Relevant documents: 10th Report from the Delegated Powers Committee and 3rd Report from the Joint Committee on Human Rights
Moved by Baroness Young of Hornsey
34: After Clause 7, insert the following new Clause—
(1) The offences under sections 1, 2 and 4 shall also constitute civil offences of modern slavery.
(2) A victim of a modern slavery offence may bring a civil claim against any person who commits a civil offence against him under sections 1, 2 and 4 for the recovery of damages, injunctive relief, and any other appropriate relief.
(3) It is not a defence to liability under this section that a defendant has been acquitted or has not been investigated, prosecuted or convicted under section 1, 2 or 4 or has been convicted of a different offence or of a different type or class of offence.
(4) An action under this section must be commenced no later than 6 years after the later of the date on which the victim—
(a) left the situation of modern slavery; or
(b) attained the age of 18.
(5) The period specified in subsection (4) may be extended where the court considers it just and equitable to do so.
(6) A civil claim brought under this section shall be stayed until the resolution of any criminal proceedings against a defendant which arise from the same act in respect of which the victim has made the claim.
(7) Damages awarded under this section shall be offset by any compensation paid to the victim for the same act pursuant to section 8 or an award paid to the victim for the same act by the Criminal Injuries Compensation Scheme.
(8) This section does not preclude any other existing remedies available to the victim under the laws of England and Wales.
(9) Legal aid shall be provided to enable a claim under this section to be brought.
(10) In a successful action under this section, in addition to any award of damages or other relief, the victim’s costs shall be recoverable against the defendant.”
My Lords, I am grateful to Parosha Chandran, standing counsel to Anti-Slavery International, of which I am a patron, for her support and advice in tabling this amendment, and to Focus on Labour Exploitation for its briefing on the subject.
The point of the amendment is to provide another tool to help gain access to justice for the victims of trafficking and enslavement. In the Bill, compensation is currently limited to providing compensation as a result of criminal prosecution. Civil remedies tend to be simpler and more accessible. This amendment on civil remedies has three interrelated objectives: first, to provide an effective way of reducing the financial profitability of slavery, trafficking and exploitation by imposing civil damages against those who engage in the activity; secondly, to create a deterrent effect; and, thirdly, to enable victims to be adequately compensated for harm done.
As many noble Lords will know, the civil standard of proof is set at a different level from that required in criminal prosecutions. These cases will be judged on whether it is probable that a civil offence took place rather than beyond reasonable doubt, as is the case with criminal offences. Amendment 34 will not affect other existing remedies, such as employment law claims, other civil actions for damages or claims under the criminal injuries compensation scheme, which will still operate where necessary and appropriate. This set of new modern slavery civil liability offences will not prevent a victim’s reliance on those instruments; they will still have a job to do.
The characteristics of contemporary forms of slavery and exploitation are very diverse and include: debt bondage; the physical and psychological abuse of vulnerable people; the absence of direct physical harm; threats of denunciation to the authorities; and fear of actual or potential violence directed at the victim, their families and loved ones. The nature of these contemporary forms of slavery and the lasting harm done to victims is not always best served by the existing, more traditional routes to civil remedy. Thus the amendment seeks to identify civil law counterparts to the criminal offences of trafficking, forced labour and enslavement. This is needed because, for example, false imprisonment or harassment in civil law do not relate to the totality of the experience of being enslaved and its psychologically damaging aftermath. How can a claim be brought against a trafficker for breach of contract when there is no contract in most of these cases?
The amendment is worded to ensure that civil actions do not jeopardise criminal proceedings as the civil action may be halted pending the outcome of a criminal trial. Equally, civil actions may be pursued where no criminal investigation has taken place. In some cases, a successful civil action may be the precursor to a successful criminal investigation and prosecution. An important feature of the amendment is that individuals, organisations or businesses that escape criminal prosecution due to insufficient evidence to meet the criminal standard can be named in any civil action brought, which will serve as a powerful deterrent; for example, a civil claim for damages for human trafficking may enable compensation claims to be brought by British girls and young women against men who trafficked and sexually exploited them as children anywhere and where no commensurate compensation orders were made.
The outcome of the civil action will not be dependent on the criminal prosecution of offenders, so the victims in the recent Rotherham cases, for example, would also be enabled to bring civil claims for damages for the harm done to them by the men who trafficked them and who may never face criminal prosecution.
On the limitation period for bringing a claim, we have determined that this should be at least commensurate with contract claims—that is, six years—and that the provisions should apply for a longer period should a court find it appropriate to extend the period available in which to bring a civil action. This corresponds with the extension of time provision under the Human Rights Act 1998.
In the USA, the Trafficking Victims Protection Act—the TVPA, as it is known—became federal law in 2000. The Act criminalised human trafficking and contained numerous provisions for victim protection, but did not at that time contain a civil liability offence. It was quickly recognised that the omission was detrimental to the operation of the Act, and this was remedied by the introduction in 2003 of a federal right of action for survivors of trafficking.
This autumn, it was reported that 35 individual states in the USA and the District of Columbia had chosen to introduce their own civil liability clauses within their state’s legislation, thereby enabling victims directly to claim damages against their abusers. The take-up of this method of pursuing enslavers and traffickers in the USA strongly indicates the importance and effectiveness of such civil liability clauses in reducing the profits of modern slavery offenders, deterring other perpetrators and securing appropriate redress for the victims of trafficking and enslavement-based harm directly from those who seek to profit from human misery. I beg to move.
My Lords, I will be brief. We have an amendment in this group that is considerably briefer in detail but not dissimilar in intention to the amendment moved by the noble Baroness, Lady Young of Hornsey, providing for a civil remedy for a victim of an offence under Clauses 1, 2 and 4 of the Bill.
Our amendment refers to a victim bringing a civil action against the perpetrator in the county court and states that the victim may recover damages and reasonable legal costs, with subsection (2) of our proposed new clause going on to define one aspect that damages should include.
I do not wish to repeat the arguments for having a civil remedy in the Bill, since these have been powerfully and eloquently put by the noble Baroness, Lady Young of Hornsey, who reminded us that the standard of proof in the civil courts is the balance of probabilities rather than beyond reasonable doubt. As the noble Baroness also reminded us, we need to ensure that victims of modern slavery can recover damages from their abusers and perpetrators of the offences against them.
Unlike Amendment 34, our amendment does not refer specifically to legal aid, which has sometimes on other issues been an area of difficulty for the Government.
I hope that the Minister’s response to the amendments on civil remedies will be favourable and that, if the Government do not like the precise wording of the amendments, they will accept the principle that they seek to lay down in the Bill and agree to discussions on seeking wording acceptable to all relevant parties.
My Lords, I have Amendment 36 in this group, and I have put my name also to the amendment moved by the noble Baroness. I shall take the amendments in the group in reverse order. Amendment 36 would provide that a compensation order could be made to reflect injury and so on resulting not just from the principal offence, if that is the way that one should describe it, but from other relevant offences taken into consideration by the court when it determines the sentence.
The amendment comes from Section 130 of the 2000 Act, which is the subject of Clause 10(1). When I read that section, I saw the reference to offences taken into account in sentencing and wondered whether it needed to be made explicit in the Bill. If it is implicit, fine; if it is not covered, it should be.
My comment on the noble Lord’s amendment is that while obviously we are on the same page as him, I would hope that any provision that results from this debate will allow for claims not only in the county court but in the High Court. The county court is the court for lower claims and the High Court for higher claims, as is the case with all civil claims. I think that we agree that the damage to individuals can sometimes be very great.
One of many reasons why a civil claim would be appropriate is that those who have survived forced labour, slavery or exploitation have different levels of vulnerability, different reactions and different responses. Some are more resilient than others. Current civil remedies may not provide a remedy for those who are resilient enough not to suffer an injury, such as a diagnosable psychiatric condition.
There are, of course, recognised bases for bringing civil claims in tort, contract and employment, but often they do not adequately reflect the gravity of the situation. I add to the mix the possibility of exemplary damages and perhaps civil remedies being available to be pursued against not only those who committed the offence but those who knew or ought to have known—I am picking up language from elsewhere—of the offence and who have benefited from it.
I conclude by saying that I am aware that, for some, the experiences they have suffered are articulated in comments such as, “Twelve years and no money”. That is the way that some victims are able to put it, because they cannot necessarily express everything that they have undergone, but many years for no pay is something keenly felt, and the noble Baroness’s amendment would meet that.
My Lords, I wonder whether anything covered under Clauses 1, 2 and 4, creating these criminal offences, is not already, under the ordinary law, a civil wrong. If it is, it would carry a claim of damages and other remedies for civil wrongs with it, such as injunction. If I am wrong about that, this is a good move. On the other hand, if I happen to be right about it, the people who are wronged before this becomes law would have a right of action which the Bill cannot confer on them until it is enacted. I also wonder whether there may be more scope in the civil remedies that exist now in respect of the people who are involved in the perpetration—not the actual perpetrators, but those who organise it and are behind it; they are sometimes called the brains. Whether that is appropriate, I shall not comment. We need to think about that question in relation to this group of amendments. I am all in favour of having people who damage others under conduct which is made criminal by Clauses 1, 2 and 4 being subject to civil action. What I am wondering is whether that is not true already.
My Lords, I, too, support the noble Baroness’s amendment. These cases are incredibly difficult to investigate and even more difficult to bring to court to a successful conclusion. To have some remedy which would allow more people an avenue to justice, bearing in mind the problem of resources that the police service has at present, surely has to be a good thing. Equally, I take the point made by the noble Baroness, Lady Hamwee. A large number of people in this country have been damaged beyond our imagination and for them to wait for justice in the way that some of them have to is not acceptable. Sometimes these cases will take year after year to bring to successful conclusions. I for one totally support what the amendment is aimed at doing: to assist those people, either financially or otherwise, to come to a conclusion in some of these cases.
I go back to my original point. These cases are difficult to investigate and take a long time and then people have to come to court and prove the cases. I would add that I went to America in 2004 and can support the American system. I looked at it closely and it works. I think that it has now gone beyond the 33 states to about 42. It works in the American system and may be one thing that we can take back from America to use successfully in this country.
My Lords, I support my noble friend’s amendment simply because it provides better access to justice. The contest between the balance of probabilities and beyond reasonable doubt is well known to the lawyers in this House. As a non-lawyer, my understanding from what has been said and written is that victims of trafficking currently have only limited access to compensation. Without civil claims against those committing civil offences, they will not be compensated in line with the European trafficking convention; nor do they have claims to legal aid. On the other hand, as we have heard, the USA provides a civil remedy under the 2000 and 2003 federal Acts. We need to know why the Government cannot emulate what they are doing in the USA. In the background, there is the sad case of Mary Hounga, who came from Nigeria as a domestic worker. She suffered serious physical abuse but her claim was thrown out by the Court of Appeal on the grounds that she had no right to work in the UK. I know that the case has gone to appeal but it is just the kind of case that would be caught by this amendment.
My Lords, it seems that all three amendments in this group have the potential of being helpful to overseas domestic workers who, I am sorry to say, have been exploited and abused over a very long period of years in this country, with almost total impunity for the wrongdoers. On Monday, the Government helpfully said that they were looking to enhance protection for overseas domestic workers, but I have looked at Clauses 45 to 50 and I can find nothing helpful there. I have also looked at Clause 15, which deals with prevention orders, and there again the procedure has to be through the police. We know perfectly well that many domestic workers do not have access to the police—they cannot get to them. I hope that the Government are able to say something helpful about this group.
My Lords, I agree in principle with what lies behind the amendments but I would like to take up what the noble and learned Lord, Lord Mackay of Clashfern, has said. I am no civil lawyer but I believe that these are what are called in civil law torts; that is to say, civil offences. There is at least a very real possibility that they are covered by existing civil law. If they are so covered, there is no need for these amendments. I am afraid that I have not done any research on it, as I have not put forward an amendment, but some research needs to be done as to what is already covered before we ask the Government to accept these amendments.
My Lords, if I may respond, the point has been brought to us by several lawyers, both members of the Bar and solicitors, who are concerned that the remedies available are not adequate. The noble Baroness and I ought to ask the two noble and learned Lords if they would like to conduct a seminar before Report for those who have been briefing us.
My Lords, I thank the noble Baroness, Lady Young, for introducing this debate, and the noble Lord, Lord Rosser, and my noble friend Lady Hamwee for moving and speaking to their amendments, giving us the opportunity to discuss a very serious issue. I think we were all struck by the words of the noble Lord, Lord Stevens, about the delay that people are experiencing at present in getting compensation for the horrendous suffering that they have gone through in this process.
Before turning to the amendments, I want to make two points that deal with matters of principle. The first point, which runs through many of the groups that we have considered already, is that the Government’s view, right or wrong, is that we should make it a priority to secure an increase in the number of convictions of the people who have been guilty of these offences. We believe that it is a two-pronged approach. The first prong is the compensation and protection of the victims, but that is best done in the first instance by ensuring that the organised criminal gangs that are perpetrating this are brought to justice. Therefore, the second prong follows from that: we want to encourage victims, although it may be difficult and painful for them to do so, to go down the criminal justice route and secure those convictions. That is why we have made provision in the Bill for protections and help, particularly for children and vulnerable adults, in making contributions and presenting their evidence before a court so that we can secure those convictions. That would be the first point that I would make.
Secondly—my remarks on this are of necessity briefer than they would otherwise be—I have been assisted immensely by the wise words of my noble and learned friend Lord Mackay of Clashfern and the noble and learned Baroness, Lady Butler-Sloss. They have very effectively made the case that we have arrived at; namely, the belief that civil remedies to the civil wrongs that have been cited in this case already exist. In the particular instance where there is a need for clarification on this, my noble friend Lady Hamwee asked—in fact, I think this is the purpose of Amendment 36—whether it was possible to have a reparation order and a compensation order. The answer is yes because they would be dealing with two distinct elements: where an offence has been committed under the Modern Slavery Bill under the group of offences highlighted in Sections 1 to 3, there would of course be a reparation order. If, however, the person had been the victim of slavery and had been subjected to rape, for example, there would be additional compensation orders as well as the criminal charges that would be brought. So in that instance there would be a case for having the two together, and I hope that helps to clarify the situation.
My Lords, may I ask the Minister for a point of clarification? I stress again that I am not a lawyer, otherwise I probably would not be asking this question. If the Government’s view is that civil remedies already exist, is he saying that they are dependent on having first achieved a criminal conviction, or is he saying that they exist without having to go down the criminal court route? If the latter, presumably his argument that the Government wish to increase the number of convictions—they want to encourage victims to go down that route, thus they are not very keen on the civil remedies—has already been weakened by the fact that, as he is saying, civil remedies already exist.
The noble Lord was gracious enough to mention that he is not a lawyer, and I join in that fellowship of non-lawyers. I am quickly looking for guidance from my team, but I think guidance is about to come from the noble and learned Lord, Lord Mackay.
My Lords, I think the situation is that if there is a criminal conviction for a civil wrong that, of itself, would be sufficient to justify the civil action and to permit the judge in the criminal court to make a compensation order. There are arrangements for the proper linking of the two. You cannot get money twice for the same wrong, so there is a connection between the compensation order you can get in respect of the criminal conviction and what can happen in a civil action related thereto.
The noble Baroness, Lady Hamwee, raised questions about whether the existing civil protections are adequate. I have not seen any particular comment on that. I raise that as a question. I am not saying for sure that all the matters covered would be fully covered by the civil law, but I rather suspect that they may well be. The important thing is that a criminal conviction certainly helps in respect of civil action, but it is not necessary to have a criminal conviction to have a civil action. These two are independent.
Having regard to the nature of the statutory torts or the ordinary common-law torts that might be established as a basis for a civil action for damages, it might be desirable to provide in the Act that exemplary damages can be awarded. Otherwise, it might be simply compensatory. This seems an ideal case for the award of exemplary damages if the ingredients of the civil action are established.
If I may, I will come back to the noble and learned Lord’s point and perhaps write to him in clarification, but the compensation orders and the reparation orders relate to criminal convictions. The position would be that they are separate and adequate civil remedies. I realise that does not answer the particular point the noble and learned Lord raised, but I will respond to that during the course of the afternoon.
My Lords, the Minister says that they are, in effect, compensation for crimes. The particular concern that the noble Baroness and I have is that victims should be compensated—that word seems completely inadequate in the context, but noble Lords will understand it—without there necessarily having been a criminal conviction.
I will come back to that, if I may. We have before us two proposed new clauses in Amendment 34, which was moved by the noble Baroness, Lady Young, and Amendment 35, which seek to enhance civil remedies by creating new torts equivalent to the offences to be created under Clauses 1, 2 and 4. I assure the Committee that civil remedies in tort already exist for victims of trafficking and slavery to claim damages from perpetrators through ordinary civil law and the Human Rights Act, which was raised by the noble Earl, Lord Sandwich. Damages can, for example, be recovered for loss or damage caused to victims under the torts of intimidation, harassment, assault, unlawful imprisonment, negligence and breach of duty. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 retained civil legal aid for damages and employment law claims for trafficking victims to support them in making such claims. An amendment I have tabled would extend that legal aid provision to all modern slavery victims.
Amendment 35, tabled by the noble Lord, Lord Rosser, and the noble Baroness, Lady Royall, further suggests that such compensation should be linked to the national minimum wage that an individual would have to receive in legal employment. I reassure the
Committee on that point. Damages in civil claims are intended to make good the loss or damage caused by the wrongful act. The principle will apply to actions relating to slavery and trafficking. The actual amounts of the damages will be based on the individual circumstances of the case and may be higher than the level of wages that would have been paid, although this may be a factor considered by the court in assessing the amount of the victim’s loss. The cavalry coming to the rescue advises me that we have agreed to write to noble Lords on exemplary damages.
We are committed to doing as much as possible to enhance support and protection for victims of modern slavery, including ensuring that they receive compensation for the horrors they have experienced—although I accept, as the noble Baroness, Lady Hamwee, said, that one could never fully compensate someone for what they have suffered with a mere cash payment. However, we consider that existing law provides sufficient access to civil remedies for victims of slavery and trafficking. I hope that with those assurances and the undertakings that I have given today, the noble Baroness will feel able to withdraw her amendment.
I, too, had a question in mind. First, penalties already exist—but then, I am not a lawyer. I was rather interested and surprised that two of the most learned Lords in the country, who are present in the Committee this afternoon, both posed this as a question rather than as an absolute certainty. If there is a certain amount of uncertainty, even in the highest legal quarters in the land, do we not need to do something to make it better known that civil penalties exist, or to make it clear beyond any kind of doubt that we have a specific amendment to the Bill that would make it crystal clear? Clearly, something is amiss at the moment if people simply do not know.
I acknowledge that. A huge part of what we have covered here concerns the lack of awareness on the part of responsible authorities all the way through as regards securing the prosecutions, and victims, particularly overseas domestic workers, being aware of their rights and responsibilities, as we mentioned earlier. Therefore we totally accept that that needs to happen. The Government’s view has been put forward in consultation with their legal advisers and their own lawyers. However, I have said that I will seek clarification of this point and I will write to noble Lords over the remainder of Committee.
My Lords, I hesitate to intervene in this discussion, but the day before yesterday we talked about the strategy, which is undoubtedly a very good thing. That is the user-friendly tool for citizens when it comes to modern slavery, so in due course this should be addressed in such a document, because citizens will use it to see how they are covered by the Modern Slavery Bill.
The noble Baroness is absolutely right. Again, that gives me an opportunity to draw the House’s attention to the Modern Slavery Strategy, in particular section 4 on page 51, which relates to the remedies that are available to victims and the Government’s strategy in seeking to strengthen that through the work of the Independent Anti-slavery Commissioner and the Bill.
My Lords, I thank all noble Lords who have participated in this brief but telling discussion on this suite of amendments, and in particular on Amendment 34. I will make a couple of remarks.
First, I remember that when moving the amendment on forced labour and domestic servitude in what eventually became the Coroners and Justice Act 2009, we were initially told that everything was covered: “It’s all right—we can cover this under criminal law and civil offences”. Actually, through a process of discussion and consultation with practitioners in this field we discovered that it was not quite covered. We have moved on enormously since then, whereby we recognise that the kinds of harm done to people and the kinds of experiences that people have under this system are quite different to many other crimes. I draw the analogy between those two instances.
I am part of the brotherhood and sisterhood of non-lawyers—few of us that there are—in this House. Of course, I listen to the noble and learned Lord, Lord Mackay, and the noble and learned Baroness, Lady Butler-Sloss. However, what the practitioners and lawyers bringing these cases to court time and again have been telling us is that the specific nature of the offences committed under slavery, exploitation, forced labour and so on are not adequately covered. As they put it, the tort of trafficking—they are really specific about that—would be a way of sending out a signal and encouraging people to use it when criminal offences are not able to be brought.
That is the point that I would like to push back to the Minister. This is not intended to stop prosecutions or to put a halt to them or make a civil remedy more attractive than a criminal prosecution. This is not down to the victim—it is not about a victim choosing not to pursue a criminal prosecution. As my noble friend Lord Stevens said, there are a number of cases in which it is very difficult to bring criminal prosecutions. Without something really explicit that recognises the severe forms of harm that are done to people, I feel that victims/survivors are being cheated of redress and justice.
I am glad that the Minister has left a little opening by saying that there will be some consideration of this matter. I hope that he really means that. I would be perfectly happy to engage with him and/or his officials, and I am sure that the people with whom we have consulted would also be happy to do that to press this case a little more firmly as well as to try to find out the extent to which other civil offences are applicable in this case. Having said that, I beg leave to withdraw the amendment.
Amendment 34 withdrawn.
Amendment 35 not moved.
Clauses 8 and 9 agreed.
Clause 10: Slavery and trafficking reparation orders: supplementary provision
Amendment 36 not moved.
Clause 10 agreed.
Clauses 11 to 13 agreed.
Clause 14: Slavery and trafficking prevention orders on sentencing
Moved by Baroness Hamwee
37: Clause 14, page 10, line 4, after “satisfied” insert “beyond reasonable doubt”
The clauses provide that the court may make the orders if it is satisfied that there is a risk of commission of a slavery or human trafficking offence, and so on. As I say, this deals with two different clauses. I am aware of the assurance given by the Government in the Commons that the standard of proof required for the court to be satisfied is,
“akin to the criminal standard”.
This issue also arose when we debated the Anti-social Behaviour, Crime and Policing Bill. I raised the same point in connection with anti-social behaviour orders, and the Government at the last knockings of the Bill agreed to put the words “beyond reasonable doubt” into the Bill.
I appreciate that there are differences between that Bill and this. There was a reference elsewhere in that Bill to the civil standard of proof relating to another action that might be taken. I am aware also that the current sexual offences risk orders do not have this spelt out. However, in its report, the Joint Committee on Human Rights did feel that this should be made clear in the Bill. It said, at paragraph 1.38:
“In our view, an explicit reference to the applicable standard of proof on the face of the Bill would enhance legal certainty”.
It, too, referred to the Anti-social Behaviour, Crime and Policing Act 2014 and said that that would be in line with the drafting of that Act. It went on:
“Statutory provisions for civil orders of this type should make clear on the face of the Bill that the criminal standard applies and we recommend that the Bill be amended to put this beyond doubt”.
I do not think it intended any pun in that. I beg to move.
My Lords, I rise very briefly in support of the noble Baroness and thank her for tabling the amendment, which takes up one of the recommendations of the Joint Committee on Human Rights. We wrote to the Government about this and in response the Government stated that an explicit reference is unnecessary, due to case law that establishes the principle that in the context of civil orders applying to anti-social behaviour the requisite burden of proof is the criminal standard. That was a reference to the other Bill as well. However, given that I speak as another member of the non-lawyer sisterhood in your Lordships’ House, perhaps the Minister could explain a bit more about that. Would he not accept that the principle of legal certainty is a very important one, particularly in such a charged area?
The noble Baroness, Lady Hamwee, and my noble friend Lady Lister have made reference to the views of the Joint Committee. Of course, reference has been made also to the fact that similar amendments were discussed in the other place. As we know, the response of the Minister in the other place was that, although the orders would be obtained through civil proceedings, the Government accepted that the threshold would be akin to the criminal standard of satisfied beyond reasonable doubt, in line with relevant case law. The Minister in the other place went on to express the view that since the relevant clauses in the Bill already met the evidential threshold that appeared to be being sought in the amendments that were discussed in the other place, the amendments were not needed.
Naturally, I am assuming that the reply that we are going to get from the Minister will be in line with the response that was given by the Minister in the other place, but I hope that the Minister will respond also to the point that has been made about why there is a reluctance to put this on the face of the Bill so that there is no doubt at all about it.
My Lords, I thank noble Lords for speaking to this amendment and my noble friend Lady Hamwee for tabling it, which gives me the opportunity to explain the Government’s approach to safeguards in slavery and trafficking prevention and risk orders, and in particular the standards of proof required for the orders to be made. The purpose of these orders is to ensure that law enforcement bodies and the courts have appropriate powers to restrict the behaviour of persons who are likely to cause harm to another by committing a slavery or trafficking offence. For the prevention orders in Clause 14 and the risk orders in Clause 23, the courts must be satisfied that there is a risk that the individual may commit an offence, and that the order is necessary to protect a person or persons from the physical or psychological harm that would likely be caused by that individual committing a slavery or human trafficking offence.
These amendments seek to ensure that the court is required in each of these circumstances to be satisfied beyond reasonable doubt, which is the standard of proof in criminal courts, as has been mentioned. The intention of these amendments is to ensure that safeguards are in place to protect the rights of individuals on whom these orders will be imposed. I recognise the importance of ensuring that these orders, breach of which would be a criminal offence, are not made lightly.
Reference has been made to the Joint Committee on Human Rights. I take this opportunity to pay tribute to the work of that committee. There has been mention of the report that it has published recently. The Government are reflecting on that report carefully.
In this context, protecting the rights of the defendant is important. We have sought to draft these provisions to provide these protections and reflect the need to protect potential victims and remove the risk of harm to them, which is paramount. Although the proceedings by which these orders are obtained are civil proceedings, I put on record that the high burden of proof which applies by virtue of relevant case law in this area ensures that the threshold must in any event be akin to the criminal standard, as my noble friend said. This is the position in respect of existing orders under the Sexual Offences Act 2003, which have been used effectively for more than 10 years, and the new sexual harm prevention order and sexual risk order, and is therefore very well established. For these reasons, we do not believe that this amendment is necessary. Courts and practitioners are familiar with the existing evidential test. Departing from the established approach for these orders could cause uncertainty among practitioners and the courts, which may well reduce their effectiveness. There could also be a perception that, by expressly including a different and more rigid test in the Bill, we want these orders to be judged by a different standard from that applicable to the other orders, which would call into question why different approaches are taken in areas notwithstanding the similarities between them.
Under the system I have described, the court has flexibility in determining the standard to be applied and can take into account and balance all the circumstances of the case—for example, the seriousness of the risk posed by the defendant, the degree of relevance of each fact which must be proved by the applicant and the effect on the defendant of making the order. In the sex offending context, the courts have been able to carry out this exercise for many years in a way which protects both the rights of defendants and those persons at risk. Prescribing the standard as the criminal standard would deprive the courts of this necessary flexibility.
My noble friend made a comparison with the anti-social behaviour regime, to which she made a similar amendment. I think your Lordships will agree that, while anti-social behaviour can cause harm to both individuals and communities, it is not as serious as the horrific abuses of modern slavery. That is why we have modelled these orders on those which tackle sex offenders. Those orders do not prescribe the criminal standard of proof in legislation and were recently approved by Parliament.
I assure the Committee that there are several further safeguards as well as the standard of proof to ensure these orders are used appropriately. The type of harm to be prevented is specified and relates to very serious offences and statutory guidance will be issued, which will describe risk factors and categories of restriction which may be contained in an order. In determining what measures are necessary, the court must have regard to the rights of both the person at risk and the defendant under the European Convention on Human
Rights. The Government will also ensure that defendants will have the same access to legal aid as is applicable to other civil order regimes.
Legal aid was raised on an earlier amendment. Individuals concerned will have the right to appeal the making, variation or extension of an order and apply to vary or discharge an order if circumstances change. Given that clarification, the substantial safeguards to ensure appropriate use of the orders and my assurance that we shall, of course, continue to reflect on the valuable work of the Joint Committee, I thank all noble Lords who have spoken on this amendment but hope that my noble friend will feel able to withdraw it.
My Lords, I was not surprised by anything that my noble friend has just said; her reply was very much what I anticipated. However, given both the JCHR’s comments and the recent experience with another order considered by your Lordships, I felt that it was appropriate to flesh out the Government’s reasons. I entirely understand the point about case law and comparisons.
The one thing that troubled me about her reply, if I may say so, was the suggestion that because these offences are more serious than anti-social behaviour—I agree with that—it is therefore unnecessary to be clear about the standard of proof, in the way we were with anti-social behaviour. I hope that that does not in any way detract from what my noble friend said about the standard of proof being equivalent—her words were, “akin to”; but I understand that to mean “equivalent”—to the criminal standard of proof. I do not think that that was what was meant but it sounded a bit like it in one paragraph in the middle of her reply. If it is necessary to confirm that after today, I would be happy.
My noble friend is quite right. It was not the intention to imply that they were in any way worthy of less serious measures.
My Lords, the defendant may have been convicted and served a sentence but this seems to be another sanction. I know that if one looks at this through a different lens, the focus is on the victim. However, I thought it appropriate to table the amendment and raise some questions about the prevention orders because, as I say, this is, in effect, another sanction for the defendant for a sentence that has been served.
Clause 14(5) relates to the list of offences that can prompt these orders, including many offences that have already been repealed or which will be repealed when the Bill is enacted. The purpose of my amendment is quickly to probe whether it is the case that if the legislation creating such an offence has been repealed the orders can, following the conviction or finding of the court, or whoever makes the finding, nevertheless be applied. Are the prevention orders exactly the same as those which apply under current legislation? I am not sure whether I should use the word “retrospectivity”, but will they be prompted in the same way as they would be by offences under legislation that is no longer in force?
Thinking about this from the point of view of the potential subject of an order, I assume that there will be no particular arrangements regarding court proceedings. I am thinking of potential publicity. I assume that this will be in open court and there will be no anonymity for a defendant who may not have been convicted of anything to prompt the application for an order in court. I beg to move.
My Lords, I thank my noble friend for moving the amendment, which aims to clarify this part of the Bill. Slavery and trafficking prevention orders are available in respect of individuals who have been convicted of a slavery or human trafficking offence and who pose a risk of causing harm by the further commission of such offences, which makes it necessary to obtain an order to protect the public from that harm. The provisions already have retrospective effect to the extent that the offence, on the basis of which a person can become subject to a slavery and trafficking prevention order, may have been committed before the coming into force of the Bill. As my noble friend has pointed out, this is reflected in the list of relevant offences in Schedule 1. It is important that these measures can be sought in relation to all relevant offenders and that we do not leave a gap in the availability of the new orders in respect of individuals who have been convicted of old offences or offences replaced by those in the Bill. The offences listed in Schedule 1 include old offences, as well as offences that will be repealed by the Bill, but which nevertheless relate to similar activities as their modern equivalents to ensure that the orders can be sought in respect of all offenders who pose a risk to the public, regardless of whether that offence is still on the statute book.
I understand that there may be concerns that defendants are not penalised again having already received, and possibly served, sentences from the court, but this is not novel. There is similar provision in the Sexual Offences Act 2003 and the Anti-social Behaviour, Crime and Policing Act 2014 in respect of the new orders dealing with sexual harm. While this does not amount to formal retrospection, the provisions have retrospective effect in that conduct committed prior to commencement will carry potential consequences that the person concerned may not reasonably have expected.
Moreover, as slavery and trafficking prevention orders are intended to be civil, preventive measures and not a punishment, Article 7 of the European Convention on Human Rights, which prohibits the retrospective application of a penalty, would not apply. This is supported by the approach taken by the courts to ASBOs and other similar civil orders where the courts have been satisfied that such orders are neither a conviction nor a punishment. In other words, these measures do not involve the imposition of a penalty.
My noble friend asked whether these orders would take place in open court. I can assure her that they would be in open court. The general public interest in the law not being changed retrospectively is firmly outweighed by the need to be able to tackle those involved in slavery or human trafficking as soon as these provisions come into force. With those assurances, I hope that my noble friend will feel free to withdraw her amendment.
My Lords, this may be the longest grouping of amendments, but it may be one of the shortest debates. I note that the noble Lord and the noble Baroness opposite also have an amendment in the group. Amendment 39 and the other amendments in my name ask what place an immigration officer has, or should have, in instigating an application for a slavery and trafficking prevention order or a risk order. They are also to ask, if an immigration officer has this power, how it will work in practice. Are we talking about a suspicion at the border? If that is so, would it not be appropriate for the immigration officer to bring in the police, rather than for the immigration officer to start on this line of applying for one of these orders, even though, as the noble Baroness has said, it does not criminalise? Would the immigration officer have some power to detain linked with this?
I was prompted to table these amendments because of my concern not to confuse slavery and trafficking with immigration offences, at least to the extent of not letting it be thought that this is a problem that is being imported into this country—because, as in the title of the report from a year or so ago, it happens here. My questions are really about the operation of the provision and the place of immigration officers throughout these clauses, which is why there is such a long list of amendments. I beg to move.
My Lords, I shall speak to Amendment 39A in this group. Part 2 makes arrangements for slavery and trafficking risk orders and prevention orders. At present, Clause 15 makes provision for when a magistrate may make a slavery and trafficking prevention order against a person. A chief officer of police may make an application to the magistrates’ court, alongside an immigration officer or the director-general of the National Crime Agency.
However, a chief officer of police may make such an application only in respect of a person who lives in that chief officer’s police area or who the chief officer believes is in that area or is intending to come to it.
We tabled the same amendment in the other place to question whether a chief officer may also be able to make an order with respect to someone who has previously been to their area or has had connections with the area. The current drafting of this clause does not cover that possibility. At present, it would be possible for a chief officer to apply for a trafficking prevention order for someone in their area but not for anyone who had previously been there and who may still have connections with the area through friends, family or business or in other ways.
I will adapt an example given by my right honourable friend David Hanson in the other place. At present, it is possible for the chief constable of Gloucestershire police to apply for a trafficking prevention order for someone who lives in the Forest of Dean, which is my area. She could also do that if she thought that they were in or would come to the area. There might be individuals who were previously involved in trafficking in my area but who are not currently resident in the area or intending to return there, but they might have connections with it through their family or business or in other ways.
I tabled the amendment because paragraphs (a) and (b) of subsection (4) do not cover every base, but the amendment could mean that the police would have full powers. To use my area of Gloucestershire again, it is quite possible that an individual could conduct activity that should be covered by a slavery and trafficking prevention order but the chief of police is not able to make an application for an order because the individual does not live in the area, is not in the area and does not intend to come to the area, although they have been to it previously or have connections with it.
In her response, the Minister in the other place said that in such a case the chief officer would be able to ask the National Crime Agency or the police force where the individual resides to take the appropriate steps to make an application for an order. In addition, the new Independent Anti-slavery Commissioner would be able to ensure that police officers could work coherently and co-operatively. While of course that is welcome, it is not certain, and the functions of the commissioner as outlined in Clause 41 do not reflect this.
Furthermore, the Minister was hesitant when asked what would happen if an individual left the area. The chief officer would not be able to take any action and would have to rely on other police forces to act. This could be dangerous, weaken the application of slavery and trafficking prevention orders and allow perpetrators to slip through the net. Personally, I do not see the harm in giving an extra power in this subsection to extend it to individuals who may not be covered in paragraphs (a) and (b).
In the Public Bill Committee in the Commons, the Minister, Karen Bradley, indicated that she was willing to reflect on this. It would be good to know whether the Minister was able to provide us with any reassurance on this issue.
I thank my noble friend and the noble Baroness, Lady Royall, for tabling these amendments. They raise the important issue of who should be able to use the slavery and trafficking prevention orders or slavery and trafficking risk orders proposed in the Bill, and indeed they relate to the powers of the police across different areas of operation.
The first orders have been designed to manage the risk of harm that would be caused by an individual committing a modern slavery offence. In developing the Bill, the Government have considered carefully who is best placed to be given the powers to apply for these orders and to be involved in the subsequent steps of the process, whether it is receiving the name and address details or applying for variations, renewals or discharge, or whether it is the persons for whom the guidance is intended.
The amendments, although not Amendment 39A, seek to remove immigration officers from the category of persons who can apply for an order. However, the cross-border nature of modern slavery means that it is often linked to immigration crime, and the individuals in the best position to deal with immigration crime are immigration officers. It is therefore appropriate for this group of law enforcement officers to have these powers. They already have law enforcement powers in this country and investigate and support prosecution of immigration and trafficking offences. Given the international nature of modern slavery, this power is appropriate, and to remove them from the list would restrict the role that immigration officers can play in dealing with traffickers and those likely to commit trafficking offences. It means that they would be required to call on the police to apply for the orders, which would add unnecessarily to the burden on the police and, of course, would cause delays as well.
I entirely understand that it is important to ensure there are safeguards in place so that immigration officers apply for these orders only in appropriate circumstances. The legislation is drafted using existing recognised legal persons, and the specific positions of more senior staff in immigration enforcement are not set out in legislation. However, I can assure the House that we will establish, through Home Office policy, that any decision to apply for a slavery and trafficking prevention or risk order by an immigration officer must be approved by the director of criminal investigations within the Home Office. I hope that those assurances will enable my noble friend to withdraw her amendment.
Amendment 39A seeks to include chief police officers for an area with which the defendant previously had a connection in the category of persons who can apply for an order. The role of the preventive orders is to look forwards to prevent the harm that could be caused by future crimes. The provisions about who can apply for an order reflect that. As the noble Baroness, Lady Royall, indicated, this was discussed in the other place and the Government’s position has not shifted from that. In cases where an individual no longer lives in an area, but the chief officer of police has reason to believe they are likely to return, there is a future risk of harm in that area and the chief officer can apply for the orders under the Bill as it stands. As the noble Baroness mentioned, in the few cases where an individual posing a risk is unlikely to return to an area, it would be appropriate for the police to inform the National Crime Agency, as it would be logical for it to take this forward across police boundaries, or indeed the police force for the area where the individual resides. Those two bodies would be best placed to manage the risk posed by an individual where they live now. We shall be coming on to discuss the role of the commissioner in more detail later in the Bill.
Clause 15 as drafted provides appropriate powers for the police in relation to slavery and trafficking prevention orders. For the moment we see no reason to take that further forward. We are satisfied that that will cover the cases in the Bill. Given that clarification, I hope that the noble Baroness will not press her amendment.
My Lords, I thank my noble friend for that reply. She said that the Government would not want to restrict the role of immigration officers. I still find it not so much confusing, but carrying the danger of muddling the issues in the way I explained. What intrigues me, in particular, and I am grateful for the assurance, is that the approval for an application would have to be made by the director of criminal investigation within the Home Office. If that is so, why cannot the police take the matter on and not involve the Immigration Service? I think I had better leave that question hanging and beg leave to withdraw the amendment.
Amendment 39 withdrawn.
Amendment 39A not moved.
Amendments 40 to 43 not moved.
Clause 15 agreed.
Clause 16 agreed.
Clause 17: Effect of slavery and trafficking prevention orders
Moved by Baroness Hamwee
44: Clause 17, page 12, line 9, at end insert—
“( ) The Secretary of State shall by regulations specify the prohibitions which may be included in an order (including an interim order) or any variation of it.”
My Lords, under the Bill the court can make a prohibition for any period, and the criterion is that the prohibition is “necessary to protect” a particular person or persons generally from physical or psychological harm likely to arise from slavery or a trafficking offence by the defendant. Obviously, that goes very wide in terms of the court’s powers. The Joint Committee on Human Rights made the point—I hope that I am not stealing the noble Baroness’s thunder again—that there should be certainty as to the prohibitions which can be applied and recommended that there might be, for instance, an indicative list of the sorts of prohibitions that can be imposed in such orders. Considerations of legal certainty should also be given prominence in the development of the statutory guidance. That statutory guidance will apply to the police, to immigration officers and the NCA. I am not sure where the courts stand in this and whether it is improper to issue guidance to a court. The police can apply for a particular prohibition order and the court will have unlimited discretion.
It seems to me that if these prohibitions are capable of being set out in guidance, they are capable of being set out more formally. My amendment proposes that they should be included in regulations rather than in guidance. That would provide certainty as to what prohibitions might be applied and give Parliament the opportunity to debate those prohibitions, and having regulations rather than primary legislation would allow for quite a degree of flexibility. Wishing to see certainty and not to provide completely unconstrained discretion without knowing until case law has developed what might be included in the prohibitions, I am proposing the use of regulations. I beg to move.
My Lords, the noble Baroness has not stolen my thunder at all, and again I am most grateful to her for tabling this amendment. It picks up on the recommendations made by the Joint Committee on Human Rights. I want to make one additional point on why this raises an important question of human rights. As we said in our report:
“In order to ensure compatibility with the right to respect for private life, any restriction must satisfy the requirements of legal certainty. It is essential that prohibitions contained in the orders are clear, as a breach of an order is a criminal offence”.
My Lords, I thank both noble Baronesses for speaking to these amendments. They raise the important issue of the prohibitions that can be imposed by the slavery and trafficking prevention orders and risk orders. Prevention is critical to tackling modern slavery effectively and the purpose of these orders is to enable the courts to impose prohibitions on individuals who are believed to pose a risk of causing harm by the commission of a slavery or human trafficking offence. It is important that these orders provide law enforcement agencies and the courts with the ability to respond flexibly to the risks posed by an individual. Clauses 17 and 24 make it clear that slavery and trafficking prevention orders and risk orders will only contain prohibitions that the court is satisfied are necessary for the purposes of protecting people from the physical or psychological harms that would be likely to occur if the defendant committed the slavery or human trafficking offence. These prohibitions can be imposed anywhere in the UK or outside of the UK, they can be for a fixed period of at least five years, and some prohibitions may apply for longer than others.
To enable law enforcement agencies and the courts to respond to changing slavery and human trafficking practices and to tailor prohibitions to the specific risk posed by individuals, we have deliberately not specified the types of restrictions that can be included in the orders. This makes them flexible and capable of restricting any activities that a person undertakes if the court considers it necessary. The approach is in line with existing orders relating to the prevention of sexual harm. Making the amendment requested by my noble friend would restrict the flexibility that these orders need to have. We believe that we have already set substantial and appropriate safeguards to ensure that orders will only be used in appropriate circumstances when necessary to stop the harm caused by these very serious offences, by requiring that the court is satisfied that they and the prohibitions that they include are necessary.
I appreciate the power of the argument of my noble friend and the noble Baroness, Lady Lister, and of the arguments of the Joint Committee on Human Rights to ensure that operational law enforcement partners are clear on the types of prohibitions that might be helpful. In line with the Joint Committee on Human Rights recommendation we shall ensure that the statutory guidance in relation to the orders will include guidance on appropriate prohibitions. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.
My Lords, of course I shall seek leave to withdraw it. I had hoped that by referring to regulations that I described as having a degree of flexibility I might have met the point that I anticipated would come. Wanting flexibility in the range of prohibitions that might be applied raises in one’s mind a concern that they might be changed quite frequently. That would go against the certainty that we are seeking. However, I hear what my noble friend has to say and a little more clarity in the guidance will certainly be welcome. I beg leave to withdraw the amendment.
Amendment 44 withdrawn.
Clause 17 agreed.
Clause 18 agreed.
Clause 19: Requirement to provide name and address
Amendments 45 and 46 not moved.
Clause 19 agreed.
Clause 20: Variation, renewal and discharge
Amendments 47 to 50 not moved.
Clause 20 agreed.
Clauses 21 and 22 agreed.
Clause 23: Slavery and trafficking risk orders
Amendments 51 to 56 not moved.
Clause 23 agreed.
Clause 24: Effect of slavery and trafficking risk orders
Amendment 57 not moved.
Clause 24 agreed.
Clause 25 agreed.
Clause 26: Requirement to provide name and address
Amendments 58 and 59 not moved.
Clause 26 agreed.
Clause 27: Variation, renewal and discharge
Amendments 60 to 63 not moved.
Clause 27 agreed.
Clauses 28 and 29 agreed.
Clause 30: Offences
Moved by Lord Rosser
63A: Clause 30, page 22, line 15, leave out “not exceeding £5,000”
My Lords, there are two amendments in this group and perhaps I may explain the purpose behind them.
Amendment 63A removes the maximum amount of the financial penalty that can be given for the breach of a slavery and trafficking risk or prevention order, as laid down in Clause 30(3)(b). Amendment 102A is in response to the Delegated Powers Committee report published last week on the power in Clause 30(5) that allows the Secretary of State to amend Clause 30(3)(b),
“to increase or remove the limit on the amount of the fine”.
Clause 30 sets out the penalties that could be imposed on an individual for breaching a slavery and trafficking risk or prevention order or an interim slavery and trafficking risk or prevention order. The penalties are,
“imprisonment for a term not exceeding 5 years”,
on conviction or indictment, and,
“imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000 or both”,
where there has been a summary conviction. In the other place we questioned the need for the £5,000 limit, both in relation to the limit and how appropriate it would be and the relationship between this and the provision that is coming into force in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would remove any upper limit on maximum fines in the magistrates’ courts.
In respect of the first amendment, while a prison sentence is adequate and serious, we are concerned that the £5,000 limit is too low. People trafficking is a profitable business where criminals make large sums of money at the expense of victims, and in order to tackle slavery and human trafficking we need to ensure that penalties act as a sufficient deterrent.
The Delegated Powers Committee was concerned about Clause 30(5) on penalties, since it confers a power on the Secretary of State,
“to increase or remove the limit on the amount of the fine”,
by regulations, subject to the negative procedure. The Government have said that this power has been included in order to allow for the removal of the limit on the fine when Section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. That section removes the £5,000 upper limit for fines which may be imposed on summary conviction in respect of offences that have been enacted before the date on which that subsection is brought into force. But that subsection has not yet been brought into force and the Minister in the other place said that the subsection would come into effect before this Bill receives Royal Assent and that this is why Clause 30(5) contains the provision in question in order to bring the Bill into line with the new policy.
However, the Delegated Powers Committee considers that,
“it is only justifiable to rely on section 85(1) for the use of the negative procedure where the power is exercised within a reasonable period of the commencement of that provision. Accordingly, we consider the power under clause 30(5) to increase or remove the limit under subsection (3)(b) should only be subject to the negative procedure where it is exercised during the period of 12 months beginning with the day on which section 85(1) is brought into force. In any other case, the power should be subject to the affirmative procedure”.
Achieving that is the thrust of our Amendment 102A, which I appreciate refers to the regulations being made,
“12 months after the passing of this Act”,
rather than 12 months beginning with the day on which Section 85(1) is brought into force, which is what I think the Delegated Powers Committee was seeking. I hope that the Minister will feel able to accept either the terms of our amendment on this point or alternatively—and we would certainly be quite happy with this—the Delegated Powers Committee’s recommendation, to which I have already referred. I beg to move.
As the noble Lord said, Amendment 63A seeks to remove the limit to the fine that can be imposed on summary conviction for not complying with a slavery and trafficking prevention or risk order. As he set out, these maximum fines have been set in line with existing limits on fines commensurate with the offence committed, and are in line with equivalent provision in relation to the sexual harm prevention order and the sexual risk order, which were passed in the previous Session of Parliament as part of what is now the Anti-social Behaviour, Crime and Policing Act 2014.
To ensure that the measure can respond flexibly to future changes in sentencing policy, Clause 30 also provides for the Secretary of State to amend or remove the maximum amount of the fine which may be imposed for summary conviction for breach of an order.
The Committee will be aware that, as the noble Lord has set out, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a provision which, when commenced, will remove an upper limit on maximum fines in the magistrates’ courts, which are on the commencement day set at £5,000 in the type of circumstances covered by this provision. We anticipate that by the time that the Bill reaches Royal Assent, the limit on fines imposed in the magistrates’ court will have been removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would make this amendment unnecessary. So I do not believe that we need to remove the £5,000 limit at this point.
Amendment 102A would make any future amendment to the level of fine by regulations subject to the affirmative resolution procedure if it takes place more than 12 months after Royal Assent. As the noble Lord said, this is in line with a recent recommendation of the report by the Delegated Powers and Regulatory Reform Committee. We welcome that report and will consider it carefully ahead of Report, including the recommendation on this provision.
Given that clarification and my assurance that this matter will have further consideration, I hope the noble Lord will feel able to withdraw this amendment.
Amendment 63A withdrawn.
Clause 30 agreed.
Clauses 31 and 32 agreed.
Clause 33: Guidance to chief officers of police etc
Amendment 64 not moved.
Clause 33 agreed.
Clauses 34 to 37 agreed.
Schedule 2 agreed.
Clauses 38 and 39 agreed.
Clause 40: The Independent Anti-slavery Commissioner
Moved by Lord Warner
65: Clause 40, page 30, line 26, leave out subsections (3) and (4) and insert—
“(3) The Secretary of State shall pay remuneration and allowances to the Commissioner, and—
(a) shall before the beginning of each financial year specify a maximum sum which the Commissioner may spend on functions for that year,
(b) may permit that to be exceeded for a specified purpose, and
(c) shall defray the Commissioner’s expenditure for each financial year subject to paragraphs (a) and (b).
(4) The Commissioner may appoint staff and secure accommodation, equipment and other facilities, within the financial limits under subsection (3).”
My Lords, the amendment is in my name and that of the noble Lord, Lord Patel. My concern here is to make a greater reality of the independence of the anti-slavery commissioner by giving the postholder control over choice of staff and accommodation and suchlike within an agreed budget.
I believe that subsections (3) and (4) of Clause 40 give the Secretary of State too much detailed control over the commissioner that will in practice jeopardise their independence and will certainly jeopardise the perception of their independence, which is just as important.
I recognise that on Report in the other place the Government tried to respond to criticism by placing “independent” in front of “anti-slavery commissioner” in the Bill. That is certainly an advance, but it does not go far enough and does not meet the criticisms and recommendations in the report of the Joint Committee on the draft Bill, which are summarised in paragraphs 154 and 155 of that report.
As a member of the Joint Committee, let me briefly remind the Committee of a key passage in those paragraphs, which states:
“The draft Bill does not offer sufficient protection for the Commissioner’s independence in the long term. Failure to do will undermine the Commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups whose role in combating modern slavery is well-recognised”.
That is the central purpose of my amendment: to strengthen trust in the independence of the commissioner, with some specific ways of giving the postholder greater independence.
As the Joint Committee’s report went on to say, the anti-slavery commissioner is being treated less favourably in terms of independence than other comparable commissioners appointed by the Home Secretary: namely, the Independent Reviewer of Terrorism Legislation and the Independent Chief Inspector of Borders and Immigration. A critical part of independence in these posts is the clear right to appoint your own staff, to which I would add the symbolism of not being located in the same building as the government department that appoints you.
Those two issues—independence in selection of staff and premises—are in my amendment. I regard them as critical to conveying to the outside world the independence of the commissioner. That is even more the case if the commissioner’s remit is to be widened beyond the scope of the Home Office—a subject that we shall turn to in the next group of amendments.
My amendment is based on personal experience as a battle-hardened Whitehall warrior; it is not just a theoretical fancy. Let me briefly share with your Lordships my experience as the first chairman of the Youth Justice Board back in 1999, when I had to set it up with a chief executive and a secretary. The board was, in statute, clearly an independent body. However, that did not stop the Home Office encouraging our location within the Home Office, kindly offering us staff and, when we refused that, pushing on with endless reporting and meetings over our independent activities.
Control is in the Home Office DNA—whoever is the Home Secretary and whatever individual Home Secretaries may say. The default setting for the average Home Office civil servant—with due respect to those in the Box—is to protect the Home Secretary, irrespective of whether the Home Secretary needs or even wants protecting. Staff seconded to the commissioner will return to their department, and they will not be welcomed back with open arms if they are deemed to have allowed the commissioner endlessly to flourish attitudes independent of the Home Office on any specific issue. In any case, we put those staff in an impossible position by sending them to a commissioner’s office. They are conflicted: do they look after their future career or do they do what the commissioner wants if he or she wants to strike out independently?
It is this experience that has convinced me to run my own show as Birmingham’s children’s commissioner and politely decline friendly offers of support from DfE officials. I suspect that the newly appointed commissioner will run into trouble at some stage over the staffing issue if we do not give him more freedom to manoeuvre with an amendment similar to mine.
I am very supportive of the other similar amendments in the group. All I would like the Minister to do today is to accept that we have a considerable point and agree to consider with us an amendment which meets the concerns I have expressed. I regard the independent commissioner’s right to appoint their own staff as absolutely crucial to their success. I beg to move.
My Lords, I shall speak to Amendments 65A and 69A in this group, and I of course welcome Amendment 65. I endorse everything that has been said by my battle-hardened friend, who speaks from experience.
We on these Benches are very supportive of the new anti-slavery commissioner, who will undoubtedly play a pivotal role in our fight against modern slavery. Although we acknowledge and are grateful for the good work that numerous central government departments, local government agencies and NGOs do in this area, a main point of contact to co-ordinate and oversee the entirety of the work to tackle modern slavery is invaluable—vital.
The Centre for Social Justice’s report looking into modern slavery in 2013 stated:
“Such diverse activity requires independent oversight and coordination for it to be effective”,
“There is significant need in the UK for the appointment of a single individual to oversee efforts to fight modern slavery in the UK, in light of the disparate national response”.
So we warmly welcome the introduction of this post. As noble Lords will know, Kevin Hyland has already been appointed as the new commissioner. I am sure that this gentleman will do an excellent job and we welcome him to his post. However, I feel that it is a premature appointment; it has been made before this House has even finished its debate on this role and finalised its discussions. It cannot be right that any appointment is made before the job description is finalised. I just do not think that is the correct way to proceed.
At present, we do not feel that the clause as drafted would ensure that the independence of the anti-slavery commissioner is embedded. We thank the Government for introducing “Independent” into the title of the role but the insertion of the word is simply not enough. By merely calling the role independent without providing the structure to make that independence possible, the Government are almost setting the commissioner up to fail by making it virtually impossible for him to meet the expectations created by the title “Independent Anti- slavery Commissioner”. The funds, staff, accommodation and other facilities will still be determined by the Secretary of State, after consultation with the commissioner.
Amendment 65A, which is similar to that in the name of my noble friend Lord Warner and the noble Lord, Lord Patel, would change the wording of the clause to ensure that the Secretary of State may only determine how much money to give the commissioner, without having any involvement in the appointment of the staff or other matters. At Second Reading, the Minister stated:
“The commissioner’s role is set out in a similar way to other commissioners”.—[ Official Report , 17/11/14; col. 239.]
However, I beg to differ. Having looked at the Borders Act 2007, we have used the same language and inserted it into our first amendment to enable this anti-slavery commissioner to have the same independence as others in similar roles. That is the same approach taken by the draft committee, which also adopted this wording in its alternative modern slavery Bill. Alongside this, the independent reviewer of terrorism stressed the need for a truly independent commissioner to the draft Bill committee to put it on an equal footing with himself and similar appointments, such as that of the Children’s Commissioner.
Our second amendment, Amendment 69A, is to ensure that the commissioner has full independence with regard to his activities, timetables, priorities, resources and funding. It has been drafted by the Anti-Trafficking Monitoring Group, with the help of respected and experienced barristers and legal experts. Rapporteurs in other European countries, such as the Dutch national rapporteur, all cite their autonomy and independence as being crucial to their role. We absolutely have to ensure that the wording in the Bill reflects the true independence of the commissioner. Although we know that the current Home Secretary visualises a strong and leading role for this commissioner, which is terrific, the same may not be said for any future Home Secretaries or Ministers down the line—and her assurances must be consistent with the language in the Bill. I note what my noble friend said about the Home Office as an institution.
The Independent Police Complaints Commission stressed the importance of the commissioner being able to appoint their own staff and said that the perception of that independence, if not its reality, may be affected by its statutory closeness to the department—in this case, the Home Office. The independent reviewer of terrorism legislation, David Anderson QC, told the committee that roles such as the one performed by his specialist adviser were essential, and that it was consequentially essential that he made the decision about the appointment himself. The Independent Chief Inspector of Borders and Immigration, John Vine, also pointed out the benefits of the commissioner being able to appoint their own staff in that they should be able to advertise for the roles freely and choose from a good mix of skills and applicants.
In written evidence, the Home Office stated that its intention was to have a small team of civil servants supporting the commissioner. If that situation arose, it is all very well to support but we do not want those people to be appointed by the Home Office. Is the Minister able to shed light on how they would be able to work in an independent manner if they were, at the end of the day, accountable as employees to the Home Office? There would seem to be a friction there.
In the Government’s response to the draft committee, they said:
“It would not be effective or efficient for such a role to be supported by an independent human resources function”.
Surely, appropriate assistance could be provided to the commissioner when choosing his own staff, if it were necessary and requested.
Our concerns were also echoed by the Joint Committee on Human Rights, which said that,
“the Commissioner looks very much like a creature of the Home Office, with very little interaction with Parliament”.
Notwithstanding the matters in Clause 41, which we will speak about next week, the Joint Committee also pointed to the inability of the commissioner to appoint their own staff. The committee recommended that the Bill be amended to change this, otherwise the commissioner’s operations would be largely controlled by the Home Office, as I have said before.
The location of the role within the Home Office and its lack of structural independence mean that questions about transparency and independence will hang over any reports made by the commissioner, which takes me back to what my noble friend said about trust. It is vital that this person and the reports that they provide must have the full trust of the citizens of this country, especially those who are subjected to the evils of slavery. It is important that the anti-slavery commissioner is seen to be independent of the Government and has the ability to co-operate with other groups, organisations and sectors, which is a huge part of their role. The Finnish and Dutch models both have clear organisational frameworks that are widely considered to be successful in fighting human trafficking, so why are these models and that real evidence of good practice from other countries not considered appropriate when considering our own version? What is different about our system?
Once again, we welcome the new role of the Independent Anti-slavery Commissioner, but we are concerned about the independence. The current drafting of the Bill does not have the adequate statutory safeguards intended, and leaves the role open to misuse in the long term. This is not only inconsistent with the roles of other international commissioners but inconsistent with our own other independent commissioners, reviewers or chief inspectors as laid out in other legislation. When questioned, the Government have recognised the significant differences between the legislative frameworks governing the Children’s Commissioner and the proposed anti-slavery commissioner, but they somehow still maintain that both models produce independent bodies. For all the reasons given, I simply cannot understand how this can be the case.
We have tabled Amendment 65A because we believe that to accomplish the high aims envisaged for the commissioner, they must also be able to challenge the Government as well as local authorities and law enforcement agencies. It should not be necessary to rely on the personal gravitas, expertise and independent-mindedness of the individual appointed as the commissioner; rather, the commissioner should be equipped with the resources and statutory independent status necessary to play the role of a critical voice both in private and in public.
My Lords, I support the amendment of the noble Lord, Lord Warner. As a member of the commission, I thought originally that the Government putting in the word “independent” was sufficient. I have to say that I have been reflecting on that, though. I have listened to what the noble Lord, Lord Warner, and the noble Baroness, Lady Royall, have said about this, and I have gone back to what was said by our Select Committee. The noble Baroness has set out many of the points that were made under Part 4 of our report, particularly in paragraphs 146 and 147. There was one quotation she did not make, though, which was from the Independent Police Complaints Commission. It stresses the importance to the commissioner’s independence of the freedom to appoint staff, saying:
“The perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner)”— really a very important part—
“the Anti Slavery Commissioner … will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department”.
In our recommendation, we point out that failing to have sufficient protection for the commissioner’s independence in the long run will undermine the commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups, whose role in combating modern slavery is well recognised.
On Monday I made a point to the Minister about perception and the enormous importance of the Bill being seen as an iconic Bill that will lead not just in this country and Europe but across the world. I do not doubt the integrity of Kevin Hyland and have great respect for him, but the anti-slavery commissioner must have the ability to speak independently and a group of staff on whom he can rely to be responsible to him, rather than to the Home Office. If he does not have that, it will have a real impact, I regret to say, on the ability and willingness of NGOs to want to deal properly with the anti-slavery commissioner. This is a very important point, and the more I have thought about it, particularly listening to the two speeches that the Committee has just heard, the more I think that the Minister should take this matter away and reflect upon it. To have entirely Home Office staff appointed by the Home Office will not look good to NGOs.
I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.
I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.
Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.
My Lords, I support all these amendments, which aim to ensure the genuine independence of the anti-slavery commissioner and to establish a relationship with Parliament. As I said, they are very much in line with the recommendations of the Joint Committee on Human Rights, of which I am a member. I am grateful to all noble Lords who tabled them; a very powerful case has been made. I apologise if I echo some of the arguments, but some of them bear repetition.
The JCHR welcomed the creation of the office of the anti-slavery commissioner as,
“a potentially significant human rights enhancing measure”.
However, whether it fulfils that potential depends very much on it being genuinely independent of government. As we have heard, a very constructive debate in the Public Bill Committee led to an amendment on Report which added “independent” to the statutory title of the commissioner, as my noble friend Lord Warner, explained. I welcome that, as it reflected the all-party consensus around the importance of the commissioner’s independence. As the JCHR observed,
“the post cannot be made genuinely independent merely by adding a label”.
We listed the provisions and omissions that mean that it cannot be described as independent in any meaningful sense, which are for the most part covered by noble Lords’ amendments, so I will not go through them.
In light of those severe limitations on the commissioner’s independence, we asked the Government in what sense the role is independent and why it is less so than the Office of the Children’s Commissioner.
Their response was to accept that there were significant differences in the legislative framework governing the two bodies, but, as we heard, they maintained that both models produced independent bodies. Yet the widespread view both inside and outside Parliament is that that does not constitute independence because, as the JCHR said, the role would largely be controlled by the Home Office, serving simply as an adjunct to it. My noble friend Lord Warner spelt out very graphically what that might mean in practice.
This debate on what constitutes independence brings to mind the famous exchange between Humpty Dumpty and Alice:
“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’
‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’”.
I thought that was rather appropriate in the context of a debate about slavery. Surely, ultimately, in deciding what constitutes independence here, Parliament should be the master, and the related concern of the JCHR, taken up in the amendment in the name of the noble Baroness, Lady Hamwee, was the commissioner’s relationship to Parliament.
The JCHR has sought to strengthen the relationship between Parliament and a number of bodies which form part of the human rights machinery, including the Office of the Children’s Commissioner, and I very much commend the way the Government have strengthened and ensured the independence of that office. We stated in our report:
“In our view, the Anti-slavery Commissioner proposed in this Bill has the potential to be another part of that machinery with an important human rights role”.
However, we were surprised and disappointed, to put it mildly, by the Government’s statement that they do not see the commissioner’s role primarily as part of the national human rights machinery. I find it extraordinary that in one of the most human rights-enhancing Bills brought forward by the Government, the machinery to implement it is not seen as part of the human rights machinery. Can the Minister explain why, and does he accept that that rather diminishes the potentially human rights-enhancing role of the Bill?
We have heard from members of the Joint Committee on the draft Bill how that committee itself stressed the importance of the independence, which is crucial for both credibility and establishing the trust of NGOs and other stakeholders. I would add to that list, most importantly, the victims of modern slavery themselves. The committee heard from the Dutch equivalent, who said that,
“the long-standing effectiveness of her own role lay in its statutory independence and the trust engendered as a consequence”,
as my noble friend Lady Royall has said. It expressed sympathy with,
“those who cautioned against relying on either the good intentions of the holder of the office of Home Secretary”.
We all know and appreciate the commitment of the current Home Secretary on the issue of modern slavery. But when even the autonomy of the Chief Inspector of Borders and Immigration has been undermined by the Home Secretary’s recent refusal to publish five inspection reports, leading to his recent warning to the Public Accounts Committee that the independence of his role has been compromised, that must send out warning signals for a role that has less statutory independence.
I have not been in the House that long, but it is not often in my experience that Bills come here with such widespread support for the basic principles. It seems such a shame to tarnish that by refusing to acknowledge the case that we should treat the commissioner—who after all will be upholding the human rights of some particularly vulnerable groups—as part of our important human rights machinery, and according the role the independence that it deserves and requires to be trusted and effective.
I have added my name to the amendment in the name of the noble Lord, Lord Warner. Powerful arguments have already been presented as to why there is a need to make the role of the commissioner truly independent, and I strongly support that. The noble and learned Baroness, Lady Butler-Sloss, also referred to the evidence and the comments made by the Joint Committee in the scrutiny of the draft Bill. I further add that the role needs to be truly independent. When we come to discuss the functions, as we will on Monday, there will be several amendments, including mine, which we will no doubt debate at length. Those are important amendments. If we put the two groups of amendments together, it will make it even clearer why the role of the commissioner needs to be seen and defined as truly independent.
My Lords, I make a brief comment on this debate from my experience of setting up the Supreme Court. One of the concerns in moving the appellate jurisdiction from this House to the Supreme Court was the risk of its not establishing its independence from the Executive, which was of course never in doubt when the Appellate Committee sat in this House. One of the surprising struggles that we had to have at the beginning of the Supreme Court’s existence was in persuading officials in the Ministry of Justice that they did not really have any say over how the Supreme Court ran its affairs. It took some time to establish that point—and, in particular, that the chief executive, on whom the court depends for so much of its running, was to be answerable to the President of the court and not to the Lord Chancellor. Of course, that battle has been won and is now in the past, and the relationship is perfectly harmonious. But the fact that it took something like two or three years to establish that point was a lesson. It was not spelt out in every detail in the legislation that set up the Supreme Court, which was deliberately simple and easy to understand. I wish to stress that it is vital to get this sorted out at the very beginning, because opportunities for doing so later in legislation do not occur very often. I hope that the Minister will take that point into account as well as the others.
My Lords, this has been an extremely interesting and welcome debate, and I pay tribute to the noble Lord, Lord Warner, for introducing it. He slightly got me on the wrong foot, from my limited experience of the Home Office, when he said that control is in its DNA. Many of us were thinking, “Would that it were so”. It is something that of course is very important, when we are talking about the anti-slavery commissioner. Before coming to the specifics of the amendments, I wonder whether I might note some general principles about where we are coming from. All the way through, I have been very grateful that on all sides of the House there seems to be genuine good will about where the legislation is going and a genuine desire to improve it on its passage.
When we began with the process of the Modern Slavery Bill and of putting in the commissioner, it was a very specific role. It was saying that the problem was that there were far too few prosecutions occurring because there was far too little understanding among victims of their rights of redress and far too little understanding among police, prosecuting authorities and those responsible at local authority level for them to come forward and make sure that victims are protected. That was the reason the role was set out as it was. There was a distinct argument that it was, effectively, for someone—I am searching for a more gentle legal term—to put a rocket behind the individuals on the front line to ensure that we do more to tackle this.
Then, of course, we had the appointment of the Independent Anti-slavery Commissioner designate, Kevin Hyland. He comes with impeccable credentials that were widely recognised at Second Reading when his appointment was announced, subject to the passage of the Bill. We recognised that here was somebody with excellent credentials, both from a law enforcement point of view and also from a victim’s point of view. We then added to that an element that was very clear from the pre-legislative scrutiny. The initial argument for the commissioner was that the Home Secretary wanted to have somebody, basically, who woke up every morning and went to bed every night thinking, “What have we actually done to clamp down on modern-day slavery?”
It then went through pre-legislative scrutiny, which identified that there needed to be a degree of independence in the role. There was a debate about that. There was a very strong belief, to which the noble Baroness, Lady Lister, referred, that the commissioner should have a specific role in relation to victims. Again, those messages were taken on board. As my noble friend Lady Hamwee said, there was also a view that there should be a sense of parliamentary involvement and accountability in this. Therefore, through that process, we designated the anti-slavery commissioner to be independent, in the very name. I accept that it is a name and that that needs to be backed up by action.
There was then the annual report that was going to be laid before Parliament, in accordance with previous legislation on how that is done. That then would give rise to debate, discussion and analysis and I am sure that the Independent Anti-slavery Commissioner will be a frequent visitor to the Select Committees and committees of your Lordships’ House and in another place. So this was very much the direction in which we were going. Where there is, perhaps, a little resistance, it is because we do not want to load this individual, capable through he is, with so many different responsibilities or make his entourage so wide that he loses sight of the fact that he has a very specific and serious task, which is to ensure that he brings more perpetrators of these evil crimes to justice in the courts.
In that context, there are other elements set out in the strategy—for example, that the role would involve working closely with others. It refers to a partnership with the Home Secretary. That is a crucial element. The department to which the police and the border agency are accountable needs to work in partnership with others to tackle this issue. The Modern Slavery Strategy, published last week, states at page 29:
“The Commissioner will also work closely with the Inter-Departmental Ministerial Group (IDMG) on Modern Slavery, whose remit is to oversee and coordinate anti-modern slavery efforts across the UK and bring about important and necessary change at the right level”.
That is a key part of the role. However, I accept that there are specific roles.
I very much wanted the noble and learned Lord, Lord Hope, to talk more about his experiences. I imagine that it would be very interesting to learn more about the setting up of the Supreme Court. I am sure that noble Lords would be very interested to hear about that. However, the noble and learned Lord also talked about the evolving role and said that it took two to three years to establish these things and that there was a sense of finding them out. We have always said from the outset that this Bill is a first step down the road towards tackling this crime which has been identified and therefore we want to make it as strong as possible.
Other commissioners were mentioned. The noble Lord made reference to the Victims’ Commissioner who is located in the Ministry of Justice. The Children’s Commissioner, to whom the noble Baroness referred, is located in the Department for Education, Sanctuary Buildings.
Indeed, I am sorry. It was the noble Lord, Lord Rosser. I am tempting fate here because he will deny all knowledge of that. However, I think there was reference to the Victims’ Commissioner. I am sorry if that was not by the noble Lord, Lord Warner. As I say, the Victims’ Commissioner is located in the Ministry of Justice and the Children’s Commissioner is located in Sanctuary Buildings. That was seen as being helpful. I should say that the anti-slavery commissioner designate is located at present in Globe House. He shares that office—the noble Lord, Lord Warner, did refer to this—with the Chief Inspector of Borders and Immigration. That is where he is physically located at present.
I am grateful to noble Lords for tabling Amendments 65, 65A, 67A, 67B, 67C, 67D, 67E and 69A. The amendments relate to the independent anti-slavery commissioner’s power to appoint his or her own staff and their freedom to report on certain matters. I reassure noble Lords that the commissioner will be absolutely independent. We changed the title of the commissioner to include the word “independent” after debate in Committee in another place to reflect the Government’s commitment to respect the independence of the commissioner. The commissioner will have the freedom and independence to look at the prevention, detection, investigation and prosecution of slavery and trafficking offences and the identification of victims without fear or favour, and make reports which will highlight where improvements can be made. We want to ensure that the commissioner has the authority and autonomy he or she needs to carry out their functions effectively, while at the same time ensuring that their remit is clearly focused. The commissioner’s independence will be respected, just as the Government respect the independence of other similar office holders.
Amendments 65 and 65A would allow the commissioner to appoint his or her own staff and, in the case of Amendment 65, to secure their own accommodation, equipment and other facilities. The Government do not believe that the commissioner needs a statutory power to appoint his or her own staff. The commissioner’s role will be supported by a small team of analytical and support staff, so it would simply not be effective or efficient for such a role to be supported by an independent human resources function. However, we do want the commissioner to have full confidence in his team. Following normal government practice for roles of this nature, we would expect that staff would be recruited from the Civil Service, using Home Office human resources. In line with typical practice, we would expect the commissioner to take part in the selection process to ensure that he or she has confidence in their team.
Similarly, it would simply be inefficient to require the commissioner to find and secure their accommodation and facilities, although of course they will be involved in this process, as was the case with the provision of accommodation for the designate commissioner. We want a commissioner who is focused on catching the perpetrators and identifying more victims, not someone who is more concerned with administrative tasks. The purpose of the Secretary of State providing support to the commissioner is so that their time is free to do the job they have been appointed for—tackling modern slavery and improving the UK’s responses.
Amendment 69A would give the commissioner the power to determine their own activities, timetable, priorities, resources and funding without reference to the Secretary of State. I understand the motivation for this amendment and respect the independence of the commissioner, but I do not believe that this is a practical or necessary approach, nor is it in line with other equivalent office holders.
In relation to the commissioner’s budget, I am not aware of any equivalent organisation that can set its own budget, without limit, by law. That is not a basis for an efficient and effective role. While it is right that the commissioner has the ability to influence those organisations and agencies that are responsible for tackling modern slavery, the Government also have a responsibility to the taxpayers in this country and to Parliament.
Amendments 67A, 67B, 67C, 67D and 67E would allow the commissioner to report on any matter they chose, rather than just those permitted matters included in the strategic plan, whose importance would therefore be greatly reduced. The purpose of the commissioner agreeing the strategic plan with the Secretary of State is to ensure that the commissioner’s activities remain aligned with their general functions and a coherent overall strategy to counter modern slavery. I am well aware that the independent commissioner may criticise government and public authorities—and it should absolutely have that right so to do. But that criticism has a purpose—to support the fight against modern slavery. A partnership between the commissioner and the Secretary of State around initial priorities in the plan will help to ensure that even the toughest of reports are helping to drive real improvements.
It is not unusual for public bodies with significant independence from Ministers to have to agree their plans. Radically restricting the Home Secretary’s ability to approve the plan, or allowing the commissioner to report on matters outside of this plan, would unnecessarily weaken the strong partnership needed between the commissioner and the Secretary of State, particularly as other examples show that this does not necessarily significantly impinge on their independence. It is of course important to emphasise that the plan may be modified or replaced by full agreement between the commissioner and Secretary of State. It is only right and proper that the Secretary of State has a role in ensuring that the commissioner’s plan reflects agreed aims and objectives to enable the fight against modern slavery to be successful.
This has been an excellent debate and has provided a lot of food for thought. I am sure that it is something that we will return to later in the Bill, particularly in the provisions relating to responsibilities. I believe that the commissioner has been set up in the Bill in an appropriate way to ensure his independence while also enabling the commissioner to stay relentlessly focused on tackling the perpetrators of this terrible crime and ensuring that victims are properly identified. I am absolutely clear that the independence of the commissioner will be respected by the Secretary of State, just as the independence of other similar roles has been respected.
I will reflect on the important contributions made. I am sympathetic to the view that it should be clear that the commissioner can appoint a team that he has confidence in and I will reflect on how that can be achieved. I therefore hope that the noble Lord will feel able to withdraw the amendment.
It will be for my noble friend to decide whether to withdraw, although I am sure that he will at this stage. I should like to make two points. First, none of the amendments suggests that there should be an open-ended budget and that the commissioner should decide on it. The amendment clearly states that before the beginning of each financial year there should be a specified sum. I would not like anyone, within or without this building, to think that we are being profligate because we absolutely are not.
Secondly, the noble Lord did not really address the issue of perception, which is so important. That was the point made by the noble and learned Baroness, Lady Butler-Sloss. Why should this independent commissioner be different in certain respects from independent commissioners in other countries—for example, the Netherlands, where independence works very well and is respected throughout the world. We want to ensure that our commissioner enjoys the same respect.
Before the Minister answers the noble Baroness, I will add what might be a conciliatory note, standing as I do in a different place from the noble Lord. It seems to me that a compromise is quite possible. I can understand restrictions on budget. I can see the need to find accommodation, which I know the Home Office has—but not in 2 Marsham Street. That would be a start. It seems that the staff—I do not know how many they would be—could be partly from the Home Office. However, the person who matters most, the head of the commissioner’s team, should be somebody from outside. That would give the perception that the noble Baroness just mentioned and which I mentioned earlier.
The Minister ought to look at this very carefully. If he will forgive me for saying so, I do not think that his speech dealt with the problems that I raised, which are very real. I listen. I do not have the experience of the noble Lord, Lord Warner, of trying to run a particular inquiry. On the inquiries I have done, I have always taken the staff I have been given. However, when I was President of the Family Division, I was given staff from the Ministry of Justice—it was not called that in those days. I managed to persuade them that I came first. I am not sure that one can necessarily do that, if I may say so, in the Home Office. It is very important that the senior person or people in the staff of the anti-slavery commissioner should be seen, as the anti-slavery commissioner himself will be seen, as independent of the Home Office.
My Lords, I meant to mention one more point, which was the one made by the noble and learned Lord, Lord Hope, about the experience that he had setting up the Supreme Court. We probably got it wrong in that instance; we should have had more foresight. We put up our hands if we get things wrong. Now that we have that lesson before us, we should learn from the experience of the Supreme Court and not say, “Oh, well, we’ll see how it goes”. That is a great lesson and we should learn from it.
My Lords, we will come to the staff’s functions and powers next week, but we should not lose sight of the fact that some of them need to have experience that is far wider than and quite different from that of the Home Office: we are talking about health and the whole of the welfare system, at least. That point has been made in the context of the powers, but let us mark it in the context of staff as well.
I will come back to a few of the points raised there. I take the point the noble Baroness made about what was intended in the wording on the budget, but none the less, there is an element, in the way that the amendment is currently worded, that would allow the commissioner a degree of independence in the level of the budget that he sets.
We envisage that the staff will be analytical staff. There will be quite a lot of data collection on the number of prosecutions, the number of people going into and coming out of the national referral mechanism, and on the compensation and reparation orders that will go out. There will be quite a lot of data support. While I appreciate the olive branch from the noble and learned Baroness, Lady Butler-Sloss, suggesting a way forward on this, the independent person in this process ultimately is the commissioner himself. The commissioner will not be, by anybody’s standards, a Home Office place-person. He is somebody with genuine credentials and independence. I think that he will make a significant difference to the role, and I am sure that he will have a very clear view of what his role should be.
On the specific point of appointing staff, I am happy to give an undertaking that I will take this away and reflect a little more on it. In saying that, I would not want the Committee to be of the view that we do not envisage that the commissioner will have to have confidence in his team and that he will be part of the recruitment process. When we limit his pool of staff to people from the Home Office—we are not really limiting it; it is quite a large pool of several thousand—I am sure, from my limited experience, that he will be fishing in, and recruiting from, the finest pool of talent in Whitehall. However, I hear what is being said and we will return to this. I totally accept that appearance is very important in these matters.
The noble Baroness, Lady Lister, asked me a specific point about the human rights machinery. The Independent Anti-slavery Commissioner is not a national human rights institution as defined under the Paris principles—but, as was felt by the Joint Committee, the commissioner will play a key part in improving our human rights response to tackle modern slavery.
I hope that with those words the noble Lord will feel able to withdraw his amendment, even if he has to come back and fight another day.
My sympathies are entirely with the Minister in having to read out some of that stuff. It was almost a revelation and confirmed me in my view that Home Office speechwriters are not blessed with a natural perception of the perception of their words. At the end of the day, the real issue is whether the Home Secretary and the Government are willing to live up to the word that they have put in the title of the anti-slavery commissioner, that word being “independent”. Frankly, first, the Minister was erroneous in some of what he said, and I would just like to correct that. Secondly, he really has not dealt with all the remarks that have been made this afternoon. I will make those two points.
My amendment does not say that the commissioner will in any way fix his budget; it makes it absolutely clear that the Home Secretary fixes the budget. Therefore, there is no question of the commissioner running amok and incurring public expenditure willy-nilly because he or she wishes to do so.
On the recruitment system, I thought that we were almost going to get violins playing when the Minister talked about the qualities of the Home Office. I am sure that there are very talented people there, but that is not the point. The point is whether the independent commissioner can go out into the marketplace and recruit people from a wider circle than civil servants—which is where the pool seems to have been set—and bring into that office people, particularly from the NGOs, with real experience of the world that he will be operating in. The Minister did not give any assurances on that.
I apologise for interrupting the noble Lord. When I talked about budget setting, I should have made it clear that I was specifically referring to the amendment in the same group in the name of the noble Baroness, Lady Royall, which states that the commissioner is able to determine,
“without limitation … the Commissioner’s resources and funding”.
That is what I was referring to. It was not the noble Lord’s amendment but it was in the same group.
My Lords, I am nothing like as much of a spendthrift as that. I recognise that the Home Secretary will exercise control over that. However, the main point in everything that has been raised this afternoon concerns the ability to recruit your own staff. If there is no give whatever on that by the Government, the Minister must expect us to come back with an amendment on Report. I suspect that we would all be willing to meet the Minister to help him garner the arguments that might persuade his boss to take a different view. If he would like to have a meeting, I am sure that we would co-operate.
The message has to go back to the Home Secretary and Home Office Ministers that we need to see whether we can change the Bill to give some reality to the independence of the anti-slavery commissioner. With that, I beg leave to withdraw the amendment.
Amendment 65 withdrawn.
Amendment 65A not moved.
Clause 40 agreed.