Motion to Approve
My Lords, on 4 July the other place voted to affirm these regulations, which support the implementation of Part 5 of the Nationality and Borders Act 2022 which, as noble Lords will recall, received Royal Assent at the end of April. Section 69 of that Act gives the Secretary of State the power to define the terms “victim of human trafficking” and “victim of modern slavery” for the purposes of Part 5 of the Act.
The definitions of these terms are therefore relevant to the provisions in Part 5 relating to the circumstances in which the Secretary of State must provide assistance and support to identified potential victims under Section 64 and the circumstances in which an identified potential victim may be disqualified from protection if, for example, they are a threat to public order, as set out in Section 63. When these sections use the term “victim”, that refers to the definitions contained in these regulations. As such, the regulations simply ensure that such provisions in Part 5 of the Act can work in practice.
As noble Lords familiar with this area will know, there are already definitions of slavery and trafficking in primary legislation under Section 56 of the Modern Slavery Act 2015. However, these definitions relate to the criminal offences in Sections 1 and 2 of that Act, which deal with slavery and human trafficking respectively. What this means in practice is that the 2015 Act definitions require evidence of conduct amounting to a criminal offence, which is not a requirement for the purposes of victim identification, nor a prerequisite to provide support.
While these definitions in the 2015 Act therefore remain appropriate in the context of the criminal law, I hope noble Lords will agree that, for the purposes of identification and support, we should have definitions that enable victims to be identified whether or not a criminal threshold has been met for the purposes of a prosecution. The regulations being considered today therefore provide statutory definitions that are better suited to defining a victim for the purpose of identification and support, and distinct from the criminal justice-related definitions under Section 56 of the 2015 Act, which will remain untouched.
Following the remarks of the former Minister for Safeguarding during the passage of these regulations through the other place, I take this opportunity to thank the Secondary Legislation Scrutiny Committee for the interest it has shown in the regulations. I will now provide some reassurance following the concerns raised by the noble Lord, Lord Coaker, in his amendment, and clarification on the points the committee raised in its recently published report.
As set out during the progress through this House of the Nationality and Borders Bill, now an Act, when drafting the proposed definitions we have sought to define the terms in alignment with the definitions of a victim contained in the Council of Europe Convention on Action against Trafficking in Human Beings, otherwise known as ECAT, and the United Nations Palermo Protocol. It is intended that signatory states interpret and apply ECAT’s rights and obligations. I can be clear that our definitions are compliant with ECAT’s definitions of slavery and human trafficking. We have not mirrored the convention word for word, given that it is drafted in such a way that requires signatory states to provide further detail and, in this instance, clarity where there is potential for ambiguity. To mirror the language word for word would result in gaps and a lack of detail that would be unhelpful for victims and practitioners. Instead, we have remained compliant with ECAT while aligning with current operational guidance.
At this stage I emphasise that the activities and forms of exploitation mentioned in ECAT are covered by the draft regulations. As in the drafting of ECAT, we have intentionally avoided including reference to specific forms of exploitation in recognition of the evolving nature of trafficking and modern slavery, and so as not to exclude victims of what might currently be unknown forms of exploitation. This is consistent with current statutory guidance and operational practices. I can therefore reassure noble Lords that the regulations do not, as the amendment suggests, narrow the ability of victims to be identified.
In fact, the proposed definitions in totality are familiar to practitioners, since they reflect those contained in existing statutory guidance issued under Section 49 of the 2015 Act, which applies in England and Wales, and the non-statutory guidance available in Scotland and Northern Ireland. For instance, the term “criminal exploitation” is not mentioned in the regulations or in ECAT, but is clearly covered by the definitions of either human trafficking or slavery, depending on the precise nature of the exploitation, and will remain as currently defined in the statutory guidance. We think the approach is the logical one to take in seeking to balance the need to identify victims of existing forms of exploitation and victims of new forms of exploitation as they emerge.
On concerns regarding the engagement process in relation to these regulations, it is fair to say that key stakeholders and the public more broadly have had suitable opportunities to comment on this policy. During the formal public consultation on the New Plan for Immigration, which ran from 24 March to 6 May last year, most stakeholder and public respondents said they thought the modern slavery proposals would be effective in building a resilient system that identifies victims of modern slavery as quickly as possible. These regulations support that objective. The public consultation also provided an opportunity for modern slavery stake- holders to comment on the modern slavery policies that, fundamentally, these regulations underpin.
More recently, the Government have worked closely with victim support charities, NGOs and support providers, including members of the victim support modern slavery strategy implementation group. We therefore consider that it was unnecessary to undertake a formal public consultation, given the opportunities to comment on the modern slavery policies to which these definitions relate and the opportunity given to key modern slavery stakeholders to comment directly on the drafting of the definition.
I look forward to the contribution of the noble Lord, Lord Coaker, and to giving any further clarification, if that is needed. For now, I beg to move.
Amendment to the Motion
My Lords, this amendment stems from the regulations needed following the passage of Section 69 of the Nationality and Borders Act. Given the controversy around that Act, and the general criticism of the inclusion of Part 5, which dealt with modern slavery in an immigration Bill, you would have thought the Government would have been especially careful around the definitions to be left to secondary legislation—but indeed not.
The Delegated Powers and Regulatory Reform Committee warned the Government:
“One thing which is noticeable about the power conferred by clause 68(1)—
now Section 69(1)—
“is the absence of any express link to Article 4 of ECAT or Article 4 of the ECHR. The power is simply a power to define the terms in regulations without limiting in any way the provision which may be contained in the regulations. We consider this to be inappropriate. The policy is for the definitions of the terms ‘victim of human trafficking’ and ‘victim of slavery’ to reflect the provisions of Article 4 of ECAT and Article 4 of the ECHR.”
The committee was saying to the Government that they needed to be extremely careful, given the powers being given to Ministers through secondary legislation, rather than in the Bill, to ensure that the definitions were extremely well thought through and had the support of those who worked with them.
The Government say that there is broad agreement. I thank the Minister for her introduction, but perhaps she can explain why, if there is broad agreement, on 15 June in a letter to Dame Diana Johnson MP, who is chair of the Home Affairs Select Committee, 39 separate organisations wrote saying: “There has been no formal consultation about these regulations, despite the existence of established stakeholder groups, and we are concerned that the definitions are incompatible with international law and that they narrow the definitions and therefore scope for identification of victims”. That does not sound to me like broad agreement. Those organisations include ECPAT, the Anti Trafficking and Labour Exploitation Unit, Hope for Justice, Slave-Free Alliance, Focus on Labour Exploitation, the Helen Bamber Foundation, Unseen, the Refugee Council and the Scottish Refugee Council, and the Children’s Rights Alliance for England. The list goes on; 39 separate organisations wrote saying that they were unhappy with the consultation and what was going on. Why are they all wrong and the Government right? Given the sensitivity we had during the passage of the Nationality and Borders Bill, surely the Government should have gone out of their way to make sure that the sector was happy with what was going on. We would not then have the situation where I felt it necessary to bring this amendment before your Lordships.
It is not just these 39 organisations; in contrast to what the Minister said, the Secondary Legislation Scrutiny Committee tells us that
“The Home Office confirmed that, while they did hold a number of talks”—
the Minister outlined these for us—
“with stakeholders including the Victim Support Modern Slavery Strategy Implementation Group and various police, immigration and enforcement authorities, it was about the principles and objectives of these definitions”.
In bold, the report goes on to say:
“the specific wording proposed was not available to them. Neither was any material with the proposed definition available to people outside that stakeholder group.”
So, if the Home Office—the noble Baroness and her colleagues—is concerned to ensure that the sector agrees with the definitions that the Government are bringing forward, given the controversy around the Act, why was no wording shared?
There is a world of difference between a consultation that brings a few people together to have a discussion about what may not happen and laying before a group of people the proposed wording that you will use in the definitions, and then saying, “Does this meet the thresholds that you think are important?” That clearly did not happen, which is why I am bringing this amendment: it is partly about the lack of consultation. No wonder there is debate about the wording—they were not consulted about it. Could the Minister say exactly why?
With respect to Article 4 of ECAT, further criticisms are that, as the Secondary Legislation Scrutiny Committee says, the debate is not helped by supporting documentation from the Home Office describing the regulations as being “compatible with”, “aligning with”, “reflecting” and so on. As I say, no wonder there is concern.
The Home Office’s inability to properly consult and create that broad consensus looks an ever more serious error, particularly when it is confirmed, as I say, by the noble Baroness and Rachel Maclean, the Minister in the other place, that
“We have not mirrored the convention word for word”.—[Official Report, Commons, Sixth Delegated Legislation Committee, 29/6/22; col. 4.]
That is the very point that petitions from front-line professionals have raised: this is a cause for concern and will lead to confusion and uncertainty. If you are not going to mirror a convention absolutely word for word, it becomes even more vital that you consult on the actual words that the Government propose to use.
As we know, the national referral mechanism is crucial. When considering whether someone is a victim of modern slavery, the process needs to open up access to support and services for those who are confirmed to be so. The consequences of incorrect processes are immense—they frighten people away from engaging in the formal state system, which is already happening with the huge rise in the figures for the duty to notify through the national referral mechanism. People are too scared to be formally referred, so the first responder has to send a duty to notify—why has this happened?
But these regulations, albeit perhaps unintentionally, narrow the definition of a victim, depart from international standards and provide insufficient distinction between adults and children. I will give a couple of specific, practical and concrete examples of how the regulations have narrowed the definition—I will take some time on this because it is really important. As I say, Regulation 2(2)(a), which deals with the identification of a victim of slavery, raises the threshold for this: the language has been increasingly strengthened from Section 1 of the Modern Slavery Act, which talks about identification. I say again that I am not a lawyer but someone who uses simple language. Section 1 says:
“In determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances … For example, regard may be had … to any of the person’s personal circumstances (such as the person being a child, the person’s family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons”.
This is from 2015—it says, “may make”.
What has become of “may make” in the regulations? I am not a lawyer—there are many lawyers in this House, and they will tell me if I am wrong—but I ask which has tougher language: “may make” or
“any of the person’s personal circumstances (such as the person’s age, the person’s family relationships, and any physical or mental disability or illness) that significantly impair”
them. According to the Government, there is no difference. However, I would say that “may make” and “significantly impair” could make a difference when judging whether a circumstance will
“significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced … labour”.
There is a significant change in language.
The setting of the definition is too narrow: leaving out terms that are used in ECAT or the Palermo Protocol from these regulations is a real problem. Why is the definition of exploitation not made clear as it is in ECAT, where the definitions are a “minimum”, thereby leaving room to adapt? Why has the word “minimum” been changed? Why is the term “practices similar to slavery”, as detailed in ECAT, not used? When distinguishing between adults and children in the draft Regulation 2(2)(a), why is only “age” set as a circumstance to have to regard to, rather than accepting that there should be a different framework between adults and children? Can the Minister confirm that in the regulations it is absolutely the case that a child can never consent to their own exploitation, as required by international law? Can the Minister again explain to us—I tried to understand what she said—why the term criminal exploitation is not referenced in the regulations, given that this was the prime reason children were referred to the NRM in 2021?
Can the Minister explain why Regulation 3(3) refers to “consent” to travel, while ECAT uses “consent” to exploitation? Why has there been this change, which again appears to narrow the definition? Only yesterday, the US State Department published its 2022 report in which it makes this recommendation to the UK:
“Ensure the statutory definition of trafficking … does not require movement of the victim as an element of the crime”,
which is something that the regulations do.
Finally, on travel, it is not clear from the regulations if travel includes movement, such as from one room to another or within a property. These regulations are of huge importance to victims and to our country. However, this is not the case, according to the Government, as outlined in the last point of the Explanatory Notes:
“A full impact assessment has not been produced for this instrument as no, or no significant, impact on the private, voluntary or public sector is foreseen.”
Changing the regulations by which you identify a victim, or a potential victim, of human trafficking has a massive potential impact on voluntary, private and public sector bodies. Yet the Government’s own Explanatory Note says that none is “foreseen”. Not only should an impact assessment have been done, but I think everyone would have expected one to have been done.
To conclude, such definitions are crucial, consultation is vital and consensus is essential. This amendment believes that the Government have failed to deliver on the undertakings given in the passing of the Nationality and Borders Act, during which concern after concern was raised about the huge power given to Ministers to make far-reaching decisions by secondary legislation. Given this, the responsibility on the Government was to ensure that due process was done and seen to be done. But it was not, and the consequences could be felt by those who need our support: the victims and potential victims of human trafficking. They will fall between the policy and legislative gaps left by these regulations. As such, I move this amendment because the Government need to think again and build that consensus that is so badly needed in this area.
My Lords, I rise to support the regret amendment that the noble Lord, Lord Coaker, has tabled. He has powerfully laid out the arguments why the amendment is needed, for reasons of substance but also of procedure. I raise my concerns that the draft regulations narrow the definition of a victim; depart from international standards; provide insufficient distinction between adults and children; and could lead to many victims being excluded from identification and, therefore, from support and assistance. I join the noble Lord in urging the Minister to redraft the regulations and properly consult the anti-trafficking sector to ensure that redrafted definitions of “victim” are workable and consistent, in line with international law and informed by the lived experience of survivors and those who assist them.
I declare my non-financial interest as a trustee of the Arise Foundation, a charity that works with people who are victims of human trafficking or modern-day slavery. As the Minister knows, it is a matter that is particularly close to my heart. I am therefore saddened not to be able to support the draft regulations as written, and saddened that we have to have a regret amendment at all. Of course, it is of the utmost importance that victims of modern slavery are properly identified and supported, so in one respect I can warmly welcome the intent outlined by the Minister that lies behind these regulations, in so far as they determine who will be considered a victim of modern slavery for the purposes of the Nationality and Borders Act 2022 and Sections 48 to 53 of the Modern Slavery Act 2015, which I and many Members of your Lordships’ House who are present this evening, not least my noble and learned friend Lady Butler-Sloss, the noble Lord, Lord Paddick, and others who participated in those proceedings, will recall.
I shall identify reservations that I hope the Minister will listen to carefully and address when she comes to reply at the conclusion of today’s debate. I start by underlining the way in which the procedure has been used to bring these regulations forward. I do not think that the Minister can have seen the joint briefing by the Anti Trafficking and Labour Exploitation Unit, ECPAT UK, Focus on Labour Exploitation, the Helen Bamber Foundation, Hope for Justice, to which the noble Lord referred, and others, which has been circulated to Members of your Lordships’ House—otherwise she would not have said to us that there had been an adequate consultation process. They have also written to the Home Affairs Select Committee of another place to express their concerns, along with more than 30 other organisations and experts—so, clearly, there is dissatisfaction right across the sector.
How can there have been a proper consultation, and how is it possible to say to your Lordships that there was one? Anti-trafficking organisations tell me that they did not see, and did not have the opportunity to give feedback on, the definition and wording before they were published. Can we be told why not? Under the old courtesies that used to be followed that, before legislation or orders were brought before Parliament, the leading organisations in the field would be invited in to meet Ministers and civil servants to discuss these things. It is not good enough simply to say that there was a broad consultation about modern-day slavery and that people could have replied. Those definitions should have been before them, and they should have been invited in specifically.
As those organisations and I argue, it is deeply disappointing and troubling that the regulations as drafted seem to curtail the capacity for victims to be identified, and ultimately to get access to support. That is because the regulations narrow the definition of “victim” and therefore reduce the scope for victims to be identified. It is the view of the anti-slavery organisations, in contrast with the Minister, that the definitions are not, as she told your Lordships’ House, in alignment with international law—such as ECAT, the European convention against trafficking, and the Palermo protocol. In this context, I put it to the Minister, as I and other noble Lords, including her noble friend Lord Horam, did during discussions on what became the Nationality and Borders Act, that matters such as these require broad and considered consultation. Legal definition of a victim is clearly a matter of huge importance, and it is surprising at the very least that formal consultation has not taken place, particularly within the anti-trafficking sector and other relevant stakeholders with first-hand experience of supporting victims of human trafficking or modern slavery. Surely, it would not have been too onerous, and nor would it have precipitated a lengthy delay, to do so.
The noble Lord, Lord Coaker, also referred to our Secondary Legislation Scrutiny Committee, which has reviewed these regulations and has highlighted the potential for them not to achieve their objectives. That surely will be of concern to the noble Baroness, I would hope, and to her officials. This and the uncertainty as to whether the definitions of the draft regulations in fact meet the UK’s international obligations under Article 4 of ECAT, which I have referred to, are serious matters, and I hope that the Minister can shed light on both these points in her response to the debate.
To summarise, I strongly urge the Minister to listen carefully and to reflect on the concerns raised by the noble Lord, Lord Coaker, today and consider withdrawing this version of the regulations. We all want to see victims properly identified and subsequently supported and given the tools necessary to stand the best chance of recovery. These regulations do not do that. They raise the threshold for identification, they set a definition of exploitation that is too narrow, they are not in alignment with international law, they do not distinguish between adult and child victims, they do not include criminal exploitation, they do not feature practices similar to slavery, they overemphasise arranging or facilitating travel and they are completely defective on the means of eliminating trafficking. I hope the noble Baroness will think again.
My Lords, I support the regret amendment and I wish we could use something stronger. It has been a long slog since December 2019 with all the legislation that has come through and this little painful reminder of the Nationality and Borders Bill is part of the problem that we have had to face. A lot of this legislation is cruel and uses new definitions for things that we thought were settled some time ago.
These regulations seem to be deliberately drafted to disregard the international norms around slavery and trafficking; they create special UK definitions that limit government assistance to a narrow category of survivors. Regulation 2(2)(a) has already been mentioned. It specifies that when determining whether somebody has been enslaved you have to consider
“any of the person’s personal circumstances … that significantly impair the person’s ability”.
This is victim blaming, pure and simple. The Government are proposing that normal people who can “protect themselves” from being subjected to slavery are unlikely to be genuine victims of enslavement. I do not understand why any Government would do this to people who have been trafficked.
In my view, the Government do not want to help enslaved people; they simply want to label these people as illegal immigrants or economic migrants and deport them as fast as possible. It is a cruel piece of legislation, giving effect to a cruel policy.
The lack of consultation is quite appalling and I echo all the requests for the Minister to explain that. If there had been consultation, I think this would be a very different set of regulations. I think the problem here is that the Government do not actually intend to support all victims of slavery and human trafficking and I think that diminishes us as a nation.
I am very grateful and it was only because I had a bad fall last week and went for an MRI scan. I took the first taxi back to be here.
What saddens me is that this Government are enormously to be praised for the Modern Slavery Act. It was the work really of the then Prime Minister Theresa May and we should be grateful to her that we have led the way across the world. That makes these regulations very sad.
I went with Romanian police and the Metropolitan Police down the Edgware Road, where a Romanian Roma gang was exploiting 20 or 30 Romanian women, who were begging. It was a fantastic coup by the Metropolitan Police and eight men went to prison, I am glad to say. That was modern slavery, but it is not included here. Begging, debt bondage and benefit fraud—and some others, but particularly those three—are contained as part of modern slavery. This case some years ago was a very typical example of serious modern slavery, but it would not be within these regulations, as far as I can see.
I strongly agree with what the noble Lord, Lord Coaker, said about the phraseology of “significant”. The word “significant” was not in the Act that this Government passed; it was a general approach. In my view, speaking as a former lawyer, this really reduces the impact. It says that some people who may not have been significantly impaired but have in fact been slaves would not come within this definition. I suspect that other lawyers present would share my view. I certainly would argue that—and I think with success—in any court.
It makes what has happened here a sad reflection on the way in which, for some reason, the Home Office wants to diminish the impact of the Modern Slavery Act. I find it astonishing that it should want to do so. I strongly support what other noble Lords have said, and I too ask the Minister to look at this regulation again, withdraw it, and bring it back when she has looked at what the 30 or so, very sensible, anti-modern slavery organisations are saying about it.
My Lords, I thank the Minister for explaining these regulations. It is probably totally out of order but, if I may, can I commend her for demonstrating selfless integrity by her intervention at the weekend?
I am very grateful to the noble Lord, Lord Coaker, for tabling this regret amendment, which we support. We agree with him, the House of Lords Secondary Legislation Scrutiny Committee and organisations such as CARE—Christian Action, Research and Education—that there should have been formal consultation before the Government came up with the definitions of victim of modern slavery and victim of human trafficking. Without consultation with the anti-trafficking sector, any definition used to determine whether someone is a victim of modern slavery is likely to wrongly exclude victims from the support and protections to which they are entitled.
It was clear from the debates that we had in this House that the whole impetus of the Nationality and Borders Act was to reduce abuse of the national referral mechanism, and it is likely that these definitions are consistent with the Government’s approach in that Act. In fact, when we debated the legislation, my assessment was that all the provisions of Part 5 were about making it more difficult to be recognised as a victim of modern slavery and tightening the restrictions on the support available. In particular, as the noble and learned Baroness has just said, the change to
“significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced or compulsory labour”,
compared with the language in the Modern Slavery Act, which states
“which may make the person more vulnerable”,
appears to be a significant restricting of the definition.
I pay tribute to the honourable Jess Phillips MP for her passionate and detailed critique of these regulations when this draft statutory instrument was considered in Committee in the other place, based on her own experience as a first responder in the NRM process and her subsequent casework as an MP. Many other organisations agree with her that the definitions raise the threshold for identification; set a definition of exploitation that is far too narrow; are not in alignment with international law; do not distinguish between adult and child victims; do not explicitly include criminal exploitation; do not feature “practices similar to slavery”, as detailed within ECAT; and overemphasise arranging or facilitating travel.
Yet again, the Government have taken the cavalier approach of saying they can interpret something—in this case, the European convention against trafficking, ECAT—in whatever way they think fit, when even the Secondary Legislation Scrutiny Committee concludes that the definitions in the SI make the situation even more unclear, the exact opposite of what the Government claim to be doing. I agree with the noble and learned Baroness, Lady Butler-Sloss, about the enormous progress made by the Modern Slavery Act, significantly improved by this House, but these regulations and the Nationality and Borders Act row back from that progress.
In conclusion, this statutory instrument appears to narrow the definition of who can be recognised as a victim of modern slavery or trafficking and to create confusion rather than clarity, both of which could have been remedied through a formal consultation process, which was not undertaken. We support this regret amendment.
My Lords, I thank all noble Lords who have spoken in this debate, both for their contributions and for their continued engagement on what is clearly a very important topic for us all. I join the noble and learned Baroness, Lady Butler-Sloss, in paying tribute to the right honourable Theresa May for all that she did on modern slavery. I think that, ultimately, we all have the same goal: to ensure that victims of modern slavery are identified and supported.
Before I turn to some specific points raised, I highlight again that in drafting these regulations, our focus has been on achieving alignment with the definitions currently used operationally and set out in the existing statutory guidance for England and Wales and the equivalent non-statutory guidance for Scotland and Northern Ireland. I was most grateful to be able to speak to the noble Lord, Lord Coaker, earlier. One thing that noble Lords quite often do, particularly during the passage of legislation, is request of me that they can see draft regulations before they are brought forward to the House. It is something that was not requested on this occasion, but I would say that, generally, where they are available, I am always happy to share them with noble Lords.
As for some of the other engagement processes that we have undertaken, during the engagement our approach to align the definition with ECAT and the Palermo Protocol was welcomed. We have ensured that this advice is reflected in the draft regulations, which align with ECAT and existing definitions set out in statutory guidance and allow for identification of victims of currently unknown forms of human trafficking or slavery. There has also been a thorough engagement process within the Home Office and with partners such as the police and other first responders, to which noble Lords referred, particularly the noble and learned Baroness, Lady Butler-Sloss, to thoroughly identify potential risks and ensure that no unintended consequences or impacts arise from the regulations. The cost and time considerations of running a full public consultation following the new plan for immigration consultation therefore outweighed the potential benefits, given the opportunities to engage on the issues relating to the regulations, but I think we can all agree that there is something to be learned from this process.
Noble Lords also mentioned the report of the Delegated Powers and Regulatory Reform Committee. The committee expressed one concern: that the powers conferred by what was then Clause 68(1) gave Ministers unlimited discretion to define the terms, rather than setting out in the Bill that they should reflect the provisions of Article 4 of ECAT and Article 4 of ECHR, as intended.
We have ensured that the definitions reflect those international provisions in their drafting, and the committee did not raise any other concerns that the regulations would not receive sufficient scrutiny. However, we recognise the evolving nature of these types of exploitation, and the Government can commit to keeping the terms of the regulations under review in the light of operational experience in the Home Office. The Nationality and Borders Act will also be subject to post-legislative scrutiny three to five years after Royal Assent. These regulations can be considered in that review.
The noble Lords, Lord Alton and Lord Paddick, talked about the definition of “exploitation” being too narrow and said that the drafting fails to consider the specific circumstances of child victims. It is very important that a range of factors are taken into account when considering whether an individual is a victim of slavery. It does not diminish the consideration of age at all. This way of drafting means that the list is inexhaustive and allows decision-makers to bring in various other conditions or factors relating to the individual’s circumstances, including of course their age. The regulations are compliant with ECAT and we make it clear that they allow for different types of exploitation which emerge over time.
The noble Lord, Lord Coaker, posited that the definitions are limited and do not include practices similar to trafficking, including debt bondage, forced marriage and certain forms of exploitation, including criminal exploitation. As I have said, the definitions as drafted in the regulations provide scope for various forms of human trafficking and slavery to be identified that are not explicitly defined. This is set out in statutory guidance. For example, criminal exploitation is covered by the definition of either human trafficking or slavery, depending on the precise nature of that exploitation, and will remain as currently defined in the statutory guidance. Regulation 3(6)(d), which includes force, threats or deception to induce the provision of services, would cover child soldiers, given the low threshold at which a child would be deemed to have been forced, threatened or deceived, and exploiting children for illicit activities. In the current statutory guidance, debt bondage is set out as a situational and environmental indicator of modern slavery and will remain as such.
Similarly, the current guidance on adoptions and forced marriage will remain the same. For forced marriage, for instance, this is set out in paragraph 2.65 of the statutory guidance. The Government’s position on illegal adoption is covered in the statutory guidance at paragraphs 2.61 to 2.64. While there are restrictions on arranging adoptions, as set out in Sections 92 and 93 of the Adoption and Children Act 2002, whether this will constitute forced or compulsory labour depends on circumstances. The position will remain the same. More broadly, slavery includes many of these practices. Debt bondage, which the noble and learned Baroness, Lady Butler-Sloss, referred to, and forced marriage mean exercising control over someone in a way that significantly restricts their liberty. The guide is Article 4 of the ECHR, in relation to which slavery is interpreted in the regulations by virtue of Regulation 1(3).
Noble Lords have also raised concerns about the compatibility between these regulations and ECAT. I stress that the definitions set out in the regulations are compliant, as I have just said, with our international obligations, including ECAT, and align with existing operational practices. They will ensure that potential victims are identified and that those involved in identifying victims have very clear parameters on which to rely. They are compliant because, put simply, the activities and forms of exploitation mentioned in ECAT are covered by the draft regulations. Following the approach of ECAT, we have intentionally avoided including reference to all specific forms in recognition, again, of the evolving nature of trafficking and slavery, and so as not to exclude victims of currently unknown forms of exploitation.
We are not changing the definition of “victim” for the purposes of identification and support; nor are we expanding or narrowing the scope of the existing definitions. Rather, we are putting the definition, which we currently take from our international obligations as reflected in modern slavery statutory guidance, into one arena; namely, secondary legislation, which provides clarity for both victims and our operational partners. This depends on the specific circumstances of the case as assessed by the relevant decision-maker, and it is highly likely that a person currently identified as a victim would be identified as a victim under the regulations.
The noble Lord, Lord Coaker, raised concerns regarding the recent report from the Secondary Legislation Scrutiny Committee—oh, I am sorry, I have just made those points. I have been writing my own notes and the Box has also been adding to them, so I might double up on what I am saying.
It is clear that there is no expectation or duty for an individual to protect oneself from their vulnerability. It is quite the opposite: being vulnerable means that your circumstances are such that you cannot protect yourself from predatory approaches, and this might be because the person’s age and understanding makes them acutely vulnerable. I hope we can all agree that this is a sensible position, and the statutory guidance will be unchanged on these widely established principles regarding vulnerability, so the position will remain the same.
Finally, if I could address the clarity on the term “travel”. It is the policy intention, and it is clear from the natural meaning of “travel”, that it includes any travel whether internationally or inside a country’s borders. Indeed, as Regulation 3(2) uses the terms,
“recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”,
this does not specify the scope of that travel and of course applies to travel that occurs within state borders, including county lines exploitation. Whether travel constitutes human trafficking depends on the circumstances of the travel and whether the other limbs of the exploitation are present.
I turn now to consent. Aligning with the existing position of the current statutory guidance for decision-makers, there are times that a person under the age of 18 can consent to providing a service and for that not to be exploitation. That is the logical position. It is already reflected in the statutory guidance under Section 49 of the Modern Slavery Act 2015, at paragraph 2.37, which states:
“In cases involving children, not all work done by a child should be considered as exploitation. Participation in work that does not affect the health and personal development of a child or interfere with their schooling, should generally be regarded as being something positive. This may include activities such as helping parents around the home, assisting in a family business or earning pocket money outside of school hours and during school holidays. Such activities can contribute to a child’s development and to the welfare of their family, and can provide the child with skills and experience that helps to prepare them for their adult life”.
Therefore it would be illogical to remove the requirement for force, deception or a threat to lead to the provision of a service for all individuals under the age of 18. Not only would it run contrary to the established position in statutory guidance, but it would have an adverse effect that is not intended by the Government in these regulations. Indeed, the unintended effect of doing so would be that innocuous activities, such as assisting in a family business or earning pocket money, may mistakenly come within the scope of human trafficking.
I turn finally to the impact assessments, and can clarify that a full equalities impact assessment was published on the Nationality and Borders Bill, now an Act. We have considered separately the equalities impact of these regulations, and, on the question of an economic impact assessment as referenced in the Explanatory Memorandum, a full economic impact assessment was not deemed necessary given that the only costs associated with this policy are expected to be familiarisation costs as the policy is simply an update to the definition already used in practice.
I hope I have not bored noble Lords too much to death, and that has been a full explanation of the position.
The noble Baroness certainly did not bore people. That was an interesting exposition of the Government’s position, which could lead us to a full debate, particularly around what “consent to exploitation” means for children.
I start by apologising to the House for not declaring at the beginning my interests as outlined in the register: my position as an honorary research fellow at the Rights Lab at the University of Nottingham and as a trustee of the Human Trafficking Foundation. I apologise for that; I forgot.
On the serious points we are raising, I was interested when the noble Baroness seemed to concede that there may be a problem with these regulations: she said, “Of course, we will keep things under review”. I know that Governments always say that they will keep things under review, but not normally while they are passing something—it is usually said soon after. It is important that the Government keep this under review, but that is not the point. The point is that we are passing defective regulations that do not meet certain criteria and do not clearly explain definitions that will have serious consequences for identifying potential and actual victims of human trafficking and modern slavery.
It is all very well to keep regulations under review—we welcome that—but these regulations are defective, and they are a significant change from what went before. Again, I use the example, as used by other noble Lords, of the inclusion of the words “significantly impair”. We have one of the most premier judges we have had in this country telling us that “significantly impair” will make a significant difference in the courts and in any process. I thank the noble and learned Baroness, Lady Butler-Sloss, for that, as I thank the noble Lords, Lord Alton and Lord Paddick, for their support and their remarks. All the Government can turn around and say to that is, “No, it doesn’t”. That is not an argument; that is not a clarification. That is blind refusal to address a very real problem being put to them by one of the most eminent legal minds we have had in this country in decades. The Government’s response is to say, “No, it isn’t”—what sort of response is that? That is ridiculous; it means that we are passing legislation that is defective, will not work and, as I say, is a significant difference from what went before. We welcome the review that the noble Baroness said the Government will carry out, but it is not good enough.
Going back to a point that was made before, the Government said that they adequately consulted. They said, “This happened, that happened and we spoke to people”. That is not the same as consultation. I say to your Lordships’ House that having a general chat with people is not the same as putting before them the actual regulations and the wording you intend to use for all of those trafficking organisations and bodies to look at the definition and say to the Government, “We think you’ve got that wrong; it will not deliver what you want”.
I know that the Government’s intention is to tackle modern slavery—no one is saying that they are not going to do it. However, what I am saying to the Government and what my regret amendment seeks to say to your Lordships’ House—and, I hope, gain its support—is that the regulations are defective and will not allow the Government to fulfil their own intent. Surely the sensible thing to do would be to review the regulations: to withdraw them and look at them again to address the very serious points made.
Thirty-nine bodies have told the Government that the regulations in their current form are far too narrow and therefore incompatible with international law. The Government’s response is to say, “You’re wrong”. That is not consultation or working with the sector to identify how you move forward to build a consensus. It is simply saying, “We know best and, frankly, we don’t really care what you say”. It has to stop. The Government should withdraw these regulations and I ask your Lordships to support my amendment. I wish to test the opinion of the House.