Committee (6th Day)(Continued)

Coroners and Justice Bill – in the House of Lords at 4:30 pm on 9th July 2009.

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Amendment 178

Moved by Lord Lester of Herne Hill

178: After Clause 61, insert the following new Clause—

"Abolition of offence of seditious libel

(1) The offences of sedition and seditious libel under the common law of England and Wales are abolished.

(2) In the Criminal Libel Act 1819 (60 Geo. & 1 Geo. 4 c. 8) section 1 (orders for seizure of copies of seditious libel) and section 2 (disposal of seized copies) are omitted.

(3) Subsection (2) extends to England and Wales only."

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 4:47 pm, 9th July 2009

In moving Amendment 178 I shall speak also to Amendment 179 with which it has been grouped. I declare an interest as honorary vice-president of English PEN, a council member of Justice which, together with the Index on Censorship, Article 19, Liberty and the National Union of Journalists, brought forward these amendments. I pay tribute to my colleague Dr Evan Harris, the MP for Oxford West and Abingdon, who introduced the amendments in the other place.

It is my understanding that the right honourable Jack Straw, the Lord Chancellor and Secretary of State for Justice, agrees that there is no basis for keeping the laws of seditious libel and criminal defamation on the statute book and that there would be a benefit in setting an example to oppressive regimes which use similar offences to silence dissent by repealing them. We hope that the Minister will support us.

I shall give a little background to this. The common law of seditious libel prohibits all writings and other utterances which tend to bring about hatred or contempt for the king, the Government or the constitution as by law established. Sedition consists of any act done or word spoken or written and published which has a seditious tendency, and done or spoken or written and published with a seditious intent.

In 1792, Thomas Paine was convicted for seditious libel on the ground that the Rights of Man brought into hatred and contempt the present sovereign, the king and the Parliament and this kingdom, and the constitution, laws and government thereof. In the Satanic Verses case, in which I appeared for Salman Rushdie's publishers, Viking Penguin, an attempt was made to persuade the Divisional Court to do to Salman Rushdie what was done to the publisher of Tom Paine's seditious writings. Happily, it failed.

Sedition was used in British India and elsewhere in the British Empire to suppress and punish political dissent. The most notorious examples were the trials of the Indian nationalist teacher, social reformer and independence fighter, Bal Gangadhar Tilak, convicted and imprisoned for 18 months in 1897 for publishing an article alleged to have been an attempt to bring the Government into hatred and contempt. Tilak was convicted and imprisoned again for sedition at a historic trial in 1908. His last words on the jury's verdict were:

"I maintain that I am innocent. There are higher powers that rule the destiny of men and nations and it may be the will of providence that the cause which I represent may prosper more by my suffering than my remaining free".

Tilak spent six years in the Mandalay prison in Burma and, like Gandhi, shaped the future of India's independence movement.

In one of his great works, Make No Law, Anthony Lewis, the Pulitzer prize-winning journalist and historian of free speech, recalled the history of President John Adams's Sedition Act 1798 which echoed our common law. It made it an offence to,

"write, print, utter or publish ... any false and malicious writing or writings against the government of the United States, or either House of the Congress ... or the President ... with intent to defame ... or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of them, the hatred of the good people of the United States".

The Sedition Act aroused the opposition of Jefferson and Madison. The Virginia Resolutions protested that the Act,

"ought to produce universal alarm, because it is levelled against the right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed the only effectual guardian of every other right".

It gave Madison's view that the American system was "altogether different" from the British system,

"because the people, not the government, possess the absolute sovereignty".

Earlier, Madison said in the House that,

"the censorial power is in the people over the Government, and not in the Government over the people".

In 1963, in the landmark case of the New York Times v Sullivan, the American Supreme Court, led by Justice Brennan, decided that the First Amendment protected free speech and had to be read as Madison read it, and held as unconstitutional an Act of Congress that had expired 163 years before, as well as rejecting it for use in libel law. In Justice Brennan's words:

"What a State may not constitutionally bring about by means of criminal statute is likewise beyond the reach of its civil law of libel. The fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute".

In this country, there have been few efforts in the past century to invoke sedition in our courts. Sedition was used to convict Aldred in 1909 for seditiously printing in the Indian Sociologist an article advocating Indian independence published by Indian students in Britain. It stated that political assassination was not murder and glorified an Indian student who had killed Sir Curzon Wylie as a martyr for Indian rule.

In 1947, the conviction failed to convict James Caunt, the publisher of the Morecambe and Heysham Visitor for writing and publishing a seditious libel concerning Jews. That failure led to the enactment of the first law against racial incitement, Section 6 of the Race Relations Act 1965, which was strengthened in 1968. More recently in the Salman Rushdie case, there was an attempt to punish him and the publishers of the novel Satanic Verses for sedition as well as blasphemy.

Given its uncertain bounds, it is not surprising, as Sir David Williams QC has observed, that the corollary of its decline has been the readiness of Parliament to intervene by statute to combat particular manifestations of what might have been covered by the common law offence.

The Public Order Act has been used repeatedly to add a series of hate-speech crimes, one of which we have just debated—incitement to racial and religious hatred, homophobic hate speech and so on. There are new terrorist offences as well, including that of glorifying terrorism. They amply cover the manifestations covered by this archaic offence.

More than 30 years ago, in 1977, our Law Commission expressed its view that the common law offence of sedition was ill defined and unnecessary. Then, in 2007, the New Zealand Law Commission, whose president was Sir Geoffrey Palmer, the former Prime Minister and distinguished jurist, published a report entitled Reforming the Law of Sedition. Sir Geoffrey explained in his letter to the Minister that the commission had concluded that the width of the offences meant that they were,

"an unjustifiable breach of the right of freedom of expression. Furthermore, the linguistic over-inclusiveness of sedition means the offences lack clarity. They have the potential for misuse. Indeed, they have been inappropriately used in New Zealand in times of political unrest and perceived threats to established authority. They have been used to fetter vehement and unpopular political speech. The time has come to remove the seditious offences from the New Zealand statute book. We recommend repeal".

His letter concluded,

"In a free and democratic society, defaming the government is the right of every citizen. In times beset with threats of terrorism we should not close the open society. To do so would only encourage its enemies. In New Zealand, free speech and public debate must be 'uninhibited, robust and wide open', and it may include 'vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials', as Justice Brennan of the United States Supreme Court once put it".

Sedition was abolished in New Zealand in 2007 by the Crimes (Repeal of Seditious Offences) Amendment Act, and criminal libel, which I will come to, was abolished in 1992 in the Defamation Act. The same is surely as true of our country as it is of New Zealand and the United States. This House has a fine record of protecting freedom of expression, notably by drawing the sting of the offence of incitement to religious hatred and in deciding to abolish the close relative of seditious libel, also developed in the Court of Star Chamber, the common law offence of blasphemous libel.

There is one further important reason for repealing these offences. Across Europe and the Commonwealth, similar offences exist and are used to suppress political criticism and dissent. If our Parliament takes this step, it will be an example elsewhere and might also encourage the European Court of Human Rights to adopt a robust position in reviewing such laws and their operation.

I turn to Amendment 179 on the related subject of criminal libel. I shall take this as briefly as possible. Criminal libel, like seditious libel, is an archaic and outdated offence that unduly restricts free speech. It is all set out in the textbook Gatley on Libel and Slander, and I shall deal with the bare bones of it. The publication of written defamatory words is a common law misdemeanour in England and Wales, punishable on indictment with a fine or imprisonment. The publication of a libel known to be false is a separate statutory offence under Section 4 of the Libel Act 1843, which Amendment 179 would also repeal. Oral defamation is not a crime except for reading aloud a written libel and, by the Theatres Act 1968, for the publication of defamatory words in the course of a play.

What, then, are the differences between the crime of libel and the tort of civil defamation? Broadly speaking, the publications that are the subject of civil and criminal libel are the same. There are some circumstances in which a communication can amount exclusively to criminal libel, and the opposite is also true. When the offence of criminal libel was developed by the Court of Star Chamber early in the 17th century, the rationale was the need to protect social order. Its object was to prevent public disorder through violent retaliation and duelling. More trivial matters were left to be dealt with as civil matters.

These days, however, it need not be shown that criminal libel is likely to disturb the peace or provoke a breach of the peace, so the original rationale no longer applies. I shall not trouble your Lordships with the differences in any detail, but, in the past six decades, the number of trials for criminal libel has fallen sharply. There were four prosecutions from 1948 to 1975. Between 1970 and 1983, there were five committals for trial; between 1984 and 1995, 13 people were found guilty or cautioned; between 1996 and 2001, five were found guilty or cautioned. Five libels were reported to the police from 2002 to 2007. Two were found guilty up to the end of 2006.

In 1985, the Law Commission published a report, concluding that criminal libel should be replaced by limited statutory offences. None of the Law Commission's proposals has been implemented. Since 1985, it has become clear that, because of the rare prosecution of the crime and the lack of any determination to modernise it, it would be better simply to abolish it. This proposal was endorsed by the Calcutt committee and the Supreme Court Procedure Committee's report on practice and procedure in defamation. Gatley notes that, even if there were to be a new offence on the lines originally proposed by the Law Commission, it would still, according to the Privy Council in the Hector case, amount to a,

"grave impediment to the freedom of the press if those who print, or a fortiori those who distribute matter reflecting critically on the subject of public authorities could only do so with impunity, if they could first verify the accuracy of all statements on which the criticism is based".

Other common law jurisdictions have undertaken the reform. Criminal libel is not an offence in Scotland, and it was abolished, as I have said, in New Zealand in 1992 after two controversial cases. The offence survives in Northern Ireland, although there is only one recorded case within living memory. In Canada, the Canadian Law Reform Commission has called for its abolition, and it has been criticised by the judiciary there following the guarantee of freedom of expression in the Canadian charter of rights. The common law version of criminal libel has been largely curtailed in the United States, where concerns have been expressed about the inherent vagueness and breadth of the crime and its compatibility with the First Amendment's demand for free speech. It has been generally accepted that there remains little constitutional vitality to criminal laws.

The New Zealand committee on defamation took account of five reasons for a criminal law of defamation being undesirable. They were: first, conduct ought not to be criminal unless it is the cause or potential cause of significant harm to society or the individual citizen; secondly, the criminal law should not be invoked for trivial problems; thirdly, the limited resources available for control of crime are better directed to serious crime against the person, his property or the maintaining of peace; fourthly, the criminal law has traditionally proscribed serious anti-social activity—except in so far as defamation could lead to a breach of the peace, it is not protecting society but the narrower, individual interest in reputation; and, fifthly, it inhibits freedom of speech and public criticism. That was the view of the New Zealand commission, which was then translated into practice by its Parliament.

One of the major problems with criminal defamation is the possibility of a harsh sanction: up to a year in prison or two years and an unlimited fine where it is proved that the defendant knew the matter published to be false. The threat of such penalties has a severe chilling effect on the right to free speech. The UN special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media and the OAS special rapporteur for freedom of expression have all called on states to repeal all criminal defamation laws in favour of civil defamation laws. Similarly, the UN Human Rights Committee has repeatedly expressed concern about the use of custodial sanctions for defamation.

It is well established under human rights law that the guarantee of free speech requires states to use the least restrictive effective remedy to secure the legitimate aim sought. Our civil defamation laws provide adequate protection—some would say too adequate—for defamation.

The original justification for criminal defamation, the need to protect public order, no longer stands. There are other adequate criminal offences, such as the harassment provisions in the Public Order Act, which draw a fair balance between protecting individuals and the right to free speech. Like the international human rights experts, the editors of Gatley are unenthusiastic about any need to retain the outmoded common law offence of criminal libel. I respectfully suggest that we follow the example of New Zealand and elsewhere and set an example to the rest of the world by laying it, as well as seditious libel, to rest. I beg to move.

Photo of Baroness D'Souza Baroness D'Souza Crossbench 5:00 pm, 9th July 2009

I can add only a few stray details to the full and excellent history that has been given by the noble Lord, Lord Lester of Herne Hill. We know that seditious libel is an ancient crime, which I believe was last used in the UK in 1947. We also know from the noble Lord's history that it was extensively used in the past to silence radical protest. So one may ask why I strongly support this amendment in the names of the noble Lord, Lord Lester, and others. Is it not redundant and not a very good use of your Lordships' time? The reason is, to put it simply, that laws on the statute book exist as hostages to fortune; they can be dredged up and used to restrict entirely legitimate speech.

In the post-World War II years, the efforts have been to have the right to be free from invidious discrimination on the grounds of race, gender or religious belief. In this, the right to freedom of expression has been implicit. Seditious libel, helpfully defined as,

"speech intended to stir up tumult and disorder for the purpose of disturbing constitutional authority", could well have been an alternative route to deny entry to the UK of Mr Geert Wilders in February this year. As it happened, his failure to enter the UK was cited as due to a significant risk that his,

"presence in the UK would threaten community harmony and therefore public security".

I regret to say that it is by no means inconceivable that the seditious libel law could easily be resuscitated in the present climate of wide-ranging anti-terrorism legislation. Once again, we can look to US courts' rulings on seditious libel and find that as recently as 1989 and 1990 the Supreme Court held that the first amendment protects the right to defile the United States flag to express political protest. It was, as one may imagine, a deeply unpopular ruling, but to my mind a welcome one. The power to express forcefully political discontent is the cornerstone of democracy and lies with the people. Conversely, it is not therefore in the power of government to criminalise this expression. The fundamental rights of UK individuals would be better protected by removing the offence of seditious libel from the statute book.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I find myself in agreeable consonance with the noble Lord, Lord Lester of Herne Hill, and the noble Baroness, Lady D'Souza. I have been influenced in reaching this view by reading the Law Commission's reports on both these matters: the offences of seditious libel and criminal libel.

It is worth reminding the Committee that the offence of seditious libel is a common law offence and, in so far as it is capable of specific definition, it is said by the Law Commission to be the,

"oral or written publication of words with a seditious intention", and,

"an agreement to further a seditious intention by doing any act".

The Law Commission goes on to quote Sir John Stephen, at Article 114 of Stephen's Digest of the Criminal Law. He seeks to address the definition of a seditious intention and deals with it in the following way:

"A seditious intention is an intention to bring into hatred or contempt, or to excite disaffection against the person of His Majesty, his heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite His Majesty's subjects to attempt otherwise than by lawful means the alteration of any matter in church or state by law established, or to incite any person to commit any crime of disturbance of the peace, or to raise discontent or disaffection amongst His Majesty's subjects, or to promote feelings of ill will and hostility between different classes of such subjects".

On the face of it, therefore, the offence is pretty broad.

However, as the Law Commission goes on to remind us, it has to be proved that in committing this offence there was an intention to cause violence. In defining an intention to cause violence, the Law Commission relies particularly on a Canadian case called Boucher, which concerned a pamphlet issued by a group of Jehovah's Witnesses attacking the police, public officials and the Roman Catholic clergy on the grounds that they persecuted members of the sect and alleging that the clergy unjustifiably influenced the courts and the administration of justice against them. The court in that case held that,

"the seditious intention upon which a prosecution for the seditious libel must be founded is an intention to incite violence or to create public disturbance or disorder against His Majesty or the institutions of Government. Proof of an intention to promote feelings of ill-will and hostility between different classes of subjects does not alone establish a seditious intention. Not only must there be proof of incitement to violence in this connection, but it must be violence or defiance for the purpose of disturbing constituted authority".

As the Law Commission went on to say in its report and as the noble Lord, Lord Lester, has underlined, the definition of the intention to cause violence is amply covered by a range of offences already on our statute book with respect to incitement or conspiracy to cause violence in the context of the law against inflicting injury on a person or property—or indeed, the law relating to public order disturbances. In other words, there is nothing in the definition of seditious libel that is not covered by other law.

When it came to removing the offence of blasphemy from our statute book last year, I voted against doing so because I believed that the Christian culture that was encapsulated in the offence of blasphemy had an important historical resonance for our constitution. I feel no such emotion in respect of the offence of seditious libel. Therefore, I am most happy to support the promoters of the amendment. I have nothing to add to what the noble Lord, Lord Lester, or the noble Baroness, Lady D'Souza, said about the offence of criminal libel, but I am equally happy to see it struck from our criminal law.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General

We on these Benches support the amendment in the name of my noble friend. It is interesting that, having gone through the lengthy debate on the last amendment, we should be here promoting freedom of speech as the touchstone of democracy, which undoubtedly it is. The ability of individuals to criticise the state is crucial to maintaining freedom. In this day and age, when we have so many journalists, bloggers and so forth who give us their views all the time, we should get rid of anything that may in any way curb their criticisms of the state. We need a vigorous culture of free speech in order to keep government up to the mark.

It is not just the use of these laws but the threat that they might be used that has a chilling effect. Even Peter Hain, in his Young Liberal days in 1974, when he was a bit of a protester—as those who are following the Test in Cardiff at the moment may remember—was threatened with imprisonment for criminal libel. It has been used in this country to intimidate writers and campaigners without any prosecution ever having taken place.

Of course, the laws of seditious and criminal libel are very active in other countries. Some of them look at us and say, "You have them, so why shouldn't we have them? It is up to us whether we should use them". Turkey, which is applying to become a member of the European Union, presents our laws as a reason for retaining its notorious Article 301, which forbids denigrating Turkishness. The murdered journalist Hrant Dink and the Nobel Prize winner Orhan Pamuk were prosecuted under that provision.

Elsewhere, Iran, has a poor record. Uzbekistan has prosecuted many—one in particular in 2006. Saidjahon Zaynobiddinov—I am sure that your Lordships will forgive my Uzbek accent—was prosecuted and sentenced to seven years' imprisonment for defamation and anti-government activities. What had he done? He had provided the international media with eyewitness accounts of the Andijan massacre in 2005. We can see how, in the absence of a free press and the freedom to criticise, liberties can be curtailed.

If Britain is seen as a beacon of parliamentary democracy, even after the Governments that we have had in recent years, the laws created here have a profound influence. It is time that these antique and out-of-date laws were repealed.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I can be brief. As the noble Lord, Lord Lester, explained, the amendments would abolish the common law offences of sedition and defamatory forms of criminal libel. The Committee will be grateful to him for his explanation of his amendments. We have listened carefully to this short debate. From what we have heard, there seems to be a broad consensus that these are arcane offences that no longer have a place in our legal system. They stem from a bygone age when freedom of expression was not seen as the right that it is today. We agree.

As the noble Lord, Lord Lester, said, any behaviour that should remain criminal is amply covered by other, more modern offences. The noble Lord, Lord Kingsland, made the same point. Taking the initiative to abolish those offences would be a positive step in helping this country, the United Kingdom, to take a lead in challenging similar laws in other countries, where they are used to suppress free speech. The noble Lord, Lord Thomas of Gresford, referred to that.

The Government are content to accept the amendments in principle. If the noble Lord, Lord Lester, is kind enough to withdraw them today, I can undertake to propose similar amendments in time for Report. Those amendments would, among other things, extend abolition of the offences to Northern Ireland and pick up some consequential amendments and repeals to various linked statutory provisions. We also intend to take the opportunity to abolish the obsolete offence of obscene libel. I hope that noble Lords will see this in some small way, especially after our earlier debate, as proof—if proof were needed—that the Government are in favour of freedom of speech.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 5:15 pm, 9th July 2009

First, let me say how grateful I am to everyone who has spoken. Secondly, this is something of a family reunion, after the quarrel that we had just before on another free speech issue. We have now come together from all sides of the family in this House.

Thirdly, I cannot resist saying that there is something hilariously ironic about this debate, compared with what is happening across the Irish Sea at the moment. In the De Valera written constitution of 1937, there is an unfortunate passage that states something about the need for seditious libel and blasphemous libel to be preserved. The Supreme Court of Ireland held that, because it protected only the Anglican faith and was too vague, there was no crime of blasphemy in Ireland. The Attorney-General of the Irish Republic has now apparently advised the Irish Government that, in order to comply with the written constitution, he must invent a new crime of blasphemous libel, including sedition; otherwise, he will have to have a referendum to amend the constitution. The Minister has said that, although the new crime will be unenforceable, he has to introduce it because of the constitution. As we on this side of the Irish Sea are clearing away the relics of the Star Chamber, by that curious route across the Irish Sea the Star Chamber is coming back into force for the moment. Therefore, what we do today and what will be done hereafter will be read with great interest by those who care for free speech, not only across the rest of the world but also in our close ally, the Irish Republic.

I am very grateful to the Government as well as to the Opposition for the way in which they have considered this. It is very good that we are giving effect to two Law Commission reports at long last. Of course, the way in which we do it is a matter that the Government and their advisers will deal with at the next stage. I therefore beg leave to withdraw the amendment.

Amendment 178 withdrawn.

Amendments 179 to 181 not moved.

Amendment 182

Moved by Baroness Young of Hornsey

182: After Clause 61, insert the following new Clause—

"CHAPTER 4Servitude and forced or compulsory labour

Servitude

(1) A person commits an offence if he or she holds another person in servitude.

(2) For the purposes of this section, a person (A) holds another person (B) in servitude if A severely restricts B's freedom of movement and choice of residence and subjects B to forced or compulsory labour.

(3) In this section, subjecting a person to forced or compulsory labour has the same meaning as in section (Forced or compulsory labour).

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for a term not exceeding 14 years."

Photo of Baroness Young of Hornsey Baroness Young of Hornsey Crossbench

I shall speak also to Amendment 183. We tend to think that we have seen the back of such things, but contemporary forms of forced servitude and forced labour—what some identify as modern-day slavery—continue throughout the world, including, sadly, in the UK. However, no one specific criminal offence deals with this issue. Although many of us are loath to introduce yet another new offence, it is important to recognise why these amendments are being proposed.

The necessity for these amendments arises largely from what is specifically a late 20th/early 21st century phenomenon; namely, the consequences of globalisation and the movement of peoples around the world. This modern form of oppression often involves young migrant women who are forced to work to pay off debts, whose passports are taken from them and who are physically and emotionally abused by their employer. Anti-Slavery International estimates that aside from the 5,000 people trafficked at any given time, hundreds of people in the UK today are being held in servitude or subjected to false or compulsory labour. The evidence contains recorded cases of domestic servitude as well as ad hoc cases from other industries. A study has been launched to try to discover the real figures.

Many of these people face physical and psychological abuse, including sexual abuse, are given no holidays and have their freedom of movement severely restricted. As I have said, none of us wants to create unnecessary legislation, but there is a real gap here. One might think that anti-trafficking criminal laws would apply. But while trafficking has been criminalised, that covers only the entry of people into the UK or subsequent travel in the UK. It does not apply where a person is subjected to forced labour conditions within the UK without having been trafficked.

Some common law offences may apply, such as false imprisonment. But that is particularly difficult to prove as the test for false imprisonment is so high. In fact, it is usually linked to kidnapping, which is rather different from the situation we are describing here. In many of these cases, the victim is not always physically prevented from leaving the workplace, but they are effectively prevented from doing so because of a myriad of reasons. For example, their passport may have be taken from them; they will be made homeless in a strange country if they leave and they may not know the language very well; they know that their family will suffer financial consequences if they leave; and they fear repercussions from their employer, the police or the immigration authorities and so on. In such circumstances, the common law offence of false imprisonment will not be effective.

The Human Rights Act 1998, in incorporating the European Convention on Human Rights, provides that no one is to be held in slavery or servitude and no one must be subjected to forced or compulsory labour. But the Act extends only to public authorities. In 2005, the European Court of Human Rights held that France was in breach of the European convention for not having criminalised servitude and forced labour, even though it had some other criminal offences which criminalised aspects of forced labour.

Liberty and Anti-Slavery International, which have very helpfully jointly provided information and briefings on this matter, have pointed out that the situation in the UK is almost identical to that in France, making it clear that the UK is highly likely to be in breach of the European convention. I quote from the independent legal advice given by Sir Ken Macdonald, a former Director of Public Prosecutions and Helen Mountfield of Matrix Chambers:

"In our view the existing criminal law offences pertaining to trafficking, the slave trade, false imprisonment and kidnapping are not apt to cover all offences of servitude. In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, clear, dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline".

Of course, aside from our legal obligations there is also a clear moral obligation to try to protect victims of such horrendous crimes. Liberty and Anti-Slavery International cite the case of Zari, who came to the UK as a domestic worker from east Africa with her employer. When her employer died, she was taken on by the employer's cousin. The cousin asked for her passport to renew her visa, but it was never returned to her. Zari had to work seven days a week with no time off or breaks. She was ostensibly paid £100 per week, but after deductions for food and board—which comprised a mattress on the kitchen floor—she had barely £40 left. She was not allowed out of the house unaccompanied; she was insulted, beaten and sexually abused by the employer's husband. She managed to run away and tried to complain to the police, but they did not pursue an investigation. Getting the police to prosecute those who forcibly hold people in this way seems to be extremely difficult—a situation which is not helped by the lack of a clear offence criminalising this specific conduct.

We had a very helpful meeting with the Minister last week. He and his team argued that existing laws cover the kind of maltreatment of which there is evidence. The problem is that in order to bring a successful prosecution for some of these offences, it is necessary to put together a package of charges, which the police are not always in a position to do because of the lack of a clear legal steer regarding the exact offences committed. Again, I refer to the legal briefing with which we were provided:

"In our view, there is no offence known to English law of subjecting another to servitude or forced labour which:

a. clearly criminalises imposition of forced labour or servitude, in all the circumstances in which Article 4 requires signatory states to provide a remedy; or b. is sufficiently clear and robust to have dissuasive effect".

This is why we feel it is essential that Parliament now makes it a criminal offence to hold another person in servitude or subject them to forced or compulsory labour, which the proposed amendments seek to do.

The first amendment would make it a criminal offence—punishable by up to 14 years' imprisonment, which is the same penalty as exists for trafficking—to hold someone in servitude. This requires that a person subjects another to forced labour and severely restricts their movements and where they can live. The second offence to be criminalised makes it an offence for a person to subject another to forced or compulsory labour where they know, or should know, that the person is not consenting voluntarily to performing the work, and the victim has been threatened with harm if she or he does not perform the work. What constitutes harm will be left to the courts to decide on a case-by-case basis, but a list of indicators, based on those set out by the ILO, has been set out in the amendments. This will serve as a guide to the courts.

We believe that there is an urgent need to create these offences to ensure that victims of these abhorrent practices are clearly and explicitly protected by law. In conclusion, I quote again from the independent briefing from Sir Ken Macdonald and Helen Mountfield:

"we do not consider that the existing provisions of the English criminal law provide effective protection and penalties for servitude and forced labour. The introduction of such offences is necessary, both to protect the victims of serious abusive crime, and in order to avoid findings by the ECtHR against the United Kingdom of violations of Article 4".

I beg to move.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench 5:30 pm, 9th July 2009

My name is on the first of the two amendments in this group. I failed to attach it to the second through an oversight, but I support that amendment equally.

I congratulate the Government on the very welcome legislation that they have introduced on trafficking. As I have said previously in the House, I am a vice-chair of the All-Party Parliamentary Group on Trafficking. The Government are much to be congratulated on the work they have done in that regard. However, there is a gap. Article 4 of the ECHR is not replicated in English law, which represents a serious gap. The problem is relatively small but it is real. Some people come into this country entirely lawfully and cannot be said to be trafficked. They are not being trafficked within the United Kingdom but they are being detained, sometimes against their will. As the noble Baroness, Lady Young, has just said, they are kept in situations where they are unable to leave. As she also said, there are various reasons why they cannot leave, one of which is debt bondage. Their families may have paid for them to come to this country and they are paying off the debt but working all hours, seven days a week with no time off and no opportunity to leave. It seems to me a stain on our legal system that we are in a similar position to France, which has been rightly castigated by the European Court of Human Rights at Strasbourg.

I have a copy of the opinion to which the noble Baroness, Lady Young, referred. I apologise for not having been able to attend the obviously very useful meeting with the Minister. The opinion of the former Director of Public Prosecutions is powerful. It says that the existing law does not cover the problems to which the noble Baroness and I refer. I take that opinion very seriously. With my eye set on trafficking, I have to confess that I had not looked at this problem until I received all the information. I have investigated it as far as I can and it seems to me that Sir Ken Macdonald's opinion covers all these points and that there is a gap. It is this country's duty to fill that gap. For that reason I support both these amendments.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Since, unlike the noble Baroness, Lady Young, the noble and learned Baroness, Lady Butler-Sloss, is a very distinguished jurist, I wish to ask her a question about this. She and I worked together on forced marriage and dealt with it by using civil protection rather than a criminal sanction. I fully understand why we need a criminal sanction and agree with it but does she think that there also needs to be—not in this Bill as it is outside its scope—civil protection for victims, or potential victims, of forced labour rather like that for forced marriage?

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

I have not considered that. The noble Lord raises a very interesting point. However, a woman who is held in servitude or in some form of forced labour might face greater difficulties as regards knowing anyone who could help her. As regards forced marriages, usually there are other people around; for example people the girl has been at school with or people she may know because she usually, though not always, has contacts outside the family. However, I should have thought that most of the girls we are discussing are likely to be foreign, speak little English and have no access to their passports. They would be unable to find someone they could ask to help them to access civil proceedings. This situation seems to me very analogous to trafficking. It is accurately called a modern form of slavery. It ought to be seen as such and, unlike forced marriage, where there are good social reasons for not making that a criminal offence, this ought to be nailed as a criminal offence in the same way that trafficking is.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

I very much support the amendment standing in the name of my noble friend Lady Young of Hornsey. I have signed the amendment and was able to accompany her to our extremely helpful meeting with the noble Lord, Lord Bach, who went out of his way—as did his officials—to try to meet the very reasonable points that my noble friend has made today, which have been endorsed by the noble and learned Baroness, Lady Butler-Sloss.

The two organisations referred to by my noble friend—Anti-Slavery International and Liberty, whose policy officer Anita Coles joined us at our meeting with the Minister—provided excellent briefing material. As the Minister himself pointed out during our meeting, organisations such as Liberty do not usually campaign for additions to be made to the law; they spend a lot of their time campaigning about things that the law does that they do not approve of. Indeed, the noble and learned Baroness, Lady Butler-Sloss, regularly says to us that we overlegislate. On an occasion such as this, the Committee should, therefore, listen very carefully when she says that there is a gap in the criminal law, and it is the criminal law that needs to be used.

In answer to the intervention that was properly made by the noble Lord, Lord Lester of Herne Hill, it is precisely because the police have been unable to intervene in the kind of cases that my noble friend referred to that there is a gap which is required to be filled for the police to be properly empowered to take the action that is needed.

The purpose of my noble friend's amendment is to target with new offences those involved in enticing or keeping migrants in forced labour or in servitude. No doubt many people will greet with incredulity the claim that servitude can be imposed in the United Kingdom without prosecution. However, the claims are as true as the impunity gaps in our law.

Although international jurisprudence outlaws slavery and forced labour, it is estimated that worldwide some 12.3 million people are in forced labour. Most notoriously, in countries like Burma and North Korea, vast numbers of people are used as industrial conscripts. However, even in industrial countries and democracies such as our own, many people—often migrants—are forced into economic servitude, often wholly unremunerated or paid paltry wages. It is thought that in industrialised nations some 360,000 people work in such exploitative conditions.

Although trafficking and outright slavery are outwith the law, there is no clear stand-alone statutory offence under United Kingdom law of holding a person in servitude or subjecting a person to forced or compulsory labour. By failing to place such an offence into statute, we are in breach of our obligations under international treaties to which we are a signatory—especially our obligations under the European Convention on Human Rights. Although legal redress may be possible via the common law, that is a route which the police will rarely use and, in any event, the offence of false imprisonment does not accurately reflect the nature of economic servitude—which is why my noble friend Lady Young is trying to amend this Bill.

Although this matter is not on a par with the transatlantic slave trade, Anti-Slavery International and Liberty point out that the Slavery Abolition Act 1833 officially abolished the slave trade throughout the British Empire, and trading in slaves remains an offence under the provisions of the Slave Trade Acts of 1824, 1843 and 1873. The only other statutory offence which specifically criminalises an aspect of modern-day slavery is contained in Section 4 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The section, as my noble and learned friend said, creates an offence of "Trafficking people for exploitation" and provides that a person commits an offence if he or she,

"arranges or facilitates the arrival in the United Kingdom of an individual", or subsequent travel within the UK of an individual, and intends to exploit the individual or believes that another person is likely to do so.

Exploitation is defined as including behaviour which contravenes Article 4 of the European Convention on Human Rights, as well as subjecting someone to force, or using threats or deception designed to induce him or her to provide or acquire services or benefits of any kind. However, while persons who subject others to slavery or forced labour are likely to be in breach of a number of different criminal offences—a point made to us by the Minister—and perhaps of licensing or employment laws, there is no free-standing statutory offence of subjecting a person to forced or compulsory labour, despite recent court rulings requiring criminalisation.

In 2005, the European Court of Human Rights ruled that the case of a Togolese girl forced to work as an unpaid servant in France—a case to which my noble friend referred—required France and other member states to criminalise such acts. France was said to be in breach of Article 4 as it had failed to provide specific and effective protection to the victim. UK criminal law is vulnerable to the same criticism. That point was made in counsel's opinion and was referred to by my two noble friends.

Liberty also recently highlighted the case of a woman whose passport had been confiscated by her employer. She became a virtual prisoner and was physically abused. It required the instigation of a judicial review before the police accepted that there was a breach of Article 4 and that charges should be brought against her employer.

Anti-Slavery International says that it knows of United Kingdom cases where persons were subject to forced labour, many of them in domestic servitude, including children. The Parliamentary Assembly of the Council of Europe gives further weight to these claims, making the point that this is not therefore an isolated example but that such servitude is systematic and taking place all over Europe in many developed nations. That is why there is no sense of criticism that the Government have failed to act; this is something quite new on our radar screens which now requires us to take this issue seriously. The Council of Europe said:

"In the last few years a new form of slavery has appeared in Europe, namely domestic slavery".

It set out the common features of domestic slavery as including the confiscation of passports, blackmail concerning immigration status, and virtual imprisonment. One particularly shocking case, to which my noble friend referred, involved Zari, a woman from east Africa who came to the United Kingdom as a domestic worker. I shall not repeat the details of the case but the most significant thing is that, after running away, she went to the police but, again, they failed to carry out an investigation. Zari is one of many in the UK.

I was particularly struck by some questions asked by a London charity which I drew to the Minister's attention during our meeting. It questioned men and women caught up in domestic servitude and discovered that 26 per cent had been physically abused, 72 per cent had suffered psychological abuse, 70 per cent had no time off and 62 per cent were not permitted to leave the house. The agencies campaigning on these issues say they also have evidence of servitude in other sectors, including agriculture, factory work, food processing, cleaning and hospitality.

The evidence clearly points to a glaring hole in our law and to the need to create a statutory offence criminalising the holding of a person in servitude and subjecting a person to forced or compulsory labour. Closing this hole would also remove the immunity from punishment that too many currently believe they enjoy. The Minister has told us that existing law provides adequate opportunity for the police to act.

This is an issue on which we now have counsel's opinion. A copy was sent to the Minister yesterday, so it will not have taken him by surprise. I have also placed a copy in the Library. It was delivered by Sir Ken Macdonald QC, the former Director of Public Prosecutions, and Helen Mountfield, both of Matrix Chambers. Perhaps I may place their opinion on the record. At paragraph 3, they say:

"In our view, the existing criminal law offences pertaining to trafficking, the slave trade, false imprisonment and kidnapping are not apt to cover all offences of servitude. In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, ... dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline".

The opinion goes on to look at a number of detailed questions. For example, paragraph 18 of the judgment says:

"These technical problems make it particularly difficult to prosecute all perpetrators of servitude or forced labour, in circumstances where long sub-contracting chains and informal economic sectors are structural factors which play a 'major role in the exploitative employment relationship'. They also make the offence almost impossible to prove".

On pages 3 and 4 of the opinion the question is asked:

"Does English law contain criminal offences which penalise enforced labour or servitude? ... In our view, there is no offence known to English law of subjecting another to servitude or forced labour which: a. clearly criminalises imposition of forced labour or servitude, in all the circumstances in which Article 4 requires signatory states to provide a remedy; or b. is sufficiently clear and robust to have dissuasive effect".

Without wearying the Committee—I am conscious of the time—let me end by quoting the conclusion from counsel's opinion:

"We do not imagine that any politician, of any party, would consider it unnecessary to have in place penal legislation which complies with the United Kingdom's obligations under Article 4 ECHR, and which provides redress to victims, and penalties for perpetrators of so grave a crime of abuse and oppression. The issue is only whether it is necessary for such an offence to be specifically created, or whether existing provisions of the criminal law already cover all circumstances of servitude and forced labour.

For the reasons set out above, we do not consider that the existing provisions of the English criminal law provide effective protection and penalties for servitude and forced labour. The introduction of such offences is necessary, both to protect the victims of serious abusive crime, and in order to avoid findings by the ECtHR against the United Kingdom of violations of Article 4 ECHR".

My noble friend's admirable amendment seeks to plug that gap. I hope that the Minister will feel able to respond positively to the persuasive arguments which he has already heard and which no doubt other noble Lords will wish to add to.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Shadow Attorney General 5:45 pm, 9th July 2009

Listening to the debate, I was taken back over 20 years to Hong Kong, where I was involved with problems arising with the Philippine amahs, or maids, who were and still are numerous in that territory, which was then a colony. The Hong Kong Government introduced regulations which made it impossible for Philippine amahs to move from one job to another within Hong Kong; they had to go back to the Philippines. That put a weapon in the hands of employers, which was exploited.

We brought the cases of six of them, who were abused in the same sort of ways that we have heard quoted by previous speakers, to the Privy Council and, although we were not able to set aside the regulations which had been introduced, simply bringing the matters forward, bringing them to court and into the light of day caused a significant amelioration of the conditions under which Philippine maids were employed. Of course, they had a number of advantages. First, most if not all of them spoke English; secondly, they were so numerous—anyone who has been in Hong Kong on a Sunday will no doubt confirm that—that there was a great deal of support all round; and, thirdly, they had a trade union. Therefore, it was possible for them to take these steps.

I contrast that with the problems that have been outlined today. As has been said, it is a fairly new phenomenon for underpaid, exploited people in conditions of virtual servitude to be brought to this country, but it is happening. It is happening to people who do not have a large community of fellow nationals to whom they can turn. Many of them do not speak English; they are certainly not unionised; and it is difficult to imagine that they would have ready access to the necessary legal remedies that might be open to them. It is distressing to learn that, if these people go to the police, they are turned away as there are no specific offences which cover their situation.

False imprisonment is such a rare criminal offence that not many police forces are going to get involved in that sort of investigation, even if they can understand precisely what the claims are about. Therefore, I wholly support these amendments and the organisations behind them—Anti-Slavery International and Liberty—and I commend the noble Baroness, Lady Young, for outlining these problems so fully. I assure her that we on these Benches will give full support to these amendments.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality

Perhaps I may make it quite clear, since I might be misunderstood, that when I asked the question I did of the noble and learned Baroness, Lady Butler-Sloss, it was not because I was in any way not enthusiastic about creating these new offences—I am. However, I also think that it will be necessary to use the civil law in aid of the criminal law. Although I entirely understand the problem that if people are in slavery, they will not be in a position themselves to invoke the civil law protection, there are already statutes such as the one on protection against harassment, the common law on false imprisonment and so on. We have found with female genital mutilation that we created the crime but there has not been a single prosecution, for reasons that are fairly obvious. I hope that we will create new offences here. However, in order that we can translate those into something that gives effective protection, it cannot just be left to the police service to do the enforcement. We will need to do something; not the same as with forced marriage—of course not, it is a different problem. But there will be a need to think about employing civil protection and not just relying on criminal sanctions, with the criminal burden of proof and all the difficulty about doing so. I am enthusiastic about the amendment tabled by the noble Baroness, Lady Young, but I think that we may have to go further if we are to make it more than simply another crime on the statue book.

Photo of Lord Mackay of Clashfern Lord Mackay of Clashfern Conservative

I, too, support these amendments. They are sufficiently clearly stated for it to be likely that where anything of the kind is brought to the attention of the police, the police will take action. It is also true that if these are made statutory offences, there will be a power in the court to give statutory compensation under the criminal law. That might be an effective remedy because I can see that these people might not wish to involve themselves in civil litigation, but if they can be compensated immediately on the offence being established to a sufficient extent, that might meet the case. I add my congratulations to the noble Baronesses. This is extremely important, and fortunately it is relatively easy to give effect to what they propose.

Photo of The Earl of Sandwich The Earl of Sandwich Crossbench

I add my two minutes' worth of support for my noble friend's amendment as a former council member of Anti-Slavery International and having seen the legal opinion of Matrix Chambers. I thank my noble friend Lord Alton—who, coming from Liverpool, always sets the debate in a historical context—for setting out the case so clearly and powerfully. That saves me from having to speak for very long.

We are discussing the domestic migrant worker whose passport is taken, who is certainly under financial pressure, who is kept for long hours indoors and who may be subjected to considerable violence. We know from the expert voluntary organisations that there is substantial evidence that these practices are still going on in the UK, and may even be condoned by the vagueness of our present law. It seems astonishing that, according to the opinion we have had, the present law is insufficiently robust to protect the victims of the crime. The widespread public condemnation of trafficking following the mass arrest of young women and children from eastern Europe and the terrible Morecambe Bay disaster led to a spate of legislation in which many of us played a part, and the Government have responded. Some of the cases that we hear of forced labour and debt-bonded labour in this country remind me of conditions in north-east Brazil and come very close to modern slavery.

We have to thank the Parliamentary Assembly of the Council of Europe for making two recommendations on domestic slavery that have already been mentioned. In a case that was brought to the European Court, France was held to be in breach of Article 4 in failing to provide specific protection to a young Togolese girl. This leaves the UK very exposed. It seems clear that, in the terms of the ECHR and the rulings of the European Court, there is no specific legislation here to look after these people.

I draw only one example from the opinion of Matrix Chambers, which my noble friend has mentioned. Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 makes trafficking unlawful, but the Act merely establishes the facts; it does not enable the prosecution to prove the elements of the offence to be beyond reasonable doubt. I hope the Minister will address this point, because the complexities of trafficking make the offence almost impossible to prove. I know that the Minister, with his experience, has had time to study this opinion, and I recognise that the Bill may not be the best vehicle for these amendments, but will the Government at least accept that there is a weakness in the present law that will have to be addressed if these criminals are to be caught?

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

The noble Baroness is confident that she has identified loopholes in the law that allow people to be exploited in ways that amount to slavery or forced labour, and she has spoken movingly and eloquently about the consequences. The campaign group Liberty has produced a brief in support of her contentions and has obtained an opinion from Matrix Chambers, as we have learnt, which indicates that the current laws are deficient.

At this stage, our position is to support the principle behind the noble Baroness's amendments and to examine in detail the Government's response. The Minister and his team in the department will undoubtedly have brought their considerable bank of expertise to bear on this matter, and we will listen to what the Minister says with great interest.

We prefer, where possible, to make proper use of existing laws rather than push for the creation of new ones. However, if it becomes clear that there needs to be new legislation to protect those who are currently failed by the law, we would support such a measure or measures. For that reason, I urge the noble Baroness, Lady Young, and her supporters not to push for a Division at this stage but to allow us to reflect, having heard the Minister, and return to this matter on Report.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

The Committee is very grateful to the noble Baroness, Lady Young of Hornsey, and her supporters for raising this issue in this way in Committee. It has been a very interesting debate and some very interesting points have been made, leaving the Government with much to think about. It would be asking a little too much of the Government to say today that we are persuaded, because the truth is that we are not yet. However, the body of supporters from around the Committee, not least the noble and learned Lord, Lord Mackay of Clashfern, is impressive by any standards. The issues that have been raised are very serious, as the noble Lord, Lord Kingsland, was just saying. Knowing what to do about them may be a little more difficult.

Of course we all agree that servitude and forced labour have no place in our society. It has been more than 200 years since the abolition of the slave trade and more than 170 years since the abolition of slavery in the British Empire. But, sadly, that does not mean that the world is free of slavery in all its ghastly modern manifestations. The inhumane treatment of certain individuals occurs and it is right that we should take this matter seriously. These amendments are not limited to any specific group, but one of the main causes for concern is in respect of migrant workers who may be particularly vulnerable to exploitation. As populations become more mobile, the prevalence of these offences may well increase, which is a matter of concern.

However, we are not convinced that the suggested new offences are necessary. We have extensive laws that we believe already provide everyone with practical protections and which cover all the behaviour that these amendments seek to make criminal. Trafficking people for exploitation is already a serious criminal offence under Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and here I should say that I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for what she said about the Government's actions in this field. Exploitation for the purposes of the Section 4 offence explicitly includes behaviour that contravenes Article 4. Similarly, trafficking for sexual exploitation under the Sexual Offences Act 2003 is a serious criminal offence. Anyone found to be exploiting a person who has been trafficked may also be complicit in that trafficking offence. Moreover, we should not forget the common law offence of false imprisonment for those offenders who prevent a victim's freedom of movement.

Some individuals may face sexual or other violence, or threats of violence, but there are already comprehensive measures under the current law for dealing with such threats and violence in a wide range of circumstances. Not least, an employer who causes a migrant worker to suffer psychological harm could be open to an assault charge in the same way as he could be for physical violence. The maximum sentence depends on the nature of the violence or threats, but it can be severe if the level of violence is severe. Of course, it follows that if an employer confiscates a passport or uses deception, he or she may well have committed theft or fraud. There are also sentencing guidelines which lay down clearly that the court must take into account aggravating factors. Such factors include the vulnerability of the victim and the fact that the offender is in a position of trust. If the offender is operating in a group or a gang, as he might often be in cases of trafficking, that in itself is an aggravating factor. I mention also employment legislation designed to protect all workers, including migrant workers. As the Committee knows, the legislation covers maximum working hours, minimum wages, minimum age limits for children in employment and health and safety. All these may well be contravened if a person is held in servitude or required to undertake forced or compulsory labour.

The amendments rightly seek to provide serious penalties for these serious crimes, but our argument remains that the existing criminal law already allows for appropriate charges to be brought and appropriate penalties to be imposed for this behaviour.

Photo of Lord Lester of Herne Hill Lord Lester of Herne Hill Spokesperson for Women and Equality 6:00 pm, 9th July 2009

I wonder whether, as a way of informing noble Lords between now and Report, it would be possible to look at Ken MacDonald's opinion where he goes through with great care all the reasons why he and Helen Mountfield consider that the existing criminal law is not sufficient. Between now and October, could the noble Lord respond to that opinion in a letter to the noble Baroness, Lady Young, and others who have taken part in the debate in order that we can see whether, as he suggests, the law is sufficient or not? It is a question of fact in the end, but what is now being said by the Minister does not, for perfectly understandable reasons, actually meet the points Ken MacDonald is making. Perhaps this would be a sensible way of informing the House before we come back to the issue, or am I being premature in making the suggestion?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

As always, the noble Lord has come up with a good suggestion. This opinion, which has yesterday's date on it, was kindly sent to my officials and I shall say something about it. Of course, it deserves a longer consideration and a response and I shall do my best to make sure that that happens. It will obviously be an important part of the debate from now on.

I do not need to go through the maximum sentences for assaults and other criminal offences, but we know that offences of false imprisonment can carry a maximum penalty of life and often attract sentences of eight years or more. I remind the Committee that trafficking for exploitation carries a maximum penalty of 14 years.

I come now to one of the main parts of this problem. Whether to prosecute in each case, and what charges are most appropriate, are rightly matters for the police and the CPS. We have taken informal soundings from the Association of Chief Police Officers to see if it is aware of any difficulties in charging individuals who are involved in exploiting the vulnerable in this way. We understand that the North Yorkshire Police has commissioned Project Acumen, overseen by its chief constable, which will review and analyse the victims of sexual and labour exploitation. It will also analyse the scope and nature of offenders and criminal groups involved in organised immigration crime and trafficking in human beings. This will include, first, identification of the main market sectors affected; secondly, an initial appraisal of the likely significance of the main ethnicities and nationalities involved as victims and offenders; and, thirdly, the identification of any key regional variances in either markets, victims or offenders. The final report is due to be published by the end of February next year and we believe the findings will be helpful.

We shall continue, of course, a dialogue with the police to explore what measures might be useful in tackling this problem. I venture to think that one of the issues behind the amendment is a concern that in practice, even though offences may have been committed, the police, for whatever reason—and there may be good reasons as well as bad reasons—do not feel able always to bring a prosecution. We certainly need to look at that more closely during the summer.

I now say a word about our obligations under Article 4, which provides that no one shall be held in slavery or servitude or be required to perform forced or compulsory labour. It is implicit from the case law that if existing criminal laws provide practical and effective protection for the rights set out in Article 4, then the state concerned will have discharged its obligations. As a Government, we would of course have serious concerns if we thought that we were not discharging our obligations under an instrument as important as the ECHR. We enacted the Human Rights Act to give further effect to convention rights in the UK and to ensure that those rights could be enforced in our domestic courts. I hope the Committee will accept that we take our international obligations seriously. We feel that we have discharged our obligations under the ECHR

Let me offer an initial thought on the important opinion of the two counsel referred to. It has been suggested that a new offence is necessary in order to satisfy our Article 4 obligations but, at present and on first reading, we do not agree. Neither the ECHR, nor the ILO conventions, nor case law interpreting the ECHR, to which the two distinguished barristers referred in their advice, requires a specific forced labour or servitude offence. Rather, what is required is for the state to provide "practical and effective protection" of a claimant's rights by ensuring, for example, that there is effective deterrence by way of criminal law. As I have already argued, we think that there is effective deterrence through a range of existing criminal offences. Deterrence may also, of course, be in the form of successful prosecutions, which we have, with sufficient penalties, which there are. If we were to enact a bespoke offence as the amendment seeks, it does not follow that any prosecution for such an offence would be successful. Alternatively, of course, a prosecution might not be brought, in which case claimants' rights are still not protected.

That is all that I want to say today on this subject. I make it clear that I cannot make any promise, or even a hint of one, that if the matter is withdrawn today, which I invite the noble Baroness to do, I will be able to say anything very different if it is raised again on Report.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Crossbench

Will the Minister take into account who has written this opinion—that is, the former Director of Public Prosecutions, who is more likely than most to know what the law is, in the sense of what could be prosecuted? Would he consider it appropriate to show that opinion to the present Director of Public Prosecutions, Mr Keir Starmer, to see whether he shares the view of his predecessor?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I am very conscious of the author of the opinion, for whom I personally have a high regard, as no doubt the noble and learned Baroness does too. I see no reason why—having first asked permission of my noble and learned friend the Attorney-General, as she would expect me to do—the opinion should not be shown to the Director of Public Prosecutions.

I appreciate that my answer will not be satisfactory to the supporters of the noble Baroness's amendments. I do not hold out great hopes that, if we come back to this in the autumn, I will be able to give any ground, let alone major ground. I will just say that during the next few months we will consider carefully everything that has been said in this debate, the opinion and other matters that come to our attention, particularly with regard to police activity and behaviour in this field. If we do come back to this in the autumn, I look forward to that debate as well. I thank the noble Baroness, Lady Young, and her supporters for the meeting that we had last week during which I, certainly, learnt a lot.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

I wonder if could press the Minister about the consultation that he says he will have over the summer. He gave the example of the actions of the chief constable of Yorkshire in promoting a project there to look at the problems of people who might be caught up in servitude. Will he extend that consultation to speak to some of the other chief constables as well to find out what their feelings are so that, when we come back to consider this matter again on Report, we will be comprehensively advised of the views not only of the former Director of Public Prosecutions and maybe the current one—an eminently sensible idea—but also of police officers? Can the Minister's own officials also look at an evaluation of the number of times that cases have brought forward or considered and not taken forward for prosecution because the law has what we believe are these gaps in it at present?

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice

I will do as much of that as I can. I cannot promise that there will be an overall full-scale review of this issue between now and then, but I will certainly continue the work that we are doing on it.

Another argument that was touched on during the debate on this amendment is that we are often criticised for introducing new criminal legislation, particularly serious legislation that has prison as a consequence of someone being convicted. It is right that the Government should be wary of introducing new legislation, and we have to be persuaded of the case. I know, though, that there are many in the Committee today who are persuaded that this should be an exception.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I suppose that, in principle, I should welcome what the Minister has just said, since a great deal of legislation has been introduced in recent years that has not yet been implemented.

In any case, I am most grateful for his reply. It would be useful for the Opposition if, over the summer, the Minister, not in any elaborate way but in a way that indicated the direction in which his mind was working, could let us know the Government's view about the merits of the noble Baroness's amendments because, naturally, we will, at least in part, be influenced by it.

Photo of Lord Bach Lord Bach Parliamentary Under-Secretary, Ministry of Justice, The Parliamentary Under-Secretary of State for Justice 6:15 pm, 9th July 2009

Perhaps when we surface again in September, I can agree to write a letter in which I set out the Government's position at that stage and circulate it to all those who have spoken in the debate today.

Photo of Lord Kingsland Lord Kingsland Shadow Lord Chancellor, Parliament

I am most grateful to the Minister. That would be extremely helpful.

Photo of Baroness Young of Hornsey Baroness Young of Hornsey Crossbench

I thank noble Lords for supporting the amendments and for doing so rigorously with lots of evidence. I also thank again the Minister both for meeting us the other week and for his consideration of the many points that have been made.

As he said, he could anticipate that I would not be satisfied by his response in so far as many of us have responded to his points and given good reasons for another law being needed. None of us wants extra laws for the sake of them, but we should acknowledge that times change and that we encounter situations which need new responses.

The Minister mentioned that existing offences could be used to deal, for example, with the case that we cited earlier. However, theft, fraud, sexual assault and employment legislation are a whole bundle of different bits of the law, which is where the problem lies. It is not that there are not bits of the law that are capable of dealing with those specific instances of oppression, but putting them together to make a coherent case then becomes difficult and acts as a disincentive to the police to pursue them.

I agree that it is essential that the police are absolutely clear about the nature of the law were it to be introduced and are given specific guidelines on how to make sure that prosecutions are brought about, because we have all acknowledged that there is a problem. On trafficking, we acknowledge that pieces of that legislation are appropriate, but not everybody who we are talking about has been trafficked—that is a very important point.

I thank the Minister for agreeing to a number of suggestions made by other noble Lords. I shall think about what has been said and decide whether to pursue the matter to a Division on Report. I shall look carefully at Hansard. I will be waiting to hear from the Minister on ACPO and on the other points that he has agreed to take up during the summer break. Bearing that in mind, I beg leave to withdraw the amendment.

Amendment 182 withdrawn.

Amendment 183 not moved.

House resumed.

Sitting suspended.