Report (2nd Day)
Clause 48: Child trafficking advocates
52: Clause 48, page 37, line 23, leave out “such”
My Lords, I shall speak also to Amendments 53, 56, 58, 59 and 71. The noble Lord, Lord McColl, and I have fought a battle with two separate Governments over the past six years or so to be able to create a situation in which child victims of human trafficking, from overseas, in particular, have someone as a mentor, or to monitor them, outside social services. We fought that battle—it took a long time—and I am absolutely delighted to be able to say that I strongly support Amendment 61, in the name of the noble Lord, Lord Bates. It is for that reason that I think, for the first time, that the battle the noble Lord, Lord McColl, and I have fought has achieved, with the existing part of Clause 48 together with these amendments, nearly everything that we both want—certainly that I want. However, it would be helpful, when regulations and guidance are given, if the other matters in various amendments proposed by the noble Lord, Lord McColl, and with my name on them, were to be found somewhere, in secondary legislation or guidance. But for the time being I am delighted with the result that has been achieved.
My Lords, I am extremely pleased that Clause 48 is part of the Bill. It recognises that trafficked children have particular needs and experiences that make them especially vulnerable. It has been a great pleasure to work with the noble and learned Baroness, Lady Butler-Sloss, over these years and it is great that the Minister has been so co-operative and helpful. I am also particularly grateful that he arranged the very helpful meeting with officials from the Home Office and Barnardo’s, which operates the child trafficking advocacy scheme.
The Minister’s amendments to Clause 48 deal precisely with the key areas of concern that we raised in Committee, and they are a testament to the Minister’s willingness to engage constructively on those issues—and I am very pleased to speak today in support of the majority of his amendments. I shall not go into great detail on matters contained in the amendments, trusting that my views are well known to your Lordships, and I shall focus my remarks on areas on which I would appreciate further clarification from the Minister.
Amendments 62 and 64 address the power to make regulations about details of the advocate scheme and will now require that regulations are made and cover the functions and appointment of the advocate. I strongly urge your Lordships to support Amendments 62 and 64, which will require the creation of regulations ensuring a robust statutory foundation for child trafficking advocates.
I have one question for the Minister. In previous amendments that I have brought to the House on this issue, I have always ensured that the functions of the role were based on internationally recognised best practice guidance from UNICEF and, more recently, from the European Union Agency for Fundamental Rights. Can the Minister assure me that such international guidance and recommendations from other British studies such as the Still At Risk report will be considered in drawing up the functions in the regulations, as well as from the trials currently being undertaken?
I particularly welcome Amendment 61, in the name of the Minister, which gives child trafficking advocates the power to assist the child in obtaining the legal advice and power to appoint and instruct legal representatives. As I mentioned in Committee, I have met a number of lawyers who represent trafficked children and who have all told me that they have great difficulty in taking instructions from trafficked children. They have therefore recommended that the advocate should have the power to fill that gap.
I welcome the Minister’s Amendment 72, which states that regulations about the advocates will require public authorities to,
“recognise, and pay due regard to, the advocate’s functions, and … provide the advocate with access to such information … to carry out those functions”.
We have heard in the past various stories from organisations such as Barnardo’s where advice from charity workers supporting trafficked children has not been heeded by a local authority, resulting in a child going missing and no longer receiving the help that they need.
Amendment 72 would help to prevent this happening. I have one question for the Minister about that amendment: which bodies and agencies will have this duty? During the meeting with Barnardo’s arranged for Peers by the Minister, I was disappointed to hear the story of a child whose college did not accept the child’s valid reason for missing classes, which had been to attend official immigration appointments. It was frustrating to hear that the advocate had had to make repeated representations to the college explaining the child’s situation before it heeded her advice and removed the negative attendance report from the child’s records. I hope that such a scenario would not be possible in the future, as a result of Amendment 72.
I would appreciate clarification from the Minister about the meaning of the term “public authorities”. Would, for example, a college be included within that definition? Would courts or tribunals be included? What about a child’s GP or other health professionals? Does the definition cover the child’s foster carers? I understand that the equivalent section of the Northern Ireland legislation uses the term “any person or body” rather than “public authorities”. Perhaps the Minister could reflect on whether that might be a better term to ensure that all the necessary professionals are covered.
I welcome the Minister’s amendment that inserts the word “independent” into the title of the child trafficking advocate. That was another of the matters I raised in Committee. However, I still have some concerns that the caveats in references to independence that appear in Clause 48(2) may add a layer of confusion about the independence of the advocate’s role, and may even be in conflict with the description of the advocates as independent. Amendment 59A, in the name of the noble Baroness, Lady Howe, highlights that point. Could the Minister reflect on the possible contradiction, or confusion, between subsection (2) and the change in the title of the role to “independent child trafficking advocates”? Perhaps he might consider tabling an amendment at Third Reading to clarify those terms, and ensure that the independence of advocates is protected and guaranteed?
I now turn to my Amendments 55 and 69, and the Minister’s Amendment 68. All international evidence and recommendations, including the studies here in the UK, highlight the importance of appointing a child trafficking advocate at the earliest possible moment. It is this early intervention that can help prevent children going missing, either under the influence of their traffickers or out of fear of the authorities. The UNICEF Reference Guide says:
“As soon as a child victim is identified, a guardian should be appointed to accompany the child”.
The Still at Risk report recommends that an independent trusted adult to support a trafficked child should be appointed,
“as soon as they come to an authority’s attention”.
I was encouraged by what I heard from the representatives of Barnardo’s, during the meeting arranged by the Minister, about the intention within the trials to appoint an advocate within hours of a referral being made. I welcome the part of Amendment 68 requiring an advocate to be appointed,
“as soon as reasonably practicable”,
but I am concerned that it then qualifies that requirement by requiring,
“reasonable grounds to believe a child may be a victim”.
Amendment 57 would apply to Clause 48(1) the same criterion for appointing an advocate for a child when there are “reasonable grounds” for believing the child is trafficked. I understand this to mean that a child must receive a positive “reasonable grounds” decision under the national referral mechanism before an advocate will be appointed. Can the Minister confirm whether this is his intention? I have concerns that if my understanding is correct, it could result in undue delays in providing an advocate for a child victim in the crucial first hours and days after it is realised that they might have been trafficked.
Furthermore, I was somewhat surprised by this addition because it seems to be at odds with the process being used in the trials, whereby, I understand, referral to the advocate scheme is possible even before a referral to the NRM has been made, and there is no need to wait for receipt of a “reasonable grounds” decision. I am aware that the NRM review has recommended a different process, whereby the referral and “reasonable grounds” stages will be merged into one decision. However, I had understood that the review’s recommendations were being piloted before any nationwide changes were made to the system.
One must also acknowledge not only the need to await the results of the pilot but the potential for changes in the personnel in the Home Office, which could impact on such decisions, given the forthcoming election. It concerns me that until such time as the NRM system is changed, if it is changed at all, vulnerable children may need to wait for a longer period before an advocate is appointed. I have therefore tabled Amendments 55 and 69, inspired by the approach taken in the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) brought forward by the noble Lord, Lord Morrow. My amendments would replace the reference to “reasonable grounds” that the Minister is proposing with a requirement only that a referral about a child is to be, or has been, made. This will ensure that as soon as indicators of trafficking are spotted and a child is referred to the NRM, the child can be appointed an advocate, rather than waiting until receiving a positive “reasonable grounds” decision. I urge the Minister to consider the dangers of victims having to wait for a “reasonable grounds” decision before receiving an advocate. Perhaps if he is unable to accept my amendments today, he could consider bringing in an amendment at Third Reading to deal with this matter.
I state again that I am grateful for the responsiveness of the Minister to the concerns that have been expressed by myself and other noble Lords about the drafting of the clause. We all want to ensure an effective advocate role for trafficked children, and the amendments tabled by the noble Lord meet most of the concerns that have been raised in this House. A few issues remain and I hope that he will reconsider them at Third Reading.
My Lords, I simply want to ask a question relating to the speech of the noble Lord, Lord McColl. I hope that noble Lords will forgive me; I will be brief and then I will not need to intervene again.
Following the very useful meeting that the Minister called with Barnardo’s, he subsequently wrote to us explaining that local authorities had, in fact, taken proper action. This again raised a concern that I would like to put on record and for the Minister to speak to regarding the line of accountability between the local authority and the independent advocate. At the meeting, he made it clear that ultimate responsibility for the oversight and care of the child remained with the local authority, and that the independent advocate was, if you like, a help in terms of that. Something clearly went seriously wrong with communication but not with action, and the Minister subsequently told us that. My only question is to ask him to put on record that the respective roles of the independent advocate and the social worker are absolutely clear. Otherwise, we will have subsequent confusion. I was reassured at the meeting. I am no longer reassured about this and remain doubtful about the way in which this will work. I apologise but that was the only point I wanted to make.
My Lords, I wish to speak to my Amendment 59A in this group. First, however, I would like to commend the noble Lord, Lord McColl, for his perseverance in bringing this issue before the House over so many years. I hope your Lordships would agree that his work and that of the noble and learned Baroness, Lady Butler-Sloss, have been recognised in the amendments to Clause 48 that we are discussing today.
In Committee, I said that I was disappointed that the Government would not “be bolder” in their statements of the principles that would underpin the role of the advocates. I am glad to see that today they have gone some way towards meeting my concerns. At Second Reading, I said that we needed,
“a proper definition of child trafficking advocates”.—[Official Report, 17/11/14; col. 307.]
Again, I am glad to see that the Government have put forward some helpful clarifications in the series of amendments tabled by the Minister. In particular, I welcome the addition of the word “independent” in eight of his amendments.
However, as was said about the anti-slavery commissioner, adding the word “independent” does not mean that the role really is independent. I am grateful that the Government have recognised the strength of the argument in the case of the commissioner and amended the Bill to ensure that there really is independence with budgets and staff. I feel the same way about the use of the word “independent” in relation to child trafficking advocates.
Clause 48(2) currently says that the Secretary of State,
“must have regard to the principle that, so far as practicable, a child should be represented and supported by someone who is independent of any person who will be responsible for making decisions about the child”.
I know that the Minister said in Committee:
“Our provision sets out key principles in the Bill, such as that the advocate must be independent”.
He also said that,
“we are very clear that these advocates need to be independent in order to support and protect the child effectively”.—[Official Report, 8/12/14; cols. 1683-84]
The noble Lord said that the principle of independence was set out in subsection (2), so it was therefore unnecessary to include the word “independent” in the title of the clause or the title of the role.
I welcome the Minister’s change of heart on the use of the word “independent”, but there are so many new references to “independent” included in this clause that Clause 48(2) remains unamended. I am left perplexed about what “independence” might actually look like if it was only to be “so far as practicable”. It is for that reason that I tabled Amendment 59A, which would amend Clause 48(2) and clarify what “independent” means in this subsection, thereby removing the uncertainty that the words “so far as practicable” engender.
The need for an independent person was recognised in the 2013 report, Still at Risk, produced by the Children’s Society and the Refugee Council. That report recommended that,
“a system of protection needs to be developed which includes an independent trusted adult appointed to a separated child as soon as they come to an authority’s attention”.
The handbook on child trafficking advocates published last year by the European Union Agency for Fundamental Rights has independence and impartiality as one of its six fundamental principles, saying that advocates must,
“be in a position to make independent and impartial decisions, assessments, actions and representations guided by the best interests of the child”.
Noble Lords supported the Immigration Bill amendment that would have introduced a statutory child trafficking guardian, independent of a local authority. The Government themselves acknowledged the need for independent advocates for trafficked children. The fact sheet provided by the Government for this clause in November 2014 repeats that they will be,
“specialist, independent advocates to support child victims of trafficking”.
On 7 April last year, the Minister at the time, the noble Lord, Lord Taylor, said that the advocates would be,
“experts in trafficking, and completely independent of the local authority and social services department”.—[Official Report, 7/4/14; col. 1156.]
In his letter of 20 February, the Independent Anti-Slavery Commissioner wrote:
“Advocates must not become restricted or limited by bureaucratic restraints. They must be empowered to do what they are intended to do: help, protect and assist the child”.
We need to be sure that the definition of “independent” does not become one of those bureaucratic restraints.
Given this widespread support for the principle of independence from outside and inside the Government, I am arguing for a more robust definition of “independent” than is currently in the Bill. I hope that the Minister will reconsider the wording in Clause 48(2). I commend my amendment to the House.
My Lords, one of the most important aims of the Bill is undoubtedly to better protect children from the scourge of slavery and trafficking. I have welcomed from the outset the enabling provision for specific child trafficking advocates but have also joined other noble Lords in pushing for such advocates to be given greater clout and full independence in working to protect the children they are assigned to. To that end, I am heartened by the Government’s proposed amendments which seek to do this.
At Second Reading I was also clear about the need to assign full and proper legal powers to advocates. Again, I welcome that the power to appoint and instruct legal representation on behalf of the child is now being proposed by the Government in Amendment 61.
I would, however, emphasise the importance of the constructive working relationships between the advocates and other professionals working with the child. It is important that this should be a fundamental part of their roles. I am still a little concerned that there is not enough clarification on the definition of their responsibilities. Perhaps the Minister would comment on this when he responds.
My Lords, I support the government amendments and Amendment 60, which stands in my name and that of the noble and learned Baroness, Lady Butler-Sloss. At the outset, I, too, pay tribute to the battles, as the noble and learned Baroness put it, fought by her and the noble Lord, Lord McColl, to bring about child trafficking advocates with the appropriate powers. I have always been pleased to support their powerful advocacy.
As noble Lords have said, we are grateful for the Minister’s efforts in securing these important amendments, which significantly strengthen the role of child advocates in the Bill. In Committee, we pushed for changes to be made to Clause 48, and specifically to give advocates the legal powers that they would require in order to carry out their role effectively. This is the purpose of Amendment 60—but, of course, I am delighted to see that the same powers are outlined in government Amendment 61. Alongside the legal powers, we are pleased that government Amendment 72 gives child trafficking advocates the ability to co-operate and work for public authorities. These are important steps in securing the protection of vulnerable children who have been, and are, the victims of the most heinous crimes.
Guardians will be able to effectively and successfully act in a child’s interests only if they have the appropriate powers to instruct solicitors and have access to the required information from public authorities. Evidence from members of the Refugee Children’s Consortium, the Children’s Society and the Refugee Council demonstrates that local authorities have, unfortunately, failed on many occasions to respond adequately to the needs of the trafficked child.
While I give the Minister the warmest thanks for the amendments that he has brought forward today, I am rather disappointed that between Committee and Report we were not given sufficient information on the interim outcomes of the pilots that are being undertaken. I am grateful for the letter sent out by the Minister on Monday evening, but there is not quite enough detail to tell us clearly what needs to be improved, what is working in the current trials and what is not. The trials started in September 2014 and it would have been helpful if, five months on, we could have had more details and information to inform our debate today. So I have a few questions for the noble Lord.
It would be helpful if he could tell us how many children each advocate represents at a time, what services are available to help with any potential language barriers the children may have, and—as the noble Baroness, Lady Howarth, said—what the difference is between the role of the advocate and that of the social worker. Do the trials demonstrate that there is a clear enough definition between those two very specific roles? Have any areas been identified thus far where more work needs to be done or where there are potential problems? I wonder, for example, why there has been a slower rate of uptake than may have been expected.
With that, I say again that I am very grateful to the Minister for all that he has done on these issues, and I look forward to his response.
My Lords, while welcoming very much the enormous progress that has been made—I have no doubt that a lot of that is due to the Minister’s personal efforts—I have two points that I should like to raise. I thought that the noble Baroness, Lady Howarth, was going to ask about independent reviewing officers, but I suppose that that is subsumed within the question of accountability.
My first point, highlighted by the noble Lord, Lord McColl, concerns the use of the term “reasonable grounds to believe” which the government amendments apply in place of “reason to believe”. On Monday when we discussed legal aid, the Minister said that he thought it was important that no one should be deterred from applying to be referred to the national referral mechanism, and therefore that it would be better to have “reasonable grounds to believe” as the catalyst or prompt for various things to follow. It would be ironic if that were to be a reason for the change today in the case of child trafficking advocates.
I wonder whether there is in fact any difference between the terms. Is one more subjective than the other, or is one a harder test than the other? I ask this because if they mean the same, would it not be better to retain a non-technical term in order to anticipate any change there may be in the arrangements for the national referral mechanism? We know that consideration is being given to having a single stage going straight to conclusive grounds. Are we constraining a change which a lot of NGOs are calling for by including a technical term in the legislation? This is a question that goes to quite a number of the amendments that we will be considering today.
My second point is about legal representation. I think that on pretty much every occasion when we have discussed this issue I have argued for its importance. I did wonder whether the instruction should be given by the child or by the advocate. Is it the advocate’s role to assist, which is the Government’s amendment? I think that perhaps it is. The lawyer needs to hear from the child, but I am not even sure whether a child—I hesitate to ask this question in the presence of the noble and learned Baroness—has the capacity to give instructions to a legal representative. Should they instead be given by someone on the child’s behalf? However, that is not the main thrust of my question.
Government Amendment 61 states:
“The advocate may (where appropriate) assist the child to obtain legal or other advice”,
and so on. Can the Minister flesh that out? If a lawyer is approached and asked for advice, but legal advice is not appropriate in the circumstances, the lawyer is going to say so. We do not need legislation to put a block in the way—and, indeed, there should not be a block in the way of that approach.
I would not want to think that the advocate would be in a position to stop the question to a lawyer: “Is this a legal issue that you can help sort out?”. I would not want to think that the term “appropriate” in this context is because it is appropriate to the trafficked position of the child—because a child victim may have much wider needs than those which are directly related to his or her having been trafficked. Again, I think it would be a great pity if those who are involved are made to question whether seeking legal advice is the right thing to do.
If the Minister can flesh out and get rid of my concerns about Amendment 61, it would be very helpful to have that on the record. If he cannot, I will really wish that I had not raised them, because I would not want the negative points to be on the record, either.
My Lords, I am grateful to the noble Baroness for moving her amendment. I will speak to my amendments as well. I begin by joining others in paying tribute to the noble and learned Baroness and to my noble friend Lord McColl for eventually securing the amendments that they are looking for. I am grateful that we have been able to do that.
A hallmark of the way in which this Bill has gone through is that it has drawn upon the incredible level of expertise in your Lordships’ House in these particular areas. We have tried to distil that into strengthening the Bill, which enjoys cross-party support and which we all want to see passed. That expertise is also reflected in the 23 amendments that the Government tabled in Committee and by the further 72 amendments, 27 of which we will be considering on the second day of Report. I was reminded by officials that this is something of a record. I do not know if they meant that as a compliment—equating the number of amendments to the effectiveness of the Bill. However, as we have gone through this process, time and again, new pieces of evidence—new gaps—have come to light and, where at all possible, the Government have sought to respond to them.
I will speak to my amendments first and then deal with the questions which were raised. The government amendments reflect the European Union fundamental rights agency’s key functions for such a role and the Northern Ireland human trafficking and exploitation Act. These amendments have been drafted following significant consultation with NGOs and Peers on the precise wording necessary to seek the overall objective of ensuring that we have set out the fundamental principles of these roles in statute.
The government amendments clarify beyond doubt the independence of the child trafficking advocate’s role; ensure the advocate promotes the child’s well-being as well as acts in the child’s best interests; and give the advocate the power to assist the child in obtaining legal advice, as referred to by my noble friend Lady Hodgson. I will return later to the question raised by my noble friend Lady Hamwee. I know that this has been at the very forefront of the debate on this issue and is reflected in the amendments tabled by noble Lords today.
These amendments also remove the Secretary of State’s discretion to make detailed regulations and replace this with a duty to do so. We are also ensuring, through these amendments, that the regulations provide for advocates to be appointed to potential child victims of human trafficking as soon as possible.
The government amendments will also place a requirement on public authorities to co-operate and share information with child trafficking advocates, where any disclosures do not contravene a restriction. This will place beyond doubt the status of the advocate across the criminal justice, care and immigration systems. Again, these government amendments closely reflect those made by noble Lords, as referred to by the noble Baroness, Lady Royall.
I will take a moment to address my noble friend Lord McColl’s amendments, Amendments 55 and 69, in particular. I understand the sentiment behind these amendments but am keen to assure my noble friend that the reference here to “reasonable grounds” does not tie the appointment of a child trafficking advocate to a reasonable grounds decision or the national referral mechanism. The wording of the clause as it stands seeks to ensure that all children who are suspected of being victims of human trafficking are appointed a child trafficking advocate in a timely manner, regardless of whether they have entered the national referral mechanism system. It is also the intention that the advocate would, if necessary, be able to work with the child beyond any negative grounds decision to ensure an effective transition to other relevant services. The intention behind the amendment is to standardise wording across the Bill: the test will be the same as it would have been if the clause still read “reason to believe”.
I thank the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall, for Amendment 60. I hope that noble Lords will agree that the effect of government Amendments 54, 61, 63, 66, 67 and 70 is to deliver the improvements to the clause which are sought by Amendment 60. In these amendments, we clarify beyond doubt the independence of the child trafficking advocate role, we give the advocate the power to assist the child to obtain legal advice—including, where necessary, instructing legal representatives to act on behalf of the child—and we place a requirement on public authorities to co-operate and share information with child trafficking advocates.
I welcome the scrutiny which the amendments tabled by Peers has brought to this clause. Let me be clear that we have listened. Our amendments now put on the face of the Bill the key functions of the child trafficking advocate as set out in the European Union fundamental rights agency handbook. We have drawn on the wording in the Northern Ireland human trafficking and exploitation Act, as has been suggested by noble Lords. These are internationally agreed principles and functions.
I now turn to some of the points raised. On the question of which agencies will be on the panel, I was trying to make the point that we need to view the amendments that have been put forward alongside Jeremy Oppenheim’s well received review of the national referral mechanism, which recommended that we move from the current position of UKVI effectively adjudicating and assessing the reasonable grounds and conclusive grounds decisions to involving a wider group of agencies and organisations. These will include, of course, the local authorities, the police and other agencies working in the area and involved in the protection of the individual. We believe that the decision-making will be better as a result, because it will be broader, and this will move from being seen just as an immigration issue to an immigration and social care issue. That will go some way to addressing the point which the noble Baroness, Lady Howarth, raised about the level of co-operation that will exist between various agencies. The pilot has highlighted some gaps in that, which I will refer to later.
My noble friend Lady Hamwee asked for details on legal representation. We developed the government amendment after consulting expert lawyers. The text draws on the new Northern Ireland Act, and we are confident that our amendment complements the rules on children’s capacity.
The noble Baroness, Lady Howarth, asked about the role of the advocate and how it might differ from that of the social worker. The social worker is responsible for carrying out the local authority safeguarding functions for the child and for making decisions about the child’s upbringing, if they are a looked-after child. The independent child trafficking advocates will be responsible for holding the local authority to account and making sure that the child’s views are heeded. In all of this, we recognise that the individuals who we are talking about here will be incredibly confused and vulnerable people trying to make sense of what has happened to them and what will happen next. There will be a great deal of fear. There may also be, in view of how they were trafficked to this country, a deep hostility and suspicion towards figures of authority. Therefore, in designing the role, we need to be aware that the child trafficking advocate needs effectively to be the child’s friend—a trusted friend, who can guide them through the process as we want.
My noble friend Lady Hamwee also asked what the difference is between the “reasonable grounds” and the “reason to believe” tests. There is no legal difference between reasonable grounds and reason to believe. We wanted to make sure that we reflected the wording in our international obligations in the NRM enabling power. If we had left different tests in the different victims’ provisions, the courts might have assumed that there was a difference, which was the point that my noble friend was making. Using the term “reasonable grounds” does not tie the provisions to the reasonable grounds decision within the national referral mechanism, just as the term “suspect but cannot prove” is a standard of proof.
My noble friend Lord McColl asked whether the appointment of a child trafficking advocate will not be tied to the national referral mechanism. Of course, that is absolutely right. That was the evidence that we got on 5 February in the very helpful meeting that we had. I am sure that all noble Lords want to pay tribute to the work of the Barnardo’s case workers who gave evidence. They were making the point that their engagement was not at all linked to the decision of the national referral mechanism. The noble Lord, Lord McColl, also asked why the Government’s amendment allowed for independence where practicable. This was drafted to allow some flexibility for the basis of a future national scheme, depending on what was learnt from the evaluation of the trial. However, we are clear that the advocates will be independent.
My noble friend also asked for reassurance that regulations and guidance will be in line with international best practice, including the EU fundamental rights agency handbook and the UNICEF best practice and scoping review. I assure my noble friend that the regulations and guidance outlining the functions of the advocate will indeed be in line with international best practice, including the EU FRA and the UNICEF best practice and scoping review. My noble friend asked which bodies will be under the duty in Amendment 72. Public authorities are defined in this Bill with reference to the definition in the Human Rights Act 1998 as anybody with functions that are public in nature, excluding courts. This definition has been chosen because it is flexible and expansive. Schools, colleges, the NHS and UK Visas and Immigration would all be covered when considering the public function.
I turn to the other points that noble Lords raised, particularly the one raised by the noble Baroness, Lady Royall, who asked about the trial. We received an update, and I wrote on 23 February and gave a further indication on that. We expect that there will be a further evaluation.
Of course; that goes without saying. A copy was placed in the Library. I readily accept, having been on the Back Benches and followed legislation, that that is meant as a get-out clause. However, the noble and learned Baroness should have had that letter as a courtesy, and I will make sure that she is furnished with one within the next few minutes.
The University of Bedfordshire has been appointed to undertake an independent evaluation of the child trafficking advocates trial. That evaluation will establish what difference the specialist advocate scheme made for child trafficking victims compared to the existing provision. The success of the trial will be measured by assessing the impact of advocates on the quality of decision-making in relation to the child trafficking victims’ needs by key professionals—for example, social workers, immigration officials and police officers—the child trafficking victims’ well-being; their understanding, experience and satisfaction of the immigration, social care and criminal justice system; and their perceptions of practitioners. The evaluation will include a process assessment to show how the advocate process operated in practice and what might be improved. The early findings show that in the first four and a half months, 59 children were allocated to the child trafficking advocates trial. The advocates are largely perceived by stakeholders to be doing well, and there is emerging evidence of advocates’ positive impact in individual cases.
The point was raised about the college case, where one individual who was being helped by an advocate was having problems being released by their college. The very fact that the advocate was there and was able to make representations to show that the individual’s college record was not being damaged as a result of the necessary meetings she had to attend is a good example of the work that is being done.
I have a copy of the letter for the noble and learned Baroness and I will make sure that she receives it. I am aware that a number of other specific points were raised. I will look very carefully at those and will be happy to write to all noble Lords, particularly the noble and learned Baroness, following this. But I hope that on the basis of those reassurances, the noble and learned Baroness will feel able to withdraw her amendment.
The Minister is being very clear that there is no difference between “reason to believe” and “reasonable grounds to believe”. Many people who will encounter these provisions will have been used to the “reasonable grounds” formula through dealing with the NRM. This point is relevant to other parts of the Bill as well. Can he reassure the House that the guidance that will be published will make it crystal clear that there is no need to get to that point in the NRM procedure in order for the provisions to bite and to be applied?
I totally agree with that. I also recognise that the guidance will be a key part of filling in some of the gaps in the information. When the guidance is released, it will be informed by the results of the trial. That will strengthen still further the operation of the role going forward.
I am sorry about that. I do not appear to have a note relating to that amendment. Just looking at Amendment 59A, which says:
“Page 37, line 27, leave out from beginning to ‘be’ in line 28 and insert ‘For the purposes of subsection (1), a child must’”,
perhaps I could come back to the noble Baroness on that. I am sorry I did not deal with it specifically. If she wants to raise a specific point about the effect of that amendment, which I could perhaps respond to, I would be very happy to deal with that.
I can say that the response was given in my answer but I did not highlight it as being in response to Amendment 59A. The government amendment to allow for independence when practical was drafted to give some flexibility for the basis of a future national scheme depending on what was learnt from the evaluation of the trial. We are clear, however, that the advocates will be independent. Although not tagged as such, that was our response to Amendment 59A.
My Lords, I wanted to make a small number of points. First, I add my thanks to those offered to the Minister, who has listened with enormous care to the various points that we have made throughout this Bill and particularly on the issue of child advocates, both in meetings that I have had with him and other Ministers, and within this Chamber.
I think that Clause 48 is good enough. It is not as good as perhaps some of us would like, but it is important to have it in place, to look at how the independent child advocates perform, to watch with interest on the guidance and then to come back, either privately or publicly, to say if we are not satisfied with it and how we would like it to be changed. That seems to me better than pushing any further amendments on Clause 48.
I have two points on the advocates. First, I would assume that an advocate for a child victim of human trafficking who is almost certainly a foreigner in this country would be likely not only to be sympathetic and compassionate but robust and effective. That will not only be with lawyers but with everybody else, from the immigration officials through to mental health and physical health issues and so on. That is the most important part of the advocate’s role: to be the friend, the mediator with organisations and the mentor from the beginning to the time when the child has settled. That is what we now have in the Bill, and I look forward to seeing how well it will work.
The issue of capacity of a child was probably best defined by Lord Denning many years ago, on whether—I forget her name; she was the good lady who was a devout Roman Catholic and who did not want her teenage daughters—
Yes, Gillick. She did not want her teenage daughters to receive advice on either the pill or other forms of contraception. What Lord Denning said, which has reverberated around the courts more perhaps than anywhere else, was that a child may have the capacity to do all sorts of things much younger than the age of 16 and, in many ways, some capacity at the age of 10, 11 or 12 in relation to the particular issue on which the child is being asked to give an opinion. Being a child, their capacity may mean that they can be decisive or that the opinion will be listened to but not necessarily agreed to. That is another aspect of the robustness of the child trafficking advocate. They will come to a view as to whether what the child wants is actually what is best for the child, because, at the end of the day, for child victims as well as all for other children, it is their welfare that is the paramount consideration.
I think that this will be an interesting problem from time to time with 14 year-olds and 15 year-olds—it might be an interesting problem with the 11 year-old—but it will have to be dealt with. The guidance in relation to Clause 48 will be of enormous importance, and I hope that those around the House who have expressed an interest in how the independent human trafficking advocate will work might be given the opportunity to express views on the guidance when it comes forward, which would be helpful. In the mean time, I beg leave to withdraw the amendment.
Amendment 52 withdrawn.
Amendment 53 not moved.
54: Clause 48, page 37, line 24, after “persons (“” insert “independent”
Amendment 54 agreed.
Amendments 55 and 56 not moved.
57: Clause 48, page 37, line 25, leave out “is reason” and insert “are reasonable grounds”
Amendment 57 agreed.
Amendments 58 to 60 not moved.
61: Clause 48, page 37, line 33, at end insert—
“( ) A person appointed as an independent child trafficking advocate for a child must promote the child’s well-being and act in the child’s best interests.
“( ) The advocate may (where appropriate) assist the child to obtain legal or other advice, assistance and representation, including (where necessary) by appointing and instructing legal representatives to act on the child’s behalf.”
Amendment 61 agreed.
62: Clause 48, page 37, line 34, leave out “may” and insert “must”
Amendment 62 agreed.
Amendments 63 and 64
63: Clause 48, page 37, line 34, after “about” insert “independent”
64: Clause 48, page 37, line 35, leave out “may” and insert “the regulations must”
Amendments 63 and 64 agreed.
Amendment 65 not moved.
Amendments 66 and 67
66: Clause 48, page 37, line 37, leave out second “a” and insert “an independent”
67: Clause 48, page 37, line 38, leave out second “a” and insert “an independent”
Amendments 66 and 67 agreed.
68: Clause 48, page 37, line 39, at end insert—
“( ) requiring an independent child trafficking advocate to be appointed for a child as soon as reasonably practicable, where there are reasonable grounds to believe a child may be a victim of human trafficking;”
Amendment 69 (to Amendment 68) not moved.
Amendment 68 agreed.
70: Clause 48, page 37, line 40, after “of” insert “independent”
Amendment 70 agreed.
Amendment 71 not moved.
Amendments 72 and 73
72: Clause 48, page 37, line 41, leave out from “authorities” to end of line 42 and insert “which provide services or take decisions in relation to a child for whom an independent child trafficking advocate has been appointed to—
(i) recognise, and pay due regard to, the advocate’s functions, and(ii) provide the advocate with access to such information relating to the child as will enable the advocate to carry out those functions effectively (so far as the authority may do so without contravening a restriction on disclosure of the information).”
73: Clause 48, page 37, line 43, leave out subsection (5)
Amendments 72 and 73 agreed.
Clause 49: Guidance about identifying and supporting victims
74: Clause 49, page 38, line 5, after “guidance” insert “, in conjunction with the Independent Anti-slavery Commissioner,”
I speak to amendments to Clause 49. First, I have tabled Amendment 74 because I am keen to ensure that there is joined-up thinking between different sections of the Bill. Part 4 has created the position of the Independent Anti-slavery Commissioner and has charged the commissioner with encouraging good practice in the identification of victims. It seems logical, therefore, that the commissioner be involved in the production of statutory guidance directly relevant to promoting good practice in the identifying of victims—namely, the indicators of trafficking and the process of deciding that a person is a victim of trafficking and entitled to receive assistance.
The commissioner will have a great deal of expertise and will gather a lot of information from front-line professionals about the challenges and good practice in identifying victims in the course of carrying out his work. That expertise and information will be key to determining what the guidance produced under Clause 49 needs to cover. We must ensure that the commissioner’s knowledge and findings are incorporated into the development process for the guidance. Amendment 74 would make that a requirement of the guidance provision. I urge the Minister to accept Amendment 74 to guarantee a role for the commissioner in drawing up the statutory guidance. Can the Minister also confirm that the guidance produced under Clause 49 will go through public consultation processes to enable NGOs and other groups with relevant expertise to make an input into the guidance?
I am pleased to introduce Amendment 74 in my name and in the names of the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Anderson of Swansea and Lord Morrow. I am extremely thankful to the Minister for the new measures that he has introduced on Report to strengthen protection for child victims and bring victim support into the consideration of the Independent Anti-slavery Commissioner. However, I feel that there is still a gap in the centre of the Bill: the lack of a guarantee of assistance and support for victims. Amendment 82 creates a power for the Secretary of State to introduce regulations about providing assistance and support to victims, which I welcome as far as it goes—but I do not believe it goes far enough. An enabling power provides no assurance to victims and makes no commitments about what victims are entitled to. Amendment 78 is a better way forward. My Amendments 75, 79 and 80 are consequential on Amendment 78.
It has been noted by the Minister and others that the Bill before us today has vastly more measures to address the needs of victims than the draft Bill. This is undoubtedly true, and I welcome all the improvements that have occurred here and in another place, but on the specific matter of victim support, the Modern Slavery Bill comes up very short when we compare it with the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, which was steered though the Assembly by the noble Lord, Lord Morrow, and the Human Trafficking and Exploitation Bill proposed by the Scottish Government. Amendment 78 would insert a new subsection (1A) which would require support to be provided and a new subsection (1B) which would require the Secretary of State to provide guidance on the provision of support and assistance.
There are three key elements in Amendment 78 which echo the provisions of the Northern Ireland Act and the Scottish Bill but are missing from both Clause 49 and the amendments proposed by the Minister. The first is putting in statute a basic duty for the state to provide victims with,
“support and assistance for physical, psychological and social recovery”.
Setting out in the Bill that victims are entitled to a period of support and assistance will help give them confidence to come forward and seek help. It should also give them confidence to engage with police officers and talk about what has happened to them—and perhaps even to give testimony in court against the perpetrators of these horrible crimes.
During the very helpful meeting with Peers arranged by the Minister, the Independent Anti-slavery Commissioner spoke about the many victims he had encountered in his time as a police officer who were too fearful to speak to officers. It was only after they had been brought to a place of safety in the care of people outside the law enforcement apparatus that they felt confident to speak. In Committee, the Minister drew attention to the assistance provided under the victim care contract, which is a very positive thing. However, unless we establish in law a duty to provide that assistance, I fear that the victim care programme will not be protected for the long term when budgets become squeezed or departmental priorities change. In Committee, I mentioned that GRETA, the Council of Europe’s group of experts, recommended in 2012 that the convention right to a recovery and reflection period for victims should be enshrined in British law, and my amendment would do exactly that.
Establishing victim support in law will also provide a basis for achieving a greater level of consistency in the support provided to victims across the care programme. Paragraph (d) of new subsection (1B) inserted by Amendment 78 additionally promotes this by requiring the establishment of minimum standards for victim support, while paragraph (g) of that new subsection requires the service to be audited, as recommended by the NRM review.
A notable feature of the duty to provide support set out in my Amendment 78 is that the support should be provided from the moment a person’s case is referred to a competent authority to determine if they are a victim of trafficking—the approach implemented in the Northern Ireland legislation. It is very important that a victim should be able to immediately access support once they are discovered in a police raid or when they seek help. This is in contrast to Amendments 76, 77 and 82 proposed by the Minister. I am concerned by the change of terminology in these amendments, which refer to support for victims where there are “reasonable grounds” to believe that a person is a victim. This terminology suggests that, under the present national referral mechanism system, a person will need to receive a reasonable grounds decision before they can receive assistance. The Salvation Army stated in evidence to a Home Office Select Committee in 2013 that the average time for a person to receive a reasonable grounds decision was 37 days. Although in 2014 the director of UK Visa and Immigration told the Joint Committee on the Draft Modern Slavery Bill that the UKVI—responsible for two-thirds of NRM decisions—was now delivering reasonable grounds decisions within the target of five days, five days is still far too long for a rescued victim to wait to receive support.
I was very interested to hear the proposals of the NRM review to simplify the process, making the current referral and reasonable grounds stages into one initial step. This sounds as though it could be of great benefit, but until that recommendation is implemented—if at all—the present process remains. This could be particularly problematic if a victim comes forward at a weekend or out of hours, when decision-making processes would not begin instantly. The Anti-Trafficking Monitoring Group has said:
“Members too often experience the sight of victims in waiting rooms and reception areas for hours while numerous telephone calls are made to secure accommodation”.
We need to do all that we can to avoid such situations and enable suitable assistance to be available immediately a victim is in contact with the authorities. I would be grateful if the Minister could give details of the current average waiting time for a reasonable grounds decision. Could he also indicate whether it is his intention that the assistance and support provided under the guidance in Clause 49 or the regulations in Amendment 82 would not be available until a reasonable grounds decision was received? If so, what mechanisms are in place to ensure that vulnerable people are provided with help in those initial days of most extreme need when they are first identified and await a reasonable grounds decision?
The second key element in Amendment 78 is that it states that assistance provided under the duty must cover the types of support set out in the EU directive and Council of Europe convention, which it then lists. Amendment 78 does not require anything more than provision of the types of assistance already required by our international obligations but, by bringing them into national law, it will help to ensure that all victims have access to the support they need and are entitled to. The evidence I heard when sitting on the Joint Committee on the draft Bill suggested that not all victims receive the support that they should. I believe we must do all we can to prevent these inconsistencies. The GRETA report to which I referred earlier also highlighted the need to improve consistency in provision of assistance and support for victims of trafficking. The report said the UK should,
“ensure that all potential and actual victims of trafficking are provided with adequate support and assistance from their identification through to their recovery”.
The evidence review chaired by Frank Field MP, which was commissioned by the Home Secretary prior to the publication of the draft Bill, made a similar recommendation. The review said:
“We believe the Bill should go further and detail the protections, entitlements and support that victims are entitled to. This should lead to a more consistent support regime for victims around the country, which in turn should give victims the confidence that their needs will be met”.
Amendment 78 would provide a basis for consistent provision of all forms of support and assistance required by the international obligations, and made available to all victims of trafficking across England and Wales. Neither Clause 49 nor the Minister’s Amendment 82 contains any detail about the type of support to be provided under those measures.
The third key element is the inclusion in paragraphs (b) to (f) of proposed new subsection (1B) of safeguards for the manner in which support and assistance is to be provided, based on EU directive and Council of Europe convention. For instance, to pick one of the safeguards, the law would make clear that assistance must not be conditional on a victim agreeing to act as a witness in court proceedings, making it clear that a victim is entitled to support because of what has happened to them, not for what they can offer the law enforcement machinery. Those safeguards are not set out in Clause 49 or Amendment 82, yet are essential to ensuring that victims are supported in an appropriate and safe way.
It has been said time and again that this is a landmark Bill, and it is certainly one of which we can be rightly proud. However, as regards the way it addresses the most basic needs of victims when they first come forward, it is now getting left behind other legislation in the UK. The Act introduced in Northern Ireland by the noble Lord, Lord Morrow, which received Royal Assent in January, includes a statutory duty to provide support and assistance to adult victims, includes full details of the types of support that should be provided, makes support available from the moment of referral, with the possibility of a discretionary extension, and includes the internationally required safeguards about how support should be provided. Since we debated this clause in Committee, the Scottish Government have introduced their Human Trafficking and Exploitation (Scotland) Bill to the Scottish Parliament. That Bill also contains a duty to provide support and assistance for adult victims, sets out the basic types of support which should be covered, and highlights some of the key safeguards about the delivery of care. I encourage the Minister, if he cannot accept my amendment today, to consider an amendment at Third Reading that will ensure that this flagship Bill, at the end of this Parliament, does not fall short of the comprehensive legislation being enacted in Belfast and Edinburgh.
Victims of human trafficking, wherever they are in the UK, need to have the same confidence and the same assurance of support. We owe it to them to ensure that we demonstrate our commitment to their well-being in the centre of our foundational legislation on modern slavery. I beg to move.
My Lords, I will speak in favour of Amendment 78 in the name of the noble Lord, Lord McColl, to Clause 49, to which amendment I have also added my name. I commend the noble Lord, Lord McColl, for putting forward this important amendment today.
Some noble Lords may be aware that I brought forward legislation in the Northern Ireland Assembly on human trafficking. It took over three years to get from the genesis of the legislation to the granting of Royal Assent last month, but to my mind it was worth every minute. Noble Lords will undoubtedly agree with me that victims of human trafficking are some of the most vulnerable people within the United Kingdom. Northern Ireland most certainly is not exempt from the impact of human trafficking, and I brought forward the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Bill to improve the response to the crime of human trafficking in Northern Ireland, crucially with regard to this amendment, to ensure that victims of trafficking are effectively supported.
The statutory requirement to assist and support victims of trafficking is a crucial part of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act. The relevant section was the product of a collaborative effort between the Minister of Justice, David Ford, and me, alongside our respective support teams. We were determined to ensure that victims of human trafficking who have entered into the NRM process have a statutory right to access support including: appropriate and safe accommodation; material assistance; assistance in obtaining health care services, counselling, translation and interpretation services; assistance in obtaining legal advice or representation; and assistance with repatriation.
That section was supported unanimously by the Northern Ireland Assembly. Northern Irish society may be divided on many issues, but the need to effectively support victims of human trafficking is not one of them. The NGO community in Northern Ireland also overwhelmingly supported the introduction of this section. In my opinion it is vital that the requirement to provide assistance and support is in statute. It makes it crystal clear to victims of trafficking, the NGOs supporting them and state agencies what victims are legally entitled to. It gives victims and those seeking to support them the ability to challenge the actions of the state if it has failed to provide effective support. It also ensures that the support and assistance provided to victims cannot be withdrawn or restricted by government if, for example, it faces challenges, particularly a challenging budgetary situation.
I have added my name to Amendment 78 because I believe it fills an important gap in what is otherwise an excellent Bill. First, it will help to ensure that victims of human trafficking are effectively supported in England and Wales. I appreciate that the Bill requires the Government to issue guidance to public authorities setting out,
“arrangements for providing assistance and support to persons who there is reason to believe may be victims of slavery or human trafficking”.
This requirement is better than nothing but in my opinion does not go far enough. There are no directions or guarantees about the content of the guidance, which can be varied at the will of the Secretary of State. Guidance also does not have the same status as legislation and cannot be relied on in the same way. It would be far better for victims if the amendment of the noble Lord, Lord McColl, were adopted. It would ensure that there is a legal guarantee of support for victims.
Secondly, it seems clear to me that if the amendment of the noble Lord, Lord McColl, or something like it is not accepted, victims of trafficking in Northern Ireland—and in Scotland once the Human Trafficking and Exploitation (Scotland) Bill has passed—will have more legal rights than victims of trafficking in England and Wales. This would be a rather unfortunate situation. Surely, most of us here and most of the public would think that victims of trafficking, regardless of where in the United Kingdom they have been identified, should have the same or similar legal rights. Of course, it is Parliament’s prerogative to decide whether this will be the case.
I urge noble Lords to support the amendment of the noble Lord, Lord McColl. It rectifies a significant omission in the Bill and will help to ensure that victims of trafficking in England and Wales are effectively supported.
My Lords, I wish to speak in support of Amendment 78, in the name of the noble Lord, Lord McColl, to which I have added my name.
I have been watching the passage of the Bill with great interest. I recognise that many noble Lords who have spoken on Report have much greater knowledge and a longer history of raising these issues than I have. In particular, I pay tribute to the noble Lord, Lord McColl, for his tireless efforts in bringing the needs of vulnerable people to the attention of your Lordships. It is listening to his contribution that has encouraged me to step forward.
I do not doubt that the Government take victim protection very seriously, but I have concerns that the Bill itself does not yet provide the necessary framework for victims to receive the support that they most desperately need at the time when they are at their most vulnerable—when they are first rescued or identified. Nor does it give a clear enough signal to victims and those who first encounter them that access to immediate assistance is a matter of utmost priority.
Amendment 78 clearly establishes that victims of trafficking must be provided with,
“Support and assistance for physical, psychological and social recovery”,
from the moment that it becomes apparent they may be a victim and a referral to the NRM is made. The amendment transposes into our law the obligations that already exist in the Council of Europe Convention on Action against Trafficking in Human Beings and the EU directive, in particular the need for a recovery and reflection period to support a victim’s recovery.
Developing the provision on a policy basis was appropriate in the early years of the convention. Now, however, we are entering a new chapter in how human trafficking is to be addressed, with legislation that brings together all aspects of the strategy to combat it. In the context of such a wide-ranging Bill, the absence of a clear duty to provide victims with initial support and assistance in the recovery and reflection period is anomalous. This absence is highlighted when it is compared to the comprehensive legislation in Northern Ireland and the Bill proposed by the Scottish Government to which the noble Lord, Lord McColl, referred. Devolution means that the Assemblies and Parliaments are able to develop legislation that best serves their own areas, but when our international obligations apply to the UK as a whole, and where victims may easily have been moved around and exploited in various parts of the UK, surely a unified approach would be better. Why should there be no legal duty to provide initial support to a victim who is discovered in Cardiff or London, and yet had they been found in Belfast or Edinburgh such a duty would apply? Amendment 78 will ensure that there will be a similar duty to provide support in England and Wales as exists in Northern Ireland and is proposed for Scotland.
I am aware of the NRM review and the proposals to develop pilot programmes to test its recommended changes to the decision-making process. However, I do not see why such a process should necessarily delay the establishment in the Modern Slavery Bill of the underlying principles of the system of victim support, which are in any case set out in existing international treaties and by which the UK is bound. I welcome the intention to provide a form of statutory framework for support put forward in Amendment 82, in the name of the Minister. However, it does not guarantee that the statutory basis for support and assistance will be developed at all. Neither does it contain any details of the types of assistance that should be addressed in those regulations—not even to specify, as the European Convention and Amendment 78 do, that the support should be for the victim’s physical, psychological and social recovery.
I hope that the Minister will look kindly on Amendment 78 and other amendments in this group and, if he cannot do so, reflect on whether a reference to the types of assistance set out in the convention and directive could be added to the reference to guidance in Clause 49 and the enabling clause in Amendment 82. We must ensure that victims are not on their own, and that they can have confidence that the support they need will be there when they need it most.
My Lords, I am very pleased to speak in support of Amendment 78, in the names of the noble Lord, Lord McColl, the noble Baroness, Lady Grey-Thompson, and the noble Lords, Lord Anderson of Swansea and Lord Morrow.
In Committee, I highlighted the concerns raised by the Council of Europe’s group of experts and quoted in detail from their recommendations 26 and 27 that the UK,
“should make further efforts to ensure that all potential and actual victims of trafficking are provided with adequate support and assistance from their identification through to their recovery”.
I quoted from the Joint Committee on the draft Bill about the lack of consistency in the support being provided to victims of human trafficking. I said then:
“If this Bill contained details of the minimum levels victims should be receiving under our international obligations, it would strengthen the likelihood that all victims would receive that level of assistance”.—[Official Report, 8/12/14; col. 1693.]
I continue to have concerns that provision of support will be patchy and may not reach the standards expected by international treaties if the Bill does not make a specific guarantee that support of particular types will be available to victims, and create a statutory framework to govern how that support is provided.
I understand that an organisation that provides support to victims told the evidence review in the run-up to the draft Bill:
“In order to ensure that victims of human trafficking are confident that the UK will provide adequate protections it is vital that protections, entitlements and support are clearly defined in legislation and are not afforded through a ‘policy’ approach that can be subject to different interpretations .... Clear, legally defined obligations towards supporting potential victims of trafficking will improve confidence in the state to provide protection for them, further encourage cooperation and lead to the successful prosecution of perpetrators”.
I agree, and am disappointed that the amendments tabled by the Minister do not address this issue at all, especially as the Government’s own NRM review revealed that the current provision of support falls short of what we might expect and of the UK’s obligations in international treaties. For example, as the NRM review noted, the use of asylum support accommodation for victims of trafficking who are also making an asylum claim raises concerns with regard to victims’ safety and protection. This has been mentioned by other noble Lords. The report concludes that asylum support accommodation,
“may be suitable for some, but not all. Shared rooms or mixed gender accommodation are not suitable for those who are highly traumatised or who have been victims of sexual exploitation for example”.
Article 11.5 of the EU anti-trafficking directive requires that victims should be provided with “appropriate and safe accommodation”, as does Article 12 of the European convention, which specifically requires countries to take due account of the victim’s “safety and protection needs”. The evidence from the NRM review about the use of asylum seeker accommodation calls into question how well those international obligations are being met. Amendment 78 contains the requirements for appropriate and safe accommodation and for support to be provided with due regard for the victim’s need for safety and protection. Putting these requirements into law would prevent the placement of a vulnerable victim in unsuitable accommodation.
The review also “noted with concern” that there is no formal audit or inspection of services provided. I am glad to see this addressed specifically in Amendment 78, through proposed new subsection (1B)(g) and through the creation of minimum standards in proposed new subsection (1B)(d). The noble Lord, Lord McColl, referred to this. The absence of official minimum standards and independent auditing processes for support services means there is no way to ensure consistency in the type and quality of the assistance provided to victims. Victims of human trafficking are all different: they have experienced different types of exploitation, and their national and cultural backgrounds are different. Men and women can respond differently to the trauma that they have been through. Different needs will mean that different forms and methods of support will be appropriate.
I agree with the recommendation of the NRM review, which states:
“Support should be provided based on an assessment of the individual needs of the victim”.
But, as the Centre for Social Justice report on modern slavery, It Happens Here, notes:
“Whilst a variety of approaches is to be welcomed there is a need for consistency across all organisations which are providing support”.
The report goes on to recommend the establishment of minimum standards, echoing an earlier recommendation from the Council of Europe group of experts report, which I quoted earlier. The Anti-Trafficking Monitoring Group has also made this recommendation on more than one occasion.
We must ensure that all victims receive the care that they are entitled to and that they are cared for in a safe and appropriate manner. Amendment 78 provides a foundation to do that. I commend it to the Minister. If he is unable to support it today, perhaps he may reflect on how key elements ensuring consistency in standards of care might be incorporated into the regulations that he proposes in Amendment 82.
My Lords, I want to speak briefly on what might appear to be a rather discordant note. I support the government amendments for the following reasons. I have great sympathy with the amendment of the noble Lord, Lord McColl, which has been supported. However, when the noble Baroness, Lady Doocey, raised the issue about child exploitation, we talked about the spectrum of people with needs.
In local authorities there are individuals with as high a level of need as some trafficked individuals—and I am not saying that trafficked individuals do not need a specialist service. I work with some of the relevant organisations, and a specialist service is needed. There are numerous sexually exploited young people who the local authority is attempting to support—the Children Act 1989 was as special as this legislation is—but because of cuts in local authority spending, children’s services are unable to provide the level of service needed, particularly in mental health support services, hostels for runaways and a whole range of services that we would expect to be given to asylum seekers. It is therefore difficult to set a standard for one group of individuals and say that we are not going to meet it for others.
I would be delighted if the Minister were able to say, “We are going to set this standard, and it should be for all individuals who have these needs”. However, under the 1989 Act, children who are described as being in need—there are thousands on local authority books—are simply not receiving those services. I wanted to inject that into the debate because someone has to speak for the local authorities, which are continually derided as not providing services appropriately. I speak as a vice-president of the Local Government Association, but that is neither here nor there. I simply hear from social workers and people in communities who are attempting to deliver services but against all odds. If there are specialist advocates who can give a high-quality service, such as guardians ad litem—I was eight years in CAFCASS, and I know all about the services such specialists are able to give—we need to look to enabling local authority social workers to give such services to every child in need.
My Lords, we dealt in the previous group of amendments with the distinction, or lack of it, between “reason to believe” and “reasonable grounds to believe”, and to which the noble Lord, Lord McColl, referred. Here, just as on that issue, the guidance will be important in making clear the position. That is because the first few days are so critical, as the noble Lord and others have said.
Guidance will also be important as regards our international obligations, to which the noble Baroness, Lady Grey-Thompson, referred. Looking at Amendment 78, I have been wondering whether it is necessary to detail what are already obligations, or whether one should have simply the general umbrella description, so that we are not stuck on any particular points. It might be necessary because we are, we hope, making quite a step change. It might also be necessary because having them spelt out in primary legislation will be an easier route to a remedy through the courts; but I raise the point because, if the amendment is not accepted, the guidance will be important in that regard.
I want to mention health provision in particular. On 6 April, regulations about charges to overseas visitors will come into force, and victims of trafficking will be exempt from certain charges. They are referred to as “victims of trafficking”, not as “victims of slavery and exploitation”; that may be because, by definition, we are talking about people who come from overseas, so they will be regarded as trafficked. I am not quite convinced about that, but there we go. It is not quite the thrust of my point this afternoon.
As I read the regulations, the exemption depends on a reasonable grounds decision. My wider point is that it might be important to refer a victim to a GP straightaway, not for one of the relevant conditions as spelt out in the regulations, but for a condition that would be less urgent in the case of another patient, but is particularly important here because a victim of trafficking needs quick attention and care. I do not discount the points that the noble Baroness, Lady Howarth, has just been making.
To come to the particular point for today, I wonder whether the noble Earl, Lord Howe, could consider including healthcare and perhaps other care in the pilots that are to be undertaken. Might there be a mechanism piloted as part of the new NRM to test turnaround times, for instance? There might be ways of recording the reasonable grounds assessment that could be quicker than the sort of bureaucracy that, all too often, gets in the way, involving, for example, telephones, emails and so on. My request to the Minister is that there be an imaginative and extensive use of pilot testing in the case of some of the items of care and support that are so important.
My Lords, we are not directly associated with any of the amendments in this group, but the proponents of Amendment 78 have certainly made a powerful case in support of it. They referred to the Northern Ireland Act and to the Bill in Scotland which are much more specific on support and assistance for victims than this Bill as it is currently worded. We will wait to see whether the Government are going to give a helpful response to Amendment 78 in particular; or, alternatively, whether, when the Minister comes to propose his amendments, he can persuade us that they actually address the point.
There must surely be a need for the Government to say something now at least on what minimum level of assistance and support they would expect would be provided to victims of slavery or human trafficking and in what circumstances. This major question should not be left so much in the air as is the case in the Bill as it is worded. It would still appear to be the case—we will wait for the Minister to speak to his amendment—in government Amendment 82.
My Lords, I shall speak to Amendment 74, moved by my noble friend Lord McColl, to the amendments tabled by him and other noble Lords and to the nine government amendments standing in my name in this group. I shall speak, first, to the government amendments and then respond to the amendments tabled by other noble Lords and address at that point some of the questions which have been raised. I am grateful to noble Lords for tabling these amendments relating to the identification and support of victims, particularly through the national referral mechanism. I shall move government amendments on this issue.
The quality of the identification and support of victims is an essential issue. As I have said before, the victim is at the heart of the Government’s approach to tackling modern slavery. It is right that we had a thorough debate in Committee on issues relating to victims and we are very grateful that so many noble Lords took part in the excellent discussions we had outside the Chamber ahead of Report. Given the importance of identifying and supporting victims I entirely understand the sentiment behind Amendment 78—tabled by the noble Lords, Lord McColl, Lord Anderson of Swansea, and Lord Morrow, and the noble Baroness, Lady Grey-Thompson—which would place support of victims on a statutory footing immediately.
At this point I pay tribute to the work of the noble Lord, Lord Morrow, in introducing this important, ground-breaking legislation in Northern Ireland. We have been following closely the excellent work by the Assembly—by the noble Lord and David Ford—in bringing this forward. It is an example of the way in which we can learn together. There is the potential for the role of the Independent Anti-slavery Commissioner—who I know has had constructive meetings in Northern Ireland—to be UK-wide. This would help ensure consistency of standards and support as we move forward. I want to place on record my thanks and our respect for what the noble Lord has done.
As I set out in the debate on a previous group of amendments I have some concerns about moving immediately to a statutory footing for the NRM. We have just had a review of the system which found that major changes are needed, and we have, in principle, accepted all its recommendations. Many have referred to the NRM and Jeremy Oppenheim’s excellent review, which has received widespread approval. However, he stopped short of recommending that there should be a statutory element to the NRM at that stage.
Some of the changes in the national referral mechanism reflect key concerns raised in Parliament through the pre-legislative scrutiny process and since, for example, changing the decision-making process so that final decisions are taken by multiagency panels rather than UK Visas and Immigration or the NCA alone. We are setting up pilots to test out the new arrangements. I do not believe that an immediate move to a statutory footing while the system is in flux would be appropriate. I am also concerned that we need to consider the conclusions of the review of the national referral mechanism, which raise concerns that a statutory footing could lead to a loss of flexibility.
However, the Government have listened carefully to the debates on the issue, particularly the imaginative and practical idea put forward by the noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, in Committee; and under Amendment 48, which we have already debated, we have brought forward that change. Given the changes being made currently, an enabling power which allows for the Government to place the national referral mechanism on a statutory basis once we have a more settled and effective system is an excellent idea. That is why I am bringing forward today government Amendments 76 and 77, 81 to 87 and 107, which place an enabling power in the Bill to make regulations in relation to the support and assistance of victims of modern slavery. The amendments will allow for regulations to be made about accommodation, financial assistance, assistance in obtaining healthcare—a question that was raised by my noble friend Lady Hamwee—the provision of information, and translation and interpretation services where a person is a victim of modern slavery or there are reasonable grounds to believe that they are. These are exactly the types of support that were previously covered by Amendment 78.
Amendment 74, tabled by my noble friend Lord McColl, seeks to require the statutory guidance set out in Clause 49 to be developed in conjunction with the commissioner. We are determined to involve the commissioner fully in the development of the statutory guidance set out in Clause 49, and have also committed to a formal public consultation. One of the commissioner’s core functions is encouraging good practice in the identification of victims of modern slavery. Given that we already have a clear intention to involve the commissioner in the development of the guidance, I do not believe that the amendment is necessary, although I think that we are very much in the same area on the points made by my noble friend.
I turn now to some of the specific questions which have been raised. The noble Baroness, Lady Howe, talked about minimum standards. As part of our work to retender the adult victim care contract, we have included minimum standards of care which will ensure that the care provided through the contract is routinely inspected.
On average wait times, individuals who need support immediately will be accommodated under the adult victim care contract from the point they come to the attention of the first responder and are referred for support. There will be no gaps, 48-hour delays or anything like that; it comes into play as soon as they come to the attention of the first responder. Of course, a huge section of the NRM dealt with the effectiveness of the first responder system, and clearly some were much better than others. Most of the referrals to the system were coming via the Home Office, perhaps fewer than one might expect were coming from local authorities, a small number were from NGOs and an even smaller number were from the Gangmasters Licensing Authority. One of the key elements that we need to look at is the quality of the training that people are provided with, and this was recognised by Jeremy Oppenheim. We need to make sure that the first responders are more able to deal with these issues.
My noble friend Lord McColl said that we need the words “the right to support” in the Bill. The Government are under a duty to provide support services to victims under the Council of Europe convention and the EU directive on trafficking. Placing this phrase on the face of the Bill would not change this duty, as the NRM review set out. In fact, Jeremy Oppenheim said in the review that:
“Any process put on a statutory footing can become inflexible and unresponsive to changing demands and indeed improvements, due to the requirement to further legislate before making changes. Pinning the National Referral Mechanism down now would not be an effective methodology particularly when the National Referral Mechanism is going through a period of significant change”.
I simply repeat that to demonstrate that neither here nor throughout the Bill are we objecting out of hand to the proposals. We are trying to move forward on the basis of the evidence and the advice that we are getting from various expert groups, and that was a clear recommendation. The fact that we have tabled these amendments is a good indicator of that.
My noble friend Lord McColl also asked about support prior to the reasonable grounds decision. The NRM pilots will be implemented as soon as possible. They will include testing the amalgamation of the referral and reasonable grounds decision, which will allow victims to access support and accommodation immediately. Currently, support and accommodation can be provided to the individual prior to receiving a reasonable grounds decision, which I know was at the heart of the concern of the noble Baroness, Lady Grey-Thompson. Where there is a need, this is provided for on a case-by-case basis, recognising of course that the local authority has the first responsibility to provide immediate care, particularly in the case of vulnerable children.
I am happy to reflect on those outlines and explanations further, and indeed to look again at the comments made in this debate—as the noble Lord, Lord Rosser has invited me to do; I am happy to continue doing that, as I have done throughout. With that, I hope that my noble friend Lord McColl will consider withdrawing his amendment.
Before the noble Lord sits down, does he happen to know whether the Northern Irish legislation includes the person who has the obligation to provide the support? This amendment does not seem to have that. I wonder whether the Minister knows whether the Northern Ireland legislation says who must provide the support.
I always slightly quake in my boots when my noble and learned friend asks me a question, because if I think I have actually understood the question, I am probably overreaching myself in terms of my understanding of it. I think that we are talking about the individual—the noble Lord, Lord Morrow can respond, should he wish, on the specifics of Northern Ireland—and making it clear that the support to be provided is through the care contract, which is currently provided through the national referral mechanism. In addition, there are particular statutory duties, of course, on the part of local authorities to provide social care for vulnerable individuals. I will, again, reflect on that and if there are any changes I will certainly write and clarify the remarks that I have made.
My Lords, I thank noble Lords for their contribution, and I especially thank the Minister for his and for many of the explanations that he has given. I also thank him again for the many ways in which he has accommodated us. I beg leave to withdraw Amendment 74.
Amendment 74 withdrawn.
Amendment 75 not moved.
Amendments 76 and 77
76: Clause 49, page 38, line 10, leave out “is reason” and insert “are reasonable grounds”
77: Clause 49, page 38, line 12, leave out “a person is to be treated as” and insert “there are reasonable grounds to believe that a person may be”
Amendments 76 and 77 agreed.
Amendments 78 to 80 not moved.
81: Clause 49, page 38, line 18, at end insert—
“( ) If the Secretary of State makes regulations under section (Regulations about identifying and supporting victims), the references in subsection (1) to “arrangements” include arrangements under the regulations.”
Amendment 81 agreed.
82: After Clause 49, insert the following new Clause—
“Regulations about identifying and supporting victims
(1) The Secretary of State may make regulations providing for assistance and support to be provided to persons—
(a) who there are reasonable grounds to believe may be victims of slavery or human trafficking;(b) who are victims of slavery or human trafficking.(2) The Secretary of State may make regulations providing for public authorities to determine (for the purposes of regulations under subsection (1) or other purposes specified in the regulations) whether—
(a) there are reasonable grounds to believe that a person may be a victim of slavery or human trafficking;(b) a person is a victim of slavery or human trafficking. (3) Regulations under subsection (2) may in particular make provision about the public authorities who may make such determinations, and the criteria and procedure for doing so.”
Amendment 82 agreed.
Clause 50: Presumption about age
Amendments 83 to 86
83: Clause 50, page 38, line 22, leave out “reason” and insert “reasonable grounds”
84: Clause 50, page 38, line 23, leave out “reason” and insert “reasonable grounds”
85: Clause 50, page 38, line 30, leave out “there is reason” and insert “are, or who there are reasonable grounds”
86: Clause 50, page 38, line 31, after “in” insert—
“(a) any regulations made under section (Regulations about identifying and supporting victims)(1);(b) ”
Amendments 83 to 86 agreed.
Clause 51: Duty to notify Secretary of State about suspected victims of slavery or human trafficking
87: Clause 51, page 38, line 36, leave out “reason” and insert “reasonable grounds”
Amendment 87 agreed.
88: Clause 51, page 39, line 7, leave out from “(2)” to end of line 9 and insert—
“(a) may provide that a public authority which includes information in a notification in accordance with the regulations does not breach any obligation of confidence owed by the public authority in relation to that information;(b) may not require or authorise the inclusion of information which contravenes any other restriction on the disclosure of information (however imposed).”
My Lords, I shall speak also to Amendments 89 and 108 in this group. The Delegated Powers and Regulatory Reform Committee’s excellent report on the Modern Slavery Bill recommended specifying on the face of the Bill an initial list of public authorities which will be subject to the duty to notify potential victims of modern slavery to the Home Office and ensuring that authorities could only be removed from the list through the affirmative procedure.
I welcome the Committee’s balanced and constructive consideration and agree that these measures would give Parliament the appropriate level of scrutiny of the new duty. We are therefore tabling amendments to reflect these recommendations. On commencement of this provision, the duty to notify will apply to the police, the National Crime Agency, the Gangmasters Licensing Authority and local authorities. These are the key public authorities that make referrals into the national referral mechanism and have a key role to play in tackling modern slavery. They are most likely to encounter victims and also have the expertise effectively to identify them.
However, we are determined to improve the identification of victims, including through the statutory guidance provided for in the Bill. We will work with other public authorities to improve their knowledge and, should it become clear that other public authorities should also be made subject to this duty, they can be added via regulations. In line with the recommendations of the Delegated Powers and Regulatory Reform Committee, such additions will be made via the negative procedure. Amendment 108 ensures that any removal of an authority would be subject to the affirmative procedure.
Government Amendment 88 clarifies what information can be provided as part of the duty and takes a similar approach to information safeguards as govern the disclosure of information provided to the Independent Anti-slavery Commissioner under the duty to co-operate. We have looked again at the detail of this provision to ensure that the duty to notify respects existing restrictions on the disclosure of information, including those set out in the Regulation of Investigatory Powers Act 2000 and the Crime and Courts Act 2013, and is pertinent, given that the duty will now apply to the National Crime Agency.
These amendments place the duty to notify on a wide group of key public authorities and ensure that Parliament has appropriate oversight of this provision. I hope that noble Lords therefore feel able to support them.
Amendment 88 agreed.
89: Clause 51, page 39, line 10, leave out subsection (5) and insert—
“(5) This section applies to—
(a) a chief officer of police for a police area,(b) the chief constable of the British Transport Police Force,(c) the National Crime Agency,(d) a county council,(e) a county borough council,(f) a district council,(g) a London borough council,(h) the Greater London Authority,(i) the Common Council of the City of London,(j) the Council of the Isles of Scilly,(k) the Gangmasters Licensing Authority.(6) The Secretary of State may by regulations amend subsection (5) so as to—
(a) add or remove a public authority;(b) amend the entry for a public authority.”
Amendment 89 agreed.
90: After Clause 51, insert the following new Clause—
“Protection from slavery for overseas domestic workers
All overseas domestic workers in the United Kingdom, including those working for staff of diplomatic missions, shall be entitled to—(a) change their employer (but not work sector) while in the United Kingdom;(b) renew their domestic worker or diplomatic domestic worker visa, each such renewal being for a period not exceeding twelve months, as long as they remain in employment and are able to support themselves without recourse to public funds;(c) a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking alternative employment as an overseas domestic worker where there is evidence that the worker has been a victim of modern slavery.”
My Lords, I apologise for the absence from this debate of my noble friend Lady Cox. She is overseas on one of her many expeditions. I thank those noble Lords who have put their names to the amendment, perhaps in particular the noble Baroness, Lady Hanham, with her expert knowledge of the Royal Borough of Kensington and Chelsea, where, sadly, so much abuse of domestic workers has taken place. In moving the amendment, I thank the Minister—the noble Lord, Lord Bates—for his constant efforts to be constructive. He has seen me and other noble Lords twice since Committee, and has sent me two letters, totalling 12 pages. I am also grateful for another letter, from Karen Bradley MP, a Minister in the Home Office.
The issue of domestic slavery may be new to Ministers but I have been working with it and on it with, I am sorry to say, only very partial success, since the early 1990s. The sad fact is that many people, mostly women, have suffered greatly during these long years. The Minister wrote that there would be an independent review, which is to report by the end of July. There may be a new Government by then, and we have no idea of their future plans for legislation or their willingness to change the Immigration Rules. Either course would take time and thus prolong workers’ suffering. We currently have a legislative opportunity, so let us grasp it.
The noble Lord also wrote about the new visa-linked contract and the cards to be given to both employer and worker. These may help slightly, perhaps most of all with the majority of decent employers. However, the caseworkers at the point of departure overseas have to be satisfied that the national minimum wage will be paid. How, in practice, can they do that when the employer is bound to say yes to their questions? The letter from the Minister also said that,
“an extensive package of support is available to trafficked Overseas Domestic Workers”.
This has not, I am sorry to say, proved very effective so far for other categories of people, such as those forced into prostitution. How will it protect domestics who are here legally but may be prisoners in their employers’ houses? Have any of them, I wonder, benefited from discretionary leave to remain?
There is a hoary old theory in the Home Office that allowing domestics to change employers would create a pull factor, enticing extra people to come here. I reply that they cannot come at all unless their employer brings them here. The Home Office may be thinking of domestics from the European Union, but they can come here anyway and register for work with all the employment agencies in London. Furthermore, our amendment specifies an extension of 12 months—it could perhaps be 15—so that the worker cannot stay indefinitely. Nothing in the amendment encourages extra immigration.
The amendment should be seen in the context of forced labour and gross abuses of tied workers worldwide, but perhaps especially in the Middle East. I am glad to know that the Government are ratifying the ILO protocol to the Forced Labour Convention. That makes it all the more disgraceful that they should tolerate a loophole which has allowed exploitation and abuse to take place here. Ministers have called for changes to the kafala system, which ties huge numbers of workers to their employers in the Gulf and Saudi Arabia. There migrants may require employers’ consent for an exit visa, even for a holiday. Human Rights Watch has documented widespread abuses in the Emirates, and conditions are similar in other parts of that region. The mentality that sees nothing wrong in exploiting workers and domestics then comes to England, in particular to London. Compensation cases, both here and in Ireland, have shown the scale of the wrongs, crying out for redress.
There can be no doubt that domestic workers tied to one employer and living on his premises are extremely vulnerable. They are almost all sending remittances to support children and families in their home countries, where, it is most important to know and understand, there is no welfare state. This therefore makes them reluctant to complain of hardships or to leave their employer, whether that is in the Middle East or here in Britain.
The key protection that is needed is access to our civil courts and to employment tribunals. This was available between 1998 and 2012. During that time, some 50 cases were brought, securing between £1 million and £2 million in compensation. That is roughly £30,000 per case. My noble friend Lady Cox showed on 10 December how conditions have got worse since 2012. The victims often cannot run away; or if they do, they become illegal immigrants. I conclude with a quotation from an unnamed Filipino domestic in London. She said:
“It’s worse than Saudi Arabia. They treat me like a prisoner. They never even give me a single pound. I’m starting work around 4.30 in the morning, until 1 o’clock in the morning”—
the following day—
“I’m sleeping only in the kitchen. I’m crying the whole time that I’m sleeping on the floor”.
The Government rejected the advice of two Joint Select Committees on this subject. They only defeated the relevant amendment in the other place by the casting vote of the committee chairman. They have since had time to think again and to digest not only the parliamentary problem in both Houses but also an ITV documentary and Radio 4 and other press coverage. I urge them to accept this amendment or to improve it for Third Reading. If they do not like that course, they have the option to change the Immigration Rules, as was done in 1988 and again in 2012. If they prefer the second option, we must have a cast-iron guarantee today that this will be done. This is a modest amendment, because it does not revoke the original concession, it just helps to prevent its worst consequences. In particular, it will prevent domestic workers who escape from going underground in complete illegality. I commend the amendment to your Lordships and beg to move.
My Lords, I support Amendment 90, which would end the unacceptable situation regarding the current visa system for overseas domestic workers. In Committee we heard many passionate speeches. Since then, the Minister has announced a review and a package of other changes that the Government will be bringing forward to ameliorate the situation. As helpful as these may be, they do not tackle head-on the current desperate plight of many domestic workers who are subject to exploitation, slavery and forced labour.
The Government have had nearly a year since the pre-legislative scrutiny committee published its report in April 2014 to look into this and review the visa system for ODWs. So I have to ask why they have left it so late to commission a review. I have no doubt that James Ewins, who will undertake the review, will do a splendid job: he is superbly qualified. However, the review is both too late and, I believe, unnecessary. Time and again we have been told by the Government that there is insufficient evidence and that the numbers do not show that the 2012 visa changes have had any effect on the abuse that some overseas domestic workers have had to endure. I beg to differ. Indeed, I have had no contact with any organisation or any individual who shares the Government’s view. Kalayaan, which has been leading the way in advocating and representing these workers, has first-hand experience and the case studies of numerous workers whom it has helped to escape. Human Rights Watch has carried out an independent review which took over a year to complete. One therefore has to wonder how the Government’s review can be completed by the end of July this year. As the noble Lord himself said, by that time this piece of legislation, excellent though it is, will be done and dusted.
The Joint Committee on the draft Bill said that since the tied visa was introduced there have been high levels of abuse among migrant domestic workers entering the UK. They said that the current bondage arrangement has,
“unintentionally strengthened the hand of the slave master against the victim of slavery”.
The committee, together with the Joint Committee on Human Rights and numerous NGOs, has called on the UK Government to reverse the relevant changes to the Immigration Rules and to reinstate the pre-2012 protections in the Bill. They all base their views on evidence. How much more evidence do we need? How many more cases do we need to uncover to reach the threshold where a change will happen? Clearly, getting more evidence will be particularly hard if workers are imprisoned and then driven underground.
In his letter of 9 February, the Minister outlined some actions that the Government have committed to taking immediately. Some of these are welcome but, frankly, they are woefully inadequate and do not remedy the root of the problem—that is, untying the visas. The pilot visa interview programme in Africa might sound superficially attractive, but realistically these overseas domestic workers are not going to admit that their employer does not treat them well. Indeed, they might not even be aware of the real horrors that await them until they start work in this country. Their employer is hardly going to tell them beforehand that they are going to work 19 hours a day, sleep on a floor, have little food, no pay and no access to their passport. In any case, workers are already meant to be interviewed separately from their employers, so this is not a new measure. Likewise, an employer is hardly going to provide a contract giving the truthful details. Indeed, contracts are required currently, yet Kalayaan frequently finds cases where domestic workers’ terms and conditions of employment, including salary, are not in accordance with their contract. To be effective, contracts of employment must be easily enforceable in the UK; but as the noble Lord himself has said, and as the noble Baroness, Lady Hanham, said so forcefully in Committee, this is way out of the bounds of reality.
I welcome the reintegration plan with the FCO which will support overseas domestic workers who wish to return to their home country and rebuild their lives, but it does not help those who are currently enslaved. In the case of domestic workers employed by diplomats, diplomatic immunity makes it particularly hard for them to access justice. Earlier this month the Court of Appeal found that diplomatic immunity trumped trafficking when it refused the claim of two domestic workers found by the UK’s national referral mechanism to have been conclusively trafficked by their diplomatic employers.
We are now on the last day of Report on this landmark Bill. In this amendment we are not talking about huge numbers of people; we are talking about a few miserable, poor, abused people—usually women—who often have dependants relying on their support, who have been lured to employment here by ruthless and exploitative employers. These workers need a change in the law, and Peers today have an opportunity to make that a reality. As Kalayaan said in one of its excellent briefings, we need to protect, not to review. Today we have an opportunity to do that by passing this amendment.
My Lords, several of the amendments to this important Bill have been introduced as filling a gap in the legislation. That is especially true of Amendment 90. As the noble Lord, Lord Hylton, and the noble Baroness, Lady Royall of Blaisdon, have said, it will assist all private and diplomatic domestic workers by providing a measure of protection and flexibility otherwise lacking in the Bill. It will also enable those who have been victims of modern slavery to remain in the United Kingdom for a limited period while seeking alternative employment. That is why I am glad to have my name attached to the amendment.
On Monday my noble friend Lord Judd, when speaking about the global dimension of modern slavery, referred to a crisis of values suggested by the recent bishops’ pastoral letter entitled Who is My Neighbour? In this amendment we have one interesting example of a relatively small number of people who are our neighbours—namely, overseas domestic workers—as well as one means of taking a principled and value-based stand by offering them this modest help. The humane and sensible rationale for this amendment has already been so well argued that I have no need to detain your Lordships further, except to say that I am happy to be associated with it and to offer it my enthusiastic support.
My Lords, my name is also attached to this amendment and since the start of the Bill it is one of the areas of this legislation that I have been most concerned about. Nobody could have failed to be moved by the television programmes that we have seen, the reports that we have heard, and the work done by Kalayaan, which has been very much hampered by the fact that the changes to the visa system took place in 2012.
In this 21st century it is absolutely unacceptable that people are coming in to this country tied to an employer, unable to do anything for themselves and absolutely under the instruction of the person for whom they are working and who has brought them into the country. We would not stand for this for a second if things were otherwise. It is time that we stopped standing for it. We desperately need to make the changes that will enable people who come here to feel reasonably free, reasonably able to live in this country and reasonably able to know that if things go horribly wrong with their employer—as so many of these cases clearly do—there is some redress to somebody who can help them and there is some way out.
When talking to Kalayaan, which deals with the forefront of the work that goes on, it is clear that under the current situation it feels completely helpless to ensure, first, that people can get to it and secondly that if people do come, it can do anything to help them. In Committee, I pointed out that one of the systems in place to help domestic workers know what to do if they run into trouble is a card that is delivered to them if they are lucky—if it does not go into the pocket of their employer—at London airports. It gives them the telephone number of ACAS and a couple of other telephone numbers that they can ring up if they are in trouble. Most of these people have their telephones taken away from them. They do not have access to a telephone. They do not know people in this country. They cannot get out of the premises or the property in order to find other people.
The Minister has a reputation for having responded sympathetically, pragmatically and sensibly to all the issues that have been brought up. The number of government amendments that have come through over the past few weeks has been amazing. I pay tribute to him for the fact that he and the Minister in the other place have listened. I say now, please, will the Minister do this one further thing and listen to this particular problem? It is absolutely germane to modern slavery. It is one of the elements of modern slavery that we cannot overlook. I think this House will really not have shown itself at its best if we do not manage to pass this amendment, which will help—it will not do the trick but it will help other organisations help those who need it.
The mischief, of course, was the change to the visa system in 2012. I understand why—I understand the need to control immigration—but I do not think that we are going to break the bounds of numbers if we help and look after these people. We are not asking that they should stay in the country for ever. What we are asking is for the Government to say that this country does mind about what happens to people who come into it, particularly when they have no means of helping themselves. I very much hope that in his response to what has been put forward today, the Minister will be able to reassure us that the Government will take this amendment on board.
Finally, I think a review is splendid. It is one of the ways of shifting responsibility off to another day. I can see that it would be very nice to have a perfect review of all the implications but there are at least two, if not three, very well thought-out reports already. The Joint Committee on the Bill, on which I sat, went into this in great detail. I do not think we will miss very much if the Minister says that the review could take place but in the mean time agrees to the amendment, which I support.
My Lords, I will speak very briefly in support of the amendment. Rereading our debate in Committee, I was struck first by the unanimity of your Lordships’ House in support of the amendment but also by the tone of the debate, which was very different from the very positive tone there has been throughout the rest of the debates on the Bill. There was an air of exasperation, expressed particularly by the noble Baroness, Lady Cox, who is not able to be here today, and my noble friend Lady Royall.
I think the frustration was partly because the Minister, the noble Baroness, Lady Garden, claimed to share our concerns—and I am sure she does—yet responded with a series of totally unconvincing arguments. In particular, she seemed to be making the case on the basis of a hypothetical possible increase in abuse as a result of the amendment while seeming to discount the actual evidence of what, according to Kalayaan, happened after 1998 when similar rights were first introduced, which was a clear decrease in abuse reported to it, and then what happened post-April 2012 when those rights were rescinded, which was a significant increase in abuse reported. The Minister twice invited Members of your Lordships’ House to offer suggestions as to what we could do to prevent the abuse. The unanimous suggestion from all over the House, as well as from the Joint Committee on the draft Bill and the Joint Committee on Human Rights, was that we should restore the status quo ante—pre-2012—or something like it.
As has already been argued, there is no need for a review. We have no guarantee of what will happen as a result of that review after the election. How many more women will be subjected to forced labour and exploitation and the kind of suffering so movingly expressed in the example given by the noble Lord, Lord Hylton, before we are prepared to act? We have the opportunity to act today to remove an injustice that is totally against the principles underlying the Bill. I hope we will seize that opportunity.
My Lords, I fear that I am going to be speaking against the very powerful speeches that have already been made. Of course, I share the concerns of those who know about the abuse of overseas domestic servants by those who employ them and treat them as slaves. As a member of the Joint Committee on the pre-legislative scrutiny, I shared the concerns of the other members and of course put my name to the recommendation.
However, I have had the opportunity to discuss this at considerable length with the commissioner-designate who, in his former position as head of the anti-trafficking agency within the Metropolitan Police, had actual experience of what had gone wrong under the previous visa set-up. What he told me, and I share with the Committee, is that some women were actually being trafficked from one employer to another. When the first employer had had sufficient use of that person, she was taken on to another employer under the opportunity to do so under that visa, and he said he had several examples of it. We know that there have been other abuses under that former visa situation.
The commissioner-designate then told me about some of the work that he is doing, particularly with the Filipina women who are coming over. He has been working with Cardinal Vincent Nichols, Cardinal Tagle of the Philippines and the Philippine ambassador to see what they can do in the Philippines to stop these women coming over to these sorts of slave owners. A centre has also been set up in London which will house women who manage to escape from their slave-owner employer. As the Minister told us on the previous occasion, the woman will not be automatically deported if she is identified as a potential victim. She can—and should—be treated like any other victim of slavery. Obviously, the problem for these women is getting from the abusing employer to someone who will help. That is a matter which the commissioner-designate is passionate about trying to deal with. I think Nigeria is another area, but he is particularly concentrating on the Philippines at the moment.
Therefore, far from thinking that a review is a waste of time, too late and just trying to push the matter into the long grass, I actually believe, along with James Ewins of the Centre for Social Justice, who has already been responsible for an excellent report on slavery at an early stage of our deliberations, that the commissioner will be tenacious in looking at how the previous visa worked and how the present visa is working, or not, and will be giving, I have no doubt, robust advice to the Government—whichever Government. Since everybody in this House supports the Bill and the concept of trying to help those who are enslaved—it does not matter what the colour of the next Government is—each Government, whoever it may be, will have an equal obligation, as Members of this House will certainly remind them, to do something practical about slaves under the domestic workers visa. It does not require—I will be corrected by the Minister if I am wrong; I do not think I am—primary legislation. What it requires is changes to the Immigration Rules and the immigration visa. I urge the House to reflect whether it would not be better to let James Ewins use his tenacious ability to get at what is actually happening. I have now been on two committees: the one chaired by Frank Field for the Home Secretary and then the pre-legislative Select Committee. We heard basically only one point of view. We need to know how the previous visa worked and whether there is another way of providing a visa, together with proper help—which those poor women are not getting—before we pass this primary legislation, which is not in my view appropriate at this moment.
My Lords, when the noble Baroness, Lady Hanham, was speaking, I began to feel a little sympathy for the Minister and could not think how he would be able to respond. He has now had some comfort from my noble and learned friend Lady Butler-Sloss, but it does not take away from the necessity for the amendment.
The Minister will remember that I spoke with some passion at Second Reading and in Committee, and then more recently when he kindly agree to speak to us with his officials. He will already know the strength of feeling among the NGOs, which my noble friend Lord Hylton mentioned—notably Kalayaan and Human Rights Watch. I pay tribute again to my noble friend for the long time that he has been working on this amendment. It is more than 20 years and I have been there for most of that time. I have long advocated this cause during successive Bills. I of course recognise the asylum concerns that face every Government, but this is not a relevant factor. As the noble Baroness, Lady Royall, pointed out, it is a different situation, a special situation, that does not concern very many people.
The Home Office aggravated the problem by introducing the single employer visa, which in some cases at least ensures that slavery becomes a permanent affliction. That means that it is moving in the opposite direction from this Bill, which it has itself introduced. Two Select Committees have deplored it, yet here we are again, unconvinced that anything has changed. Of course, we have to welcome the Minister’s commitment and the Government’s latest offer of the review—I hope that my noble and learned friend Lady Butler-Sloss is right that the review will produce some more truths—but we have a lot of evidence already from the NGOs and from a Joint Committee, so I fail to see why we should wait for that.
The only really new item on the agenda is my noble friend’s amendment, which I hope as many noble Lords as possible will support. Does the Minister feel that this country is fulfilling all its obligations under the European convention? We would be grateful for some update on that.
My Lords, it is clear that protection from slavery for overseas workers is an enormously important issue, and I am sure that we all mind very much about what happens to them.
However, it would appear that opinions differ on how to tackle this. While some claim that tying the employee to the employer who brings them into the country leads to abuse, I understand that others who have looked into this matter are not necessarily of that opinion. It is important that, before putting anything into legislation, we try to understand the best way to deal with this.
As we have heard, the Home Secretary has announced an independent review, which will examine all the facts around this issue carefully. In particular, it is important that it looks at the effects of the terms of the visa. I understand that the review will look also at how effective are the protection and support for overseas workers who are victims and, as we have heard, that it will report by the end of July this year. I therefore support the views expressed by the noble and learned Baroness, Lady Butler-Sloss.
Meanwhile, I understand that steps are being taken that will help with the protection of workers, including a package of support. Therefore, this issue will definitely not be forgotten and will be given the attention that it rightfully deserves after the review has reported. However, I think that it will be much better dealt with when we have all the information to hand and should not be put into this legislation. While I have enormous sympathy with the reasons behind the tabling of the amendment, I cannot support it.
My Lords, I support the amendment. I think that anybody who heard the recent Radio 4 programme and listened to the first-person testimony of people who are in this situation could not fail to be moved by it. A question was raised during the programme where the Government were invited to answer why they had not signed convention 189 on decent work for domestic workers. Not every country has signed it—I would not attempt to mislead the House on that—but it is interesting that countries such as Finland, Ireland and Germany have done so. I fail to understand why we should not be in that progressive group. I share the view of those who have said that there is a lacuna in the legislation which the amendment fills. I will be interested to hear the Minister’s response.
My Lords, I support much of what has been said on all sides. It is clear that this is a matter which will not go away and which the House wishes to be resolved. I came across it repeatedly during my 18 years as a London MP—I probably had similar experiences to those of my noble friend Lady Hanham. It is clear that situations which are simply appalling are happening today in London and they have to be dealt with as soon as possible.
I am afraid that the noble and learned Baroness, Lady Butler-Sloss, put her finger on it: I found that the problem was not the law; the problem was making the law effective. The problem was, as she said, how one got a person out of the hands of an abusive employer into some sort of help. They had no information; they had no knowledge of their rights; they came here in total ignorance of the situation. Practical enforcement is what we have to concentrate on. I am afraid that the law will not help here; it is the reality of the situation on the ground floor. Therefore, I want to ask my noble friend what is really being done about a new contract which goes out with the visa. If a contract goes out with the visa all the time, you are beginning to tackle the problem. If you also have a commissioner who concentrates on those areas—the Philippines, Nigeria, Saudi Arabia and so forth—where the problem mainly originates, you are beginning to tackle it. Unless you do that, all the law in the world will not avail you.
My Lords, at the previous stage, I commented on the irony that the history of the arrangements for overseas domestic workers was a concession introduced for humanitarian reasons, so that the worker could accompany the family with whom they had been working and would not lose their job. In hearing the experiences that have been related to us, I found it particularly distressing and concerning to learn that a number of workers were informed that, if they were to escape and start work for someone else, they would be working illegally or would be here illegally if they did not approach the authorities. Virginia Mantouvalou in the work that she did in conjunction with Kalayaan reported in her conclusion that the single fear that interviewees who participated unanimously voiced, now that they were undocumented, was a fear of the authorities, of imprisonment and of deportation.
I agree that this is a matter for the rules but what is available to us is primary legislation because noble Lords do not take part in constructing immigration rules. I also agree that a review will not be a waste of time. As my noble friend Lady Hanham said, this amendment will not be a complete solution but it is an interim step and it may give workers who are abused the confidence to get away and seek the help which the noble and learned Baroness has told the House is available. I do not say this lightly, but if I were not to support this amendment, I would feel complicit in slavery and servitude.
My Lords, it is no coincidence that I should be following my noble friend Lady Hanham in so far as she was in office in the Royal Borough of Kensington and Chelsea for the whole of the period in which I was the Member of Parliament next door for the Cities of London and Westminster. The experiences that she had in the Royal Borough were totally matched by the experiences I had as the local Member. The frequency with which cases came up is something which I remember vividly from that period and I have seen my fair share of television films about this issue and listened to radio programmes, such as those cited a moment ago.
I do not propose to go over the ground which has been gone over by others. I am delighted to see the noble Lord, Lord Alton of Liverpool, in his place, not least because of his notable speeches on this subject in Committee. It was he who drew attention to the fact that the issue was settled in the Commons committee by the chairman of the committee taking a vote to leave the Bill as it was. A more significant confession appeared in a speech made in Committee on 10 December by the noble Baroness, Lady Cox, who sadly cannot be here tonight. She referred to the fact that the vote was tied in the Public Bill Committee, losing only to the chair, and then the Conservative Member of Parliament and former Deputy Chief Whip John Randall explained at Report why he would vote for a Labour amendment to protect domestic workers. He said that there had been too many victims for him to be able to say that it was a matter for another day. I say that simply to indicate that in another place the issue was very closely divided on and therefore that the Government have only a narrow margin to defend their position.
I realise that Her Majesty’s Government are pressed for time. However, on the basis of my experience, I find it difficult to believe that any Government could have expected to take this Bill through Parliament without this issue coming up. The fact that we are now out of time reflects backwards on to how much preparation there was in terms of time for this to occur. I am sorry that the Minister has been saddled with the task of defending the Government’s position at this stage in the Bill.
I was patently impressed by the speech of the noble and learned Baroness, Lady Butler-Sloss, but this does not protect the Government from the need to produce a more decisive defence for the period before the promised review is completed. I very much hope that my noble friend can be convincing in explaining the validity of the Government’s interim posture on this issue. So far as my own vote is concerned, much hangs on what he says in his speech to wind up this debate.
I would like to comment very briefly on the speeches of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Hodgson. I do so cautiously. Anybody who questions the argument advanced by the noble and learned Baroness, Lady Butler-Sloss, should proceed cautiously like Agag. I also admit that I have no particular expertise in the area of domestic slavery—except that I am married.
The argument that the noble and learned Baroness, Lady Butler-Sloss, made seems to me to be a very encouraging one. Developments are taking place. I was particularly encouraged to hear about the work being done with and for the Filipino community. That seems to me very good news. It may reduce the scale of the problem we are talking about; it may partially mitigate the problem; but it will not eliminate the problem. The review that the noble Baroness, Lady Hodgson, talked about is obviously very important, and nobody who supports the amendment of the noble Lord, Lord Hylton, will be against the review. They are not alternatives. It seems to me that this amendment cannot do harm; it must do good. I do not know how much good it will do and the noble Lord, Lord Horam, may be completely correct that it will do very little good, because so many of these poor people will be unaware of their rights and, unless there is a path of enforcement, not much will change—but no harm will have been done and some good must, by definition, be done. So I very much hope that the amendment will be pressed to a vote.
My Lords, I declare an interest as a trustee and a member of the council of the campaigning organisation Liberty. I rise to speak in support of Amendment 90 moved by the noble Lord, Lord Hylton. As I mentioned in Committee, victims should be at the heart of this Bill. We cannot waste the opportunity we have here to improve protection for these victims of modern slavery. As has already been mentioned, migrant domestic workers who are tied to their employers are particularly vulnerable to abuse and exploitation. The inability of overseas domestic workers to change their employer leaves them powerless to escape their abusive situation and to bring a case against their perpetrators. Instead of protecting victims, we have a current visa system that facilitates trafficking, undermining the very purpose of this Bill.
I regularly come into contact with families and individuals who have been victims of crime and injustice. My first piece of advice is that they must speak out and seek help. The Minister for Modern Slavery and Organised Crime in the other place agrees. In a Radio 4 programme the Minister said:
“I want them to come forward. I want them to come into the system. I want to give them the help and support they need and I want to catch that perpetrator”.
But how do the Government expect workers to come forward in a system that ultimately criminalises them rather than recognising them as victims? That is exactly what is happening. Many domestic workers will not come forward for help or escape because they are aware that they would be breaking the law if they did. Therefore, numbers on the system are low and workers are driven underground and remain hidden. Those who do come forward are usually unaware of the visa rule. Many charitable organisations encounter clients who, after hearing that they have broken the conditions of their visa and are at risk of deportation, never return to them or consent to official help.
Kalayaan, the migrant domestic workers charity, provided me with some telling statistics. In 2014, it identified 54 clients as trafficked victims, but only 25 referrals were made to the national referral mechanism, so less than half of those identified as trafficked consented to being transferred to the NRM or the UK authorities.
The questions we must ask are: why was that and what can we do to ensure that victims are not afraid to come forward? Expert organisations such as Kalayaan and Anti-Slavery International, and numerous parliamentary inquiries into this issue, have all concluded that this visa rule is one of the biggest barriers to support and justice. This is a huge problem and we should address it in this Bill. Employment tribunals are not an effective route to justice, either. How can we expect a domestic worker to stay with their abusive employer while they are bringing a case against them? How can we expect a domestic worker, who is usually paid very little, to afford the legal costs of a case—a situation which is made all the worse with cuts to legal aid?
In his letter of 16 February to the noble Baroness, Lady Royall, the Minister spoke of the Home Office’s independent review and listed further arrangements to strengthen protections. While measures to increase awareness of domestic workers’ rights and to assess their situation upon entering the UK are welcome, I fear that they will have a limited effect as it not clear how the Home Office will ensure that those rights are upheld when the worker actually begins work in the UK. Will the Minister say what was lacking in the examination of this issue during pre-legislative scrutiny such that a further review is needed?
The Home Secretary is currently addressing the importance of protecting the rights of those who are most vulnerable to abuse of stop and search. She recently stated that if the stops-to-arrests ratio does not improve, a Conservative Government will not hesitate to bring in primary legislation to make it happen. Surely in the same way this Government can commit to protecting the rights of overseas domestic workers. I believe that Amendment 90, by reinstating the original migrant domestic worker visa, will empower these workers once again with the most basic rights and effectively protect them from abuse and exploitation.
My Lords, I did not intend to take part in this debate. Having listened to the passionate speech by the noble Lord, Lord Hylton, and his examples and the various other aspects that were put before us, I was particularly moved by what the noble Baroness, Lady Hanham, said. I remember some of the issues that took place at different stages of the Bill. Of course we can wait if it means putting it off for four or five months or something like that—but God knows how many more wretched trafficked slaves will pass thorough in that time, so I share the view of my noble friend Lord Kerr. What harm can it do if we make the decision today? So let us make the decision today.
My Lords, I pay tribute to the noble Lord, Lord Hylton, for moving his amendment. I appreciate wholeheartedly his commitment to the cause over many years. I thank him for his courtesy in the way he has raised this matter with me. He has been very persistent on the issue—and rightly so because it is an area where we need to be absolutely convinced that we are on the right side of the argument.
However, given that this has been a wide-ranging debate, I think there is possibly a slight conflation of issues here: the overseas domestic worker visa and the treatment of people in domestic servitude who have been trafficked here from overseas. They are two distinct issues.
The overseas domestic worker visa was introduced by the previous Government in 1998 essentially to facilitate particular groups of people who travelled to the UK frequently, brought their own household staff and did not wish to hire people in the UK for short visits. The average length envisaged then was a matter of a couple of weeks and today 15 days is the average time for which someone comes in. It may assist the House to know that about 80% of the people who come under the overseas domestic worker visa scheme come from a very small number of countries in the Middle East: 4,894 from the United Arab Emirates; 3,996 from Saudi Arabia; 2,581 from Qatar; 1,005 from Kuwait; and 257 from Oman. A particular group uses the overseas domestic worker visa. It was never intended that the overseas domestic worker visa should somehow translate itself into a visa to work for someone else. It is tailored for a visitor.
The amendment before us would open the opportunity for the visa potentially to be used as another way in which workers can enter the UK, repeat their application indefinitely and after a period of five years have the right to remain. The overseas domestic worker visa is a particular issue which we are seeking to address. In 2012, we felt there was some evidence that the visa was being abused and that people were coming here with one employer and were being moved on to other employers and other areas. Therefore, we said that if you come in on that visa to work for that employer, you ought to stay with that employer.
I have set out what the overseas domestic worker visa is and how the discussion and debate is very different from the broader issues of trafficking which this legislation addresses. We are dealing with about 15,000 applications per year. When Kalayaan, which I, like others, respect, undertook its review over a period of two years, there were some 32,000 overseas domestic worker visa applications. Kalayaan took a sample of 120 which had been drawn to its attention. By most estimations, and, I think, by its own admission, that is a small sample.
So what is the appropriate action to take? Is it simply to revert to the previous visa regime or is it to take some interim steps? The notion that the Government are not doing anything in the light of the evidence is simply not the case. We have introduced a new template contract. The contract must stipulate the sleeping arrangements, the minimum wage, the holiday pay and that the employer cannot withhold an individual’s passport. The clearance officer must be satisfied under a test of credibility that the employer will pay the national minimum wage. The person will now be interviewed by an officer directly and individually so that, should it be the case that when they were previously granted an overseas domestic worker visa to come to the UK they were not treated in accordance with their contract, then that could be made known and of course the visa would not be granted. We have that safeguard in. We also have the information card which is going to be made available to people who come to the UK advising them where to go for help.
This is where we get to the crucial element, which is this. If someone is on an overseas domestic worker visa and they feel their treatment by their employer is something amounting to servitude or abuse, they are able to come themselves to an organisation like Kalayaan or the police or the national referral mechanism. The national referral mechanism will take that issue very seriously. It will offer them protection and advice as to what to do. They will be granted, if there are reasonable grounds when they enter the referral mechanism, a 45-day period of reflection. If it is proved, or there is a reasonable belief, that they have been abused by their employer, then they could be allowed to remain in the UK for a period of one year and one day to assist with the inquiries being undertaken by the police.
So where someone is in an abusive relationship, I would hate your Lordships to go away with the impression that such people should somehow sit there and suffer because they have no option but to do so. If they are on an overseas domestic worker visa or any other visa—or even here illegally within the UK—and they are being mistreated, that is not tolerated. That is the whole point of the Modern Slavery Bill and that is what the national referral mechanism is for—to offer them that help. Overseas domestic workers generally have the protection of UK employment law. Anyone who believes they are mistreated by their employers has access to a number of organisations who can help, including the police, ACAS, the pay and work rights helpline as well as the employment tribunals where the tribunal or the court has jurisdiction in their circumstances.
Although the overseas domestic worker visa is a scheme that is quite distinct from the general issues to which we are referring, we considered what would be the best way forward, given the concerns which had been raised by the noble Lord, Lord Hylton, and others. We decided that the best route forward was not simply to say that we did not think that the evidence was sufficient—we are talking about the Kalayaan report which referred to a relatively small number of cases as a proportion of the total. We said that we needed to have better information, not just about the treatment of overseas domestic workers but about the visa scheme itself. In other words, is the visa scheme which was introduced in 1998 still fit for purpose? Is it something which should be retained? Should it actually be scrapped altogether if it is being abused in that way?
To do that, we need to have evidence. I have to say that this is another example of where the Government have tried to meet the genuine concerns which have been raised by the noble Lord, Lord Hylton, and many others, including my noble friend Lady Hanham. We have tried to address their concerns by saying that James Ewins—the highly respected legal adviser to the pre-legislative scrutiny committee who is from the Centre for Social Justice, which in many ways was the architect of the present Bill—should be given the time to undertake a review. He does not necessarily, as the noble Baroness, Lady Royall, mentioned, need to undertake all the research again for himself. He can draw upon the considerable amount of data and information which is held by UK Visas and Immigration in the Home Office and we will co-operate fully with him. He can speak to the NGOs, he can look at the case studies being provided by different organisations and then, after a period of review and with his recommendations, that can be something which can then be acted upon.
The idea that somehow if we do not take action or include this amendment in the Bill today there is no option again for primary legislation to be brought forward is simply not true. The Immigration Rules can be changed at any time. In fact we are changing them tomorrow to reflect the changes to the overseas domestic worker arrangement which we have put in place—the new contracts, the requirement for an interview to take place and the testing and piloting of video links. Change can be done at any time. It does not need to wait for further primary legislation. It can be done, if that is what James Ewins decides needs to be done.
All the way through this process there has been some advantage—for example when discussing the provisions on the national referral mechanism—to be discussing the issues in the context of an exceptional review carried out by Jeremy Oppenheim. He was able to take a wide look at the issues and produce a considered report with a series of recommendations, which have been absolutely invaluable to us in making decisions on what amendments needed to be made. The Government have accepted all those recommendations which were made in that review. All we are saying in our response is to let us allow the same due process to continue. Let us allow James Ewins to get on and do his work—to undertake a thorough review, to consider all the arguments that have been presented and then to come forward with his recommendations.
That is really the argument between us. I know that there are many individual questions which were raised in the course of the debate, but essentially that is what it comes down to. It is a question of whether we seek to pre-empt with an amendment which does not deliver what many people have been arguing they actually want to see. It is whether we proceed with that amendment or whether we actually proceed in a more orderly way, recognising that we need to review the operation of this domestic workers visa arrangement and allow someone who is completely independent of government to undertake that review. It would come back by July—so it is not going to be in the long grass for ever—and then action can be taken in the next Parliament at any stage based on the recommendations which are made. I think, along with a number of other noble Lords, that that would be the more appropriate road to take. I ask the noble Lord to consider removing his amendment at this stage.
My Lords, I would like to thank most warmly all those who have taken part in this debate, which has been quite long and complex. As to the Government, I am sorry to say that we have heard really nothing new that was not already known in earlier stages of this Bill or in meetings that followed on from Committee.
The amendment is really a test of the Government’s intentions. Why should they take a massive effort to deal with trafficking—through prevention and risk orders and an anti-slavery commissioner—and supply chains and yet leave this loophole for abuse which has existed for so many years? What do the Government consider that the impact on the reputation of this country will be, following the comments on ITV and Radio 4 and in the press? Surely the knowledge that those abuses and exploitations continue to go on here cannot help our reputation in any way.
The Minister mentioned the Immigration Rules and some tiny changes which are about to be made. Why cannot the Government go the whole hog and, as I suggested earlier, put into the rules the equivalent of this amendment? However, he does not appear to be willing to do that. Further, the national referral mechanism was not designed to deal with this particular problem. Maybe it can be adapted, but that is not its main purpose. Therefore, in view of all those points, I wish to test the opinion of the House.
Amendment 91 had been withdrawn from the Marshalled List.
92: After Clause 51, insert the following new Clause—
(1) The Secretary of State shall consult on ways to strengthen and improve the resources of enforcement agencies such as the Gangmasters Licensing Authority and the Employment Agency Standards Inspectorate using confiscated assets and proceeds of crime recovered under the provisions of section 7.
(2) A consultation under subsection (1) shall end no later than 1 January 2016.
(3) The Secretary of State may by order amend section 3 of the Gangmasters (Licensing) Act 2004 to include other areas of work where the Secretary of State believes abuse and exploitation of workers or modern slavery or trafficking may be taking place.
(4) An order under subsection (3) may not be made unless a draft of the statutory instrument containing it has been laid before each House of Parliament and been approved by a resolution in each House.”
My Lords, I thank my colleagues, the noble Lord, Lord Alton, and the noble Baroness, Lady Kennedy, for their support for this amendment. I also place on record my thanks to the noble Lord, Lord Bates. With others, we have been extremely grateful for the patient and kind way he has listened to us, engaged with us and put on special meetings on various subjects. The point of this amendment is to highlight the fact that both the Government and many of us involved in this issue are learning a great deal as we go along. Therefore, there is a proper space for consultation, review and further learning to be done.
The point of this amendment is to seek authorisation for further consultation around two particular things. One is resources for some of the key agencies which will be in the forefront of putting this legislation into practice. There will be an enormous challenge and the resourcing issue, with tight budgets, will be enormous. We have discussed in previous debates the potential for using confiscated assets and the proceeds of crime to help resource the work of some of the agencies that will be putting this legislation into practice and can deliver what the Bill requires. This was discussed by the Select Committee and I hope the Minister will endorse further consultation about the potential for using confiscated assets and the proceeds of crime to help resource the implementation of the Bill.
The second area that the amendment explores is to help us ensure that the agencies which are in place at the moment can develop appropriately and be fit for purpose. I refer in particular to the Gangmasters Licensing Authority, which needs to have a realistic remit. It has enormous expertise, but it will need resourcing, as I have said, for further engagement in the new context, including how it links with bodies such as the Employment Agency Standards Inspectorate. We need to see how those bodies are going to work together: that needs exploring further if the Bill is going to be implemented effectively. The Employment Agency Standards Inspectorate will, of course, have a key role in helping us reach out to those areas where slavery operates through small-scale operations, not just the large businesses we are looking at in those parts of the Bill covering the formal supply chain.
So the amendment covers those two simple things. It explores how best we can use confiscated assets and the proceeds of crime to give resources to key agencies such as the GLA and the Employment Agency Standards Inspectorate, and it looks at how those agencies might co-operate so that we can do educational, proactive work so that the requirements of the Bill get disseminated through those agencies into their constituencies, and so that they co-operate most fully between themselves and cover as many bases as possible. This very simple amendment will build on the work of the Joint Committee and ensure that the principles of the Bill are delivered most effectively. It is about resourcing the agencies and about how they can best work together. It asks for authorisation for that consultation to happen so that we can pursue those two objectives. I beg to move.
My Lords, I am a signatory to this amendment and am very happy to speak briefly in support of it this evening. I spoke on this issue at Second Reading and in Committee and I moved a separate amendment on the issue of the proceeds of crime. That was based on an amendment that I moved in your Lordships’ House nearly a decade ago and which was supported at that time by a retired Law Lord, Lord Wilberforce, who was a direct descendent, of course, of the great man who has featured so much in many of our debates. That amendment sought to provide a mechanism for the proceeds of crime committed by those who had abused workers, exploited people, put them into servitude or slavery—the very things that the Bill seeks to address—to be used to support and provide assistance for those who had been exploited and to support those organisations that are charged with the responsibility of apprehending those who are responsible for such crimes.
Crimes they are. I recalled in Committee that the Gangmasters Licensing Authority—which the noble Lord, Lord Whitty, who is in his seat this evening, did such distinguished work in helping to create—was established after the fatalities that occurred in Morecambe Bay when some 23 Chinese cockle pickers, men and women, died while they were being ruthlessly exploited by gangmasters. I made the point that this problem has not gone away. As recently as 2011, an almost identical incident occurred not very far away from Morecambe Bay, in the Ribble valley estuary. I quoted a local fisherman, Harold Benson, who said that what had happened at Morecambe Bay had been wholly avoidable, but it was likely to be repeated at places such as the Ribble valley and Morecambe Bay because of the failure to apprehend those who were responsible and because of the failure to provide adequate safety equipment and to provide support and assistance to those who were being exploited in these unacceptable ways.
As a result of raising these issues I was pleased to be able to attend a meeting with the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Bates, who has been so helpful on this and so many other issues during the passage of the Bill. I reiterate what I said on Report on Monday, that he and the noble Baroness, Lady Garden of Frognal, have been quite exemplary in the way they have treated all of us who have participated in these proceedings. This is a marvellous piece of legislation and one that I am sure is going to do great good in the future. Although we may disagree on some details here and there, the general thrust of the legislation is to be commended and we must look for other ways to improve it here and there. That is what this amendment does.
The right reverend Prelate has told us that if this is passed, or if the principle is accepted, the Secretary of State will then consult on ways to strengthen and improve the resources of enforcement agencies such as the Gangmasters Licensing Authority. Why do we need to do that? Well, I made the point at earlier stages that until recently only about 37 people were employed by that authority and that resources had been cut between 2011 and 2014. I would be grateful if the noble Lord would share with us some of the detail that he provided during the briefing sessions that we had with him and his officials as to how many people are now employed by that authority and how many convictions they have been able to bring about.
The amendment says that the consultation should,
“end no later than 1 January 2016”.
I think that that is a reasonable passage of time. It goes on in proposed new subsection (3) to say:
“The Secretary of State may by order amend section 3 of the Gangmasters (Licensing) Act 2004 to include other areas of work where the Secretary of State believes abuse and exploitation of workers or modern slavery or trafficking may be taking place”.
This is reasonable; it does not ask for immediate action to be taken, but it asks the Secretary of State and the department to take a more detailed look at some of the issues that have been raised. I look forward to hearing the response that the noble Lord gives in due course.
My Lords, I, too, rise to support Amendment 92 in the name of the right reverend Prelate the Bishop of Derby, to which I have added my name. This amendment is about prevention and about stopping unscrupulous employers from exploiting workers for personal gain and increasing profits. Without compliance mechanisms and a licensing regime in place, there are no checks on the activities of the corrupt to protect the vulnerable. The Gangmasters Licensing Authority and the Employment Agency Standards Inspectorate are that check. They give protection, prevent abuse from happening, and work hard to ensure compliance with employment rights. They want to do more and they know that they could do more—we know that they could do more—but they need reform and increased support.
As the organisation, Focus On Labour Exploitation, has pointed out to noble Lords in its recent letter, the GLA is the UK’s only proactive labour inspectorate working to prevent and identify incidences of trafficking for labour exploitation. Therefore, the GLA has a major role to play in tackling slavery and forced labour, and it should be a part of this Bill. That is a point well made, not just today by the right reverend Prelate the Bishop of Derby and the noble Lord, Lord Alton, but made in the past by many other noble Lords. It is a point reiterated by the Government, as set out by the Minister in his letter on 18 February, where he recognised the essential role in fighting modern-day slavery that the GLA plays, and could play in future—words that I hope he will reiterate in his reply today.
Like many other noble Lords, I welcome the Government’s commitment to hold a public consultation on the role of the GLA as soon as possible in the next Parliament. So given that there is an emerging consensus around the need to consult on the GLA to review its remit and functions, and an acknowledgement that the GLA would need more resource to cope with an expanded remit, Amendment 92 should be completely acceptable to the Government, as it is ensuring exactly that—that labour inspection and enforcement authorities have sufficient resources and remit to prevent trafficking and slavery in the UK.
Amendment 92 confirms the commitment to consult and seeks to use the proceeds of crime to provide the extra funds that the GLA and EAS need. It also moves the Government’s pledge of a consultation in the next Parliament from “as soon as possible” to a definite date by the end of 1 January 2016, and it enables any recommendations from the consultation to be put in place quickly and easily. It therefore gives this House an increased level of confidence and clarity. I therefore hope that the Government will take the opportunity provided by this amendment, for this important enabling power to give the House the assurances that it needs.
My Lords, I take this opportunity to add my thanks to my noble friend the Minister for the spirit of openness and compromise with which he has engaged with this Bill, not least on this issue regarding the future role of the Gangmasters Licensing Authority. The announcement in annexe 2 in my noble friend’s letter this week—that the Government intend to hold a public consultation on the role of the GLA—is particularly welcome and in some ways diminishes the need for many of the elements contained in this Amendment 92.
I think that we are all in agreement in this House that the GLA has and will continue to play an extremely important role in combating exploitation, but there are very powerful arguments that its remit should be widened to include the construction, hospitality, cleaning and care sectors, where migrant workers are particularly vulnerable to exploitation, modern slavery or human trafficking. There has, however, been understandable concern expressed about placing additional demands and burdens on the GLA, given its finite resources. Can the Minister confirm that the provision of resources will form part of the consultation process on the GLA that he has announced?
Although I support much of the sentiment behind Amendment 92, I note that my noble friend the Minister sets out in annexe 2 that he does not believe that an enabling power is the best way to proceed, and that indeed primary legislation would still be required to extend the remit of the GLA. Perhaps he can expand a little on this point during his response to the amendment.
Finally, I press my noble friend a little more on the timetabling of this public consultation on the GLA. He states in annexe 2 that the,
“work will start immediately and it will be published early in the next Parliament”.
Given the cross-party support for this Bill, as so many other noble Lords have just said, will my noble friend indicate whether he would consider setting down a more precise timetable for the consultation on the face of the Bill?
I congratulate the right reverend Prelate on having introduced the amendment so well, in his characteristic way. Several points occurred to me as particularly important. First, in effect, whatever the intention, to introduce legislation in sensitive and important areas like this and not to properly resource it can be perceived as cynical. It can be seen as a greater desire among legislators to polish their consciences in public without really facing up to what needs to be done. Facing the issue of properly resourcing enlightened legislation is crucial. Far too often, this has not happened.
The second point, which is very important, is education, which the right reverend Prelate picked up and linked rather well into his proposal. I am not a lawyer but, in my perception, law works best when it is in the context of public understanding about why it is necessary—not theoretically but practically available—for those whom it is intended to protect. Facing up to that issue in the amendment is also vital. I hope that the Minister, who has been a model across the House of how a Minister can handle a Bill of this kind, will listen to the arguments and find some way in which to meet them.
I shall say a few words in support of the amendment that the right reverend Prelate has moved, as I think that he made a reference to the Joint Committee on the draft Bill. Of course, it said in its report that the:
“Gangmasters Licensing Authority (GLA) has been much praised as an internationally-respected model of good practice. The weight of evidence we received suggested that expanding the GLA’s powers and industrial remit would yield positive results”.
Those views reflect a widely held view: that the authority is an example of an effective body that UK industry helped to establish to manage and mitigate risks of slavery in the food and agriculture sector. What has been pointed out about the amendment is that it has the provision for consultation but also, within it, the power given to the Secretary of State—if the Secretary of State wants to use it; it is “may” not “must”—to amend by order the Act to sectors outside its current limited remit where evidence demonstrates that,
“abuse and exploitation of workers or modern slavery or trafficking may be taking place”.
The amendment does not require the Secretary of State to do that; it gives them the power to do it if they come to the conclusion that it is necessary and desirable to do so.
The consultation goes a bit wider than was mentioned in the Joint Committee report, but it too recommended that the Government should conduct a review of the GLA including its powers, its industrial remit and its funding models and levels, and suggested that that review should be completed before the Bill received Royal Assent. Unfortunately, that has not taken place. No doubt that is one reason why the right reverend Prelate included that in his amendment, although he has rightly widened it beyond the GLA.
I hope that the Minister will be able to give a sympathetic and helpful response to the amendment, which, I repeat, does not compel the Secretary of State to extend the remit of the Gangmasters Licensing Authority, but gives a Secretary of State the power to do so if he or she comes to the conclusion that that is desirable and appropriate.
My Lords, I am grateful to the right reverend Prelate the Bishop of Derby for having moved the amendment. He has been an integral part of the cross-party team that has been working so constructively on the Bill and taken us to where we are now. I particularly note, and offer my respect for, the work that he has done in the diocese of Derby in tackling the issues of modern-day slavery. It is an example of what could be done elsewhere as well.
Let me put on record the two difficulties that we have with the amendment. I do not think that, on the general principle, we are a million miles apart. What we had was a Gangmasters Licensing Authority, after the noble Lord, Lord Whitty, introduced legislation in this House in the wake of the awful tragedy that we saw—and it was working rather well. It was targeted at a particular group, where there was a real problem in the food processing industries and that sector of agriculture and fisheries. About 1,200 businesses a year are regulated, and there is a cost to that. They have to get their licence and pay between £1,000 and £2,000 a year, and when they are regularly inspected they also have to pay a fee for the inspection.
There is a discussion about this. I am sure that when the noble Lord, Lord Whitty, was introducing the Gangmasters Licensing Authority legislation, he was thinking that we did not want to impose this on everyone unless it were strongly proven that it was absolutely necessary to cover everyone, because there are some serious burdens placed on small and micro-businesses. I take the point that the noble Lord, Lord Judd, made about resources. Resources are scarce at present: there is a big debate, which I am sure my predecessors had when they were trying to secure the necessary resources for the changes being made in the national referral mechanism. That would account for a significant amount, and resources also have to follow the child trafficking advocates, the extension of legal aid and the office of the Independent Anti-slavery Commissioner-designate. I accept that.
Let me explain the difficulties to the right reverend Prelate. There are two difficulties with an enabling power on the GLA remit. First, such a power assumes that the main issue is with the GLA’s remit, and may not consider the broader landscape in terms of how we tackle abuse of workers. Secondly, even if we concluded that the answer to the problem was an extension of the remit, the enabling power would almost certainly not achieve its aim of avoiding the need for further primary legislation.
As has been mentioned, it has also been enormously helpful that we have been able to have discussions outside the Chamber, and build our mutual understanding of these issues. It is important that we look at the GLA’s role in the context of our overall approach to tackling abuse in the labour market.
The House will note that sectors not covered by the GLA are already regulated. Last year more than 53,000 callers were helped by the pay and work rights helpline, and more than 23,000 workers were helped to recover wage arrears by the national minimum wage enforcement team. In addition, employment agencies not covered by the GLA are regulated by the Employment Agency Standards Inspectorate, which between 31 March and 1 April 2014 brought seven prosecutions in the magistrates’ courts and in five cases secured convictions. The Employment Agency Standards Inspectorate also has a unique power to apply to ban those who have shown themselves to be unfit to run any employment agency, and there are currently 16 people on the list of people banned from running an employment agency. We need to make sure, through consultation, that we come to a coherent position and that these bodies work in a co-ordinated way to prevent and stop abuse.
I understand why an enabling power might appear attractive as a way of potentially avoiding the need for future primary legislation after a consultation, but such a power simply would not achieve the objective of avoiding the need for primary legislation. Any significant change to the GLA would be likely to require both reform of the Gangmasters (Licensing) Act 2004 and substantive changes to wider primary legislation related to how the labour market is regulated, such as the Employment Agencies Act 1973.
The enabling power would be limited to changes in the remit. I accept that it would be hard to justify a delegated power wide enough to allow for the types of enforcement powers the GLA might need in future. But a truly open and evidence-based consultation might well highlight the need for changes in the powers of the GLA that do not relate to the remit.
The amendment also focuses on the use by the GLA and others of the Proceeds of Crime Act. I should point out that the GLA already uses that legislation to identify proceeds of crime—a subject raised by the noble Lord, Lord Alton. Indeed, since 2010 the GLA has identified over £1.5 million in criminal assets through that route. I am sure that, like me, noble Lords will all applaud the GLA for its achievements in this regard. The GLA already receives a share of the assets recovered under the asset recovery incentivisation scheme: it has received £118,000 since 2010.
I acknowledge the points that have been made. When we prepare the consultation document we will reflect on today’s debate and see whether there are ways in which we can make greater use of the Proceeds of Crime Act, alongside increasing and making better use of our existing resources devoted to worker protection.
I shall now deal with one or two of the points raised in the debate. I have highlighted the problems we have with the amendment, which are technical rather than substantive in terms of the issue that the right reverend Prelate has raised. If he felt able to withdraw his amendment now, I would certainly give an undertaking to reflect further on it and consider whether we should look at this subject again before Third Reading. There are some drafting issues. What the amendment proposes is a review of one area under one Act, whereas we would like to see a wider consultation covering many areas and many Acts. To do that we need an approach different from that taken in the amendment. If the right reverend Prelate will take that into account, we shall be happy to come back to the subject.
I thank the Minister for what I take to be an encouraging response. I do not know a lot of the details about delegated powers and primary legislation, and, as he said, there are possible technical issues with our proposals. However, I take heart from the fact that we are in the same direction of travel. We want to increase the resource potential for this work and to look carefully at how agencies such as the Gangmasters Licensing Authority can best perform. On that basis, and in the hope of further thought being given to this matter before the next stage, I beg leave to withdraw the amendment.
Amendment 92 withdrawn.
Consideration on Report adjourned until not before 8.40 pm.