Modern Slavery Bill — Committee (1st Day) (Continued)
House of Lords, 1 December 2014.
Lord Bates (Conservative)
The noble Baroness, Lady Goudie, has caught us slightly on the hop with her amendments, so we have got to government Amendment 13. This is one of a number of amendments I have tabled to ensure that we are clear and consistent in showing that the offences in the Bill are effective for children. The amendment makes clear that the consent of a victim to their travel is irrelevant, regardless of whether they are an adult or a child. This reflects the fact that many adult victims of trafficking believe, for example, that they are travelling into the UK to do a job or for a better life, and so they consent to that travel without knowing the severe abuse which may lie ahead of them. This provision has been in the Bill throughout, but we thought it helpful to spell out that it applies to all people, including children.
I now turn to a number of amendments further on which relate to trafficking. The approach we have taken in the Bill in defining trafficking reflects the same broad approach that has been taken in our legislation since trafficking was first created as an offence here in 2002, an approach that is tried and tested and well understood by law enforcement. I acknowledge the real concerns that defining the offence differently in the Bill would add unnecessary confusion for law enforcement and prosecutors, who understand and use the trafficking offence, when we want them to focus on gaining more convictions in practice. When giving evidence to the Public Bill Committee in another place, the Director of Public Prosecutions highlighted that the offences in the Bill are clearer than the alternatives which the pre-legislative scrutiny committee suggested.
Both alternative approaches to defining trafficking also, probably inadvertently, could make prosecution harder than under the offence as set out in the Bill, because they seek to tie the conduct element of the offence to the specific means set out in the EU directive. There is no requirement for any particular means to be involved in the conduct element of the offence in the Bill or in existing law, so replacing this approach with an exhaustive list which indicates the means through which someone may be trafficked would have a narrower effect than the current provision. I doubt that anyone would want to see that happen. That relates to Amendment 13, which stands in my name. I am happy to respond to other amendments as they are spoken to by other noble Lords. I beg to move.
Baroness Royall of Blaisdon (Labour)
My Lords, I am grateful to the Minister for moving his amendment, which I am happy to support, but I wish to discuss some profound changes in relation to the offence of trafficking and will therefore speak to Amendments 23 and 25. Our opposition to Clause 3 standing part of the Bill is of course consequential on those two amendments.
Amendment 23 aims to delete the current definition of human trafficking and insert a new one based on international definitions, while Amendment 25 would create a separate offence of exploitation to ensure that a conviction can still happen without the element of travel. We have a unique opportunity here to strengthen the law, with a view to protecting victims and to securing more prosecutions. The fact there are so few prosecutions shows that the current definitions do not work, although I well understand the view expressed earlier by the noble and learned Lord, Lord Mackay, that the Bill must be a means of prevention, not just a means to more prosecutions.
I do not understand why the Government have decided, as the noble Baroness, Lady Doocey, said earlier, to copy and paste existing offences into this new Bill. If the offences have not worked in the past, I do not believe that they will work after the Bill has been enacted. At Second Reading, various examples were given by my noble friend Lord Tunnicliffe—more have been given today—of perpetrators who should have been prosecuted but who were either not prosecuted or prosecuted for lesser offences. In the discussion on the last group, the Minister said that we must not make it more difficult to secure prosecutions, which of course I agree with, that we need to increase awareness, which is absolutely right, and that we need more training, which I certainly agree with. Given that in debates on other Bills we have talked about the need for training, but it has simply not happened, I wonder whether in due course we should make certain sorts of training mandatory. However, that is for another day. Notwithstanding those facts, even if there were increased awareness and better training, it would not be enough, although I note that the noble Lord will have further discussions with the DPP and CPS between now and Report.
My noble friend Lord Rosser and I are not alone in our views: many noble Lords spoke of these things at Second Reading, as have many of our colleagues in the House of Commons. A wide range of groups have been pushing for a new definition of human trafficking and a separate offence for exploitation, including the coalition of groups that have come together to form the Anti-Trafficking Monitoring Group with the help of legal experts in trafficking, including barristers. The Joint Committee on the draft Bill was concerned about existing gaps and loopholes. The Joseph Rowntree Foundation noted that the current clauses,
“do not capture the full array of situations linked to”,
slavery and exploitation. Particularly where it may be difficult to prove slavery, we have to ensure that another offence is available to secure a conviction. If not, these crimes will go unnoticed and will only materialise over time as more severe forms of exploitation, which would subsequently amount to forced labour and slavery.
We have concerns as regards the current definition of human trafficking in the Bill and the weight it places on travel and movement. Trafficking does not always require movement. In reality, it is conducted through acts which include recruitment, harbouring and transferring, and the receipt, exchange or transfer of control over another person. The absence of these specific terms is problematic in cases involving large criminal networks, where different people take different roles in the trafficking process. It is also a problem where victims arrange their own travel into and around the UK and to the site of exploitation, which often occurs when individuals are deceived about work conditions or when conditions deteriorate over time.
The Equality and Human Rights Commission says that the prerequisite of travel in the offence means that,
“it may not be possible to prosecute those involved in the trafficking chain where there is no movement”.
Therefore, those involved in the initial stages of trafficking—for example, those who recruit victims—may not necessarily be convicted under the current definition. The draft Bill committee also pointed out that under the current definition it would be hard to convict someone who trafficked a victim—that is to say, moved them—but did not care how the victim would be treated by the person they delivered the victim to. In that case, the defendant does not intend or believe anything about the future treatment of the victim, and therefore would not be caught by Clause 2.
The language in our definition of human trafficking reflects the language used by the International Labour Organization, in article 2 of the EU directive on trafficking, Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings and Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, also known as the Palermo Protocol. As noble Lords will know, the human trafficking definition was established in an internationally binding treaty integrated into the national laws of some 134 countries. We are an international player, we live in a globalised world and we have to ensure that our definitions are in line with our international obligations. Focusing on travel and movement could incorrectly be linked to immigration—I think we will look at that sort of problem later. Moreover, it fails to capture the reality of modern trafficking. The words,
“arranges or facilitates the travel of another person”,
are far too simplistic to enable effective prosecutions. The draft Bill committee concluded that the offences in Part 1,
“fail to capture current or potential future forms of modern slavery”.
As the Bill is currently drafted, there is no separate offence of exploitation; it would only be part of Clause 2 and should fall within the criteria of Clause 3. Clause 3 cannot even be looked at unless the conditions of Clause 2 are fulfilled. Clause 3 fails to include two of the most common forms of exploitation: forced begging and exploitation for the purpose of begging, as discussed earlier. The draft committee recommended a separate clause on exploitation that would apply in situations where the victim is an adult, there is no travel and the standard need to secure a child exploitation offence has not been secured by the prosecution.
The creation of separate offences for adult exploitation and trafficking and for child exploitation and trafficking would create an overlapping pattern to ensure that the offences were watertight and to give the courts—both judge and jury—a selection of offences to consider. The then Lord Chief Justice of England and Wales—the most senior criminal judge in the country—the noble and learned Lord, Lord Judge, said,
“that is another aspect of the Bill that troubles me. We are making provisions for slavery, servitude and compulsory labour in clause 1 of the Bill. In clause 2, trafficking is the offence. It becomes an offence because you do it with a view to exploitation—knowing, believing or whatever words are chosen to be used. You could have an offence of trafficking, full stop, and a separate offence of exploiting. As it stands at the moment, you have a single offence with two parts—here is the trafficking, and it is with a view to exploitation”.
He goes on to say:
“My concern reading clause 2 and the various subclauses is, ‘Is this really what we want?’—a single offence that has two ingredients, rather than two separate offences and, possibly, a third offence, which would put the two together”.
We take the same view.
In giving evidence to the draft Bill committee, Detective Inspector Roberts of Kent Police gave the example of the Lithuanian chicken catchers who were living in squalid conditions and paid very poorly. Even though their experiences were dreadful, their case did not amount to slavery or forced labour, as the bar was too high in current legislation. This is a prime example that proves how the current law is not working. So why duplicate it when here we have an opportunity to make it more effective? We believe that we need a separate exploitation offence that captures vile criminal behaviour which does not quite meet the threshold of the other offences in the Bill and in current legislation.
I know that the Minister will say what he said earlier in respect of children, that creating two separate offences can create risk and confusion, and there is a plethora of legislation already in place, but we believe that having the two new offences will create certainty and clarity and, most importantly, will lead to more prosecutions. I well understand if the Minister and others think that the definition in our amendment might not be perfect, and I know that reaching a definition on exploitation is extremely difficult, but the amendment provides a sound basis for further work.
Leading judges, barristers, legal experts, members of the CPS and senior members of the police are all telling us that there is a problem with the current drafting of the offences in the Bill and that the current legislation is not working. I believe that we have to listen to them. As the Minister will know, the modern slavery strategy has four main components, the first of which is “pursue”—that is, prosecuting and disrupting individuals and groups responsible for modern slavery. We agree with that aim, which is why I am speaking to these amendments.
Baroness Hamwee (Liberal Democrat)
My Lords, on that last point—on Amendment 24—the noble Baroness and the House will understand how much I support the need to look at an offence of exploitation, because that, after all, was the rationale for my Amendment 100 in the earlier group.
However, if we take the point—which I absolutely do—about fitting in with international legislation, I wonder about the suggestion of a separate offence of trafficking and exploitation, because Article 2 of the directive, which has been referred to, is about trafficking “for” exploitation. So one has to be careful about making sure that we do fit in. However, on the point of whether there should be a separate offence of exploitation, yes, I am absolutely in agreement with that.
Whether, as the noble Baroness says, the list is the one that one would want to end up with—and, I have to say, whether it is something one would want to go to without the opportunity of consultation, which is why I had my amendment in the form that I had it in—I am not sure. The term “on the hoof” was used earlier. I would not quite say that, because we have all been thinking about this for some time, but we have to be quite careful before creating more offences, important as they are.
The issue of the international—the European, at any rate—definitions concerns me greatly. The Government have reassured us that all our international obligations are covered, and I do not doubt for a moment their good faith, but I wonder whether there is a sort of natural, human reluctance to change a provision to something that was “not invented here”. I am sorry if that is cruel.
I would accept, at least as an argument to be explored, being told that because the offences in the Bill repeat offences from earlier legislation, there was case law that we did not want to lose. However, I put that to members of the Bill team and they said that at that point it was not in their thinking.
I wonder, and I ask the Minister, whether there could be a direct reference to Article 2 of the directive, such as to any act proscribed by that article—or, to put it another way, to say that “travel” shall be construed as including the intentional acts punishable under that article. This is drafting on the hoof, but the article deals with harbouring and reception, which are among the items that are causing us all quite a lot of trouble.
I will put a specific example to the Minister. A man who is grooming a young woman arranges to meet her when she is travelling—undertaking travel in the normal sense of the word—and then his mates or customers, whatever you want to call them, happen to be at that meeting point and he passes her on to others to be raped. If he said, “See you at the Station Hotel. Come and have a drink—you get there under your own steam—and we can hang out”—is that arranging travel within Clause 2, the trafficking offence? I am concerned that there may be a distinction between that and, “I’ll pick you up at nine on the corner and we will go—I will drive you—to the Station Hotel and we will have a drink and hang out”. That is the sort of thing that worries me as to whether Clause 2 is sufficiently extensive.
I have Amendment 27 in this group. That would add in, at the end of the first subsection of Clause 3, actions or offences that are planned or in contemplation. This is simply probing. Clause 2(1) covers travel with a view to exploitation. Clause 3 seems to require the commission of an offence, not just having it in view. So if people are transported with a view to their being exploited but, for instance, are found at a port of entry
before they have been exploited, is that covered? I think that that is what is meant by Clause 2(1), but I want to be certain and this seemed to be the time to raise the point.
Baroness Butler-Sloss (Crossbench)
The noble Baroness, Lady Hamwee, has looked at the directive. I have gone back to the convention of the Council of Europe, which comes before the directive but is couched in very similar terms. I am somewhat surprised that the noble Baroness, Lady Goudie, did not pursue her amendments, because they seem to me to be closer to what is needed. They wanted to put in the phraseology that is in the convention and the directive: “recruitment, transportation, transfer, harbouring or receipt of persons” and so on. Clause 2 is fine so far as it goes, but it does not go quite far enough.
We seem to have an extraordinary English desire for the word “traffic” to mean movement. However, that is not how it is seen across Europe. What worries me about that is that this is going to be a flagship Bill of great importance which may well be followed by countries round Europe and far beyond. However, we may not fall in line with all the conventions from the Palermo Protocol through to the Council of Europe convention and the directive of the European Union and we may want to use the Bill internationally—I hope we may—to persuade other countries to send their offenders to us, or to ask them to send over our offenders.
The offences with which we are concerned—for example, offences covered by the European arrest warrant—may involve movement. A group of men may be trafficking in the English sense—that is, trafficking men, women and children right round the world to England, but doing so in order to sell them on. Their job is to get them here; once they are here, other groups take them over. I hope that Clause 1 deals with that situation but I am not entirely sure. However, if you put into Clause 2 the Council of Europe definition of trafficking, you will be absolutely safe on that.
The point that is worrying me is that we have produced a much more defined and limited version of this. Article 4 of the convention—oddly, it is Article 4 of both the convention and the directive—explains in paragraphs (b), (c), (d) and (e) what paragraph (a) actually means. Interestingly, the word “exploitation” appears in an explanation of trafficking. If I may respectfully say so, that is where the Government have got this right—because one wants to include trafficking for the purposes of exploitation.
Taking account of the amendments of the noble Baroness, Lady Goudie, which were not moved, my only issue on this is that we ought to include in Clause 2(1) the extended wording of recruitment, transportation, transfer, harbouring or receipt. I appreciate that, if we do that, the Bill team may say that we are covering part of Clause 1. That may be a problem. However, I do not think that the fact that it is repeating something in different words is the end of the world—because, if you are to use the word “trafficking”, you may have to explain to a jury that you do not have to move somebody from A to B in order to traffic them. If you put in
the offences of Clause 1 as the alternative offences, I expect you would be covered anyway. However, I am unhappy that we are limiting the word “trafficking”, given its important European meaning, and that we are one step behind the Europeans in a Bill which we hope will be taken up, particularly by eastern European countries.
Lord Deben (Conservative)
My Lords, I want to underline what the noble and learned Baroness has just said for a particular reason. The Government have been keen on saying that, in accepting the European arrest warrant, they want to make clear that they will not allow it to be used for offences committed in other countries which are not offences here. In those circumstances it is most important that we get the offences here right in parallel with what is an offence in another country. It is that point which I think the noble and learned Baroness has put her finger on and it is that which we have to get right.
I question the Government’s view on the restriction of the European arrest warrant. However, if they want to do that, they have to make sure that we do not find ourselves in a position where we have ill defined a particular offence so that it does not operate in the way we would like it to do in any complementary legislation in other countries. I hope that my noble friend will consider this suggestion very carefully, probably not at this moment, but between now and the next stage of the Bill, as it is worth trying to get this matter right.
Lord Ponsonby of Shulbrede (Labour)
My Lords, I will comment on a slightly wider point and back up my noble friend on the definitions of trafficking and exploitation. She spoke about the benefits of having stronger definitions of trafficking and exploitation and referred to the comment of the noble and learned Lord, Lord Mackay, that stronger definitions could lead to the prevention of trafficking and exploitation. I will add that a benefit of having clear and strong definitions is in the identification of trafficking. Here I am talking specifically about identification when one is in court.
As noble Lords may know, I sit as a magistrate in both adult and youth courts. I have sat in youth courts on quite a few occasions where a young person has been brought in for either pickpocketing or shoplifting and a man is sat at the back of the court who we are told is the young person’s uncle. We have received training on what to do when our suspicions are raised with regard to the status of the person sitting at the back of the court, who is there supposedly in the interests of the youth appearing before it.
I know that the YOTs, the probation service and the police have also received training on this matter. It is important that we have clear identification and that the courts can act quickly when they think this issue is being raised, because when one is actually going through the court process, one does not have very long to identify potential victims of either trafficking or exploitation. Therefore, it is important that this definition is as clear as possible and is well known by the various agencies that deal with young people—and not so young people—who may have been trafficked.
Lord Bates (Conservative)
My Lords, I thank the noble Baroness, Lady Royall, for speaking to the amendment and, as is so often the case, expressing sentiments and views which are shared on all sides of the Committee. It is perhaps not unusual that we are rehearsing some of the general principles discussed on previous groups of amendments. It is interesting to note that paragraph 2.3 at page 15 of the Modern Slavery Strategy document underscores the point made by the noble and learned Baroness, Lady Butler-Sloss. It states:
“However, we also know that a high number of victims are UK nationals, including children. Not all victims of modern slavery are trafficked across the border. We know that the internal trafficking of victims to other parts of the country takes place, and other forms of modern slavery take place that involve no movement of the victim at all”.
My noble friend Lord Deben made a very interesting point. We want to see the Palermo Protocol used as a basis for harmonisation. The Palermo Protocol sets out an international definition of trafficking in persons as,
“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
That definition is relevant to the point made by my noble friend Lady Hamwee. She asked about a particular set of circumstances. I will look at that case study. Case studies are extremely helpful in this world, because they provide us with an opportunity to explore the options. All case studies will be matters for the police, the Crown Prosecution Service and ultimately the courts to adjudicate on. I would certainly have thought that the individual to whom she referred would, at minimum, be caught by Clause 4, “Committing offence with intent to commit offence under section 2”. It states:
“A person commits an offence under this section if the person commits any offence with the intention of committing an offence under section 2 (including an offence committed by aiding, abetting, counselling or procuring an offence under that section)”.
I will be happy to come back to this and look further at it, but that is my initial thought in relation to that question.
I turn to the specifics of the amendment and some of the questions which were raised. The alternative trafficking offence set out in Amendment 23 also removes the reference to travel. I fully appreciate the intention behind the amendments. However, I am confident that the language used in Clause 2 is already entirely consistent with the EU directive—the point made by my noble friend Lord Deben. The offence of arranging or facilitating the travel of another person with a view to exploitation includes all the ways through which human trafficking may be committed, as set out in the Palermo Protocol and EU directive, to which I have already referred. Those international instruments are explicitly concerned with human trafficking. The serious evil they rightly identify is trafficking and clearly trafficking involves some element of movement or travel of the victim.
The noble and learned Baroness, Lady Butler-Sloss, referred to Clause 2. I must pay tribute to her incredible sharpness of mind, despite her having flown in from sub-Saharan Africa and arrived at something like
5.30 this morning. I just got the train down from Newcastle and I have to say that I am feeling a little bit groggy. I think that probably reflects the difference in mental capacity between the two of us, but we will carry on. In Clause 2, we have already responded to concerns during pre-legislative scrutiny and made clear on the face of the Bill that a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words which are used in the protocol.
The noble Baroness, Lady Royall, asked specifically whether we needed a general exploitation offence, because forced begging is not covered in the offences of the Bill. Forced begging is an offence under Clause 1 as it amounts to forced or compulsory labour and therefore our view is that it would be caught by that.
My noble friend Lady Hamwee asked whether the trafficking offence covers incitement of the victim to travel to a particular location, which was the example that was given. The trafficking offence can cover inciting a victim to travel somewhere with a view to exploiting them—for example, the perpetrator telling a victim to meet them at a particular time and in a particular place with a view to exploiting the victim. There is no requirement that the perpetrator physically moves the victim. Any kind of arranging or facilitating their travel is enough.
In the case of grooming a victim for use in prostitution or for rape, as in my noble friend’s example, then telling the victim to meet them at a hotel—to hang out, as she asked—would certainly be covered by the trafficking offence. Inciting a victim for prostitution is a form of exploitation under Clause 3 and such conduct is an offence under Part 1 of the Sexual Offences Act 2003. As I referred to from the strategy document, any arranging or facilitating a victim’s travel, including travel within the UK, for that purpose will amount to an offence under Clause 2.
My noble friend also asked whether the trafficking offence covers all the acts proscribed in Article 2.1 of the EU trafficking directive. The UK is fully compliant with all our international obligations in relation to human trafficking, including in relation to the EU directive. It is not inconsistent with the international instruments to retain the concept of travel in the offence. Our offences, ever since they were created, have had that element. The international instruments are explicitly concerned with human trafficking. The evil that we are trying to tackle is trafficking and clearly trafficking involves some element of movement and travel of the victim. Following pre-legislative scrutiny, we took the opportunity to make clear in Clause 2(3) that a person may,
“arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”.
The words reflect those used in Article 2.1 of the EU directive. Therefore, we do not think that there is a need for a specific reference to Article 2, as suggested by the noble Baroness.
The alternative offence set out in Amendment 23 provides no definition of exploitation and suggests removing the clause that defines exploitation. We have
real concerns about failing to define a key part of a very serious offence which, if the Bill is passed, could result in a life sentence. The offence would be unclear and potentially extremely wide. The public rightly expect clarity on what conduct Parliament has decided should be potentially punishable with life imprisonment.
Amendment 27, proposed by my noble friend Lady Hamwee, seeks to ensure that the definition of exploitation in relation to trafficking includes where the offender is contemplating or planning to commit the forms of exploitation set out in Clause 3. This is an important point to raise and I welcome the chance to provide reassurance to the House. If we catch traffickers in the act of moving victims and we have evidence that they are planning to exploit those victims, we can prosecute and convict those perpetrators for human trafficking under the offence in this Bill. A human trafficking offence simply requires that someone arranges or facilitates the travel of another person with a view to exploiting them. There is no need to wait for the exploitation to actually occur.
I turn to the question of whether we should consider new criminal offences around exploitation. I have listened carefully to the debate and I want to explain the Government’s approach to exploitation, where there is no trafficking. We have touched on these points already in relation to child offences. I believe that the Bill should target really serious wrongdoing. Where the exploitation hits the seriousness thresholds required by the slavery, servitude and forced or compulsory labour offence, it is already covered by the Bill under Clause 1.
The criminal law also provides for a series of other offences to deal with forms of exploitation which should rightly be criminal. Some are very serious offences indeed, such as offences around sexual exploitation. A very wide range of other offences can be used to tackle benefit fraud, begging, petty theft, and in cases where the Clause 1 offence is not clearly made out.
Amendment 25 proposes an alternative approach including a general exploitation offence. The offence would be potentially too broad in scope, as I have already pointed out, if Parliament does not explicitly say what it should cover. After cases have gone through the courts, we might well find that it captures behaviour that would not be the behaviour that we are aiming at today, and which would certainly never justify a life sentence.
I am also concerned that introducing a potentially vague new offence would create more uncertainty and confusion for law enforcement agencies and prosecutors. The noble Baroness, Lady Royall, has already referred to the importance of training for agencies to understand fully the warning signs of when an offence has taken place and to ensure that those prosecutions come forward. In this regard the points made by the noble Lord, Lord Ponsonby, drawn from his experience in courts, were particularly valuable, because they highlighted at what point responsible agencies have an opportunity to identify potential victims and intervene. Training magistrates will be a very important part of that.
I am drawing to the end of my remarks. The Director of Public Prosecutions has been clear in Parliament that additional offences, such as this one, would not be
helpful to prosecutors and that existing offences are clearer and more workable. I take that advice seriously—as I am sure do all noble Lords. Given this explanation I ask noble Lords not to move their amendments.
Baroness Royall of Blaisdon (Labour)
I believe that the noble Lord’s amendment will come before mine in the pecking order. I want to make two points. Of course, I hear what he says about the views of the DPP, but a huge number of lawyers and other people involved in the system are looking at these issues, including charities and various organisations. They are all deeply concerned that notwithstanding the fact that we have this plethora of laws at the moment, as was said at Second Reading, the UK Human Trafficking Centre last year identified 2,744 victims of trafficking, including 600 children. Yet, since the introduction of that offence there have been no prosecutions when the victim was a child, and there have been very few prosecutions at all. I agree with the noble Lord that awareness training is terribly important but there must be something wrong with the current offences if they cannot be used to prosecute people who are perpetrating the most evil of crimes. Therefore, I ask him to look at this again.
In relation to the definition of trafficking, I listened carefully to what the noble Lord said, but it would be very good if he could respond on Report to the points made by the noble and learned Baroness, Lady Butler-Sloss. I still think that there is something missing, and it is not in the Bill that we are absolutely in tune with our European partners. That needs to be on the face of the Bill. I would be content with that in terms of human trafficking but I certainly want to come back to the issue of an offence. We have to do something about getting more prosecutions for these heinous crimes.
Baroness Hamwee (Liberal Democrat)
I remain concerned about the definition of trafficking, and I am sure that we will come back to that. I want to ask the noble Lord on the narrow point of whether I am right in understanding that he is saying that incitement falls within arranging. He referred to Clause 2(1), which states,
“if the person arranges or facilitates the travel”.
He may not want to answer that now but I ask the question now whether incitement is within that term. The answer may come later.
Lord Bates (Conservative)
I think that “incitement” is a new word here. Whether it will be covered by aiding, abetting, counselling and procuring—
Baroness Hamwee (Liberal Democrat)
The Minister used the term “incitement”. That is why I picked it up.
Lord Bates (Conservative)
The incitement element is important from the general definition in the Palermo Protocol, and I referred to that part of it. We will certainly get clarification on that point and return to it. Of course, we are always open to look at new evidence that becomes available, or evidence that comes from speaking to the Crown Prosecution Service and the National Crime Agency, as well as the stakeholder group. If we draw the offence too widely, it becomes more difficult
to prosecute. We are totally on the same side when we talk about the number of prosecutions being woefully low, as I said previously. We need that number to increase, and for that reason we have taken the view that we need to be very explicit about the offences that we have in mind. The noble Baroness has invited me to reflect on her arguments and the remarks made by the noble and learned Baroness, Lady Butler-Sloss. I will certainly do that ahead of Report.
Amendment 13 agreed.
Amendments 14 to 23 not moved.
Clause 2, as amended, agreed.
Amendments 24 to 26 not moved.
Clause 3: Meaning of exploitation
Amendment 27 not moved.
Clause 3 agreed.
Amendment 28
Moved by Lord Hylton
28: After Clause 4, insert the following new Clause—
“Access to employment tribunals
It shall be an offence to deny access to an employment tribunal to a person entering the United Kingdom on a visa restricting the person to a single employer.”
Lord Hylton (Crossbench)
My Lords, I will refer briefly to Amendment 94, to which I have added my name. That goes to the root of the problems of foreign domestic workers in the United Kingdom. Amendments 28 and 95, which are both in my name, and in this group, try to improve the nuts and bolts of the situation as it presently is here.
I submit that it is a fundamental right of all employees in this country, whether citizens, residents or visitors, to have access to an employment tribunal if they have serious complaints about working conditions or pay. At Second Reading I raised the cases of foreign domestic workers whose visas tie them to a single named employer. They are usually resident on the employer’s premises and are thus wide open to exploitation. In too many cases, their passports are removed and they are confined to the house or allowed out only under close escort. In such circumstances, they cannot get essential legal advice and they cannot reach a tribunal. The result is that serious exploitation, maltreatment and non-payment of wages go unpunished.
I detailed at Second Reading some of the abuses recorded over many years and I will not repeat them now. Since then I have heard nothing from the Home Office about better protection and remedies. I have therefore tabled Amendment 28 to make it an offence to deny access to a tribunal to anyone on a restricted visa. Perhaps the proposed offence should be wider still. It may be that I should have specified penalties for summary trial and on indictment. That is something to which we can come back at a later stage. Meanwhile. I commend the amendment.
I should also speak to Amendment 95 in this group, which also relates to something I said at Second Reading. There have been a few cases where embassies or foreign diplomats have failed to observe best practice in relation to their domestic workers, who are often recruited overseas. Some cases may not have reached legal decision, and in others, enforcement may have failed—in both categories because of diplomatic immunity. In my understanding, such immunity is given for the protection of diplomatic functions and not as a cover for employment malpractice. I was therefore encouraged to read in the Irish Times of 26 November that an employment appeals tribunal in Dublin awarded €80,000 each to three Filipino women against an ambassador and his wife. The women had been paid less than the national minimum and their conditions were described as “horrific”. If this can be done in Ireland, it should be possible here.
Lord Rosser (Labour)
My Lords, the noble Lord, Lord Hylton, has undoubtedly drawn attention, as he did at Second Reading, to the abuse of people who are under tied visa arrangements. We await with interest the Government’s response to the points that he has made. We are associated with Amendment 94, which will be debated much later, to which the noble Lord, Lord Hylton, has added his name, along with the noble Baroness, Lady Cox, and the noble Lord, Lord Alton of Liverpool, as well as my noble friend Lady Royall of Blaisdon. The amendment seeks to insert a new clause entitled “Protection from slavery for overseas domestic workers” which would enable such workers to change their employment and not remain under the tied visa arrangements. That is the goal that we, and perhaps the noble Lord, Lord Hylton, and others, seek to achieve. Amendment 94 will be debated later. For the moment, we await the Government’s response to the two amendments to which the noble Lord has spoken.
Lord Alton of Liverpool (Crossbench)
My Lords, I would very much like to support my noble friend Lord Hylton, and I follow the noble Lord, Lord Rosser, in his support for Amendments 28 and 95. The noble Lord, Lord Rosser, has rightly reminded us that when we get to Amendment 94 there will be a chance to have a wider debate about the whole question of the overseas domestic worker visa.
Many of us would say that the subject of denying someone the right to go to an employment tribunal—that is what my noble friend’s Amendment 28 specifically deals with—is a sort of curtain-raiser to the debate that will come later. Enabling migrant domestic workers to change employer, to apply to renew their visa annually if in full-time employment, and to have the right to go to an employment tribunal, would be a significant step towards preventing abuses against migrant domestic workers, including forced labour for their employers, and would enable them to seek redress without fearing deportation from the United Kingdom.
My noble friend Lord Hylton has a long and honourable record of raising this question for all the years that I have been in your Lordships’ House, so it comes as no surprise to me that he has tabled these
amendments. He is not, of course, alone in raising this question. Amnesty International UK, the Anti Trafficking and Labour Exploitation Unit, the Anti-Trafficking Monitoring Group, Human Rights Watch, the Immigration Law Practitioners’ Association, Kalayaan and Liberty are among those who support moves in this direction.
Evidence since the introduction of the tied ODW visa in 2012 demonstrates how the current tied visa system facilitates the abuse of migrant domestic workers in the UK and therefore undermines the objectives of this timely and very welcome Bill and the Government’s efforts to fight modern slavery. Because of its deleterious effects, the 2012 decision, whether it was made wittingly or otherwise, is something we need to return to in the course of our deliberations, to see what we can do about it.
The Joint Committee on the draft Modern Slavery Bill identified the 2012 policy as having,
“unintentionally strengthened the hand of the slave master against the victim of slavery”,
and said:
“Tying migrant domestic workers to their employer institutionalises their abuse”.
The Joint Committee on Human Rights reported that it,
“regards the removal of the right of an Overseas Domestic Worker to change employer as a backward step in the protection of migrant domestic workers, particularly as the pre-2012 regime had been cited internationally as good practice, and recommends that the Bill be amended to reverse the relevant changes to the Immigration Rules and to reinstate the pre-2012 protections in the Bill”.
We have heard a great deal already today about the importance of having what my noble and learned friend Lady Butler-Sloss described earlier as flagship legislation. I know that it is the Government’s wish that this should be seen as an international gold standard piece of legislation that others will be able to imitate, and that they hope it would be capable of implementation worldwide. But that is in doubt unless we put right this defect that was incorporated into our legislation. I recognise that it may not be possible to do that today, but I hope that when the noble Baroness replies to the debate she will indicate to my noble friend that we will continue to discuss this issue to see what we can do to remedy something that was done in 2012 and has, wittingly or unwittingly, brought about these consequences. One of those consequences is, as is highlighted in Amendment 28, that people are prevented from having access to employment tribunals.
Baroness Hamwee (Liberal Democrat)
My Lords, one of the things that has struck me in our discussions about the rights of overseas domestic workers is the importance of enabling them to enforce their rights. That is what the amendment aims to do. This should not need saying, but it has come through to me very strongly that we need to give people the tools and make sure that they are available.
Earl of Sandwich (Crossbench)
My Lords, I have been trying to think of the adjectives that would best describe my noble friend’s amendment, and I have come up
with “reasonable”, “ingenious” and “brave”. It is reasonable because we all feel indignation about this issue; there is no question about that. It is ingenious because I think my noble friend is anticipating the result of Amendment 94. We must not be drawn into that today, but it will be interesting to see whether this presents a way out for the Minister in relation to Amendment 94; I hope it does not. The amendment is brave because my noble friend is trying to tackle the question of diplomatic immunity. I think that the Government would like to do that on many fronts at the moment. My noble friend is to be commended.
Finally, I have to say that the Bill does nothing to release domestic servants from their bondage. They are, fundamentally, in this Bill, so I do not know—the Minister may like to reflect on this—why this category has somehow been left out or gone unnoticed. We will wait and see how the Bill can correct the situation at a later stage—but this amendment is a very clever alternative.
Baroness Garden of Frognal (Liberal Democrat)
My Lords, I am grateful to the noble Lord for tabling these amendments, and I echo the comments about his distinguished record on such matters. I thank, too, the noble Lords, Lord Rosser and Lord Alton, my noble friend Lady Hamwee and the noble Earl, Lord Sandwich, for their comments.
These amendments raise the important issues of ensuring equal access to employment tribunals, and of diplomatic and state immunity, with particular reference to overseas domestic workers. I welcome the opportunity to reaffirm the Government’s commitment to protecting individuals who have come to work in the UK as overseas domestic workers—or indeed in any other capacity —who, while they are here, are subjected to abuse. I know that Members of the Committee feel strongly about this. The Government share the commitment to ensure that no individual in this country is subjected to abuse and exploitation.
Holding anyone in modern slavery is totally unacceptable. Overseas domestic workers, like anyone else, deserve protection from modern slavery, as well as support and help if abuse takes place. The Government intend that the Bill should give that protection to all victims, regardless of who they are, why they are in the UK and for whom they are working. This intention must none the less take account of this country’s existing international obligations, and I will address the point concerning immunity in a moment.
The Committee will wish to know that overseas domestic workers, in common with any other employee in the UK—irrespective of whether they can switch employers or not—already have the right to access employment tribunals and the courts, where the tribunal or the court has jurisdiction.
Perhaps I may turn to the new clauses tabled by the noble Lord. Amendment 28 would create an offence where a person whose visa restricts them to a single employer is not permitted to access an employment tribunal. Employees and workers in this country, including people from overseas who are working legally in Great Britain, are entitled to the rights and protections of our employment law. If those rights are breached, the individual can bring a claim to the employment tribunal.
Access to employment tribunals is a matter of law and it is for the tribunal to decide whether it has jurisdiction. An employer therefore cannot dictate whether someone working for them can bring a claim, as this is not in the employer’s control. They also cannot decide when the tribunal has jurisdiction to process the claim, so the offence created by Amendment 28 is unnecessary and would have no impact on employers. Where diplomatic or state immunity applies, this operates in relation to the offence, so it would also have no effect.
The Government take seriously the ability of individuals to access the justice to which they are entitled and fully support the aims that the noble Lord is trying to achieve. I can reassure the Committee that the current system of dealing with complaints in relation to employment rights is generally available to those legally working in the country. Noble Lords may be interested to know that we are currently trialling a system at Heathrow Terminal 5 whereby employees are handed a card about knowing their rights, and with numbers to call. We shall be monitoring how helpful and effective the trial proves to be.
The effect of Amendment 95 would be to disapply state immunity in respect of the enforcement of judgments against diplomatic missions where the judgment is made under the proposed Act. I noted the noble Earl’s comment that the words, “reasonable”, “ingenious” and “brave”, might be applied to this amendment. Immunity from jurisdiction is a well established principle of customary international law. The fact that this is a principle of customary international law means that the UK is bound by it. The aim of the amendment appears to be to remove in certain circumstances the immunity from enforcement jurisdiction. This could put the UK in breach of international law, and I do not believe that that is the intention of the noble Lord. The Committee will understand the need carefully to consider the implications of this amendment.
It may be helpful to explain the role that diplomatic immunity plays in cases of alleged mistreatment of overseas domestic workers and the measures that are in place to deal with such allegations. Diplomatic immunity is an important part of a package of principles within the Vienna Convention on Diplomatic Relations that are designed not to benefit individuals, but rather to ensure the efficient performance of the functions of diplomatic missions. They provide diplomats with necessary protections from the authorities in the receiving state to enable them to carry out their functions effectively. They work on the basis of reciprocity, and if UK diplomats are to be protected overseas, it is important that the UK respects the law of immunity as regards diplomats serving here. The Vienna Convention on Diplomatic Relations requires all diplomats to respect the laws and regulations of the receiving state. This applies to the terms and conditions of employment for all domestic staff, which employers have to agree with their workers in accordance with a prescribed template before the worker applies for an overseas domestic worker visa to come to the UK.
The Foreign and Commonwealth Office treats any allegation of mistreatment of domestic workers in diplomatic households very seriously. Few such allegations are brought to the FCO’s attention by the police, and when they are, the FCO liaises as necessary with the
relevant diplomatic mission, UK Visas and Immigration and the UK Border Force to work for an appropriate response. If an allegation of mistreatment requires further investigation by the police, the FCO will request from the diplomatic mission concerned on behalf of the police a waiver of the diplomat’s immunity, and failure to provide a waiver may result in the FCO demanding the immediate withdrawal of the diplomat. It is not appropriate to seek to impede the operation of or amend the State Immunity Act 1978 or the Diplomatic Privileges Act 1964 through the creation of criminal offences or exceptions in the Modern Slavery Bill without reference to the underlying legal obligations they reflect.
Overseas domestic workers should feel confident that if they are abused while they are in the UK, they can come to the authorities and will be treated and supported as victims. However, I do not believe that these amendments would add to the existing protections, or that they are appropriate having regard to our existing international obligations. I am confident that the current legislation covering employment, the measures in this Bill and the measures the Government are looking at to enhance protections for overseas domestic workers represent the best way of tackling any abuse of such workers. We are working to see that they are implemented. Given this response, I hope that the noble Lord will feel free to withdraw his amendment.
Lord Hylton (Crossbench)
My Lords, I am extremely grateful to the four noble Lords who have spoken in favour of my first and, to some extent, second amendment. I think I can reasonably claim that Amendment 28 has received support from all around the Committee. I was glad to hear from the Government that they believe that overseas domestic workers on short-term visas deserve protection. However, I fail to see how the Bill increases any protection, which at the moment is to a very large extent lacking. Will Clause 3(2) give additional grounds for prosecuting those who exploit and abuse their domestic staff?
Further to that, the noble Baroness referred to the card that is supposed to be given to overseas domestic workers before they leave a foreign country to come here. While that may be helpful to some extent, particularly if the card spells out what the minimum wage levels are in this country, it would be stronger still if a model contract was in existence. This is a point on which I have already written to the noble Lord, Lord Bates. A model contract would give both the employer and the employee a much better idea of what we expect to happen when they both come to Britain.
If the Government could give me some encouragement that it would be possible to have a meeting on these subjects between now and Report, I would be somewhat readier and more willing to withdraw the amendment.
Baroness Garden of Frognal (Liberal Democrat)
Perhaps I may say to the noble Lord that, yes, indeed, a further meeting would certainly be possible. The card that is handed out states what the minimum wage should be and that workers should have a written contract of terms and conditions. Moreover, there are emergency numbers
that can be called. These are elements of information which should be helpful, but obviously the question then is getting workers themselves into a position where they are able to access and implement the information.
Lord Hylton (Crossbench)
My Lords, it would be a great help to everyone concerned if there could be a model contract, but with the encouragement I have been given by the Government, I beg leave to withdraw the amendment.
Amendment 28 withdrawn.
Amendment 29 not moved.
House resumed. Committee to begin again not before 8.45 pm.
Baroness Young of Hornsey (Crossbench)
My Lords, first, I would like to thank Klara Skrivankova from Anti-Slavery International for her work on this issue. The proposed new clause requires the Secretary of State to bring forward measures along the lines set out in EU directive 2011/36/EU on preventing trafficking in human beings, which I mentioned at Second Reading a couple of weeks ago. The amendment is designed to penalise those individuals and companies that benefit from the use of slave labour in their business dealings. The amendment will make clear in the Bill that those businesses that benefit from slavery are legally liable and deemed to have committed an offence if a third party has acted for their benefit and that the third party’s offence was made possible due to a lack of control or supervision on the part of the person.
I shall give an example of what is meant here. In November 2012, the management of Carestel—a former motorway and airport caterer—was condemned by a Belgian court as accessory to the crimes of human trafficking and organised fraud. There were two defendants in the case. One was Charalampos who, as anticipated, did not appear in court. He had been awarded the contract to clean the petrol stations and directly employed the women involved. The other defendant was Carestel, which at the time was a substantial operator of motorway and airport services where the women were working. The conditions under which
these Eastern European women were employed as lavatory cleaners at petrol stations were all too shockingly familiar. They worked up to 17 hours a day, in appalling conditions and were paid well below the minimum wage at €3 an hour, all of which added up to what the court described as constituting modern slavery. Charalampos was accused of recruiting women on deficient contracts that allowed his company to circumvent Belgian employment laws but, importantly in the context of this amendment, according to the prosecution he could not have continued his operation without the active co-operation of Carestel. So not only the subcontractor but also the main company was condemned, in spite of the latter’s defence of ignorance and in spite of it claiming not to have had any idea that its cleaners were trafficked and abused.
Of course we have Part 6 of the Bill and the transparency provisions are a good starting point, but without other provisions that would ensure penalties for non-compliance or for continually reporting that a company has made no improvement in its monitoring, it is hard to see how progressive change can be achieved in some businesses. There are no incentives for companies to work to improve conditions in the supply chain and, perhaps more tellingly, no deterrents or any actions that would discourage persistent attempts to thwart the intentions of Part 6. There is an absence of an enforcement mechanism in the transparency clauses too. This provision would reinforce the potential impact of the transparency provision, as would the civil liability clause to which we will come later.
In his letter to noble Lords responding to the issues raised about the Bill at Second Reading, the Minister stated:
“We expect compliance with this measure—
the transparency measure—
“to be driven mainly by consumer, investor and campaigner pressure. If businesses do not provide disclosures which demonstrate real action, it will be evident to both customers and shareholders who will apply pressure to the company to comply or do more”.
That is a fair question to ask of investors, shareholders and campaigners, who are categories of activists, but I am not sure that it is fair or realistic to expect hard-pressed consumers to track down the statements of all the companies that provide them with their goods and services. It would be a particularly onerous task for those who are enduring financial hardship, where their priority is to buy whatever is cheapest. When company executives begin to worry about being held liable, a real shift in attitudes and behaviour will occur.
At Second Reading, many noble Lords referred to the need to strengthen Part 6, which relates to transparency in the supply chain. This amendment would also be a safeguard for businesses that are trying to operate ethically and would give assurance that those that undercut them by drawing unfair advantage through using forced labour can be held liable. It is a measure designed to improve the ways in which we can, to appropriate the words of the Joseph Rowntree Foundation,
“disrupt the business of forced labour”,
and constitutes an effective step towards regulating slavery and forced labour out of the EU. I beg to move.
Lord Bates (Conservative)
My Lords, I welcome this amendment as an opportunity to look at the financial proceeds of this wicked crime. We will deal with this in subsequent groups and amendments, and I have no doubt that we will return to it at various stages on the way through. Amendment 30 allows us to debate how the Modern Slavery Bill will ensure that committing modern slavery offences does not benefit the offenders or third parties who either benefit or look the other way when these crimes are committed. It would place a duty on the Secretary of State to make regulations to ensure that legal persons benefiting from modern slavery offences or whose lack of supervision makes them possible will have committed an offence.
I greatly welcome the opportunity presented by the amendment to debate the role of legal persons, such as companies, in modern slavery. We will return to that subject in more detail—in particular, as the noble Baroness referred to, when we come to the section on supply chains. It is absolutely right that companies who profit from modern slavery can be held responsible, so it is right that the offences in the Bill can be committed by all persons, including legal persons. That means they can be committed by companies provided that the usual legal principles of corporate criminal liability apply. As the noble Baroness mentioned, companies can also be held liable under the civil law —such as negligence and proceeds of crime legislation—where they benefit from modern slavery committed for their benefit. Therefore, companies who make money as a result of modern slavery committed for their benefit can be deprived of those profits and pursued for damages by the victims. Article 5.2 of the EU trafficking directive does not require legal persons to be criminally liable; liability for the commission of offences by third parties that occur as a result of lack of supervision can be criminal, civil or administrative.
We are confident that currently—and under the Modern Slavery Bill—we are fully compliant with the requirements of the trafficking directive around the liability of legal persons. We want to make sure that we recover the ill gotten gains of slave-masters and traffickers. That is why Clause 7 subjects those convicted of slavery and trafficking to the most robust available asset recovery regime. That element of recovery of assets was also a provision of the Serious Crime Bill, part of the Proceeds of Crime Act, and all those provisions will of course apply in the case of modern slavery. It is absolutely vital that modern slavery should be viewed as no different from any other organised criminal activity in that where we can obtain the proceeds of that—so that criminals do not see the profits—and use it to help the victims of these evil crimes, that is what the Government want to do. We are satisfied at this stage that the law provides for that, as currently drafted in the Bill, but we have listened very carefully to what the noble Baroness has said and we will continue to review this in the light of that. Perhaps, therefore, the noble Baroness will feel able to withdraw her amendment.
Baroness Young of Hornsey (Crossbench)
I thank the Minister for his reply and I am glad that he also said that this is still open to review. I agree with him that it complies to
some extent with what we have to do and with all the other bits of legislation to which he has referred. However, it is a question that goes a bit wider than that and links it to the issue of transparency in the supply chain, which many people feel does not have any teeth—there are no sanctions and no real deterrence embedded in it. So to have something else in the Bill that would make a real statement about that would be very useful. None the less, I am happy to withdraw the amendment.
Amendment 30 withdrawn.
Amendment 31
Moved by Lord McColl of Dulwich
31: After Clause 4, insert the following new Clause—
“Paying for sexual services
(1) The Sexual Offences Act 2003 is amended as follows.
(2) For section 53A (paying for sexual services of a prostitute subjected to force etc) substitute—
“53A Paying for sexual services of a person
(1) A person (A) commits an offence if A obtains sexual services from a person (B) in exchange for payment—
(a) if the payment is made or promised by A; or
(b) if the payment is made or promised by a third party.
(2) A person guilty of an offence under this section is liable—
(a) on summary conviction to imprisonment for a term not exceeding 6 months or a fine not exceeding level 3 on the standard scale, or both;
(b) on conviction on indictment to imprisonment for a term not exceeding one year or a fine not exceeding the statutory maximum, or both.
(3) For the avoidance of doubt, person B is not guilty of aiding, abetting or counselling the commission of an offence under this section.”
(3) The Secretary of State shall, at least once in every year, publish a strategy, to ensure that a programme of assistance and support is made available to a person who wishes to leave prostitution.”
Lord McColl of Dulwich (Conservative)
Amendment 31 would make it an offence to pay for the sexual services of a person. This is to address the demand for commercial sex, which feeds the trafficking of individuals, particularly women and girls, into and within the United Kingdom.
Both the Council of Europe convention and the EU directive on trafficking call for states to adopt measures to address the demand for exploitation that fosters trafficking. National referral mechanism statistics clearly demonstrate that since 2009 paid sex has consistently been the most prevalent form of exploitation experienced by victims of trafficking in the United Kingdom. It accounts for around 40% of victims and around 60% of female victims. The National Crime Agency strategic threat assessment of the nature and scale of human trafficking, published in September, reports victims being sexually exploited in brothels, in hotels, on the streets and in private residences. The NCA report is clear that of all forms of trafficking identified in this country, sexual exploitation is the most prevalent.
The Government have taken steps to address the demand for labour exploitation through the supply chains provision—which of course I completely welcome
and support—but what are we doing to address the demand for sexual exploitation? In 2009 I supported the introduction of Section 14 of the Policing and Crime Act, which made it an offence to pay for sex with someone who is coerced. This might sound like the perfect solution but it has not worked in practice. Evidence of that was clear from those who contributed to an all-party parliamentary group inquiry, of which I was part, which ran from 2013 to 2014. We published our report in March this year and I encourage noble Lords to review its findings. The number of convictions under this offence has been very low. In 2012-13 there was not a single prosecution or conviction. This offence has not done what we hoped it would do.
In considering the law on prostitution our all-party group heard evidence that a Section 14 offence is complex and difficult to prove, and we concluded:
“There are inadequate deterrents for individuals controlling others in prostitution for gain and for those deriving demand from the sex trade. This promotes the UK as a lucrative destination for trafficking with the purpose of sexual exploitation, both domestically and internationally”.
I for one certainly do not want this country to be considered a lucrative destination for traffickers, and I am sure many noble Lords would agree.
I want to set out why I think Amendment 31 is the best option. In 2009 research in London with 103 men who buy sex, 77% of them agreed that a greater criminal penalty would deter them from purchasing sex, while only 47% said that they would be deterred by being required to attend an educational programme. There is strong international evidence that this offence can work, not only by reducing the instance of prostitution and deterring trafficking but, vitally, by creating a culture change, which is the main contributor to reducing demand.
The official independent evaluation of the Swedish law in 2010 highlighted the following positive effects. First, on-street prostitution was found to have been cut by half as a direct result of the criminalisation of sex purchases. Secondly, there was no evidence that the decrease in on-street prostitution had led to an increase in off-street prostitution. Thirdly, fewer men stated that they had purchased sexual services. Fourthly, more than 70% of the Swedish population indicated that they continued to support this law. Fifthly, compared with similar and neighbouring countries, trafficking in Sweden is on a substantially smaller scale than might be expected. Moreover, the Swedish police report that the law on the purchase of sexual services acts as a barrier to human traffickers who happen to be considering establishing themselves in Sweden.
I do not deny that prostitution still exists in Sweden but it is clear to me that the effect of the sex purchase law has been positive. An independent evaluation of a similar law in Norway published this summer has similar findings. The approach initiated in Sweden now operates in Norway and Iceland. In October, the Northern Ireland Assembly voted overwhelmingly to introduce this type of law there and it was announced last week that the Republic of Ireland is to bring forward proposals for similar laws. A comparable law is also currently before the French Parliament.
Particularly noteworthy is a Bill introduced by Stephen Harper’s Conservative Government in Canada that has a similar effect to Amendment 31. It received Royal Assent on 6 November and will be operational shortly. Speaking to the Canadian Parliament’s Justice Committee about the Bill, the Conservative Justice Minister, Peter MacKay, said that the Bill,
“reflects a fundamental shift towards the treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts marginalized groups and individuals”.
I could not agree more. The need for such a shift is also reflected in the title of our all-party group report, Shifting the Burden, which calls for changes to the law on prostitution to ensure that the burden of criminality falls on pimps, traffickers and buyers rather than the most vulnerable people.
The model in this amendment of criminalising purchase and supporting people to leave prostitution has also been endorsed by resolutions of the Council of Europe and the European Parliament in the past year and is supported across the political spectrum. The Council of Europe resolution on prostitution, trafficking and modern slavery in Europe, which was passed by an overwhelming majority on 8 April, states clearly that,
“trafficking in human beings and prostitution are closely linked … legislation and policies on prostitution are indispensable anti-trafficking tools”,
and proposes,
“criminalising the purchase of sexual services, based on the Swedish model, as the most effective tool for preventing and combating trafficking in human beings”.
This is not a niche Scandinavian approach; it is a model of legislation which directs the full force of the law on those who exploit others through prostitution by trafficking, pimping and buying.
Some critics of this approach may say that this is a sledgehammer to crack a nut and that it will disproportionately affect many people in prostitution who have not been trafficked. In addition to the links between prostitution and trafficking which I have already mentioned, it is my belief that the evidence I have seen indicates that the majority of individuals in prostitution today are victims of exploitation of one form or another. Data from the Home Office and multiple academic studies demonstrate that the majority of people who sell sex are incredibly vulnerable and subject to real exploitation. For example, Home Office figures reveal that homelessness, living in care, debt and substance abuse are all common experiences prior to entering prostitution.
Many of those in prostitution have suffered abuse or violence in the home. Home Office data show that as many as 85% of people in prostitution have experienced physical abuse in the family home, with 45% reporting familial sexual abuse. In a 2012 study of 114 women in prostitution in London, 50% said that they had experienced some form of coercion through trafficking or from a partner, pimp or relative. The same study found that 32% of those interviewed had entered the sex industry before the age of 18. Other studies have found higher numbers than this. For example, a 2004 UK study found a figure of 52%. Numerous studies have found that between 50% and 95% of women in street prostitution are addicted to class A drugs.
These statistics were echoed by the huge array of evidence which our all-party group inquiry received. While some respondents to our inquiry indicated that it was a wilful choice to enter prostitution, the evidence our inquiry heard chimes with that in the Home Office and multiple academic studies, which all illustrate that the majority of those who sell sex are incredibly vulnerable and subject to real exploitation.
Sadly, the voice of the vulnerable and exploited majority is rarely heard in these debates. The current law is drafted in such a way that it assumes exploitation to be the exception rather than the rule and is not designed to protect the vulnerable. I believe that we need a law that will provide that protection as its primary aim. We have to make a choice between laws which serve the interests primarily of the buyers and only a minority of those selling sex, or choose instead to make laws that will protect the vulnerable majority of those in prostitution.
I agree with the resolution of the European Parliament, passed in February, which states that,
“prostitution, forced prostitution and sexual exploitation are highly gendered issues and violations of human dignity, contrary to human rights principles”.
I believe that we need to create a culture shift to deter men—almost all buyers are men—from buying sex and sending a strong signal about the dignity and human rights of people to be free from sexual exploitation.
Amendment 31 also calls for the development of a strategy to assist people to exit prostitution—a vital component of this approach. This is a key aspect of the operation of the law in Sweden. Both the Council of Europe and the European Parliament resolutions call for the development of specific assistant programmes to help people to get out. As our APPG report highlighted, there is a need to improve access and signpost services designed to help people exit prostitution, so that many more individuals are invited and assisted to get out.
I believe that Amendment 31 sets out the best way forward. This approach is supported by a broad section of society, including women’s groups, trade unions, survivors of prostitution and trafficking and organisations that support them. It is fast gaining mainstream support across the world. I very much hope that we will be among those who reform our laws in order to reduce demand for prostitution, which provides the context for exploitation and trafficking.
I welcome Amendment 31A in the name of the noble Lord, Lord Rosser, which calls for a review of the law on prostitution with regard to its impact on trafficking for sexual exploitation. Our all-party group inquiry opened the window on to this problem and I hope that the Minister will respond positively to these amendments and commit to further investigation.
Lord Browne of Belmont (DUP)
My Lords, I rise to support Amendment 31 tabled by the noble Lord, Lord McColl. First, I must offer my apologies to noble Lords that I was not able to be here for the Second Reading debate.
Trafficking of human beings is the worst form of commodification that there can be. It is a process that views a person as an object to be used to make profit, with no thought to the dignity and humanity of the
person being exploited. Perhaps that commodification is expressed most starkly in sexual exploitation where a person’s body is purchased and used for the gratification of the buyer.
It is not sufficient to tackle trafficking and slavery by trying to increase the number of prosecutions for those offences, however vital that is. If we are truly to bring an end to slavery in the 21st century, some 200 years after abolishing legal slavery, we must look to address the root causes. We must not be shy of tackling difficult issues and making bold laws. The connection between prostitution and trafficking is one area where new thinking is required. I commend the noble Lord, Lord McColl, for being bold enough to ask the question of what we will do to reduce the opportunities for traffickers to profit from commercial sexual exploitation.
I should like to focus my comments on some of the arguments that are often made against proposals such as those contained in Amendment 31 and explain why I believe they are unconvincing. The first is the underground thesis. Those who oppose this approach to prostitution law regularly use one particular argument, suggesting that criminalising the purchasing of sexual services could drive prostitution underground, putting prostitutes at risk of harm and making it more difficult for them to seek help. At first sight this idea would be of great concern since the intention of the clause is to protect those in prostitution. However, on closer examination, these fears are not borne out.
First, prostitution can never entirely go underground. It is a system that requires buyers. Without buyers, prostitution will collapse. Therefore, those involved in or who control others in prostitution need to advertise publicly in some way. We already see this in local newspapers or on the internet. However the law changes, this connection with buyers still needs to be made, and if the average client can find an advert for sexual services, then so can the police. This underground argument has also been refuted strongly by the evaluation of the laws in Sweden and Norway.
The next argument that is often put up is concern about the impact on safety. The second part of this opposing argument suggests that it will make prostitution more dangerous. But the truth is that prostitution is already dangerous. Indeed, the Association of Chief Police Officers’ strategic guidance refers to research findings that people in prostitution are 60 to 120 times more likely to be victims of murder than the general population and also experience high levels of rape and physical assault. A paper produced for the Northern Ireland Department of Justice in 2011 states that many women in prostitution in Northern Ireland are subjected to extreme violence. A 2008 prostitution inquiry conducted in Sweden established that the claims made by opponents there about a worsening situation were baseless. Data from Norway show a decrease in severe violence against those in prostitution. The recent evaluation of the Norwegian law states that researchers did,
“not find any evidence of more violence against prostitutes after the ban on buying sex entered into force”.
Many opponents of the Nordic laws promote the decriminalisation model implemented in New Zealand. However, when they do they fail to acknowledge that
the official review of that law heard that even five years after removal of all criminal sanctions relating to prostitution of adults, individuals still reported experiencing violence and fear. There is simply no way to get around the fact that prostitution is an inherently violent and harmful activity.
I must say that I agree with the Canadian Justice Minister, Peter MacKay, who said:
“The government does not accept the proposition that prostitution is inevitable and therefore that we must decriminalize and regulate it … On the contrary, the government maintains that prostitution’s inherent harms and dangers would only grow and be exacerbated in a regime that perpetrates and condones the exploitation of vulnerable individuals through legalized prostitution”.
Many critics of this approach have stated that it conflates human trafficking and prostitution which should be kept separate. I do not believe that it is a credible argument that prostitution and trafficking should be treated entirely separately. The fact is that for a significant group of people trafficked into and within this country, the purpose of their trafficking is exploitation through prostitution. Of course, I accept that not all people in prostitution are trafficked, but without addressing the demand that makes it profitable for people to traffic others for prostitution, this trafficking will continue. The laws we have at the moment are not acting as a deterrent. In contrast, in Sweden, which criminalised the purchase of sexual services in 1999, police report that the law acts as,
“a barrier that is preventing human traffickers and pimps from becoming established in Sweden”.
Trafficking statistics show that Sweden has a lower rate of trafficking than other neighbouring countries. Given such statistics, as well as the research cited by the noble Lord, Lord McColl, about the particular vulnerability of the majority of women in prostitution, I think it is an entirely legitimate aim to seek to reduce demand for prostitution.
Some other critics suggest that academic opinion is wholly opposed to the approach in the new clause. This is simply not the case. It is true that some in academia, generally those who view prostitution as a valid form of work, do not support such a model. However, other researchers state clearly that their research demonstrates the harm of prostitution, and they support a legal approach that would criminalise buyers of sexual services with the aim of reducing demand for prostitution. A group of 75 such researchers signed an open letter supporting the resolution proposing this form of law at the European Parliament.
There is therefore considerable international support. The noble Lord, Lord McColl, mentioned the resolution of the Council of Europe Parliamentary Assembly from April this year, which followed an extensive investigation and report by José Mendes Bota, the rapporteur for the Committee on Equality and Non-Discrimination. I believe we would do well to consider that report seriously. After investigating the prostitution laws across Europe, some of which are vastly different from one another, Mr Mendes Bota came to the conclusion:
“While each system presents advantages and disadvantages, policies prohibiting the purchase of sexual services are those that are more likely to have a positive impact on reducing trafficking in human beings”.
Your Lordships may not be aware that my colleague, the noble Lord, Lord Morrow, is presently taking the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill through the Northern Ireland Assembly. In fact he is engaged on that Bill this very day. If I may be so bold I would suggest that the Northern Ireland Bill is in many ways more comprehensive than the Bill in front of us today, particularly with regard to aspects of Part 5 of this Bill. I very much hope that, through the work of noble Lords, we will be able to move this Bill closer to the example set by Northern Ireland.
In the particular matter of how to address the demand for prostitution that fuels trafficking, the Northern Ireland Assembly voted for a clause to criminalise the purchase of sexual services—the basis, I believe, for Amendment 31. At the key vote on 20 October the clause was supported by all the major parties in the Northern Ireland Assembly, right across the political divide. The Assembly supported the clause by 81 votes in favour to just 10 votes against. Last week we heard that the Government in the Republic of Ireland are preparing to introduce a similar law. As has been mentioned, the Canadian Government have passed a law on these lines in the past couple of months, and this kind of law has been endorsed in the European Parliament and the Council of Europe.
The approach to prostitution proposed in the noble Lord’s amendment is becoming the informed choice of western industrialised countries. It will shortly become law in one part of the United Kingdom and I believe that it deserves serious consideration in the other nations. I therefore support Amendments 31 and 31A.
Bishop of Derby (Bishop)
My Lords, I, too, would like to support my colleague from the Joint Committee, the noble Lord, Lord McColl, and I associate myself with the comments of the noble Lord, Lord Browne of Belmont. In the context of the Bill, this is to do with supply and demand, as we have heard. I will not repeat it, but it is well known that serious research into the Nordic model shows the effectiveness of this kind of legislation. A strong argument was aired briefly in the other place about the market and people’s freedom to work in ways they choose, but I want to draw briefly on my own experience to explore the myth that prostitution can be simply a marketable form of employment.
I have been involved in work with people engaged in prostitution, as well as those who work with them. It is evident that almost everybody who I have come across or who colleagues work with are pathetic, abused and often drug-centred young women. Earlier this year I came across a Thai woman who was being raped 10 times a day in a brothel in Kensington, not far from here. That is what being able to purchase sex is doing to people. A few weeks ago, I met a woman who said, movingly, that before she managed to escape from prostitution, she used to ask for drugs because the pain of servicing all those people was so intense. She requested drugs, and was supplied with them. Something that has not been said but which ought to be noted in this debate is that a lot of research shows that a high proportion of those who purchase sex
from prostitutes are married men. What does that say about our understanding of family and relationships? There is a strong case for taking seriously the proposal of the noble Lord, Lord McColl.
I recognise that there might be some real politics in terms of where the amendment would fit in the Bill and how this kind of legislation might arrive at being effective, but I endorse the amendment because it asks the Government to do some form of review. It would be good to do some research to see whether this kind of legislation would reduce significantly the numbers of those in sexual slavery. Would it reduce the demand that is out there on the streets? Would it reduce the numbers who are trafficked into this country like the poor Thai woman I have just spoken about? She was brought here with the promise of a good job, and then she ended up in the appalling situation of being simply a commodity for people to buy at will. Such a review would gather information from the many people who work with those in the sex trade and could receive comments from the public. We could ask for the views of organisations like the Association of Chief Police Officers, which has been mentioned. There are many people in this area who have experience and who could help us to build up a picture that would show us the outcomes if we proceed in this direction.
The passion that unites noble Lords across the Committee on this Bill is to free victims from being abused and treated like commodities—and, in a sense, such cheap commodities. It would be wonderful if we could at least try to review the effect that this kind of legislation would have. Evidence from other parts of the world shows that when a Government are bold enough to adopt it, it has enormously positive social consequences as well as a massive impact on the evil of sexual trafficking.
Lord Deben (Conservative)
My Lords, I will refer to what happened in Ipswich on the terrible occasion when the murders of a series of young women hit the headlines. All of them were described in the press as prostitutes. In fact, they would be better described as drug addicts who had fallen into prostitution.
I am not sure that this is the right Bill to make these changes, or that they can be made in these circumstances, but I am sure that we ought to be clear about a different approach to prostitution from that which we have had before. In Victorian days, prostitution was thought to be appalling and the women were blamed. The men were rarely considered to be in any way guilty. The Victorian approach was that men were like that. I hope that we have reached a stage where we understand how wrong that was as an attitude. However, instead, I fear we are moving to the kind of approach that my noble friend Lord McColl pointed to, where other people are treated as things for the gratification of some and for the earning of money by others. That is the real issue and where the problem really lies. I liked the way in which my noble friend presented his amendment because it seems to me that he emphasised, very characteristically, the nature of the human being, the duty that we owe to human beings and the respect which we should have for all, whoever they may be and however unworthy others may think them.
The terrible events of Ipswich concentrated the minds of people locally in a way which has never happened before. It was very interesting to see how people who would historically have dismissed this as one of those things that was nothing to do with them thought much more seriously about the nature of this offence and the way in which it made a statement about our society and how we think of other people. I know that I would not carry the Committee with me if I were to go too far with these comparators, but I must say that I think we live in a society which treats human life in a most disgraceful way. We point at others outside this country and forget what happens here to babies and what we sometimes ask to happen to older people. We are not good at recognising the value of human life nor are we good at recognising that the greatest gift given to any human being is the part that we can play in creation. It is the gift. Therefore we ought to be particularly careful in any circumstances where human beings are not just trafficked but are degraded by those who treat them as if they were not human. That is the issue that we are concerned with tonight.
I do not think that it would be proper to make so sweeping a change in the context of a Bill which has a whole range of other things that it needs to do, but it would be unfortunate if the Government were to complete the debates on this Bill without giving a real undertaking that this issue will be properly investigated and brought back to Parliament so that we can make a proper decision on it. It is a big issue. We are, on this occasion, very much helped by the work that has been done in Scandinavia. We are not in the same position as we have been before. We have seen what happens when steps like this are taken. We should not delay in treating this seriously, but should do it in a proper format. I do not think that this Bill is the proper format, but I do not want the Government to go away saying it is not the proper format, full stop. I want them to say that it is not the proper format but that they will speedily bring legislation in front of this House, after proper consideration, in order that the House and the other place might consider how best to protect people from being treated as things.
Lord Hylton (Crossbench)
My Lords, it has been well worth while staying on after dinner just to listen to a debate of this quality. The noble Lord, Lord McColl, has done a real service in bringing forward this amendment. I thought that his survey of the international scene was masterly.
I can understand that the Government may have reasons for not accepting the amendment as it stands, but I call on the Minister to give some detail about exits from prostitution for those who want to leave it. There must be many such people. In the past, Mr Gladstone was one of those who tried to help people to come out. That has been followed up by voluntary organisations and religious orders, which have provided help and care to those wanting to leave. What are the Government doing to make this easier and how are they enlisting local authorities and other organisations to this end?
Lord Rosser (Labour)
My Lords, our amendment is not as precise in the changes it proposes as the amendment moved by the noble Lord, Lord McColl of Dulwich. Our amendment provides for the Secretary of State to,
“undertake a review of the links between prostitution and human trafficking and sexual exploitation in England and Wales”,
and sets out the issues that must be considered in that review; namely,
“the extent to which the current legislation governing prostitution in England and Wales acts as an effective deterrent to demand for sexual services from exploited persons … the extent to which the current legislation governing prostitution in England and Wales enables effective enforcement action against those trafficking people for sexual exploitation; and … the extent to which alternative legal frameworks for governing prostitution adopted by other countries within the European Union, including Northern Ireland, have been effective at reducing sexual exploitation and the number of people trafficked for the purpose of sexual exploitation”.
Delving into the world of buying and selling sex reveals a complex web of abuse, control, money and power. Last year the Home Office estimated that the trade in the human trafficking of women to be sexually exploited in the United Kingdom was worth at least £130 million. One example was of a woman who came to our country from Uganda to get away from her abusive husband. She was told by a friend that he could find her a job in a catering company. When she arrived, however, she was driven to a house in Manchester, locked in a room, raped, beaten and forced into prostitution. After a few months, she managed to escape.
It has been estimated by the Home Office that 80,000 people in the UK, mainly women and girls, are involved in prostitution. The reality is that there are thousands of women in our country who are living in sexual slavery. They get there by different routes—pimped by people they know or trafficked by organised gangs—and many are extremely vulnerable, having been abused in the past. As the noble Lord, Lord McColl of Dulwich, said, a report published last summer by the Serious Organised Crime Agency showed that sexual exploitation was the most likely type of exploitation for people trafficked into England and Wales. There is growing evidence that many of those in prostitution began to be involved in this work before they were 18 and Home Office research has revealed that approximately 50% of women in prostitution became involved before reaching that age.
The physical and psychological consequences for those exploited through prostitution can be severe. The Journal of Trauma Practice found that once they have become embroiled in the trade, nine out of 10 women report wanting to exit but feel unable to so do. They do not know where to get support or do not believe that other work is available to them. The Home Office’s own figures suggest that more than half of the women involved in prostitution have been victims of rape or sexual assault.
We need to look at how countries elsewhere may have reformed their laws to protect women, developed effective exit strategies, reduced the number of people trafficked for sexual exploitation, reduced violence and reduced the market for buying sex, which traffickers and pimps exploit and from which they profit, as we know. That is why we have put forward this amendment
to require the Government to carry out a detailed review, with the ultimate objective of seeking measures to keep more women safe.
Of course, we should not make changes without fully understanding the impact they might have. There are differing views on possible courses of action, as I am sure the noble Lord, Lord Browne of Belmont, would accept. We need to be sure that any changes will not push women into even more vulnerable and dangerous situations, and we need to consult and seek a wide range of views. However, we surely cannot continue as we are. This amendment, with the provision for a review of the links between prostitution, human trafficking and sexual exploitation, seeks to provide a considered and appropriate way forward. I hope it will find favour with the Government.
Baroness Butler-Sloss (Crossbench)
My Lords, I waited until I had heard the noble Lord, Lord Rosser, before expressing any views on these amendments. I entirely understand the admirable motivation behind the proposal made by the noble Lord, Lord McColl, but one has to bear in mind that prostitution is one of the oldest trades over hundreds of years, if not thousands.
Something somewhat similar was proposed in the other place by Fiona Mactaggart MP. I certainly received a large number of e-mails about it from the various associations of women prostitutes. They were very much opposed to the sort of legislation which has now come before this House, although I understand that it is not exactly the same as that which was proposed by Fiona Mactaggart. Having said that, there is undoubtedly a real problem, because some of those who are prostitutes are certainly trafficked.
I recall going to a small town in Holland where, as noble Lords will know, prostitution is legal. I saw women sitting in the windows in what was quite a small town. The curtains were open if they were not working, and they were all on their mobiles talking to the pimps. There is no doubt at all, from what the local mayor told me when he took me round, that he knew that a large proportion of these women were actually trafficked, although they could not tell him that and they were all registered for business purposes, if you can believe that. He arranged for his staff to ask them whether they had come as victims of trafficking, but none of them would say so because they could not afford to do so.
There is a very major problem in this country, as well as in Holland and in other countries. I strongly support the amendment tabled in the name of the noble Lord, Lord Rosser. The time has come to look at prostitution right across the board, but particularly at its impact on women who come into this country—or are already in this country—who are in fact the victims of slavery, and who are not doing this work voluntarily.
Baroness Garden of Frognal (Liberal Democrat)
My Lords, I am most grateful to noble Lords for speaking so eloquently to Amendments 31 and 31A. I am grateful to my noble friend Lord McColl, who has given us the chance to look at this difficult and controversial issue of prostitution law. He highlighted the difficulties of exploitation and, indeed, the work of the APPG.
Prostitution raises strong moral and ethical questions, but the Government’s overriding priority in this context is the safety of people involved in it. Existing legislation regarding buying and selling sex is already focused on minimising the harm and exploitation that can be associated with prostitution. Of course, not everyone involved in prostitution has made an independent and free choice to do so. We need the law to protect the vulnerable and punish the perpetrator, but when considering these amendments, we must consider carefully whether we are confident that they support the safety of the people involved in prostitution.
My noble friend set out the approach of Sweden and some neighbouring countries, often referred to as the “Nordic model”, which his amendments seek to emulate. We are also aware of recent legislative developments in Northern Ireland, alluded to by the noble Lord, Lord Browne. We are mindful of the reservations expressed by the Northern Ireland Minister of Justice about the value and effectiveness of this approach. This is of course a devolved matter, so it is for the Northern Ireland Assembly to take the approach that it feels is most appropriate for it, but we know that the Northern Irish Minister of Justice opposed the adoption of the Nordic model for the same reasons that the coalition Government oppose it: it is far from clear that the change would make a vulnerable group safer and may do the opposite. We certainly would not seek to create any unintended consequences that made life more difficult for the people involved in this difficult area. As the noble and learned Baroness, Lady Butler-Sloss, has indicated, submissions received from organisations such as Women Against Rape and the English Collective of Prostitutes have shown that such an approach can encourage the sellers and buyers of sex to operate further out of sight, exposing them to a greater risk of violence.
At this stage, we do not believe that there is sufficient evidence of the value of such significant changes to the legal and moral position of buying sexual services in reducing harm to those involved. We can well understand the principles behind my noble friend’s proposed amendments to the criminal law on prostitution. We have heard from around the Committee strong opposition to all violence against women and a common desire to protect them. However, as regards prostitution, it is important to reflect that there is an alternative view, as expressed by a variety of organisations that represent people involved in it. This challenges the position that all paying for sex is by definition violence. Before legislating, we should have a full debate on these important moral issues, as a number of noble Lords have indicated.
On exiting prostitution, raised by the noble Lords, Lord Hylton and Lord Rosser, the amendment also sets out a requirement to publish an annual strategy for assistance and support to those who wish to leave prostitution and it is absolutely right that they should be supported in doing so. The Policing and Crime Act 2009 took steps to improve the safety and support available for individuals involved in prostitution through the introduction of Section 17 engagement and support orders. That legislation provides the courts with an alternative to fining those convicted of loitering and soliciting: a requirement to attend meetings with a
court-appointed supervisor. Engagement and support orders came into force on 1 April 2010. This is deemed to be an effective tool in providing support and access to services that might otherwise be out of reach, including medical care, housing and drug/alcohol dependency programmes. The right reverend Prelate mentioned the connections with other forms of drug and alcohol dependency. This is considered to be a more constructive long-term approach.
Such an approach is fundamental to our focus on minimising the harm that can be associated with prostitution. As such, it is part of our broader approach to violence against women and girls—an action plan that is kept under constant review. We support emphasis being put on supporting those who wish to exit prostitution, but legislation is not necessary to achieve this worthy aim.
Amendment 31A would place an obligation on the Government formally to review any links between prostitution and human trafficking and exploitation, including the legal frameworks around prostitution both here and overseas. Contributions to this debate have emphasised the importance of evidence and consultation. Legislation on this difficult and sensitive topic needs to be approached judiciously to ensure that our shared aim, harm reduction, is being served.
The coalition Government are committed to tackling all forms of violence against women and girls, and are pursuing a range of measures to improve protection, reporting, and prosecution. Our progress is constantly reviewed via the cross-government action plan on violence against women and girls. We are in regular dialogue with the relevant policing leads and the Crown Prosecution Service to ensure that legislation and its enforcement remain as effective as possible.
As we have heard from around the Chamber today, it is difficult to argue that any single legislative approach to prostitution is ideal. A perfect solution probably does not exist. In this context, the UK’s legislative approach has grown somewhat organically. Noble Lords may recall that the most recent changes to prostitution legislation were made under the previous Administration, via the Policing and Crime Act 2009. That Act contained a diverse range of provisions, including on prostitution. It is currently starting the important process of post-legislative scrutiny, which will consider the implementation and effectiveness of its provisions. Such a pragmatic and evidence-based review of legislation is essential. We shall be looking carefully at the outcome and undertake to respond fully to the recommendations regarding prostitution. I assure the Committee that we will continue to work with our partners to keep these, and a range of other options for improving protection from exploitation, under review. As noble Lords will be well aware, tackling violence against women and girls is one of our top priorities.
I thank all noble Lords for this debate on a very important and controversial issue. We consider this a most serious and important topic. However, as my noble friend Lord Deben and other noble Lords indicated, the Bill is not the right place to make so sweeping a change. There is such welcome cross-party support for
tackling the abhorrent crime of modern slavery that we would not wish to extend the Bill to a provision which, as we have heard, draws different points of view from around the Committee. However, I assure the House that we will continue to work with our partners to keep all options for improving protection from exploitation under review. In light of these assurances, I hope that my noble friend will feel able to withdraw his amendment.
Lord McColl of Dulwich (Conservative)
I thank everyone for taking part in this splendid debate. The contributions have been outstanding. I am sure that this is not the Bill for putting this into law. However, there is no doubt in my mind that it eventually will become law. The wind of change is blowing through the western world—Sweden, Norway, Iceland, Northern Ireland, the Republic of Ireland, Canada and France. King Canute was not actually trying to keep the tide from coming in; he was trying to show his sycophantic followers that he was unable to do so. I beg leave to withdraw.
Amendment 31 withdrawn.
Amendment 31A not moved.
Clauses 5 to 7 agreed.
Amendment 32
Moved by Lord Alton of Liverpool
32: After Clause 7, insert the following new Clause—
“Proceeds of crime: MSV Fund
(1) The Secretary of State shall by regulations establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4.
(2) The MSV Fund shall receive no less than 50 per cent of any money recovered under a confiscation order.
(3) Subject to subsection (4), the proceeds referred to under subsection (2) shall be distributed by the MSV Fund as follows—
(a) 50 per cent of the proceeds shall be distributed as compensation to the person or persons identified as victims of slavery or victims of human trafficking;
(b) 25 per cent of the proceeds shall be distributed to the charities or other organisations listed in the regulations, which provide services, assistance, support and protection to victims of slavery and victims of human trafficking; and
(c) 25 per cent of the proceeds shall be distributed to the organisations listed in the regulations, whose purpose is to prevent slavery, servitude and forced or compulsory labour or to help to investigate or prosecute people who commit offences under this Act.
(4) For the purposes of any distribution under subsection (3)—
(a) for victims of slavery or victims of human trafficking under paragraph (a), the monies paid—
(i) shall be distributed equally between those persons who have been directly identified as the victims of slavery or victims of human trafficking to whom the conviction referred to under subsection (1) relates; and
(ii) shall not be reduced or diminished by reference to any other compensation that such person or persons may receive from other sources,
(b) for the charities and organisations referred to in paragraphs (b) and (c), the monies paid shall be distributed equally between those charities and organisations.
(5) The regulations referred to in subsection (1) shall provide rules determining the composition, management and financial accountability of the MSV Fund together with such other provisions that the Secretary of State may consider necessary for the exercise of its functions.
(6) The Secretary of State must appoint the Commissioner as a member of the management board of the MSV Fund.
(7) Before making any regulations under this section the Secretary of State shall consult such persons as he thinks fit.
(8) Regulations under this section shall not be made unless a draft of them has been laid before and approved by a resolution of each House of Parliament.
(9) In this section—
“the Assets Recovery Agency” means the Agency referred to in section 1 of the Proceeds of Crime Act 2002;
“the Commissioner” means the Independent Anti-slavery Commissioner appointed under section 40;
“confiscation order” means a confiscation order under section 6 of the Proceeds of Crime Act 2002.”
Lord Alton of Liverpool (Crossbench)
My Lords, Amendment 32 stands in my name and that of my noble friends Lady Cox, of Queensbury, and Lord Hylton. I thank them for their support for the amendment. I also thank the Public Bill Office of your Lordships’ House, which gave me a lot of help with the drafting of the amendment. The purpose of the amendment is to give the Secretary of State power by regulation to,
“establish the Modern Slavery Victims’ Fund (“MSV Fund”) to receive and distribute the proceeds referred to under subsection (2) which have been recovered under a confiscation order, where that order is made in respect of a person who has been convicted of an offence under section 1, 2 or 4”.
If the amendment were to be incorporated in the legislation, it would enable the MSV fund to receive,
“no less than 50 per cent of any money recovered under a confiscation order. Subject to subsection (4), the proceeds referred to under subsection (2)”,
would then be distributed by the fund, with 50% of the proceeds given as compensation to victims, 25% distributed to the charities and other organisations listed in the regulations, and 25% distributed to the organisations whose purpose is to prevent slavery. I would have in mind, obviously, the police, but also others such as the Independent Anti-slavery Commissioner.
Modern slavery is very profitable. The International Labour Organization estimates annual profits from slavery to be around $150 billion a year. For example, a child trafficked and forced to pickpocket on the streets of London can, according to Anti-Slavery International, bring traffickers yields of £5,000 to £10,000 every month. Modern slavery is a high-profit, low-risk crime. Most of those involved escape justice and, even where there is a conviction, asset seizure is often considered too late in the process so the perpetrator has had a chance to move their assets elsewhere. Even where confiscation is made as part of the criminal proceedings, compensation is very rarely ordered.
The amendment would address this by bringing confiscation of assets and compensation to the very heart of the Bill and, in doing this, it would be similar to the United States anti-trafficking legislation. Confiscation has the effect of hitting the perpetrators where it hurts and its deterrent effect is potentially
more significant than the threat of a long prison sentence, which can easily be avoided by entering a plea bargain. As the average prison sentence for modern slavery offences has been relatively low— around five and a half years—unless the perpetrator is stripped of their assets they can come out of prison and enjoy a luxurious life, while victims continue to suffer.
Restorative justice is also a function of compensation for victims and is the key to this amendment. By awarding damages to the victim, their suffering is acknowledged in a way that convicting the perpetrator rarely achieves. Victims who act as witnesses are of course often re-traumatized in the process. Furthermore, compensation gives victims stability and a chance to rebuild their lives. For example, one victim who was compensated has invested the compensation to pay for university education and is now pursuing a law degree.
I first raised the possibility of using confiscated assets to help victims and deter traffickers in 2002, during the passage of the Proceeds of Crime Bill. I argued that there were simply insufficient resources to adequately address a crime which, too often, was out of sight and out of mind. Yet even then, the United Nations had identified people trafficking as the fastest growing facet of organised crime and the third largest source of profit for organised crime, after the trafficking of drugs and firearms. At the time, the Government admitted:
“At present there is no specific offence of trafficking in human beings and so no data exist about the confiscation of assets of those engaged in this practice”.—[Official Report, 18/6/02; col. WA 70.]
My 2002 amendment called for the proceeds of trafficking to be channelled into the support of victims and the resourcing of a strategy to tackle this scourge at source. Supporting the amendments then and the use of confiscated assets to hit the traffickers where it hurts, the late Lord Wilberforce, a Law Lord and a descendant of William Wilberforce, described trafficking as,
“a pervasive crime committed in all kinds of areas by all kinds of people. It must be dealt with by a great variety of authorities”—
I repeat, a great variety of authorities—
“and police forces all over the country, many of which have no idea of the nature of the crime or the remedies available to deal with it”.—[ Official Report , 25/6/02; col. 1225.]
Since 2002, the Government have been persuaded to develop the principle of confiscating assets which have been accumulated through the pursuit of crime. I strongly welcome this but it would help this debate if the Minister could describe what has been the experience of the Proceeds of Crime Act to date. It has been suggested that there may already be as much as £2 billion in uncollected POCA fines, so whether or not there is a dedicated dispersal fund, as the amendment would require, it would be helpful to know how the Government intend to improve the collection rate and what their estimate is of the sums currently outstanding.
Addressing Pope Francis at a Vatican conference on human trafficking held in April this year in Rome the Home Secretary, the right honourable Theresa May MP, said:
“Our efforts must also focus on going after the profits of those involved, and compensating victims with seized assets”.
The Bill itself recognises that the first call on seized assets should be to provide reparation to the victims of the modern slavery offence. Where there are seized funds left over, the Government say that they will benefit criminal justice agencies through the existing asset recovery incentivisation scheme. ARIS has the objective of providing all operational partners who use the asset recovery powers in the Proceeds of Crime Act 2002 with incentives to pursue asset recovery as a contribution to the overall objective of reducing crime and delivering justice. It is not, however, specifically targeted at tackling human trafficking and modern slavery. However, that scheme is not on a statutory footing, although some of the moneys distributed under ARIS are used to fund improvements in asset recovery capabilities and on community projects, and I welcome that. This amendment would create a statutory scheme.
Around £80 million was returned to operational partners from ARIS in 2013-14. The Minister might like to say how much of that money is used specifically to deter and bring to justice the perpetrators of modern slavery. I would also be grateful if he would quantify what he believes will be necessary to fund this ambitious legislation, otherwise it risks becoming yet another declamatory law which sounds good but can make little difference. Will he say how much money will be set aside to support this legislation? We all recall the Climate Change Act 2008, which imposed what was called a “legally binding obligation” for reduction of 80% of greenhouse gas by 2050. It was never made clear how it was to be done, who was to be held to account if this target was not realised and what punishments there would be.
The Child Poverty Act 2010 was not much better, requiring the elimination of child poverty by 2020. If the Bill is not to be added to the list of declamatory legislation which has inadequate resources attached to it to ensure its enforcement, we need to insist on ways of providing adequate resources. Although the Minister says that the Government are unconvinced about the need to ring-fence these assets for this dedicated use, he has indicated his willingness to discuss the amendment and said, in a letter to me:
“There is a great deal of common ground between us on the principles of how seized assets should be used, in terms of using the funds raised to compensate victims and support law enforcement agencies”.
I welcome that greatly.
The Government tend to suggest that the police is the agency which needs to be funded to bring perpetrators to justice. Of course, there is a lot in that argument. However, as the late Lord Wilberforce recognised, a great variety of authorities need to be involved and many, along with the police, are completely underresourced. At Second Reading, I highlighted the position of the Gangmasters Licensing Authority, established in 2006 in the aftermath of the tragic death of 23 Chinese cockle-pickers who died in Morecambe Bay, part of a criminal racket exploiting workers all over England, and estimated to funnel £1 million per day back to China.
In 2013, Professor Gary Craig of Durham University, working with the Wilberforce Institute for the study of Slavery and Emancipation and the Joseph Rowntree
Foundation, published
Forced Labour in the United Kingdom
, a report which specifically said that the GLA was insufficiently resourced. The report found that:
“The scope of the GLA should be extended to cover all sectors using labour providers and greater resources should be available for the GLA to be able to fulfil its role effectively”.
The three-year study draws on data from legal, policy and regulatory bodies and calls for the Government to reconsider some key policies and take a broader view of the problem. The report also found that:
“Monitoring for severe labour exploitation is generally weak and needs to be strengthened”.
Professor Craig, who is professor of community development and social justice, says that workplace enforcement agencies are now doing fewer inspections, becoming focused on only the most serious offences rather than tackling all types of serious labour exploitation. Commenting on the scale of the problem he says:
“Criminal activity of this nature is difficult to monitor, but conservative estimates are that there are currently at least several thousand cases of forced labour in the UK and 880,000 across the European Union”,
and that those trafficked for labour exploitation would soon exceed those trafficked for sexual exploitation.
I turn to the need for public education, something which many noble Lords have raised today and which the Government acknowledge the need for. No one has said how that would be resourced. Professor Craig remarks that there is a “real problem” getting people to acknowledge not only that slavery exists in the UK, but that, as his research suggests, there may be upwards of 10,000 people at any one time in conditions which we would class as modern slavery. I noticed over the weekend that the BBC added another 3,000 to that number.
In addition to recommending the extension of the mandate of the GLA, providing powers of arrest and investigation, Professor Craig argues that the GLA should be able to keep fines to fund its work, adding that the resources directed to the GLA are totally inadequate. If the dedicated fund specified in the amendment were created, it could be used to extend the mandate and work of the GLA and other agencies involved in this most serious of crimes. The Independent Anti-slavery Commissioner, Kevin Hyland, has also said in an interview in the Sunday Times that the resources needed should be raised as a result of using the confiscated assets of funds that have been seized.
Sometimes Ministers, instructed by the Treasury, raise the old bogey that Governments do not support the use of hypothecated funds, and that revenues must be directed to the Treasury for subsequent allocation. That is manifestly not true, and even the Bill itself accepts the principle that some of the funds will be specifically used to address the challenge of modern slavery and human trafficking—the Home Secretary said so. There are plenty of precedents, from the fossil fuel levy to the levy on the pig industry to eradicate Aujeszky’s disease, that have created levies or funds to tackle specific hypothecated challenges. If we can hypothecate funds for pigs, surely we can do the same thing for humans.
To reiterate and conclude: the amendment takes a moderate, incremental approach. The fund would receive no less than 50% of any money recovered under a confiscation order; 50% of the proceeds would then be used to support the victims, 25% distributed to those charities and agencies combating slavery and 25% to those organisations preventing, investigating or prosecuting those responsible. Under the terms of the amendment, the Independent Anti-slavery Commissioner would serve on the management board of the fund, which itself would be established by the Home Secretary by regulation.
I accept that there may be better formulae to determine the shape of the fund and its administration, and the amendment is not designed to be definitive. It is an attempt to create a scaffold to ensure that adequate resources are made available to fund what the Government described as world-class legislation, and to force those who have profited from this evil to pay for measures to combat it, to support victims and to bring the perpetrators to justice. I beg to move.
Lord Warner (Labour)
My Lords, if I may, for the convenience of the Committee, I will group my Amendment 33 with Amendment 32 as my amendment is meant to help fill the pot that the noble Lord, Lord Alton, wants to distribute. I am sorry that I did not group it at an earlier stage.
My amendment is much less ambitious than the noble Lord’s amendment. It follows on from an amendment that my noble friend Lady Smith moved to the Serious Crime Bill. I was a member of the Joint Committee on the draft Modern Slavery Bill. We were concerned to maximise the confiscation of resources from perpetrators of slavery that could go to help victims much more than had happened in the past. Indeed, the confiscation of criminal assets under SOCA had not been one of the most glorious bits of public administration in this country, as I think was recognised by the Government following a PAC report. Therefore, we need to strengthen this.
I am the first to recognise that the Government went some way towards meeting the recommendations from the Joint Committee in this area and I am very grateful to the Government for moving some way. For example, I am glad that the Government have reduced the legislative requirement for a restraint order from reasonable cause to believe to reasonable suspicion. However, I remain concerned that they have not gone further and accepted the committee’s recommendation to remove the test that there must be a risk of dissipation of assets before action is taken by the prosecutor. Frankly, the advice that the Home Secretary seems to have been getting on this issue is a bit fanciful. The characters we are talking about in this area have a track record of dissipating assets. They move very quickly when it is known that they are going to be charged and prosecuted. I think that hanging on to the idea that they need to be protected from gung-ho prosecutors by actually keeping the intention that they have to show that they will dissipate their assets is rather fanciful. The Government need to look again at that area.
I will not spend very long at this late hour talking about the areas where the Government said they were going to look further at two or three of the other
recommendations in paragraph 210 on page 97 of the Joint Committee’s report. Rather than detain the House now, perhaps the Minister could write to us about how things have progressed in those areas that the Government were reviewing further.
What I want to do on this amendment is to persuade the Government that it would be useful to have a consultation to look further at strengthening the arrangements around this very technical area. I understand the difficulties of actually finding technical solutions and I am not someone who is going to try to move complicated technical amendments to the Bill at this late stage in its passage. However, I think the Government need to have another look at this so we can maximise the confiscation of assets to produce the kind of fund that the noble Lord, Lord Alton, is talking about. It is no good having a grand scheme for distribution if there is nothing in the pot to distribute. We have to work a lot harder. The kind of consultation that we are proposing in this amendment is meant to be helpful to the Government so that we can move on and strengthen this area of confiscation to the maximum advantage of victims.
Baroness Butler-Sloss (Crossbench)
My Lords, I should like to make a short point on these amendments. I consider the proposals put forward by the noble Lord, Lord Alton of Liverpool, to be extremely interesting. The idea that the proceeds, if there are any, should go not only to victims but to other organisations is one which, as the noble Lord, Lord Alton, has said, attracted the Home Secretary. I would particularly like to refer to the idea that 25% of proceeds should be distributed to organisations whose purpose is to prevent slavery. One example is that of the Bedfordshire police who spent an enormous amount of time and effort, and a great deal of the police budget, in managing to bring the Connors family to justice. They were the Gypsies who had a large number of men living in appalling accommodation. They had recruited them from homeless units or soup kitchens by offering them money but then treated them in the most appalling way. They eventually took a great many of them to Sweden, trafficking them from the UK to Sweden, where they were living in caravans again and working 18 hours a day on construction sites without receiving a single penny. They in fact came back to England but I am not sure we looked after them very well when they came back. The Bedfordshire police did an extremely good job and it cost them a great portion of their budget. Andrew Selous MP has raised this issue on various occasions and I am happy to raise it again in this House. That is the sort of organisation which ought to be compensated to some extent for the use of its budget—way beyond what is normal—to get a prosecution of a large group of very successful and very wicked traffickers.
Of course, as the noble Lord, Lord Warner, has said, unless you have the money you cannot give it out to anybody else. The Government are to be congratulated on adding criminal lifestyle offences to Clause 7, taking the provisions from the Proceeds of Crime Act. I suggest to the Government that they really ought to look at civil proceedings before the arrest has been made. If the intention is to make an arrest, knowing
that the lifestyle of a particular person makes them likely to be a trafficker and therefore likely to be prosecuted, you want to catch the money before he is arrested because otherwise the minute he is arrested he will get it out of the country. Anyone can get money out of the country extremely fast. Therefore, there should be some provision in the civil courts—by which I mean the High Court in particular—that where there is sufficient evidence to be able to make an arrest there should be not a confiscation but a freezing order. Freezing orders are perfectly well known right through the civil courts. If you can get a freezing order a few days or weeks before the actual arrest is made, you may take the trafficker unawares. That is where you get the money to get the pot of the noble Lord, Lord Alton, sufficiently filled. There is no question that this is either the second or third most profitable criminal enterprise in the world. It is worth something in excess of $30 billion, quite a lot of which comes through this country. It does not stay long enough, but if we can get it in the civil courts, it can fill the pot that the noble Lord, Lord Alton, wants.
Baroness Hamwee (Liberal Democrat)
My Lords, the amendment in the name of the noble Lord, Lord Alton, is very interesting, particularly, as has been said, as it identifies the work done by organisations and the need for them to be funded to support individuals, as distinct from compensation going directly to an individual. It is complicated work, and in many cases very long term. However, I am sure the noble Lord would agree that nothing this might provide should let the state off the hook of its responsibilities. I am not sure about naming the organisations in regulations, but that is a detail.
As regards the work of the police—the noble Lord mentioned ARIS, and the noble and learned Baroness mentioned the Connors case—I am aware of another case where a different force put together a hugely detailed and complex plan for multi-agencies to be available when they raided premises and rescued a number of individuals. That must have cost an enormous amount of money. It was very important that those who were found in forced labour—I do not think that the case has come to trial yet, but I suspect that it will be forced labour—are received in a sensitive way and helped from the very beginning. That is intrinsically important, and it is important to ensure that they are in position to give the evidence that the police need to be able to proceed and do not disappear into thin air, as sometimes happens in these cases; facing authority, they do not want to have anything to do with it. Therefore, I am very pleased that the noble Lord has brought this to the attention of the House.
I will make one other small point on organisations that do this work. It sometimes seems that the smaller and less formal organisations are the most successful, because they are less likely to be perceived as authority by those whom they seek to help.
On the amendment in the name of the noble Lord, Lord Warner, my view remains the same as when we discussed the matter in the Serious Crime Bill. Of course we should assess and evaluate the impact of the changes made by the Bill—which is still a Bill—and be prepared to make changes. I was worried that it was
not sensible to have a consultation that runs in parallel with the introduction of some changes that were being made by the Bill, which might be rather confusing. April 2015 is very close—there will not have been much experience, if any, of the changes included in that Bill; I am not sure when it is likely to be commenced. Therefore, the point about review and assessment and evaluation and consultation in general is good; I am worried about the timing.
Lord Hylton (Crossbench)
My Lords, I foresee that the Government may say that my noble friend’s Amendment 32 is too prescriptive, and that Amendment 33, tabled by the noble Lord, Lord Warner, is only consultative. I hope that they will not dismiss both of them on those kinds of grounds. It would be very helpful if they said to what extent they accept the principle behind them. While doing so, perhaps they could also say how the present law on criminal compensation could interact with these ideas.
Lord Rosser (Labour)
My Lords, I will be brief in view of the time. It is vital that those who profit from modern slavery crime should know that their ill gotten gains can and will be confiscated, by extending Schedule 2 of the Proceeds of Crime Act 2002 to these serious offences. However, my noble friend Lord Warner has made the case for his amendment, with which I am associated, and for the consultation on a number of questions for which it provides, in the light of the weaknesses in the present arrangements. I will not go into those weaknesses; they were highlighted by my noble friend Lady Smith of Basildon during the debates on the Serious Crime Bill.
Victims of modern slavery should be compensated, but, as my noble friend Lord Warner said, money cannot go to victims if we are not recovering it from the perpetrators of the crimes. We need to strengthen and improve the present legal framework on the recovery of assets and the use of property derived from the proceeds of these crimes. This amendment, with which I am associated, provides for a consultation by the Secretary of State to do just this. I hope that the Government will feel able to give a favourable response.
Lord Bates (Conservative)
My Lords, I am grateful for the amendment moved by the noble Lord, Lord Alton, and grouped with the amendment spoken to by the noble Lord, Lord Warner. In many ways it might be easier if I sum up by taking the amendment of the noble Lord, Lord Warner, first, because it feeds into the principle of—if you like—the hopper, which then comes down to the general fund, which is the subject of the amendment of the noble Lord, Lord Alton.
I shall touch on a few things on the way through. The scale of the proceeds gained through this is widely acknowledged: the noble and learned Baroness, Lady Butler-Sloss, mentioned a figure she found on page 38 of the strategy document that we put out. We used a figure from the ILO, which estimates the global proceeds from this activity at about $150 billion. That equates to something like $34,800 per victim. So the amounts concerned—as we have heard all the way through—are
very sizeable, and that is the underlying reason why organised criminals are moving increasingly towards the trafficking of human beings, rather than the drugs, guns and other weapons that we have seen in the past. It is because it is lucrative.
That is why we are absolutely determined that their financial resources—there is a financial motivation—ought to be the target of our activities. As my noble friend Lady Hamwee mentioned, this debate reflects a significant debate that we had on the Serious Crime Bill, where we talked about the process for doing this and inserted a legal test for obtaining such an order to be reasonable cause to believe that the alleged offender has benefited from his criminal conduct. The noble Lord, Lord Warner, was good enough to recognise that that was a step forward. There was a general feeling that if one applied for the restraint order or the freeze early in the proceedings, that could in some cases alert the perpetrators to the fact that there was an imminent investigation, and perhaps arrests, and that some of the jointly held assets might cause that to happen. That is not to say that this is our final position but it is something that we looked at very carefully before coming up with the current proposal.
The recovery regime, which has been strengthened in the Serious Crime Bill—your Lordships’ amendments to which are currently under consideration in another place—is aimed very much at increasing the resources recovered from organised crime. The noble Lord, Lord Alton, asked about the amount of funds that had been recovered. I think that in the order of £746 million worth of criminal assets have been seized across all four means of recovery, which is a record amount. We expect that to increase.
Noble Lords may also be interested to note that paragraph 4.32 of the strategy document states:
“Over £2 million has been recovered from slave drivers and traffickers in the past four years”.
Compared with the amount which has been earned, that is a pitiful and woefully low sum, and is why this legislation is before us to strengthen the law and to ensure that more assets are recovered. How is that to be done? I am not sure whether the noble Lord, Lord Warner, was at the Home Office when the Proceeds of Crime Act 2002 was going through.
Lord Warner (Labour)
Not guilty.
Lord Bates (Conservative)
The noble Lord says, “Not guilty”, but he should be proud of the measure because it tightened the loopholes to which he referred. The noble and learned Baroness, Lady Butler-Sloss, also mentioned that in the Serious Crime Bill we have introduced the criminal lifestyle element which is a tougher test for extracting an appropriate amount of funds. We are also providing for the deployment of asset recovery advisers to priority jurisdictions as part of the asset recovery strategy. In general terms, that is what we are trying to do to tighten the regime so that we get more funds in under the asset recovery incentivisation scheme. The noble Lord, Lord Alton, asked me to set out where those funds are currently located. I will come back to that in a second but effectively they are divided between key areas—namely, the police, the prosecuting authorities and the courts. But ahead of those, of course, are the victims. It is the victims who are compensated
first. That is what is contained in the Bill for the reparation orders. The reparation orders will ensure that the victims, who are the ones who have suffered, are compensated first.
The noble Lord’s argument, as I take it, through his amendment—he rightly picks up the tone of my letter to him on this subject—is not saying that we do not recognise that there could be a role for this fund in providing some support to other organisations that are aiding victims. That is not something that we are ruling out. In fact, there is a ministerially-chaired Criminal Finances Board review of the asset recovery incentivisation scheme going on at this precise time. It will report in December. I offer this undertaking to the noble Lord: officials have been listening very carefully to what he said and the arguments that he has made, and which other noble Lords have made. Those arguments will be fed into this review to be put forward.
I also believe that in this response, the use of funds, which, of course, we expect as a result of the tougher measures and the greater sanctions that we have available under the new laws that are coming into effect, will result in more prosecutions and greater funds coming into this scheme. We fully expect those funds to increase. I am sure that the Independent Anti-slavery Commissioner-designate, as we must still say at this stage, will have an eye on how those funds are used to best ensure that we get more prosecutions, and help more victims. As we have heard time and again—the noble Baroness, Lady Hamwee, I think, referred to this as well—much of the evidence that we have of the mistreatment and the case examples are as a result of the excellent work of those charities and organisations that are out there meeting the victims and getting them to feed into the national referral mechanism, leading, it is hoped, to prosecutions.
I am sure that that is not as far as either noble Lord would like us to go, but I hope a couple of steps there will offer the noble Lord, Lord Alton, whose work in this area we all acknowledge, the opportunity to consider withdrawing his amendment.
Baroness Butler-Sloss (Crossbench)
Before the noble Lord sits down, I do not want to waste time, and I understand the point that the Minister is making about not alerting a potential trafficker so that he might skip the country, but what you can do, for instance, is get a without notice order in the civil court to freeze the assets and then arrest immediately afterwards. You do not have to alert the trafficker in order to freeze the assets. However, I am not sure that the powers for freezing assets would include people who are traffickers. That is the point that I want to put to the Minister.
Lord Alton of Liverpool (Crossbench)
Before the Minister sits down, is he going to reply to my noble and learned friend first, or may I also put a point to him?
Lord Bates (Conservative)
I think that I am probably going to have to reflect on that point and come back to the noble and learned Baroness in writing, certainly before Report.
Lord Alton of Liverpool (Crossbench)
I am grateful to the Minister. As a young Member of another place, I was once given the quite good advice always to beware Ministers
when they are promising reviews, but in this case the Minister has said that the review is already under way. I am very grateful to him for saying that. He says that it is going to report in December. Will that be in time for us to be able to come back on Report acting on the outcome of the review? What is his estimate of the timetable?
Lord Bates (Conservative)
In the matter of the timetable and in many other matters I am grateful to have the Chief Whip, my noble friend Lord Taylor, on the Bench beside me. He has signalled his assent to the suggestion that this may be something where the report will be published, in all likelihood, before Report. Therefore, there will be an opportunity to revisit it then.
I should also say, as I have found the note, that the current distribution of the scheme provides that 50% of the proceeds go to the Home Office; 18.75% to investigation agencies; 18.75% to prosecution agencies; and 12.5% to HM Courts and Tribunal Service, which enforces the orders. That is the current distribution. I hope that is helpful.
Lord Alton of Liverpool (Crossbench)
The noble Lord has been incredibly helpful to the Committee. It is very late and I do not intend to detain the Committee for long now. I simply want to thank my noble and learned friend, and thank the noble Lord, Lord Warner, for putting his argument so effectively. He is right that we have to generate the funds in the first place to provide the pots in order to do the things that the noble Baroness, Lady Hamwee, and my noble friend Lord Hylton all recognise need to be done. Indeed, the Minister himself has recognised that the principle behind this is not a bad one and is worth looking at further. He has engaged with the arguments in his usual courteous and characteristically helpful way. I am extremely grateful to him at this stage. We will see what the review holds and will keep open the possibility of coming back on Report if his noble friend is able to timetable events to ensure that the chronology works out that way. Having said that, I beg leave to withdraw the amendment standing in my name.
Amendment 32 withdrawn.
Amendment 33
Tabled by Lord Warner
33: After Clause 7, insert the following new Clause—
“Recovering the proceeds of crime: consultation
(1) The Secretary of State shall consult on ways to strengthen and improve the legal framework in relation to the recovery and use of property derived from the proceeds of crime, which are recovered under the provisions of section 7.
(2) A consultation under subsection (1) shall include, but not be limited to—
(a) how to strengthen and improve the effectiveness of restraint and confiscation orders and in particular—
(i) whether it should remain a condition of making a restraint order that there is a real risk that the defendant will dissipate his or her assets, and, if so, whether the burden should be reversed to require the defendant to show that he or she will not dissipate his or her assets;
(ii) whether the costs recoverable by the defendant when an application for a restraint order is denied should be capped at legal aid rates;
(iii) whether to provide the court with the power, when making an order, to require the defendant to disclose any interests, including third party interests, in realisable property;
(iv) whether the court, when making an order, should be able to require the defendant to return to the United Kingdom any realisable liquid assets overseas;
(b) how to improve the effectiveness of the United Kingdom’s mutual legal assistance arrangement with overseas jurisdiction in cases concerning the proceeds of crime; and
(c) how to use the recovered proceeds of crime for the victims of modern slavery.
(3) A consultation under subsection (1) shall end no later than 1 April 2015.”
Lord Warner (Labour)
I wish to say briefly that I would like to withdraw Amendment 33 but want to register the point that the track record of confiscating assets from the proceeds of crime has not been a happy one. I want to keep open, until we have seen the review, whether we come back to the issue of a legal framework being looked at again and give the Home Secretary powers to take action if things do not work out as well as they might have done. I particularly want to consider the points made about civil orders by the noble and learned Baroness, Lady Butler-Sloss. There is a package of issues to which we may have to return on Report. Meanwhile, I beg leave to withdraw the amendment.
Baroness Fookes (Conservative)
That is not possible.
Amendment 33 not moved.
House resumed.