‘(1) A person commits an offence if they exploit a child.
(2) It shall be such an offence even if there was no threat or use of violence, other forms of coercion, deception or any abuse of a position of vulnerability.
(3) A child may be in a situation of exploitation whether or not—
(a) escape from the situation is practically possible for the child; or
(b) the child has attempted to escape from the situation.
(4) The consent or apparent consent of the child to the exploitation is irrelevant.
(5) “Child Exploitation” includes but is not limited to, the exploitation of the prostitution of others or other forms of sexual exploitation; the exploitation of labour or services including begging or practices similar to slavery, servitude or forced or compulsory labour; the exploitation of or for criminal activities including benefit fraud; the removal of organs; forced or servile marriage or enforced surrogacy; exploitation for unlawful adoption; and exploitation by enforced drugs smuggling, manufacture, production or distribution.”—(Diana Johnson.)
Brought up, and read the First time.
With this it will be convenient to discuss the following:
New clause 4—Offence of exploitation—
‘(1) A person commits an offence if they exploit a person 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 abuse 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.
(2) A person may be in a situation of exploitation whether or not—
(a) escape from the situation is practically possible for the person; or
(b) the person has attempted to escape from the situation.
(3) The consent or apparent consent of the person of the exploitation is irrelevant where any of the means set forth in section 9(1) has been used.’
New clause 24—Human trafficking—
‘(1) Any person who for the purpose of exploiting a person or persons—
(a) recruits, transports, transfers, harbours or receives a person including by exchange or transfer of control over that or those persons;
(b) 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 abuse 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, commits an offence of human trafficking.
(2) The consent or apparent consent of a person to the acts referred to in subsection 2(1)(a) or to the exploitation shall be irrelevant where any of the means set forth in subsection 2(1)(b) have been used.’
New clause 20—Control of assets related to modern slavery offences—
‘(1) In section 40 (Restraint orders) of the Proceeds of Crime Act 2002 after subsection (9) insert—
“(10) In the case of an investigation or prosecution under the Modern Slavery Act the court shall presume that the alleged offender will dissipate his assets unless restrained.”
(2) The Secretary of State shall within six months of this Act coming into force bring forward regulations to—
(a) presume a freezing order will be granted within 24 hours in respect of assets where the court is satisfied that—
(i) there are reasonable grounds to suspect that some of those assets have been obtained as a result of an offence under this Act, and
(ii) those assets are over and above those reasonably required for living and business expenses.
(b) confer on the police power to issue a notice on financial advisers and institutions placing a duty of care on those institutions in respect of movement of assets that might hinder an investigation into an offence under this Act.
(3) The Chancellor of the Exchequer shall within six months of this Act coming into force bring forward regulations to provide that assets recovered in respect of an offence under this Act shall be paid to one or more of—
(a) the police and/or,
(b) the Gangmasters Licensing Authority, and
(c) the victim or victims of the offence.
(4) The court will require an asset declaration from anyone subject to a restraint order within 24 hours in respect of any financial interests in assets held in whole or in part in the United Kingdom and in overseas territories. In the event of a false declaration, this will be treated as an aggregated factor in the setting of any future penalty.
(5) Regulations under this section shall be made by statutory instrument and shall not be made unless laid before in draft and approved by both Houses of Parliament.’
New clause 21—Civil remedy—
‘(1) An individual who is a victim of an offence under section 1, 2 or 4 may bring a civil action against the perpetrator in the County Court and may recover damages and reasonable legal costs.
(2) For the purposes of subsection (1) “damages” shall include the greater of the gross income or value to the defendant of the victim’s services or labour or the value of the victim’s labour as guaranteed under the national minimum wage guarantees of the National Minimum Wage Act 1998.”
This provision creates a civil remedy for victims of trafficking, to allow victims to pursue a civil claim for compensation directly from the trafficker in the absence of a criminal prosecution.
Amendment 132, in clause 1, page 1, line 12, at end insert—
‘(c) the person exploits another person within the meaning of section 3(4), (5) or (6) of this Act and the circumstances are such that the person knows or ought to know that the other person is being exploited.”
Amendment 135, page 1, line 12, at end insert—
‘(1A) For the purposes of this Act—
(a) it is irrelevant whether a child consents to being held in slavery or servitude; and
(b) a child may be in a condition of slavery, servitude or forced or compulsory labour whether or not—
(i) escape from the condition is practically possible; or
(ii) the child has attempted to escape from the condition.”
Amendment 136, page 1, line 12, at end insert—
‘(1A) For the purposes of this Act—
(a) it is irrelevant whether a person consents to being held in slavery or servitude; and
(b) a person may be in a condition of slavery, servitude or forced or compulsory labour whether or not—
(i) escape from the condition is practically possible; or
(ii) the person has attempted to escape from the condition.”
Amendment 133, page 1, line 17, after “labour”, insert “or is being exploited”
Amendment 143, page 2, line 3, at end add—
‘(5) The consent or apparent consent of a person to the acts referred to in subsections 1(1)(a) or 1(1)(b) shall be irrelevant.”
Amendment 152, page 2, line 4, leave out clause 2.
Amendment 134, page 2, line 30, clause 3, at end insert—
‘(1A) For the purposes of section (1) a person is exploited only if one or more of subsections (4), (5) or (6) of this section apply in relation to the person.”
Amendment 151, in clause 7, page 4, line 30, at end insert—
00 “Proceeds of Crime Act 2002
In section 69, subsection (2) of the Proceeds of Crime Act 2002, after “debt owned by the Crown”, insert—
“(e) in the case of an investigation or prosecution under the Modern Slavery Act the court must presume that the alleged offender will dissipate his assets unless restrained.””
Amendment 138, in clause 41, page 29, line 29, at end add—
‘(9) A child is not guilty of an offence if—
(a) he or she was under the age of 18 when the act which constitutes the offence was done; and
(b) the offence was integral to or consequent on the trafficking, slavery or exploitation of which he or she was a victim.”
This amendment aims to ensure a child victim of trafficking is not obliged to prove they were compelled to commit an offence before being able to access the protection of the statutory defence in line with international standards.
New clause 3 and new clause 4 seek to introduce specific offences for child and adult exploitation, and I would like to test the opinion of the House at the appropriate time.
The Bill fails to cover cases of severe labour exploitation, and many recent high profile cases show we need specific laws to tackle it. New clause 3 would also help to stop workers being exploited and paid below minimum wage, which is often a driving force behind local businesses being undercut by unscrupulous employers. The new clause would be a historic measure that would, for the first time, make the exploitation of workers, adults and children an offence. Importantly, it also addresses what has been described as “a lacuna” in the Bill, which fails to recognise the specific nature of exploitation of children in the UK and fails to address the issues that have led to so few successful prosecutions for child trafficking and slavery. This grouping incorporates a series of amendments from all parties with a common aim—to enable more prosecutions for trafficking, slavery or exploitation. This is exactly in line with what the Minister said repeatedly in Committee about getting more prosecutions.
At this stage, the Opposition are focusing specifically on the offences of exploitation, even though in Committee we tabled or supported many of the other amendments that have been tabled today. We support their aims and hope to return to them in the other place.
The Government claim that the Bill will enable more prosecutions. To do so, it transposes existing offences from three pieces of legislation into a single Bill. The Bill maintains the current offence of holding someone in slavery and merges two existing offences of human trafficking into a single offence of human trafficking. To secure a prosecution for human trafficking, it is necessary to show that X was trafficked and that this trafficking was done for the purposes of exploitation. It is important to stress that, because nothing in the Bill deals with the structures of these offences or the very high threshold needed to get convictions. In short, I do not think there is anything here that will enable more prosecutions.
Is the hon. Lady as surprised as I am that, as far as I am aware, only one person has ever gone to jail for breach of a Gangmasters Licensing Authority offence? Does that speak to the high hurdles to which she alludes?
Does the hon. Lady agree that the offence of exploitation ought to be committed even when the threat of force is against someone other than the person being exploited—against a relative of the person who is being exploited, for example?
The right hon. Gentleman makes an important point, which should perhaps be debated more fully in the other place. I absolutely agree that this is a strong point that needs to be considered.
Returning to the low number of prosecutions, in 2011-12 there were 15 prosecutions for slavery offences, but no convictions. Since the introduction of the offence, there has shockingly never been a prosecution where the victim was a child. In 2011, there were 150 prosecutions for trafficking offences, but only eight convictions. To put those figures in context, in 2013 the national referral mechanism received 1,746 separate referrals of cases of human trafficking, 432 of them involving minors. The UK Human Trafficking Centre identified 2,744 victims of human trafficking last year, 600 of whom were deemed to be children.
One problem—not necessarily about the offences per se—is getting the victims to bear witness and testify against those who trafficked them. Victims’ fear is one reason we are not getting successful convictions, and we need to do more for them.
I absolutely agree with the right hon. Gentleman about the need to ensure that victims feel able to come forward and give evidence against those who have trafficked them, but I still think that we need to get the offences right and ensure that the offences are fit for purpose—an argument that I shall develop.
The new clause in the name of my hon. Friend Paul Blomfield is designed to address some of the structural problems with the drafting of the trafficking offence, and I want to put it on record that we fully support it. The amendments tabled by Mr Burrowes are designed to clarify the law on slavery to enable more prosecutions. I am sure that he will speak eloquently to those amendments. Again, we support what he is trying to achieve in principle.
What we are trying to establish is the principle that there should be separate offences for exploitation. The Opposition’s view is that this is the most effective way of overcoming the substantial barriers currently in place in getting convictions. I take into account as well what Sir John Randall said about victims and giving evidence.
To explain why our approach is needed, I want to turn to the evidence of Lord Judge, who was until recently the Lord Chief Justice and the most senior criminal judge in the country. He said of this Bill:
“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. You could have an offence of trafficking, full stop, and a separate offence of exploitation. As it stands at the moment, you have a single offence with two parts—here is the trafficking and here it is with a view to exploitation. My own view is that trafficking in people is a dreadful thing to do, trafficking with a view to exploiting them is a more serious thing to do, but exploiting them is also serious. 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.”
Lord Judge is not the only senior lawyer to think this is needed, so let me turn to the evidence given to the Committee by Nadine Finch, a barrister specialising in children’s law. She said:
“In terms of child exploitation, in my view, as somebody who represents a lot of child victims, it is a real lacuna. Children are at a huge disadvantage in evidential terms. They very rarely understand they have been trafficked—what trafficking means—or what kind of evidence is needed. They particularly do not understand the movement part of being trafficked to the situation of exploitation; because they may well have been duped by their elders—by their parents. They may well have been too frightened, or not understood the movement. Therefore, children are more likely to be able to tell you about what happened to them when they were exploited than to be able to tell you about what happened to them when they were actually moved, or when travel was involved. That is a really important issue.”
She went on to say:
“Many of my child clients can tell me about what happened when they were exploited in domestic servitude, in a restaurant or in prostitution; but they actually did not understand enough about the links between people who brought them across England, Europe or the world, and therefore they are not able to assist the police or prosecutors in terms of a trafficking offence. They can assist in the matter of exploitation, and I have got quite a few children who have been able to take the police to a house where they have been kept in domestic servitude or sexual exploitation, but they are not able to explain who brought them to that house, and therefore no prosecution happens.”
So, two eminent lawyers, a whole coalition of children’s charities and the Joint Committee on the draft Bill all recommend specific adult and child exploitation offences.
I quoted Nadine Finch’s evidence at length because I think the House really should consider her experiences of these cases, and I think she encapsulates very well the problem with the current drafting. I also think we should consider this in the light of recent UK cases, particularly the sexual exploitation of girls in Rotherham, Rochdale, Oxford and elsewhere. We know that thousands of girls were exploited and abused, but little was done and few prosecutions were attempted. These girls were neither trafficked, nor held in slavery, but they were exploited, and putting specific offences in the Bill would move the legislative framework from one looking at individual sexual acts—who was present, was there consent and so forth—to one in which exerting control over a course of behaviour is more important. It is my view—and that of the charities and lawyers I work with—that this will enable more prosecutions, which we all want to see.
Given what we have learned recently about the scale of exploitation, and particularly in view of the report by my hon. Friend Ann Coffey, I believe that we now have to look again and ask the Government to reconsider their approach to these offences.
New clause 4 is specifically about adults. There is a higher threshold in establishing exploitation but the principle is the same: exploitation should be a separate offence. That is illustrated best with a few case studies. Craig Kinsella was held captive by the Rooke family in Sheffield and forced to work from 7.30 in the morning until midnight for no pay. He slept in a garage. He was starved and beaten with a spade, a crowbar and a pickaxe. He was not trafficked into the country; he was a British national. He had even voluntarily moved in with the family, but was then subjected to appalling abuse and exploitation. There was extensive evidence of this abuse, including from the Rookes’ own CCTV system. The Rookes were convicted, but not of slavery or of trafficking; rather they were convicted of false imprisonment and other lesser offences.
Gheorge Ionas, 35, exploited fellow Romanian migrants. He forced them to live in unheated buildings without sanitation, paid them as little as £100 a week for full-time work and made them scavenge for food from supermarket bins. Mr Ionas was fined just £500 for operating as a gangmaster without a licence.
Police in Kent described a similar situation where they came across 29 Lithuanian chicken catchers. Seventeen of these people gave written evidence and statements, which included beatings, theft of their wages, living with anything up to 12 people in a two-bedroom house, bedbug-ridden mattresses, dogs being set on workers, being held in the back of a Transit van for up to five to six days at a time without any ablutions—no washing or toilet facilities—being driven from job to job and not being paid for their full hours. The police thought this was criminal conduct but the CPS said there was not enough evidence to prosecute. No action was taken.
Following this case the evidence from Detective Inspector Roberts of Kent police to the draft Bill Committee was clear:
“Certainly within Kent, we have had quite considerable difficulty in working out what is criminal exploitation, particularly labour exploitation, where people are working very, very long hours in difficult circumstances. If you asked an average member of the British public whether that person was being exploited, they are, but because of their circumstances they are allowing themselves to be exploited and to remain within circumstances of exploitation.”
With the number of these cases growing, the evidence is now overwhelming that we need specific legislation to stop these people being exploited and to stop British workers being undercut.
In conclusion, the aim of the amendments is to prosecute those who traffick and exploit, but we must also recognise the amendment in this group that seeks to prevent those who have been trafficked from being prosecuted. That is an equally worthy cause and is particularly important in relation to children. It is quite frankly a disgrace that more trafficked children are being prosecuted than their traffickers. Labour welcomed the inclusion in the Bill of a statutory defence, though as was made clear both in evidence to the Committee and in discussion, this amendment does not do enough to protect children.
Therefore, we support the principle of amendment 138 tabled by Mark Durkan, which seeks to clarify that children can be trafficked without being compelled—something that is recognised in clause 2, but not in clause 41. Labour supported amendments to this end in Committee and does so again here. The drafting of amendment 138 is slightly broader than we think is appropriate, and we do not want to exempt children necessarily from either the reasonable person test or schedule 3. But the principle that children should be able to rely on the defence without proving compulsion is one we support and will seek to address in the other place.
The Modern Slavery Bill recognises our obligations under article 4 of the European convention on human rights and the 2005 European convention on action against trafficking of human beings, both of which will have informed section 71 of the Coroners and Justice Act 2009, which made it an offence to hold a person in slavery or servitude or to require them to perform forced or compulsory labour.
This Bill will replace section 71 of the 2009 Act but I believe there is a further and somewhat different menace that needs our attention. New clause 4 comes close to identifying it, which is why I have put my name to it. I am not sure that I can follow Diana Johnson into the Lobby if she does force a Division on the new clause, and I suppose I am being somewhat disingenuous as I am using the new clause as a peg to talk about this further and different menace.
I want to urge upon the Government a few thoughts of my own on the subject of exploitation of vulnerable people. We have laws to protect children and those under a mental incapacity through intellectual impairment or disability or the effects of old age. We can prosecute those who take old and frail people's money through fraud and deception, but we leave unprotected adults who may succumb to pressure exerted upon them by others of malevolent intent but whose exploitative activities currently do not come within the criminal law.
I have in mind some young adult women whose experiences have been brought to my attention by their parents and families, some of whom have contacted other right hon. and hon. Members. In essence they have been brainwashed—I use the term unscientifically—or suborned by quack counsellors who have persuaded them to break off all contact with their parents and siblings and to pay them fees for the so-called counselling. Some of these young women are well-off and, I assume, suggestible but all of them for no apparent reason have broken off all contact with their families.
France and Belgium now have laws to criminalise the behaviour of these predatory charlatans—these quacks—who exploit others in a state of emotional or psychological weakness for financial or other gain. It must be assumed that these laws do not conflict with those articles of the ECHR that protect the rights to private and family life, to freedom of expression and to association or religion.
France has made it an offence to abuse the ignorance or state of weakness of a minor or of a person whose particular vulnerability due to age, sickness, infirmity to a psychological or physical disability or to pregnancy is apparent or known to the offender, or to abuse a person in a state of physical or psychological dependency resulting from serious or repeated pressure or from techniques used to affect his judgement in order to induce the minor or other person to act or abstain from acting in any way seriously harmful to him. That is punishable by three years’ imprisonment and a fine of up to €375,000. Where the offence is committed by the legal or de facto manager of a group that carries out activities, the aim or effect of which is to create, maintain or exploit the psychological or physical dependency of those who participate in them, the penalty is increased to five years’ imprisonment and to a fine of €750,000. I hope the House will forgive my somewhat inadequate translation of the French into English. But that is what the law says in France.
I accept that to create a new law as outlined by new clause 4 will not be easy but that is not a good reason not to try if the idea is a sound one. I can see that this short debate is not the best place to do this, but may I set out one way of considering whether any proposed offence will work by looking at the following questions? Is it prosecutable in theory and in practice? Can each of the elements of the offence be proved in a real life example? Does the measure deal with the mischief that is identified, and will it catch no one else? How will it affect partners, husbands, wives, teachers, gurus, salesmen, priests and employers, all of whom are likely to have power and influence? Will it allow the mentally capable who decide to give their fortunes away and leave their families to do so? Will it make sufficiently clear what is criminal behaviour and what is not? Will it comply with the European convention on human rights? What effect will it have on religious freedom or freedom of expression or association? That is unquestionably where we shall encounter the greatest controversy, because I suspect that it will not be enough to say that the measure does not outlaw any particular doctrine. If it is used to curtail a religious practice, freedom of religion will clearly be affected.
I have attempted to break the potential offence into a number of component parts or elements so that we can—or, I hope, the Home Office can—better construct the offence that is proposed in the new clause. I wish to criminalise behaviour that is characterised by four factors. The first is persistent or repeated pressure on a person. We shall need to be more specific about what constitutes pressure, and about the techniques employed. We shall also need to consider such questions as whether someone has a pre-existing weakness that can be exploited, or is of ordinary firmness but then becomes enfeebled or vulnerable by virtue of the exploitative pressure. The French law which I mentioned earlier specifies two offences: fraudulently taking advantage of someone who is already weak, and pressurising someone who thereby becomes weak.
The second factor that we should consider is the intention of a person that causes another person to act to his or her own detriment. Should it be financial detriment, emotional detriment, social or family detriment, or any other kind of detriment?
Thirdly, we need to consider whether the activity concerned must take place in the context of a group that engages in behaviour of this kind. Under French law, if the leader or manager of a group is found guilty, that constitutes an aggravating factor, and the penalties are increased. In France, the law is aimed unashamedly at cults and sects. Perhaps, if the Minister is prepared to think about this form of exploitation, she should think about that as well. We also need to think more widely about, for instance, exploitative jihadist groups that suborn and seduce young people into going around the world to cause trouble for others and, indeed, for themselves.
I anticipate a difficulty. Once we move into the group element, we touch on the borders of religion. However, I think that we need to be brave, and to remind ourselves that there is a world of difference between a religion and an eccentric sect. If we do not include the group element, and allow one-to-one pressure alone to trigger the offence, we shall become involved in arguments about unequal domestic relationships, high-pressure selling or evangelists, and may fail to catch the charlatan counsellors whose activities have been brought to my attention.
Fourthly, we need to think about whether the offence will be complete only if the result of the pressure is that the person’s will is indeed suborned, and the person does indeed do something to his or her detriment.
For reasons of time alone, I have compressed my thoughts, and I have unashamedly borrowed the new clause for the purposes of this short debate. I hope that, once the Home Office has had a chance to digest what I have said in a rather garbled way this afternoon, it will think about it carefully. I think that the issue is of much wider interest than may now be apparent to the Minister. We have already discussed it informally, but I hope that she and her officials, and others in the Government—from the Home Secretary upwards and downwards—will give considerable further thought to it.
Order. I remind Members that, as a result of the timetable set by the Government, the debate on this group of amendments and new clauses must end at 4 pm, and I must allow time for the Minister to respond. I should be grateful if Members would bear that in mind when making their speeches.
I will indeed bear that in mind, Madam Deputy Speaker, and will speak briefly, although I think that the issues that I wish to raise are fairly substantial. While I agree with all who have congratulated the Members on both sides of the House who have brought us to this point, I think that there is still a lack of action on key issues, and that the Bill, as it stands, falls a long way short of providing justice for victims of slavery.
There are three core gaps in the Bill. First, we need to get the definitions right, which is the aim of my new clause 24. If we do not do that, we shall risk leaving open legal loopholes that will allow traffickers to thrive. Secondly, the Bill must deliver for victims, which is the aim of new clause 21. Thirdly, there are issues in relation to prevention, which I hope to address later in the debate around new clause 1.
The definition of human trafficking was established in an internationally binding treaty and was integrated into the national laws of some 134 countries. That definition brings with it significant victim protection and a comprehensive framework for addressing trafficking, which is why I propose that we return to that in new clause 24. Unlike the international definition of trafficking, the trafficking provision in this Bill does not criminalise the “harbouring” or the “reception” or the
“exchange or transfer of control” of victims or even the “recruitment” of victims where those acts do not involve the arrangement or facilitation of travel. We should recognise that there is a real problem in cases involving large criminal networks where different people take different roles in the trafficking process. There is also a problem where victims arrange their own travel into and around the UK and to the site of exploitation, as often occurs when individuals are deceived about work conditions or conditions deteriorate over time. The Bill’s definition, which is narrowly focused on the movement of victims, adds nothing but confusion and will let traffickers off the hook for the crimes they commit, as my hon. Friend Diana Johnson pointed out.
Let me turn briefly to the purpose of new clause 21. In its current form, it is hard to see what this Bill would provide for the 40 Hungarian men found last year living in squalid conditions and forced to work for less than £2 a day in a mattress factory in Dewsbury, west Yorkshire. The men were barely surviving on limited food. They were crammed into a two-bedroom flat and threatened with violence if they resisted. They were exploited by gangmasters who supplied their forced labour to a factory run by the bed manufacturer KozeeSleep, which provides its products to some of our major national retailers.
Those victims of human trafficking have a right to compensation for the appalling wrongs that have been inflicted upon them. Clauses 8 and 9 include provisions for reparation orders to be made in cases where the perpetrator is convicted and a confiscation order is made, but from 2011 to 2013 only 252 trafficking and forced labour cases were prosecuted, and just 78 of them—less than a third—resulted in convictions. Not only are conviction rates low, but compensation orders are rare. The Government do not keep statistics on this, but we know from victim support providers that they are few and far between. I have tabled new clause 21 to allow victims themselves to bring civil claims in the county court, to seek compensation directly from the trafficker—not from the public purse—in the many cases where a criminal prosecution has not been possible. A similar provision is currently in use in the US Trafficking Victims Protection Reauthorization Act 2003, and is frequently used successfully to secure compensation for trafficking victims.
These steps are essential to get a Bill that makes a difference to the lives of victims. We must get the very foundations of this Bill right by aligning our definitions with international law and, where people are exploited, making absolutely sure that they are compensated for the abuse suffered. I recognise that we may not get that through agreement on these amendments today, but I hope that these issues will be addressed when the Bill is debated in another place. These measures, together with real action on prevention, can make the difference between a Bill that will deliver headlines and a Bill that will deliver justice.
The official figures for this year showed that more people were trafficked for labour exploitation than for sexual exploitation. The crux of that is money, and new clause 20, which is supported by Mr Field and my right hon. Friend Sir John Randall, seeks to identify how we can make it easier to recover money from criminals and strike at the heart of what is driving this trafficking trade.
There are two reasons why at present we recover so little from this organised crime. According to the National Audit Office and the Public Accounts Committee, we currently recover just 23p in every £100 that is identified as criminal assets. That has two results. First, increased pressure is placed on law enforcement agencies when, at a time of austerity and many other demands, investment in forensic investigators is often not a priority. The second reason relates to the high hurdles relating to evidence, which create a disincentive for the Crown Prosecution Service to apply for restraint orders. If there is insufficient evidence, the CPS can incur costs through losing an application. The resulting delay in freezing assets often means that they can be difficult to trace and expensive to identify. The Joint Committee has looked at this matter.
The new clause seeks to make it easier to freeze assets within the first 24 or 48 hours. I know that my right hon. Friend the Member for Uxbridge and South Ruislip has spoken in the House previously on the merits of that, and of learning from the example in Italy. Amendment 151 seeks to achieve that in relation to the presumption about criminal assets being dissipated post-arrest. We need to give the police a clearer incentive to invest in forensic investigators. If I were a chief constable, why would I make such an investment this year if I knew that it would take several years to recover the money, and that if the money were recovered, the Home Office would take 50% of it? We need to change that. We need to overcome the objections of the Home Office and the Treasury so that those who carry out the investigations are those who benefit from the assets that are secured, once the victims have been compensated.
We also need to place a higher duty on financial advisers. At the moment—I say this having worked for such an institution—it is very easy to hide behind a suspicious activity report. In essence, that report is a defensive mechanism, and more than 350,000 are filed with the Serious Organised Crime Agency each year. At the point of an arrest following an investigation by financial investigators, a higher duty should be placed on financial institutions, should they then choose to move the assets in question. We should freeze any assets over and above those that are required for reasonable living and business costs, so that money can less easily be moved offshore. We should also require an asset declaration that could be used to demonstrate an aggravating factor, should assets that had not been declared be discovered following further investigation.
There is a suggestion from the Home Office that some of these issues will be addressed in the Serious Crime Bill, but it is clear that it will not address many of the matters that have been raised in the Joint Committee and by Members here today, so I hope that the Minister will look again at the extent to which the measures in this Bill that relate to the financial proceeds of crime can be strengthened so that we can tackle the root cause of the problem—namely, the funds.
I also wish to speak on that theme, Madam Deputy Speaker. I know you will be pleased to hear that we will not press the matter to a vote, but we hope that the Minister will pick up the idea and translate it into effect in the other place. The change involved would be quite simple. The whole House agrees that we want to get more money back from these evil people. At the moment, we can start the process of freezing assets on the day the investigation begins. However, we have to prove that the person with the assets is likely to dissipate them around the world. The proposed change would mean that any agency attempting to freeze assets under the provisions of this Bill—which I hope will soon become an Act—would not be required to meet any threshold of proof that the person would otherwise dissipate them. That would make a huge difference to the number of people we hope will be prosecuted, as they could then have their assets frozen. There would then be a ready source of moneys with which the Government could make good on their wish to compensate the victims of slavery. Also, as my hon. Friend Stephen Barclay —as I call him on many of these occasions—has pointed out, those moneys could be used to help to pay for the policing involved, which would make the provisions of the Proceeds of Crime Act 2002 more effective.
I rise to commend my hon. Friend Stephen Barclay, particularly for his new clause 20, which I support. Many have said that we need to follow the money, but we also need to recover it and ensure that it gets to the right places, not least law enforcement agencies. I am aware from previous discussions about proceeds of crime that it becomes a territorial issue, not least within the
Government. It is important, and it is very much in the Minister’s and Department’s self-interest, to ensure that the money is recovered and that it goes where we want it to in law enforcement. So I very much commend the purpose of the new clause.
I will speak briefly to amendments 132, 133 and 134, continuing the debate we had in Committee about the importance of recognising and prosecuting exploitation, whether or not a person has been trafficked, and where the form of exploitation cannot be construed as slavery, servitude or forced labour. I will not go over old ground. I am grateful for the Minister’s letter following the debate, where she sought to reassure the Committee that such situations are covered by the definition of “forced labour” in European Court of Human Rights case law and the Court’s understanding of that as “all work or service.” My concern is that we should not just rely on European jurisprudence and we need to take the opportunity to have clarity in the Bill, not least for front-line officers, who are trying to use all the tools in the box. We will have the guidance that the Minister says is going to come, but we need greater clarity on the wider understanding of “exploitation”.
The Minister also provided reassurance by saying that situations of begging, benefit fraud and petty criminality can be covered by prosecution for other offences. I hear that, but I have concerns relating to those other offences, not least those involving assisting or encouraging another offence, for example, begging or theft. That would mean that to prosecute exploitation we would be relying on construing the victim not as a victim, but as an offender, aided or encouraged by their exploiter. We recognise that the victims are the victims, and we need to ensure that “exploitation” covers the entire range of modern day slavery. Further work can be done on that, perhaps in the other place. She also said that other penalties can be attracted, but I am not convinced that they are sufficient, given the nature of these offences. So I ask for further consideration of a wider construction of “exploitation”. We also need to ensure, as my proposal seeks to do, that that construction covers the nasty exploitation of children. We have the definition of exploitation in clauses 3(5) and 3(6) and this is about widening the construction in the way that the Minister and all of us want, particularly in relation to children.
Finally, I wish to flag up the issue of consent. That is a live issue, where work still needs to be done. We all agree on the law; the issue is whether it should be explicit in the Bill, avoiding the Minister’s concerns about it getting in the way of prosecution and about relying on evidence where consent is an issue, but making it clear that what we all say—
I thank the hon. Lady very much. I am sure we can find a way of putting in the Bill our understanding that consent is irrelevant here, particularly in relation to children. As for what is in case law, let us get a form of words in the Bill that ensures that we increase the prosecutions for slavery, particularly in relation to children.
Diana Johnson referred to my amendment 138, which is mainly what I wish to address. However, I fully endorse what Mr Burrowes said about the amendments standing in his name and the wider issue of consent, which is also touched upon in amendment 143.
Amendment 138 aims to make good a clear deficit in the Government’s provision in the Bill for a statutory defence. That defence is inadequate and certainly is not fit to deal with the position of children. The amendment seeks to change that so that child victims of trafficking would be fully protected. Clearly, children have already suffered if they are detained in the process, and if they find themselves subject to a prosecution or even the speculation about a prosecution. That becomes traumatic for children who have come through trafficking, slavery or exploitation, as it would for any victim. So it would be wrong to have a requirement that children have to show that there was compulsion—that should not exist in law. The presence of any other means including compulsion should be irrelevant when defining a child as a victim of trafficking or exploitation. Children in such a situation will be frightened, confused and traumatised. They should not face further isolation and distress and all the other psychological pressures as they go through what will be to them a fairly unknown process.
Despite the Crown Prosecution Service guidelines, children are still prosecuted. It should be an imperative for us in this legislation to stop that from occurring in the future, and this Bill provides us with an opportunity to do that.
I point out to the Minister that in July the UN Committee on the Rights of the Child urged the Government, in relation to trafficked children and to all children covered by the optional protocol on the sale of children, to establish
“a clear obligation of non-prosecution in the criminal justice system and ensuring that [children] are treated as victims rather than criminals by law enforcement and judicial authorities.”
Basically, that is what amendment 138 tries to do; it tries to bring the Bill up to that standard. However, I recognise that there is the wrinkle in relation to schedule 3, and for that reason amendment 138 addresses a very important issue that needs to be considered further. I will not be pressing the matter to a Division, because, as the hon. Member for Kingston upon Hull North has said, there is an outstanding issue in connection with it.
I am grateful to all Members for tabling and speaking to a number of amendments that relate to the offences set out in clauses 1 and 2, the ability to seize the assets of those convicted of offences and the defence for victims who are compelled to commit an offence, as outlined in clause 41.
We had a thorough, detailed and lively debate on the offences and their practical application in Committee. I am extremely grateful to all Members of this House and others who have contributed to the debates on the offences and have made their thoughts known to the Government to enable us to continue our thinking.
I made it clear in Committee that the Government’s approach is to consolidate and simplify existing offences into a single Act, which will make it easier for law enforcers to understand. We want to see clear offences that can be used effectively by prosecutors and others to convict serious criminals who will now face a potential life sentence.
The offences in the Bill deliberately tackle serious criminal conduct that can be said to amount to modern slavery. Given the time available and the amount of discussion that we have had, I want to put it on the record at this stage that the Government continue to listen to all points that are made on this matter. We want to ensure that we reflect the concerns that have been raised and that we have clear and simple offences that achieve the convictions that we all want. Members should remember that we are looking here at international conventions and protocols that are written in civil law, which is a different type of law. Putting them straight into UK common law sometimes creates unintended consequences, and I am keen to ensure that we do not do that.
Clause 1 targets those who hold a person in slavery or servitude or who require another person to perform forced or compulsory labour in this country, without any requirements for movement. The clause 2 offence targets a different type of wrongdoing, which is the movement of human beings with a view to exploiting them. That different type of wrongdoing has been the subject of international legal instruments such as the Palermo protocol and the EU directive. That is fully justified because we know that there is an international and national trade in human beings. It is right that we have a separate offence targeting those involved in the movement of people to be exploited, and that is what this offence achieves.
These measures are part of a wider strategy to improve the law enforcement response to modern slavery, and to increase the number of successful prosecutions. Let me highlight at the start of this debate that there is no magic bullet by which we can transform the situation simply by amending the technical definition of the offences. The Committee heard from the Director of Public Prosecutions that the offences set out in this Bill are clear and welcome. However, the issue is often not the definition of the offence, but getting the evidence required for a conviction, which is a point that was made by my right hon. Friend Sir John Randall.
I want to touch on the Kinsella case, which the shadow Minister raised. We discussed a number of cases in Committee. It is important to put it on the record that the offenders in that case were convicted of false imprisonment, and that offence carries a maximum of a life sentence, whereas under the current law, slavery carries a maximum of only 14 years. It is completely understandable that those offenders faced the criminal charge conveying the highest possible penalty, but this Bill will ensure that slavery and trafficking offences carry a maximum sentence of life imprisonment, and I want to see those offences used in prosecutions in the future. So the solution to obtaining more prosecutions is better work by law enforcement, better support for victims and witnesses, and clear offences with the more severe penalties set out by this Bill.
New clauses 3 and 4 and the amendments seek in different ways to widen the scope of the offences to create a new criminal offence of exploitation, which will carry a life sentence. I fully understand why right hon. and hon. Members have tabled such amendments. I share the concern to ensure that this Bill criminalises modern slavery effectively. The wider criminal law needs to tackle exploitation that should properly be criminal but might fall short of the conduct required for the serious offences in this Bill.
I know that we debated this issue at length in Committee and I continue to look seriously at where there may be any gaps in the legislation. I have been absolutely clear throughout that our approach to offences is to take seriously how they will work in practice. For example, we have taken advice from the Director of Public Prosecutions. The director gave evidence in Committee that
“We much prefer the clarity of the offences in the Bill as drafted by the Government.”––Official Report, Modern Slavery Public Bill Committee,
rather than the more complicated and confusing alternative presented by the pre-legislative scrutiny Committee, which included exploitation and child exploitation offences.
Introducing exploitation offences would risk causing confusion. “Exploitation” is potentially a very broad term, and there is a real risk that we would capture much wider behaviour than was ever intended in this Bill, which focuses rightly on the very serious crimes of slavery and human trafficking. The risk is that, by making the offences too broad, the public will no longer be clear on the conduct that we are targeting through very serious criminal offences that carry a life sentence as a maximum. And the effect of the Bill on law enforcement will be diluted, as the conduct we are targeting will be less clear and so will law enforcement’s focus on the victims of serious crime. It is only right and proper that, where we are dealing with less serious conduct, we prosecute those responsible using less serious offences.
A second issue raised by new clauses 3 and 4 is whether separate child offences are needed in this Bill. In some circumstances, child offences are helpful to enable a tougher sentence to be given to criminals who target and abuse children. This Bill introduces a maximum of a life sentence for the main offences in relation to slavery and human trafficking and current sentencing guidelines already highlight offences against children as an aggravating factor for sentencing purposes. There is no practical benefit in establishing a separate child-specific offence when offenders already face the maximum penalty possible—life. That is why there is no need for a separate child murder offence.
The Director of Public Prosecutions gave clear evidence to the Committee that
“If you separated out offences into adults and children, it would make it more complicated because we know from the number of cases we prosecute that defining and identifying someone’s age is often extremely difficult…There is absolutely no need for it to be separated out; that would make it more complicated and more difficult to prosecute some of these offences.”––[Official Report, Modern Slavery Public Bill Committee,
So I do not believe that a separate child offence would help to deliver the objectives of the House.
Amendments 135, 136, and 143 seek to remove any requirement for consent to be considered by the court when looking at clause 1. While I do not favour the wording of the amendments tabled today, which could make prosecution harder, I want to be clear that the Government are open to clarifying this aspect of the offences. We have already altered the Bill following pre-legislative scrutiny to make it clear that the court could look at all the circumstances when determining whether an offence had taken place, including any vulnerability of the victim. I am now seriously considering the issue of consent in clause 1 and whether the law could be clarified to make it clearer that consent does not preclude a determination that a child is being held in slavery or servitude or required to perform forced or compulsory labour.
Turning to the trafficking offence, the pre-legislative scrutiny Committee also raised a concern that the offence in the draft Bill might not be as broad as the international definition, for example on receipt or harbouring of the victim. We responded and made it clear in the Bill that arranging or facilitating the travel of another person includes all of the ways through which human trafficking may be committed, as set out in the Palermo protocol and EU Directive. So a person may arrange or facilitate travel by recruiting, transporting, transferring, harbouring or receiving, or transferring or exchanging control over a person—words reflecting those used in the international instruments.
In Committee, we debated whether there should be a requirement for travel in the offence. Those instruments are explicitly concerned with “human trafficking”. The evil that we are trying to tackle is trafficking, and clearly trafficking involves movement or travel of the victim.
On asset recovery, I am grateful to my hon. Friend Stephen Barclay and Mr Field for raising the important issue of asset recovery in relation to modern slavery offences. We have amended the definitions of modern slavery offences to make them lifestyle offences for the purposes of the Proceeds of Crime Act 2002 and introduced a reparation order, but we are seeking through the Serious Crime Bill to look at a number of other measures that would tighten up asset recovery overall. I hope that my hon. Friend and the right hon. Gentleman will allow us to have that debate when the Serious Crime Bill reaches this place.
The provisions of the Proceeds of Crime Act are already tougher—
Debate interrupted (Programme Order, this day).