successful prosecutions that are brought in future.
My Lords, I am a bit disappointed that the Minister did not answer the question I asked him. I asked whether he was willing to put into guidance the words that he used in the letter to the noble Baroness, Lady Royall:
“Where a person deliberately targets a vulnerable person, such as a child, there is no requirement for any force, threats or deception to be used to induce the child into being exploited”.
That was the key concession that I was looking for, because talk is cheap but actions speak louder than words. I really wanted that to be in guidance so that the police in particular, and everyone else, were very clear about what was meant by “exploitation”. Can the Minister deal with just that point?
I thank everyone who has spoken. It has been an interesting debate. I take on board a lot of the comments made. I do not agree with all of them. The amendment is clear and would have made a significant difference to children who are being exploited on a daily basis and to those children who are slipping through the net, which we know is happening despite what the police and the DPP say. All the organisations which work with such children on a daily basis are giving us evidence of children who are slipping through the net—and it does not just involve children who are sent out to beg by their parents.
However, I recognise that the Government have moved substantially on this issue. If they could include in guidance the words in the letter to the noble Baroness, Lady Royall, that would be very useful indeed. I shall continue to work with non-governmental organisations and charities on this issue. Does the Minister want to come back?
I am happy to put some additional words on the record on this point while I await further inspiration on the specific issue of guidance, if that is a hint to those behind me.
I am happy to reassure my noble friend that there is no requirement in a Clause 1 offence to prove physical force, threats or deception, including where the victim is a child. Of course, where there is evidence of, for example, physical force having been used against a victim, it would be helpful evidence for the prosecution to use, but it is not needed to prove the offence of slavery, servitude or forced or compulsory labour. The Government have changed Clause 1 several times to ensure that the specific circumstances of vulnerable victims, including child victims, are fully considered. We have already made it clear that the consent of the victims does not prevent a conviction and that all forms of vulnerability can be taken into consideration by the court.
The guidance would be for the Director of Public Prosecutions to issue. We have said that the DPP and the Crown Prosecution Service will work together to ensure that there is a more effective—
My Lords, the Minister was crystal clear in his letter to me, for which I am very grateful. While I realise that it is for the Director of Public Prosecutions to issue the guidance, as the noble Lord said, it would be extremely helpful if he could tell the DPP that it is the will of Parliament that those words be included in guidance. I am sure that she will then take that into appropriate consideration.
I am very happy to give that undertaking. It should be something of which the DPP is aware. She would be particularly aware of it because the level of consultation and soul-searching that we have had on this issue in the Ministry of Justice and the Home Office—it has sometimes been hidden from the debate—has been unprecedented in comparison with any of the other proposed amendments to the Bill that I have considered. However, I am very happy to report that back.
It should also be borne in mind that it is the principal responsibility of the chief constables and police and crime commissioners to take this matter, and the will of the House, forward to ensure the prosecution of those who are guilty of child exploitation, and to bring those prosecutions forward successfully so that the victims can be protected. The prosecutions should serve as an example to stop this heinous activity in the future. I hope that that further inspiration might be helpful to my noble friend.
That is very helpful. I thank the Minister very much. Nobody will be happier than me if all my worries are proved groundless. I will be absolutely ecstatic, as will all the non-governmental organisations and the charities that work with these poor children on a daily basis. I will continue to monitor. I pay tribute to all the charities and the NGOs, which have done so much excellent work in this field over so many years. It must have sometimes appeared to them that they were battling the elements and bashing their heads against a brick wall.
I also place on record my thanks to the Minister for his determination to get this legislation right and for his willingness at all times to listen and respond to concerns from everyone across the House and from all the people who work with children on a daily basis. I thank him very much and I beg leave to withdraw the amendment.
Amendment 5 withdrawn.
6: After Clause 4, insert the following new Clause—
“Forced child migration
(1) A person commits an offence if the person arranges or facilitates the travel of a child (“C”) with a view to transferring C’s permanent residence unless the person reasonably believes that—
(a) C’s parent or guardian consents,(b) it is necessary for securing compliance with an order under section 8 of the Children Act 1989, or(c) it is necessary for securing compliance with an order of a court in a foreign jurisdiction.(2) For the purposes of subsection (1) “permanent residence” shall not include any detention under a sentence that is imposed by a court after a conviction for a criminal offence.
(3) A person may in particular arrange or facilitate C’s travel by transporting or transferring C, harbouring or receiving C, or transferring or exchanging control over C.
(4) A person arranges or facilitates C’s travel with a view to transferring C’s permanent residence only if the person knows or ought to know that C is travelling in order to live for a substantial or indeterminate period of time in a different location to the one in which C lived before the travel.
(5) “Travel” has the same meaning as in section 2.
(6) A person who is a UK national commits an offence under this section regardless of—
(a) where the arranging or facilitating takes place, or(b) where the travel takes place.(7) A person who is not a UK national commits an offence under this section if—
(a) any part of the arranging or facilitating takes place in the United Kingdom, or(b) the travel consists of arrival in or entry into, departure from, or travel within, the United Kingdom.(8) For the purposes of this section, a “person” shall include a public body.”
I thank the Minister for his response to my points, but may I just put two questions to him? I will wholly understand if he chooses to answer in writing afterwards. First, will he give consideration to a comment that appears in the great book in the Library, attributed to Herbert Morrison from early 1945, to the effect that in any case where an orphanage or local council alone authorised a migration, it should require the countersignature of the Secretary of State?
Has the question been put?
I am sorry, that was my first of two questions to the Minister. He stood up, so I thought he was going to answer me. The second question—
Let me just say to my noble friend that we will continue this dialogue. That is absolutely certain. In this context, a far stronger guarantee for children in future is the existing body of law that now comes into place and into effect through the Children Act and other pieces of legislation since the 1950s. Crucially, any person seeking to take a child out of the United Kingdom requires a court order to do so. That is a much stronger guarantee than anything that can be given by the Home Secretary or anyone else.
I thank the noble Lord for that, but I must point out that they all had court orders last time. My second question is this—
My Lords, one does have some respect for the Companion. Is there a question before the House? Has an amendment been moved? If not, why not? May we please have some order in the House?
I apologise to the noble Lord if I caused offence, but I thought the situation was that you could reply to the answer you had had from a noble Lord.
The Minister has already replied and the question has now been put to my noble friend. We are requesting him, please, to withdraw his amendment.
Amendment 6 not moved.
Amendment 7 not moved.
Tax Avoidance and HSBC
My Lords, I will now repeat in the form of a Statement the Answer given by my right honourable friend the Chancellor of the Exchequer to an Urgent Question in another place. The Statement is as follows.
“The allegations about tax evasion at HSBC Swiss are extremely serious. They have been the subject of extensive investigation by HMRC. Money has been recovered for the Exchequer and HMRC continues to be in active discussion with our prosecuting authorities. Both the chief executive of HMRC and the Director of Public Prosecutions have confirmed that they have the necessary resources to carry out their work on this. If they need more resources, they will get them.
The House should know, however, that in each and every case the alleged tax evasion—both by individuals and the bank itself—happened before 2006, when the shadow Chancellor was then principal adviser on tax policy and economic affairs to the then Labour Government. The news that the French had got hold of files with the names of the bank accounts became publicly known in 2009, when the shadow Chancellor was sitting on these Benches, in government, and the files were requested and recovered by HMRC before May 2010, when he was a member of the Cabinet. He wrote to me last week asking me five questions about my responsibilities. I will repeat the answers that I have given to each one directly, and in return he can answer the questions about his responsibilities.
First, he asked me about what he called ‘the selective prosecution policy’ pursued by HMRC and a decision made by Ministers. The answer is: yes, it was. The Inland Revenue’s overall approach to prosecuting cases of suspected serious tax fraud was set out in col. 784W on 7 November 2002 by the then Chancellor of the Exchequer, the right honourable Member for Kirkcaldy. It was confirmed again when HMRC was created in 2005, again by the right honourable Member for Kirkcaldy. What I have done is increase resources for tackling tax evasion and, as a result, prosecutions are up fivefold. So I have answered for my responsibility. Perhaps he will answer for his and tell us: did he have a hand in drafting the selective prosecution policy under the last Government?
Secondly, he asked me in his letter when I was first made aware of the HSBC files, what action I took and whether I discussed it with the Prime Minister. I first became aware of the existence of these files in 2009 when a story appeared in the Financial Times. I was the shadow Chancellor at the time, so I could take no action, and I could not discuss it with the then Prime Minister at that time because we were not on speaking terms. So that is what I knew. What did he do, as a Cabinet Minister, when he heard about these revelations, and did he speak to the Prime Minister about them?
Thirdly, he asked why we appointed Stephen Green to the Government. We thought that he would do a good job as Trade Minister—and so did the Labour Party, which welcomed his appointment. But the trade job was not Stephen Green’s first public appointment: that was when he was appointed by the last Government to be not just a member of the then Prime Minister’s business council but its chair, a post he continued to hold after the existence of the HSBC files became public and after HMRC negotiated to receive them. So I have explained why we appointed Stephen Green to our Government: why did he appoint him to his Government?
Fourthly, he asked about discussions with Stephen Green about tax evasion. I can confirm that the Cabinet Secretary and the director-general for ethics at the Cabinet Office carried out the background checks for ministerial appointments that were put in place by the last Government and that Stephen Green’s personal tax affairs were examined by HMRC on behalf of the House of Lords Appointments Commission, again using exactly the last Government’s procedures. Those are the procedures we followed when we appointed Stephen Green. What procedures did he follow?
Finally, he asked me, ‘Why did you sign a deal with the Swiss authorities in 2012?’. He does not need my explanation—listen to the shadow Chief Secretary. This is what he said at the time:
‘We support the agreement signed by the UK and Swiss Governments to secure billions in unpaid tax’.
He is right—billions in unpaid tax never collected under a Labour Government.
Under this Government, tax evasion is at the top of the G8 agenda. We have collected more money, and prosecutions have increased five times over. Ahead of the Budget, I set the Treasury to work on further ways to pursue not just the tax evaders but those providing them with advice. I say to anyone involved in tax evasion, whatever their role: this Government are coming after you. Unlike the last Government, who simply turned a blind eye, this Government are taking action now and will do so again in the weeks ahead. So I am happy to answer any time for our record on tackling tax evasion: now let him account for his”.
My Lords, that concludes the Statement.
My Lords, a highly political Statement from the other place a month or so before the general election I suppose is to be anticipated. But the Chancellor did not answer the questions, and it is for this Minister to answer the questions before this House. Once the information was available of the 1,100 names involved in tax evasion or avoidance, the Chancellor confirmed that the “selective prosecution policy” was a decision of Ministers. There has been one prosecution—I repeat, one prosecution—since then, despite the fact that the Government also gave the assurance to the Public Accounts Committee that at least another dozen would follow. None has. The country will be staggered to discover that the Government are moving at this pace to deal with these issues, particularly when it is known that the French Government have prosecuted a multiple of cases with success. What is our problem?
Secondly, why was the noble Lord, Lord Green, appointed a Member of this House and a member of the Government when the Government already knew the position of these files? It is not, as the Government said, because no Chancellor seeks to get indications of the personal taxation of a Member of this House—we all understand how improper that would be. But it is the role of the noble Lord, Lord Green, as chairman of HSBC during this period that led to the bank being subject to £1.9 billion in fines; that is why we need an explanation of why the Government carried on with this appointment.
Finally, on the question of the deal with the Swiss authorities in 2012 which prevents the UK actively obtaining similar information in the future, why was this declaration signed by the Government? What advice was given about how it would impede the ability of HMRC and the Government to act in the future? The Minister thus far has given no adequate explanation of that.
My Lords, the noble Lord asked about the selective prosecution policy and why further prosecutions have not been taken. In the case of the HSBC people, the French authorities placed restrictions on the way in which we could use the data so that we could pursue only tax evasion, which greatly circumscribed what we could do. That restriction is in the process of being lifted by the French authorities within the last few days, so there is the possibility of going after more people in future.
The noble Lord contrasted our prosecution position with that of France. I am afraid that he is misinformed. In France they are pursuing prosecutions, but, as yet, there have been none. HSBC Geneva has been indicted for money-laundering offences, but the case has yet to proceed to court.
The noble Lord asked about the noble Lord, Lord Green. I have nothing further to say about the procedures followed by him; they were perfectly straightforward and proper. I believe that the noble Lord, Lord Green, may be asked to appear before the Treasury Select Committee in another place—and, if he does, he can be asked questions which may be appropriate to his time as chairman of HSBC.
The noble Lord was very dismissive about the deal with the Swiss authorities that has yielded more than £1 billion. That is £1 billion more than the Labour Government even set about trying to get from people who had bank accounts in Switzerland. Frankly, to be dismissive of it bears no investigation whatever.
Finally, the Government’s pursuit through G8 of the automatic transfer of tax information, which has now been agreed by 90 countries, will mean that the kind of activities that were happening in Switzerland simply will not happen in future, because all transactions and money placed in Swiss bank accounts will automatically be disclosed to the British tax authority.
My Lords, does my noble friend agree that the issue before us is much greater than the particular case that has been raised? The City of London was for long regarded as having the greatest integrity and as one of the most honest financial centres in the world. To this day it plays a large part in the economy of this country. Does he agree that it is absolutely crucial that the integrity and honour of the City of London must be rebuilt? Sadly, it is not only about the case of HSBC and the allegations of money-laundering—incidentally, money-laundering in areas which are clearly criminal, such as the laundering of money from drugs and trafficking. Does he also agree that it is crucial that the Government should pursue their policy of mounting a vigorous attack on those who avoid or escape paying their taxes?
I should like to ask my noble friend two questions, because no doubt he shares with me the view that it is absolutely critical that the City of London should be seen as a centre of honour and not a centre of rather clever dodges to escape the law, both national and international. The first question is whether the suggestions made by my noble friend Lord Macdonald that what we are now seeing adds up to something of a conspiracy does indeed provide proper grounds for prosecution. The second question is whether, in the light of Mr Stuart Gulliver’s response and indeed admission that he himself was a client of the Swiss bank, and that in addition he is now considering the right to receive the great bonuses coming up from the considerable profits of HSBC, it would be sensible for the bank and its shareholders to consider very carefully whether those substantial bonuses should be paid in full. I say that given the record of HSBC not only in this matter but, equally disturbingly, in the heavy fines it has had to pay for being part of the so-called forex scandal earlier last year.
My Lords, before the Minister replies, can he inform the House of how many minutes are available for Back-Benchers?
My Lords, I am waiting for a reply from my noble friend.
My Lords, there are 10 minutes for everybody, so let me be brief. I agree with my noble friend in her core view. I have not read in any detail what my noble friend Lord Macdonald has said, but HMRC has made it clear that now that the restrictions on the use of the information from France have been lifted, it is looking closely at that new information and will refer cases to the CPS for prosecution as appropriate. I think that bonuses at HSBC are matters for its board and shareholders.
My Lords, that really was an astonishing and disgraceful Statement. I heard it in the House of Commons, and it was outrageous how the Chancellor tried to portray Labour as the friends of the tax evaders. If that is the case, why is it that £5 million has been given by HSBC to a political party—not the Labour Party but the Tory party? Why is it that there are three Peers who are either members of the board or advisors to HSBC—not Labour Peers but Tory Peers? Perhaps I can remind the Minister that in the July my noble friend Lady Royall and I raised a question about the appointment of the noble Lord, Lord Green of Hurstpierpoint. The noble Lord, Lord Strathclyde, and others pooh-poohed the question and said that there was no need to worry about it. Now we are being told that we did not raise it at the time. I raised it because the noble Lord never turned up at the House, and that is why I dubbed him the Scarlet Pimpernel. He really has to come and face the music about his role as the chair of HSBC.
My Lords, I am sure that the noble Lord, Lord Green, like many other noble Lords, will read the noble Lord’s comments with great interest.
My Lords, does the noble Lord recall that about two weeks ago I raised with him on the Floor of this House the question of the governance of banks and reminded him of the Bank of England’s criticism of the failure of that governance? There can hardly be a better example of the failure of governance than what has happened at HSBC. It is one thing to say that these organisations are so big that they need to be broken but, frankly, they are not so big that they cannot be better managed. The managements of these banks need to provide reports on the quality of their management. They need to give those reports to the Chancellor of the Exchequer so that they can be placed before both Houses and we can keep an eye on these organisations. They are now becoming a disgrace to the public where once they used to be regarded as one of the great strengths of the United Kingdom.
My Lords, the important thing to note is that the problems that we are now looking at—never mind who was in government—arose before the new regulatory regime was in place, before the banking industry itself set up its new standards body, and before there was the kind of scrutiny of what is happening in the banks that there is now. Everyone agrees that there needs to be a change of culture in the banks, including many who are in senior positions in those banks. I agree completely that Parliament has a role to play in calling the banks to account, and I hope that both Houses will continue in it.
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the most recent European Council, which covered Ukraine, the eurozone, terrorism and extremism.
On extremism, let me first address the case of the three British schoolgirls from east London leaving their families and attempting to travel to Syria. All of us have been horrified by the way that British teenagers appear to have been radicalised and duped by this poisonous ideology of Islamist extremism while at home on the internet in their bedrooms. They appear to have been induced to join a terrorist group which carries out the most hideous violence and believes that girls should be married at nine and women should not leave the home. Their families are understandably heartbroken and we must do all we can to help.
We should be clear that this is not just an issue for our police and border controls. Everyone has a role to play in preventing our young people being radicalised, whether that is schools, colleges and universities, families, religious leaders or local communities. That is why we have included a duty on all public bodies to prevent people being radicalised as part of our Counter-Terrorism and Security Act, and of course stopping travel to join ISIL is vital. When people are known risks, whatever their age, they go on our border warnings index and we can intervene to prevent travel and seize their passports. But what this incident has highlighted is the concerning situation where unaccompanied teenagers like these, who are not a known risk, can board a flight to Turkey without necessarily being asked any questions by the airline.
We need new arrangements with the airlines to ensure that these at-risk children are properly identified and questioned, and the Home Secretary and the Secretary of State for Transport will be working with the airlines to bring this about. First, whenever there are concerns, police at the border should be alerted so they can use the new temporary passport seizure powers to stop people travelling. Secondly, given reports that one of the girls was following as many as 70 extremists online, this case underlines the importance—this was covered at the EU as well—of the work we are doing with social media companies. We have made progress with these companies which are working with the police and the Home Office to take down extremist content online. And at the EU Council we agreed to do this across the European Union. But we also need greater co-operation over contacts between extremists and those who could be radicalised. Internet companies have a social responsibility and we expect them to live up to it.
Thirdly, we need to continue to press for our police and security services to have access to passenger name records for as many routes as possible in and out of Britain, and we need this to happen right across the European Union, which was the subject of the most substantial discussion at the European Council. These records provide not just passenger names but also details about, for instance, how the tickets were bought, the bank accounts used and who people are travelling with. This is vital information that helps us to identify in advance when people are travelling on high-risk routes and often helps us to identify terrorists.
I raised this explicitly with my Turkish counterpart in December and we will continue to press to get this vital information wherever we need it. Until recently, and in spite of British efforts to get the issue prioritised, discussions on these passenger name records in the EU had been stuck. But following the terrible attacks in Paris and Copenhagen, it was agreed at the European Council that EU legislators should urgently adopt, and I quote, “a strong and effective” European passenger name records directive. That was probably the most important outcome of this EU Council. What I would say is that we have to fix it. It would be absurd to have the exchange of this information between individual EU member states and other countries outside the EU, but not among ourselves.
Most of the people travelling to Syria do not go there directly. They often take many different routes within the EU before even getting to Turkey and so we need this information badly. The European Council also agreed that law enforcement and judicial authorities must step up their information sharing and operational co-operation, and that there should be greater co-operation in the fight against the illicit trafficking of firearms.
Turning to the situation in Ukraine, I met President Poroshenko ahead of the Council. He thanked Britain for the role we have played in ensuring a robust international response at every stage of Russia’s illegal aggression. We were the first to call for Russia to be expelled from the G8. We have been the strongest proponent of sanctions, and a vital ally in keeping the EU and US united. President Poroshenko welcomed the diplomatic efforts that had been made leading up to the Minsk agreements, but he agreed that it was essential to judge success not by the words people say but by the actions they take on the ground.
We should be clear about what has happened in the 10 days since the Council. Far from changing course, Russia’s totally unjustifiable and illegal actions in eastern Ukraine have reached a new level, with the separatists’ blatant breach of the ceasefire to take control of Debaltseve made possible only with the supply of Russian fighters and equipment on a very large scale. It is clear what now needs to happen. The ceasefire must be respected in full by both sides. Heavy weapons need to be drawn back, as promised. People have to do the things they have signed up to. All eyes are now on Russia and the separatists. Russia must be in no doubt that any attempts by the separatists to expand their territory—whether towards Mariupol or elsewhere—will be met with further significant EU and US sanctions. Russia must change course now—or the economic pain it endures will only increase.
In the coming days, I will be speaking to fellow G7 leaders to agree how we can together ensure that the Minsk agreements do indeed bring an end to this crisis. We are also looking urgently at what further support we can provide to bolster the OSCE mission, and the International Development Secretary is today committing an additional £15 million to support the humanitarian effort. However, at this moment, the most important thing we can do is show Russia that the EU and America remain united in being ready to impose an ever increasing cost if the Russian Government do not take this opportunity to change course decisively.
Turning finally to the eurozone, immediately before the Council started, I met the new Greek Prime Minister, Alexis Tsipras. With him, and then again at the Council, I urged all those involved to end the standoff between Greece and the eurozone over its support programme. We welcome the provisional agreement subsequently reached last Friday evening. Britain is not in the eurozone, and we are not going to join the eurozone. But we need the eurozone to work effectively. The problems facing Greece and the eurozone continue to pose a risk to the world economy and to our own recovery at home. That is why we have stepped up our eurozone contingency planning. Prior to the Council, I held a meeting in Downing Street with all the key senior officials to go through those plans and ensure that vital work continues apace. This crisis is not over.
Protecting our economy from these wider risks in the eurozone also means sticking to this Government’s long-term economic plan. It is more important than ever that we send a clear message to the world that Britain is not going to waver on dealing with its debts and that we retain the confidence of business—the creators of jobs and growth in our economy. We must continue to scrap red tape, cut taxes, build world-class skills and support exports to emerging markets. We must continue investing in infrastructure. Today’s figures show that in 2014 the UK received a record level of lending from the European Investment Bank to support the infrastructure projects in our national infrastructure plan. I hope the shadow Chancellor will cheer when we win European money for British infrastructure—for the roads, the bridges and the railways that we need.
Today, we have the lowest inflation rate in our modern history. We have the highest number of people in work ever and we have the biggest January surplus in our public finances for seven years—putting us on track to meet our borrowing target for the year. Put simply, we have a great opportunity to secure the prosperity of our nation for generations to come. We must not put that in jeopardy. We must seize that chance by sticking to this Government’s long-term economic plan. I commend this Statement to the House”.
My Lords, that concludes the Statement.
My Lords, I am grateful to the noble Baroness the Leader of the House for repeating the Statement made by the Prime Minister in the other place.
I start by expressing our deepest sympathy to the families of those killed in Copenhagen. We absolutely condemn these atrocities—in Copenhagen, and Paris before that—and stand with all of Europe against those who seek to undermine or attack our most cherished values and propagate intolerance, anti-Semitism and all other forms of prejudice. It is clear that effective co-operation on tackling terrorism across the EU, including intelligence co-operation, will be vital to securing the safety and security of our citizens. The statement from the Council itself was right to mention the importance of Europol and Eurojust. The European Council said that there would be action to step up information-sharing and co-operation with our European partners. Can the noble Baroness tell us how that is going to happen? What action is being taken to progress the establishment of a European PNR with the European Parliament? I know that the noble Baroness mentioned this, but as the Statement said, the process is stuck. It is stuck in the European Parliament, but Labour MEPs, for example, are in favour of it, and I wonder what the Government are going to do to ensure that the measure is agreed at the earliest possible opportunity.
The noble Baroness rightly spoke of the deeply disturbing news at the end of last week of the three young schoolgirls going to the region for potentially the wrong reasons. This reinforces the need for action. The Statement mentioned the importance of work being undertaken at the moment in relation to social media. We welcome the progress that is being made with the companies that are working with the police and the Home Office to take down extremist content online and the fact that it was agreed at the European Council to do this across the European Union. Would the noble Baroness agree that here in the United Kingdom the Prevent programme needs to be strengthened, with a stronger role for local communities, and that more action should be taken to directly challenge the warped ideology and lies being propagated, particularly, as I mentioned, through social media?
Turning to the fight against ISIL in the region, I condemn unreservedly the barbaric murder of 21 Egyptian Coptic Christians by ISIL-linked extremists. Our thoughts go to the families and loved ones of those killed as well as, of course, to the Christian community in the region. Our sympathies are with the Egyptian people at this time. These latest brutal acts of violence simply reinforce the importance of our efforts, alongside our allies, to counter the threat posed by ISIL in the region.
We will all be increasingly concerned about the growing number of attacks within Libya specifically. It was right to take action to protect civilians and prevent a massacre in Benghazi in 2011, but, tragically, Libya looks as if it is coming perilously close to being a failed state. Are the Government satisfied by the post-conflict planning and the work that is being done? Does the noble Baroness agree that for stability to be restored in Libya, the UN-led process towards establishing a transitional Government must be followed? If so, what further steps can the UK, along with allies, now take to support this approach?
I must make clear, following the exchanges at Question Time, that the Opposition have not changed their position on the situation in Ukraine. We are doing what an Opposition should do, which is asking questions of the Government—that is what Parliament and the people of this country would expect us to do. As efforts have intensified to resolve the crisis in Ukraine, the fighting on the ground has continued and the costs of Russian aggression are mounting. Here in the UK, reports of Russian planes flying into the UK’s area of interest are concerning. It is unnecessarily provocative. We welcome the joint initiative by Chancellor Merkel and President Hollande for peace in Ukraine, and support fully the conclusions of the Minsk agreement. But why were the UK and the Prime Minister not involved in this initiative? Their absence was extremely disappointing.
I am sure that the noble Baroness will have read the excellent but disturbing report by your Lordships’ European Union Committee, The EU and Russia: Before and Beyond the Crisis in Ukraine, and I wonder what lessons the Government will take from the report in future discussions on Ukraine with our European partners. As the US has said, Russia’s continued support of ongoing separatist attacks in violation of the ceasefire in eastern Ukraine is undermining international diplomacy and multilateral institutions—the foundations of our modern global order. Therefore, if in the coming days Russia fails to meet its obligations under the terms of the Minsk agreement, such as withdrawing heavy weaponry, does the noble Baroness believe that the EU is prepared to implement and agree further sanctions, and will the Government commit to being willing to take action? President Putin must understand that he risks further isolating Russia on the world stage if he continues to display belligerence and aggression in the face of established international laws and norms.
Finally, turning to Greece, we welcome the deal agreed last week between the Greek Government and eurozone members. Will the noble Baroness tell the House what steps the Council is taking to deliver the necessary reforms across the eurozone so that Greece’s economy can grow again? Do the Government agree with the investment plan put forward by the European Commission, and specifically with the proposals put forward last week by the noble Baroness’s noble friend Lord Hill for unlocking Europe’s growth by creating a capital markets union? Given that the four-month extension for Greece runs out in June, what preparations are being made within the eurozone to secure a long-term financing deal so that we do not face this crisis again?
In the past month across the world we have experienced attacks on our fundamental values and freedoms. These attacks aim to spread fear and divide us, but they will fail. They will fail because the British people are united in rejecting extremism and because we have faced down these kinds of threats before and will do so again. We must remain united and strong in the face of such threats.
My Lords, I am grateful to the noble Baroness, Lady Royall, for her comments about the atrocities in Paris and Copenhagen and the rise in anti-Semitism. I certainly share her views on all the dreadful actions that have happened over the past few weeks in Europe. She asked some specific questions about measures to tackle terrorism. She asked in particular for information on what further work will be done to promote the information-sharing that was agreed at the Council. This is something that should be progressed through the established law enforcement authorities, such as Europol, Interpol and Eurojust.
The noble Baroness asked for an update on the timetable for agreement and implementation of the passenger name record measure. I certainly welcome the points that she made about the support for this among her own party’s European Parliament Members. This was a big step forward at the European Council. It was very much led by my right honourable friend the Prime Minister. It was agreed that movements should be made now in order to ensure that legislation is drafted and prepared within Europe, and we will certainly be pressing hard for that to take place and to be progressed as soon as possible.
As to measures back here at home to deal with terrorism, the noble Baroness made some points about the Prevent programme. I think it is worth reminding the House that we commissioned a report by my noble friend Lord Carlile about what was happening in this area. He was clear that this Government’s approach to splitting the programme for Prevent, which deals with deradicalisation, from the work that is led through the DCLG to encourage integration was the right thing to do, and that our approach in this area is working well and is an improvement on what went before. She also asked what measures we have taken to increase the protection for people who may be affected or may be being radicalised via social media. Clearly, the steps that were introduced in the recent counterterrorism Bill were a big step forward in that area.
On Libya, I certainly share the noble Baroness’s remarks about the appalling murders of the Coptic Christians. She asked whether the Government were satisfied with the post-conflict situation in Libya. I can be clear that, no, we are not satisfied with the situation. What NATO and our allies did was stop the murderous attempt by Gaddafi to kill his own people, and in doing that we gave the Libyans a chance to build a better future, which sadly so far has not been taken and we need to help them take that opportunity. She will know that in our efforts in this area we are also working with a former colleague of hers, Jonathan Powell, to see what more is possible to support Libya and to achieve the settled future that it so rightly deserves.
The noble Baroness asked about Ukraine and what might happen if Russia fails to meet its Minsk obligations. Indeed, I am grateful to the noble Baroness for clarifying that the Opposition support our efforts on sanctions, because it is very important that we all stand together on sanctions. She asked about the way in which the rest of Europe is approaching sanctions. We have to continue to apply pressure and ensure effort among our European partners so that we are all consistent and united in demanding that those sanctions are kept in place and that, where necessary, they will be strengthened in the future. We all need to ensure that we use what influence we have with all our contacts in the respective member nations on this. It is worth saying that my right honourable friend the Prime Minister was the first to call for a strong approach on sanctions. He was the first to call for Russia to be expelled from the G8. He has been very much in the lead in that area.
Finally, the noble Baroness asked me about Greece and what prospect there is for a long-term financing deal for Greece. We are still some way away from a long-term funding deal. As the House knows, Greece is required to publish today its proposals for reform. We believe there will have to be some give and take on both sides. At the European Council meeting, it was clear that those other countries that have taken the very difficult decisions in order to meet the demands put on them by the eurozone were not supportive of greater flexibility being given to Greece. But clearly the most important thing, as I said in the Statement that I repeated, is that the eurozone continues to be secure in terms of its impact on the British economy. We very much hope, therefore, that agreement is reached between the eurozone and Greece swiftly to that end.
My Lords, the Statement repeated by my noble friend the Leader put a welcome emphasis on European co-operation against terrorism. Is she as glad as I am that the two-year campaign waged by some to pull the UK out of the European measures and institutions that she mentioned, including Europol and Eurojust, did not succeed? That would look entirely ridiculous in the current circumstances.
The passenger name record—PNR—directive is of course a matter of dialogue between the Council and the Parliament. But are the UK and the rest of the Council committed to progressing updated data protection measures for law enforcement access to PNR and other data simultaneously with the PNR directive and expansion of data collection? Certainly in my time that was emphasised by the European Parliament; it is the proposed directive on law enforcement access.
On Ukraine, my noble friend mentioned, slightly obliquely, the need for EU solidarity and the possible challenges involved. Can she assure us that some very candid words are being spoken to that minority of EU member states that appear to be undermining EU solidarity in respect of Putin’s aggression, including the hosting last week by Viktor Orban of a visit from President Putin? Given that Orban is in the same political family as Chancellor Merkel and European Commission President Mr Juncker, is this not the right context for some full and frank exchanges with Budapest and other capitals?
Finally, on the European economy, can the UK act as a bridge—
My Lords, I draw noble Lords’ attention to the Companion, which states that questions following a Statement should be brief and not the occasion for debate.
In that case, it is probably right for me to respond to the points made by my noble friend.
On Ukraine, it is essential that we in Europe are united in our demands of Russia and our support for Ukraine in having a secure future for its people. That is what we are seeking to achieve and we are applying pressure on others. Although there may not have been as much enthusiasm in the past for sanctions when this approach was first adopted, it is clear now that because the sanctions are having a real effect and because we need to judge Putin on his actions and not his words, the sanctions regime must remain in place and if necessary be strengthened further. That is what my right honourable friend will ensure.
My Lords, Russia has annexed Crimea. It has created another frozen conflict. We in the West appear to accept that this is permanent, just as we have done in Georgia with South Ossetia and Abkhazia. Now that Russian surrogates have taken over sections of eastern Ukraine along the border, is there not again a serious prospect that this will become permanent and that President Putin, notwithstanding the pressures put on him, will be prepared to pay the price for yet a further Russian victory over the West, particularly, as has been said, as there is a real danger of flakiness on the part of some of our EU partners?
I think I have already made it clear that because President Putin has not delivered on his words and we must judge him on his actions, which so far have not met his words, we are strong and united within the European Union and alongside America in our demands of him and in making sure that he meets the terms of the Minsk agreement. We will continue to apply sanctions, which will stay in place until he meets the terms of that agreement.
My Lords, I welcome the reference in the Statement to the Government’s eurozone contingency planning. Could she perhaps elaborate on that? Is it not apparent that despite all the bailouts, concessions and negotiations and so on, there is no way in which Greece will become competitive at the present exchange rate and will at the end of the day need to leave the eurozone? In those circumstances, it is crucial that it should be done in an orderly way, which will be a very difficult task involving exchange controls and so on. It is essential that our Government, because we have an interest in this issue, co-operate to make sure that there are contingency plans for an arrangement whereby Greece can withdraw on an orderly basis.
I do not share my noble friend’s view that Greece will leave the eurozone. Certainly all efforts are being made by the eurozone’s other members to ensure that Greece remains in the eurozone. It is in everyone’s interests—those of the countries that are part of the eurozone and those of the United Kingdom—that the eurozone continues to operate securely. My right honourable friend the Prime Minister held contingency planning meetings with senior officials none the less because that is the right and prudent action for him to take. We are working on the basis that the eurozone will continue.
My Lords, I spent last week in Ukraine with a small, three-person IPU delegation. I encountered everywhere the deepest disappointment, anxiety and in one or two cases actual despair that whereas the Ukrainian army had been taking serious fatalities in the east of Ukraine defending its country, the western world has declined to supply it with the effective defensive weapons that it so obviously needs. Is it not the case that, quite apart from our obligations under the Budapest agreement and quite apart from our general commitment to peace and justice in the world, we have a very strong national interest, which we share with our NATO partners, in ensuring that over the long haul and irrespective of whether Mr Putin happens to be respecting the ceasefire agreement this week, Ukraine maintains a credible self-defence capability and remains a viable state? If either of those two things ceases to be the case, we shall have much greater problems than we currently confront. Is it not time that the Government looked at the possibility of taking the lead in agreeing to supply effective defensive weapons, including where necessary lethal weapons, to the Ukrainian armed forces?
The noble Lord is right to highlight the terrible casualties that have taken place in Ukraine during the past few months—it has been absolutely dreadful. We believe that the right course of action is via a diplomatic route, which is the direction that we have been taking. We continue to work very hard in that way. We recognise that the people of Ukraine want our support, because they want their country to operate in the same way as the rest of us in the West are able to. We have not ruled out the supply of weapons, but we do not believe that it is the right course of action for us to take at this time.
Will the Government try to mobilise all kinds of media around the world to establish the truth of what has happened in the Ukraine and to present that to the people of Russia over the heads of their Government? Will they also try to unmask the lies arising from all sides but especially from Moscow?
The noble Lord makes an interesting point. In some of the background reading that I did over the weekend about Ukraine and Russia, I was intrigued to learn that the people of Russia, notwithstanding the propaganda, do not put responsibility for the situation in Ukraine at the feet of the western world. While the noble Lord is right that we need to ensure that the people of Russia are very much aware of what is happening in Ukraine, I think that they are perhaps more aware already than we give them credit for.
My Lords, talking about actions not words, when can we expect the brave speeches about Russia to be backed by effective action on our defences?
Is my noble friend talking about—
Perhaps I may rephrase the question. When can we expect the brave speeches about Russia that we hear from our side to be backed up by proper changes in our defences?
Our defences are absolutely secure, and there is no issue of concern there. It is worth reminding the House that we are meeting the 2% of GDP guideline for our defence spending, and we are one of only four NATO countries to do so. The Prime Minister has already committed to a real-terms increase in defence equipment spending by 1% over the next 10 years and said that there will be no further reduction in the Army, so our defences are sound.
Although it is clearly right that we must stand absolutely firmly together in refusing to yield to the ruthless pressure by the Russians, and that we must also resist the pressure by the militant extremists in Ukraine itself, is there not at the centre of all this a real issue of the Russian community in Ukraine—its sense of identity and security? Amid all our priorities at the moment, how much thought are we giving to how that issue can be resolved in the long term?
Over many years now, there has been support for the people of Ukraine. The start of the agreement between Ukraine and the European Union goes back as far as 2007. That programme has been ongoing for many years; it is not a new initiative. In making that possible, it was always clear that it was not a trade-off for Ukraine: that it could have a stronger relationship with Europe at the same time as retaining its ties with Russia. It does not have to give up one to have the other; it should be able to have both.
My Lords, Russia is of course an Asian power as well as a European power. I wonder whether any consideration has been given, in putting short-term pressure on Mr Putin—which is clearly right—through finance and sanctions, to talking to the rising powers of Asia, which carry considerable weight. With their co-operation, much more effective results will be achieved to bring Russia to a more sensible frame of mind. Was any consultation with Beijing, Tokyo or the other parts of Asia considered during the EU meeting?
My noble friend has huge experience in foreign affairs. I will have to check on his particular question; I fear that I do not have a clear answer to give him at this time.
It was encouraging to see that the Prime Minister has agreed with his colleagues that there should be a “strategic rethinking” of our approach to Syria. What strategic rethinking are we doing on Syria? What is our strategy in Syria, other than repeating the mantra that Assad must go? It is clear that American policy is changing. The Americans appear to have a strategy. Do we?
Our approach to Syria has been consistent throughout—certainly with regard to the threat of ISIL, which we have to ensure is tackled at source. As the noble Lord knows, we have a significant commitment to the effort focused on Iraq. Clearly, we are not supporting the effort in Syria militarily, but we are doing a huge amount by way of humanitarian aid, and that will continue.
My Lords, as my noble friend will know, in the past few days there has been a dramatic further fall in the value of the Ukrainian currency, the hryvnia, against the dollar. It has fallen by more than a third and is now about half its value only a few weeks ago. Given that, and given that there is a real prospect that the Ukrainian economy could break down, can she tell us whether there was discussion at the Council about the state of Ukrainian economy, the rising debts it has, especially in energy, and what emergency action might be taken by the European Union in the event that the hryvnia becomes an unacceptable currency?
I can tell my noble friend that the IMF agreed in principle on 12 February that Ukraine qualified for an extended fund facility. That is a four-year programme worth $17.5 billion. We are clearly supporting the Ukrainian Government in delivering the reforms that they have committed to under the association agreement and the IMF programme, so that they are in a strong position to use that support from the IMF and get themselves on a secure footing for the future.
Does the Leader of the House accept that there is acute concern about the lack of stability on the front line, if you like, between various European Union member states and applicant states and Russia? That has been growing for a considerable time. There is concern that European Union policy is not as clear as it ought to be. We need to give serious attention to that. Perhaps, so that we can have a louder voice on that, the very good report produced by the European Union Committee on those relations ought to be debated in this House before it rises. Can she help us to achieve that?
The report, to which the noble Lord refers, by the European Union Committee of this House was a comprehensive, serious piece of work. I was grateful to study it over the weekend; I thought that its publication was timely.
As for a debate on it, the usual process is for the Committee Office to respond to my noble friend the Chief Whip’s usual call out for what proposals it wants debated, so we would expect to hear in the first instance through the Committee Office, but my noble friend will of course want to liaise constructively.
The main thing about Europe, Ukraine and threats to others is that, yes, absolutely, we must be united; we must have a united force strength against Putin. Putin wants us to appear not to be united. We must present a united front. That is there. Via NATO, we are committed to protecting the Baltic states, should there be any attempt to threaten them in future.
My Lords, I wish to follow up the point made by the noble Lord, Lord Soley. I ask my noble friend, as Leader of this House, to ensure that we have a debate on the report and the wider situation. This is the gravest international situation that we have had in years. This Parliament will come to an end in four or five weeks’ time. It would be quite wrong—indeed, shameful—if this House, with all its expertise, did not have the opportunity for a full day’s debate. Will my noble friend absolutely guarantee that that will happen?
I can absolutely guarantee that if the committee, having produced its report, proposes a debate on that report via the Committee Office in the normal way, we will find time for it. We will find time for debates on committee reports, because we are committed to doing that. I urge the noble Lord and other members of the committee to make their request via the Committee Office in the normal way.
Modern Slavery Bill
Report (1st Day) (Continued)
Clause 8: Power to make slavery and trafficking reparation orders
8: Clause 8, page 5, line 11, leave out “Crown Court” and insert “court”
My Lords, in moving Amendment 8, I shall speak also to Amendments 9 to 15, 18 to 25, 32 and 33, 100 and 101, and 103 to 105. This large group of amendments makes minor changes to ensure that the Bill works effectively in light of wider legislative change.
Amendments 21 and 22 remove the limit of £5,000 for fines imposed by magistrates on breach of a slavery and trafficking risk or prevention order. I am grateful to the noble Lord, Lord Rosser, for raising the issue of removing the limit to this fine in Committee. I am also grateful to the Delegated Powers and Regulatory Reform Committee for its analysis of the delegated power and suggestions for changes. The regulations needed to accompany Section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 have now been approved by Parliament. Commencing Section 85 will remove the cap on all fines in the magistrates’ courts of £5,000 or more.
These amendments assume that Section 85 will be commenced by the time this Bill reaches Royal Assent, removing the limit on fines in the magistrates’ court. If this is not the case, then transitional arrangements can be made by order. I hope that noble Lords will agree that these amendments give magistrates the ability to respond more flexibly when sentencing, given the particular nature of a breach of a slavery and trafficking risk or prevention order. In addition, the removal of the delegated power ensures that we have addressed the concern about the previous provision raised by the Delegated Powers and Regulatory Reform Committee.
Amendments 8 to 15, 18, and 103 to 105 relate to reparation orders. This Government believe that the criminal justice system must give greater priority to providing victims of modern slavery, who have been used as commodities, with reparation for the distress, abuse and suffering that they have been subjected to. That is why the Bill will introduce bespoke reparation orders, which will ensure that courts give appropriate priority to compensating victims of modern slavery and have the necessary tools to do so. Currently, confiscation orders may be made only in the Crown Court. Given that reparation orders can be made only where there is a confiscation order, the Bill currently makes provision for reparation orders to be made only in the Crown Court.
However, Section 97 of the Serious Organised Crime and Police Act 2005 makes provision to enable magistrates’ courts to make a confiscation order in certain circumstances, and work is in hand to give magistrates’ courts these powers. We want to make sure that any court that has the power to make a confiscation order in relation to a modern slavery offence also has the power to make a reparation order in favour of any victim of that offence. Government Amendments 8 to 15, and 18, will ensure that magistrates’ courts that make a confiscation order will also have the power to make a reparation order.
Government Amendments 103 to 105 make minor amendments to the Proceeds of Crime Act 2002 that are intended to clarify how certain sections of that Act are to apply in relation to a slavery and trafficking reparation order.
Finally, Amendments 19 and 20, 23 to 25, 32 and 33, 100 and 101 are technical amendments to reflect the introduction of new offences and civil orders in Northern Ireland through the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which received Royal Assent on 13 January. The UK Government have worked closely with the Northern Ireland Executive to ensure that our respective legislation creates a robust, joined-up response to modern slavery across the UK. This proposed group of amendments supports this effort by ensuring that the Independent Anti-slavery Commissioner, the slavery and trafficking prevention and risk orders, and the maritime enforcement and transparency in supply chains provisions all work effectively in light of these recent legislative changes.
I hope that noble Lords will agree that this group of amendments makes minor, but necessary, changes to ensure that the Bill works effectively in light of wider legislative changes and will therefore support these amendments. I beg to move.
Amendment 8 agreed.
Amendments 9 to 12
9: Clause 8, page 5, line 14, leave out “the Crown Court makes a confiscation order” and insert “a confiscation order is made”
10: Clause 8, page 5, line 16, leave out “Crown Court” and insert “court”
11: Clause 8, page 5, line 19, leave out “it has made a confiscation order” and insert “a confiscation order has been made”
12: Clause 8, page 5, line 42, at end insert—
“( ) “the court” means—(i) the Crown Court, or(ii) any magistrates’ court that has power to make a confiscation order by virtue of an order under section 97 of the Serious Organised Crime and Police Act 2005 (confiscation orders by magistrates’ courts);”
Amendments 9 to 12 agreed.
Clause 10: Slavery and trafficking reparation orders: supplementary provision
Amendments 13 to 15
13: Clause 10, page 6, line 43, leave out “Crown Court” and insert “court (within the meaning of section 8 above)”
14: Clause 10, page 7, line 4, leave out paragraph (e)
15: Clause 10, page 7, line 29, leave out from “order” to end of line 30 and insert “that could have been made under section 8 above by virtue of the confiscation order”
Amendments 13 to 15 agreed.
16: After Clause 10, insert the following new Clause—
“Civil remedies for modern slavery
(1) A victim of modern slavery may bring a civil action against any person who commits an offence against that victim under sections 1, 2 and 4 (or who knowingly benefits financially or by receiving anything of value from participation in a venture which that person knew or should have known has involved an offence under sections 1, 2 and 4) for the recovery of damages, injunctive relief, and any other appropriate relief.
(2) It is not a defence to liability under this section that a defendant has been acquitted or has not been investigated, prosecuted or convicted under sections 1, 2 or 4 or has been convicted of a different offence or of a different type or class of offence.
(3) An action under this section must be commenced no later than 6 years after the later of the date on which the victim—
(a) left the situation of modern slavery; or(b) attained the age of 18.(4) This limitation period may be extended where the civil court considers it just and equitable to do so.
(5) An action brought under this section may be stayed by the civil court either on its own volition or at the request of the prosecution until the resolution of any criminal proceedings against a defendant which arise from the same act in respect of which the victim has made the claim.
(6) Damages awarded under this section shall be offset by any compensation paid to the victim for the same act pursuant to section 8 (reparation order following a criminal conviction for a relevant offence) or an award paid to the victim for the same act by the Criminal Injuries Compensation Scheme.
(7) This section does not preclude any other existing remedies available to the victim under the laws of England and Wales.
(8) There shall be the provision of legal aid to enable a civil claim under this section to be brought.
(9) In a successful action under this section, in addition to any award of damages or other relief, the victim’s costs shall be recoverable against the defendant.
(10) This section shall have the same extra-territorial effect as sections 1, 2 and 4 .”
This amendment is intended to close a gap in the law, which currently does not provide sufficient avenues for all victims of modern slavery to seek remedies for damages and the suffering that they have endured. Again, I have to thank Parosha Chandran and Klara Skrivankova for their contributions in working on this amendment. I would also like to say how much I appreciate the work of all the NGOs which have contributed to our work on the Bill. They have done a fantastic job.
Very few victims have been able to receive remedies and compensation so far. This civil remedies amendment would provide an effective means to reduce the financial profitability of slavery, create a further deterrent effect and enable victims to be adequately compensated for the harm done to them. This proposed new clause does not seek to replace the existing remedies, such as those provided in employment law, but to add a more effective route to remedies that has been absent in English law and that, as experience from elsewhere shows, can be an effective means to enabling victims to get redress.
Those victims who have suffered physical harm will still of course be able to use existing remedies, but Amendment 16 is targeted at those for whom such routes remain out of reach. These are, for example, cases where there is an absence of direct physical harm but that involve debt bondage, abuse of an individual’s position of vulnerability, psychological control, threats of denunciation to the authorities, extortionate recruitment fees, and the threat or carefully nurtured fear of violence. Such actions are recognised in international definitions of trafficking and seen as indicators of forced labour. These are the very circumstances experienced by many victims of modern slavery, especially those exploited for their labour. This provision would, for example, allow a civil claim for forced labour to be brought against businesses or a gangmaster which have used and demeaned eastern European or British men for the purposes of slavery or forced labour, which have abused the men’s vulnerabilities to exploit them for profit and also imposed on them bonded debts via extortionate recruitment fees or accommodation charges for filthy living conditions, and which have failed to pay wages owed.
As I pointed out in Committee, when I brought forward an earlier iteration of this amendment, a further significant advantage of a civil remedy is that it is not dependent on criminal prosecution of offenders and can be brought where no criminal investigation has taken place. It was put to me during the debate in Committee that this proposed change in the law might not be necessary as the existing law is sufficient. I was grateful at that time for the helpful comments made by the noble and learned Lord, Lord Mackay, my noble and learned friend Lady Butler-Sloss, who is supporting this amendment, and my noble and right reverend friend Lord Harries. I also thank the Minister for taking the time to write to me about this matter after the debate.
In his letter of 8 December 2014, the Minister took the view that there exist common law and statutory torts, which may be relied on in civil proceedings for damages. I have consulted a number of legal experts on this matter—experts on the issues of human trafficking and forced labour, as well as experts on civil and tort law outside these areas. The advice I have received was unanimous: that the existing remedies are inadequate as they do not provide appropriate routes to redress for all victims. The various examples from civil law described in the Minister’s letter are unable to give due weight to the factors and circumstances encountered in situations of trafficking and slavery. None reflects the elements of control and exploitation inherent in such situations or the subtle means of control assumed over victims by traffickers. One might consider that false imprisonment comes closest to reflecting the element of control over an individual’s life. However, the traditional focus in jurisprudence is on the restraint of physical liberty, and there is no guarantee that the more insidious and very common forms of restraint, such as the confiscation of a passport or the use of vulnerable immigration status to control victims, would be found to amount to false imprisonment. Similarly, the types of individual instances of assault, battery or harassment that can arise in a forced labour scenario may be inadequately represented by existing torts. The long-term nature of abuse and the elements of control of the vulnerable may be quite different from those that arise in other situations.
In the US, a civil remedy for victims was introduced in 2003 after the finding that the Victims of Trafficking and Violence Protection Act 2000, a federal law, criminalised human trafficking and contained numerous provisions for victim protection but did not include a civil liability offence. This important omission was soon recognised and was remedied by the introduction of a federal right of action for survivors of trafficking in 2003. Under the US Trafficking Victims Protection Reauthorization Act 2003, a victim may bring a civil action against the perpetrator in court and recover damages.
Having spoken to a number of experts here about this issue over the past few weeks, I have found a remarkable consensus on this issue. I have received advice and letters from some 12 legal practitioners, who all agree that existing remedies have been shown to be inadequate. All the lawyers have had clients in whose cases the absence of direct civil remedies against traffickers has prevented them from bringing civil damages claims owing to the uncertainty of the law and the lawyers’ unwillingness to subject already vulnerable and often traumatised clients to experimental litigation that has no clear outcomes for them.
To reiterate, some victims, especially those who are trafficked for sexual exportation or subject to physical violence, may be able to access some of the existing remedies. However, there are still too many of those affected by modern slavery in this country who cannot. The amendment offers a simple, streamlined, cost-effective and common-sense solution to the current gap in the law. However, we recognise that there is a huge amount of complexity around this issue, and that has been demonstrated by the assumptions that people have made about what is available and what can work. We recognise that it is not possible to change the law quickly. I am seeking confirmation from the Minister that he will be able to meet me, the noble Baroness, Lady Hamwee, and a small number of practitioners from the field to discuss this matter further, because clearly something here is not working in the way that it should. I beg to move.
My Lords, I have added my name to this amendment, as I did to its predecessor amendment in Committee. Anticipating today’s debate, I had a quick word with the Minister, who helpfully—perhaps he seized on it as a way through today, at any rate—agreed that the noble Baroness, I and others may be let loose in the Home Office in discussions with officials. This is a complex issue. It is right to take considered steps, but steps do indeed have to be considered. The short point, as the noble Baroness said, is that people working in the field—I may say that those I have met are no slouches—argue forcefully for a specific course of action. Given the energy that they put into assisting victims by means of their legal work, I take very serious note of that. I am happy to support the amendment but, more importantly, because this is not something that is going to be solved in a 15-minute debate, to continue the discussion at the Home Office, and I am grateful to my noble friend for that.
I have tabled Amendment 17—I suppose it is allied to this one—about claims in the employment tribunal. Again, I am not seeking a solution today. My amendment, which really is adequate only for the purpose of raising the point, asks the Secretary of States to consult the appropriate people with regard to access to the tribunal by victims of modern slavery. I mention the national minimum wage in particular. If there is an employment contract, a claim must be brought within three months and is limited to two years’ arrears. I mentioned the two-year limit to a colleague in this House and said I was concerned that victims of slavery were prejudiced by it. He said, “Well, if we extended it beyond two years, other groups would want it to be opened up”. I thought that if it was not immediately obvious to someone steeped in what the House is doing that a victim of slavery, servitude or forced labour was unlikely to have been able to have access to an employment tribunal until that situation had finished, then this was something that had to be dealt with in detail and very carefully.
There are new regulations, which have just come into force, providing that from July the two-year restriction will apply. I understand that the Deduction from Wages (Limitation) Regulations were introduced to answer concerns expressed by business over unexpected and unquantified holiday pay claims; they were not aimed at victims of trafficking. Clearly they will affect victims of trafficking, but those victims are not mentioned in the impact assessment that BIS provided for the regulations.
There are other issues, too: for example, there is the family worker exemption, where someone treated as a member of a family is not entitled to the national minimum wage or to any payment at all, but the Court of Appeal—I have had an example of this—has regarded someone who worked 14 hours a day and slept on the dining room floor as being treated as a member of the family. That would have been an overseas domestic worker, and of course I am aware of the review of overseas domestic worker visas, but there are particular issues around the national minimum wage that we must not lose when we are dealing with other parts of this jigsaw.
I appreciate that there are a lot of stakeholders with a great range of interests in employment rights and the danger of unintended consequences is high, which is why I framed my amendment as I did. However, the victims of modern slavery have themselves suffered unintended consequences. All the Minister needs to do to my Amendment 17 is to say yes.
My Lords, I have also put my name to this amendment—as with the two noble Baronesses who have spoken, for the purpose of further consideration, not for the purpose of being part of the Bill at the moment.
There are two points that I want to make. The first is that there is clearly a gap. The second is that this would give an opportunity to victims who cannot have the satisfaction of the trafficker prosecuted—or indeed if the trafficker or slave owner is actually acquitted—none the less to take civil proceedings under a different and less onerous standard of care. The criminal law, as I am sure everyone in this House knows, requires the jury or the magistrate to be satisfied so as to be sure, but in the civil courts—the High Court, the county courts or the small claims courts—it is sufficient to have the balance of probabilities. So it gives an added opportunity to those who have suffered to get some redress, even if it does not go through the criminal courts. It is for that reason that we seek the opportunity for the Government to have a look at this to see whether something can be done at a later stage.
My Lords, I add my voice in support of Amendment 16. I will be brief. There is no need for me to repeat the arguments for having a civil remedy in the Bill as this case has been eloquently and well made by the noble Baroness, Lady Young of Hornsey. I just want to emphasise three points. First, we have a duty to give victims of slavery every type of support to help them rebuild their lives. That is why I support this amendment. Effective civil remedies for modern slavery are another tool that we can agree that will help victims gain access to the justice they so rightly deserve. Through our debates in this House we have been increasing and developing the right provisions to support victims of slavery, which has rightly moved up the agenda. Amendment 16 is an essential element of the package of support. Survivors must have the right to pursue civil compensation claims and to recover damages from their abusers for offences carried out against them.
Secondly, like others, I worry that the current civil law is inadequate for the victims of modern slavery. The criteria for existing civil claims which can be brought against perpetrators seem too narrow for slavery victims. Not all victims of modern slavery have been subjected to physical or sexual assault or false imprisonment. The law is highly complex, and the circumstances of each enslavement situation are highly complex. Increasingly there is no physical violence but there is extreme emotional and psychological manipulation. We therefore need civil law to cover all the complexities of a modern-day slavery situation.
Thirdly, and finally, we need to learn the lessons from the US and not repeat its mistakes. As the noble Baroness, Lady Young of Hornsey, mentioned, the US Victims of Trafficking and Violence Protection Act of 2000 did not include a civil liability offence. That was soon recognised as a glaring omission, so in 2003 a federal right of action was introduced for survivors of trafficking. Let it not take us three years to recognise that more needs to be done. The amendment is before us here and now. I hope the Government will take the opportunity before them to respond favourably to this amendment now, or soon through discussions in future.
My Lords, I will be brief. The noble Baroness, Lady Young of Hornsey, has once again made a powerful case in her amendment. We support the principle of a civil remedy for victims of modern slavery against a person who commits an offence against that victim or who benefits financially. As the noble and learned Baroness, Lady Butler-Sloss, said, civil proceedings are likely to be less of an ordeal for victims than the criminal courts and cases will be determined on the lower threshold of balance of probabilities rather than beyond reasonable doubt, which increases the prospect of a successful outcome for the victim.
In Committee, there was some discussion about whether there was already recourse to relevant and appropriate civil law remedies for all victims. There was clearly not unanimity of view on that point. The amendment would clear up any doubt by putting a clause in the Bill providing for civil action and remedies for victims of modern slavery, and if the Government are going to oppose this amendment all the way down the line, they will need to be rather more convincing than they were in Committee in persuading the House that adequate civil remedies are already available and that that view is not open to serious doubt. I hope that the Minister will be able to respond in a helpful way.
My Lords, I am grateful to the noble Baroness, Lady Young, for moving this amendment and giving us the opportunity for a debate. As my noble friend Lady Hamwee said, we have agreed to continue dialogue on this issue with the Home Office and the Independent Anti-slavery Commissioner, who has expressed an interest in this area. This is also an opportunity to put on the record some remarks on our position, which the noble Lord, Lord Rosser, invited us to do. In doing so, I do not want to detract from the fact that we agree that this is something at which we need to look carefully.
Since Committee stage, we have been looking very closely at civil remedies and modern slavery, and have been exchanging letters about the details with Peers, as the noble Baroness, Lady Young, said. Amendment 16 seeks to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the House that we believe that civil remedies in tort already exist for victims of trafficking and slavery to claim damages from perpetrators through ordinary civil law and the Human Rights Act. Damages can, for example, be recovered for loss or damage caused to victims under the torts of intimidation, harassment, assault, unlawful imprisonment, negligence and breach of duty. We have been unable to identify a modern slavery scenario that would not involve at least one of those torts. Given the serious nature of modern slavery, we consider that it is likely that a court would be able to establish that, on the balance of probabilities, at least one of those civil wrongs had taken place. Accordingly, we are currently of the view that the existing civil law already provides the necessary civil remedies for modern slavery cases.
Once a tort has been established, the court can award damages to the victim. Noble Lords previously expressed concern that such damages may be insufficient in light of the terrible experiences that the victim may have suffered. However, aggravated damages are available in relation to a number of civil torts, such as assault or wrongful imprisonment. This means that where the court, taking into account the defendant’s motives, conduct and manner of committing the tort against the victim, feels that the defendant has aggravated the victim’s damage by injuring his proper feelings of dignity and pride, aggravated damages may be awarded. Given the particular nature of modern slavery, we would expect most modern slavery cases to give rise to aggravated damages, which seem particularly apt for such situations, given their focus on the injurious and degrading effect on the victim, and consider that the availability of such additional damages will enable courts to ensure that victims receive an adequate remedy fully tailored to the particular effect on them.
The Legal Aid, Sentencing and Punishment of Offenders Act 2012 retained civil legal aid for damages and employment law claims for trafficking victims to support them in making such claims, and an amendment to the Bill will extend this legal aid provision to all modern slavery victims. I believe this amendment has been widely welcomed.
Amendment 17 would require the Secretary of State to complete a consultation on access by victims of modern slavery to the employment tribunal to make claims, including for payment of the national minimum wage. I assure noble Lords that all employees and workers in the United Kingdom are entitled to protection under our employment law, and those working legally in Great Britain will have access to the employment tribunal. In some circumstances this will include modern slavery victims. However, given the criminal nature of modern slavery, some victims will not have been in legal employment and therefore cannot benefit from all the same protections as those working under legal contracts. For example, access to an employment tribunal would be possible only in certain cases of discrimination. This is because, as a general principle, a court or tribunal will not enforce an illegal contract.
Where victims are eligible to make claims through the employment tribunal, there is a two-year restriction, which my noble friend Lady Hamwee referred to, which applies to most claims for unlawful deduction of wages, including underpayment of the national minimum wage. However, in practice, the majority of national minimum wage claims are handled by a separate enforcement route via Her Majesty’s Revenue and Customs. This route is not affected by our changes, and the national minimum wage can still be claimed for up to six years via HMRC enforcement. HMRC investigates every complaint made to the Pay and Work Rights Helpline. In addition, HMRC conducts risk-based enforcement in sectors or areas where there is perceived to be a higher risk of workers not getting paid the legal minimum wage.
An action founded on a civil tort to claim general damages would not be subject to a two-year limit and can usually be made up to six years after the cause of action accrued. In these cases, the amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that should have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. We are committed to doing as much as possible effectively to enhance support for and protection of victims of modern slavery, which includes ensuring that they receive compensation for the horrors that they have experienced.
While our current analysis is that the existing law provides sufficient access to civil remedies for victims of slavery and trafficking, these debates are providing very valuable information in exploring how civil remedies apply to modern slavery cases. We will continue to look carefully at the evidence put forward in the debates, including today’s Report stage debate, in future policy-making. Given the need to explore further the important points raised, I hope that noble Lords will agree that this is not an issue to address through the Bill at this stage. As I have given undertakings, which I mentioned at the outset, to continue the discussion but to put on the record these additional remarks, which represent the Government’s latest position on this issue, I hope that that will provide reassurance for my noble friend and for the noble Baroness, Lady Young, to consider withdrawing her amendment at this stage.
I thank the Minister for his reply, and for agreeing to meet us. However, it is interesting that there clearly is some kind of a problem here if all these practitioners, who are very diligent and very committed to the people with whom they work, cannot seem to find their way through what already exists. That takes me back to 2009, when we were looking at what became Section 71—which we often refer to now—of the Coroners and Justice Act. At that time, a number of arguments were put forward against doing anything about criminalising forced labour and servitude. It now seems impossible to think that anyone would argue against that, but the Government of the time felt that there was sufficient recourse through the civil courts, and we now know better than that. I reiterate part of what the noble Baroness, Lady Kennedy, was saying: we do not want to wait another three years before we get round to thinking, “Oh yes, there is something else—we can do a little bit better”. I therefore hope that we will come to some sort of agreement about a more productive way forward. In that context, I beg leave to withdraw the amendment.
Amendment 16 withdrawn.
Amendment 17 not moved.
Clause 13: Interpretation of Part 1
18: Clause 13, page 9, line 43, at end insert—
“( ) In sections 8 and 10, references to provisions of the Proceeds of Crime Act 2002 include references to those provisions as amended or otherwise modified by virtue of an order (whenever made) under section 97 of the Serious Organised Crime and Police Act 2005 (confiscation orders by magistrates’ courts).”
Amendment 18 agreed.
Schedule 1: Slavery and human trafficking offences
19: Schedule 1, page 44, line 27, at end insert—
“Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.))7A An offence under section 1, 2 or 4 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (slavery, servitude and forced or compulsory labour; human trafficking).”
Amendment 19 agreed.
Clause 30: Offences
Amendments 20 to 22
20: Clause 30, page 22, line 20, at end insert—
“(e) a slavery and trafficking prevention order under Schedule 3 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)), or (f) an interim slavery and trafficking prevention order under that Schedule to that Act,”
21: Clause 30, page 22, line 31, leave out “not exceeding £5,000”
22: Clause 30, page 22, line 35, leave out subsection (5)
Amendments 20 to 22 agreed.
Clause 34: Interpretation of Part 2
Amendments 23 and 24
23: Clause 34, page 23, line 36, at end insert “(except in section 30(1)(f))”
24: Clause 34, page 23, line 42, at end insert “(except in section 30(1)(e))”
Amendments 23 and 24 agreed.
Clause 37: Enforcement powers in relation to ships: Northern Ireland
25: Clause 37, page 27, line 26, leave out paragraphs (a) to (c) and insert—
“(a) section 1 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)) (slavery, servitude and forced or compulsory labour);(b) section 2 of that Act (human trafficking).”
Amendment 25 agreed.
26: After Schedule 2, insert the following new Schedule—
SchedulePublic authorities under a duty to co-operate with the CommissionerLaw enforcement and border securityA chief officer of police for a police area in England and Wales.
The chief constable of the British Transport Police Force.
The National Crime Agency.
An immigration officer or other official of the Secretary of State exercising functions in relation to immigration or asylum.
A designated customs official (within the meaning of Part 1 of the Borders, Citizenship and Immigration Act 2009).
Local governmentA county council in England or Wales.
A county borough council in Wales.
A district council in England.
A London borough council.
The Greater London Authority.
The Common Council of the City of London.
The Council of the Isles of Scilly.
Health bodiesA National Health Service trust established under section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006.
An NHS foundation trust within the meaning given by section 30 of the National Health Service Act 2006.
A Local Health Board established under section 11 of the National Health Service (Wales) Act 2006.
RegulatorsThe Gangmasters Licensing Authority.”
My Lords, I will speak also to government Amendments 42 to 45, 106, 107 and 110 to 113. Amendments 108 and 109 should more logically be taken at a later stage, as they refer to later provisions.
I pay tribute to the work of the Delegated Powers and Regulatory Reform Committee. Its excellent report has suggested a number of improvements to the Bill, and the Government have responded positively. This group of amendments relates to the Delegated Powers and Regulatory Reform Committee’s recommendations on the duty to co-operate with the Independent Anti-slavery Commissioner. The committee recommended that public authorities to whom this duty would apply should be listed in the Bill, that additions should be made to this list via regulations subject to the negative procedure, and that public authorities should be removed from the duty only where regulations have been made via the affirmative procedure.
Accordingly, the amendments set out the list of public authorities, which operate either across the UK or in England and Wales only, and which will be under a duty to co-operate with the Independent Anti-slavery Commissioner as soon as the provision is commenced. Those include all the first responders under the national referral mechanism: the police, the National Crime Agency, the Gangmasters Licensing Authority, relevant front-line staff in the Home Office, and local authorities. We have also included National Health Service trusts, which are also highly relevant to identifying victims. Where relevant we have consulted the Welsh Government to ensure that they are content with that list. To ensure that health professionals are not under conflicting duties regarding confidentiality to patients, these amendments specify that they are not required to supply patient information to the commissioner.
Noble Lords will note that the list relates only to authorities that can be specified by the UK Government without breaching the Sewel convention. We have consulted the Scottish Government and Northern Ireland Executive on the committee’s recommendations, but they wish to add public authorities through regulations to ensure that the Scottish Parliament and Northern Ireland Assembly are appropriately consulted. I stress that this is an initial list; I am sure that noble Lords can identify other bodies which might prove relevant in future. I am happy to commit to keeping this list under review and looking carefully at points made in debate. We will be able to add to the list through regulations subject to the negative procedure.
On the second element of the committee’s recommendations, that group of amendments also specifies that a public authority can be removed from the duty only via regulations subject to the affirmative procedure, except where the amendment is in consequence of the authority having ceased to exist. This is an important safeguard as it means the scope of the duty to co-operate with the commissioner cannot be narrowed without careful parliamentary scrutiny. Additions to the duty can be made through regulations subject to the negative procedure. Scotland and Northern Ireland have agreed to follow the same process, and that is also reflected in the amendments. I beg to move.
My Lords, perhaps I might add two names. I am very happy with these amendments, but I wonder why neither the Crown Prosecution Service nor the College of Policing is included in the proposed new schedule. I suggest that that should be looked at.
I thank the noble and learned Baroness. Yes; we have identified public authorities that we consider have a key role to play in supporting the commissioner in delivering his functions. However, I stress that this is an initial list, and we are more than prepared to look at additions to it. We will keep it under review, and will possibly consider ahead of Third Reading whether we should have greater ability to tailor the duty to the particular functions or legislative framework of a future public authority, as we have done with National Health Service trusts and patient confidentiality. The noble and learned Baroness raises two other possibilities, which we will look at ahead of Third Reading, and I thank her.
Amendment 26 agreed.
Clause 40: The Independent Anti-slavery Commissioner
27: Clause 40, page 30, line 40, at end insert “and may bring any matter to the attention of either House of Parliament irrespective of other provisions in this Act”
My Lords, Amendment 27 is in my name and in those of the noble Lords, Lord Patel and Lord Alton, and the right reverend Prelate the Bishop of Derby. I shall also speak briefly to Amendment 29 in this group, which is in the same names.
I begin by acknowledging the efforts made by the Minister to respond positively to the many points raised in Committee by Members of this House from across the Benches. The House will recall that in Committee there was great concern that the Bill did not go far enough to ensure the independence of the Independent Anti-slavery Commissioner. Simply to call the commissioner “independent” was not sufficient if the Bill did not fully reflect that description. The Government have eventually, after a struggle, recognised those concerns to some extent in their Amendment 28. However, I gently draw the Minister’s attention to the fact that it does not even go as far as the rather modest collective amendment we have put down as Amendment 29.
Unfortunately, there is a somewhat grudging flavour to Amendment 28, which makes me retain my concern about the extent to which the commissioner remains clearly on a leash—even if, admittedly, on a slightly longer one—from the Home Office. That is why I have tried to provide an override provision in Amendment 27, which would enable the commissioner to,
“bring any matter to the attention of either House of Parliament irrespective of other provisions in this Act”.
That means exactly what it says. If the commissioner at any time considers that he or she is being thwarted or nudged away from airing publicly any significant concern that he or she has, he or she can draw upon the provisions in Amendment 27 to access either House of Parliament to ensure that the issue is brought into the public domain.
The amendment is not directed at any particular Home Secretary but is a provision based on what some of us have observed in Governments of all or any political make-up as reluctance to have difficult or embarrassing issues surface publicly. My colleagues want to ensure a stronger legal bulwark against any such temptation.
It is clear that Parliament has used such a bulwark elsewhere in relation to the Children’s Commissioner, whose functions are set out in the new Section 2 of the Children Act 2004 brought forward last year in the Children and Families Act 2014. New Section 2(3)(e) gave the Children’s Commissioner exactly the same access to either House of Parliament at any time he or she considered it necessary when discharging his or her functions. It states that the commissioner may,
“bring any matter to the attention of either House of Parliament”.
Therefore, not that long ago, this Parliament gave a commissioner with responsibilities for very vulnerable people—in that case, children—an absolute guarantee of access to Parliament should the need arise. Paragraph 436 of the Explanatory Notes to the 2014 Act makes it absolutely clear that the Children’s Commissioner can do this either through his annual report or by other means, such as writing to the chair of a relevant Select Committee. To put it graphically, if I may, if a Minister tries to gag the Children’s Commissioner or censor his utterances, the commissioner can go straight to Parliament.
We should also remember that other countries with equivalents to the anti-slavery commissioner give the person direct access to Parliament. The rapporteur from the Netherlands made clear to the Joint Select Committee on the Bill her ability to do this. She saw it as an important way of giving confidence to people outside that they could bring their concerns to the rapporteur.
As we discussed in Committee, the commissioner needs the trust and confidence of a wide range of agencies and interests if he or she is to be successful. That trust and confidence will be damaged, as the Joint Committee said, if there remain doubts or perceptions that the person’s independence is shackled by the Executive. No amount of warm words from Ministers can remove those doubts and perceptions. A statutory guarantee is required and Amendment 27 gives that guarantee. Having accepted that position in relation to the Children’s Commissioner as recently as last year, I hope that the Minister can do the same for the anti-slavery commissioner by accepting my amendment, which is framed in exactly the same way as the Children and Families Act 2014. If the Government are prepared to agree to Amendment 27, I will be strongly inclined not to press my Amendment 29. I beg to move.
My Lords, as the noble Lord, Lord Warner, indicated, I am one of those who put my name to the amendment, and I am very happy to add my support to it in a short intervention this evening. Before doing so, I endorse what the noble Lord, Lord Warner, said about the thoughtfulness and thoroughness of both the noble Lord, Lord Bates, and the noble Baroness, Lady Garden of Frognal, in dealing with Members from all sides of the House during the passage of this legislation, whether in the series of meetings organised in your Lordships’ House or in the face-to-face meetings with some of us who participated at the Home Office. We are all grateful to them for that. It is exemplary and it should recommend itself to other Ministers who are keen to facilitate their legislation through Parliament. This, of course, does not mean that we have always been of one mind or that we are necessarily going to agree about Amendment 27 to Clause 40.
The issue is the accountability of the Independent Anti-slavery Commissioner. I suspect that it may be one of those issues where we will not find agreement because it cuts right into lines of accountability through the Home Office. Departmental issues may take precedence over what I think may well be the private views of members of the Government but which they may not be able to voice here this evening.
The amendment of the noble Lord, Lord Warner, is commendable for its clarity. However, as he also indicated, it is a shrewd amendment, not least because it is based on the Children and Families Act 2014. If what we did a year ago was right in that context, surely it is right to follow exactly that precedent here again this evening.
It seems to me that one of the most important things is to recognise that, however good the nature or good will of individual Ministers, they, and even Home Secretaries, come and go. We are in a period where we face a general election. There may be a different set of Ministers—perhaps from the same party or maybe from other parties—in the very near future, so assurances given on the Floor of your Lordships’ House in the course of debate, even though they are given in good faith, cannot carry over in the same way that legislation carries over. Parliament does not come and go, unlike individual Ministers, and that is why it is so important that we place these words on the face of the Bill.
There have been plenty of precedents where uncomfortable, inconvenient and untimely issues have arisen, and departments have endeavoured to shelve them or kick them into the long grass, to suppress them or simply to ignore them. This amendment would prevent that. If we deemed such a provision to be necessary to protect children, surely it is necessary to protect victims of slavery, many of whom will in any case be children.
In a letter to me just a couple of days ago, on 20 February, the Independent Anti-slavery Commissioner, Mr Kevin Hyland, said:
“My independence will be unwavering, whether that be toward law enforcement, government, the private sector or indeed any organisation”.
“My independence will be unwavering”,
in the direction of government, as he specifically states. Either he is independent or he is not, and this amendment gives him the parliamentary access which will guarantee him that unwavering independence. I hope that this evening the Government will indicate either that they will take this matter away and look at it between now and Third Reading or that they will recognise the spirit in which the amendment is being moved by the noble Lord, Lord Warner, and give some guarantees to the effect that he is seeking.
While the government amendment is welcome in extending the remit of the anti-slavery commissioner and allowing the commissioner to appoint his or her own staff, there are other areas where there still appear to be constraints on the commissioner's independence.
The commissioner must still seek prior approval of strategic plans from the Home Secretary on his or her activities and areas of focus, and annual reports may also be subject to redaction before they are laid before Parliament and published. Apart from the impact on the commissioner’s independence, it is not clear within what timeframe this checking and seeking clearance has to be undertaken in order to avoid the prospect of delays, for example, in the publication of a report or the approval of a plan or programme. The delaying of the publication of reports by the Home Office is an experience apparently not unknown to Mr Vine, the Independent Chief Inspector of Borders and Immigration.
Annual reports from the anti-slavery commissioner may be redacted on the grounds that material may jeopardise the safety of an individual, prejudice an investigation or, in the view of the Secretary of State, be against the interests of national security. Perhaps the Minister could say how frequently it has been necessary to redact reports where the same conditions and criteria as it is proposed to place on the Independent Anti-slavery Commissioner’s reports already apply in relation to comparable commissioners or bodies.
As has been said, following the passing of the Children and Families Act 2014, the Children’s Commissioner can bring any matter to the attention of Parliament. And again, as has already been said, the Explanatory Notes to the 2014 Act state that the commissioner might do this, for example, through annual reports to Parliament or by writing to the chair of a relevant Select Committee. Under the 2014 Act, the Children’s Commissioner must as soon as possible lay a copy of his or her annual report before each House of Parliament.
In his letter of 16 February, the Minister said that,
“the Government’s intention has always been that the Independent Anti-Slavery Commissioner will be independent”.
But it appears that there are varying degrees of independence—or lack of independence, depending on which way one wants to look at it. Perhaps the noble Lord could say whether the Independent Anti-Slavery Commissioner will be in the same position when laying his annual report before each House of Parliament or writing to the chair of a relevant Select Committee as is the Children’s Commissioner under the Children and Families Act 2014—and, if the answer is no, why that should be the case.
The noble Lord, Lord Rosser, put a direct question to me that other noble Lords have asked. It is because the nature of the information often involves serious crime and young children, and there are matters that may not be appropriate. That is something that is applied to other organisations—for example, with Borders and Immigration, with which the Independent Anti-slavery Commissioner shares an office.
I shall make some contextual remarks and thank the noble Lord, Lord Warner, for returning to this issue. He acknowledged that we have been on a journey with this Bill. The word “independent” was not in the Bill when it was in the other place. That was added and then, rightly, your Lordships asked what it actually meant in precise terms and whether the person has the right to appoint their own staff, or whether they should be able to draw them just from within the pool of the Home Office. Then we found out and were able to confirm that he had already been appointing staff from outside in his designate position, and that he had brought in people from NGOs working in this area to assist in this role.
One point that was helpful in the discussion when Kevin Hyland, the designate commissioner, came to speak to Peers, was that, from his own role, he wanted to be closely aligned to the Home Office because he felt that it gave him a certain amount of authority in dealing with modern slavery—not just within the Home Office but across government. We now have a cross-government strategy, which we have published. He felt that that was very important and that the fact of reporting to the Secretary of State at the Home Office would strengthen his ability to get the changes he wanted in engaging with police officers and other agencies. From his own point of view, he saw no contradiction—to pick up the point of the noble Lord, Lord Alton—and he wanted to be unwavering in how he put forward his case and reacted to his role, as he put it in his letter. I emphasise that that came out on 20 February; I do not think that anybody in the Home Office was consulted about it—and, of course, it was absolutely welcome. He wants to build a strong relationship with parliamentarians and to engage in that process.
The idea of any of us who have had the privilege of meeting Kevin Hyland thinking that he would be anybody’s poodle, let alone on a leash, is something that we do not accept. We want to make sure that he has a very serious statutory role to perform, charged by and answerable to the Secretary of State. His task is to ensure that victims are protected and perpetrators prosecuted. Under previous groups, we talked about how that might be done. This is a very good example of how that might be moved forward.
I know that there are concerns that reports are reviewed by the Secretary of State, but there is another element here, which I want the noble Lord to be cognisant of in pursuing his amendment. Amendment 27 would effectively allow the commissioner to report to Parliament about anything without the important necessary safeguards which would avoid inadvertently jeopardising national security, putting victims’ lives at risk or undermining an ongoing prosecution. Moreover—I ask the noble Lord to think very carefully about this point—Amendment 27 would legislate outside the legislative consent Motions passed by the Scottish Parliament and Northern Ireland Assembly, which were agreed specifically on the basis of the current powers to safeguard matters of important public interest. The amendment would leave a Bill that, if passed, would breach the Sewel convention, and put this critical UK-wide part of the Bill at risk. That is a very serious point for the noble Lord, Lord Warner, to consider.
I have tried to make the point to the noble Lord that, in welcoming his amendment, we have introduced our own amendment, which guarantees the commissioner’s independence of role over his budgets and recruitment of staff and also ensures that it is open to any committee to request the commissioner to come and speak to it. It is entirely within its ability to do that, and any Member of Parliament is entirely at liberty to communicate directly or to meet him, as has already been the case on many occasions. We simply underscore the importance of that role, and have this hesitation only in accepting the noble Lord’s amendment at this stage—it could put at risk some of the prosecutions being brought forward, if information should be inadvertently released. Given that we are dealing with matters of organised crime, that would be a very serious matter, which I know will weigh heavily on the noble Lord, Lord Warner. I ask him to keep that in mind.