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Illegal Migration Bill

Volume 830: debated on Monday 12 June 2023

Committee (4th Day)

Relevant documents: 34th Report from the Delegated Powers Committee and 16th Report from the Constitution Committee

Clause 21: Provisions relating to removal and leave

Amendment 85

Moved by

85: Clause 21, page 25, line 32, leave out from “applies” to “subject” in line 39

Member's explanatory statement

This amendment is part of a package which seeks to probe how victims of modern slavery can enter the national referral mechanism and receive appropriate support.

My Lords, I declare my interest as a trustee of the Human Trafficking Foundation and the work that I do with the University of Nottingham’s Rights Lab, as declared in the register of interests. If it is okay with your Lordships, I will not repeat that declaration during this session.

We are starting with a debate on modern slavery, which of course is of real interest to us all. But first, can the Minister update us on the progress that he is making on the publication of an impact assessment? I said that I would ask him at each sitting, as I think that it is incumbent on him to tell us; he has said “in due course”, and we are wondering whether “in due course” has got any closer—or certainly whether it will be between Committee and Report. It is an issue of immense importance to this Committee. We saw yesterday, with the publication at speed of the JCHR report, what can be done if there is a will. Parts of the impact assessment will be available in the Home Office, because the Home Office will be basing the Bill on evidence and on various assumptions that it is making, and it should share those with the rest of us, for us to consider in our deliberations.

It is even more important that we understand what the Government seek to do since they are already abandoning what they put in their Bill last year. We said that it simply would not work, and the Government refused to accept the amendments that we tabled—but we see in a Written Ministerial Statement, sneaked out by the Government on Thursday evening, that they have now abandoned group 1 and group 2 refugee status in the Nationality and Borders Act. We are all pleased with that, but we told the Government that it would not work, would create a bureaucratic backlog and be unfair. The Government have found that out for themselves, and now they are telling everyone that the two groups are to be joined together. I hope that the Minister learns from that and understands that often, with the various amendments that we table, we disagree not only on the principles contained in the Bill but with the practicalities.

With those opening remarks, I shall speak to Amendment 85 in my name and in the names of the noble and learned Baroness, Lady Butler-Sloss, who cannot be with us today, as well as the right reverend Prelate the Bishop of Bristol, along with many other amendments in this group, particularly Amendments 87 and 89. They are part of a package that seek to probe and understand how victims of modern slavery under the Bill can enter the national referral mechanism and receive the appropriate support.

It is of deep regret to me that one of the flagship policies of the last Conservative Government has been smashed. I find it unbelievable that noble Lords would support driving through something that is doing that. It was something that we all regretted—to see the former Prime Minister at Second Reading sitting on the steps in this House and looking with absolute dismay and horror at what this Government are proposing. Of course, the current version of the Conservative Government dismiss that as irrelevant and as something that is not important. However, as somebody who is as tribal as they come with respect to being Labour, I would say that sometimes Governments get it right—and, certainly, the Modern Slavery Act 2015 was a landmark piece of world-leading legislation, and it is unbelievable that a Conservative Government would seek to unpick that and drive it through.

These amendments look at how victims of modern slavery do—or, more particularly, do not—enter the national referral mechanism, including victims of sexual exploitation. There is a non-conformity to the ECHR and Article 4 of the Council of Europe’s directives against trafficking, as the JCHR report just published makes clear. As the noble Lord, Lord McColl, will say under his amendment, we have not had an Independent Anti-Slavery Commissioner for well over a year, which is astonishing—because whoever that was, he or she would have been able to inform our debates.

Is it these clauses that have led the Government to not make a Section 19(1)(a) statement under the Human Rights Act—in other words, incompatibility with convention rights? Paragraph 47 in their ECHR memorandum, as published, seems to imply that this is the case. Can the Minister confirm that it is this particular group of clauses that leads to what is said about Section 19(1)(a)? Clauses 21 to 28 are so draconian, such an absolutely desperate part of this legislation, and so unbelievable—is that why the Government have put a sunset clause in? Are even the Government so embarrassed by how bad the legislation is that they have had to put a sunset clause in? It can be renewed, of course.

These clauses disapply various protections to victims of slavery and trafficking who have arrived irregularly, or “illegally” as the Government put it. For example, the 30-day recovery period, where not removed, is gone. Support and assistance are gone. Limited leave to remain is gone, and protection from removal is gone. All are denied any chance to have individual cases assessed and all, with one exception, will be deemed a threat to public order. The only exception, and I will come back to this later, is where there is co-operation with criminal investigation or prosecution, if the Secretary of State considers it necessary—and the presumption in these clauses is that it is not necessary.

This breaks international conventions. According to the JCHR, it not only breaks them but makes our international obligations untenable. Without going back over the debate over whether it is a law, or a breach or whatever, my point, and the point of many noble Lords, is that when we sign an international convention, the understanding is that we will keep that convention and not unilaterally abandon it and say that we will not act in a way which is consistent with it. These clauses do that. Even an individual with a reasonable grounds decision, as determined by the Home Office, can be deported before a conclusive grounds decision is made. Amendments 85, 87, 88, 89 and 92, put forward by me and supported by others, probe how victims of modern slavery can enter the national referral mechanism in that case—or is it just being abandoned?

Why are the Government doing it? I go back to the point that I and other noble Lords have made: frankly, we have a Government at the moment who say that deterrence, whether it works or not, trumps human rights; deterrence is more important than any other aspect. The Government also say that the system is being abused, so everyone has to be deemed a fraud. It is a blanket approach to sexual slaves, child labour and forced labour. Victims will be left without hope: there is no individual assessment, just a blanket ban. Instead of tackling the criminal gangs, the Government are tackling the victims. It is like the victims of a burglary being charged for allowing their home to be burgled—forget the burglars and trying to tackle them.

Let us look at the most recent NRM figures. These are not made-up figures but figures taken from the Home Office’s latest statistics. They show an increase from 2,337 in 2014 to 16,938 in 2022—I point out that 25% of that increase are British. This means, according to the Government, that the system must be being abused. Where is the evidence for that? I would have thought that after 2014 came the Modern Slavery Act 2015, and that the Government would have pointed to that: “Here is the success of our Modern Slavery Act; here is the success of what we do as we identify more victims”.

The fundamental point, which came out when we discussed the Bill last week, is that people do not refer in. They cannot self-refer into the NRM; they are referred in by first responders. These first responders are verified by the Home Office, and Home Office officials then make a reasonable grounds decision or not. A conclusive grounds decision is then made or not. It is Home Office officials who decide that, not some mystical other being. Are the Home Office Minister and the Home Secretary accusing their own officials of allowing the system to be gamed? Is the Minister saying that their own officials do not know what they are doing?

Amendment 85 asks directly how anyone who is a victim of modern slavery is to access the NRM. Will the Minister tell us why these Home Office figures are wrong and not to be used, given that, as I say, they are all over the Home Office website? Is the current backlog of reasonable grounds to conclusive grounds decisions 12,907 just for the year 2022? What is the overall backlog figure? Can the Minister confirm that the average wait from reasonable grounds to conclusive grounds in 2022 was 543 days, up from 449 in the previous year? Would sorting that out not help with some of the problems the Government are seeking to deal with?

Can the Minister confirm that of the 82,236 people who arrived in the United Kingdom in small boats between January 2018 and December 2022 just 7% were referred into the NRM, and of them, 95% applied for asylum? Can the Minister tell me whether those Home Office figures are wrong? Is it not the case that of the 12,561 Albanians who entered the UK on small boats only 12%—that is 2,691—consented to enter the NRM? Is it not the case that 89% of referrals were issued with conclusive grounds decisions in 2020, 91% in 2021 and 89% in 2022? So even after a reasonable grounds decision, when the Home Office look at it, sometimes well over a year later, Home Office officials themselves are saying there are conclusive grounds—not just reasonable but conclusive grounds. Why is the Minister blaming his officials for this complete allowing of the gaming of the system?

My amendments, led by Amendment 85, and others seek to expose the myths the Government have used to completely undermine our world-leading legislation and break our international obligations and the conventions that we have agreed. Is it the case that they cannot even use the figures, which makes it even more complicated? Home Office figures announced on 9 May show that as a consequence of the changes the Government made in their Nationality and Borders Act 2022 the proportion of reasonable grounds decisions issued has reduced from 85% in quarter 4 of 2022 to 58% in quarter 1 of 2023. I would have thought the Minister would use the tightening of thresholds, even under the existing legislation, to say the existing legislation is starting to work. Why is that figure wrong?

These amendments question how under these clauses a victim of, say, sexual exploitation—pointed to in Amendment 88—will be identified and protected. Can the Minister spell out how a victim of sexual exploitation, child labour or forced labour will be protected under this blanket ban? The reality of these clauses is that detaining and removing anyone who arrives irregularly means we will not identify or support victims of modern slavery and make it harder to prosecute traffickers. Instead of offering protection and support in line with our own Modern Slavery Act 2015 and the various directives and conventions from Article 4 of the ECHR and the Council of Europe, potential victims will face, instead of support, detention and removal.

Even more shockingly, at Third Reading in the other place, the Government themselves inserted an amendment—I think it was Amendment 95—which meant that protection from removal for victims co-operating with an investigation or criminal proceedings, which meant they had to be in the UK, was changed to allow them to be removed. It is heartless, but it is also absolutely ridiculous—investigations undermined by the Government’s own amendment. How on earth do we expect victims to continue to give evidence or support to an investigation from the source of their exploitation? The only people celebrating will be the traffickers and criminal gangs.

In Clauses 21 to 28, various protections and support are undermined—unless, according to the Home Secretary, there are

“compelling circumstances which require the person to be present in the United Kingdom”.

We have no idea what these are. It is completely meaningless in the real world of trafficking and criminal slavers. What of children impacted by all this, including unaccompanied children? Outrageously, under these clauses, children will be disqualified from access to protection and support and the measures will reduce investigations and prosecutions of those who have exploited children. Can the Minister justify these clauses as they apply to children? Again, much of that will be addressed in the third group.

These measures will leave victims in destitution, unable to escape the abuses that they have been subject to. They will drive more men, women, children, young people and families into destitution. Frankly, it is a shocking change in public policy and shamefully undermines a policy of which we were all so proud.

My Lords, my noble friend Lord Alton unfortunately cannot be with us today and has asked me to speak to a number of amendments in his name which I have signed—and one which I have not because there was no room left. I will be very happy to do so. I pay tribute to the enormous work he has put into this Bill on the issues that have arisen, including those mentioned so eloquently by the noble Lord, Lord Coaker.

At the beginning of his contribution, the noble Lord, Lord Coaker, mentioned the absence of an impact assessment and our ongoing interest in whether it will arrive in due course and, if so, whether it will be too late to have any impact. If ever there was a series of amendments for which the impact assessment’s absence has importance, it is this. I hope to demonstrate why in a few moments.

I will highlight the potentially devastating impact that the Bill will have on not only survivors of modern slavery but our ability as a country proudly to bring to justice those who are guilty of modern slavery offences. There is a paramount public interest here and internationally in those cases being prosecuted. If you ask a prosecutor how best to prepare a case, the answers are very simple. First, you need co-operative witnesses; for that, you need witnesses to feel safe to provide the evidence. That is when they will come to court, where they will be protected by judges behind screens or by other special arrangements and produce an overwhelming prosecution case. Anything that any Government do to inhibit the prosecution of modern slavery cases is not just regrettable but a manifestly dishonourable disgrace.

The amendments seek to put in the Bill obligations on the Secretary of State to carry out and present before Parliament and an appointed Independent Anti-Slavery Commissioner reports and assessments on the potential impacts of this Bill in relation to equality, human rights and compliance. Furthermore, they require detailed information pertaining to each country or territory listed in Schedule 1 to be laid before Parliament in relation to the practical implications, including but not limited to the effect on modern slavery prosecutions.

One is entitled to assume—I ask the Minister to confirm that this assumption is accurate in this case—that, in the preparation of the list in Schedule 1, the Government have carried out due diligence on the 57 countries listed as safe territories to which a person may be removed. Was the placing of a country on the list in Schedule 1 preceded by consultation? Who should that consultation have been with? Let us start with the ambassadors and high commissioners representing the United Kingdom in those countries.

We all know that the Foreign, Commonwealth and Development Office is well staffed with people here in London who are experts in and who man desks on those countries. Were they consulted before the names of those countries were added to the list in Schedule 1? I ask this question because, having been through the list with a fine-toothed comb looking at every single country on it, I cannot accept that whatever inquiries were made could really be described as diligent. Due diligence in the world in which many of us who work in the professions operate is an absolute given in every instance. I will give your Lordships some examples before I turn to my reductio ad absurdum—if I can be allowed that phrase—of this point.

I will start with Bolivia, which is on the list. The Interdisciplinary Group of Independent Experts—a highly respected international body—issued a report in August 2021 documenting 37 deaths during the October 2019 elections in Bolivia. Further, it has highlighted the absence of access to information, the opening by the Bolivian Government of an investigation against two journalists for exposing the unjustified salaries of slavish members of state television channels, and at least 200 attacks and threats towards human rights defenders in 2022. I am only a third of the way through the draft paragraph I prepared on Bolivia; I will leave the rest to noble Lords’ imagination.

Let us move on from Bolivia to Ghana. In Ghana journalists, television producers and radio producers—I have a long list of individuals’ names here—were arrested or sanctioned by government authorities and assaulted. In June 2022, very recently, the police arrested 30 LGBTQ+ community members on what transpired to be entirely spurious unlawful assembly charges. Also, somebody was arrested for critical Facebook posts about the Government and other attacks; in one instance, somebody was arrested for making critical comments about the wife of the President, the First Lady. There is nothing about that in Schedule 1.

Maybe the Government could have limited their due diligence to a little look at ChatGPT. I did that, ladies and gentlemen—my Lords, I am so sorry. It feels like a courtroom; I apologise for that Freudian slip. I looked at ChatGPT to see what that automated artificial intelligence said about some of these countries, and here I turn to Kenya. ChatGPT said:

“Kenya has made progress in protecting human rights”,

but ChatGPT is a master of understatement. It continued,

“but there are still some concerns related to police brutality, extrajudicial killings, and discrimination against marginalized communities such as LGBTI individuals, refugees, and people living with disabilities. The government has taken steps to address these issues, but more work needs to be done to ensure that human rights are fully respected and protected in the country”.

That is what ChatGPT said to me at about 8 am.

What has happened to that impact assessment? Is there not an ulterior or oblique motive in delaying it? The reasons for some of the amendments I am speaking to today are to ensure that Schedule 1—if there is to be such a schedule—is at least legal, decent, honest and truthful, and to enable both Houses of Parliament to make a proper assessment and judgment of it.

I turn specifically to Amendment 92B. I will deal with this very briefly, because the noble Lord, Lord Coaker, dealt with it very ably a few minutes ago. Under the Bill, individuals who are victims of modern slavery and arrive in the UK via routes other than those deemed safe and legal will be subjected to detention and removal unless they co-operate with criminal investigation and prosecution.

As raised by the Joint Committee on Human Rights of this Parliament—of this House, in part—those measures are in breach of the United Kingdom’s obligations under the Council of Europe convention against trafficking, ECAT, and the European Convention on Human Rights. I remind the Minister of Articles 10 and 12 of ECAT. If he has not read them recently, he should—it will not take long—before he makes his speech in response. I am sure his officials can flick it on to his expertly used iPad. Article 10 stipulates that victims of modern-day slavery

“shall not be removed from its territory until the identification process as victim … has been completed by the competent authorities”.

However, as the Bill stands, a victim of trafficking can be returned as soon as possible and without waiting for the results of the identification process. Furthermore, during the process, the individual should be provided with all the relevant assistance indicated in Article 12 of ECAT, which sets out six forms of assistance to which the individual is entitled. How far have His Majesty’s Government taken into account Articles 10 and 12 of ECAT? I think we would all like to know, and I look forward to hearing the Minister’s response.

My Lords, I have Amendment 85D in this group and have added my name to Amendment 85C from the noble Lord, Lord Alton, and the amendments from the noble Baroness, Lady Ritchie, and the noble Lord, Lord McColl. I have also tabled opposition to two clauses standing part, because we on these Benches oppose the whole approach to modern slavery and trafficking in the Bill. We oppose every clause in the Bill and have tabled that opposition because it is not a matter of tweaking, although the amendments draw attention to some particularly egregious provisions.

Clause 25 is about suspension and renewal, but its very existence, sunsetting after two years, indicates, as the JCHR noted, that the Home Office recognises the severity of the provisions. They may be short term, but they will not feel that way to victims and survivors. Can I just say how much I admire the work that the JCHR has done on the Bill? It has produced a splendid report, which I am afraid I flicked through to find the bits relevant to today—but then I am human, and the whole of it will get read.

What evidence is there of abuse of the system? Assertion is not evidence. What evidence is there that victims of modern slavery are likely to be a danger to the public or a threat to public order? Is it really appropriate for a Minister, having sunsetted a provision, to revive it by regulations? A lot of constitutional points arise in the Bill. Mind you, I would rather see it sunsetted before the sun even rises.

When the Bill was starting its passage through Parliament, I was in a taxi and the driver inevitably wanted to tell me what Parliament should be doing. On the subject of small boats, he said he was concerned that his children should be safe from all the terrorists arriving in small boats. He was hearing the message that the Government wanted him to hear. Actually, we had quite a reasonable conversation about asylum seekers and he was very receptive to a number of the things I said, but it brought home to me just how dangerous the Government’s messaging is: it is dangerous to individuals, dangerous for cohesion and integration, dangerous in the attitudes it fosters and much else.

As the JCHR said, how can the modern slavery clauses be applied compatibly with Article 4 of the convention, which places on the state positive obligations that are absolute and cannot be derogated from? A similar point arises with ECAT. The JCHR recommends that Clause 21 be removed, and although I took a little comfort from the fact that our instincts were backed up, that does not achieve it, of course. As the committee said, there should at least be no removal of asylum seekers until a “conclusive grounds” decision has been made. As Amendment 85D indicates, one of our concerns is the recovery period, as it always has been. For many victims, 30 days is nowhere near enough for them to recover. There being no period for recovery at all is far worse.

Amendment 90 refers to co-operation with investigations and proceedings. The point that occurred me a day or two ago follows on from what the noble Lord, Lord Carlile, has been saying. I do not think the point has been made that the absence of the victim may jeopardise proceedings in a number of ways, including because the victim is not available for cross examination, either in person—that is always best—or by video link if that is what the Home Office envisages. I want to take this opportunity to ask the Minister: what is envisaged? Are the Government confident that it will always be possible to give evidence by video link, given the countries to which asylum seekers may be removed? Is this to be a provision in removals agreements? It seems to me that not a lot more than lip service is being paid to the importance of tackling smuggling and trafficking gangs, improving the conviction rate and securing remedy for victims. Nothing in the Bill will increase the efficiency of all those things.

Finally, I want to say a word on Amendment 146 in the name of the noble Lord, Lord McColl, which addresses the absence of an Independent Anti-Slavery Commissioner. I hope we will not hear from the government Front Bench that a new commissioner will be appointed “in due course”. The lack of an appointment for over a year now makes the Government’s lack of real concern about modern slavery very evident.

My Lords, Amendment 88 in the name of the noble Lord, Lord Coaker, is supported by my right reverend friend the Bishop of Gloucester, who regrets that she is unable to be here today. There is much similar ground in this amendment to others, but this amendment focuses specifically on victims of sexual exploitation.

The Bill directs that victims of modern slavery, including victims of sexual exploitation, shall be subject to detention and removal to their own country or to a third country. As we have heard, the principal exception to this is if the Secretary of State is satisfied that the individual is co-operating with criminal proceedings and that their presence in the United Kingdom is necessary for this to continue. We know that the Government have committed to victims of sexual violence and exploitation in this country. The UK ratified the 2011 Istanbul Convention on Preventing and Combating Violence Against Women and Domestic Violence only last summer and there has been much work done over the past few years to increase awareness and tackle perpetrators. To deny those who have arrived here safety and protection is a regressive move.

Research tells us that women who have been exploited often arrive confused, not always having been aware of their final destination or even that they were going to another country. They may have been exploited by their traffickers during the flight. The notion of removing them to a safe third country that contains their abusers is cruel and unnecessary. The moral basis of legislating for and the axiomatic assumption of the detention and removal of such women, as there is in Clause 21, is at best dubious. I support this amendment.

I also support a number of amendments in this group that specifically target other issues that Clause 21 will cause for victims of modern slavery. My right reverend friend the Bishop of Bristol regrets that she cannot be here today but has added her name to Amendments 85, 87 and 89, tabled by the noble Lord, Lord Coaker. I will not repeat the arguments that he and other noble Lords have made on this large group but will make one further point. Modern slavery and trafficking into the United Kingdom are not wholly outside the UK’s control. They are not a consequence wholly of events far away for which we bear no responsibility. These crimes commodify and abuse human beings in industries and markets which are on our own soil. They represent a failure of policy and policing, and a broader societal indifference to human dignity which allows slavery to flourish in this country.

It would be all the more unacceptable, therefore, not to take responsibility for the care and support of victims who suffer as a consequence of our failings. Clause 21 as drafted refuses that responsibility. Victims brought and abused here it disposes of somewhere else. That is the moral core of many of the amendments in this group. Thus, my question to the Minister is: if these women are here because of the criminal and business activities of UK markets and the limitations of UK policies and policing, why are these victims not our responsibility?

My Lords, all the amendments in this group are very serious contributions to improving the Bill, but I want briefly to add my support for Amendment 85C in particular. I cannot match the noble Lord, Lord Carlile, in his acquaintance with ChatGPT, but his amendment, supported by the noble Lord, Lord Alton, the noble Baroness, Lady Hamwee, and my noble friend Lady Kennedy, who is not in her place, goes some way towards dealing with the difficulties of the astonishing assumption behind Schedule 1—that asylum seekers can safely be deposited in all these 57 countries. Quite apart from the observation by the noble Lord, Lord Kerr, during our previous Committee sitting that they do not have asylum regimes in any case, to make Schedule 1 acceptable the Minister must accept this amendment.

My Lords, I have tabled Amendments 97 and 98 in respect of Clauses 27 and 28. I commend the report, published yesterday, from Parliament’s Joint Committee on Human Rights—a very fine document which says that this Bill will have “a disproportionate impact” on the victims of modern slavery. My noble friend Lord Coaker referred to the coalition Government of 2010-15, which took the initiative to introduce in Parliament and implement the Modern Slavery Act. This Bill drives a sword through it and completely lacerates it.

There is no doubt that the number of amendments that refer to modern slavery or human trafficking are testament to the Committee’s concern about the Government’s proposal. Again, I refer simply to my own Amendments 97 and 98. The Government frequently refer to victims of the “heinous crime” of modern slavery and, in March 2021, they commended themselves on how many victims had been referred to the national referral mechanism, stating that

“the UK has a strong reputation internationally in addressing modern slavery referrals; year on year there has been a rise in referrals from all frontline responders into the NRM”.

It is extremely concerning that, some two years later, we are talking about the same increase as a matter of abuse and the same victims as threats to public order. That is exactly the language that has been used by this Government. Lest there be any confusion, this language is being applied to individuals who have been the subject of exploitation through being either coerced or deceived. The language is being applied not to those who traffic and exploit people as commodities but to the victims of crime.

The UK has signed up to international obligations to identify and care for victims of modern slavery. One of those is the European convention against human trafficking—frequently referred to as ECAT. The noble Lord, Lord Carlile, referred to this. ECAT requires the identification of victims so that they might benefit from the convention entitlements, including the provision of a recovery period when the person cannot be deported and can receive support and assistance. The Bill does not prevent the identification part of our obligations, but it makes identification meaningless for the most part.

Last year, under the Nationality and Borders Act 2022, the Government determined that some victims should be excluded from a recovery period if they are a threat to public order. There is a case for excluding those convicted of serious criminality; indeed, ECAT recognises that under Article 13. But here is the key point: it has been applied on a person-by-person basis. This Bill, in the words of the Independent Anti-Slavery Commissioner, Dame Sara Thornton, introduces

“a massive extension of that public order disqualification to everybody”.

Yes, all victims of modern slavery within the scope of the Bill are being considered a threat to public order. I hope your Lordships will indulge me as I quote the Government’s justification for this extension. In the human rights memorandum, the Government say that they consider that a person who falls under the duty to remove is

“a threat to public order, arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure placed on public services by the large number of illegal entrants and the loss of life caused by illegal and dangerous journeys”.

ECAT makes no differentiation between victims of modern slavery who are in the country illegally or legally. The convention knows that these individuals need safeguarding and protection, regardless of their immigration status.

Parliament’s Joint Committee on Human Rights, which published its report yesterday, states that

“the Government’s position that the modern slavery clauses are ‘capable of being applied compatibly’ is untenable”.

My noble friend Lord Coaker already referred to this point. The report continues:

“The UK has clear positive duties under Article 4 ECHR (prohibition of slavery and forced labour) to protect victims or potential victims of slavery or human trafficking, as well as duties under ECAT—these provisions of the Bill are in direct conflict”

with the above-mentioned article and ECAT. The committee recommends that the clauses in the Bill dealing with modern slavery should be removed, a point I concur with. The Commissioner for Human Rights of the Council of Europe has said about the extension of the public order disqualification:

“Such a justification appears to me to be so broad and general that it increases the likelihood of an arbitrary application of the modern slavery protections”.

The Parliamentary Assembly of the Council of Europe is due to debate a report on a number of human rights measures currently being debated in the UK, including the Bill. The provisional report was published on 25 May. In reviewing the Bill’s compatibility with ECAT, the report says:

“The fact that an individual was trafficked into the UK does not make that individual thereafter a threat to public order”,

a point that this House and the Government should take on board.

I was disappointed that, on day two in Committee, the Minister said that the Bill was compliant with ECAT because

“ECAT envisages that the recovery period should be withheld from potential victims of trafficking on grounds of public order”.—[Official Report, 5/6/23; cols. 1200-01.]

This is exactly the opposite of the position taken by GRETA, the body overseeing ECAT. In its submission to the Joint Select Committee on Human Rights inquiry into the Bill, it said that such an approach

“would be contrary to the purpose of Article 13”,

since Article 13(1) is

“intended to apply in very exceptional circumstances and cannot be used by States Parties to circumvent their obligation to provide access to the recovery and reflection period”.

My Amendments 97 and 98 urged the Government to rethink their interpretation of Article 13(3), which is, in my view and that of GRETA, contrary to the convention. I also urge the Government to be mindful of the recommendations in the Joint Committee on Human Rights report, just published; to heed its advice; and to indicate, in a realistic and humanitarian way, when they will respond to that report. The website states that the Government will respond in August, long after the Bill has been implemented into law. That is too late. We need a response at a very early opportunity—in fact, before we return for Report on the Bill.

I ask the same question as did my noble friend Lord Coaker: when will the impact assessments be made available to this House? Will it be done at a very early opportunity and before the completion of Committee on the Bill?

My Lords, many Peers spoke at Second Reading about their concerns over the modern slavery amendments. They did so again on day two in Committee, in response to Amendment 19A and others tabled by the noble Lord, Lord Hunt, and on day three, after the forensic speech made by the noble Lord, Lord Purvis, on whether Clause 5 should stand part of the Bill.

The amendments in this group again raise those concerns, and I hope the Minister will recognise the concerns across the Committee. Before I speak to my Amendment 145, I put on the record my support for Amendment 86, of the noble Lord, Lord Randall. As I have already said in Committee, I am deeply concerned about the impact that the Bill will have on victims of modern slavery; this amendment would mitigate some concerns by ensuring that victims of modern slavery exploited in the UK will still be able to access the support that they need to recover. I hope the Minister will update the Committee on the ongoing discussions on this proposal that were promised on Report in the other place.

I also register my support for Amendment 90 tabled by the noble and learned Baroness, Lady Butler-Sloss, which would reverse the presumption created in the other House that individuals assisting with police investigations do not need to remain in the country.

Clauses 21 to 28 and the potential impact that they will have on victims of modern slavery cause me great concern. They feel premature. The previous Independent Anti-Slavery Commissioner, Dame Sara Thornton, who has already been mentioned by the noble Baroness, Lady Ritchie, recently described these clauses as disastrous, and that should give us all cause to pause before we pass this part of the Bill and is the reason to support Amendment 146 tabled by the noble Lord, Lord McColl, who wants to ensure that this House hears from a new commissioner before these clauses come into effect, and the similar amendment, Amendment 92B, tabled by the noble Lord, Lord Alton.

Amendment 145 in my name would amend the commencement clause, Clause 66, and prevent the modern slavery provisions in the Bill coming into effect without more analysis of the impact of the recent legislative changes and a full impact assessment. First, the Bill has been introduced less than 40 days after Part 5 of the Nationality and Borders Act 2022 came into effect, requiring stricter criteria to be met before a person can get a reasonable grounds decision. We were told that the Act was required to tackle abuse, but there has been no assessment of whether those measures have been effective enough before the Bill was introduced. What we do know is that the latest national referral mechanism data for the first quarter of 2023 reveal that the number of victims who received a positive reasonable grounds decision has plummeted with the introduction of the new statutory guidance at the end of January 2023, which has applied for two out of the three months. Only 49% of adults received a positive reasonable grounds decision, compared to 87% in 2022.

Secondly, my amendment requires a full impact assessment of the Bill on modern slavery. It is extremely concerning that the Government have not already published an impact assessment. As the Joint Committee on Human Rights said in its report just published, impact assessments are crucial for effective scrutiny and assessment of the impact on vulnerable groups. The lack of an impact assessment was the subject of considerable debate on the two previous days in Committee. The Minister said he would convey these sentiments back to the department. I hope he will be able to give us an update today.

We are being asked to sign a blank cheque on a policy without evidence of how it will be implemented or how it will deter the exploitation of victims of modern slavery. My amendment is specific in requiring details of the cost of detaining and removing modern slavery victims, as well as how many victims this will apply to. I should remind your Lordships that, in 2022, 59% of victims said that their exploitation occurred either in the UK only or both overseas and in the UK. The Minister said at Second Reading that there would be an exemption for those co-operating with the police. My amendment requires the Government to set out how many people this will affect and how the policy will affect the estimated number of prosecutions. I hope the noble and learned Baroness, Lady Butler-Sloss, will not mind me quoting evidence she gave to the Home Office Select Committee in the other place when she said:

“The evidence that matters for a jury is the victim”.

Without victims we can expect to see “fewer prosecutions”.

I would like to hear about the deterrent effect. How many fewer people do the Government expect first responders will refer into the NRM? Lest we forget, we are talking about real people. My amendment seeks an impact assessment on the well-being of individuals who, prior to 7 March, would be entitled to the full range of safeguarding modern slavery protections but, because of the Bill, are now likely to find themselves exploited in detention with no special support and, potentially, removed to a third country.

We are at a crossroads and we need to rethink. My Amendment 145 and the others that I am supporting highlight the deficiencies in the Bill. It is right and proper for this House to raise concerns with the Government’s approach. Modern slavery is a complex and multifaceted crime that requires more nuance than a catchy slogan. Stopping the small boats will not rid the UK of modern slavery any more than the one-dimensional approach adopted by the Bill.

My Lords, I shall speak briefly, but I hope strongly, to support the intention of the noble Baroness, Lady Hamwee, to oppose the question that Clause 21 stand part of this Bill. We have had a very long debate and incredibly powerful speeches, particularly, if I may say so, from the noble Lords, Lord Coaker and Lord Carlile, spelling out the immense importance of all the amendments in this group. I do not need to repeat any of those arguments.

I want to mention Frank Field—my noble friend Lord Field. I saw him today; we know he is dying. He was incredibly important in the passage of the modern slavery legislation, along with the noble and learned Baroness, Lady Butler-Sloss, who unfortunately cannot be here today, and the former Prime Minister Theresa May. He said to me today, “Please explain and set out that if all the amendments in this group are passed, yes, they would indeed provide important protections for the victims of modern slavery and trafficking; but please spell out that this would not be sufficient. There will be the most appalling abuses of these most vulnerable of victims unless Clause 21 does not stand part of this Bill”.

My Lords, I start by declaring an interest as the deputy chair of the Human Trafficking Foundation. Following on from the noble Baroness, Lady Meacher, I will say that the first time I investigated this matter was when I served on a committee with the noble Lord, Lord Field, when he was in the other place, as was I, as well as with the noble and learned Baroness, Lady Butler-Sloss; so my interest in this goes back 10 years. I apologise to noble Lords for my absence during Second Reading because of ill health. If there was ever an incentive to get back to health, it was so that I could speak on this part of the Bill.

I will speak in particular to Amendment 86 in my name and those of my noble friends Lord McColl of Dulwich, Lady Helic and Lady Stroud, to whom I am grateful. The purpose of this amendment is simple: to allow modem slavery victims exploited in the UK to continue to receive temporary support and protection from removal under current laws, enabling more of them to engage in prosecutions. It does this by exempting victims exploited in the UK from the Clause 21 disapplication of the statutory recovery period and access to temporary leave to remain for confirmed victims.

If we do not amend Clause 21 we will be restricting access to modem slavery support, but it will not stop the boats. It will remove support and protection from many genuine slavery victims who have been exploited on our shores, and will make prosecuting criminal gangs harder, as we have already heard. Human trafficking is distinct from people smuggling and its victims are first and foremost victims of crime.

Few modern slavery victims arrive by small boat. As I think we have already heard, only 6% of small boat migrants were referred to the modern slavery national referral mechanism; that is, 2,691 individuals in 2022 compared to a total of 12,753 NRM referrals for non-UK nationals. A majority of potential victims referred to the NRM are exploited in the UK in full or in part, and most of those are non-UK nationals—58% in 2022. Modern slavery is happening in communities up and down the UK. Thousands of men, women and children are victims of labour exploitation—whether, for example, in agriculture, manufacturing or nail bars—as well as sexual exploitation and criminal activity such as county lines drug dealing.

Many of these people are likely to have arrived in the UK illegally within the terms of this Bill, whether by small boat, by lorry or with leave obtained through deception such as false documents—including deception by their exploiter. Instead of being given temporary protection in the UK, these victims will now be subject to removal and detention under this Bill and will be denied access to the statutory 30-day recovery period of support for modern slavery victims. Victims will simply be driven even further underground by the fear of deportation and trapped in the arms of their abusers. Criminal gangs will be free to continue exploiting these people and the job of the police and prosecutors will be made far more difficult, as victims’ vital evidence will be lost.

Why is this amendment needed? Victims of modern slavery experience inhumane torture and abuse. They are deprived of their liberty and dignity. Those exploited and abused on British soil, whether UK citizens—an increasing number of UK citizens are victims of modern slavery—or foreign nationals, deserve care and a chance to recover. We cannot leave them to suffer exploitation and abuse in the hands of their traffickers just because they were brought into the UK illegally. I ask my noble friend the Minister: has he ever met a victim to hear their harrowing tales? I say to my noble friend that, when I have had the opportunity to meet some of these people—it is not easy, for obvious safeguarding reasons—you realise what a terrible crime it is and what a terrible thing we are potentially doing with this clause.

Victims hold the key against their perpetrators. Failure to support victims not only increases retrafficking rates, but also hinders our ability to dismantle the criminal networks managing the abuse because their vital evidence and intelligence is lost. We cannot allow unscrupulous criminals to get away with impunity, poisoning our own communities.

Prosecution and conviction rates are stubbornly low. In 2022, there were just 194 convictions for Modern Slavery Act offences in England and Wales on an all-offence basis. Yet since 2017 there have been thousands of NRM referrals every year for modern slavery occurring in the UK. In 2021, the National Crime Agency’s threat assessment said:

“It is likely that at least 6,000 – 8,000 offenders are involved in the exploitation of people in the UK”.

Evidence from the Centre for Social Justice and Justice and Care shows that, with appropriate, consistent support, more victims engage with investigations and prosecutions, providing vital information that brings criminals to justice. But support needs to come first to create stability and confidence. We need to ensure that victims of slavery exploited in the UK can continue to receive support and protection from removal during the temporary, statutory recovery period. This will ensure that victims can still have the confidence to come forward.

In response to a similar amendment tabled in the other place by my right honourable friend Sir Iain Duncan Smith, and supported by my right honourable friend Theresa May, the Immigration Minister said:

“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23, col. 781.]

Can my noble friend the Minister give us some more information about the intended additional protections? I could perhaps suggest he just accepts my amendment. Have the Government consulted the Crown Prosecution Service and the police about the likely impact of Clause 21 on investigations and prosecutions and the burden it will place on their staff?

My noble friend the Minister may come up with some points. He will possibly say that people will make false claims of being exploited in the UK to bypass deportation. However, as we have already heard, a victim cannot self-refer with a claim of modern slavery. Referrals can be made only by official first responders who suspect the person is a victim. In 2022, 49% of referrals were made by government agencies, most from UK Visas And Immigration and from Immigration Enforcement. Only 6% of referrals were made by NGOs. The rest were from other statutory services. Training and guidance for the staff making referrals, particularly those in Home Office agencies, should prevent inappropriate referrals being made.

Under changes made to the NRM statutory guidance on 30 January, the threshold for a positive reasonable grounds decision has been raised to require objective evidence of the exploitation. This will prevent false claims leading to referrals and enable assessment of the evidence that the person was exploited in the UK and therefore qualifies for exemption. Other changes introduced on 30 January, under the Nationality and Borders Act, mean that victims who are later found to have made false claims or are a threat to public order can be excluded from the modern slavery protections. These individuals could still then be removed under those existing provisions.

My noble friend may also claim that the Bill already exempts victims who are supporting prosecutions. After amendment by the Government on Report in the Commons, most victims who are supporting prosecutions will not be able to benefit from the limited exemption. Subsections (5) and (6) of Clause 21 contain an express presumption that victims will not be permitted to stay in the UK to assist proceedings. Only where there are “compelling circumstances” will a victim be permitted to support a prosecution and then to access support. We have to know more about what that actually means. It might mean something to noble Lords who are lawyers, but I do not understand exactly what it means.

Most victims need to have support before they have the confidence and stability to engage with the police but, under the Bill, their participation must come first; even then, it will be available only in rare circumstances. The result will be that very few co-operate with the police at all, making the existing exemption almost meaningless. I am sure that defence counsels already attempt to discredit victims’ testimony by saying that victims were induced to give evidence by the availability of support under the NRM. Making support conditional on co-operation with the police, even under these limited conditions, will give weight to those arguments, further undermining prosecutions.

To any argument that my amendment would create a parallel route to settlement, I would say that it does not give victims a route to settle in the UK or to obtain asylum. Victims of modern slavery receive only temporary protection from removal during the NRM process. They may be considered for further temporary leave to remain under Section 65 of the Nationality and Borders Act only if they meet the criteria that they are assisting with criminal proceedings or have recovery needs that cannot be met in a third country.

I will also speak to Amendment 90, which was tabled by the noble and learned Baroness, Lady Butler-Sloss, who, as we have heard, cannot be here today. Her Amendment 90 would remove the presumption that the victims do not need to remain in the UK to co-operate. This presumption was inserted by the Government on Report, taking out what they had already put into the Bill when it was first published. I would like to know from my noble friend what discussions they had on why they thought the original wording was incorrect and why they decided to go even further. Not only is support necessary to enable victims to engage with investigations; it is also extremely difficult to maintain contact and facilitate engagement for victims overseas. This will be unworkable. It will place a heavy burden on police officers and is likely to reduce the number of successful prosecutions.

I ask my noble friend the Minister to see whether he can answer my questions and those of every other speaker. This clause is not a good clause. I was proud when the Government—my Government—passed the Modern Slavery Act and it was world leading. I do not particularly like that expression because it is sometimes overused, but it was world leading and was recognised wherever we went as that. If we are not careful, we shall absolutely destroy that reputation. We have a real chance and a responsibility to make sure that this Bill does not do the damage.

My Lords, I was present at Second Reading but was prevented from taking part for medical reasons. I am very grateful to your Lordships’ House for originally giving me such support in putting forward the first anti-slavery, anti-trafficking Bill. It was a real tribute to this House to have the tremendous support that was given all around it.

I am pleased to be a cosignatory of my noble friend Lord Randall’s Amendment 86. I firmly believe that, if victims of modern slavery have been exploited in the UK, we have an obligation to assist them in recovering, with accessing the NRM and with all the other modern slavery protections that have been established for that purpose.

I record my support for Amendment 90 from the noble and learned Baroness, Lady Butler-Sloss, which would reverse the presumption created in another place that individuals assisting the police do not need to be present in the UK to do so. We must not underestimate how much courage it takes for victims to provide evidence. A victim of forced labour described being in fear of her life if she exposed where her exploitation took place. Victims need support, and we should be a country that is willing to provide it if we are asking them to give evidence—many speakers have stressed this.

My Amendment 146 would prevent Clauses 21 to 28 being commenced until the Government have appointed an Independent Anti-Slavery Commissioner and until there is robust scrutiny of the Bill from an independent person with the expertise required to understand the complexities and nuance associated with modern slavery. I of course also support Amendment 92B, tabled by the noble Lord, Lord Alton.

The ground-breaking role of the Independent Anti-Slavery Commission was established under the Modern Slavery Act 2015, and it aims to encourage good practice in the prevention, investigation and prosecution of modern slavery offences, and in support for victims. Yet the role has been vacant for over 12 months. During that time, there have been significant changes to the modern slavery protections in the UK and to the debate about care for victims. The Bill should have been informed by the views of an Independent Anti-Slavery Commissioner but, so far, it has not. I and other parliamentarians have tabled PQs, asking the Government when they intend to fill this vacancy. If the Government are committed to beating modern slavery, I contend that, as a bare minimum, we should abide by our own modern slavery legislation.

I hope that the Minister will provide an update on the current stage of the recruitment process. The mere appointment of a commissioner is not enough, although it would of course be welcome. Any new commissioner needs to be afforded sufficient time to review and analyse the Bill and, where appropriate, make recommendations. If we are truly striving for best practice in tackling modern slavery, I agree with Dame Sara when she said:

“There is a real need for that fearless, independent, expert voice, and that is missing”.

I urge your Lordships to support Amendments 86 and 146.

My Lords, it would be entirely appropriate to support virtually all of these amendments, which have my total support. But the message from Frank Field—the noble Lord, Lord Field—was right: however many amendments we pass—and I envisage some long nights on Report—nothing will significantly improve this shoddy, shabby and unworthy piece of legislation. Frankly, I am as ashamed that a Conservative Government are bringing forward this legislation as I am proud that Theresa May brought in the Modern Slavery Act in the year when we commemorated the 800th anniversary of Magna Carta, symbolised by the Barons of Runnymede who look down on us today.

I am very conscious of the plea made on Thursday last week by the noble Baroness, Lady Smith of Basildon, when she urged the House not to go in for unnecessary repetition and so on. She was quite right to do that, but I do think we should have some proper answers from the Minister today. When is the impact assessment going to be ready? When is the anti-slavery commissioner going to be appointed? What plans are there to talk to that man or woman at the earliest possible date? If, in fact, in due course in response to that very fine report from the Joint Committee, just published, the answer is that that is going to be answered by the Government in August, when Parliament will have dealt with Report stage, that is nothing less than an absolute disgrace.

We want to have some definitive answers by the time this Bill goes to Report. It is a shoddy piece of legislation. It is not worthy of the British Parliament. It is not worthy of a Conservative Government and I will say little more about it other than I feel a shame that is in sharp contrast to the feelings I had in 2015 when Theresa May’s Bill became an Act of Parliament.

My Lords, I also support the amendments in this group, but at the start I would perhaps add two caveats. I will make reference to, I think, five of the amendments, because I do not simply want to reiterate all the various points that have been made by others. I also share with the noble Lords, Lord Field and Lord Cormack, and others—and I suspect those who tabled the amendments—the belief that the purpose of these amendments is to help ameliorate and mitigate some of the worst excesses of the provisions but that they cannot, in themselves, rectify what is there.

I think that two of the proudest moments in our democracy in the last 15 years have been in this field. Mention has been made on numerous occasions of the Modern Slavery Act 2015, which was ground-breaking legislation, and the Committee will be familiar with that. I also refer from my own experience more locally to the Human Trafficking Act that was passed in the Northern Ireland Assembly and brought by my colleague and noble friend Lord Morrow as a Private Member’s Bill. It predated the Modern Slavery Act.

Both those Acts tackled the utter evil of human trafficking. Human trafficking, whether it is childhood exploitation, servitude, sexual exploitation and prostitution, or using people as drug mules or whatever is inherently evil because it dehumanises people. It treats those people as a commodity simply to be used for advantage. Therefore, it is right that we target our efforts against modern slavery.

Some critics of this Government would take a very, I suspect, unkind and cynical approach towards this piece of legislation. They would see the Government’s motivation as some form of cynical electoral virtue signalling, of trying to put through a piece of legislation which may not even really make it into any form of practice and may not survive any form of legal challenge but is instead designed to send out a signal to some within the electorate of their determination at least to be seen to be doing something.

I am sure that that is an entirely unkind interpretation of the motivations of this Government and indeed I challenge the Government as I am sure they would very keen to refute those unkind and cynical expectations. I think the best way they can do that, particularly on the grounds of modern-day slavery, is by enthusiastically embracing the amendments in this group.

I turn to the two main purposes of our focus against modern-day slavery—the two main motivations. First, as a nation—and this is very much at the heart of the Modern Slavery Act—we should show compassion and support for victims. I appreciate that there are some in this Committee who have greater expertise than I have, and some who have directly met victims, but for any of us to place ourselves in the shoes of those who have been exploited and trafficked is very difficult—but we need to support them. Secondly, we need to take every action that we can to bear down on the perpetrators, who would cynically exploit and use them in human trafficking. So we have support for victims and opposition to perpetrators.

A number of the amendments in this group go to the heart of that construct. For instance, Amendment 86 seeks to remove the restrictions on the period of leave that will be given—the leave to remain. That is to show that compassion to those who have been the victims of human trafficking—but also, as we know, there is strong, compelling evidence that it will provide a greater level of assistance in bringing perpetrators to justice.

Similarly, Amendment 90 deals with co-operation with the police. I know that, under pressure in another place, the Minister there talked about there being “compelling circumstances” in which leave to remain could be given, if there was a level of co-operation—but that places the threshold far too high. In taking that position, we reduce the opportunity to have successful prosecutions against human traffickers, which is not only inhumane but entirely counterproductive. We are told that the source of this legislation is to try to stop the small boats coming across the channel, and to try to stop those who exploit refugees for their own ends and for financial gain—so to take one of the pressure points of prosecution away from them by way of excluding those who simply co-operate with the police is entirely counterproductive to what the aims of this legislation should be.

I turn briefly to three amendments—Amendment 92B, and Amendments 145 and 146. Amendment 145 stands in the name of my noble friend Lord Morrow. The amendments come from different components, but they have a similar approach. First, it is entirely wrong that we have had a situation in which the post of independent commissioner has been vacant for 14 months, with very little prospect of it being filled at this stage. Maybe the Minister will pull a rabbit out of the hat in his answers today, but it is a disgrace that the post has been left open for so long. All three amendments seek to base what actions we should take on grounds of evidence. A lot of the provisions in this Bill are based on suppositions, where there is very little evidence to support the level of fraud that is suggested. At the heart of these three amendments is that any way in which we move forward should be on an evidential basis that is tested, analysed and brought forward before we take any form of action. That is a good rule of thumb for any legislation—to ensure that it is strongly evidence based. Without that, we will simply create something that, as well as inhumane, will be totally ineffective.

I support the amendments in this group and look forward to the response of the Minister.

My Lords, I am a member of the Joint Committee on Human Rights. The report, as others have mentioned, came out early today, and many noble Lords will not yet have had the opportunity to read it. Evidence was taken from many people who had in-depth experience and who were experts in these different fields.

On modern-day slavery, we heard from the former anti-slavery commissioner, Professor Dame Sara Thornton, who, as noble Lords know, had been a very senior police officer and the lead police officer in the area of Oxfordshire. She made it very clear that she was horrified at the implications of the Bill, saying:

“It basically denies those who are trafficked to this country and arrive irregularly any modern slavery protections … It will be the victims who are punished, not those who are trafficking them”.

She says that as someone with huge experience. While we do not have a modern-day slavery commissioner at the moment, she is our last one, so her voice of experience should be heard and appreciated by this House.

We also heard from the Salvation Army, which the Committee will know is, again, the lead organisation dealing with modern-day slavery. Similarly, in its testimony to us, it said that

“removing people … will deliver vulnerable people back into the hands of the criminal gangs who have exploited them. This does nothing to break the cycle of exploitation”.

We really have to listen to that. I know that there are people who do not believe in expertise, but we have to listen to those with real expertise. I agree that this whole set of recommendations in the Bill is unacceptable, inhumane and unworkable.

The noble Lord, Lord Weir, suggested that we are being cynical if we think that this is performance politics. I am afraid that that is the view held by noble Lords all around this Committee, not just on the Opposition Benches. There are many Members on the Conservative Benches who know that the Bill is really the last shout of a failing Government. One said to me that it was the last card in the pack. Just think about what that means: that, when you are foundering, you turn to immigration and make a dog-whistle piece of legislation in the ugliest of ways.

My Lords, I will speak in support of Amendment 86 in particular, but I fully endorse other efforts to preserve protections for victims of modern slavery.

As I said at Second Reading, and as many noble Lords have warned, the provision in the Bill to remove modern slavery protections from migrants targets the very people most at risk of being trafficked. It would reduce the number of people coming forward with evidence and make prosecutions harder. My noble friend the Minister reaffirmed then the Government’s commitment to tackling the horrendous crime of modem slavery and to supporting victims, but I am afraid that the Bill still falls short.

There are strong similarities to cases of sexual and gender-based violence. We know that survivors’ testimony is crucial for accountability, but, without proper support and good systems in place, survivors are not, and do not feel, able to give evidence. The Government say that, where absolutely necessary and where they are co-operating with the police, victims will be able to stay in the United Kingdom while their case proceeds, but I fear that this sets the bar way too high. By the time it becomes apparent that a survivor’s evidence is necessary, it will often be too late. Survivors need the time and space to process what they have been through and to prepare themselves for coming forward with evidence, speaking about what they have experienced and going through the justice system. It can be an intense and daunting process which requires determination from the survivor and engagement and support from prosecutors. That is much harder to deliver remotely and why a recovery period is so crucial. It allows the time to reflect, to receive support and to rebuild trust, which may have been shattered by the experience of being trafficked, but without which they cannot work with the police or prosecutors.

There are parallels with the situation of migrant victims of domestic abuse. We have ample evidence that the fear or threat of deportation is used by abusers to control their victims and that it prevents victims from seeking help or escaping an abusive situation. Similarly, if survivors of modern slavery and human trafficking believe that reporting the crime that they have experienced will mean immediate deportation, trafficked persons are far less likely to come forward in the first place. The net result of that might end up being more people suffering and less control over migration.

The support that survivors of trafficking are able to receive during a recovery period can also reduce their risk of being trafficked in future. Trafficked persons are often highly vulnerable. Returning them to their home country without support may not solve the problem and risks putting them back into the cycle and seeing them trafficked again. A recovery period can be crucial to ending dependency, allowing survivors to rebuild their lives—that, in itself, is a blow to the human traffickers’ model.

I really hope that my noble friends in government will feel able to look again at this. I do not think that removing the protection against modern slavery will have the impact for which they hope; I fear that it will make the situation worse rather than better. If we want to prevent dangerous illegal migration, we need to tackle the traffickers who facilitate it. Targeting their victims will only make that harder. By ensuring the recovery period, Amendment 86 would allow survivors the space and cover to receive the support they need and, in doing so, would make successful prosecutions more likely and escape from modern slavery easier. I hope my noble friend the Minister will be able to support it.

My Lords, I support my noble friend Lord Randall’s Amendment 86, to which I am delighted to have added my name. I also support other amendments in this group. I draw attention to my entry in the Register of Members’ Interests as a member of RAMP. I debated whether to add my comments to this already extended debate, but it is important that the record clearly demonstrate that voices on all sides of the House have raised their concerns about this clause.

This nation has a proud history of ending the evils of the slave trade, and on multiple occasions the Government have recognised the importance of building on this history. My noble friend the Minister used the standard Home Office line to take when he said:

“The UK has led the world in protecting victims of modern slavery and we will continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers”.

I agree that the UK has led the world in bringing forward legislation that protects victims of modern slavery, and some of us were deeply involved in bringing it about, but I simply cannot see how the Bill enables us to continue to identify and support those who have suffered intolerable abuse at the hands of criminals and traffickers.

As it stands, the Bill will prevent the care of victims of slavery and in so doing will damage our reputation. When I was a Conservative special adviser, we talked about the modern slavery legislation as one of our proudest achievements, but clauses in this Bill, coming fresh on the heels of the Nationality and Borders Act, are systematically dismantling that achievement, as we have already heard.

Through the Illegal Migration Bill two things are happening regarding slavery. First, support is removed for those who have been exploited and enslaved if they arrive in the UK via irregular routes. Secondly, the Bill makes it much harder to catch and stop the traffickers and slave-drivers, who are the real villains. Amendment 86 would rectify those two serious moral and practical issues in the Bill.

First, if someone is trafficked to the UK via irregular routes and is enslaved in the UK, the provisions in the Bill will prevent them being referred to the national referral mechanism or having the protection of the Modern Slavery Act. This covers most of the men, women and children who are trafficked into slavery in the UK. Amendment 86 would ensure that those who have been exploited and abused while in the UK, whether they are a UK citizen or not, receive the care and support they need. It would level the playing field by saying that, regardless of your mode of entry, if you are a victim of slavery you cannot simply be detained and removed.

Secondly, the amendment would address the misguided nature of the legislation. As we have heard, victims of slavery hold the key to the prosecution of perpetrators. This is vital to remember. As drafted, the Bill will prevent victims coming forward to give evidence because of the fear of being detained and removed.

Evidence is already starting to emerge from UK police forces that the erosion of victim protection from the Nationality and Borders Act is severely hampering the prosecution of perpetrators. If we leave this Bill as it stands, it will hamper prosecutions even further. Surely, its whole purpose is to stop these illegal acts. Amendment 86 creates space for victims of slavery to come forward.

The question that needs to be asked is why the Government would not accept this amendment. My noble friend the Minister will make the argument that the national referral mechanism is being widely abused by those crossing the channel in small boats and therefore access to the mechanism must be removed, but, respectfully, this is simply not the case. First, as we have heard, no one can refer themselves to the NRM—only official first responders can—and 49% of referrals in 2022 were made by government agencies. Gaining the protections granted through the NRM requires rigorous process. Secondly, only 6% of small boats arrivals in 2022 were referred to the NRM, as my noble friend Lord Randall has already mentioned.

I encourage the Government seriously to consider accepting Amendment 86. Not doing so will ensure that more people stay enslaved and exploited as a result of this Bill, because it will give the slave drivers and traffickers another weapon to hold people in slavery and exploitation. We need to hear Theresa May when she says that, on this issue, this Bill is

“bad for victims, bad for the prosecution of slave drivers and bad for the reputation of the United Kingdom.”—[Official Report, Commons, 26/4/23; col. 810.]

I urge the Government to adopt this amendment for the sake of our moral character, our international reputation and, most importantly, the victims of modern slavery in the UK. But if that does not motivate them, I urge them to accept it for the sake of their own stated objectives.

My Lords, allow me to add a few words about law enforcement. It seems to me that the problems the Bill intends to confront would best be solved by international co-operation, including international rules of law, but also by firm domestic law enforcement against the traffickers. That is a critical component.

It is very difficult for me to conceive of successful cases against traffickers without the co-operation of their victims. Persuading victims of crime in some categories of crime, including human trafficking, to give evidence against their tormentors is difficult, complex, sensitive, time-consuming work for the most obvious of reasons—the victims themselves feel under threat. This Bill gives those co-operating witnesses, who are showing enormous courage, no encouragement, no succour, no assistance, no help whatever. It will undoubtedly, in my judgment, make successful cases against traffickers less likely. This Bill is not simply anti-asylum but anti-prosecution.

The strongest argument, apart from the legal and moral arguments, is the practical one that has just been made. How do you persuade victims of slavery to come forward and assist in a case if, when they do so, they are declared inadmissible and dispatched abroad? It is simply counterproductive and destructive of the whole basis of the Modern Slavery Act.

I would like to start as the noble Lord, Lord Coaker, did, by pointing to the Government’s announcement last week—there seemed to be some other things going on at the end of last week. It would have been better to make the announcement in this House, but it slipped out that the two-tier system for handling asylum introduced by the Nationality and Borders Act was being abandoned. We spent weeks pointing out that it would not work. However, better the sinner that repenteth, and I warmly welcome the Government’s decision to drop it. I think they were absolutely right.

The asylum queue now, at about 178,000, is 20,000 longer than when, with objections, we passed the Nationality and Borders Bill. A principal reason for it getting longer is the two-tier system that was introduced, which is administratively unworkable. I warmly welcome the Government changing their mind, but it is a shame that it remains a stain on our statute book—a clear breach of the UN refugee convention, as the UNHCR confirmed at the time. Of course, it was a smaller breach of the refugee convention than this Bill, as the UNHCR has confirmed.

If I could have the Minister’s attention, I ask him to at some stage correct the record on the UNHCR’s role in these matters. In the first day in Committee, asked about its views on the Bill, he acknowledged:

“Some parts of the UNHCR have views on the Government’s position”

but said that the UN

“is not charged with the interpretation of the refugee convention”.—[Official Report, 24/5/23; col. 968.]

He might want to reconsider that. Under Article 35 of the convention, the duty is laid on the UNHCR of supervising the application of the convention and all parties to it have an obligation to co-operate with the UNHCR. As for “some parts” of the UNHCR commenting on the Government’s position, it has published and formally conveyed to the Government its formal position and legal observations on the Bill in the exercise of its responsibilities under Article 35. That is what it is required to do and what it has done. To suggest that criticisms of the Bill come from “some parts” of the UNHCR but are not its institutional view is wrong.

I come back to the modern slavery amendments. Mine was taken in the middle of the night, unbeknown to me as I rashly went home shortly before midnight. One of the charms of being a Cross-Bencher is that you never have the faintest idea of what is going on. The usual channels rarely have a tributary around these parts. My amendment was crucial, but it would be out of order for me to speak to it now. However, I can praise the Joint Committee on Human Rights for its magisterial report that came out over the weekend. Its conclusion on the clauses we are looking at is exactly the same as that which the noble Baroness, Lady Meacher, came to:

“It is, in our view, wholly inappropriate to categorise victims as a threat to public order by the mere fact that they arrived … through an irregular route”.

It says—correctly—that Clause 21 breaches Article 10 of the convention against trafficking and formally recommends that it should be removed from the Bill. I agree. It seems to me that that is what we should do, so I shall support the noble Baroness, Lady Hamwee, when we consider whether it should stand part.

My general view is in line with that of the noble Lord, Lord Cormack: I do not like this debate, for a number of reasons, partly because the best debates have two sides to them. This is tennis with nobody on the other side of the net and I am fed up with it.

My Lords, it is a pleasure to follow the noble Lord, Lord Kerr. I agree with him about that form of tennis and, seriously, about both the timing of the Government’s announcement of their plans for the Nationality and Borders Act and the fact that this is a U-turn that needs to be applauded. If the Government point themselves in the right direction, people should not jump up and down and point a finger and go “U-turn, U turn”. It is better than not U-turning. We have heard many powerful speeches in this debate, but I think the Committee will join me in commending all Members on the Government Benches who have shown both courage and compassion in getting up and opposing the Government’s plans for victims of modern slavery.

I agree with both the noble Lord, Lord Cormack, that the whole Bill should go, and the noble Baroness, Lady Hamwee, that all these clauses should go, but I actually signed a number of the amendments in the name of the noble Lord, Lord Coaker—a package which has helped us interrogate what the Government are now doing and the impact that it will have. In that light, I shall ask the Minister three specific questions that in some ways draw on what has been said before, but also go in slightly different directions.

My first question concerns the situation if the provisions under the Bill, as the Government plan, essentially end the protection for victims of modern slavery. Imagine a police officer now, crouching down beside, say, a frightened young man who has been forced to work in an illegal marijuana farm, behind locked doors where the whole thing could have caught fire and killed him at any moment; a young woman forced by threats to stay in a nail bar; a young man who has been trapped for months in horrendous conditions at a hand car wash; or indeed a young woman who has been forced into sexual exploitation. Currently that police officer can crouch down beside them and say, “It’s all right, you’re safe now”. What does the Minister think a police officer would be able to say if the Bill goes through as drafted? What could that police officer say to the victim of modern slavery? I ask the Committee to think how the police officer might feel about being in that situation.

My second question concerns one of the things that that police officer would probably do, perhaps not immediately but soon after that. They would start to say, “Can you tell me what is happening here? Please, tell me what is happening. A bit down the track, would you think about testifying against the person who put you into this situation?” If we think about even the intelligence gathering, let alone the prosecution, what would the passing of this law do?

My third and final question is: have the Government really considered this? Let us think about the kinds of illegal operations I referred to—illegal enterprises that are a stain on our communities, that compete with and thrust out honest, decent businesses, that are a rotten core in the community and have all sorts of nasty effects. What will allowing those operations to continue, which is what the Government’s plans would do, do to our communities?

My Lords, I declare my interests with RAMP and Reset and, like the noble Lord, Lord Coaker, did at the outset of the debate, I hope that will stand for the other times I speak later on different groups.

I support all the amendments, but I am speaking in support of the proposal of the noble Baroness, Lady Hamwee, that Clauses 21, 25, 26 and 28 be completely removed. This is supported by my noble friend the right reverend Prelate the Bishop of Bristol, who we heard earlier is unfortunately unable to be here today. Bishops across England have had the privilege of working very closely with the large sector of faith-based charities and projects that work with victims of slavery. We have heard a lot about the Salvation Army, but I want to highlight the Clewer Initiative, which is our own project raising awareness and helping support victims. The feedback that has been coming from the Salvation Army, from Clewer and from other groups in relation to the modern slavery provisions of the Bill ranges from trepidation to outright horror.

Rather euphemistically, the Explanatory Notes refer to what is proposed in this and the following clauses as “a significant step”. I suggest that the complete disapplication of all support, replaced with detention and removal, is drastic in the extreme. I cannot see how such a step could be justifiable, but for it even to be defensible would require the most robust and extensive level of proof of its necessity. I do not think that has been shown.

First, on the question of abuse, I am not naive enough to think that there is no abuse or attempted abuse in the current system; I hope the Minister will not suggest that any of us opposing this measure thinks that. We know from our own Church-based projects that there are some such cases, but there are two clear issues. The first is whether it can possibly be justifiable to switch off all support and make subject to removal to Rwanda, for example, a cohort of many entirely legitimate victims on the basis of abuse by some. To me, this seems to be not so much throwing the baby out with the bathwater as demolishing the entire bathroom.

Secondly, even if it were justifiable in principle, is the level of abuse so apparent as to warrant such drastic measures? We have heard Ministers say that the number of referrals, including from small boat arrivals, has dramatically increased, but do increasing numbers necessarily entail evidence that there is abuse? For several years the Church of England’s Clewer Initiative has devoted significant energy and time to raising awareness and helping civil society to identify potential victims. The same is true of many other charities over the past few years. First responders, including in the police and border control, have been greatly better trained and equipped to recognise signs of potential trafficking and modern slavery. We wanted to see referrals increase; that is evidence of a job well done, not necessarily of abuse.

In addition, we know that estimates from the Centre for Social Justice, the Global Slavery Index and many others put the estimated number of victims of slavery in the UK dramatically higher than the numbers ever identified to the NRM. We are still a long way from referrals matching the estimated number of victims. Therefore, surely even a dramatic increase in referrals needs a lot more analysis before it can be dismissed as evidence of abuse of the system. I have not seen the Government produce any such evidence.

My understanding is that the success rate on initial decisions remains very high—88% of reasonable grounds decisions were positive—and that the overwhelming majority of those who receive a reasonable grounds decision, 89% in 2022, ultimately go on to receive a conclusive grounds decision, albeit with significant delays in the processing of such claims by the Home Office. So, unless the Minister has other evidence, it appears that, after an extensive process by the Home Office, the overwhelming majority are found to have a genuine case.

The key limiting factor in assessing and identifying genuine victims and abusers appears to be not the widespread abuse of the system but the processing of evidence in a timely fashion. This is an expensive and damaging operational failure, but not one that requires any sort of legislative solution. It is cruel in the extreme to punish victims for the delays while eliminating their support.

Finally, in laying out my opposition to Clause 21, I query the impact of what happens to those legitimate victims of modern slavery who are set to be removed. I ask the Minister: what happens to those who are set to be removed? I have seen government justifications of this policy amount to saying, “We will not abandon victims, because they will be able to get support in their home countries or, if they are moved there, in Rwanda”. That is already an abrogation of responsibility. People are being trafficked here because of our labour market, our societal demands and our enforcement failures. It is an immediate ethical problem that instead of doing our bit to support people who have been victimised in our country, we instead expect the full burden of helping them and rebuilding their lives to be done by someone else.

More broadly, if we take at face value the claim that legitimate victims will not be disadvantaged by removal to Rwanda or another country, can the Government provide some information on what they will do to meet that unlikely sounding guarantee? The MoU on the Rwanda scheme is noticeably vague on providing any details of how and what support Rwanda can give to victims of modern slavery. It is worth noting that the Global Slavery Index already ranks Rwanda as having 4.3 victims of modern slavery per 1,000 of population, which puts it 28th out of 50 in Africa. That is more than twice the prevalence of the equivalent figure in the United Kingdom.

Please be clear: this is not a criticism of Rwanda, which is a country I love deeply and visit regularly. It is to suggest that Rwanda seems to have enough challenges, with far higher rates of slavery than we suffer here, without us potentially adding several thousand more to its mix. How can it possibly be the case that legitimate victims of slavery sent to Rwanda will meet the same level of specialist support and care that they would have received here? That simply is not plausible as a claim.

Nevertheless, I hope the Minister will at least be able to tell us what the UK will do to ensure that removed potential victims receive the care and support to which they are entitled, what checks and accountability will be in place to deliver that and what steps the Government will take if it emerges that victims are not in fact receiving the necessary specialist support, whether in Rwanda or anywhere else. Until that time, and for all the reasons given, I find it very difficult to see why Clause 21 can possibly continue to be part of the Bill.

I add a brief note on Clauses 25 and 26. A sunset clause is not the worst idea, but I note that what is included here is less a straight sunset clause and more a mechanism in law that protections for victims of trafficking and abuse can be switched on and off at the whim of the Government of the day and without objective and clear criteria for so doing. There is no clarity about what an end to exceptional circumstances might be or any objective criteria or accountability to which it would seem the Secretary of State can be held in making these decisions. No other form of victim support could or should be so arbitrarily switched on and off, and it is not a precedent to be welcomed. We have designed the existing modern slavery protections because that is a matter of justice and morality, and because victims deserve to be supported as victims. It should never be a matter of administrative convenience or at the whim of the Secretary of State of the day whether those protections should or should not apply. Accordingly, I find it hard on principle to see why Clauses 25 and 26 can possibly stand in the Bill.

My Lords, I support Amendments 86 and 90. No one wants to see abuse of modern slavery legislation or false claims from those arriving on small boats, but I regret that in the Bill currently, all protection for genuine victims of modern slavery has been removed. These amendments are focused just on those who have been unlawfully exploited here in the UK; they do not allow people arriving to claim it. Any abuse of the national referral mechanism should be addressed but, as we have heard, no data currently exists on this, so I would be grateful if my noble friend the Minister could share any information on the scale of this issue. These amendments provide the additional protection for victims of modern slavery that the Immigration Minister is looking at, and I hope my noble friend will carefully consider them.

My Lords, as was pointed out by the noble Lord, Lord Kerr of Kinlochard, not one speaker has supported the Government’s position on these clauses. The only person who is going to speak in favour of the Government is the Minister. Surely the Government must realise what the Committee’s view is of these provisions.

In the debate on the Nationality and Borders Bill, we discussed the importance of a period of recovery and reflection for victims of modern slavery. For example, those traumatised often do not have a clear recollection of what has happened to them until after they recover. They cannot co-operate with the police until they have had a period of recovery; it is counterproductive to remove that provision.

In the remarks made by my noble friend Lord Purvis of Tweed on a previous group, we heard a clinical dismantling of the government case that the protections afforded by the Modern Slavery Act are being abused. It does not stand up to scrutiny. In previous groups, we also discussed how unlikely it was that victims would support a prosecution if they were removed from the UK. As the noble Lord, Lord Morrow, said, what will the impact of these measures be on tackling modern slavery?

We all want to see the prosecution of criminals involved in the exploitation of vulnerable people, whether they are children or vulnerable people trafficked into this country, but what assessment have the Government made of the impact on the likelihood of such prosecutions? How can all victims of modern slavery who arrive in the UK through what the Bill calls irregular routes be considered a threat to public order? We know how children can be groomed and coerced into committing offences—as so many children with British citizenship have been in connection with county lines drug dealing, for example—yet the Government want to disqualify from protection non-British children who could be in a similar position.

As the noble Lord, Lord Coaker, said, Clauses 21 to 28 remove all protections from victims of modern slavery who arrive irregularly, making it more difficult to prosecute the criminals exploiting vulnerable migrants, including children. If the noble Lord, Lord Macdonald of River Glaven, with all of his experience as a former Director of Public Prosecutions, is telling us that this will have a devastating impact on the police’s ability to tackle these issues, the Government should surely be paying attention. The noble Lord, Lord Carlile of Berriew, outlining the amendments of the noble Lord, Lord Alton of Liverpool, talked about witnesses of modern slavery not feeling safe in giving evidence against offenders.

The other important question raised by these amendments is when a new Independent Anti-Slavery Commissioner will be appointed. Will it be at the same time as the Government respond to the Joint Committee on Human Rights’ report on the Bill? They say that will be in August, when the danger of the Bill being criticised by such an independent commissioner will have gone.

What assessment has been made of how safe the countries in Schedule 1 are for victims of modern slavery? As the right reverend Prelate the Bishop of Durham said, there is a bigger problem with modern slavery in Rwanda than in this country, yet this Government are proposing to send victims of modern slavery to that country.

My noble friend Lady Hamwee drew attention to the excellent report of the Joint Committee on Human Rights, published on the weekend. It entirely supports the position taken by these Benches in opposing all clauses in the Bill, including those in this group. Clauses 21, 25, 26 and 28 undermine the Modern Slavery Act without justification and should not stand part of the Bill for the reasons powerfully explained by noble Lords on all sides of this Committee, including in the very powerful contributions of the noble Lords, Lord Randall of Uxbridge and Lord Cormack. I pay tribute to the long and continued dedication of the noble Lord, Lord McColl of Dulwich, in this area.

The amendments in this group, while commendable, would not remove the dangers to the victims of modern slavery proposed by this Bill. That is why these clauses should not stand part.

My Lords, as I have repeatedly set out, we need bold and radical action to tackle the dangerous, illegal and unnecessary crossings in the channel. We will deter such crossings only if those who would seek to make them know that they will not be able to build a life in the UK. Instead, they would be liable to be detained and swiftly removed. To achieve this, it is necessary not only to make asylum and human rights claims inadmissible but to withhold modern slavery protections from those who meet the conditions in Clause 2.

As was set out earlier in response to amendments tabled by the noble Lord, Lord Hunt of Kings Heath, the national referral mechanism presents clear opportunities for abuse by those who would seek to frustrate removal. We have heard many statistics in this debate, and, of course, when the noble Lord, Lord Coaker, and others quote from official statistics I do not dispute the figures, but let me add some more which have not been mentioned. It is worth repeating the statistics which demonstrate the sharp rise in NRM claims, where someone is detained pending removal. The NRM referral rate for people arriving in the UK on small boats and being detained for return has risen from 6% of detentions in 2019 to 73% in 2021. In contrast, where people were not detained for return, less than 3% of people who arrived in 2021 were referred to the NRM within three months of entering the UK. I suggest that these figures cannot be ignored.

Clause 21 is firmly based on the provisions of the Council of Europe Convention on Action against Trafficking in Human Beings, or ECAT. Article 13(3) expressly provides that states are not bound to observe the minimum 30-day reflection and recovery period if

“grounds of public order prevent it”.

The noble Lord, Lord Carlile, and the noble Baroness, Lady Ritchie, omitted to mention this provision when they stated the other provisions of ECAT.

The measures in the Bill are intended to deal with the immediate and pressing broader public order risk arising from the exceptional circumstances relating to illegal entry into the UK, including the pressure on public services and the threat to life arising from the dangerous channel crossings. We recognise the exceptional nature of these provisions. That is why Clause 25 includes a sunsetting provision such that these provisions will cease to operate if not extended two years after commencement.

The Minister is making a very bold proposition when he says that Article 30 gives the Government an excuse to ignore ECAT. Can he give us examples of public order events which justify that bold, and in my view unjustifiable, statement?

It was Article 13(3). The events which the Government say warrant the grounds of public order which prevent observance of the 30-day reflection and recovery period are the conditions which I identified earlier in relation to the pressure placed on public services and the threat to life arising from the dangerous channel crossings.

I do not propose to address all the amendments individually, suffice to say that where the Secretary of State is satisfied that an individual is participating in an investigation or criminal proceedings relating to their alleged exploitation, and considers it necessary for them to be present in the UK to provide that co-operation, and considers that their co-operation outweighs any significant risk of harm to the public they may pose, that individual will be exempt from the disqualification. This allows the Government to protect against the threat to public order arising from the current circumstances relating to illegal entry into the UK, while also ensuring that investigations can be progressed to bring perpetrators to justice. By one means or another, the amendments seek to negate, or at least roll back, the intended effect of the provisions in Clause 21 and subsequent clauses.

What does my noble friend say to the statement that what is being done here is in effect dismantling a world-renowned piece of legislation—the Modern Slavery Act—passed only eight years ago?

I am afraid I do not agree with my noble friend. These provisions are strictly limited to deal with the present emergency that we face.

As with the amendments to the other parts of the Bill, if we add exceptions, exclusions and exemptions, we will significantly undermine the efficacy of the Bill overall and the scheme will be undermined, making it unworkable. The Bill will then not deliver on its stated purpose.

Having said that, I want to touch on some of the specific amendments. However, before I do so, I will respond to the request of the noble Lord, Lord Coaker, to give an update on the economic impact assessment. At the risk of repeating myself, it remains the Government’s intention to publish the document in due course. However, I undertake to provide an update to the House before the first day of Report.

In relation to Amendment 86, put forward by my noble friend Lord Randall, I point out that for the cohort caught by the Bill—particularly those apprehended in Kent, having crossed the channel in a small boat—few will be victims of exploitation in the UK. It is important to remember that victims of modern slavery who are British citizens, or those who are in the country illegally having overstayed their visa, will not be caught by the public order disqualification. Similarly, unaccompanied children who are not to be removed under the power conferred in Clause 3 will continue to benefit from NRM support—a point raised by the noble Lord, Lord Coaker. As for others who are to be removed pursuant to the duty in Clause 2, their relocation to a safe third country will remove them from their exploiters.

I remind the Committee that our partnership agreement with Rwanda includes express provision for the Rwandan Government to take all necessary steps to ensure that any special needs that may arise as a result of a relocated person being a victim of modern slavery are accommodated. This should not be downplayed, as the right reverend Prelate the Bishop of Durham suggested. I can also assure my noble friend that we will continue to engage with the police and the CPS as we prepare the statutory guidance provided for in Clause 21(6). I reiterate what my right honourable friend the Immigration Minister said at the Commons Report stage:

“we will look at what more we can do to provide additional protections to individuals who have suffered exploitation in the UK”.—[Official Report, Commons, 26/4/23; col. 781.]

That remains the Government’s position.

I turn to Amendment 88. It is the unfortunate reality that criminal gangs are good at adapting to changes in the law to continue their nefarious activities. It is therefore not unreasonable to assume that such an amendment may result in a change of methodology by the people traffickers, either by targeting vulnerable women to a greater extent or by encouraging illegal migrants to make false claims to seek removal under the Bill.

Amendment 90, spoken to by my noble friends Lord Randall and Lord McColl, relates to the presumption that it is not necessary for a person to remain in the UK to co-operate with an investigation. It is one of the enduring legacies of the Covid pandemic that much more can now be done remotely. We all see this in the changes to the way we work. Even now, some Members of your Lordships’ House take part in debates by videolink. It is simply no longer the case that a victim of crime needs to be in face-to-face contact with police or others to assist with an investigation. There is no reason why, in the majority of cases, such co-operation cannot continue by email, messaging and videoconferencing. The presumption in Clause 21(5) is therefore perfectly proper.

We have provided statutory guidance to support decision-making by caseworkers when determining if there are compelling circumstances why the presumption should be set aside in any particular case. We are considering carefully the recommendation of the Delegated Powers Committee that such guidance should be subject to parliamentary scrutiny. Given this, I am not persuaded that the substitution of a regulation-making power would make a material difference.

Sorry—it has taken me a little while to contemplate but is the Minister effectively saying that the use of video and email and so on is as good as in-person interviewing and in-person interventions? I really think that needs to be rethought.

As the right reverend Prelate will appreciate, it is the experience of litigators that the use of remote facilities has become very commonplace.

With respect to the Minister, that is not quite what I was asking. Absolutely, it is happening, but is it as effective?

That all depends on the facts of each particular case, As I say, that is what will be considered in accordance with the guidance that I have just described.

Where the Home Secretary concludes it is necessary for someone to remain in the UK for the purpose of co-operating with a law enforcement agency, the continued need will be kept under review. Section 65 of the Nationality and Borders Act already provides for the grant of limited leave to remain in such cases. The length of such leave should be considered on a case-by-case basis. As such, it would not be appropriate to provide for an arbitrary minimum period of 30 months, as Amendment 89 seeks to do.

Would the Minister accept that, given the extreme sensitivity of persuading victims in these categories of offences to co-operate in the first place, and the almost full-time pastoral care that they have to be given in the approach to a trial, doing all of this from the countries to which these people are likely to be sent is going to be inordinately difficult?

I am afraid I do not accept that, because of the advances in technology that I have already described. That is the position in respect of Amendment 89.

Does the Minister not understand that for a victim of crime who is in effect persecuted by the Government by being sent to another country, that is going to have an impact on their likelihood of co-operating with the Government in order to prosecute traffickers?

One would hope that a victim of trafficking would want to facilitate the prosecution of their traffickers. It is clear, for the reasons I have already set out, that we cannot afford to create any loopholes or exclusions from the scheme.

Amendment 92 seeks to limit the countries to which a person can be safely removed. There is no one international standard to assess a country’s ability to provide support for victims, so we should not be tied to removing potential victims of modern slavery only to signatory countries of the ECHR or ECAT. In addition, this amendment would have the perverse effect of preventing the return of potential victims to their home country where it was safe to do so; I am sure the noble Lord would not want such a block to apply. As I have indicated, our partnership with Rwanda has in place provisions for supporting survivor recovery needs.

Since the objective of the Bill is to address the immediate and pressing issue of illegal entry, particularly via small boats, there cannot be any delay in commencement. Amendments 85C, 92B, 145 and 146 all seek, in different ways, to put a block on commencement. We need to stop the boats now, not in months and years to come while we prepare this or that report. The risk to life and pressure on public services mean we cannot delay implementation of the modern slavery provisions in this Bill. I can, however, assure my noble friend Lord McColl and other noble Lords that we are in the process of appointing a new Independent Anti-Slavery Commissioner. The advertisement closed on 23 March, and we are mindful of the need to make an appointment as quickly as possible, while ensuring we take the necessary steps to recruit the best person for the role. Once they are appointed, I am sure the new commissioner will take a close interest in the operation of the Act and will report on its impact on victims of modern slavery as they see fit.

The provisions in Clause 21 are a necessary and core part of this Bill if it is to achieve its purpose of deterring illegal entry into the UK. We recognise the exceptional nature of these provisions, but the way to acknowledge that is to include a sunset clause in the Bill, as we have done. This does not put barriers in the way of the successful implementation of the Bill. The sooner we can stop the boats, the sooner we can review the necessity of these provisions. On that basis, I commend Clause 21 to the Committee and invite the noble Lord to withdraw his amendment.

Before the Minister sits down, will he do the usual thing, which is to answer reasonable questions that were asked of him, particularly the question I asked about the due diligence carried out in preparation of Schedule 1 and how advice was obtained as to whether it was right to put almost entirely unqualified entries into that schedule?

I had in mind the sage words of the noble Baroness, Lady Smith, in the House last week. As the noble Lord will recall, the origins of Schedule 1 were canvassed at length by the Committee in the previous group. The countries listed in the schedule are an amalgam of previous pieces of legislation where the safety of those countries has been established in that legislation.

My Lords, earlier when referring to ECAT provisions in relation to the amendments I brought forward and the comments made by the noble Lord, Lord Carlile, the Minister seemed to say, and I would argue, that applying Article 13(3) of ECAT to a large group of people would go against the spirit and character of ECAT. I think it was never intended to apply to a group but to individuals and that the breadth of application coming from the Minister is a bit of stretch, so I ask him to consider that matter again and maybe come back on Report with an amendment similar to the ones that I proposed.

Obviously I hear what the noble Baroness says. Clearly the public order disqualification is capable of being applied in the way that the Government suggest it is here, and of course it is also a matter of individual application—but no doubt those in the department will read what the noble Baroness said. For all those reasons I invite the noble Lord to withdraw the amendment.

I wonder whether my noble friend would consider my invitation. If I can arrange it, will he come with me to meet a victim of modern slavery, so he can actually see the people we are talking about who would be potentially affected by this?

Well, I would be very happy to meet the noble Lord, with or without such a victim, to discuss his amendment. I would be happy to do that.

My Lords, I asked the Minister three questions and, not to my great surprise, I did not get answers to any of them. To focus on one of them: will the famous impact assessment include consideration of the damage to UK communities—or “potential damage”, if the Minister will not acknowledge the damage—done by the failure to be able to prosecute illegal enterprises engaging in modern slavery in the UK?

My Lords, rather than make a lot of different remarks, let me just say this: in my honest opinion, this is no way to do a Bill, particularly one as contentious as this. Numerous questions have been put by Members of your Lordships’ Committee, which the Minister has failed to address. How can we do our job if the Minister fails to engage with what is being said?

For the Government to turn around and say, in light of what the noble Lord, Lord Carlile, and many other noble Lords have said, that it may be that the impact assessment is available on the first day of Report, is totally and utterly unacceptable. It is simply not good enough for all of us who are considering amendments. Rather than dealing with many of the points put forward, I will say that it is clear that there will be a considerable number—to say the least—of amendments on Report. How can we judge those amendments—how they should be phrased and determined, and which ones are more important—if we have no impact assessment? It is frankly unbelievable to be left in that situation and it is no way to do a Bill.

I read—I did read much of it; my noble friend Lady Kennedy will be pleased—an excellent report by the JCHR. I am going to quote from the summary on the “Role of the JCHR”, because I could not believe it:

“We would have liked the opportunity to have questioned the Home Secretary about this. We invited the Home Secretary to give evidence on the Bill and she was unable to do so”.

This is a flagship Government Bill dealing with something which, as we have just been told, allows derogation from Article 13 of the European convention because the continued small boat migration is a threat to public order. Yet the Home Secretary cannot be bothered to go to the JCHR.

The report goes on to say:

“We also wrote to the Home Secretary with detailed legal questions on the Bill in order to inform our report and requested a response by 24 April 2023. The Home Secretary belatedly responded to us by letter dated 2 June 2023. We therefore did not receive her response before the Bill commenced Committee Stage in the House of Lords. The Home Secretary did not give any explanation for her undue delay in responding to our letter and many of the questions remain unanswered”.

To pick up the point made by the noble Lord, Lord Cormack, the report then says:

“We consider both the delay and her lack of explanation for the delay to be discourteous not just to this Committee but to both Houses of Parliament”.

I could not agree more with that.

We are supposed to be the revising Chamber. The Government lecture us and will say that the elected Government of the day have a right to get their legislation through. Many of us, including me, try to protect that convention, but it is based on a two-way process. That two-way process involves the Government giving all of us the proper information to make our decisions. It depends on Ministers answering questions; it depends on impact assessments being made available so that we can make our judgments. It does not depend on Ministers saying that they think a noble Lord is wrong; that somebody does not get it; somebody is misreading the information; somebody does not understand the statistics. It depends on detailed, logical argument and debate.

I will tell you what that leads to: it leads to better policy. It means that you do not have the ridiculous situation of the Government abandoning a key part of a Bill they only passed a few months ago by Written Statement a couple of days ago. That is where we will get to with this Bill if it is not properly considered. Even under the Government’s own terms it will not work. I say to the Minister that it is not good enough and he needs to reflect on what he is going to do about it.

Amendment 85 withdrawn.

Amendments 85A to 92ZA not moved.

Clause 21 agreed.

Amendment 92A

Moved by

92A: After Clause 21, insert the following new Clause—

“Early access to legal aid(1) After paragraph 32A (victims of slavery, servitude or forced or compulsory labour) of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 insert— “32B “(1) Civil legal services provided to an individual who is subject to removal to a third country under the Illegal Migration Act 2023, or who might reasonably suspect they are subject to removal under that Act, in relation to referral into the national referral mechanism and connected immigration advice and representation, where there is no other provision for this within the scope of legal aid.General exclusions(2) Sub-paragraph (1) is subject to the exclusions in Part 2 of this Schedule.Specific exclusions(3) The civil legal services described in sub-paragraph (1) do not include—(a) advocacy, or(b) attendance at an interview conducted by the competent authority under the national referral mechanism for the purposes of a reasonable grounds decision or a conclusive grounds decision.”(2) In regulation 11(9) of the Civil Legal Aid (Merits Criteria) Regulations 2013 (S.I. 2013/104) (qualifying for civil legal services: cases in which merits criteria do not apply), at end omit the full stop and insert—“(e) or, for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, in relation to any matter described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).”(3) In regulation 5(1) of the Civil Legal Aid (Financial Resources and Payment for Services) Regulations 2013 (S.I. 2013/480) (exceptions from requirement to make a determination in respect of an individual’s financial resources), after paragraph (r), omit the full stop and insert “and,(s) for an individual who is, or might reasonably suspect they are, subject to removal to a third country under the Illegal Migration Act 2023, civil legal services described in paragraph 32B of Part 1 of Schedule 1 to the Act (civil legal services provided to an individual in relation to referral into the national referral mechanism).””Member’s explanatory statement

This new clause would give individuals subject to, or who might reasonably suspect they are subject to, removal to a third country under this Act access to early specialist legal advice, which is not means- or merits-tested, allowing for informed consent to a trafficking referral. The intention is that potential victims of modern slavery or human trafficking in that position will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it. This expands the support available for advice on referral into the NRM, which is currently only available if you have a matter that falls within scope of certain types of legal aid.

My Lords, as was mentioned, the noble Lord, Lord Alton, is not able to be here today, but I join in the tributes paid by the noble Lord, Lord Carlile of Berriew, about his excellent work on the Bill. He very much regrets that he is not able to be here.

The noble Lord, Lord Coaker, has slipped out, but I felt the challenge “follow that”. I fully subscribe to the fantastic riposte that he gave to the Minister. I am afraid I will speak quite a few times today; that is how the cookie has crumbled for the parts of the Bill that I have got involved in—all my prizes are coming at once. I am afraid I do not apologise for that. In response to my noble friend Lord Newby last week, the Chief Whip complained about alleged repetition, including from these Benches. I may not be alone in having heard Dr Hannah White of the Institute for Government on the “Westminster Hour” on the radio last night. She said that, in the other place, the Bill had two days in Committee of the whole House—that is not an ideal process. She said that, normally, you would have expected two weeks in Committee in the past, under the normal processes—

I hear the noble Lord, Lord Deben, who knows those processes. They would take evidence and scrutinise line by line, rather like how we are doing now. The Bill did not get that scrutiny in the other place, so it falls to us. Indeed, Dr White said—I hope I do not paraphrase her wrongly—that the Commons are getting used to kicking the scrutiny down to our Chamber. It seems that the Government are trying to squeeze scrutiny out of us and to bully us into not raising issues here. It comes to something when we poor, aged people—perhaps I had better not go on—are the ones who have to stay until 4.15 in the morning because the Government are trying to bully us out of raising essential issues. These included arbitrary detention powers last week—nothing could be more historic in terms of the dangers of executive overreach. So we have to go on a bit, I am afraid.

Mention has already been made, in particular by the noble Lord, Lord Coaker, of the fact that one part of the Nationality and Borders Act has been ditched. I am not as high-minded as the noble Baroness, Lady Bennett, who said that we should welcome a government U-turn. I am afraid I will say, “We told you so!” We told the Government that it would create even more delay and bureaucracy, slow down the process of making asylum decisions and actually conflict with the Government’s pledge to clear this part of the asylum backlog. So perhaps we are occasionally worth listening to in this Chamber, if it falls to us to try to make all these detailed points.

Anyway, I now come to the point of this group, which is legal aid. The Government inserted Clause 54 into the Bill, but that only ensures that provision of civil legal services to a person in receipt of a removal notice is in the scope of legal aid. It does not confirm or secure access to free legal advice in relation to making an asylum or human rights claim, regardless of whether the individual has entered the national referral mechanism.

I will come to Clause 54 and my Amendment 120 but, first, I turn to Amendment 92A in the name of the noble Lord, Lord Alton, which flows very much from the debates in the previous group. It is crucial that those who may be victims of modern slavery and trafficking get legal aid, advice and representation. The point was made in the last group by several noble Lords but, in particular, by the noble Lord, Lord Macdonald, from the perspective of having been Director of Public Prosecutions. By drastically reducing the likelihood that victims will come forward, assist investigations and act as witnesses in criminal prosecutions, the Bill entirely undermines a criminal justice response to this grievous crime of trafficking and modern slavery. This is in a situation where, to date, the UK’s record on holding traffickers to account for their crimes and securing justice and remedy for survivors has been woeful. In 2020, just 89 defendants were proceeded against under the Modern Slavery Act, with just 10 convictions that year.

This Bill is entirely lacking in measures to improve the prosecution and conviction of traffickers or securing remedy for victims. Indeed, it goes backwards, as was said with great passion during the last group. The point of Amendment 92A is to give crucial, specialist legal advice and representation to victims and survivors of trafficking and modern slavery. They will have experienced a breach of their rights under Article 4 of the European Convention on Human Rights and they have entitlements under the Council of Europe Convention on Action against Trafficking in Human Beings—ECAT. That convention includes access to advice. Early legal advice can help individuals understand what protection may be available to them under the NRM, which may include challenging their removal to a home country or an alleged safe country. Early legal advice could counteract the disincentive to come forward to the authorities and might encourage the co-operation that would ultimately assist investigations and prosecutions.

Surely, as so many noble Lords tried to persuade the Government in the last group, that ought to be one of the objectives in this field. Obviously, a principal one is to support traumatised people, but getting investigations, prosecutions and—one would hope—convictions should surely be an aim of the Government. Many of us are perplexed why that does not seem to be considered very important. That is why Amendment 92A is extremely important.

Unfortunately, awareness of the Bill might well create fear among victims, including those who would not be subjected to removal under the Bill but could reasonably believe that they would be. If they get access to legal advice, they might well understand that they are still entitled to NRM support and protection. The explanatory statement that the noble Lord, Lord Alton, gave for the amendment is a very good explanation of it:

“The intention is that potential victims of modern slavery or human trafficking … will be able to understand what the NRM is and what it does, and provide informed consent to be referred into it”.

I would have thought that the Government would want to accept that.

I turn to my Amendment 120, which the noble Baroness, Lady Chakrabarti, and the noble Lords, Lord Bach and Lord Hunt of Kings Heath, have been kind enough to sign. It would provide for civil legal aid under Section 9 of LASPO to ensure the availability of legal services and legal proceedings under that Act, in relation to five scenarios: protection, human rights, detention, modern slavery, and suspension of removal.

I have also signalled my opposition to Clause 54 standing part of the Bill. When asylum seekers are subjected to fast-track decision-making, early access to legal advice and representation is particularly important to ensure that the requirements of fairness are met. It should be a matter of concern that there could be a breach of natural justice for the Home Secretary; detaining the asylum seeker and putting them through a fast-track system could, in effect, deny them access to justice.

The UNHCR, which some of us regard as a rather valuable organisation, has said:

“Accessible, reliable, and high-quality government funded legal aid and legal representation are instrumental in establishing fair and transparent asylum procedures. Provision of legal aid and legal representation can go a long way in strengthening the quality of decision-making and can contribute to the efficiency of the asylum process, because it can strengthen a claimant’s understanding of and trust in the process, lower the number of appeals and subsequent applications, shorten adjudication timelines, and reduce late challenges to removal”.

That is a very important point to make—that it actually enhances efficiency and speedy but fair decision-making. The Government are going about so many things in the Bill while losing sight of the major objectives—that fair processes are efficient and well timed. Rather as with their attitude to us challenging this Bill, they seem to think that any challenge or any sort of delay to what they want to do is a nuisance. As the noble Lord, Lord Coaker, said, legal aid for asylum applicants, or victims of slavery, can help the process, just as we in this Committee can try to improve legislation.

I finish by saying that almost half of main asylum applicants in England and Wales who claimed asylum in the year to June 2022 did not have a legal aid representative. Without a clear duty being placed on the Lord Chancellor and the Government to guarantee legal aid for those subject to the Bill’s provisions, the Bill will drastically worsen this situation. In his reply, will the Minister address this point? A lack of adequate legal aid and representation is not actually a good thing. It clogs up the system and has no doubt contributed to the asylum backlog of 160,000, which the Government claim they are somehow going to magically wish away with the Bill. They will not but availability of legal aid and good representation would help them, if they could only see it. I beg to move.

My Lords, I am proud to have signed Amendment 120 in the name of the noble Baroness, Lady Ludford. I will address my own Amendment 120A, as well as the Clause 4 stand part notice, which is part of this group.

There are many who believe this Bill to be the worst introduced by His Majesty’s Government, formerly Her Majesty’s Government, since they came to power 13 years ago. I agree, although, in my view, the Legal Aid, Sentencing and Punishment of Offenders Act—LASPO, as mentioned by the noble Baroness—which achieved its 10th anniversary on 1 April, comes a close second. That Act, as the Committee knows, took away ordinary people’s ability to access justice in the whole field of social welfare law and offended against fundamental rule of law principles. One of the few areas that retained legal aid in scope was asylum and, to an extent, immigration—even though that has been whittled down over the last 10 years, with dire consequences for the provision of advice and lawyers dealing with asylum cases.

Clause 54, introduced on Report in another place, allows for legal aid to be given to asylum seekers in respect of the Bill; in other words, it brings it within scope. No doubt His Majesty’s Government will claim that this is the act of a principled and caring Government, even though it should be noted, as the noble Baroness, Lady Ludford, just mentioned, that, as drafted, it ensures the provision of civil legal aid services to P only on receipt of a removal notice. It does not confirm or secure access to free legal aid in relation to an asylum or HR claim.

More important than that, however, is the dangerous lacuna in Clause 54. There is an overwhelming danger—almost a certainty, I argue—that the right to legal advice and legal aid will cover up the reality of its actual provision. This is the reason for my amendment. Thanks to the organisation BID, my amendment would impose a duty on the Lord Chancellor to secure civil legal aid services within 48 hours of detention. Without the amendment, there is very little chance that those detained will receive the advice that the law says they are entitled to.

Why do I say this? Here, I am grateful to Jo Wilding. Figures published following a freedom of information request by the Ministry of Justice suggest that in 2021, there was a gap of at least 6,000 people between the number of new asylum applications and the number of new immigration and asylum matters that were actually opened, and for which legal aid was given.

The figures are worse in 2021-22. Research shows that there were 63,089 asylum applications and 32,714 “matters start”, which means legal aid was given. That is a more than 25,000 gap between need on the one hand and provision on the other. So, as the noble Baroness said, about half of main applicants did not have a legal representative.

A big survey of an immigration remand centre found that whereas 79% of applicants had a lawyer just before LASPO came into effect, the figure is 43% more recently. About 50% have no legal advice and unless dramatic steps are taken, this will only get worse. Why? Because not only will this Bill ensure that more asylum seekers will be in detention, but His Majesty’s Government plan quicker removals and thus less time for proper—or any—legal advice.

A substantial reason for this shocking state of affairs is the shortage of legal aid immigration lawyers and, indeed, the absence of any legal aid solicitors in this area in large parts of England and Wales. When what was Scampton airbase begins to be used as a large centre for asylum seekers, where will the legal advice come from? There are currently no legal aid immigration solicitors in the whole of Lincolnshire, just as there are none in Norfolk, Suffolk or Essex.

Legal aid rates are so poor that many firms doing this kind of work no longer take on legal aid work. Recently it has been estimated that nine out of 26 firms in West and South Yorkshire have stopped doing legal aid work. Rates have to be increased, of course, and the Guardian page one story on 26 May that many noble Lords will have seen made it clear that Ministers are seriously contemplating this. However, if the Government think that this will be anywhere enough, I fear they are seriously mistaken.

By deliberately allowing this decline over the 10 years since LASPO came in, there is no chance, in my view, that raising fees will somehow sort out the mismatch between need and provision. I hardly need to remind the Committee, and particularly the Minister, of the well-known statement from the noble and learned Lord, Lord Reed, in Unison v Lord Chancellor, that

“provision of legal aid to individuals who seek redress is not simply a matter of compassion, but a key component in ensuring the constitutional right of access to justice, itself inherent in the rule of law”.

If asylum seekers—and this includes children, of course—are to receive what is theirs by right, His Majesty’s Government have got to look at more fundamental steps to ensure that legal advice is actually provided. If they fail to do so, they surely cannot be surprised if many come to believe that Clause 54 is a sham—a fig leaf, if you like; a total pretence that simply because legal aid is allowed for, it will be provided. That is why this amendment asks His Majesty’s Government to keep their promise and their word. Otherwise, the reality will be that fewer and fewer asylum seekers will actually get the legal aid that our law and our legal tradition says they are entitled to.

I look forward to the noble Lord’s reply, and I have the highest opinion of him as a Minister. Of course, I will withdraw this amendment in due course because it is Committee stage, but if there is no movement at all from the Government, it seems to me that this House must eventually speak out in order to preserve the reputation of our legal system.

My Lords, Clause 54 provides that, under the Bill, recipients of removal notices will have access to certain civil legal services. As your Lordships have rightly pointed out, this would bring them within the scope of legal aid and allow access to legal services in relation to removal notices without the application of the merits criteria and within the timeframe of the Bill.

Despite my respect for the expertise and knowledge of the noble Lords who have brought forward these amendments, I cannot support them. I am concerned that, in extending further the provision of legal aid available under the Bill or the duties under it, Amendments 92A and 120—and Amendment 120A, in its own way—would add more cost and compliance burdens to a system that has already become far less overarching than was envisaged when it was set up.

In my view, legal aid needs to be looked at in its entire context. As matters stand, legal aid is not given in many sorts of cases. Schedule 2 to the Access to Justice Act 1999 excluded categories that had hitherto been included. The LASPO Act 2012 went far further, in that there was a significant removal of cases; indeed, all cases other than those mentioned in its Schedule 1 were removed. This means that cases historically funded by legal aid in this country have been removed.

This affects many people who have lived and worked here—and, indeed, those who have fought wars for this country. Their cases are no longer eligible for consideration for legal aid, which might strike them as unfair and disproportionate. I agree with the noble Baroness, Lady Ludford, that the system must be seen to be proportionate and fair as well as efficient. However, many cases where a UK citizen may have a just claim or wishes to defend a right are now excluded. For example, in cases of medical negligence, claims are no longer permitted other than those relating to a child who suffers a severe brain injury during pregnancy, childbirth or shortly afterwards.

Legal aid has historically played an important part in poor persons—I am using the words used until 1950—being able to pursue their legal rights without being charged fees, albeit with charges and restrictions made from time to time until 1949, when the system as we know it today began. That change extended eligibility to people of small or modest means, with free aid up to a limit and a merits test for civil cases. As we have heard and as we know, that system has all but disappeared. Means testing is more severe. Some categories have been removed while others have been added. The upshot is that access to legal aid has been reduced significantly. I agree with much of what the noble Lord, Lord Bach, said about how the system has changed dramatically.

Clause 54 will add another category to the overstretched system. There are reasons for that but, for the reasons I have given, I am not in favour of extending this beyond what is proposed in the Bill.

My Lords, as my noble friend Lady Ludford said, proper scrutiny of the Bill rests with this House, as the Commons was not given sufficient time to scrutinise it, so that is what we are determined to do.

Bearing in mind the draconian measures in the Bill, proper legal aid must be provided, including for those referred to the national referral mechanism, particularly in light of the changes introduced by the Nationality and Borders Act that adjusted the reasonable grounds threshold and the standard of proof required—and not just to those served with a removal notice. We also support Amendment 120A to ensure that legal aid is provided, rather than just allowed.

In response to the noble Baroness, Lady Lawlor, it seems an extraordinary argument to say that, because British people are denied justice and cannot access legal aid, people seeking asylum should also be deprived of justice. Surely, the answer is to provide justice to everyone who needs it.

My Lords, this group of amendments looks at legal aid in the context of the Bill. Prior to a removal notice, the Bill does not provide legal aid to a person in detention in England and Wales. There is no provision for a person awaiting a decision on removal in Northern Ireland and Scotland, so I wonder whether the Minister can say something about the position in Northern Ireland and Scotland.

The Bill provides an extremely short timeframe of eight days for an individual to seek legal advice and representation and provide sufficient instructions for a representative to lodge a suspensive claim with compelling evidence against removal to a third country. The non-government amendments in this group would expand legal aid provisions to persons potentially facing removal. The government figures suggest that around half of asylum seekers already do not have access to legal aid advice, with advice being much harder to obtain outside of London. My noble friend Lord Bach amplified that point very powerfully, when he gave the figure of the gap of 25,000 between the numbers of asylum applicants and legal aid provisions in 2022, showing that about 50% of asylum applicants have no legal advice.

My noble friend also gave a powerful exposition on the background of legal aid following the cuts we saw with the LASPO Act. The noble Baroness, Lady Lawlor, also acknowledged those cuts, which have been extended from when the LASPO Act originally came into force. As my noble friend Lord Bach summed up very effectively, the overwhelming danger of Clause 54 is that it becomes a sham and a fig-leaf; the rights may be there on paper, but they will never be provided in practice. The amendments in this group are seeking to ameliorate that fear.

The noble Baroness, Lady Ludford, also summed up this group of amendments very effectively, when she talked about the importance of legal aid for making fair decisions. I agree with her that this will reduce appeals, will let applicants properly understand the process of what is happening to them, and, perhaps above all, will uphold the UK’s reputation as a country which is ruled by law, as people need to understand the laws being applied to them.

This has been a relatively short group, but it goes to the heart of the Bill, because it concerns what is available in practice to people coming over and applying for asylum. They need to understand the situation they are in and that they will be treated fairly. Reflecting on my own time sitting in courts, I say that people may not like the decisions being made, but it is a much better position when they understand them. It will resonate beyond the courtroom itself, if people understanding the decisions being made about them.

My Lords, it is always a rewarding experience to find oneself largely in agreement with some of the sentiments that have been expressed. On the issue of legal aid, Clause 54 ensures that individuals who receive a removal notice under the Bill have access to free legal advice before removal and, in so providing, it is one of the keystones of the Act. It is absolutely essential that free legal advice is available to persons before removal. That is important for the reasons that have just been given. It is important that people understand the process and that it is a fair and efficient process. No one would disagree with any of those sentiments expressed in the Chamber today.

It is important to emphasise that, unlike most civil legal aid, legal aid in the context of the Bill is being made available without a merits test, nor a means test—as a matter of statutory instrument, that will be provided in due course.

To answer the first question from the noble Lord, Lord Ponsonby, we are in close discussions with the authorities in Northern Ireland and Scotland, where I anticipate the position will be exactly the same as it is in England but, obviously, that has to be covered. As has been rightly said, legal aid is, in the context, essential for speedy but fair decision-making. Those basic points are essentially common ground.

I will now deal briefly with the amendments. Government Amendment 119A in this group simply corrects the references to the clauses in the Bill under which advocacy in the Upper Tribunal can take place, and adds a reference to the tribunal procedure rules, since the clause as tabled in the other place at a late stage needs to be corrected in those technical aspects. That is all that Amendment 119A is.

I turn now to Amendment 92A, tabled by the noble Lord, Lord Alton, and moved by the noble Baroness, Lady Ludford, which seeks to make provision for legal aid for potential victims of modern slavery subject to removal for possible referral to the NRM. In the Government’s view, this amendment is not required, as Clause 54 already provides free legal advice for anyone issued with a removal notice under the Bill, and that legal aid is available irrespective of the merits or means.

The Committee has just accepted that Clause 21 stand part of the Bill, so I respectfully say that it does not seem correct for me to reopen or rediscuss the various arguments which have been debated at length this afternoon in relation to modern slavery. In practice, if Clause 21 stands part of the Bill, as the Committee has just agreed, the basis for this amendment, in the Government’s submission, largely falls away and it is not at all clear that there is any remaining practical purpose in pursuing the amendment. That is the Government’s position on Amendment 92A.

As far as Amendment 120 is concerned, spoken to by the noble Baroness, Lady Ludford, which seeks to ensure the availability of civil legal aid services for various claims, challenges and legal proceedings covered by the Bill, the Government’s position is that Clause 54 already effectively provides for that. The Lord Chancellor already has a statutory duty to ensure that legal aid is made available to individuals where it is required under LASPO. By virtue of Clause 54, legal aid will therefore have to be made available to individuals in receipt of a removal notice, in relation to that removal notice, to take advice in making a suspensive claim either on factual grounds or on grounds of serious irreversible harm. This is, as I said a moment ago, an essential feature of the Bill to ensure fairness to those facing potential removal under the powers in the Bill. There are other existing provisions in LASPO that make legal aid available in relation to protection claims, human rights claims, modern slavery, detention and habeas corpus. But the key need here in this Bill is for legal advice before removal takes place and legal advice in relation to making a suspensive harm claim or a suspensive factual claim.

Finally, Amendment 120A tabled by the noble Lord, Lord Bach, who I know follows these matters with great interest and great integrity and has over the years been very concerned indeed about the provision of legal aid, highlights the practical importance of making sure legal aid actually is available. The same point has been made by the noble Lord, Lord Ponsonby, and others. That is a very important aspect that the Government and the Ministry of Justice in particular are fully seized of at the moment. As noble Lords can imagine, it provides a considerable logistical challenge, because it depends on a number of factors: where the potential removees or detainees are; how they can be accessed; who is going to provide the advice; whether there are enough people to do it; whether they are trained up enough; whether it can all be done in the short time limits provided by the Bill. Those are all matters with which the ministry is currently seized. We are working extremely closely with the Ministry of Justice and the Home Office to ensure that legal aid is really made available to those who need it. I venture to hope, most sincerely, that we are not in a position where any significant proportion of the persons concerned fail to get legal aid. It would not be acceptable, in the Government’s view, for very large numbers of people to be removed without the benefit of legal advice. It is a problem that the Government have to solve and are working to solve.

My Lords, I do not want to take us back to the impact assessment issue, but it would certainly be helpful to know before Report where the Minister’s department is going in relation to the work he referred to. We should have a much clearer idea, by the start of Report, as to the extent to which his department is able to give guarantees that a proper legal aid system would be in place, effective and able to operate.

My Lords, I hear what the noble Lord says. It is an entirely reasonable question. I will take it back to the department and do my best to see how far we can satisfy that completely understandable request. The Government accept that legal advice should be available in practice and quickly, and they are working on that with intense attention at the moment but, in relation specifically to Amendment 120A, do not feel it is appropriate or feasible to provide for a statutory obligation to deliver within 48 hours, which is what the amendment calls for.

However, there should be a system that enables people effectively to take advice within the strict periods of time set out in the Bill, which are subject to extension—we do not yet know how that will work, but they can be extended by the Secretary of State and the Upper Tribunal. I hope your Lordships will accept that the general position on legal aid in Clause 54 is a positive provision in the Bill and that removing the means test and merits tests is correct in the circumstances. Properly administered and operated, this will be a very important safeguard for those affected by the provisions in the Bill. I hope the noble Baroness will withdraw the relevant amendment.

My Lords, I thank the Minister for his reply. I welcome Clause 54 being put into the Bill—it is better than it not being there—but several problems arise. First, Clause 54 says in terms of LASPO only that:

“Sub-paragraph (5) does not exclude services provided to an individual who is subject to removal”.

It does not do anything to make sure that that legal aid for advice and representation will appear, which is the reason for the importance of the amendment from the noble Lords, Lord Bach and Lord Hunt of Kings Hunt, about a duty to provide legal aid, as there is no guarantee. There is also no guarantee that Clause 54 will deliver any legal aid before this Bill comes into force as an Act. What will the Government do in practice to deliver that legal aid?

Secondly, Clause 54 benefits only people who are subject to removal and have, presumably, already had a removal notice. The concern that motivated Amendment 92A was that it should be available not only to individuals who are subject to removal under this Act but to those who might reasonably expect that they would be. They ought to be able to get advice so that they can give informed consent to a trafficking referral; they need to know what the implications and consequences could be. With respect, I do not think the Minister covered either of those points.

Finally, we do not appear to be getting the message across that the better informed and supported people are, the greater the benefit to the Government will be in being able to have faster processes. Clearly, those processes are not working at the moment—we would not have this incredible, appalling backlog if everything was going swimmingly with processing efficiency. I cannot speak for the noble Lord, Lord Bach, but I think we are inspired by the idea that you could streamline the system and try to avoid delays in highways and byways if people were properly legally informed of their rights. The Minister is a lawyer, so I am sure he gets that point, although unfortunately I have not heard him express it. All that said, I beg leave to withdraw Amendment 92A.

Amendment 92A withdrawn.

Amendment 92B not moved.

Clause 22: Provisions relating to support: England and Wales

Amendment 93

Moved by

93: Clause 22, page 27, line 36, leave out subsection (2)

Member's explanatory statement

This amendment seeks to remove the Bill’s restrictions on the provision of modern slavery support to those subject to the provisions in Clause 2.

My Lords, I will not take a great deal of time on this group because quite a number of the points were made in the first group that we discussed today. This group deals with provisions relating to support. Clause 22 deals with the provisions relating to support in England and Wales, Clause 23 with support for Scotland and Clause 24 with support for Northern Ireland. My Amendments 93, 94 and 95, supported by the noble and learned Baroness, Lady Butler-Sloss, who has given her apologies today, seek to remove the Bill’s restrictions on the provision of modern slavery support for those subject to the provisions in Clause 2—blanket detention and removal. They would take out subsection (2) of the relevant clause.

Clause 22(2), and the equivalent points in Clauses 23 and 24 as they relate to Scotland and Northern Ireland, is an astonishing provision. It says that:

“Any duty under section 50A of the Modern Slavery Act 2015 (assistance and support) to secure that any necessary assistance and support is available to the person does not apply in relation to the person”.

Essentially, we are denying assistance and support to potential victims of slavery and trafficking. I cannot believe that we would want to do that, but there it is in the Bill. The noble and learned Baroness, Lady Butler-Sloss, and I simply want to take that out and at least try to understand what the Government’s logic is with respect to it. This provision means that you cannot be considered a victim, and if you are then you are denied any follow-on support or assistance.

Preventing support for all trafficked victims is disproportionate. As I said earlier—I will not repeat that debate—why not focus on improving administrative efficiency in the asylum system as a whole and the NRM? Currently, as was mentioned in the earlier group, victims of modern slavery are legally entitled to 30 days of support and protection from removal. That is only two days longer than the 28 days for which they are protected, but they are protected and supported to help them recover. It was said at great length, emphatically and well, by many noble Lords that providing victims with support is the only way to build trust and ensure engagement with law enforcement to help with the real criminals—the traffickers. It is also important to the victims in helping them to recover from their trauma.

Clauses 22 to 24 of the Illegal Migration Bill mean that, if you are trafficked into the UK, you will not be treated as a victim. I cannot believe that that is what a British Parliament would want. Nobody who enters the UK irregularly will be able to access support at any point, even if they are exploited in the UK—a point which the noble Lord, Lord Randall, and others made when discussing his amendment in the earlier group. If you enter irregularly at some point, and then become a victim of sexual exportation, child labour or forced labour, you will not be able to access any support to deal with that—and that is any irregular arrival, not just by small boats. What assessment did the Government make of the impact of this before stripping away all the support through the provisions contained in the Bill? What is their rationale for this? What assessment have they made of the numbers that may be affected by these changes—including the numbers referred to in the amendment by the noble Lord, Lord Randall, in the earlier group?

Do the Government not understand or believe that the consequences of this are that trafficked victims of modern slavery, forced labour and sexual exploitation, including children, will be left unsupported in a twilight world, with no money, no housing, no care and no personal support? As I have said before, do the Government themselves not recognise that what they are doing is quite extraordinary—to put it politely? They have included a sunset clause because they realise the extremity of these provisions in the Bill.

As your Lordships have heard and seen, the JCHR condemned this Bill in its recent report and called on the Government to change it. I ask a very simple question of the Government: if the Bill in its current form becomes an Act, how will we identify victims of modern slavery and trafficking? If we do identify them, what support are the Government intending to give them?

This is a significant group of amendments about providing assistance and support to victims of modern slavery and trafficking. The Government intend to take that support away. How can that be right?

My Lords, as the proposer of Amendment 96, I have no problems with any of the other amendments in this group. I do not want to repeat the remarks of the noble Lord, Lord Coaker, but will deal specifically, albeit briefly, with Amendment 96.

This amendment looks at the level of support that human trafficking victims receive. As we discussed earlier, it is important that we, as a nation, approach that in a humane and compassionate manner. This amendment deals specifically with the position in Northern Ireland and with setting it at a higher bar than the Government are proposing, for a number of reasons.

First, the amendment reflects the devolutionary settlement for Northern Ireland. While migration and immigration are national issues, modern slavery and human trafficking specifically have been dealt with as a devolved matter and on a devolved basis. It is not something on which a uniform approach has been taken across the United Kingdom, and levels of support for victims in Northern Ireland is not something that has been dealt with in the abstract.

There are many occasions when in Northern Ireland we will seek exactly the same provisions as elsewhere or simply replicate or pay lip service to what is provided elsewhere by repeating it. This has been drilled down on two very detailed occasions in Northern Ireland. As I indicated earlier, we were the first part of the United Kingdom to have specific legislation on human trafficking through the human trafficking Act, which predated the Modern Slavery Act. There was a considerable amount of attention given to it then. In the sometimes febrile, cauldron-like atmosphere of Northern Ireland, it can be difficult to get consensus, but that was something on which there was broad consensus across the Assembly Chamber.

More specifically, in 2022, a major piece of legislation was brought by the Department of Justice. The justice Act dealt with two specific areas—in essence, a range of sexual offences and human trafficking. It was something that the Assembly, both legislatively and in the committee, looked at in considerable detail. I was a member of the Justice Committee when that was going through, and we took availability of the opportunity to get in a wide range of experts to give direct advice on what was needed specifically for Northern Ireland.

What has been put in place and will be enacted in Northern Ireland without this legislation has been designed specifically for Northern Ireland and its particular circumstances. It is one of those areas into which has gone a forensic level of detail. Unfortunately, the Bill would take us in a different direction and leave us with less protection and fewer resources for victims of human trafficking.

Secondly, there is currently some dispute between the Government and the Northern Ireland Human Rights Commission about the levels of obligation on this topic. We are in no doubt that across the board with this legislation, if it goes through in whatever form, it is likely to be challenged in the courts and to be the subject of litigation. Consequently, if we are to be stuck with it, the position where we can have the greatest level of clarity, certainty and agreement is preferable. If we can resolve that issue by way of the adoption of an amendment such as Amendment 96, it would remove the potential level of dispute. Faced with a choice between the Government’s position and that of the human rights commission, the human rights commission’s position would give greater protection and support for victims of human trafficking. If left with a choice as to what direction we go in, to provide that greater protection is the best possible solution.

Thirdly and finally, the amendment deals with the specific circumstances of Northern Ireland. Clearly, the issue of small boats has featured in a lot of the discussions around the Bill. Northern Ireland, I suppose, geographically in the United Kingdom is as far away from the shores of Kent as one can possibly get. On that basis, where we have small boats coming in, they tend to bring in fish rather than migrants. While the reality is that, as I am sure others have indicated, in many ways there is a common belief across this Chamber and another place that we need to seriously tackle the issue of small boats and clamp down on those exploiting people with that form of migration, with regards to human trafficking, small boats, as has been indicated, are largely a red herring when it comes to the issue of modern slavery. That is not the way that, largely speaking, human traffickers are bringing people to the United Kingdom, and certainly that is the case for Northern Ireland.

However, there is a concern about Northern Ireland’s unique geographical position, which is why we need a greater level of protection. The Prime Minister and others have highlighted the unique advantage of Northern Ireland in many ways, in that we have a border with the European Union and access therefore, through the common travel area, to the European Union, particularly the Republic of Ireland. We are also part of the United Kingdom, which means we have full access to the rest of the United Kingdom. There is a danger that human traffickers will see Northern Ireland as a potential best of both worlds, which will be to the detriment of Northern Ireland and particularly of those who are going to be transported by human traffickers. That is a danger that we need to see off, and the fact that there has been a considerable increase in the number of victims of human trafficking referred to the NRM from Northern Ireland shows that this is something that human traffickers are alive to.

We all hope to reach a day in this society when the number of victims of human trafficking, in Northern Ireland or elsewhere, is set at zero, but we are living, unfortunately, in a world where this is an increasing crime rather than one that is reducing. The level of resources and support that need to be given to victims potentially coming to Northern Ireland has to act as a support for the victim but has also to act as a virtuous circle, because the greater the level of support and resilience that we can give to those victims, the better chance we have of catching the perpetrators and preventing this in the long run. Therefore, I urge the Committee to support the amendment in my name and that of my noble friend Lord Morrow.

My Lords, I support Amendment 94 and the intention of the noble Baroness, Lady Hamwee, and the right reverend Prelate the Bishop of Bristol to oppose Clause 23 standing part. I shall concentrate on the Bill’s implications for the Scottish Parliament, as it will bring some of the most offensive parts of this legislation relating to victims into Scotland.

Devolution Guidance Note 10 states that a Bill requires the consent of the Scottish Parliament if it

“contains provisions applying to Scotland and which are for devolved purposes, or which alter the legislative competence of the Parliament or the executive competence of the Scottish Ministers”.

The Scottish Parliament has made its view known that the impact of this Bill on the rights of people who have been trafficked and subject to modern slavery cuts across devolved responsibilities and it would oppose it. The Human Trafficking and Exploitation (Scotland) Act was passed in 2015 to consolidate and strengthen the existing Scottish criminal law against human trafficking and exploitation and enhance the status and support for its victims. Support for adult victims of modern slavery is provided under Sections 9 and 10, and these will be disapplied if the Bill is left unamended.

On 18 October 2016, the Grand Committee of this House considered a statutory instrument consequent on the Human Trafficking and Exploitation (Scotland) Act and heard from the noble Lord, Lord Dunlop, then Under-Secretary of State for the Northern Ireland Office and Scotland Office. He said:

“The UK and Scottish Government Ministers and officials have worked closely together to ensure that this order makes in an effective manner the necessary amendments to UK legislation in consequence of the Act of the Scottish Parliament. I believe that this order demonstrates the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work … I hope noble Lords will agree that this order is an appropriate use of the powers in the Scotland Act and that the practical result is something to be welcomed. I commend the order to the Committee”.—[Official Report, 18/10/16; cols GC 226-27.]

Can anybody imagine hearing anything similar from the Government Benches today? As with so many other Bills, this one seeks to override the functions of devolved Governments and undermine 24 years of devolution.

As the 2015 Act on trafficking stands, it is clear that the provision and funding of the victim support service is completely devolved to Scotland, with protection, support and assistance for victims of trafficking and modern slavery. It ensures that Scotland meets its obligations under the European Convention on Human Rights and the Convention on Action against Trafficking in Human Beings.

Clause 23 strips away the duties and powers of the Scottish Minister under the 2015 Act to provide support and assistance to victims. To claim that the Bill does not legislate on matters within devolved competence is obviously nonsense. All the evidence of Scottish Ministers’ responsibilities in this area is clear in previous legislation. Clause 23 aims to prohibit the Scottish Government supporting a large category of migrant victims of trafficking in a manner that would be unlawful for non-migrant victims. Given that such support is an obligation under ECHR Article 4 and ECAT Article 12, non-discrimination in the provision of support is guaranteed by those conventions.

As my noble friend Lord Coaker said earlier, this Bill seems more interested in further victimising the victims than tackling human trafficking and bringing perpetrators to justice. Will the Minister explain how what was clearly a devolved matter when the 2015 Act was endorsed in this very House can suddenly have ceased to be a devolved matter?

My Lords, I rise to support the removal of Clauses 22 to 24 and 27, as proposed by the noble Baroness, Lady Hamwee, and my right reverend friend the Bishop of Bristol. As the noble Lord, Lord Coaker, noted, many of the arguments are similar to those related to Clause 21, so we will not repeat them.

Clauses 22 to 24 carry through the logic of Clause 21 and remove protections and support from those who, crucially, have already been identified and assessed as having reasonable grounds to be considered a victim of trafficking or modern slavery. These victims are not self-identified or -assessed. They have to be referred by a first responder agency, such as the police, and assessed by the competent authority.

The insidious nature of applying these provisions retrospectively is that there are people now in safe houses who are receiving specialist support to rebuild their lives or to build a legal case against their abuser that might be used by law enforcement. To have those protections and support removed from them before a conclusive grounds decision can be reached on their case seems cruel. Someone who has potentially just escaped an abusive situation and has been assessed by a first responder and the Home Office as having a reasonable case and who is for the first time receiving support from a specialist agency could be told out of the blue that support is withdrawn and they are subject to detention and removal. To deter one group of people, we will wash our hands of a much larger group who did not arrive by boat or even necessarily of their own volition.

The long and short of these clauses is that to weed out an unknown and unproven level of abuse, and without any evidence that it will deter Channel crossings, we will be simply abandoning victims. We will be doing so in a thoroughly dramatic and cruel way by withdrawing support that has been offered. I cannot see this is justifiable, still less desirable, and I ask the Minister to consider the clauses in their entirety.

My Lords, I am not going to repeat the points that I made on the first group because they apply in a very similar way to the amendments in this group, which in our case amounts to opposition to the clauses standing part of the Bill.

In the first group, I strayed into Clauses 25 and 26, which should really be here—the revolving door of a revolving sunset. A point I did not make was how much scope the Secretary of State has to keep on altering the direction of how things go with minimum scrutiny because, to me, scrutiny should include an opportunity to make changes. So much is dealt with by regulations. All the clauses on modern slavery are part of a whole, which, as a whole, we oppose. The Bill does nothing to tackle modern slavery and trafficking, does away with support for many victims and damages the UK’s reputation. Like the noble Lord, Lord Randall, who spoke earlier, I do not much like the term “world leading”, but that was what people were saying of us not so very long ago.

My Lords, a number of years ago, I chaired an inquiry in Scotland for the Equality and Human Rights Commission of the United Kingdom to look into the position of trafficking in Scotland because it was a surprise that at that time there had not been any prosecutions. Was this because there was no problem in Scotland, or was something happening with regards to investigations?

I want the Committee to know that after many years of practice at the Bar, doing some of the most shocking and desperate cases, the experience of chairing that inquiry into modern slavery was revelatory to me in hearing evidence—particularly, of course, from women who had been sexually used, and used in the most horrifying ways, where their whole days were spent servicing men. Afterwards, they needed to be looked after, cared for and encouraged to believe that their families back in the countries from which they had come would not be punished if they were to testify in a court of law. The threats that they had experienced were of such a kind that they lived in terror of those who had victimised and trafficked them.

I really do feel—I heard earlier one of the Conservative Back-Benchers asking the Minister whether he had ever met anyone who had been trafficked—that meeting those who have been trafficked is a shocking business. It also goes on to those who, for example, are subjected to slavery within the domestic environment, who are worked almost to death. They are brought over from other countries, live in households in which they are expected to get up at the crack of dawn and work through until the wee small hours of the following day, and are not rewarded—their wages are supposed to go to their family back somewhere else. The accounts that one hears are just shocking.

The fear that people have, which has to be catered for in having them give testimony in a court of law against those who have been their traffickers, is such that to be removing all of that is just shocking. It is unbelievable to people in other parts of the world. My work has now changed; it is now in international law, and everywhere I go people are shocked by Britain, which led the way on this and was so inventive in creating this legislation. Other countries are now saying “What is Britain thinking about?”, and we are really uncertain as to what the Government are thinking about.

My Lords, I will speak very briefly as a co-signatory to Amendment 96, tabled by the noble Lord, Lord Weir. I suspect it will not surprise anyone in your Lordships’ Committee that I have a real passion about modern slavery. I had the experience on one occasion of meeting a victim, and I listened to a story that I was never prepared for.

What that victim told me about how she was treated was quite horrendous. She was treated as a commodity, with no respect; indeed, she did not even get food, never mind anything else. I have seen some difficult cases in all my years in politics because I have been in it nearly as old as I am; it seems that way. But the day that lady came to Stormont, met me and told me her horrendous story, I said that as long as I live, I will always make an effort to do something, moderately little as it may be, to fight this awful cancer of human trafficking. So it is extremely disturbing, as I said at Second Reading, that the plans of the devolved Administrations and their modern slavery strategies are now undermined by the Bill.

When I first consulted on my Private Member’s Bill in the Northern Ireland Assembly in 2012—it became the trafficking Act in January 2015—it was shortly after the UK had signed the EU trafficking directive, and a significant part of my Bill was to ensure that the rights within the directive could be enacted in Northern Ireland. At Second Reading of my Bill, nearly 10 years ago now, I said that the directive

“makes a number of effective proposals, which, if we choose to put them into law, would have a positive effect for vulnerable victims. Many of the proposals in the Bill directly seek to implement the directive into our law.”

I went on to say that the Assembly

“should seek fulsome implementation of the directive and, indeed, the Council of Europe Convention on Action against Trafficking in Human Beings”.

I believe that the Assembly met that objective when the Act was passed in January 2015. It is therefore with deep regret that, 10 years on from my Second Reading speech, I am seeing that good work being undone, justified by a tenuous interpretation of the European trafficking convention, which the noble Baroness, Lady Ritchie, made reference to earlier—a view which was described as “untenable” by the Joint Committee on Human Rights in its report published at the weekend.

I am, however, more reassured that victims in Northern Ireland still have rights under the EU trafficking directive and the EU victims’ directive. I will not repeat the case for this view, which was so ably set out by my noble friend Lord Weir. Suffice to say that the Northern Ireland Human Rights Commission has argued consistently that both directives still apply to Northern Ireland. That puts this Bill at odds with the support that victims in Northern Ireland are entitled to.

The Government may feel that they can interpret the European convention against human trafficking obligations, but there is less scope to do so on the EU directives and their application in Northern Ireland. The rights of victims in Northern Ireland must be upheld. I fully support the position of my noble friend Lord Weir in amending the provisions of Clause 24 to require the Department of Justice in Northern Ireland to continue to provide support to victims in line with Article 2 of—should I say it?—the Windsor Framework.

My Lords, as the noble Lord, Lord Coaker, said when he introduced this group of amendments, it is quite extraordinary to deny assistance and support to the victims of modern slavery, as provided by Section 50(1)(a) of the Modern Slavery Act 2015. As the right reverend Prelate the Bishop of Durham said, it is cruel to do this.

Modern slavery is a devolved matter in relation to the support provided to victims, yet the Bill appears to undermine devolution in overruling the provision of support provided in Northern Ireland and Scotland. It was very interesting to hear the noble Lord, Lord Weir of Ballyholme, quite rightly highlighting the issues facing Northern Ireland, with its border with the European Union and the common travel area. It was even more interesting to hear from the noble Lord, Lord Morrow, about how this Bill potentially conflicts with EU directives that Northern Ireland is still subject to. It will be very interesting to hear the Minister’s answers on the issues raised by the noble Lord, Lord Morrow, in particular.

In asking the Minister to justify these provisions, both in terms of denying support and in terms of devolution, I am very struck by what the noble Baroness, Lady Kennedy of The Shaws, and the noble Lord, Lord Morrow, said about the impact that meeting victims of modern slavery had on them. I wonder whether the Minister, who I think previously suggested that he had not met a victim of modern slavery, or anybody involved in the drafting of these provisions, has met a victim of modern slavery—bearing in mind the impact it has had on the noble Baroness and the noble Lord.

As my noble friend Lady Hamwee has said, we do not believe that Clauses 22, 23, 24 and 27 should stand part of this Bill.

My Lords, as we have heard, this group of amendments relates to the provision of support to potential victims of modern slavery. We have, of course, recently had an extensive debate about the application of the public order disqualification to those who meet the conditions in Clause 2 of the Bill. I will not go over the same ground again, save to say that it is a necessary consequence of the provisions in Clause 4 that the duty on the Home Secretary to make arrangements for removal of persons who meet Clause 2 conditions should apply regardless of whether the person claims to be a victim of modern slavery.

It follows that, for the provisions of this Bill to work as intended, individuals who arrive illegally in the UK and receive a positive reasonable grounds decision must be disqualified from the protections of the national referral mechanism. Clause 22 gives effect to this principle for England and Wales by disapplying the duties on the Secretary of State, under Section 50A of the Modern Slavery Act 2015, to provide necessary assistance and support to potential victims during the recovery period. Clauses 23 and 24 have the same effect in relation to corresponding legislation in Scotland and Northern Ireland respectively. Clause 27 then makes the necessary consequential changes to the relevant legislation that applies in each part of the United Kingdom.

If an individual arrives in the UK illegally and a first responder suspects that they may be a victim of modern slavery, they will still refer that individual into the NRM and that person will receive a reasonable grounds decision. That process will not change under the Bill. However, as I set out before in relation to Clause 21, Article 13 of ECAT envisages that the obligation on signatory states to provide assistance and support to potential victims may be withheld on grounds of public order. This is precisely what Clauses 22 to 24 give effect to as a result of the public order threat arising from the current scale of illegal entry into the United Kingdom by people undertaking dangerous and unnecessary channel crossings in small boats. That means that they will not benefit from the protections otherwise afforded to potential victims of modern slavery, subject to the exception set out in Clause 21, which we have debated at some length.

It is right that the Government take meaningful steps to ensure that these illegal and dangerous channel crossings are stopped and that any incentives to enter the UK by such means are closed off. That is what these clauses seek to do. Clauses 22 to 24 operate subject to the same exception as Clause 21 in relation to those potential victims who are co-operating with a public authority in connection with an investigation or criminal proceedings in relation to their alleged exploitation, and it is necessary for them to remain in the UK to provide such co-operation.

The effect of Amendments 93, 94, 95 and 96 is no different in practice from proposition by the noble Baroness, Lady Hamwee, to strike out these clauses as a whole. The amendments effectively gut Clauses 22 to 24, such that the existing requirements relating to the provision of support would continue to apply. It will therefore come as no surprise to noble Lords that I cannot commend these amendments to the Committee.

In response to the devolution points raised by the noble Lords, Lord Weir and Lord Morrow, and the noble Baroness, Lady Bryan, I remind the Committee that immigration and nationality are reserved matters in Scotland, Wales and Northern Ireland, and therefore matters for the UK Government. It is also our view that the modern slavery clauses also deal specifically with the reserved matter of immigration, and they are for a reserved purpose. As for the Bill as a whole, they would not therefore engage the legislative consent process.

I assure the right reverend Prelate the Bishop of Durham that anyone who has arrived illegally in the UK on or after 7 March and before commencement would in this period receive support as now.

Will the Minister confirm that support for people who have been trafficked and involved in modern slavery is a devolved issue?

No, I am afraid that is not the view of the Government. These provisions are in a measure that relates to a reserved issue.

Forgive me, but I am just answering this point. So it is the Government’s view that the provisions in this Bill fall within the reserved matter that I described a moment ago.

The specific issue that was raised was about support for victims of human trafficking, which clearly is a devolved matter—or alternatively the legislation, for example, that was passed through the Assembly last year would have been ruled out of order and incompetent on that basis. It dealt specifically with the levels of support that victims of human trafficking would receive.

I agree with the noble Lord that, in that context, the Assembly had competence to consider those issues. However, in the context of the overall Bill, this measure deals with immigration. Therefore, for the reasons I gave, the measures fall within the competence of the United Kingdom Government.

The current rate of dangerous and unnecessary small boat channel crossings represents a clear and present threat to public order, justifying our invoking the relevant provisions of ECAT. They risk lives and place unprecedented and unsustainable pressure on our public services—housing, health, education, welfare and others. The Government are right to take the necessary measures in the Bill to remove the clear opportunities to misuse our modern slavery protections in order to frustrate the duty to remove in Clause 2. On that basis, I commend these clauses to the Committee and invite the noble Lord, Lord Coaker, to withdraw his amendment.

Before the Minister sits down and the noble Lord, Lord Coaker, jumps up, could I ask the Minister something? Unless I was being inattentive, in which case I apologise, I am not sure that he answered the point raised by the noble Lords, Lord Weir and Lord Morrow, about the Windsor Framework—which is to be known as the Northern Ireland protocol—the duties in it and the application of EU law. He mentioned the trafficking directive and the victims directive. How is the Bill compatible with those obligations in Northern Ireland? If I have got it wrong, the noble Lord, Lord Morrow, will correct me.

My understanding is that the measures are compatible with the Windsor Framework, but I will take that point back to the department and will write to both the noble Lord and the noble Baroness on it.

My Lords, I thank those who contributed to the debate. I will come to the more general point about assistance and support as they relate to Clause 22, but I will first respond to the noble Lords, Lord Weir and Lord Morrow, and my noble friends Lady Bryan and Lady Kennedy. I am not sure about this, so can the Minister go back and check that it is right? From all my reading about devolution, I think that everyone accepts and understands that immigration is a reserved matter. I find it really difficult to understand why, in Scotland and Northern Ireland, the devolved Administrations’ ability to enhance support is not a devolved matter. I do not understand why, if they choose to do more to support a victim of trafficking, they cannot do so. I respectfully ask the Minister to check that that is the case, because I cannot believe it is.

That would be helpful, looking at the incredulity on the faces of the noble Lords, Lord Morrow and Lord Weir.

A year ago, I conducted an inquiry into a horrifying set of events that took place in Glasgow during Covid, involving refugees and asylum seekers. Support was given then by the local authority to the asylum seekers in Glasgow. In addition, there was a migrant helpline, which was pretty hopeless, emanating from the Home Office—it was outsourced—but most of the social work on the ground was done by the local authority.

I thank my noble friend Lady Kennedy for that. Asking the Minister to check this is helpful. It will no doubt be in his notes that it is the case, but, given the experience of devolved matters of noble Lords, it would be helpful for the Committee if that were checked and confirmed one way or the other.

Notwithstanding all of that—and obviously I will beg leave to withdraw the amendment—there is an issue, as the right reverend Prelate the Bishop of Durham pointed out. Clause 22 specifically says that there is a duty to provide assistance and support to somebody who has received a positive reasonable grounds decision. If they have arrived irregularly, which in most circumstances they will have done, they will be denied assistance and support. In the face of the victims many of us have met, including me, that is just not credible. If you meet victims of forced labour and sexual exploitation, you see that the assistance and support they receive is essential. It is not just something helpful that is provided—it is absolutely essential. Under Clause 22, that is going to be stripped away from people who have arrived irregularly, including those who the Government themselves, under the rules they have set up, have determined to have a reasonable grounds decision while they wait to see if a conclusive grounds decision will be made. This is obviously something we will need to come back to but, with that, I beg leave to withdraw the amendment.

Amendment 93 withdrawn.

Clause 22 agreed.

Clause 23: Provisions relating to support: Scotland

Amendment 94 not moved.

Clause 23 agreed.

Clause 24: Provisions relating to support: Northern Ireland

Amendments 95 and 96 not moved.

Clause 24 agreed.

Clause 25: Suspension and revival of sections 21 to 24

Amendment 96A not moved.

Clause 25 agreed.

Clause 26: Procedure for certain regulations under section 25

Amendment 96B not moved.

Clause 26 agreed.

Clause 27: Amendments relating to sections 21 to 24

Amendments 96C to 97B not moved.

Clause 27 agreed.

Clause 28: Disapplication of modern slavery provisions

Amendments 97C to 98 not moved.

Clause 28 agreed.

House Resumed. Committee to begin again not before 8.13 pm.