Modern Slavery Bill

Public Bill Committee, 11 September 2014.

Clause 35 - General functions of Commissioner

Mark Pritchard (Conservative, The Wrekin)

I remind the Committee that with this we are discussing the following:

Amendment 111, in clause 35, page 25, line 1, at end insert—

“(c) the promotion and protection of the rights of victims of human trafficking and slavery.

‘(1A) The Commissioner must monitor the implementation in the UK of the Trafficking Convention, Anti-Trafficking Directive and other international obligations.”

Mark Durkan (Social Democratic and Labour Party, Foyle)

It is a pleasure to reconvene under your chairmanship, Mr Pritchard.

As our proceedings on Tuesday were interrupted when we were discussing this group of amendments, there is a temptation to rehearse points that have already been made in the style of, “Previously on this group of amendments…” I just want to say that new clause 20 reflects many of the concerns about the limitations of clause 35 that were raised by the hon. Members for Kingston upon Hull North, for Congleton and for Linlithgow and East Falkirk. In case members of the Committee have not detected the blindingly obvious, new clauses 19 and 20 are, in effect, the alternative clause proposed by the Anti-Trafficking Monitoring Group in its alternative Bill. As I indicated when we discussed new clause 19, it is a hanger to carry new clause 20, through which I am trying substantively to scope out the role of the commissioner to ensure that the role is not only to consider the issues of criminal enforcement and pursuit but to look much more widely at the response that is needed to the scourge of modern slavery, trafficking and exploitation in all its myriad layers and forms. I commend new clause 20, and I want to ensure that we can return to that issue.

I want to make a number of points on the commissioner without taking too much time, because there are countless other issues for us to address today. New clause 20 would provide the commissioner with more expansive powers, as the key aspect of victim involvement is missing from the Bill as it stands. There is also the question of qualification or protection against the role being turned into an “every case” ombudsman office, which it is not. Under the new clause, the office would be able to take and investigate cases on a judicious, strategic and selective basis because of the issues involved. The new clause also does not have the limitations or the curbs on the potential role or performance of the commissioner that clause 35, as it stands, will have.

Other hon. Members have already made the point that clause 35(2) introduces limitations on, and almost editorial control over, the work of the commissioner by saying that the commissioner can report to the Secretary of State only “on any permitted matter”. I will not rehearse the points that were usefully made by the hon. Member for Linlithgow and East Falkirk by pointing out the restrictions and qualification regarding a permitted matter. Subsection (3) also qualifies the commissioner’s conduct and provides for the Secretary of State to authorise a matter to be reported on. Furthermore, the strategic plan, which must also be approved by the Secretary of State, can also specify that the commissioner may report on a matter.

Given that our knowledge and understanding of modern slavery in all its forms has changed and developed even in recent years, I think it is wrong to put such restrictions and curbs on the work of the commissioner. As other hon. Members, and notably the hon. Member for Kingston upon Hull North, have said, it will be strange if legislation that the Government intend should be world-leading creates an office that falls well short of those that exist elsewhere, such as the comparable ones in Finland and the Netherlands.

We want to make sure that the commissioner can work beyond the geographical confines of England and Wales set out in later clauses. My new clause 20 is deliberately silent on territorial matters. Subsequent clauses refer to public authorities that would have to co-operate with the commissioner, and the ones that the Secretary of State might specify seem to be confined to those in England and Wales.

I have tabled other amendments to those clauses that would make appropriate devolved opt-in possible in relation to specifying authorities outside England and Wales. In many cases trafficking and exploitation chains are not confined to one jurisdiction within these islands, never mind one jurisdiction or state territory at the international level. Even recent cases that we cannot go into now, for obvious reasons, show such dimensions. The investigation of matters detected as happening at Tilbury has led elsewhere, including to Northern Ireland.

In the course of the commissioner’s examination of the wider performance of enforcement officers and support services—not just responding to the facts of detected crime but also prevention and encouraging people to come forward with evidence to help in the battle against modern-day slavery—it is important that they should be able to work across the jurisdictions I have mentioned.

New clause 20 and complementary amendments to subsequent clauses would provide openness. I want to prevent a situation in which the commissioner would have to say, “I can only look at what someone did in England and Wales. I cannot report on what relevant services did elsewhere. I cannot make any assessment about the quality of co-ordination, co-operation or engagement. I have no comment to make on the ‘joined-upness’ between jurisdictions, either in terms of further legislative changes that might be made or better meshing of information and operations between those jurisdictions.”

It seems to me that those things are exactly what we want the commissioner to do. As I have said in other contexts, given the anti-trafficking measures in the Northern Ireland Assembly, and the strength of support for them, I do not believe that any of the parties there would say that my approach is untoward. They would see it as complementary to their efforts, and as common sense.

That is an issue about the scope and effectiveness of the role. We need someone who is able to take those matters forward. It is about not only the geographic scope but trying to take things a bit further than the overemphasis on enforcement issues. I do not underestimate the importance of those issues, which is why I, along with others, supported some changes to earlier clauses. If we are to fight modern slavery on all fronts we need to ensure that we address all other aspects of the problem. Other answers are being developed, some of which have already been proving themselves and others are being developed by many other services beyond those in various areas of enforcement.

The Government moved on the draft Bill to allow more about identifying and promoting best practice, but I do not believe that those changes go far enough. New clause 20 goes a lot further to ensure that best practice is not just confined to law enforcement agencies, nor does it face a geographic, jurisdictional trip wire. I commend the new clause to the Committee as a better way of dealing with the issues. That said, I recognise and support the strong arguments that have been made for the other amendments in the group by the hon. Members for Kingston upon Hull North and for Congleton. I fully sympathise with them and have tried to encompass some of those issues in these and subsequent amendments. If we are here in the joint enterprise of ensuring that we have world-leading legislation, we need to have a bigger and better clause than clause 35 and some of the other clauses on the role and general functions of the commissioner; the general functions seem to be limited enough.

I have one further point on editorial control. The Minister challenged the hon. Member for Linlithgow and East Falkirk when he said that there would be limits on what the commissioner could report on. She stressed that the qualification would relate to anything in the report that would jeopardise the safety of the person. Clause 35(5) refers to anything that

“would be against the interests of national security; might jeopardise the safety of any person, or; might prejudice the investigation or prosecution of an offence.”.

Those things—the interests of national security or the possibility of prejudicing a prosecution—are sometimes invoked in answer to public concerns, parliamentary questions or doubts, often without explanation. Why something has happened is often left as a mystery; people are left suspecting that something untoward is involved or that some ulterior interest or agenda is being satisfied, other than the interest of justice, and of the victims’ rights and positions. We should be mindful of that limitation of clause 35.

New clause 20 will not go to vote today but I want to reserve the capacity for us to return to the issue. I hope that we can do so without having to force a Division on clause stand part. Mr Pritchard, I look forward to your direction on that, as was my intention when I addressed new clause 19. The role of the commissioner is hugely important. The Minister underlined that herself when she justified, in the early stages of our consideration, that the Government had gone ahead and essentially started advertising for the role of the commissioner. Given that the role is so important that it was actually advertised ahead of our deliberations, it is important for us to get the job description right.

Mark Pritchard (Conservative, The Wrekin)

Before I call David Burrowes, can I ask everybody—and I will lead by example—to ensure that their cell phones are switched off. It not only disturbs the proceedings, but this sitting is also being broadcast and it disturbs that as well.

David Burrowes (Conservative, Enfield, Southgate)

I wish to take part in the debate on clause 35, first in terms of stand part and then turning to amendments 119 and 120, which I support.

We are aware of the issue of conversion and dealing with those who may be reluctant to convert. I gently suggest that the Government could make their case more strongly in supporting the wide ambit and importance of the role of the commissioner and the functions that are referred to in clause 35. I say that because the Government’s response to the Joint Committee went further than originally set out in the draft Bill. They referred to the fact that

“On balance, the Government believes that a more tightly focused role is more likely to make a major, and speedy, operational difference to the fight against modern slavery.”

However, they then agreed to extend the commissioner’s role to include the

“focus on the effective and prompt identification of victims”

with

“specific reference to cooperating and working closely with national and international partners.”

Therefore, the Government maintain the view that they want to have a commissioner who is focused on ensuring that we make the difference to the fight against modern slavery operationally, and on holding the feet of all the agencies involved to the fire—the Minister referred to that leads meeting where she expects the independent commissioner to hold everyone close to the fire to ensure that we increase those successful prosecutions. However, it is important that proper reference is made to how we achieve that. Indeed, the Bill itself makes the position clear by recognising that it is focused on enforcement, but included in that, and to ensure successful prosecutions of offences, the commissioner must encourage good practice.

Clause 35(1)(a) refers to

“the prevention, detection, investigation and prosecution of offences.”

We do not hear so much about the prevention part of the commissioner’s role. Prevention covers quite a wide ambit that goes beyond the traditional view and the case being made about the commissioner’s role in enforcement. The explanatory notes on clause 35 refer to

“good practice in the prevention, detection, investigation and prosecution…and the identification of victims of those offences.”

The explanatory notes sell us a little bit short because they then say

“In practice the Commissioner will therefore focus on the effectiveness of the law enforcement response in England and Wales to encourage effective investigations leading to successful convictions of modern slavery cases.”

Of course that is the focus of the commissioner, but to enable that focus to ensure that we have the effective law enforcement prosecutions, we need to look at the functions of the commissioner.

Alongside the welcome introduction of an anti-slavery commissioner, we need to focus on the operational level, and to recognise the strategic and long-term level as well. I hope the Minister can reassure us that clause 35 properly enables the undertaking of support for conducting research. Indeed, subsection (2)(c) refers to the

“undertaking or supporting (financially or otherwise) the carrying out of research.”

The point is made that research is part of the function of the commissioner. What will that research entail? Will it be a study or investigation of the bigger picture of modern slavery in this country and how it reflects European international practice?

The evidence review chaired by the right hon. Member for Birkenhead (Mr Field)—we all pay tribute to his great work—made a number of recommendations about the anti-slavery commissioner. It said the commissioner should focus on collecting and analysing data about modern slavery and on monitoring

“contemporary and emerging trends such as the role of the internet in coercing potential victims of modern slavery.”

For the commissioner to ensure that there is an effective law enforcement response, they must be able to gather research and monitor trends, including the role of the internet. Amendment 119 would give them that power.

The amendment highlights the importance of having a wider perspective. The anti-slavery commissioner will be uniquely placed to draw on the experience of front-line officers, investigate and map emerging trends and compare them with intelligence from other jurisdictions. They will be able to use and analyse that knowledge to inform and equip front-line officers, to understand and respond to the big picture, and to support the law enforcement response.

I am sure the Minister will reassure me that the reference in the Bill to carrying out research means that the commissioner should look at the wider, systemic aspects of modern slavery. I understand that it is not necessary to include in the Bill all the ways in which the research and monitoring can be carried out, but I want to ensure the Bill contains that understanding.

Amendment 119 would give the anti-slavery commissioner the power to request that statutory inspections are carried out, as my hon. Friend the Member for Congleton said. Plainly, the commissioner will not be able to usurp the important statutory role that inspectors play, but they will need to receive important information, and, in their unique role, they may raise concerns about things that warrant further investigation and statutory inspection. That power is particular relevant to our aim that the commissioner promotes good practice in the identification of victims. The Government accepted that the commissioner should have that additional remit. That power has particular traction when it comes to research on migrant women in prison or immigration detention centres. My hon. Friend the Member for Brent Central may wish to expand on that point, because our cross-party inquiry revealed that a high number of trafficked women have not been identified by the institutions that they are in because the way detention centres operate is not conducive to their revealing that they were trafficked. My hon. Friend the Member for Congleton said that a request from the commissioner to Her Majesty’s inspectorate of prisons about prisons’ ability to identify victims of trafficking could help to promote good practice and improve the level of identification.

Sarah Teather (Liberal Democrat, Brent Central)

I thank the hon. Gentleman for raising that issue. The Minister may not be aware that he and I serve on a cross-party parliamentary inquiry looking at immigration detention. In our first hearing, we heard from a gentleman who had been trafficked and was held in Colnbrook for three and a half years. He found it extremely difficult to get people to understand that evidence, and it was extremely difficult for him to leave detention. Therefore, it is not only female victims of trafficking who find themselves stuck in detention.

David Burrowes (Conservative, Enfield, Southgate)

That is a very good point. It shocked us all that he was in detention for three and a half years. We need to ensure that more is done, and the commissioner can play an important role in identifying victims. The Government have accepted that the commissioner should have that remit, and it is important that that is amplified. That role does not necessarily have to be in the Bill, but I hope the Minister will assure us that the commissioner will be able to hold all those feet to the fire, including not only at the leads meetings that the Minister spoke about but in other bodies that are involved in tackling modern slavery. We must ensure that we can more quickly and effectively identify victims of modern slavery.

Amendment 120 is about engaging with civil society. No one here would argue that we do not want to engage with civil society, and there has already been a lot of engagement with civil society on the Bill. The Minister has been very much involved in that and has heard from the non-governmental organisations, those on the ground who are the experts and know best what is happening.

It is also important to refer to other jurisdictions and countries that have an interest in what we are doing. The US State Department’s “Trafficking in Persons” report made a recommendation that is relevant to the anti-slavery commissioner. It recommended that the Government should

“establish an independent anti-trafficking coordinator to ensure assessments of anti-trafficking efforts are transparent and allow for NGO feedback to facilitate self-critical, comprehensive recommendations in each region.”

Subsection (2)(e) refers to consulting people. No doubt that will include NGOs, charities and so on. We have to engage constructively with those people because their expertise and practical knowledge is of immense value.

It is also worth recognising the importance of this not only for the law enforcement arm of the commissioner, but the identification of victims remit. We know from the last strategic assessment from the National Crime Agency that 65% of the potential victims identified through that assessment had not been referred to the national referral mechanism. That will be the subject of later debates.

Understanding the full picture in relation to modern slavery, promoting best practice, identifying victims and investigating crime will require working with the NGOs—the people who can provide as much insight as possible into what is happening out there in relation to identifying victims, and also provide practical support in the long term. In many respects, that contact and that understanding has no immediate and direct connection to formal law enforcement or to the courts and those agencies traditionally involved, but it has a key role to play in the commissioner’s remit of identifying victims. Amendment 120 offers the possibility of referring specifically to those civil society groups in the commissioner’s role.

Andrew Stunell (Liberal Democrat, Hazel Grove)

I remind the Committee that I said at an earlier sitting that I found new clause 20 attractive and that it mirrored my own thinking on where we should be going. I subsequently heard the Minister say that it might constrain the way that the commissioner operates, which I find a little difficult to take on board, bearing in mind new clause 20(8). Could the Minister explain the extent to which the very wide range of activities in the new clause would all be permitted under clause 35?

Clause 35(2)(f) refers to

“co-operating with or working jointly with other persons, in the United Kingdom or elsewhere.”

That might help the hon. Member for Foyle in relation to one part of the argument that he advanced. But there are other aspects of this which he has very properly put on paper. They reflect the wider range of activities that many of us in Committee, and certainly all of us on the Joint Committee, thought should be part of the commissioner’s full role.

I hope there is not, but I detect that there may be, a philosophical difference between what the Minister thinks the commissioner should be doing and what the Joint Committee and I think the commissioner should be doing, which is taking a holistic lead across government and across policy areas on what is needed to end modern slavery. That is not confined to just getting the prosecution rate up. If the Minister can help me on that and show me that there is nothing in new clause 20 which is not already permitted or enabled by clause 35, I would be satisfied to some degree. That is the nub of the debate we are having on the matter.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank members of the Committee for tabling the amendments and new clauses we are discussing today and for their contributions to the debate, which has been thoughtful and extensive.

The proposals we are discussing seek to extend the role and independence of the anti-slavery commissioner. Clause 35 sets out the general functions and remit of the anti-slavery commissioner. The commissioner’s general functions are based on two core, but broad, functions. The first is to

“encourage good practice in—

prevention, detection, investigation and prosecution of offences”.

The second is

“(b) the identification of victims of those offences”.

In performing those very broad functions, the commissioner can undertake a wide range of activities, including making recommendations to any public authority; undertaking or supporting research; providing information, education or training; consulting people; and co-operating with or working jointly with other persons both in the UK and elsewhere.

The commissioner will do that, not only by working with law enforcement agencies to strengthen their response to modern slavery, but by working with other front-line agencies and NGOs. Despite suggestions from some Committee members, we did actively listen to and consider all of the pre-legislative scrutiny Committee’s recommendations. That is why we have amended clause 35, to make it clear that the commissioner has a fundamental role in the effective identification of victims, and that they should and must engage with international counterparts to strengthen our collective fight against modern slavery in the UK and abroad.

In practice, the commissioner will work with the police, the National Crime Agency, local authorities, the Border Force and NGOs, as well as a range of other bodies to ensure that modern slavery is prevented and, where it is detected, effective investigations and prosecutions are launched.

Our aim is for victims to be quickly identified and supported, the perpetrators tracked down and effectively prosecuted and for us to learn from this to drive a consistent and co-ordinated response that is spearheaded by the commissioner. In carrying out those functions, the commissioner will make reports to the Secretary of State on any permitted matter. A permitted matter is any matter that has been agreed and authorised by the Secretary of State, either through the strategic plan or any other matter so agreed.

The strategic plan will be agreed with the Secretary of State, a provision designed to ensure that the commissioner’s activities remain aligned with their general functions and a coherent overall strategy to counter modern slavery. I am well aware that the anti-slavery commissioner may criticise Government and public authorities. It is absolutely correct that the commissioner should have that right, and I fully expect the commissioner to exercise it.

That criticism has a purpose: to support the fight against modern slavery. A partnership between the commissioner and the Secretary of State on the initial priorities in the plan will help ensure that even the toughest of reports are helping to drive real improvements. I am sure that our provisions on the making and laying of reports and strategic plans will be discussed in more detail when we reach clause 36, which sets out those provisions.

Having such a senior figure dedicated to tackling modern slavery and ensuring that law enforcement agencies do all they can to target and bring justice to those who seek to profit from the misery of others is vital.

Amendment 50 seeks to expand the role beyond law enforcement and the identification of victims to cover support for victims, including their advocates. A number of other proposals, such as amendment 111 and new clause 20, would have a similar impact. I entirely understand the sentiments behind the amendments. Supporting victims is a critical part of the Government’s strategy and a priority focused on by the pre-legislative scrutiny Committee.

We will soon debate a series of measures to protect victims. However, I want to assure the Committee that the role we have set out is sufficiently wide to assist the commissioner in making a real difference both to catching criminals and to protecting and supporting victims.

Provisions setting out the general function of the commissioner are not over-prescriptive for the reasons raised in debate today and on Tuesday. We want the commissioner to have the autonomy to decide whom to consult and draw on, how they can best prevent and detect modern slavery and how they can work with front-line agencies to strengthen the identification of victims and support them to give evidence.

It would simply be wrong to attempt to dictate how we expect the commissioner to operate. That would unnecessarily constrain them.

Diana Johnson (Labour, Kingston upon Hull North)

I am listening to the argument the Minister is putting forward. I wonder, on the basis of what she just said, why she is not willing to accept amendment 50(d), which would add the words:

“any other area which the Commissioner feels is relevant to identifying and preventing human trafficking in the UK or elsewhere.”

That leaves it to the discretion of the anti-slavery commissioner to decide if it is something they need to look at. That would not narrow the scope; it would give the commissioner the opportunity to take up an issue they feel is of concern.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the shadow Minister for her comments, and I will discuss the specifics of the amendments shortly. Our primary aim is for the commissioner to deliver a real change on the ground, quickly, that will help victims and prevent more people from becoming victims in the first place.

We have debated the offences in the Bill, and Committee members quite rightly raised the issue of the current low level of prosecutions and convictions. The biggest gap in tackling this terrible crime is probably our collective ability to track down the perpetrators and lock them up for a long time. I do not believe that the main reason for the low level of convictions is necessarily the detailed drafting of the offences. Historically, law enforcement agencies, public authorities and, indeed, many of us here have not focused sufficiently on tackling modern slavery. I know that some people in the room have dedicated their life’s work to this, and I pay tribute to them, but too many people and agencies have not focused in that same way. I want to ensure that they do.

None of us has been aware enough of the problem. Before coming into this role, I was aware of modern slavery but frankly did not pay it enough attention. I want to ensure that is not something we are guilty of in future. We have not always appreciated the gravity of the abuse involved and have perhaps all been caught out by the complexity and hidden nature of the crime, which makes the effective identification of victims very challenging. That is exactly why the commissioner’s role is specifically dedicated to tackling modern slavery in all its forms and to strengthening the law enforcement response, alongside improving the identification of victims through law enforcement agencies and all agencies that may come into contact with potential victims. We need a strategic leader who will influence front-line professions, including all those in law enforcement agencies, to make tackling modern slavery in all its forms a priority. The role will have a clear focus and remit, ensuring that all those involved in identifying victims and bringing the perpetrators to justice do so effectively and efficiently.

The Government would be concerned if the commissioner focused on a general advocacy role rather than identifying key practical improvements, or if the role cut across other strategic roles such as that of the Victims’ Commissioner. We do not want to create a role that duplicates that of other commissioners. The Victims’ Commissioner has an important role in dealing with victims, including victims of modern slavery, and we will do victims a disservice if we just duplicate the role without looking at those gaps. In her evidence to the pre-legislative scrutiny Committee, the Victims’ Commissioner said:

“I believe there is a danger of setting a two-tier approach for victims going forward. We need to work towards creating consistency for victims across the board and consideration should be given to the role”—

that is, the role of the anti-slavery commissioner—

“being aligned to my office to ensure a co-ordinated approach that supports and does not divide victims based upon the crime they suffer. Such a move would ensure that work could begin with immediate effect as the Bill passes through the legislative chambers therefore protecting and safeguarding many vulnerable people and preventing an unnecessary delay whilst a new, and indeed similar post to the Victims Commissioner is created.”

However well meant, I believe that a number of the amendments which aim to extend the commissioner’s role would not ultimately help victims be identified and see justice done. What is really in the interest of victims is a focused commissioner who helps public authorities to identify victims early and put their abusers behind bars.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Does the Minister accept that many people who have worked most with victims strongly support the amendments and believe they would make a difference? Those people know a lot about this problem, from experience over many years, while she herself has admitted she has come to understand this problem more latterly.

Karen Bradley (Conservative, Staffordshire Moorlands)

I fully appreciate that all the amendments and suggestions we have had on the Bill have been put forward with the best of intentions. I have enjoyed and appreciated the contributions to our debates over the past couple of weeks, and we will continue to debate these issues. In making it clear to whomever is appointed commissioner, it is important that we make clear the role Parliament expects them to undertake.

However, we are in danger of duplicating roles that already exist in relation to victims—roles the Victims’ Commissioner undertakes—which would be detrimental to our overall aim of making sure we protect victims by catching and convicting perpetrators. We need to make sure there is a balance in what we do. I fully appreciate the good intentions behind the amendments, but some may actually duplicate roles. Having two people doing the same thing, with nobody dealing with the gap we have talked about in so many of our debates, would do people a disservice.

I do not want to give the impression that the Government are unwilling to listen on this issue. The pre-legislative scrutiny Committee’s recommendations have already caused us to rethink and improve the commissioner’s role. I continue to listen throughout all our debates, and I will take away and consider any sensible and practical improvements that could be made in the Bill or outside it, in the wider policy framework. It is important to recognise that we are working on a wider policy framework, and we need to look at what we can do through it.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister refers to the different roles and posts. She said she wants to avoid overlap, and she also talked about possible gaps. Surely, however, under the added remit in many of the amendments, the commissioner would be responsible for making sure there were no gaps and that there were appropriate memorandums of understanding. That would be part of the recommendations they would make under the amendments.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come to my comments on the amendments and the new clause shortly. However, the roles of all the commissioners we have been talking about are comparable-ish, although I recognise that, in many cases, we are comparing apples and pears—statute allows their role to be broad. The statutes that set up those roles do not dictate what the commissioner or other body should or should not do; that is left to them.

We want the Bill and the commissioner to be future-proofed. I do not want to say in detailed legislation today what I think the commissioner should do. I appreciate that the hon. Gentleman’s new clause is broad, but more issues could always arise. The commissioner will absolutely be a leading expert, so I want to leave them free to decide themselves how best to tackle slavery, without us dictating here today the appropriate way to do that.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Will the Minister give way?

Karen Bradley (Conservative, Staffordshire Moorlands)

I will, but then we should make progress.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Do the new clause and the amendments preclude anything by way of future-proofing that is not precluded by clause 35?

Karen Bradley (Conservative, Staffordshire Moorlands)

As I say, I will come to my detailed comments about the new clause shortly. The problem with this offence is that it constantly changes. We should bear it in mind that, whenever we try to have any form of—albeit non-exhaustive—prescription today, we potentially create problems for the future. Given that there is no need for prescription for any of the other commissioners—we have seen the way in which their roles have evolved—I do not want to turn around now and say, “This has been a success in the past. It has worked for other commissioners. But we don’t think it is going to work for this commissioner.” That does not sit well with where we are as a country, in that we are just getting to grips with what this crime looks like and what it can mean.

Diana Johnson (Labour, Kingston upon Hull North)

Will the Minister give way?

Karen Bradley (Conservative, Staffordshire Moorlands)

One final time.

Diana Johnson (Labour, Kingston upon Hull North)

I just want to be clear. Is the Minister saying that clause 35(1)(a) and (b) do not prescribe the role of the anti-slavery commissioner, because it seems to me that they prescribe its limits very clearly?

Karen Bradley (Conservative, Staffordshire Moorlands)

I am sure the hon. Lady would agree that the remit is broad. If we are saying:

“The Commissioner must encourage good practice in—

(a) the prevention, detection, investigation and prosecution of offences”

and

“(b) the identification of victims of those offences.”,

that is an incredibly broad remit, which we can then give the commissioner free rein within, bearing in mind that other commissioners perform other roles in Government. Within that remit, we are giving the commissioner free rein to do as they see fit to help us all to tackle this crime. Is it prescriptive? By dictionary definition it is, but it is an incredibly broad prescriptive list. Prevention of modern slavery offences could include many, many different actions and activities.

Diana Johnson (Labour, Kingston upon Hull North)

Will the Minister give way?

Karen Bradley (Conservative, Staffordshire Moorlands)

I did say that the last time was the final time, but because the hon. Lady is so polite, I will give way again.

Diana Johnson (Labour, Kingston upon Hull North)

I stress again that if we really are serious about saying to the anti-slavery commissioner, “If something comes up that they feel they must look at”, paragraph (d) in the amendment—

“any other area which the Commissioner feels is relevant”—

would allow the anti-slavery commissioner to have that wider approach. I still think the Minister’s proposal is limited. It excludes support for victims and any other issue that might come up in future. As she said, this is a fast-moving area and issues might arise that we cannot think of today.

Karen Bradley (Conservative, Staffordshire Moorlands)

I was going to deal with that issue shortly, but let me do so now. The Bill does not dictate how the commissioner will undertake the broad remit set out in clause 35(1). We believe there is no need for a statement to that effect. It is clear from clause 35(2) that the Bill is not dictating how the commissioner will undertake his or her remit; it gives only a few high-level examples of what the commissioner would do. The commissioner absolutely has a role in encouraging good practice and identifying and preventing human trafficking in the UK, but it would not be appropriate for them to try and police the world. However, I recognise that co-operation with other jurisdictions is vital. I hope that covers the hon. Lady’s point.

Michael Connarty (Labour, Linlithgow and East Falkirk)

Will the Minister give way?

Karen Bradley (Conservative, Staffordshire Moorlands)

This will be the final time.

Michael Connarty (Labour, Linlithgow and East Falkirk)

I am not sure whether the Minister was involved in preventing the plumber I was waiting for from 9 o’clock this morning from arriving, but that was why I came late. The submissions I mentioned in the last session were all from independent organisations, including two commissioners, who were clear that they wanted a much broader scope in the Bill. The draft from the Joint Committee, which I did not refer to in detail, was quite clear about it being much broader. The Minister is really toiling to answer the question asked by my hon. Friend the Member for Kingston upon Hull North. This is such a restrictive clause. It seems to say, “Leave it to the civil servants, who will advise the Minister to extend this remit by some osmosis, without putting it in the Bill”, which means that there is a possibility it will never be extended, and we will have a restricted remit for the commissioner that will not function properly.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the hon. Gentleman for his comments. I am not sure whether I am pleased to see him here fighting modern slavery or whether he should be saving the Union elsewhere, but I am always delighted to see him. I will come on to those points. He made points on Tuesday and we will discuss the matter further, but I feel that being prescriptive today, in a way that we do not need to, will just hamper whoever takes on this very important role.

The remit set out in clause 35(1) is very broad, involving

“the prevention, detection, investigation and prosecution of offences”

and “the identification of victims”. That is an incredibly broad remit and I do not want then to dictate within that remit what the commissioner will do and how they will go about doing that. I do not want to dictate to the commissioner, nor do I want civil servants to do so; the commissioner is independent and I want them to make their own decisions.

It should be noted that the Modern Slavery Bill now includes two significant changes compared with the proposals set out in the draft Bill. First, the commissioner’s role has been extended in subsection (1)(b) to focus on the effective and prompt identification of victims. This is essential both for the protection of victims and for effective prosecution. This change will help both to ensure that victims are identified quickly by front-line professionals, and to support the commissioner’s overarching remit to encourage good practice in the prevention, detection, investigation and prosecution of modern slavery offences. Secondly, the role has been extended to ensure that the commissioner can co-operate with agencies and organisations in other jurisdictions to ensure a joined-up law enforcement response. Both these changes significantly improve the role in a way that retains a clear and unambiguous focus.

Amendment 119, tabled by my hon. Friend the Member for Enfield, Southgate, seeks to expand the commissioner’s role to undertake

“investigations and studies to monitor and identify trends in human trafficking and slavery”,

and to request

“inspections to be carried out by statutory inspectors”.

While I fully understand the reasoning behind the amendment, it is not necessary to enable the commissioner to perform his remit effectively. Clause 35(2)(c) states that the commissioner can undertake or support

“the carrying out of research”.

While the commissioner can undertake research, I point out that the commissioner is not designed to be akin to a national rapporteur. They are different, and for a very good reason. We want to tackle specific issues we face here in England and Wales. As I have said, they will have responsibility for promoting good practice in the prevention, detection, investigation and prosecution of modern slavery offences.

My hon. Friend the Member for Enfield, Southgate asked whether internet usage research could be undertaken by the commissioner. It would be in the commissioner’s remit to undertake research on new ways in which modern slavery offences are committed, such as the example of the use and abuse of the internet. This example could be relevant to the prevention or detection of offences, and for identifying victims.

My hon. Friends the Members for Enfield, Southgate and for Brent Central talked about the commissioner’s role in identifying trafficked victims in immigration detention. The commissioner’s remit includes,

“encouraging good practice in the identification of victims”

and detection of modern slavery offences. Identification of victims may take place in a variety of contexts, including in immigration detention. Any problems with victim identification in immigration detention would be in the commissioner’s remit as set out in the Bill. The commissioner can also engage with statutory inspectorates and make recommendations for activity through his or her reports, as part of fulfilling the general functions of the role. In addition, the commissioner’s role is not intended to act as an ombudsman or to examine individual cases. It would not be appropriate for them to direct inspectorates do so either. On that basis, I do not believe that the amendment is needed and hope that my honourable Friends will agree to withdraw it.

Amendment 51 and aspects of new clause 20 seek to allow the commissioner to produce reports on any issue that they think is relevant, rather than agreeing the focus of their activities with the Secretary of State. A number of Members have raised the issue of independence, suggesting that the commissioner’s role is not sufficiently independent. I understand the reasons for the concern, but I believe the commissioner will be independent.

Amendment 52 and new clause 20 seek to provide the commissioner with the power to determine their own activities, timetable, priorities, resources and funding without reference to the Secretary of State. I understand the motivation for these amendments and I respect the independence of the new commissioner, but I do not believe they are practical, necessary or in line with other equivalent bodies.

On the commissioner’s budget, I am not aware of any equivalent organisation that by law can set its own budget, without limit. That is not a basis for an efficient and effective role. While it is right that the commissioner has the ability to influence the organisations and agencies that are responsible for tackling modern slavery, they also have a responsibility to the taxpayers in this country and to Parliament.

As I have said previously, the commissioner will be supported by a small office composed of civil servants. The commissioner will play a key part in appointing appropriate individuals to ensure that they have confidence in their team. I do not believe that it is appropriate or necessary for the commissioner to appoint their own external staff through an independent HR service. Our approach is consistent with support arrangements for the Victims’ Commissioner.

Amendment 120, tabled by my hon. Friends, seeks to include a reference that the commissioner may consult civil society organisations. I fully understand the reasoning behind such an amendment and have complete sympathy with its intentions, but I simply do not believe it is necessary. The commissioner already has the ability to consult with other persons as they see fit in carrying out their general functions. That includes working with civil society organisations. I hope that on that basis my hon. Friends will see fit to withdraw the amendment.

I believe that the role as set out will maximise the practical difference that the commissioner makes. The commissioner will set their priorities in consultation with the Secretary of State, who has responsibility for the police and the National Crime Agency. That will help to ensure a partnership with the commissioner that is focused on activities that are targeted and are the ones that require most attention, and it maximises the chance that the commissioner’s recommendations will be looked at sympathetically, enhance the Government’s programme to end modern slavery, and be implemented on the ground.

In this country, we already have well established victim care arrangements and are seeking to improve those further through the review of the national referral mechanism and the retendering of the victims care contract. The commissioner’s role is deliberately focused on a specific gap that we have identified, and which we have discussed at length in Committee, in the law enforcement response and the ability of public authorities to identify victims. I do not wish to see that role diluted into a general advocacy role. I want to see a commissioner who has the authority and autonomy that they need to carry out their functions effectively, while ensuring that their remit is clearly focused. Given that, I hope that the right hon. and hon. Members will feel able to withdraw their amendments.

Diana Johnson (Labour, Kingston upon Hull North)

We have had a very useful debate about the role of the anti-slavery commissioner. I particularly welcomed the contribution from my hon. Friend the Member for Foyle. There is a compelling case for new clause 20. It is, as he described, a bigger and better clause.

There was also the contribution from the hon. Member for Congleton, who of course served on the Joint Committee and has a great deal of knowledge and experience. She has listened to the evidence about the role that the anti-slavery commissioner should have. Her concerns about data, statutory inspections and civil society, which are shared by the hon. Member for Enfield, Southgate, are valid. It was disappointing to hear the response from the Minister.

The hon. Member for Enfield, Southgate made a very worthy attempt to persuade the Committee that clause 35 as drafted would give the anti-slavery commissioner the widest possible role in looking at the problem of slavery and trafficking, but I still feel that amendment 50, which would add paragraphs (c) and (d) in relation to the functions of the commissioner, would help to show, when people were looking at the role, that we were concerned not only about the prevention, detection, investigation and prosecution of offences and the identification of victims, but about the support offered to victims. It has been said a number of times by many members of the Committee that the support given to victims will be very important in ensuring that we see more prosecutions being brought, which is what every member of the Committee wants. Paragraph (d) would also give the commissioner the ability to take up issues that come to light in the future that we have not thought of today and allow them to do that job as effectively as possible.

Karen Bradley (Conservative, Staffordshire Moorlands)

I realise that I did not cover, in my contribution on new clause 20, whether there was anything in new clause 20 that I did not feel would be covered in the remit as we see it. I want to say on the record that the remit in the Bill is broad. It will allow the commissioner to take a lead on ending modern slavery by encouraging good practice in preventing future modern slavery offences, identifying current victims and prosecuting existing offenders. Therefore, although the remit has a law enforcement focus, I do think that it will allow for the leadership role that my right hon. Friend the Member for Hazel Grove and the hon. Member for Foyle wish to see. I hope that that helps to give them the comfort that they need.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Minister for putting that on the record. My concern is that we are today legislating on clause 35—deciding whether this is a fit-for-purpose clause—and that it could be improved. The Joint Committee, when it took evidence on the matter, also thought that the clause could be improved and made suggestions about how that could happen.

The range of existing commissioners—for example, the Victims’ Commissioner and the Children’s Commissioner—will have areas in common but can work in partnership and ensure that all the bases are covered.

I do not see why making it clear that the anti-slavery commissioner has a role in looking at the support offered to victims of trafficking and slavery and a wider remit to take up issues that they are concerned about would in any way mean that existing commissioners would be pushed aside or unable to do their job. It is all about working in partnership and co-operating across the different roles to ensure that we put the needs of victims and those who have been trafficked at the centre of the anti-slavery commissioner’s role.

Karen Bradley (Conservative, Staffordshire Moorlands)

I am not sure whether I was clear enough, but I do not see the anti-slavery commissioner not working with other commissioners. I see them absolutely working with all of them, but I do not want the role of the anti-slavery commissioner to duplicate those of the other commissioners with the focus on something that we are already doing. I want the anti-slavery commissioner to fill the gaps that we have all talked about—public awareness, law enforcement agencies, training, the public sector identifying the signs—so that when a victim is seen, people will know that the anti-slavery commissioner is the person to go to and that that commissioner will work with the Victims’ Commissioner, the Children’s Commissioner and all the other commissioners to ensure that the right support is given to victims to ensure that we give them some hope for the future.

Diana Johnson (Labour, Kingston upon Hull North)

I am grateful to the Minister for setting that out. I am worried that we are constructing a narrow approach for the anti-slavery commissioner. If there is some overlap with the roles of other commissioners, that is no bad thing if it means that the concerns and needs of victims will be covered not just by one commissioner but by several. If a child has been trafficked they are obviously a victim and would also come within the anti-slavery commissioner’s role. It is all to the good if there is joined-up thinking about how to deal with that. The definition in the clause is just too narrow and I will press the amendment to a vote.

Clause 36 - Strategic plans and annual reports

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 113, in clause 36, page 25, line 29, at end insert—

‘(1A) When preparing the strategic plan the Commissioner must give consideration to any proposal submitted to the Commissioner from any Parliamentary Select Committee. If the Commissioner does not accept the Committee’s proposal the Commissioner must write to the relevant Committee explain the decision.”

Mark Pritchard (Conservative, The Wrekin)

With this it will be convenient to discuss the following:

Amendment 114, in clause 36, page 26, line 4, leave out “Secretary of State” and insert “Parliament”.

Amendment 107, in clause 36, page 26, line 12, at end insert—

‘(8) An annual report can also include observations and recommendations as to the adequacy, efficacy and co-ordination of measures, policies and performance of relevant services including public authorities as specified in Clause 37 section 5 or under relevant devolved powers.”

Amendment 115, in clause 36, page 26, line 13, leave out subsection (9).

Amendment 116, in clause 36, page 26, line 18, leave out “Secretary of State may” and insert “Commissioner must consult with the Secretary of State and”

Diana Johnson (Labour, Kingston upon Hull North)

This group of amendments again relates to strengthening the role of the anti-slavery commissioner and Parliament’s role in looking at the work of the anti-slavery commissioner and suggesting what work they might do. Amendment 113 would require the commissioner to give consideration to proposals by any Select Committee on work that it believes the commissioner should undertake. If the commissioner felt that such work was not appropriate, he or she should explain why not. Amendment 114 is designed to strengthen the role of Parliament by requiring the commissioner to lay his or her annual report before Parliament rather than before the Secretary of State. Amendment 115 would therefore remove the requirement for the Secretary of State to lay the report before Parliament. Amendment 116 is designed to deal with the situation that we discussed in our debate on the previous clause, whereby a report might contain matters related to national security, the safety of an individual or an ongoing investigation. The amendment would tidy up the provision by requiring the commissioner to consult the Secretary of State if such matters need to be addressed before the report goes to Parliament.

As I have said, the amendments are designed to strengthen the role of the anti-slavery commissioner, and to strengthen the role of Members of Parliament in looking at the work that is carried out. In recent times—certainly since I entered the House of Commons in 2005—the role of Select Committees has been beefed up by the election of Chairs, and the Committees have carried out important scrutiny of what is going on. At times, they come up with sensible suggestions and requests to Government about changes that should be made in legislation or policy. Over the past few days, for example, the Home Affairs Committee has been investigating the report on child sexual exploitation in Rotherham and recent events there, and it has already started to make recommendations.

If an important Committee, such as the Home Affairs Committee, comes across information or evidence that it believes to be important for the anti-slavery commissioner to look at, it should have an opportunity to request that the commissioner consider it. Out of respect to Parliament, if the commissioner decides not to investigate or put together a report, they should convey to Parliament the reasons why they have decided not to take any action. The amendments fit with our belief, which I think is shared by almost all Members of the House of Commons, that the power of Members of the House to deal with problems that come up must be strengthened. Members of Parliament should be able to ask commissioners and other bodies to investigate matters of concern. That is why we have tabled the amendments.

I emphasise the need, which the Bill already reflects, for Parliament to have access to the commissioner’s annual report at the end of each year. I believe that that report should be laid before Parliament. What does the Minister think about the fact that, according to the Bill, the annual report will be given to the Secretary of State and subsequently laid before Parliament? What does she believe will happen to the report? Will a Minister press the usual channels to ensure that it is debated on the Floor of the House? Does the Minister expect the Home Affairs Committee to hold evidence sessions about the contents of the report? I simply want to be clear about what the Minister thinks the report will receive in terms of parliamentary time and scrutiny, because that is important.

I also wanted to note that when the Joint Committee looked at the area of reports, it recognised that, as I referred to earlier, the Government were concerned that certain information that might cause problems—whether for national security, the safety of an individual or an ongoing investigation—should not be put into reports. However, in its report the Joint Committee referred to the fact that other jurisdictions deal with that issue in a different way; for example, in Australia, it is left to the anti-slavery commissioner to redact information that could cause issues for national security, and so on, and there is no need to go through the Secretary of State. Will the Minister comment on that?

Will the Minister also comment on what the Joint Committee said about the role of the independent reviewer of terrorism legislation? He or she can report on whatever they feel is appropriate without the need for a power for the Secretary of State to redact, like the one set out in the Bill. The independent chief inspector of borders and immigration can also put into their reports whatever they feel is appropriate and necessary.

I am interested to hear what the Minister has to say about the situation in Australia and the powers of the two independent officials I have mentioned. I am also interested to hear what she thinks Parliament will do with the reports, what options there will be for effective scrutiny and in particular whether Select Committees will be able to ask the anti-slavery commissioner to investigate matters of concern.

Andrew Stunell (Liberal Democrat, Hazel Grove)

Briefly, I wish to ask the Minister what the scope of the strategic plans will be. For me, the two words that are relevant here are “permissive” and “exclusive”. It a obviously good idea that the Secretary of State and the commissioner should have an agreed strategic plan of action and that that should be public and shared; there is a great deal of common sense in that and it is surely unexceptional. The question is whether the strategic plan can take account of changing circumstances and emerging factors that the commissioner may feel need either urgent attention or attention that is critical of the Government, if it appears that some aspect of policy is not delivering in the way that it should.

I hope I will get an assurance in the Minister’s response that the strategic plan is not intended and will not be used to limit the effective scope of the commissioner, if the commissioner sees the need to reach beyond what is written in the plan for that year.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I support the lead amendment, which was moved by my hon. Friend the Member for Kingston upon Hull North. Making provision for matters referred to the commissioner by Select Committee seems to me to be exactly in keeping with the spirit of future-proofing that the Minister talked about in response to the previous group of amendments. As she said, our understanding and knowledge of this crime and the necessary responses to it are going to change, and the fields of interest of Select Committees, whether as they are constituted now or as they may be in future, could bring aspects of the problem of modern slavery to their attention.

The Government have committed to making sure that all the arrangements work much better on a cross-Government basis; the amendment would ensure that the parliamentary arrangements and input on these issues would match that commitment, so that the perspectives, interests and different angles of vision of Select Committees could be part of the cross-Government view, rather than that relying on what is decided or spotted by relevant Ministers and officials within different Departments. I therefore support the amendment.

Building in references to Parliament would add a dimension of independence. The Minister has seemed reluctant to concede that independence in other wording. We have previously considered amendments that would have inserted the word “independent” into earlier clauses. In the last group of amendments, subsection (8) of new clause 20, which I tabled, specified issues to protect the obvious working independence of the Commissioner. I know that in the past the Minister has said, “Well, we have to be careful about using the word “independent” in ways that might be difficult”, but I do not accept that argument. The more that we can point to dimensions of independence, and input and interest other than just that of the Secretary of State, the better; that is key.

We cannot anticipate the debate that we will have on subsequent amendments that address the issue of supply chains, for instance. However, regarding the principle of independence and showing that these things will not just be controlled by Government, it is important that we do not have a future situation under this Bill and the work of the commissioner’s office—particularly if that office is going to scope itself out in the way the Minister suggested it would be able to do, even under the Bill—whereby Ministers are approached by particular companies concerned about how some issues are being handled, discussed, or reviewed, or even by particular countries, which might find themselves being named and dealing with issues and questions of enforcement and other practices in their jurisdictions, on the assumption that because this is a matter of law and is under Government control and the apparent control of Ministers, they can use Ministers to ensure that issues are not opened up in a way that would be uncomfortable for them.

If Ministers are approached in that way, the more that they are able to say that this matter is handled independently, that there are other dimensions of independence and that it is not for them to deal with, because these things are not under their choke lead, the better. And I say that not just in relation to amendment 113; it seems to apply to the other amendments that the hon. Member for Kingston upon Hull North has tabled.

Amendment 107, which I tabled, is basically trying to ensure that the annual report that it is envisaged the Commissioner will produce will also include observations and recommendations about the adequacy, efficacy and co-ordination of the measures, policies and performance of relevant services, including not just the public authorities specified elsewhere in the Bill but public authorities that could be specified under relevant devolved powers.

The amendment recognises the need for us to ensure that the work of the commissioner is not simply confined to England and Wales, and Departments and agencies dealing with England and Wales, but rightly recognises the locus of the devolved authorities in determining what other agencies’ work and performance might be considered by the commissioner. And of course it is not necessarily saying that the commissioner would directly look at exactly what is being done within Northern Ireland by any given agency. It is cast in a way such that the commissioner would look at the co-ordination of services between jurisdictions, and the issues of performance between jurisdictions, because those are areas where problems arise in other respects.

Those engaged in this crime are cynical and sophisticated enough to use and abuse various jurisdictional sensitivities, so that the patterns, features and facts of their crime are not fully or properly countered or detected by law, and of course we want to ensure that the commissioner is equipped to trace and track that criminal activity, and to exhort all improvement and effort against it.

This matter is also important, given the kind of things we have heard this week. Depending on what happens in the vote in Scotland next week, if we are talking about supersized devo-max for Scotland and additional devolution for Northern Ireland and Wales, we might find that there are even more services in which border issues arise in relation to jurisdiction and scope of effort. We want to ensure that the commissioner is properly able to address those issues sensibly as and when they arise. In our consideration of previous amendments, the right hon. Member for Delyn raised the position of the National Crime Agency in Northern Ireland, and the Department of Justice for Northern Ireland has proposed to meet those concerns by ensuring that the NCA’s work will be properly Patten-proofed. The Department makes provision for the NCA to work with the permission of the Chief Constable—in other places, the NCA has the power to direct chief constables. The proposal qualifies the question of constabulary power, and so on.

The commissioner will be able to look at the work of the NCA, as an enforcement agency, in relation to these matters, but the fact is that some of the NCA’s work on trafficking and other aspects of modern slavery in Northern Ireland will be contingent upon the NCA having the agreement and prior consent of the Chief Constable and the various memorandums of understanding that go with it. If that is how we seek to make progress on the issue, we need to ensure that we properly account for it in the legislation so that the NCA does not say, “Sorry, but we cannot answer that bit in our reply to the commissioner because we are not doing it under our own light. When we are in Northern Ireland, we are only doing it under someone else’s light, and therefore we cannot say so.” The commissioner might find themselves limited in what they can observe or recommend in that instance, so it is simply about ensuring that we are not giving planning permission for loopholes that we will later regret.

Karen Bradley (Conservative, Staffordshire Moorlands)

I am grateful to hon. and right hon. Members for tabling the amendments that we have debated this afternoon. The amendments before the committee seek to amend how the anti-slavery commissioner will develop and lay plans and report. The Bill contains provisions to enable the commissioner to produce strategic plans and to report in a way that will make a real difference in the fight against modern slavery. Those provisions are important and necessary aspects of the role.

Clause 36 sets out the requirements relating to strategic plans and annual reports to be produced by the anti-slavery commissioner. Once appointed, the commissioner must, as soon as reasonably practical, prepare and submit a strategic plan to the Secretary of State for approval. The plan will set out how the commissioner intends to carry out his or her functions for the period of the plan. The strategic plan may cover a period of between one and three years. The period of the plan has been extended following a recommendation by the Joint Committee.

Diana Johnson (Labour, Kingston upon Hull North)

On the wording of the approval that is required from the Secretary of State, why was “agreement” not included in the Bill? Why does it have to be “approval”?

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come to that in a moment.

Before the end of the period to which a plan relates, the commissioner must prepare a further plan for the period immediately following the current plan and submit it to the Secretary of State for approval. In practice, any plan submitted to the Secretary of State by the commissioner will be discussed between the two parties and agreed before being laid in Parliament. That will ensure that the commissioner and the Secretary of State have a clear understanding of the priorities of the role and how the commissioner intends to undertake their functions. The purpose of the strategic plan is to set out the commissioner’s objectives and priorities for the period of the plan, to state any matters on which the commissioner proposes to report under clause 35(2)(a) and to state any other activities that the commissioner intends to undertake during the period of the plan in exercise of their functions. The commissioner will provide an annual report to the Secretary of State on the matters included in the strategic plan.

My right hon. Friend the Member for Hazel Grove asked about changes to the plan. The commissioner may submit a revised plan to the Secretary of State at any time. That could be if they believe that alternative activities need to be undertaken to, for example, deal with an emerging threat. The plan can be revised under clause 36(3), as circumstances change. The requirement for the Secretary of State’s approval of the plan is to encourage and ensure a genuine partnership between the Secretary of State and the commissioner. If the commissioner feels that they should investigate a matter, the Secretary of State will typically agree to it, but it is important that the Secretary of State and the commissioner work to a joint agenda to make a real difference to the fight against modern slavery. Any plan or report must be laid before Parliament by the Secretary of State as soon as it is reasonably practicable after approving the plan or receiving the report. We listened to the pre-legislative scrutiny Committee and included that provision to ensure that any plan or report is laid in good time.

The shadow Minister asked about parliamentary scrutiny of the report. That would be like any other document presented to Parliament; it could be scrutinised in normal ways, which could be through a statement or an urgent question. The Select Committee could scrutinise it. I would not wish to suggest what the Home Affairs Committee should scrutinise; I am sure that the Chair of the Home Affairs Committee would be most cross to discover a Minister trying to do that. Opposition day debates, Back-Bench debates and Westminster Hall debates could be used. There are a variety of ways in which Parliament could scrutinise the report and I do not wish to dictate how that should be done.

Diana Johnson (Labour, Kingston upon Hull North)

I understand what the Minister is saying but, in the light of the fact that, annually, parliamentary time is given to a debate on the Floor of the House on the report of the Intelligence and Security Committee, and as so many Members are interested in trying to deal with this matter, does she think that a yearly parliamentary debate on the anti-slavery commissioner’s annual report would be appropriate?

Karen Bradley (Conservative, Staffordshire Moorlands)

As a former member of the Procedure Committee, I know that it is not a good idea for Ministers to dictate how parliamentary business may or may not be used. Certainly, it would be like other debates and I am sure that the Backbench Business Committee and the Opposition day debates will be well used if it is felt that that is an appropriate use of time.

Before laying an annual report, the Secretary of State may redact any material that they think

“would be against the interests of national security; might jeopardise the safety of any person, or; might prejudice the investigation or prosecution of an offence.”.

That is not to constrain the commissioner, but to build in the right checks and balances to ensure that national security is not compromised and individuals are not put at risk. The commissioner will be entirely independent and able to report freely on their findings, with the exception of redactions limited to those specific grounds. It is important that the commissioner has a clear work plan and reports on their activities regularly so that we can review progress and ensure that the role is adding value in our fight against this horrendous crime.

Amendment 107 aims to ensure that the commissioner includes in their reports any recommendations on the

“adequacy, efficiency and co-ordination of measures, policies and performance of relevant services including public authorities”.

The amendment would ensure that the commissioner can report on areas where public authorities may need to improve their services to victims of modern slavery. In practice, that is exactly what the commissioner would be expected to do. The general functions set out in clause 35 allow the commissioner to promote good practice in

“the prevention, detection, investigation and prosecution”

of modern slavery offences and the effective identification of potential victims of modern slavery. All public authorities have responsibility to identify and support potential victims, and law enforcement authorities should make investigation and prosecution of modern slavery offences a priority. As the commissioner already has the ability to influence public authorities and make recommendations about how they could improve their service to potential victims, we do not believe that amendment 107 is necessary. I do not want to replay the devolution arguments that we discussed at length previously, suffice to say that I am committed to respecting those settlements and not amending the Bill at this point. With respect to the devolved Administrations and circumstances where an agreement is needed first, we are conducting extensive discussions to ensure that we can make the necessary changes as agreed by all devolved Administrations. I therefore hope that the hon. Gentleman will withdraw the amendment.

Amendment 113 seeks to ensure that the commissioner considers any proposal submitted to them by any Select Committee. I agree that a Select Committee may identify an important issue of public interest in the remit of the commissioner. The commissioner already has the autonomy to consider what activities they should include in their strategic plan, taking into account representations and proposals from partners, including parliamentary Committees. I am sure the commissioner would take representations from parliamentary Committees seriously. Formally requiring them to consider any proposal put forward by any parliamentary Select Committee is simply not needed. Given that clarification, I hope right hon. and hon. Members will feel able to withdraw that amendment.

Andrew Stunell (Liberal Democrat, Hazel Grove)

The Minister has made a sound point. Can she pick up my point about the exclusiveness of the strategic plan and the capacity to take on matters that arise?

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my right hon. Friend for his comments. I talked earlier about the ability to change the strategic plan, but may I come back to his specific comments later?

Amendments 114, 115 and 116 seek to change the way the commissioner will report by requiring them to report to Parliament while, as far as possible, removing the role of the Secretary of State. Before turning to the detail, I would like to highlight that it is right and proper that the Secretary of State has a role in ensuring that the commissioner’s plan reflects the agreed aims and objectives to enable the fight against modern slavery to be successful. It is also right that the Secretary of State ensures that reports do not put individual safety, the success of a prosecution or national security at risk. Once the plan is agreed, the commissioner will be entirely independent and able to report freely on his or her findings with the exception of redactions limited to specific grounds, such as where material would be against the interests of national security. The Secretary of State has a critical role responding to any report to ensure that real change happens at the front line.

Amendment 114 removes the requirement for any annual report to be provided to the Secretary of State before being presented to Parliament. That is not necessary. If we compare it to the Dutch rapporteur, which has been referred to previously, they submit annual reports to the Ministry of Justice in the Netherlands and the Government then respond to the report and inform Parliament of their conclusions. We envisage that here the report would be submitted to the Secretary of State, they would take on board those comments, and we would ensure that redactions in the interests of national security and victim protection would be made. The report would then be laid directly before Parliament without the time or a Government response being prepared. Therefore, there would be a quicker response to a report to Parliament than there perhaps is under the Dutch system that we have heard about.

The shadow Minister asked about the commissioner redacting information themselves. The Secretary of State has a role in ensuring that national security, individual safety and prosecutions are not jeopardised. That is why it is for the Secretary of State to ensure any report does not contain such information. It is an important safeguard and mirrors protections relating to the chief inspector of borders and immigration.

Amendment 115 is consequential to 114. Amendment 116 amends clause 36(10) by placing the onus on the Commissioner to consult with the Secretary of State on redactions rather than the Secretary of State directly removing material. That is the point we have just discussed. During the pre-legislative scrutiny process the Committee raised concerns about the breadth of the Secretary of State’s powers to redact material from reports. The provisions in the Bill changed to narrow the test so that redaction would only apply where it would be against the interest of national security, might jeopardise an individual’s safety or might prejudice the investigation or prosecution of an offence. Given the limited circumstances in which material may be redacted, the Secretary of State has an important role in ensuring that the role of commissioner does not have entirely unwanted, but potentially serious impacts on, for example, an individual’s safety. On that basis, I hope right hon. and hon. Members will feel able to withdraw their amendments.

Clause 36

David Crausby (Labour, Bolton North East)

I remind the Committee that with this we are discussing the following:

Amendment 114, in clause 36, page 26, line 4, leave out “Secretary of State” and insert “Parliament”.

Amendment 107, in clause 36, page 26, line 12, at end insert—

‘(8) An annual report can also include observations and recommendations as to the adequacy, efficacy and co-ordination of measures, policies and performance of relevant services including public authorities as specified in Clause 37 section 5 or under relevant devolved powers.”

Amendment 115, in clause 36, page 26, line 13, leave out subsection (9).

Amendment 116, in clause 36, page 26, line 18, leave out “Secretary of State may” and insert

“Commissioner must consult with the Secretary of State and”.

Diana Johnson (Labour, Kingston upon Hull North)

It is good to see you back in the Chair, Mr Crausby. We have had an interesting debate, and all right hon. and hon. Members will appreciate that that is important, given Parliament’s role in scrutinising the anti-slavery commissioner’s work. We have been able to put forward our arguments, and I was particularly pleased that my hon. Friend the Member for Foyle spoke about his amendment and the amendments in my name and those of my hon. Friends. We still believe that the relationship between the commissioner and Parliament could be improved, but we have listened to what the Minister has said, and I am not minded at this stage to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Clause 37

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move amendment 108, in clause 37, page 26, line 38, at end insert—

‘(6) Specified public authority can also include a public authority which has been specified under relevant procedures of devolved institutions.”

The amendment is in a similar vein to my amendment to clause 36: it is essentially about providing an opt-in for the relevant devolved services or authorities. On the previous amendments, the Minister said she wanted to allow time for the discussions between the Government and the devolved authorities to ripen before making any provision for the devolved areas. However, I should make the point that nothing in the amendment is prescriptive. It is a straightforward enabling provision to specify that a specified authority can

“include a public authority which has been specified under relevant procedures of devolved institutions.”

The choice is therefore entirely there in relation to the devolved institutions. This is about enabling them to make the most of their services and commitments, as well as their co-operation with the services, enforcement officers and agencies we are looking at in the Bill.

I know the Minister is precious about what she sees as the sensitivities around this issue, but from talking to people from a range of parties in Northern Ireland, I am aware of no sensitivity, and people will be looking forward in anticipation to such a measure being passed. No doubt the Minister will say that, although that is what I have picked up through my contacts, she cannot presume anything on that basis about the conduct of business here.

I think we will have to come back to this point, but I will park it for now—I have no wish to drive it to a Division. I do not accept what the Minister said about not doing these things now, but if the understanding with the devolved authorities ripens, and the scope of devolution changes, as seems likely, depending on developments next week, we will return to this matter, so I will leave it until then.

Karen Bradley (Conservative, Staffordshire Moorlands)

It is a pleasure to have you back in the Chair, Mr Crausby.

I am grateful to the hon. Member for Foyle for tabling and speaking to amendment 108, which would include those public authorities related to the devolved Administrations. I was hoping to hear more from the hon. Member for Linlithgow and East Falkirk about his views on the devolved Administrations, because I know how much he adds to these debates. [Interruption.] No, I genuinely was.

The commissioner will have a fundamental role in working with public authorities. Public authorities working at the coal face are the very organisations and institutions that are likely to come into contact with potential victims and investigate the perpetrators. We have talked about how the commissioner would practically carry out their work, particularly with the third sector; we discussed that in the previous debate. In carrying out their functions, the commissioner will need to work collaboratively with a range of stakeholders and partners. Although the commissioner does not have a specific remit to work with non-governmental organisations, they do have a role to play in consulting and co-operating with people in the UK and internationally.

At present, the commissioner has a remit that covers England and Wales only. Amendment 108 would include in the list of specified public authorities those authorities specified under relevant procedures in the devolved Administrations. I understand absolutely why the hon. Member for Foyle tabled the amendment and I am sympathetic with the intention behind it. Since the inception of the Bill, we have been working collaboratively with our colleagues in Scotland and Northern Ireland, recognising that there could be real benefits of a UK-wide commissioner. Those discussions are continuing and I hope that we may, at some point—soon, I hope—reach an agreement that results in the commissioner’s having a remit that covers the whole UK. That would be the best outcome for all concerned. However, I am of course committed to respecting the devolution settlements and to not legislating for the devolved Administrations in circumstances where their agreement is, by convention, needed first.

Given that we have an ongoing commitment to working with Scotland and Northern Ireland on establishing whether the commissioner could be UK-wide, I hope the hon. Gentleman will ask leave to withdraw his amendment and that we can at some point bring forward changes to the Bill that will allow for what he is intending through his amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I make it clear that, contrary to what the Minister said, my amendment would not include the authorities, but would allow for the inclusion of authorities in the devolved area under devolved choice. So the point that she made about the principle of choice, and not transgressing on choice or the rightful locus of devolved authorities, is taken care of in the amendment.

Karen Bradley (Conservative, Staffordshire Moorlands)

Absolutely. I was just making clear again the point about the devolved Administrations. However, the fact that the commissioner is able to work with organisations, both in England and Wales and outside, means that that power is already there, even though it is not specified absolutely in relation to devolved Administrations; it obviously relates to those bodies outside England and Wales.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister’s intervention assists my amendment, because it is right that, if the commissioner is potentially going to be working with devolved agencies, there is a clear trigger point and clear designation consistent with devolved responsibilities and with relevant procedures; and that also allows choice about the determination of relevant procedures for specifying to be a matter for the devolved authorities as well. So the due locus of the devolved authorities is being respected on a number of levels here.

Although I do not accept the Minister’s arguments, I am encouraged by her anticipation that aspects of the Bill may be re-pointed in future to take account of understandings that will be devolved, which hopefully can be expressed in relation to the work of the commissioner as well. For that reason, as indicated, I am happy to park the amendment for now rather than driving it to a Division.

Karen Bradley (Conservative, Staffordshire Moorlands)

The clause provides that the commissioner may request that a public authority co-operate with the commissioner in any way that he or she thinks necessary for the purposes of the commissioner’s functions. Specified public authorities must co-operate, where it is reasonably practicable to do so, with the commissioner’s request. The public authorities to which this will apply will be specified in regulations. In practice, we intend this to include the police, local authorities, the NHS, Border Force and immigration.

In complying with the commissioner, public authorities that disclose information will not breach any obligation of confidence owed by the public authority. However, public authorities are not required to disclose information where it would breach any other restriction of information, however that is imposed.

It is important for the commissioner, in carrying out his or her functions effectively, to work closely with public authorities to build their trust and confidence, so that they are better able to support victim identification and the effective prosecution of offenders. That is an important part of the commissioner’s role. We have talked at length in Committee about the need to raise awareness and ensure that all public bodies that could come into contact with victims work together so that victims can be identified as soon as possible.

Michael Connarty (Labour, Linlithgow and East Falkirk)

The Minister is going to quite some lengths to try to describe the methodology. She commented in earlier debates about not wanting to cross over the responsibilities of various commissioners that are already in England and Wales. Perhaps she could say a word about how the commissioner is expected to relate to, for example, the Children’s Commissioner for Scotland, Tam Baillie, and people who are already in post in Scotland? There may be people who end up in post through Jenny Marra’s Bill, which looks as if it will go on to the statute book in Scotland, even in a devolved Assembly forum. How might they work together in the way that the police are now working, with the Serious Organised Crime Agency and the Scottish Serious Organised Crime Taskforce working together on other matters?

Karen Bradley (Conservative, Staffordshire Moorlands)

Clearly that is something the commissioner will have to work with. It is also part of our continuing discussions with the devolved Administrations, to ensure that we have the right understanding between the Scottish Parliament, the Northern Ireland Assembly and Westminster, so that we can get the right and appropriate relationship and the result we all want—to find the victims as quickly as possible.

Michael Connarty (Labour, Linlithgow and East Falkirk)

For example, the Children’s Commissioner has given some very good evidence to the Joint Committee, and some of it has been read into the record here. We also have a Children’s Commissioner for Scotland, Tam Baillie. Is there practice that the Minister might exhibit to the Committee, that is already being looked at, which works in that area and might be a form that would work across the wider scale of human trafficking? I am sure there must be a relationship.

Karen Bradley (Conservative, Staffordshire Moorlands)

The hon. Gentleman makes an interesting point and I will endeavour, at some point before the end of our discussions today, to deal with it—or perhaps I will write to him if I cannot find the right sort of examples before then—and explain how the two Children’s Commissioners work together. It is important that the Committee should understand how existing commissioners work and how, therefore, we would see the anti-slavery commissioner fitting into the jigsaw, for want of a better word, of commissioners and bodies with responsibility for protecting the most vulnerable in society.

We have talked about the rapporteur-type function and it is worth pointing out that the anti-slavery commissioner will not be the UK national rapporteur. That role remains with the interdepartmental ministerial group. The commissioner has a specific role and remit in strengthening our law enforcement response, but the role of the rapporteur, as set out in the EU directive, is fulfilled by that group, and it is important for that to be clear and for the Committee to be aware of it.

Diana Johnson (Labour, Kingston upon Hull North)

The Minister talked about the disclosure of information under clause 37(4), which provides that

“subsection (2) does not require or authorise any disclosure of information which contravenes any other restriction on the disclosure of information”.

Will she give an example, so that the Committee can understand what kind of information a public authority would not have to disclose?

Karen Bradley (Conservative, Staffordshire Moorlands)

Yes. As to specific examples, perhaps it would be better for me to respond to the hon. Lady later, or write to her. I think the information will help the Committee, and we should look into it.

I hope the Committee feels able to support the clause on the basis of the discussion we have had.

Clause 38

Karen Bradley (Conservative, Staffordshire Moorlands)

Clause 38 sets out a restriction that applies to the commissioner in the exercise of his or her functions. The commissioner must not exercise his or her functions in relation to an individual case. That is to ensure that he or she maintains a strategic perspective and is not drawn into issues relating to individual cases. It would not be appropriate for the commissioner to become personally involved in individual cases when their remit is to transform and strengthen our overall approach to tackling modern slavery by encouraging good practice in the prevention, detection, investigation and prosecution of these terrible offences, and for victim identification.

I am sure that some hon. Members will feel that the commissioner should champion individual cases but I think that would be a dangerous path to go down. The role is to strengthen our collective response to modern slavery, working closely with law enforcement agencies. Of course, individual cases will help to drive that but it would be dangerous for the commissioner to intervene. While their cases inform the commissioner’s work in this regard it would not be right for the commissioner to be an advocate for individual victims.

Diana Johnson (Labour, Kingston upon Hull North)

I was just thinking then of the case of “L” that Nadine Finch referred to when she gave evidence to the Committee. She had represented the Children’s Commissioner, who got involved because of her particular interest in that case. Would the clause prevent the anti-slavery commissioner from ever being able to exercise that right of being joined to a case where they might have an interest of policy? Does it preclude that altogether, whereas the Children’s Commissioner has that option?

Karen Bradley (Conservative, Staffordshire Moorlands)

The clause does not prevent the commissioner from considering individual cases in order to draw conclusions about a general case. Perhaps I could go back to our previous debate, in which the hon. Lady asked about the type of information that authorities would not be allowed to give to the commissioner; I wanted to put that on the record. It would be information prohibited by court order or under statutory restrictions—for example, under the Regulation of Investigatory Powers Act 2000 in relation to intercept evidence. I am sure she understands why we expect that such information would not be disclosed.

The question of the differences and similarities between the commissioners and their ability to be involved in cases is interesting and a good point for the Committee to consider. I am sure the hon. Member for Linlithgow and East Falkirk is delighted that he will not be receiving another piece of correspondence, as I would like to clarify the point about working with other commissioners and current practice. We expect the commissioner to work collaboratively with all other commissioners. That may be informally or more formally where both parties agree, such as a joint agreement of understanding. We will need to consider the relationship with devolved Administrations, and we have concluded discussions on the extent of the commissioner’s dealings with them. We are continuing such discussions. I will get back to him on his question about how the two Children’s Commissioners currently work, and to the hon. Lady on her specific question. I hope the Committee agrees that the clause should stand part of the Bill.

Clause 39 - Defence of slavery or trafficking victims compelled to commit an offence

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move amendment 71, in clause 39, page 27, line 9, after “act”, insert

“or the person is a child”

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 72, in clause 39, page 27, line 10, after “compulsion”, insert

“or, in the case of a child, the illegal act”

Amendment 74, in clause 39, page 27, line 11, leave out paragraph (c)

Amendment 88, in clause 39, page 27, line 14, leave out from “characteristics” to end of line 15 and insert

“shall include, but not be limited to, age, family relationships, disability, position of dependency, language skills, ethnicity, national origin, religious background, and any mental or physical illness.”

Amendment 73, in clause 39, page 27, line 18, after “compulsion”, insert “or in the case of a child, the illegal act”

New clause 30—“Prosecutions of victims of human trafficking

‘(1) The Director of Public Prosecutions shall issue guidance as to the charging of known or suspected victims of human trafficking.

(2) Before issuing guidance under subsection (1) the Director of Public Prosecutions must consult with the Anti-Slavery Commissioner.

(3) New guidance provided under subsection (1), must be published within 12 months of the appointment of the Anti-Slavery Commissioner.

(4) A prosecution of a trafficked, enslaved or exploited person must be reviewed by the Director of Public Prosecutions before going to trial.

(5) For the purpose of this section, a person (A) is taken to be trafficked, enslaved or exploited if—

(a) a decision has been made under the National Referral Mechanism that A is a trafficked, enslaved or exploited person; or

(b) no such decision has been made under the National Referral Mechanism but the court determines, based on the evidence before it, that A is a trafficked, enslaved or exploited person; or

(c) a decision was made under the National Referral Mechanism that A is not a trafficked, enslaved or exploited person, but the court is satisfied that the evidence is adduced by the defence establishes that A was a trafficked, enslaved or exploited person.”

Mark Durkan (Social Democratic and Labour Party, Foyle)

The common purpose of these amendments is to ensure that a child is not prosecuted for any crime committed as a direct consequence of having been trafficked. Nor would that child be required to establish that they were compelled to commit the offence before being able to access the protection of the statutory defence provided in the Bill. On Second Reading, I was among those who acknowledged that the provision of a statutory defence was welcome, but not adequate to the task when set against some principles of international law and practice. It is an accepted principle under international law and global anti-trafficking responses and practices that trafficking victims should not be prosecuted for crimes committed as a direct consequence of their trafficking or exploitation.

That principle forms part of the UK’s anti-trafficking response, as we have always been told, and is meant to be reflected in Crown Prosecution Service guidance for prosecutors, going back to 2011. The EU trafficking directive, which has legal force in the UK, provides in article 8 for the importance of the non-prosecution and non-application of penalties for trafficking victims. It provides, inter alia, that

“Member States shall…take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit.”

That directive also recognises the need for the best interests of the child to be a primary consideration in the application of the directive. In saying that, I do not wish to pre-empt the discussions we are to have on subsequent clauses and some of the terms in proposed amendments.

It has become clear through individual cases of trafficked children that victims are still being prosecuted for crimes committed as a direct result of trafficking, despite the 2011 CPS guidance I mentioned and the stated position of the Government on the non-prosecution of victims. That has been the case with children exploited on cannabis farms, for instance. We have already heard about the case of “L” and others from last year where the Court of Appeal found that it would be an abuse of process to prosecute a trafficked child for crimes that were a direct result of their trafficking or exploitation.

The spirit of the amendments is to reflect what we have heard of the court assessment of what would be an abuse of process. Having been subjected to so much abuse, the last thing these children should be subjected to is an abuse of process. Even if the courts find that they have been subjected to an abuse of process, the system subjecting them to one more abuse on that basis should not be tolerated in the Bill.

The starting point of looking at clause 39 from a child’s perspective is the protection it provides for their rights and welfare. One challenge to the idea of the statutory defence is that it does not prevent prosecutions from being brought against child trafficking victims in the first place. Yes, it importantly raises a defence that can be used in the face of such a prosecution, but it still means that the child victim potentially has the onus of mounting that defence.

The fact that the prosecution can be made may mean that it is used in ways that are coercive or manipulative within the process. It may be made to help secure and leverage evidence against others, but children should not find themselves vulnerable to such tactics.

Fiona Bruce (Conservative, Congleton)

Does the hon. Gentleman think it might be helpful if the Minister considered guidance for prosecutors and the judiciary on the issue of the compulsion of children?

Mark Durkan (Social Democratic and Labour Party, Foyle)

I take the point the hon. Lady has made so cogently and positively. That is an area in which we can perhaps seek reassurance as the Bill progresses. We will be hearing about the new clause tabled by my hon. Friend the Member for Kingston upon Hull North, which, usefully, would give some statutory underpinning to that idea. I anticipate that the Minister will not accept the amendments that the hon. Member for Brent Central and I have tabled, but I hope that consideration will be given to moving in the direction suggested by the hon. Member for Congleton. I am sure that argument will be articulately posited by my hon. Friend the Member for Kingston upon Hull North, as well.

No member of the Committee would disagree with the principle that it would be inappropriate to prosecute an already traumatised child. If we want to avoid that at all costs, we have an opportunity as legislators to make sure that we provide for that in law and do not allow such children, having already been victimised in so many ways, to become victims or pawns in other games and manipulations within the system.

On the statutory defence for victims, it is important that we recognise the limitations; it has many exceptions. I do not wish to anticipate discussions about the schedule, but this issue is pertinent. Although it is not directly addressed by the amendments, I wish to make that point now, on the record, about the limitations of the broader statutory defence.

I have listened to the arguments that have been aired already—not in Committee—as to why the Bill is cast in these terms. We are told that the statutory defence as provided will certainly reduce the number of cases that will be prosecuted. Although it might reduce the number of cases referred to the Crown Prosecution Service by the police, and the number taken on by the CPS, it still leaves that vulnerability. It still means that we rely on the decisions taken within that system and by the police service and the CPS. If, as we will discuss in relation to other parts of the Bill, we are meant to make sure that the best interests of the child are at the heart of any decisions, we should try to prevent them from being brought into the criminal justice system as defendants when they have come to the system’s attention as victims.

David Burrowes (Conservative, Enfield, Southgate)

The hon. Gentleman is making a good case, and we heard about the concerns of Peter Carter and Nadine Finch in an evidence session. The process and timing are important. If we get this wrong and there are gaps in the statutory defence, the impact on a child could be considerable. They could spend time being processed through the criminal justice system, in a young offenders’ institution and appearing in court, which could be considered victimisation in itself.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I fully accept the hon. Gentleman’s point. It is about not just having to go through a prosecution, but, as he says, the time and uncertainty involved. It would be trauma enough for anyone to face that, but we are talking about children who have been victims of slavery, trafficking or exploitation. They will not understand many aspects of these systems and, depending on their background, education and linguistic challenges, that could be truly perplexing and not just wrong, but a travesty of the justice process.

There are concerns that a provision in legislation for non-prosecution could, conversely, lead to further exploitation and manipulation of those children by traffickers and result in increased use of children to commit illegal acts on the basis that they would be immune from prosecution or whatever. If the Government are to rest on that argument, that would give rise to concerns about how much the onus might be on children in trying to rely on that statutory defence. We are trying to avoid a situation where children, courtesy of the criminal justice system, find themselves still in a position where they are being manipulated by those who had victimised, trafficked and enslaved them in any way. The potential operation of the statutory defence would have as many problems in relation to ongoing manipulation by the culprits in the trafficking and enslavement as would apply in respect of the non-prosecution provision. The hon. Member for Brent Central and I are aiming to address that through these amendments.

We all recognise that traffickers will always look to exploit the most vulnerable children and that they will use any means under the law or outside of it to do so. It is our duty to ensure that the Government provide mechanisms through the law to protect them on as many levels as possible.

There is, of course, no silver bullet to provide adequate protection for child victims of trafficking. Well defined criminal defences alongside an accepted non-prosecution principle and strong statutory defences can act as an essential safety net as well as advocates for child trafficking victims with legal powers to act in the child’s best interests and the kind of non-legislative measures we have already discussed, such as training and awareness-raising, and a strong network of safe accommodation for trafficked children are all necessary elements that need to mesh together to give children the protection they need from traffickers. I do not pretend that the amendments I propose would provide the only—or core—protection, but, at a significant and sensitive point in the victim’s journey away from being a victim, they should not find themselves being victimised again in such a perverse way.

It has been argued that removing the reasonable person test would allow the statutory defence to be exploited. The statutory defence as drafted, which requires that the person has been compelled to commit the act as a direct consequence of their exploitation, is difficult to prove. However, the test goes against the internationally agreed definition of child trafficking by essentially reintroducing consent, which is not a relevant consideration for children. That point was made in our debates on earlier clauses, so I do not want to rehearse it. I have touched on the limitations to the statutory defence that are listed in schedule 3.

The point of the amendments is to give us an opportunity to discuss what we mean and what we intend the experience of children to be when they are identified as victims. They need to know that the processes will work in their best interests, not against them, even if the underlying motive is to get at somebody else.

Sarah Teather (Liberal Democrat, Brent Central)

I rise to make a few remarks about amendment 88 and those tabled by the hon. Member for Foyle, to which I added my name. Clause 39 is to be welcomed as an important addition to the Bill. The creation of a statutory defence for the victims of modern slavery will help to protect them, and I hope encouraging witnesses who may have been involved in illegal acts to come forward will lead to more prosecutions. The statutory defence will help to ensure that the UK fulfils its international obligations, which the CPS guidance has so far failed to do. However, I have a number of concerns about the way in which the defence is drafted and about the list of offences in schedule 3 that the defence will not apply to, which we will debate later.

A number of the organisations that submitted evidence to the Committee raised concerns about how the defence is formulated, one of which is about the reasonable person test. For the defence to hold,

“a reasonable person in the same situation as the person”—

the defendant—

“and having the person’s relevant characteristics would have no realistic alternative to doing that act.”

Subsection (2) states:

“‘Relevant characteristics’ means age, sex and any physical or mental illness or disability.”

Amendment 88 is intended to probe why the characteristics are defined so narrowly. It would make that list non-exhaustive, and it specifies characteristics such as language skills, religious background and family relationships, which are obviously relevant to this issue. The omission of those characteristics from the clause as drafted, particularly given that the list is closed, fails to allow for a victim’s particular vulnerabilities to be taken into account. For example, victims who feel compelled to commit offences due to cultural or religious pressures would not be treated as being subject to compulsion, and so may be prosecuted.

Amendments 71, 72 and 73, which are in the name of the hon. Member for Foyle, and which I have supported, seek to address the organisations’ concerns about whether the defence would apply to children. That issue was mentioned in other debates, particularly on Second Reading. The hon. Gentleman spoke about the victims of child trafficking who often end up in cannabis farms, and the Refugee Children’s Consortium gave details of the case of a 16-year-old who came to the UK on his own. He ran into debt and loan sharks put him into contact with agents who said they could arrange his journey to the UK. The agents arranged false travel documents for him, and he left Vietnam with a group of other people going abroad to work. When he got to the UK, he was put into what turned out to be a cannabis farm and told to take care of plants. After five weeks, the police raided the house and arrested him. He was charged with drug offences and sentenced in court to an 18-month custodial sentence in a young offenders institution.

As my hon. Friend the Member for Enfield, Southgate said, the point about that case is that this is not just a question of who ends up being prosecuted; it is about the effect of falling into the criminal justice system. There can sometimes be quite a long period of doubt between being identified and ending up in a young offenders institution. All the evidence says that this has a very detrimental effect on young people, particularly if they are already extremely vulnerable and on their own.

The concern about the current drafting of the clause on defence relates to the question of compulsion and whether it even applies in the case of a child. For example, in its written evidence, the Immigration Law Practitioners’ Association stated that

“A child does not have to prove “compulsion” in the way that an adult must. A separate defence is needed to reflect that children should not be prosecuted for any crimes that they have committed as a consequence of their exploitation.”

That is reflected in the current CPS guidance on prosecuting victims of trafficking, which states that considerations regarding whether a victim has been “compelled” to commit a crime only apply to adults. It adds that

“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking.”

David Burrowes (Conservative, Enfield, Southgate)

In her evidence, Nadine Finch took this further than the issue of the discretion of prosecutors. Her charge was a very serious one; she said that the clause

“will be used by traffickers to evade prosecution and used to make a mockery of the child’s defence, so in my view, unless the word “compelled” is removed for children, there is no defence for children.”––[Official Report, Modern Slavery Public Bill Committee, 21 July 2014; c. 36, Q69.]

That is a very serious charge to make against this part of the Bill, and we need to properly rebut and debate that.

Sarah Teather (Liberal Democrat, Brent Central)

My hon. Friend makes that point extremely well. It concerns me that the clause does not currently do what it sets out to do, which is to protect the most vulnerable victims that the hon. Member for Foyle spoke about. I am concerned that the clause, as drafted, is flawed and I hope the Minister can offer us some reassurance on that.

Diana Johnson (Labour, Kingston upon Hull North)

I would like to speak briefly to amendments 71 to 73, which appear to close a loophole in the Bill in terms of exploited children. As I have already argued, exploited children seem to have largely been left out of the Bill. They are not provided for in part 1 and do not seem to have been properly considered here in the clause dealing with statutory defence. This is an issue of consent and compulsion. The principle is that children cannot consent to their own exploitation. It is a settled question in international law but not one recognised in the Bill—particularly not in clause 39, which will only cover children who can prove they were “compelled” to do something by their traffickers.

The hon. Member for Enfield, Southgate referred to the evidence from Nadine Finch, who also stated that

“as it is currently formulated, the defence does not actually protect children, because the word “compelled” has been used and, as one knows, the definition of trafficking accepted both in this Bill and in the EU directive and the Council of Europe convention means that children do not have to show the means. If you are prosecuting somebody for trafficking a child, you do not have to show the means; you do not have to show that the child has been compelled…It means that you have the ridiculous situation in which you do not have to prove means to show that the child was trafficked, but you have to prove means to show that the child is entitled to a defence.”––[Official Report, Modern Slavery Public Bill Committee, 21 July 2014; c. 36, Q69.]

The EU directive does give that protection, and the Bill thus leaves us in a very odd situation where a prosecuted child may try to use the doctrine of direct effect to give them the immunity from prosecution not offered by the Bill. This is a legal mess, and I hope the Minister will reflect on that.

David Burrowes (Conservative, Enfield, Southgate)

In terms of the legal mess, the reference made by Nadine Finch, and also in the subsequent note, suggests a mess in relation to the EU directive. There is a conflicting approach with article 8 referring

“to non-punishment for involvement in criminal activities which individuals have been "compelled" to commit.”

The word “compelled” is therefore in those articles and the issue is whether this is an opportunity to provide the clarification that is not necessarily within the directives, although no doubt case law seeks to sort it out.

Diana Johnson (Labour, Kingston upon Hull North)

I know that the hon. Gentleman speaks with a great deal of practical knowledge and experience of the law. I hope that that point about how we can make the clause work most effectively and achieve what we all want to see, which is children getting the protection they deserve, can be addressed when the Minister responds at the end.

It is a bit of a legal mess at the moment, but much more important than that is that children are going to prison because the Bill does not and give them the protection it should. That is best explained if we go back to the cases of exploitation given in evidence to the Committee and the draft Bill Committee where children are trafficked into the country, they manage to escape, but then fall back in with another group or gang who exploit them. An example that has been used before is the case of a child who is trafficked into the UK to assist in cannabis farming. They escape, but then get in with another drugs gang. They have not been compelled to get in with the new gang, but that is not relevant in terms of exploitation because they are a child. Let us make no mistake; those children are being prosecuted in the courts now. It was helpful that the hon. Member for Brent Central referred to the case of Lam, which I know UNICEF have sent details of to hon. Members. That is an important case to reflect on. The hon. Lady went through the details of that case, but there was also a quote from that young man. Having gone through that ordeal and being sentenced to 18 months’ custodial sentence in a young offenders institute, he said, I wanted to go back home but I knew that the money that I owed to the agents and loan sharks meant that my life was in danger. I was worried about my mum, but I couldn’t contact or help her from prison. The entire time was scary and confusing.” It is a 16-year-old child we talking about.

I want to refer to the case of Dung who was helped by the organisation ECPAT UK. They said that Dung was a child when he was trafficked to the UK. He was forced to act as a gardener in a cannabis factory. He was in debt to the agents who had smuggled him to Europe from Vietnam. When the police raided the house, Dung was arrested and eventually prosecuted for cannabis cultivation. After serving nearly a year in prison, he was released. Those are the types of case that will not be covered by the Bill and those children are being prosecuted.

In the Anti-Trafficking Monitoring Group’s report, In the Dock: Examining the UK’s Criminal Justice Response to Trafficking it carried out an examination of UK news articles reporting particularly on Vietnamese cannabis cultivation cases between January 2011 and March 2013. They revealed some 80 cases that had several trafficking indicators. In one of the reported cases the judge said,

“I accept that you were threatened and intimidated. You had people taking you about and deciding which locations you should be in.”

However, despite all of the evidence that this person had been exploited, the defendant was sentenced to 24 months imprisonment. I think it is the view of many of us that judges would still make the same kind of comments and decision within the criminal justice system under clause 39 as they have been making previously. That is why it is important that we support amendments 71 to 74 and amendment 88.

While those particular amendments are looking at making the statutory defence workable for children in court, new clause 30 is about reducing the number of children and other trafficking victims who get to court in the first place. The first part of the new clause calls for new guidance from the Director of Public Prosecutions on the prosecution of trafficking victims. We want the model for that guidance to be the DPP’s guidance on assisted suicide—high profile, high quality guidance that will clear up a lot of the current uncertainty about when victims are prosecuted and will reflect changes in the law following the case of R v. L and others, and clause 39. In the DPP’s evidence to the Committee at the start of our deliberations, even she struggled to explain exactly how the CPS deals with the public interest test when looking at victims of trafficking, and she is not the only one; ECPAT UK, the Anti-Trafficking Monitoring Group and the Helen Bamber Foundation presented evidence to the Joint Committee about problems in the current CPS guidelines being applied. It is clear that guidance needs to be redone and put on a much more serious footing that can be relied on.

The second part of new clause 30 would increase the authorisation for a trafficking prosecution. The cases are complex and, as we have seen, there is often much mishandling. We want to establish the principle that prosecutions of trafficking victims should only happen in exceptional circumstances, which is why we want prosecutions of those who have had an NRM decision or are awaiting one to be authorised by the most senior level—the DPP. We have to remember that trafficking victims are incredibly damaged and vulnerable. Many wait 12 months in remand before a trial goes ahead and that compounds their problems enormously. The whole process is hugely stressful, as evidence from the Helen Bamber Foundation to the Joint Committee showed. On women who have been detained it said:

“Those women needed to feel supported and that they were going to be believed and that they would not be prosecuted for anything…we are almost colluding with the trafficker in allowing these prosecutions to go ahead, because this is what the trafficker says to his victim: ‘You will be prosecuted. The Border Agency will come after you. You will be deported if you do not stay with me. You are better with me. I am your friend. The authorities are not your friend.’”

In similar evidence to the Joint Committee, the POPPY project discussed the 55 women that it has helped in the past year who were only identified as trafficking victims once they were in prison, usually on remand. There will be cases in which new guidance from the DPP would stop prosecutions, even when we cannot rely on using clause 39. Another example from the POPPY project—I think it was one of the cases taken up by the Court of Appeal in R v. L and others—involved an adult woman who had been underground for 11 years in a brothel. When she escaped, she used a passport that her trafficker gave her and that she thought was legal. She ended up being imprisoned for immigration offences. She was not the one who had committed the crime but the CPS fought that all the way. No one bothered to investigate the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims with impunity.

That crime was not committed during enslavement, so that woman would have difficulty using the defence of clause 39, but the crime undoubtedly resulted from her trafficking. I do not think that anyone—in fact, the Court of Appeal said this—thinks that that woman should have been prosecuted. It is almost certain that more trafficking victims have been prosecuted in the UK than traffickers. New clause 30 is about readdressing the balance. It does not need changes to a statute. I am happy to withdraw it if the Minister can assure the Committee that the Government will ask the DPP to publish new guidance and a new structure for charging trafficked individuals.

Finally, on amendment 88, the hon. Member for Brent Central raised important concerns about the closed list of relevant characteristics in clause 39(2), and I hope the Minister will address those, because they are very valid.

Michael Connarty (Labour, Linlithgow and East Falkirk)

The hon. Member for Foyle and my hon. Friend the Member for Kingston upon Hull North, on the Labour party Front Bench, have set out a good case, but I want to go back slightly and to talk about principles.

In November 2013, we received a submission from the Office of the Children’s Commissioner. We are talking just about a directive, but the attitude of any Government to children should be underpinned by the UN convention on the rights of the child. The Children’s Commissioner reminded us of the key elements of the convention that would be relevant to the Bill. She said that article 40 provides that a

“child accused or guilty of breaking the law must be treated with dignity and respect. They have the right to help from a lawyer and a fair trial that takes account of their age or station. The child’s privacy must be respected at all times.”

That clearly singles out the situation in which a child is in breach of the law—they are not even just accused of something. It does not mention particular circumstances. That informed the submission made in paragraph 3.2 of the same document, which said:

“In addition, children should be protected from prosecution or punishment for criminal offences (including amongst others those relating to immigration, prostitution and drugs) that they have been compelled to commit as a direct consequence of being subject to trafficking or other forms of modern slavery.”

It is interesting that a Government who accept the importance of the Children’s Commissioner and of her good work should completely ignore the words “child” and “children” in the clause. Clearly, something is going wrong, with one part of the Home Office, which has championed these issues, not talking to the other part, which is informing the Minister and the Home Secretary about what should be in the Bill and particularly in this clause.

Clearly, there should be specific references to “child” or “children”, and all the provisions in this group are relevant to that omission. I hope the Minister will take this back and discuss it with the Home Secretary, so that the amendments can be, if not accepted today, written into the Bill later.

A lot of the people we talk about have been subject to particularly terrible labour exploitation. They may have been trafficked into a country and locked in a house to be a farmer for cannabis growers. A lot of these people are young. As I have said, I have evidence relating to three Vietnamese young men in the young offenders institution at Polmont in my constituency.

Focus on Labour Exploitation submitted a number of basic points, which should have informed the way the clause was drawn up. At paragraph 4.1 of its key recommendations, it says:

“A non-punishment provision should be included in the Modern Slavery Bill.”

Paragraph 4.2 says:

“Law enforcement officials should seek advice from the UKHTC”—

the UK Human Trafficking Centre—

“in any case in which they believe the accused may have been compelled to commit a criminal act.”

Paragraph 4.3 says the Bill should oblige

“the Competent Authorities to notify police and prosecutors when a person arrested or charged with a crime is or has been referred to the NRM”—

the national referral mechanism—

“or is determined to be a victim of trafficking.”

We should be talking about not prosecuting, not about not finding guilty or about using a defence in court. To prosecute someone who is trafficked and victimised is to put them through terrible traumas. I mentioned the people we met with POPPY. We went to meet people who had been trafficked from non-EU countries. There were in prostitution. In some cases, they were released, or they fled, and they made their way to what they thought was a place of safety—a British police station. They were then treated in a way they said was worse than being compelled into prostitution. There was constant repetition of accusations, the denial of freedom and the harassment that goes on when the police are trying to break somebody down to get an admission so they can get to court. That has to stop. That is the greatest offence of all. That is often more of a trauma than being brought to a country under false pretences and being made to work in terrible conditions, even being a farmer in a cannabis factory, where someone locks them in and turns up every night or every couple of nights with a bag of food. I watched the person coming to the house in the same street as me, getting out of a taxi with a bag from a supermarket and going into the house. When they unfortunately did not break that one up correctly, the woman was spirited away to somewhere else to be locked up again.

In that situation the fourth recommendation is

“A specific training programme should be developed and implemented for all criminal justice actors to ensure that potential victims are identified and not punished”.

We are working here on the basis that this is to provide defences in court. But I would argue that if people are trafficked and identified as being trafficked by the authorities the DPP should not prosecute. They should not be taken to court. The fifth recommendation is:

“Provisions criminalising human trafficking, forced labour, slavery and servitude should be contained in a single piece of legislation.”

It is clear that we want to say that there are times when the individual should not be criminalised.

I hope the Minister takes on board the amendment because no child should go through this when it is found that they are exploited, moved about, pressurised, duped or cajoled into doing criminal acts by their family or their so-called friends, criminals who are knowingly using children in large numbers as has happened. Anthony Steen became involved in this because of the Roma children who were brought in large numbers to this country, and were trained to steal on south-east trains and on the underground. There was a major scooping up of these children and more than 190 were returned to their own country. They had been brought in and trained to do that. It was Oliver Twist all over again, but using Roma children. I think those children were simply sent back home. If those children had been taken individually to a police cell, locked up, sent to a remand home or whatever they do with children these days imagine how their trauma would have increased. We have to avoid that.

I hope that whatever we draft there will be some way of getting them out of that criminal system early enough. Let us be frank. We can then use the resources to chase the real criminals. So much time is spent now chasing, harassing, criminalising and traumatising the victims. That has to be avoided or we will not be doing what we should be doing in terms of the UN convention on the rights of the child. As for adults, we must ensure that we do not add to their trauma either. There is talk now of large numbers of people who may be allowed to remain in the country who have post-traumatic stress disorder and all the rest of it. How much of that came from their trafficking and how much came from them being slammed up and taken to court and having to find legal reasons for not being put in prison we will never really know. If we got rid of one, we might do better in the other.

Karen Bradley (Conservative, Staffordshire Moorlands)

It is an honour to follow the hon. Gentleman in this debate because he spoke with such passion and knowledge. I am grateful to hon. Members for tabling these amendments which raise some crucial issues about the way in which this new statutory defence for victims will work in practice, particularly in the case of children. I think the creation of a statutory defence for victims of slavery and trafficking is an incredibly important step in our collective fight to stamp out modern slavery in this country. It is vital for all the reasons the hon. Gentleman set out, and as other hon. Members have said, that victims are encouraged to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We need to make sure that it is not victims who are being prosecuted but the real bad guys. We must catch them and make sure that they are prosecuted and justice is served.

Although the Director of Public Prosecutions issued revised guidance to prosecutors earlier this year to set out more clearly the policy on non-prosecution of victims, the pre-legislative scrutiny Committee heard significant evidence that victims, including child victims, were being prosecuted for crimes committed while being trafficked or enslaved. That Committee recommended the creation of a statutory defence.

Creating a new statutory defence of that type is very unusual in English law and should not be done lightly. However, as this Committee has reflected, we need to be open to new tactics to ensure that we protect victims of modern slavery and catch and convict the perpetrators. Given the importance that the Government place on the protection of victims and supporting effective prosecution, we agree with the Committee that we should provide this further important safeguard for victims.

It is clearly a difficult and complex issue. It is plain that the pre-legislative scrutiny Committee thought hard about the competing arguments and recognised the difficult balance involved. It is worth reminding ourselves of what that Committee said in paragraph 62 of its report.

“Our evidence revealed mixed opinions on whether there should be a statutory defence of being a victim of modern slavery, with those who did not support a statutory solution, or who favoured the prosecutorial discretion status quo, raising the following arguments:

a) That the scope of the defence would be difficult to define;

b) That the temporal link between the commission of the offence and the enslavement of the victim would be difficult to define and use in practice;

c) That there is a potential for unintended consequences, for example, an increase in the use of victims of trafficking for the commission of serious offences.”

That point was made by the hon. Member for Foyle.

“d) That the defence could be open to abuse by perpetrators of modern slavery who are inventive as to the defences they adopt and the arguments they advance in attempting to avoid or frustrate prosecution;

e) That persons who are or have been trafficked can and do commit serious crimes. They may kill their exploiters. More commonly they may traffick or exploit others;

f) That no such statutory defence is available for drug mules, or, in relation to terrorism, for those who assist in terrorist offences through fear, threat or coercion;

g) That the real issue is not statutory protection from prosecution, but improved identification of victims.”

It is important to bear those points in mind when we discuss the matter. The Committee continued in paragraphs 63 and 64,

“In contrast, the evidence we received in favour of a statutory defence made a moral and practical case for statutory reform, highlighting the failure of guidance (since the first guidance was issued in 2004, it has been updated 12 times, mostly to reflect changes in legislation or updates in case law), while victims continue to be prosecuted, and the importance of legislation as an educational tool to create a ripple effect of knowledge through all levels of law enforcement.

“64. The arguments presented by this group of witnesses suggested problems in relying solely upon an abuse of process approach, because it has traditionally been seen as a form of judicial review of a prosecutor’s decision-making process, and not as a consideration of the merits of the substantive decision. They told us that, while the Court of Appeal in R v L had suggested that ‘the court will reach its own decision on the basis of the material advanced in support of and against the continuation of the prosecution’, it is not clear whether this statement expands the grounds for applications beyond the traditional abuse of process review. This confusion has been reflected in the current CPS Guidance, which focuses first upon whether there is ‘clear evidence of credible common law defence of duress’ and if there is not, as a second stage of whether ‘the public interest lies in proceeding to prosecute or not’. We note that there is no mention of R v L in the CPS guidance until the document discusses age assessment of children.”

We will come later to that very important case. Paragraph 65 states,

“Those in favour of a statutory defence also told us that the existing defence of duress was insufficiently nuanced to recognise the complexities of human trafficking. It also sets a very high threshold, requiring proof that the victim was compelled to commit the crime: ‘that the victim has effectively lost the ability to consent to their actions or to act with free will’. Few thought that a victim of modern slavery could meet that threshold and we do not think they should have to.”

I absolutely agree with that view. Paragraph 66 goes on,

“The crux of their argument was that by legislating rather than relying upon guidance, the need not to prosecute victims of modern slavery was made clear and easily found. It would also ensure that victimhood was considered earlier in the decision-making process, namely at the evidential stage of the CPS Full Code test in the Code for Crown Prosecutors, rather than in ‘addition to applying the Full Code Test’ through a separate three-stage assessment. This approach recognises that the question is not whether the victim of slavery has committed the offence, but whether they should be prosecuted and, if not, the best way to prevent prosecution.

We have borne in mind that the guidance provided in the case of R v. L has only been in place since June 2013, and that the latest CPS guidance was only published in February 2014. We also bore in mind that obligations at international level are not prescriptive, and are met by the UK’s system of prosecutorial discretion and sentencing practice. None the less, we note that there are existing statutory defences for other crimes.

In coming to our conclusion we have considered not only the most obvious cases, one end of the spectrum, where prosecution should not have commenced, let alone proceeded to conviction—for example, the child cannabis farmers in R v. L—but also hypothetical cases at the other extreme where, for example, a victim is forced to commit theft and in doing so inflicts serious physical injuries on or kills a member of the public.”

I will skip to paragraph 73:

“In essence we think that it enacts a test of sympathetic reasonableness, while providing a simple and clear guide to the CPS and other prosecutors as to the test they should apply in deciding whether the evidence justifies prosecution. A prosecutor would still be able to apply the interests of justice test where, for example, the defence would not apply but the circumstances of the accused were such that a merely nominal penalty is likely.”

Those points from the pre-legislative scrutiny Committee’s report were important in assisting the Government in our work on the defence and on the clause. I commend the Committee on its hard work and dedication to that cause, which helped enormously and will make an amazing difference for the victims.

We have worked closely with the Crown Prosecution Service to devise the detail of the defence. It is crucial that we provide effective protection for genuine victims, but we must not inadvertently create loopholes that allow serious criminals to escape justice as that would undermine public confidence and support for this important measure in the fight against modern slavery. None of us wants to see headlines that suggest that the defence is being abused, because that would undermine all the work that everyone is doing to stamp out modern slavery.

Therefore, in creating a defence, a careful balance has to be struck. That is why the defence will not apply in the case of certain serious offences: often, serious sexual or violent offences. We will debate that later when we cover the schedule 3, but I make clear at this stage that, even if the defence does not apply, the CPS will still not bring a prosecution if that is not in the public interest; its guidance is clear on that. The defence has been carefully designed to cover the crimes that, in practice, victims of modern slavery have been found to be made to commit.

Diana Johnson (Labour, Kingston upon Hull North)

The Minister says that the guidance is clear, but the evidence that we heard—the DPP said this in oral evidence at the outset—is that it is not. Would she be minded to look again to see if that can be made clearer so that prosecutors can understand when it is appropriate to bring a prosecution?

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come on to the guidance shortly, if the hon. Lady will permit me. The clause has been drafted so that a person is not guilty of an offence if they commit it because they are compelled to do so. The compulsion is attributable to slavery or relevant exploitation and a reasonable person with relevant characteristics in the same situation as that person would have no realistic alternative to committing the offence.

Michael Connarty (Labour, Linlithgow and East Falkirk)

I am slightly concerned. Why did the drafting not take the very simple terms recommended by the Joint Committee? They were that,

“a person of the same sex and age as the accused, with a normal degree of tolerance and self-restraint and in the circumstances of the accused, might have reacted in the same or a similar way.”

That seems to sum up what we are trying to say, but the wording in the clause seems somewhat tortuous and clinical. I do not know whether that is just Home Office speak or whether there is some genuine reason why that is put down as it is.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come on to the wording of the clause in more detail as we progress through this group of amendments and the next two, but I assure the hon. Gentleman that that was carefully considered and drafted so that we can ensure that all the pre-legislative Committee’s concerns, which were the arguments against a defence, are addressed. As I have said, the risk of a negative headline that turns public opinion against this defence, and makes people see it as a loophole, is one that none of us wants to see, because it will absolutely undermine the good work that we have done. It will make a mockery of those victims and all that they have suffered if public opinion moves against them, and if this defence is seen as a loophole so that those who should face justice are not facing it. I will come on to the detail later.

Sarah Teather (Liberal Democrat, Brent Central)

I am a little uncomfortable about the direction of travel here. We need to be careful that we are not so concerned about the impact of headlines that we are not prepared to take the right decision. I understand some of the points that the Minister is making and that the wrong type of publicity will encourage the wrong type of behaviour, which will also affect victims. I understand that, but I do not like the tone of the direction of travel. I want to be sure that the reason she is taking these decisions and arguing that we should not press the amendments to a vote is genuinely about the interests of victims.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for her contribution and I thank her also for allowing me to put on the record that my comments about headlines are perhaps a trite example of how we could undermine public confidence. I was simply trying to make a point, but absolutely the key point is victim protection and making sure that victims have the confidence that they can come forward. I did an interview this morning with a radio channel that was concerned about that very point. How can people feel confident that they can come forward, whether they are a victim or a witness who is worried about intimidation? What can we do to give people the reassurance that they need? If that reassurance is not there, and if we are not legislating for the victims, we are doing a disservice to all.

I appreciate my hon. Friend’s comments, and I want to assure her that by talking about headlines I am not in any way trying to undermine any of the work. That is not the driving factor behind the defence sought; I am merely making the point so that the Committee will understand there is a balance to be struck and there are pros and cons. Indeed, we saw from the evidence to the pre-legislative Committee how the provision could be abused if it is applied in the wrong way.

David Burrowes (Conservative, Enfield, Southgate)

On the issue of abuse, I come back to the evidence from Nadine Finch. She made what could be described as a headline by effectively saying there is no defence for children. I would not want that headline to be attached to this Bill, and I look forward to the Minister’s assurance that that is not the case.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for his comments. I will come on to discuss children, because we have considered their position very carefully in the drafting of the Bill, but I simply want to make the point that we have debated this at length. It is an unusual step to have a statutory defence within UK law. There are some examples, but it is not the norm. Some may consider other offences to be comparable, although I do not think there is anything comparable to this. As I have said, in the case of drug mules there is no statutory defence, and it is therefore incredibly important that we get this right so that the principle of a statutory defence has credibility and is perceived by all to be the right approach to give the victim the protection that we are looking to provide.

Clause 39 has been drafted so that a person is not guilty of an offence if they commit it because they are compelled to do so; the compulsion is attributable to slavery or relevant exploitation; and a reasonable person with relevant characteristics in the same situation as the person in question would have no realistic alternative to committing the offence.

Michael Connarty (Labour, Linlithgow and East Falkirk)

If someone is not locked in a house—they are an adult who is not supervised or overlooked and they have the ability to walk away—the arguments are very strong that that person had a reasonable alternative to staying in that house. My worry is that it would take a long process, and it is clearly one that has not worked, to keep that person out of jail on this basis.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come on to further points about the realistic alternative, but we think it is an important protection to ensure that the defence is used to help the victim.

Amendments 71 to 73 make changes to ensure it would no longer be necessary to show that a child was compelled to commit an offence as part of their slavery or trafficking experience. It would be enough to argue that a child committed the illegal act as a direct consequence of their exploitation. I share all Members’ concern to ensure that child victims are protected by this defence and I accept that children are often not in the same position as adults. They will often do what they are told by adults, especially when brought to a strange country. Law enforcement agencies, prosecuting authorities and the courts should see child victims of modern slavery as victims. I assure Members that the defence has been designed with the needs of children in mind.

I accept that the reference to compulsion might appear difficult in cases involving children. However, I will explain to the Committee what that test will mean in practice. Compulsion, as drafted in the clause, is a subjective test. The question is whether the child felt they had to commit the offence. There is no requirement of force, threats or any other type of outward action that might typically be associated with compulsion. That means the court can consider the more subtle ways in which children might feel compelled to do something. Children often feel they must do what they are told by an adult, and the requirement for compulsion in the clause covers that. There does not have to be active resistance to demonstrate compulsion. We believe that the reference to compulsion in the clause does work in cases involving children and will not prevent the defence from being relied on in the cases that the Committee are concerned about.

Sarah Teather (Liberal Democrat, Brent Central)

I cannot understand why we are leaving this reference in the clause. I must say that I am more concerned after hearing the Minister’s answer than I was before. The wording is incredibly torturous. Why do we not just remove the reference, out of respect for children? We have already heard from a number of Members that this is not the norm for a child.

Karen Bradley (Conservative, Staffordshire Moorlands)

If my hon. Friend will forgive me, I will respond to that point in a moment.

Concerns have been raised that the reference to compulsion may not be compatible with the relevant international instruments. Even without a statutory defence, we are already fully compatible with our international obligations on non-prosecution. That point was accepted in the pre-legislative scrutiny Committee’s report:

“obligations at international level are not prescriptive, and are met by the UK’s system of prosecutorial discretion and sentencing practice.”

Our clear view is that the reference to compulsion in the defence is wholly consistent with those international obligations. In particular, the EU directive and the Council of Europe convention explicitly state that victims of trafficking should be protected from prosecution or punishment when compelled to commit crimes.

Including compulsion in the defence in relation to children also helps to strike the right balance and ensure appropriate safeguards, so that the defence does not provide a loophole in the law for serious criminals. It is right, as a matter of principle, that the defence should not be available where someone did not in fact feel they had to commit the crime but chose to do so nevertheless. We do not consider the fact that such a person was under 18—which encompasses older children who are close to their 18th birthday—alters that reasonable position. Put another way, it is always right that a slavery or trafficking victim aged under 18 is absolved of responsibility for criminal conduct, even where they did not feel they had to commit the crime.

In the case of L and others, the court explicitly said:

“It has not, however, and could not have been argued that if and when victims of trafficking participate or become involved in criminal activities, a trafficked individual should be given some kind of immunity from prosecution, just because he or she was or has been trafficked, nor for that reason alone, that a substantive defence to a criminal charge is available to a victim of trafficking.”

We agree with that statement.

Amendment 74 seeks to remove the “reasonable person” test from the defence, which is a critical safeguard.

David Burrowes (Conservative, Enfield, Southgate)

I want to be sure we are clear, because this is a very important point. There seems to be an issue with what must be proved, in terms of liability and evidence. The means to show that the child was trafficked do not have to be proved, but certain means do have to be proved in order to come within the defence. We need to be clear about that inconsistency. If the Minister is saying that the statutory defence does not lead to a child having to prove those means to come within the defence, that helps.

Karen Bradley (Conservative, Staffordshire Moorlands)

There is an important point here. It is slightly confusing. The provisions and international legal instruments that highlight that children cannot consent to trafficking mean that compulsion should not be relevant to the defence. That argument has been used. The provisions relate to the definition of the human trafficking offence. In the international convention and instruments it says that children cannot consent in relation to trafficking. The defence covers a separate issue—non-prosecution of victims for offences they commit as a direct consequence of being a human trafficking victim. The EU directive specifies that there should not be a prosecution when a victim has been compelled to commit the offence—no consent for the trafficking—but there should be a prosecution when they have not been compelled to commit an offence, reflecting that nobody should have immunity from the criminal law, even if they have been trafficked. We need to ensure that safeguards are built in.

I will come to more detail about children shortly. It is highly possible that a child victim of trafficking could come to Britain and then escape from their traffickers, go and do other things and, entirely unrelated to the trafficking, could end up committing crime. We need to look at compulsion: was the child forced into doing the crime? That is compulsion. It is important to ensure that there are safeguards within the criminal law so that justice is served through all levels of the justice system, for all victims, and that children have the protection that they need so that the defence can apply to them. However, we must ensure that we do no create loopholes that would drive the behaviour that the hon. Member for Foyle and the pre-legislative scrutiny Committee talked about—the defence being used to force victims into acts that they would not have done, except because they know that they will no longer be subject to prosecution.

Sarah Teather (Liberal Democrat, Brent Central)

I want to take the Minister back because I am still worried by the wording she used. She tried to outline the differences between what “compelled” would mean for an adult and for a child. It seems extremely vague; I do not know how anybody is going to prove whether they felt that they had to do something or not. It seems an awful lot of trouble and more likely to lead to children being prosecuted. I would have thought that the number of children who might have been trafficked and later go on to commit a crime must be relatively small. What is the risk?

Karen Bradley (Conservative, Staffordshire Moorlands)

If I might continue with my argument—

Sarah Teather (Liberal Democrat, Brent Central)

As long as the Minister comes back to it.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will endeavour to address those specific points. I share the desire of all to ensure that the defence can be used by vulnerable and exploited victims, who have been forced into criminality. I do not want to see them convicted and punished for crimes that they were compelled to commit just because the legal tests to meet were too complex. However, clause (39)(1)(c) is not such a complexity, but a critical aspect of the defence that helps to ensure that it will protect genuine victims of modern slavery without opening up a loophole for criminals, including organised criminals, to escape justice.

The reasonable person test is an objective test that allows the court to consider what a reasonable person would have done in the same situation with the same relevant characteristics. A purely subjective test would allow the defence to be raised in tenuous circumstances because the defendant could argue that they felt compelled by circumstances that any normal person could conclude were not enough to justify committing the offence. It would be hard to discount that argument and prove how the person concerned felt. Without the objective test in clause (39)(1)(c), the overall threshold for the defence would be unacceptably low.

I will give an example of a real case from the CPS. There was a brothel in which there were women who were

“performing dangerous and degrading sex acts for clients which left them with horrendous injuries.”

They had been trafficked and were therefore victims of trafficking and slavery, servitude and forced compulsory labour. It transpired that the three women running the brothel were also victims of trafficking, so there was a question about whether they should be subject to some form of defence, be it statutory or within the guidance. The CPS felt they should not because, despite their having been trafficked, they used excessive force—violence, sexual abuse and threats—on the two victims, who had mental health issues and were described as “child-like”, to compel them to perform sex acts.

We would all agree the women who ran the brothel should not escape prosecution simply because they were victims of trafficking. What they did to force the women to perform the acts was above and beyond what any reasonable person would have done in those circumstances, so the victims at the bottom of the chain, for want of a better description, deserve justice. Clearly, we want to catch the really bad guys at the top who put all those women in that situation, but the women who ran the brothel and used violence, threats and sexual abuse against the prostitutes to make them carry out those acts should face justice. That is why it is important that we have a reasonable person test.

Including an objective test means that a jury can put itself in the position of the defendant and consider whether there really was not a realistic alternative to committing the offence. Members of the Committee will recall that the concept of “no realistic alternative” was explicitly mentioned by the court in R v. L and others, which we have heard so much about in the debate. The Lord Chief Justice of England and Wales said in his judgment:

“This vile trade in people has different manifestations. Women and children, usually girls, are trafficked into prostitution: others, usually teenage boys, but sometimes young adults, are trafficked into cannabis farming: yet others are trafficked to commit a wide range of further offences. Sometimes they are trafficked into this country from the other side of the world: sometimes they enter into this country unlawfully, and are trafficked after their arrival: sometimes they are trafficked within the towns or cities in this country where they live. Whether trafficked from home or overseas, they are all victims of crime. That is how they must be treated and, in the vast majority of cases they are: but not always.”

The Lord Chief Justice then goes on to talk about the Director of Public Prosecutions shortly presenting guidance—this is clearly an historic case. He continues:

“Despite suggestions in the submissions to the contrary, the court cannot become involved either in the investigation of the case or the prosecutorial decision whether it is in the public interest for the prosecution to proceed. Nevertheless we propose to offer guidance to courts (not, we emphasise, to the Director of Public Prosecutions) about how the interests of those who are or may be victims of human trafficking, and in particular child victims, who become enmeshed in criminal activities in consequence, should be approached after criminal proceedings against them have begun.

Beyond the individual and specific circumstances involved in each of these separate appeals…we have sought assistance on the broader issues to which the appeals give rise. We have examined the decisions of this court in R v. M(L), B(M) and G(D) [2011] 1 Cr. App. R 12 and R v. N; R v. L [2013] QB 379—

I am sure Hansard will get the right names—

“in the light of EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims, (the EU Directive) which came into effect on 6 April 2013…

Recital 8 of the EU Directive underlines: ‘Children are more vulnerable than adults and therefore at greater risk of becoming victims of trafficking in human beings. In the application of this Directive, the child’s best interest must be of primary consideration, in accordance with the Charter of Fundamental Rights of the European Union and the 1989 United Nations Convention on the Rights of the Child’.

Recital 14 provides: ‘Victims of trafficking in human beings should, in accordance with the basic principles of the legal systems of the relevant Member States, be protected from prosecution or punishment for criminal activities…that they have been compelled to commit as a direct consequence of being subject to trafficking. The aim of such protection is to safeguard the human rights of victims, to avoid further victimisation and to encourage them to act as witnesses in criminal proceedings against the perpetrators. The safeguard should not exclude prosecution or punishment for offences that a person has voluntarily committed or participated in.’”

Sarah Teather (Liberal Democrat, Brent Central)

I have a further thought about the point the Minister made of the scenario where the person was trafficked, escaped from traffickers and went on to commit myriad crimes. I want to remind her that the amendment tabled by the hon. Member for Foyle does not allow for that. The wording leaves in that the illegal act has to be “attributable to slavery”. What the Minister said is simply not true and I have not been reassured.

Although that was not the main point I wished to make when I stood up, I am now much more worried about it than the subject of my amendment, and if the hon. Gentleman wishes to push his proposal to the vote I will support him.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for her comments, but I would like to finish this point because it is important in the context of defence. I will then come to her point.

“Member States shall, in accordance with the basic principles of their legal systems, take the necessary measures to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking.”

These are all important points that have come from cases that we have seen. We are now looking at how we can refine the legal system to provide additional protection to victims.

My hon. Friend the Member for Brent Central asked why compulsion seems to be a tougher requirement for adults than children. The reference to compulsion in clause 39(1)(a) and (b) is a subjective test. It is about what a person felt. Of course, a court will look differently at a child who says they did a criminal act because an adult told them—the court might often accept that—than at an adult who says they did something because another adult said so. The court would be less likely to accept that the adult was compelled in that circumstance.

Let us take a practical example of why the objective test is needed. Let us say that a person was trafficked into this country four years ago. They were exploited initially by the organised crime gang to commit petty theft. However, over time they took on increasing responsibility and gradually became a full member of the gang, planning offences, committing offences, and using others to commit a range of offences.

Let us say the individual was trusted and had plenty of opportunities over a long period to leave or go to the authorities. However, the individual genuinely felt compelled throughout because he worried he might have been under threat from the organised crime gang if he left unless he went to the authorities, who might deport or prosecute him.

The objective test allows the jury to look at the circumstances carefully. It gives the jury the option of concluding that this person was initially a victim and the defence should apply, but that after a period of full membership of an organised crime group with considerable independence, there was an alternative to carrying on as a career criminal. So perhaps the defence should not apply to later offences. The reasonable person test therefore provides an important safeguard against this defence being abused and allows all the circumstances of the case to be carefully considered.

With reference to case raised by my hon. Friend the Member for Brent Central about the Refugee Children’s Consortium, we think it would fall within the statutory defence of clause 39. In that case it seemed that the child did feel compelled to commit the offence and a jury would be entitled to conclude that they had no realistic alternative but to commit the offence.

I also refer to the point made by the hon. Member for Linlithgow and East Falkirk, who talked about the UN convention on the rights of the child. We gave active consideration to relevant rights of the child under the UNCRC when setting the Bill. Our ECHR memorandum explicitly analyses the provisions of the Bill both against ECHR rights and those set out in the UNCRC. I commend that analysis to the Committee.

David Burrowes (Conservative, Enfield, Southgate)

The examples the Minister puts forward are particularly compelling in relation to subsection (1)(c) which mentions scenarios where there is

“no realistic alternative to doing that act”.

That has to be made out for the statutory defence to bite. The issue still is why it is necessary to prove the element of compulsion, given the other articles and directives that have not been relied on so much, do make it clear that there is not a requirement to show compulsion when a child has been trafficked.

That needs to be bottomed out to see where the Minister can justify compulsion in relation to the child. Subsection (1)(c) makes a clear objective test for dealing with a situation when there is “no realistic alternative”.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for that point. I was coming to it, but let me cover it now. As I indicated in relation to children, the requirement for compulsion is not inconsistent with international instruments, because those talk about being forced to commit a crime. To repeat, the question is whether the child felt they had to commit the offence. The CPS guidance does, indeed, say that compulsion should be ignored in cases involving children, but we are talking about different things. The CPS guidance is about prosecutorial discretion and the public interest in prosecution; the Bill’s provision is about a new, additional statutory defence. Even if the defence does not apply, the CPS will still have to consider the public interest in deciding whether to prosecute in accordance with its guidance. I repeat that it will be open to the court to conclude a child felt they had to commit the offence simply because an adult told them to; it is not a high threshold.

Diana Johnson (Labour, Kingston upon Hull North)

Just to be clear, compulsion is not an issue in terms of establishing whether a child has been trafficked, and it is not an issue in terms of a decision whether to prosecute—it is ignored as not relevant—but when someone gets into court, it becomes an issue. It does not seem very logical to ignore compulsion for the other two steps, when people have to show compulsion when they get into court.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank the shadow Minister.

Mr Burrowes rose—

Karen Bradley (Conservative, Staffordshire Moorlands)

I see my hon. Friend is trying to get in.

David Burrowes (Conservative, Enfield, Southgate)

Let me try to help. Is the answer not that it is relevant to how the child felt in terms of subsection (1)(c) and the issue of whether there was a realistic alternative to doing that act? However, the issue remains that compulsion does not need to be proved in terms of the issue of the child being trafficked.

Karen Bradley (Conservative, Staffordshire Moorlands)

My hon. Friend sums it up far better than I can, so I will leave it at that.

David Burrowes (Conservative, Enfield, Southgate)

The sting in the tail is that that still raises the question why it is necessary to apply the word “compulsion” in paragraphs (a) and (b) to children.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for that point. I thank him for his explanation of the clause, which was very helpful. I will come shortly to the point about compulsion in relation to the defence and to children.

Amendment 88 would change the list of relevant characteristics a court should consider when applying the reasonable person test. The person applying the test will take into account those relevant characteristics when deciding whether the defendant had a realistic alternative to committing the offence.

I share the concern of all hon. Members to ensure that we do not ignore someone’s characteristics where those are vital to the situation. I also want to ensure that that defence fits appropriately into the wider body of our criminal law and does not create loopholes or inexplicable differences from other, similar defences.

To get the balance right, we have looked at existing defences and consulted the CPS. The most similar defence in English law is the common-law defence of duress. Case law has established for that defence that the characteristics relevant to determining a reasonable person’s view are age, sex and any physical or mental disability.

Duress is also the defence that allows the widest range of characteristics to be taken into account when applying an objective test. Those characteristics are all relevant to a slavery or trafficking situation, so we have included them all, replicating the most generous and far-reaching defence currently in place.

Broadening the range of relevant characteristics makes the defence more akin to a subjective test, which creates a loophole for serious criminals to exploit as a defence to serious charges.

When considering the amendments, it is important to remember that, where the defence does not apply, but other relevant factors mean that prosecution would not be in the public interest, the CPS will still be able to decide not to prosecute. That is clearly set out in its guidance.

We all want the defence to apply when vulnerable, abused and exploited individuals are forced into criminality. I am confident that the defence, as drafted, will protect those people, while ensuring that criminals acting on their own volition cannot use a protection for the most vulnerable to get away with their crimes.

Sarah Teather (Liberal Democrat, Brent Central)

I accept the Minister’s point about not wanting to provide legal loopholes. However, on her next point, about whether it is in the public interest to prosecute, I wonder whether there might be a compromise solution on the wider interest. It is blatantly obvious that issues of culture and religion will be relevant to whether somebody feels compelled. I would be more reassured if she could place some of those characteristics into the guidance to the CPS, even if it is not in the Bill.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come on to the guidance shortly.

New clause 30 deals with DPP guidance on the non-prosecution of victims. The defence will help here but we cannot simply rely on legislation. The CPS has dealt with a number of cases in which the fact that the defendant was a victim was not known until they started serving their sentence. At no point did the defendant disclose that they were a victim of trafficking. That came out much later. We need to raise the awareness of the police, prosecutors and judges that the defendant may be a victim and that the defence of the public interest test not to prosecute is available, and should be applied.

We need to ensure—this is a role for the commissioner—that everyone in the criminal justice system is aware of the possibility that someone could be a victim of trafficking. When I visited the Great Yarmouth custody suite recently I asked how they would ensure that when custody officers locked somebody up for the night they knew that that person might be a victim of trafficking. They should be able to identify them and therefore get the information that we need to help that victim and to ensure that they have the support they need.

Diana Johnson (Labour, Kingston upon Hull North)

In new clause 30 we say that the DPP should consult with the anti-slavery commissioner before any guidance is issued, which would pick up those points. The new clause not only refers to people who have been recognised by the national referral mechanism, but it gives the court the opportunity, if it is satisfied that the evidence is produced by the defence, to establish that the person was trafficked, enslaved or exploited. We recognise that it is not always obvious at the start, but there is an opportunity for the court to make that finding. The reference to the anti-slavery commissioner is very important.

Karen Bradley (Conservative, Staffordshire Moorlands)

I will come on to that point in a short while.

The code for crown prosecutors is issued by the Director of Public Prosecutions; it gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures. That includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law, or any other changes and is published on the CPS website.

This new clause would place the guidance on a statutory footing, require that it be published only after consultation with the anti-slavery commissioner and require the Director of Public Prosecutions to review any prosecution involving a victim of slavery, trafficking or exploitation. I should say first that the Director of Public Prosecutions has already revised the relevant guidance this year, a point that was made in the pre-legislative scrutiny Committee report. My hon. Friend the Member for Congleton asked whether there would be guidance to the CPS and the judiciary on how the defence should operate.

The CPS recently issued updated guidance in relation to human trafficking and slavery, servitude and forced labour. We are also working closely with the CPS on this Bill and it has been crucial to the development of the statutory defence. Therefore the statutory defence and how it should operate is very much on the CPS’s radar. It is a matter for the DPP to decide how best to disseminate training guidance and we shall certainly speak to the CPS and the DPP about this issue. We fully expect the CPS to update the guidance following the passage of the Bill. It would not be appropriate for the Government to seek to direct the judiciary in relation to the defence. I am sure my hon. Friend the Member for Brent Central will understand that.

There is no need for a statutory duty to ensure that this important guidance remains in place. It would be unusual for the Director of Public Prosecutions to have a statutory duty to consult with a particular person before developing or issuing guidance, and we suggest it is unnecessary to legislate in this way. The Director of Public Prosecutions operates independently, under the superintendence of the Attorney-General who is accountable to Parliament for the work of the CPS. The need for, and content of, any new guidance should be determined by the CPS and not by an independent individual. However the CPS often consults either formally or informally with stakeholders on the development of new guidance and sometimes consults more widely with the public via its website. I will commit to ensure that the DPP is aware of the strong feelings from the Committee that she should consult with the anti-slavery commissioner before the relevant guidance is revised further.

David Burrowes (Conservative, Enfield, Southgate)

Would it possible to have some correspondence with the DPP that the Committee can see? Statutory defence is a complicated area of law, but it is also an important one, particularly in dealing with the issue of compulsion and how it relates to the child. It would be helpful and reassuring to receive the DPP’s view of the debate today.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for his comments, not least because they coincided with my needing a drink of water. I am not sure what correspondence could be made public because correspondence between the Department and the DPP is often private, but I will look into that.

David Burrowes (Conservative, Enfield, Southgate)

As the guidance is being developed, it may be helpful to provide an opportunity before the Report stage to make the Committee aware of the Government’s—and particularly the DPP’s—position in relation to the challenges that have been described. That would be reassuring as we approach the drawing up of guidance.

Karen Bradley (Conservative, Staffordshire Moorlands)

As I said, I shall go away and look at what might be appropriate to put in the public domain.

Diana Johnson (Labour, Kingston upon Hull North)

I just want to emphasise that in my remarks I referred to the guidance that was issued by the DPP relating to assisted suicide because that was seen to be of interest to many people, and clear guidance was very welcome. It was in that spirit that we were looking to get the DPP involved.

Karen Bradley (Conservative, Staffordshire Moorlands)

I understand, and I appreciate the hon. Lady’s comments. She is helping the Government enormously in our work.

Returning to the point made by my hon. Friend the Member for Brent Central regarding the relevance of culture and religion and whether that should be in the guidance, the DPP is heavily involved in the development of the future operation of the defence. That is something we will certainly discuss following the debate. A person’s culture or religion are already facts that the CPS may consider relevant. However, I take my hon. Friend’s point that there may be a case to make that more explicit in the guidance and I commit to discuss that.

Going back to the point of compulsion, it is right that there should be a test of compulsion in all cases. It is not a high threshold for children, but without it, even in children’s cases, we are providing a defence that people can rely on, even if they have proactively chosen to commit crimes and even if they did not feel that their trafficking or slave situation meant they needed to do so. We would have to look at the facts of each case, but we are talking about children being forced to do something and that is compulsion. To take that test out, even with a very low threshold, means that we would potentially create a loophole that could undermine the other work that we all care so desperately about.

Sarah Teather (Liberal Democrat, Brent Central)

The problem is that situations can become so normalised for children that they have no idea whether they are forced to do something or not. If interviewed and questioned about what they thought, the chances are that they would not give the right answer to allow that defence to take place. When we discuss some of the later amendments, I will want to quote from a particular case where somebody called their trafficker “daddy”. We know that kind of scenario is common and so I worry that the clause will not provide the defence that the Minister thinks it will.

Karen Bradley (Conservative, Staffordshire Moorlands)

I understand the concerns that my hon. Friend has, and I have heard of cases where children think of their abuser as their uncle or other family member and they trust and rely completely on them. I have heard horrendous stories about some of the abuse that they have suffered at the hands of that abuser, and what they believe about it, particularly in witchcraft-type scenarios, so I do understand. However, it is important to see the defence as we envisage it working. We envisage that the defence is there to stop the prosecution coming forward in the first place wherever possible. It is also there, if a prosecution is going through, for the victim to say “Actually, I am a victim in this, I should not be being prosecuted,” although we hope that it will never come to prosecution in the first place.

At that point, the combination of CPS guidance and education of the CPS working with the anti-slavery commissioner—I do not mean education in that it does not know what it is doing; I mean awareness training for the CPS—and the statutory defence provides the necessary safeguards to ensure that child victims who are forced into committing a crime should not then be prosecuted. Even if they are, we would have that defence that can be used by the defence barrister to ensure that that victim is not convicted.

Sarah Teather (Liberal Democrat, Brent Central)

Without making it clear that children cannot be compelled in the same way and that the test should be very different—the Bill does not make that clear—I cannot see how it will prevent children from being prosecuted.

I return to the point that my hon. Friend the Member for Enfield, Southgate made that we must avoid children going into the criminal justice system in the first place. I know that that is what the Minister wants, but I am not convinced that the clause as drafted will achieve that. I am not convinced by her answers.

Karen Bradley (Conservative, Staffordshire Moorlands)

I thank my hon. Friend for her comment, but I think we need the protection in the clause. In all discussions about children being forced into doing something, even if they do not believe that they have been forced, we must ensure that the guidance is clear. Working with the DPP and others, I know that this debate will be examined closely to ensure that the guidance is very clear that the threshold for compulsion is very low for children. I take my hon. Friend’s point exactly about children thinking that because the person involved is a family or parental figure, they are not being forced to do something by that person, but ultimately they are being forced. At some point, there is force, and it is important to ensure that there are safeguards in the defence.

We do not want the defence to be abused or misused. We also do not want it to result in more children being forced to commit criminal acts because the slave masters say it is fine because there is no way they will be prosecuted. We must ensure that there is some form of protection for the victims of the crimes—because there will be victims of the crimes that children commit. We must ensure that children are not forced or driven to behaviour that is even worse as a result of this defence being on the statute book. Unintended consequences are a concern for all of us.

I return to the CPS’s decision on whether to prosecute. It has procedures in place to ensure careful review of cases involving trafficking victims. In all cases with evidence or information suggesting that a suspect might be the victim of trafficking, the case will be reviewed by a designated prosecutor in the light of that information. However, in nearly all cases that are referred to the Court of Appeal, information about the defendant’s trafficked status has not come to light until they are already serving a sentence. That is why the commissioner has such a key role to play in ensuring that all agencies and organisations can identify victims effectively and promptly.

The new clause seeks to set out how the CPS should identify a potential victim. I have concerns about this. The evidence on which the CPS bases a decision is not the same as the evidence adduced in court, which is ultimately a matter for the judge and jury, having regard to all the evidence. The suggested subsections 5(b) and (c) relate to court proceedings and do not seem to be relevant to what we want: early identification of victims before prosecutions are brought.

With those assurances, I hope that hon. Members will feel able to withdraw the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I have listened intently to the Minister but sought not to intervene as often as I had done on her previous contributions because I know that the issue has many layers and that it would not have been in our best interests to intercept on one point or another before the case was thoroughly made. However, I appreciate that others made telling interventions and asked telling questions during the Minister’s remarks.

I do not feel sufficiently assured or enlightened by what the Minister said in her substantive response to the amendments and the new clause or by her specific responses to questions.

The amendments are about the basic issue of whether we, as legislators, are making it clear that specific considerations apply in the case of child victims who, as part of their victimisation, were forced to commit criminal acts. We must remember that the trauma of that stays with them afterwards.

Along the corridor from here last week I was at a meeting—the hon. Member for Congleton was there as well—where we heard a distinguished expert talk about what happens in people’s early years. He made the point that the old adage, “What happens in Vegas stays in Vegas,” does not apply to a child’s early years. Let us remember that being forced to commit a crime is exploitation and the trauma of that will remain with the child. The amendments are about not just sparing them the inconvenience or added trauma of a prosecution, but recognising what having been asked to commit that crime meant to them. The nature of that crime may well continue to haunt them, as well as their victimhood.

We, as legislators, should not fail to give guidance and leave it to chance that prosecutors will make the right judgment. As we hear in difficult cases where there are a number of considerations, including victim sensitivities, decisions on prosecutions have to be made. A prosecution may be mounted against a child because in such circumstances it is felt that that would assist the prosecution of someone else. The clause as drafted leaves the door open for that and, if that does happen, the adult perpetrator—the slave master or whatever we want to call them—as part of their legal case may try to challenge any statutory defence that the child offers. As a result, not only is the child prosecuted by the justice system, but their defence is ruthlessly challenged by an adult defendant. We should not expose anyone to that situation; nor should we put prosecutors in a position where, because a child defendant might be exposed to that, they have to go for a lesser charge or not prosecute an adult defendant because they would otherwise challenge the statutory defence with their lawyers.

That is the syndrome we have been advised about for some other offences. The right hon. Member for Hazel Grove made that point last week in relation to consent. Such issues arise in rape, sexual assault or abuse crimes: the consent issue comes in in a vexed way and prosecutors often end up explaining that they have to take decisions on charges owing to the vulnerability of witnesses. It is one consideration to talk about children being vulnerable as witnesses, but if they are potentially vulnerable not just as witnesses but as defendants and have their own defence challenged, that creates a serious difficulty.

That is why it is right that we, as legislators, consider the issues reflected in new clause 30, tabled by the hon. Member for Kingston upon Hull North. The new clause would mean that what we hope, and the Minister expects, will be the position of the Crown Prosecution Service would have a statutory underpinning that would be clear to any court or anyone in the CPS. It would also be a clear statutory light for the anti-slavery commissioner when they are doing their job and reviewing all aspects, performances and practices that they might consider. They could look at those things under a clear statutory light provided by Parliament, rather than us simply saying, “We trust their light”—that is not good enough when it comes to our duty to children.

The core amendment in the group is also the lead amendment. Its key purpose is to ensure that a child would not be required to establish that they had been compelled to commit an offence before they could benefit from the statutory defence provided in the Bill. Valuable though that defence may be, to leave the clause as drafted, as we have heard, would mean that the trafficked child would need to provide more evidence that they are entitled to a defence as a trafficked child than would be needed to establish the offence of human trafficking. It is simply wrong to put such an onus on a victim who has been turned into a potential defendant by the situation.

It would also mean that, to establish that the child is entitled to a defence as a trafficked child, they would have to provide evidence about the means used to traffic them, even though the internationally accepted definition of child trafficking explicitly omits the need to prove those means—and other considerations as well. It would be a dereliction of our duties not to use the corrective step offered by amendment 71.

I note that the Minister said that the statutory defence does not have a high threshold of proof, but it could be a high threshold for a small child who may or may not understand much of what is going on around them. They should not find themselves caught in such a situation.

Karen Bradley (Conservative, Staffordshire Moorlands)

I do not really disagree in principle with anything the hon. Gentleman is saying, but we are still talking about an act a child is forced to do as a result of their situation. The fact that they are forced to do it, albeit that they do not believe that, is still important. It is important to have a safeguard to ensure that there is no abuse of the defence. We need to bear in mind throughout that we are talking about a child that has been forced to do the act. Somebody along the line has forced them and that compulsion is a fact of the case. That is important. In addition, the threshold of proof for a child has to be low.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister says the threshold for a child has to be low, but the onus is still on the child. It is not clear to me what in the clause as it stands makes the threshold any lower for a child. That is precisely why we have tabled the amendments—to make sure that a child in that situation will never be treated as though they were an adult, whatever calculations, or miscalculations, might arise.

Karen Bradley (Conservative, Staffordshire Moorlands)

A subjective test involves the child feeling that they had to do it. We are not talking about that here. They cannot know they are being compelled, but they are being compelled. We have to bear that in mind. They are being forced, and we are talking about an objective test.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The Minister seems to have been told that there is an objective test. Let us be clear. We could be talking about situations in which it is somebody else’s defence in relation to charges against them; that there was not that compulsion; and that they were not compelling that minor in that way to do what that minor did. Let us set aside the issue of crimes that children might be asked to commit. Let us deal with the circumstances in which issues of compulsion arise, when all of us would end up using the defence of compulsion if we had to. Yes, we are agents of free will, but we feel compelled to do things.

MPs often feel compelled to follow their Whip, even though they may fundamentally disagree. We are agents of our own free will. We stand and promise to serve our constituents and give our best judgment or whatever, but often we find that MPs are explaining to their constituents or others that, although they agree with them on an issue, that was not how they voted or how they spoke; or if it was how they spoke, it certainly was not how they voted, because they were compelled. They might be people who in other instances do not always follow their Whip, but perhaps ration the number of times they rebel or defy the Whip, or do not follow their own conscience or their own judgment. There are degrees of compulsion. Some of us will find ourselves saying that political circumstances compelled us one way, and in similar circumstances we will say that the issue and the context was such that we were freer to do something slightly different.

Let us remember that once there is a test around compulsion, we are talking about that test being around very young children who find themselves, as victims, being taken into the courts as defendants, and perhaps as defendants being put up against other victims who will employ all sorts of legal capacities to help or assist them. One way for somebody else trying to keep themselves out of prison or defending themselves is to challenge the statutory defence that a child or a minor is using. They will do that. We should not expose children to that last line of exploitation and abuse at the hands of their slave master, which is what will happen if we keep the Bill as it stands. The Minister said it will not be a high threshold.

The Minister sought to assure us about the things a jury could conclude if something happened and somebody went to court. The fact that she relied on the scenario of what a jury could conclude shows that she is even prepared to entertain that a child could find themselves in court as a defendant relying on the statutory defence. The fact that she talks about how a jury would make a judgment in relation to a statutory defence should ring alarm bells for all members of the Committee.

Karen Bradley (Conservative, Staffordshire Moorlands)

We all have to accept that there will be cases where, for whatever reason, a victim of slavery or trafficking finds themselves in court for a crime they have committed. Perhaps they were too scared to come forward at the beginning to say they were a victim. I have met victims who happily went to jail several times on behalf of their slave masters, because they felt their slave master was the only person who gave them sanctuary and a home. They happily went to jail despite everything it was doing to them. We have to accept that that is the case.

The whole work that we in government are doing is about finding the victims as soon as possible and, when we find them, encouraging them to be identified as victims. That is the commissioner role, but we have to accept that there will be cases where, through nobody’s fault, a victim ends up in court, and it is important that we have the defence. Sadly, we are not in a perfect world. I wish we were.

Mark Durkan (Social Democratic and Labour Party, Foyle)

If the people the Minister is talking about did that as minors—she talked about people who willingly went to prison because of the relationship they have with the slave master—they would then willingly not use the statutory defence, which is why they should be protected. The protections must be there so that defendants do not find themselves under a double duress; they should be free from that at that stage of their journey. It should be a journey out of victimhood and not one where, as victims of crime, they are treated as criminals, with all the jeopardy and implications that come with that.

David Burrowes (Conservative, Enfield, Southgate)

The hon. Gentleman says that he is not willing to provide blanket protection, for example, for a child victim of trafficking who finds themselves prosecuted. There is still a need to show that there is no realistic alternative to committing that act, and that is important.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The hon. Gentleman makes an important point, one stressed by the hon. Member for Brent Central. Amendment 71 does not dispose of the other relevant conditions. While it gives due and proper weight to the victim’s young age, it is not an ouster for all other considerations or conditions in relation to the nature of the crime or what conditioned it.

We sometimes hear of jurors being particularly distressed by the case they have heard. Their distress comes not just from hearing the evidence for the original crime but from how the case has had to be conducted and the position that witnesses are put in. A child and their representatives might end up having to rely vigorously on a statutory defence, which may then be subject to hostile challenge from the prosecution or from an adult defendant on a related charge. As legislators, we should not leave the law in a state which invites such an experience for jurors. We would not want it for ourselves if we were serving as jurors, and we would certainly not want that experience for any child victim we knew.

We are all motivated by our concern for children whom we do not know and have not met, but whose circumstances we know about. Through all-party groups and other efforts in Parliament and beyond, we have all been moved to address this issue. This is one point on which we cannot just hope for the best or assume that things will be all right on the night because other people out there will have enough consideration for children. We should not leave children at hazard.

I therefore seek to press amendment 71. Unlike some of the previous issues, which I was happy to park, it falls to all of us to deal cogently with the issue of the position children might find themselves in. The statutory defence, as it stands, has welcome steps and standards in it, but it remains clearly deficient and risky in respect of children.

Diana Johnson (Labour, Kingston upon Hull North)

I beg to move amendment 53, in clause 39, page 27, line 13, at end insert—

‘(9) Once the defence set out in subsection (1) is raised by the accused or on his or her behalf, or the court of its own volition or on hearing submissions from any party decides that such a defence should be considered by the court, the burden of proving that the offence was not committed as a direct and immediate response of him or her being a victim as set out in subsection (1) shall lie upon the prosecution.”

We are still dealing with clause 39 and statutory defence. The amendment, which I move on behalf of myself, my right hon. Friend the Member for Delyn and my hon. Friend the Member for Sedgefield, puts it beyond doubt that the onus is on the prosecution to show that an individual has not been trafficked, rather than for the trafficking victim to show that they were trafficked. That was the recommendation of the Joint Committee, which the Opposition support.

There are several advantages to that approach. It prevents the trafficking victim having to meet an evidential burden when they do not have the means. As we have discussed many times, trafficking victims are extremely vulnerable. They are normally confused and extremely wary of law enforcement. In cases such as that of Craig Kinsella or the children in cannabis factories we have been discussing today, they cannot easily produce evidence that they were trafficked because they may not have understood what was going on. That will be common in the case of children in particular who do not even know how they were trafficked or where from.

I want to give an example from the “Still at Risk” report by the Refugee Council and the Children’s Society that relates to the commission of immigration offences:

“For seven of the children in this review, their first contact with public authorities was either with the police because brothels were raided, or with immigration officers at borders who became suspicious of their documentation when they were being moved out of the UK by their traffickers. In some of these cases, officials and solicitors did not recognise the two key factors in their situations—that they were children and that they were potential victims of trafficking—which resulted in them being caught up in the adult criminal justice or asylum system. Three girls were sent to adult prison—two for documentation offences where they had been advised by solicitors to plead guilty, and one for an offence she still does not understand where again the advice given was to plead guilty”,

but she did not understand what it was she was supposed to have done.

“Two others were treated as adults and put into Yarl’s Wood Immigration Removal Centre. One of the girls who became caught up in the criminal justice system was entirely unclear about what she was being told to do and the potential implications.”

She was quoted in the report as saying:

“I don’t understand why, I don’t know, I don’t know what guilty means”.

She said she did not know anything about a passport—that she did not know about anything—but that she was being told to plead guilty. She also said:

“So then the solicitor asked me to plead guilty I pleaded guilty and I don’t understand what guilty means, I don’t know what they are speaking…about”.

That sets the scene for how difficult it is for trafficked victims to fully understand and appreciate what they are being accused of, and what they are being asked to do by their legal representatives.

This goes back to the point I made earlier about changing the attitude of the prosecuting authorities—the Crown Prosecution Service—which was one of the key points the Joint Committee raised. At present, it appears that the CPS’s default position is to prosecute. Its aim and purpose is to get as many prosecutions as possible—I guess the clue is in the title, “Crown Prosecution”, is it not? Its consideration of the rights of trafficking victims seems to be secondary. However, if we can remind the CPS that it will be able to get a prosecution only if it can disprove the suggestion that someone was a trafficking victim, we can discourage the CPS from prosecuting in cases where to do so would not be appropriate. That would change the CPS’s calculation from “Do we have evidence that they have committed a crime,” to “Did they commit the crime, and can we show that they have not been trafficked?” I believe that the amendment would start to change behaviour. It would remind other agencies that trafficking victims cannot be prosecuted. We have talked about problems with CPS decisions to prosecute. The CPS ultimately makes decisions about prosecution, and it has a duty to look at all the evidence and decide the best course of action on the balance of that evidence.

Defence lawyers may also benefit from the amendment. The Joint Committee took evidence about cases in which we know that lawyers advised victims to plead guilty when it was not appropriate to do so. We want to remind defence lawyers that if their clients have been trafficked, they should not be prosecuted in the first place. The amendment would reinforce the point that the CPS must consider its evidence, and if it does not have the evidence to rebut a trafficking claim, it should be persuaded to drop the case.

I reiterate, as the hon. Member for Enfield, Southgate has said several times during our debate, that clause 39 does not simply demand that an individual be trafficked. There are three stages to a statutory defence under clause 39, so for the majority of cases, the CPS will be able easily to rebut any attempt to use the statutory defence if there are not proper grounds for the claim that an individual has been trafficked. The amendment would move the onus on to the prosecution, which I believe would assist the courts.

David Burrowes (Conservative, Enfield, Southgate)

I declare an interested as a former defence solicitor. I hope the Minister will respond that the amendment is not necessary, and that the usual provisions in the law in respect of statutory defences will apply. Once the defence has been raised—indeed, it could be raised in the police station at interview—that on the balance of probabilities, it is more likely than not that a person has trafficked, it will be for the prosecution to prove otherwise beyond reasonable doubt. That burden is part of criminal law, and that will be the case for this statutory defence.

The same is true of the relevant civil law. That burden of proof applies not only when the matter comes to court, but in the police station. Once the defence has been raised, the prosecutor—or, indeed, the police officer in the case, when they talk to the CPS about whether there is a realistic prospect of conviction—will need to satisfy themselves that they can secure the conviction by being able to prove beyond reasonable doubt that the defence does not stand. That is important, because it means that at an early stage, with the proper application of the statutory defence, victims whom we do not want to go through the court process do not need to do so. That burden of proof will apply in the normal way, as with any statutory defence or in cases of self-defence.

Karen Bradley (Conservative, Staffordshire Moorlands)

I am grateful to the hon. Member for Kingston upon Hull North and other Opposition Members for tabling amendment 53, and to my hon. Friend the Member for Enfield, Southgate for his contribution. The hon. Lady raised an important issue. I know that all Committee members are determined to ensure that our defence works as effectively as possible to protect victims. Victims of the heinous crimes we are discussing must be confident that if they come forward, they will be treated as victims and not inappropriately prosecuted or convicted as criminals. Amendment 53 is clearly designed with that aim in mind, and I am grateful for that. The Bill will strengthen protections for victims so they can be confident they can come forward and support prosecutions. The defence means that victims of modern slavery who have been compelled to commit a relevant offence as a direct consequence of being enslaved or trafficked can be confident that they will not be treated as criminals. It is absolutely essential that people who are forced to commit crimes as part of their slavery or trafficking experience are not punished if they had no realistic alternative to committing the crime. The real criminals are those who coerced them into criminality, and it is vital that they are brought to justice.

We all know the kinds of criminality we are talking about. For example, law enforcement officials tell us time and again about Vietnamese children who are locked in cannabis farms and forced to live in the same room as the plants, which they cultivate day and night. Those children are clearly victims and should be treated as such by the criminal justice system. The hon. Member for Linlithgow and East Falkirk has left the room, but I know he has personal experience of cannabis farms—[Interruption.] I meant from the street he lives on, nothing more than that.

I understand that the intention behind the amendment is to ensure that, however the defence gets brought up, it is for the prosecution to prove it does not apply. In other words, only the evidential burden should apply, and evidence should be called simply to raise the issue of whether the statutory defence applies. I agree that that should be the case. However, the amendment is not necessary to achieve that important aim. It has been long established by case law that, as a basic principle of criminal law, once a defence is raised the burden of proof lies on the prosecution unless statute makes clear otherwise. Clause 39 does not suggest otherwise, so the evidential burden applies to the defence and, where there is sufficient evidence to the raise the defence, the burden of proof is already on the prosecution.

Similarly, if the court sees sufficient evidence that the defence might be relevant in a particular case, but the issue of the new defence for victims has not yet been raised by the defence, the court can invite submissions from both the prosecution and defence and put the defence to the jury to consider. Therefore, the court already has the necessary power to ensure that the defence is considered, even in cases in which the defence does not immediately raise it.

I thank the hon. Lady for tabling the amendment and raising this important issue. I hope that, with those reassurances, she will feel able to withdraw the amendment.

Diana Johnson (Labour, Kingston upon Hull North)

On the basis of what I have heard, I beg to ask leave to withdraw the amendment.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I beg to move amendment 75, in clause 39, page 27, line 27, leave out subsection (7).

David Crausby (Labour, Bolton North East)

With this it will be convenient to discuss the following:

Amendment 125, in clause 39, page 27, line 28, at end insert—

‘(9) The Anti-Slavery Commissioner shall in their annual report produced under section 36, include a review of the offences listed in Schedule 3.”

Amendment 89, page 38, line 15, in Schedule 3, leave out paragraph 14.

Amendment 90, page 38, line 30, in Schedule 3, leave out paragraphs 16 and 17.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Amendment 75 obviously seeks to deal with the widely framed schedule 3, which covers the offences to which the statutory defence will not apply. It covers a significant range of offences, which clearly limits the standing and scope of the statutory defence, not only for children but for adult victims.

The Minister will say that the schedule is needed to limit the application of the statutory defence. However, as we heard in the previous debate, the statutory defence is already limited by its restriction to crimes committed by trafficking victims that are a direct result of their trafficking or exploitation. Schedule 3 includes 134 different offences—it is not a small list—many of which could be argued to have been committed by victims of trafficking as a direct result of exploitation. There is much evidence about the patterns and practices of trafficking and the experience of victims to underpin that.

I will give a couple of examples. Section 48 of the Sexual Offences Act 2003 deals with causing or inciting child prostitution or pornography. UNICEF’s research shows that some cases involve people under 18 trafficking close relatives after having been exploited themselves. We know that those who are exploited or abused can become abusers themselves. We also have section 25 of the Immigration Act 1971. That deals with the assisting of unlawful immigration to a member state whereby child victims are likely to be provided with false passports by traffickers.

International law and standards envisage no exceptions to a non-prosecution directive, but this schedule creates wholesale exceptions. The Joint Committee, whose work is helping and informing us so much and has helped the Government to make some adjustments to the Bill already, took an approach that greatly qualified the limitation on the statutory defence by retaining the exception only for murder, but stipulating that the lesser charge of manslaughter would be applied. We therefore have significant pointers in relation to this issue.

We also have evidence from those who know these issues—for instance, the Children’s Society and the Refugee Council. They have recently provided evidence that shows, in relation to the 1971 Act, that the offence referred to is exactly the kind of offence likely to be committed by a child victim, so that is shown transparently. It is exactly the kind of offence for which a defence is required by victims. Again, of course, that is specifically mentioned in international standards. I come back to the great strapline claim that the Government have for the Bill that it is world-beating legislation. The fact is that it lags behind international standards on this point as it does on others.

I know that amendment 75, which would remove the schedule, perhaps goes further than hon. Members might want in dealing with some of these issues. I am conscious that other amendments are more targeted in the changes and deletions that they would make in relation to the schedule. I am prepared, with the rest of the Committee, to hear the case that might be made for those other amendments in this group.

Sarah Teather (Liberal Democrat, Brent Central)

My remarks will be brief, as amendments 89 and 90 are probing amendments. They are designed to clarify exactly what the Government intend in terms of the purpose of schedule 3 and its relationship with the statutory defence. As the hon. Member for Foyle said, the schedule contains a very long list of offences for which the defence created in clause 39(1) will not apply. There are 134 different offences. The explanatory notes to the Bill state that the defence

“will not apply in the case of certain serious offences”,

mainly serious sexual or violent offences, and that is reiterated in the Home Office’s impact assessment. However, along with offences such as murder, kidnapping, terrorism and rape, which people would expect to be listed, there are immigration offences, customs offences and theft-related offences. That is the nub of my concern. Those are the types of offences that research shows victims of modern slavery often become embroiled in.

The paper published by the UK chapter of RACE in Europe earlier this year suggests that vulnerable people and children, especially those from Roma communities, are trafficked into the UK and forced to commit acts of theft in particular. Worryingly, the exclusion of certain offences under the Theft Act 1968 from the operation of the defence created by the Bill fails to reflect that reality and it does not quite reflect the comments that the Minister made at the start, when she was speaking on clause 39. She said that it had been crafted specifically to deal with the kind of offences that victims of modern slavery are likely to get caught up in.

I am aware that the impact assessment says that where the defence is not applicable, the CPS will still have the responsibility to consider whether it should prosecute or not—a point that the Minister made repeatedly in response to the earlier groupings of amendments. However, as that is not in the Bill, what bothers me is that, with the offences listed in schedule 3, it is as if prosecution should follow. I worry that the mere presence of these listed offences in schedule 3 might make prosecution a near certainty, as if it is an encouragement to prosecute regardless.

The impact assessment tells us that the list of offences in schedule 3 draws on schedule 15 to the Criminal Justice Act 2003, which specifies violent offences that carry heavy penalties and non-custodial sentences. Nowhere in schedule 15 to that Act do immigration offences appear, yet they do in paragraph 16 of schedule 3.

Will the Minister explain why immigration offences have been specifically included, and why that list has been changed? It would have made more sense if the Home Office had simply lifted a whole list from a previous Act but the contents have been specifically amended here. It is not difficult to imagine circumstances where somebody who is a victim of modern slavery might well become involved in the facilitation of unlawful immigration.

I accept that there is a balance to be made between the rights of victims of future crimes and the rights of somebody caught up in modern slavery. However, I am unclear why those extra offences have been drawn into schedule 3.

Diana Johnson (Labour, Kingston upon Hull North)

Amendment 125 would insert that

“The Anti-Slavery Commissioner shall in their annual report produced under section 36, include a review of the offences listed in Schedule 3.”

Briefly, we know that the offences in schedule 3 will not attract the statutory defence, as set out in clause 39. We do not have a problem with schedule 3 including serious offences, although we have some sympathy with the comments made by the hon. Member for Brent Central, particularly in terms of some of the immigration offences. We think it very unlikely that most trafficking victims would understand UK laws or customs, in particular immigration rules.

There are 134 offences listed in schedule 3. We will not have time to go through them individually, but there are concerns particularly about section 48 of the Sexual Offences Act 2003, which relates to causing or inciting child prostitution or pornography. Unicef’s research shows that in some cases traffickers are under 18, and have involved close relatives, after being exploited themselves. There is a range of things there that we would like to discuss.

We think the best way to deal with the matter is for the anti-slavery commissioner to review the schedule 3 list as part of their annual report, to ensure that it is appropriate that all the offences currently listed stay as listed. In future there may be other offences that should be added to the list. At the moment forced begging and cannabis growing are some of the big offences being committed in relation to human trafficking and slavery, but that may well change quickly.

David Burrowes (Conservative, Enfield, Southgate)

The justification for schedule 3 is to avoid creating a legal loophole for serious criminals to escape justice. I am concerned about that but also concerned about serious victims who could be serious criminals. If the statutory defence does not apply, they would still be able to use the current law of duress. They would be able to seek that defence. I am concerned that we are unduly complicating matters. Peter Carter told the Committee,

“I think legislating by list of exceptions is a recipe for disaster and confusion.”––[Official Report, Modern Slavery Public Bill Committee, 21 July 2014; c. 36, Q69.]

Although there is an enabling power for further amendments, I am concerned that we might be over-complicating matters. We cannot have true confidence that the reasonable person test will apply to all types of offences and individuals. I know from the application of the law of duress that the more serious the offence, it is understandably harder to convince a court or jury that actions are justified, or whether a reasonable person would regard them as justified. We can rely on that and on subsection (3) to apply properly, so can the Minister tell us whether there are any other statutory defences that have limited and excluded serious offences?

Michael Connarty (Labour, Linlithgow and East Falkirk)

I can see why there might be very serious offences that were not thought of by the Joint Committee, and clearly some of those offences should be included. Paragraph 7 of schedule 3 is a catch-all that includes section 38 of the Offences Against the Person Act 1861, which covers assault with intent to resist arrest. That is a standard reason for the police arresting anyone whom they want to get slammed up, basically. If they cannot get them on anything else, they accuse them of resisting arrest and assaulting a police officer. I have worked with the Scottish Council for Civil Liberties for many years, and people have been dragged into court on that basis because the police basically did not like their face. If there is a melee on a Saturday night and someone speaks back, the next thing they know they are in court for resisting arrest and, of course, assaulting a police officer because they said, “What are you lifting me for? I’ve done nothing.” The next thing they know, they are in the High Court in Glasgow.

A problem is created by such a simple thing. Nobody gets off with schedule 3. It is such a minor offence, yet paragraph 7 of schedule 3 says that the statutory defence of being compelled to commit the offence as an enslaved child does not apply to section 38 of the 1861 Act. How could anyone possibly allow that to remain in the schedule and say that it is a serious matter under which someone should lose their statutory defence of having been compelled to commit a crime while being trafficked? That makes a mockery of things, and it makes me worry about the Home Office’s logic in this process. That is the most offensive thing in the schedule because it is so trivial. How can we deny someone’s right to the major statutory defence that they were compelled to commit a crime if they are going to be taken to court for resisting arrest?

Karen Bradley (Conservative, Staffordshire Moorlands)

I am grateful to the hon. Member for Foyle for moving amendment 75, to my hon. Friend the Member for Brent Central for tabling amendments 89 and 90, and to the hon. Member for Kingston upon Hull North for tabling amendment 125. The amendments raise important issues on how the statutory defence will be applied.

The statutory defence for victims will provide some of the most vulnerable people in our society with the protection and support that they need to come forward and support prosecutions in the knowledge that they will not be unnecessarily criminalised for offences that they may have been compelled to commit as a direct consequence of their slavery situation. However, there is also a need for appropriate safeguards to ensure that the new defence is effectively applied, and not abused by the very people whom we are trying to catch and lock up for these despicable crimes. Whenever any statutory defence is created, we must be careful to ensure that the line is drawn in the right place so that the people who need the defence can access it, and so that unfairness or injustice to potential victims of serious crime are avoided. That requires a careful balance to be struck. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances, and the defence may not be justified in every case. In some cases, for example, people who have been trafficked may become involved with an organised crime group and later, as full members of an organised crime group, commit very serious offences. I do not want to create a loophole that allows very serious criminals to escape justice in serious cases, as that would undermine everything that the Committee is trying to achieve.

Amendment 75 seeks to remove schedule 3 from the Bill, which would mean that the defence could apply to any offence, including serious sexual and violent offences, such as murder and rape. Amendments 89 and 90 seek to remove certain offences from the list of excluded offences. Those offences include a number of serious and often violent offences under the Theft Act 1968, including the offences of robbery or assault with intent to rob, burglary, aggravated burglary, aggravated vehicle-taking and blackmail. The current position in relation to the Theft Act is more appropriate as it ensures that the defence can be used for pickpocketing and ordinary theft but not for much more serious offences that often involve violence. The amendments would also exclude the offence under section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state and the offence under section 170 of the Customs and Excise Management Act 1979 in relation to importation of prohibited, indecent or obscene articles. Such offences can be undertaken by serious organised criminals, and we do not have evidence that victims of modern slavery have been forced to commit them.

I reassure my hon. Friend the Member for Brent Central that we have consulted the CPS at length, and it is clear that the offences that are not excluded are the ones that it commonly sees in trafficking cases, so we are trying to target the cases that commonly arise. The CPS said that it is not aware of the offence under section 25 of the Immigration Act 1971 or section 170 of the Customs and Excise Management Act ever having been relevant in a trafficking case or ever having been something that a victim of trafficking was involved in. I hope that will reassure her. The immigration offence in paragraph 16 of schedule 2 is a facilitation offence, often committed by organised criminals for profit. I have sought advice from the CPS to confirm that it has no cases of a child or adult slavery or trafficking victim committing a facilitation offence under section 25 of the Immigration Act 1971. Immigration offences are not excluded from the ambit of the offence. When a person has been compelled to commit an immigration offence, the compulsion is attributable to slavery or relevant exploitation and a reasonable person in the same situation would have no realistic alternative to committing an immigration offence, the defence will apply. We do not want to give loopholes to serious, organised criminals, but to ensure that the offences in cases of victims of trafficking and slavery are covered by the defence.

Diana Johnson (Labour, Kingston upon Hull North)

The schedule 3 list might give rise to a perverse incentive for trafficking victims to be charged with more serious offences so that they could not rely on the clause 39 statutory defence. Does the Minister think that might happen?

Karen Bradley (Conservative, Staffordshire Moorlands)

I would certainly hope that that would not be the case. I am sure that the CPS and others, when listening to these debates, will be clear that that is not the intention. We are trying to catch the bad guys. That is what the Bill is about. We want to ensure that the really bad guys who force people into these acts are the ones being targeted, not just easy targets. We are not setting target-achieving measures that would see victims being prosecuted. I do not intend that and I do not believe that that would be the case.

Michael Connarty (Labour, Linlithgow and East Falkirk)

People who are charged with aiding and abetting in a group offence are mentioned under paragraph 8(3) of schedule 2, which says that

“where the offence (or one of the offences) which the person in question intends or believes would be committed”.

That is often attached to people who did not the commit the crime but were seen driving the car or were in the café when they discussed doing the crime. The ability to detach the victim from the criminal, if we have this list in the schedule—which will deny somebody their statutory right of defence under clause 39—just does not make sense.

Karen Bradley (Conservative, Staffordshire Moorlands)

We have not discussed schedule 3 at length but the crimes set out in schedule 3 are ones that Parliament has decided are within the category of more serious offences. That is not to belittle the offences that are not in schedule 3, which are also serious offences, but these are offences that Parliament has considered over many years and believes should be there. The guidance and other measures should all work together to try to stop non-prosecution in the first place. We are looking to the CPS to ensure that prosecutions are only brought for genuine criminals, not for victims.

As we developed the statutory defence, our approach was to ensure that we covered the types of offences that are often committed by those who are enslaved or trafficked. I have taken detailed advice from the CPS on that point and the offences listed in schedule 3 reflect those discussions. The defence is designed to provide an effective protection against prosecution in the types of circumstances that victims of modern slavery find themselves in. The defence can be varied by statutory instrument if experience shows the coverage is not right and is failing to protect vulnerable victims.

When the defence does not apply because it is too serious, the CPS will still be able to decide not to prosecute if it would not be in the public interest to do so. The CPS already considers whether to bring a prosecution in cases in which a slavery or trafficking victim may have committed an offence as a direct consequence of their trafficking or slavery situation, having regard to its specific guidance on the issue. We discussed that earlier. This is the appropriate way to deal with violent and sexual crimes. We must consider the interests of the victim of such crimes, and the situation of the person who committed that crime but who has been victimised through a modern slavery situation.

These are unusual and difficult circumstances and justice will be best served by the individual circumstances of the case being carefully considered. Case law has established that the criminal courts can stop a prosecution as an abuse of process where they take the view that, where they take the view that, having regard to our international obligations relating to trafficking, the prosecution should not have been brought.

Amendment 125 seeks to require the anti-slavery commissioner to review, in their annual report, the list of excluded offences in schedule 3 relating to the statutory defence. While I fully understand the intention behind this amendment, it is not necessary. We have discussed at length the role and functions of the commissioner. They will have a role to play in ensuring that victims feel confident and supported to come forward and give evidence. That includes where victims may have committed an offence as a direct consequence of their slavery experience. I have been absolutely clear that the commissioner will have the freedom and autonomy to look at all issues in their broad remit. Where they believe that the statutory defence is not working properly for victims who can effectively support an investigation, they will of course have the ability to consider making recommendations about its effectiveness. That is why we have included a power in the Bill to amend schedule 3—to have flexibility to look at the relevant offences as our understanding of modern slavery and how it manifests itself improves.

I believe that the statutory defence included in the Bill is appropriate and protects genuine victims of modern slavery, while avoiding creating a loophole for very serious offenders to escape justice. I of course want to ensure that such an important and groundbreaking provision really does give the right level of protection and support to victims. That is why I am keen to listen to members of the Committee, and, indeed, the voluntary sector, to get this important provision right. That is why it is absolutely essential that we maintain the flexibility to change the list of excluded offences by statutory instrument.

Therefore, I would like to thank hon. Members for raising these important issues, and I hope they will feel able to withdraw their amendments.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I have no wish to press the amendment to remove subsection (7). I have noted what has been said by other hon. Members on taking a more selective and targeted approach to reducing the amendment’s sweeping nature. I stand by my point, but I do not see the need for a Division on this. It is a matter that will have to be considered further. The points made by the hon. Member for Kingston upon Hull North and those made by others will be relevant as we take the Bill forward. I beg to ask leave to withdraw the amendment.