Amendment 156

Nationality and Borders Bill - Committee (5th Day) – in the House of Lords at 1:15 pm on 10th February 2022.

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Baroness McIntosh of Pickering:

Moved by Baroness McIntosh of Pickering

156: Clause 59, page 63, line 1, leave out subsection (4)Member’s explanatory statementThis amendment deletes Clause 59 subsection (4).

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

My Lords, I congratulate the noble Lord, Lord Coaker, for setting the scene and others who contributed to the previous debate on this part of the Bill. I welcome my noble and learned friend Lord Stewart to his place on the Front Bench. He is a much more distinguished member of the Faculty of Advocates. I am grateful to the Law Society of Scotland for raising its concerns with me, which has led to my tabling the amendment. I very much look forward to hearing from others on this group, particularly the noble Lords, Lord Alton of Liverpool and Lord Coaker. We will hear their views on their amendments in due course.

This amendment seeks to delete Clause 59(4), which states:

“Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (d) is to be made on the balance of probabilities.”

The amendment is to raise my concerns and dismay but also to provide the opportunity for my noble and learned friend in summing up the debate to explain the Government’s thinking on raising the bar for evidence.

Clause 59 makes specific reference, as we heard earlier, to the Modern Slavery Act 2015 and seeks to amend Sections 49, 50, 51 and 56 of it. The clause raises the standard of proof for determining a reasonable grounds decision for a victim of trafficking from “suspect but cannot prove” to “balance of probabilities”. Indicators that a person is a victim of trafficking can be missed by first responders, meaning that a referral to the national referral mechanism is not made. If a referral is made, reasonable grounds represents a sift to determine whether someone may be a victim of trafficking and whether further investigation is needed.

Home Office statistics reveal that 92% of reasonable-grounds decisions and 89% of conclusive-grounds decisions on the balance of probabilities are positive. The evidence basis for so-called overidentification is not made. The lower standard of proof at the reasonable-grounds decision stage helps ensure that potential victims do not miss out on being properly investigated and progressed to the conclusive-grounds stage of the national referral mechanism.

Raising the standard of proof at reasonable-grounds stage where minimal information is collected by the competent authority could foreseeably result in fewer referrals being made and will increase the prospect of potential victims not being identified by the national referral mechanism, thereby with an investigation not even taking place. In my view, it would be regrettable if, by raising the standard of proof at reasonable grounds stage, fewer referrals would made but the prospect of potential victims not being identified by the NRM without an investigation taking place would increase. So, I raise my concerns and those of the Law Society of Scotland about raising the evidence bar in the guidelines and give my noble friend the opportunity to explain. I beg to move.

Photo of Baroness Garden of Frognal Baroness Garden of Frognal Deputy Chairman of Committees, Deputy Speaker (Lords) 1:30 pm, 10th February 2022

My Lords, if Amendment 156 is agreed I cannot call Amendment 156A by reason of pre-emption.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, it is a great pleasure to address Amendments 156A and 156B in this group and to follow the noble Baroness, Lady McIntosh of Pickering, and what she said about the Scottish Law Society. I very much associate myself with her remarks. I turn the attention of the Committee to these two amendments, the kernel of which is

“(1ZA) Guidance issued under subsection (1) must, in particular, provide that the determination mentioned in paragraph (c) is to be made on the standard of “suspect but cannot prove”.”

My explanatory statement says—I will not read it all—

“This amendment would ensure that amendments made to the Modern Slavery Act 2015 do not raise the threshold”— the point the noble Baroness has just referred to—

“for a Reasonable Grounds decision when accessing the National Referral Mechanism in line with—” the guidance.

One thing that came out of the last debate was that it was pretty clear that the whole Committee is agreed about one thing: that the national referral mechanism is vital to the recovery and safety of survivors of modern slavery. Since its introduction in what the noble Lord, Lord Coaker, was right to refer to as “landmark legislation” in 2015, a point echoed by the noble and learned Lord in replying to that debate, it has allowed us to identify survivors and ensure they receive the right support and are able to assist law enforcement in tackling this abhorrent trade in human beings and human suffering. I am very grateful to my noble friend Lady Prashar and to the right reverend Prelate the Bishop of St Albans for signing Amendment 156A.

Accessing the NRM is the crucial first step on a survivor’s journey to recovery, giving them access to vital legal and financial support, safe accommodation and an exit from the kind of exploitation that the noble and learned Baroness, Lady Butler-Sloss, referred to earlier. It enables them to start the process of rebuilding their lives, empowering themselves and even bravely supporting the prosecution of traffickers so that more potential victims are saved from exploitation. First established in 2009, and supported by successive Governments, the NRM was recently highlighted by the Organization for Security and Co-operation in Europe as being a key element in the fight to end slavery. Since then, with the introduction of the Modern Slavery Act 2015, the UK has become a world leader in this fight and a beacon of hope for those who have been trafficked and enslaved.

However, as the noble Lord said earlier, and I agree with him in this sense, the national referral mechanism is not perfect. That is clear but the opportunity to do something about it is up the track. There is no need for Part 5 to be incorporated in the Bill, when it is inconsistent with much else in it anyway. The noble Lord told the House earlier that there is to be new legislation, so why on earth can we not wait for that? There is an old saying that when you legislate in haste, you repent at leisure; that is what we will do if we simply push this through in a pell-mell way. The mechanism may not be perfect, but it is better than anything else at the moment and we should be very careful about what we do to it.

There is a catalogue of confusion and delays, but I am sure the Government do not believe that the only solution is simply to reduce the number of poor people able to access support. However, that is exactly what Clause 59 will do. Effectively increasing the threshold that these traumatised individuals must meet, almost from the get-go, to receive support will not only leave many with the choice of slavery or destitution; it will fundamentally undo the years of hard work by government, police, NGOs, charities and Members of both Houses.

Even now, far too many survivors go unrecognised and are excluded from support. Despite our understanding of the nature of trauma and the horrors so many have gone through, many do not receive a “reasonable grounds” decision and are forced to reapply. In the previous debate, we were urged to get into the real world. The noble Lord, Lord Coaker, had a better definition of what the real world is than the one we heard from the Government Front Bench. I will do as the noble Baroness, Lady Hamwee, did earlier and share one example with the House, if I may.

It is the case of a poor woman who was the victim of trafficking and violent sexual exploitation. By the time she arrived in the UK, she already had severe PTSD. Her symptoms included involuntary numbing, avoidance, dissociation and shame. She failed to disclose her trafficking experience in her early interactions with the Home Office, due to the severe trauma she had experienced. These inconsistencies later contributed to her receiving a negative decision on her trafficking claim. However, they needed to be understood in the context, as I said earlier, of prolonged exposure to trauma at an early age and fear of reprisals from her abusers.

Clause 59 risks raising the threshold for a positive reasonable grounds decision at this vital first stage, meaning that survivors such as that woman will be forced to meet an even higher threshold of evidence almost immediately, before they have accessed safety and a lawyer, translator or advocate to help provide the evidence that is expected of them. The noble Lord who addressed the House earlier has promised to write to the noble Lord, Lord Coaker, me and others with more data. Here is a little data that I will share with the noble Lord, Lord Sharpe.

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong, and the victim deserved a positive reasonable grounds decision. Currently, there are an estimated 136,000 victims of modern slavery in the UK, and a little over 10,000 were referred to the NRM in 2020. That means there is a vast number of individuals who have been trafficked and enslaved in our country and are already far from the safety offered by the national referral mechanism. Were we to raise the threshold to access safety and support, it would surely only play into the hands of the traffickers and slave masters by preventing survivors sharing their experience and supporting criminal investigations.

I note that the Government have denied that Clause 59 will increase the threshold, and that the intention behind it is to bring us in line with the European convention on action against trafficking—ECAT. However, many who are in the anti-slavery movement, to which we heard a lot of references earlier, and on the ground in the real world supporting vulnerable people every day believe that it is already harder today than it was, even a year ago, to get a positive decision. As such, if not remedied in the guidance, the change in language represented in this clause would effectively raise the NRM threshold.

Furthermore, the Government have rightly decided to include in the Bill that conclusive grounds decisions be made on the balance of probabilities. If the intention is not to raise the threshold, then I simply ask the Minister that they put in the Bill that reasonable grounds decisions be made on the tried and trusted standard of “suspect but cannot prove”, which is the essence of Amendments 156A and 156B. That would allow the Government to change the language of the Modern Slavery Act to be more in line with ECAT, in order to provide more consistency between conclusive grounds decisions and reasonable grounds decisions in the Bill. Vitally, it would not raise the threshold for survivors of trafficking to receive a positive decision, therefore ensuring that these poor people receive the support they so desperately need and the authorities have the evidence they need to end slavery.

Article 10(2) of ECAT says that

“if the competent authorities have reasonable grounds to believe that a person has been victim of trafficking in human beings, that person shall not be removed from its territory until the identification process as victim of an offence … has been completed”.

Both ECAT and the Modern Slavery Act envisage that support be given to victims through the NRM as the earliest stage possible, when someone is identified as a potential victim. Raising the threshold only to those who prove their status as a victim of trafficking would undermine the point of the three-stage referral system currently in place. That support is crucial to enable victims to make any discourses from a position of safety.

No doubt the Minister will say that the NRM may have been abused, but I ask him to provide the justification for that claim. As the noble Lord, Lord Coaker, and I said earlier, where is the data? I refer the Minister to the report by the Rights Lab at the University of Nottingham for evidence that the NRM is not being abused. Indeed, according to many reports, one of the biggest problems with our NRM is that it is underutilised; there are already a low number of referrals to the NRM. According to the Global Slavery Index, the estimated figure for the prevalence of modern slavery in the UK is 136,000, yet in 2020 only 10,613 potential victims were referred to the NRM. Raising the threshold would serve only to further restrict those who access the vital resources of the NRM.

I therefore felt it necessary to table these amendments. Those who are referred to the NRM are often among the most vulnerable, in the most traumatic moments of their lives. We should not be raising the threshold; we should be doing everything we can to facilitate their access to support. I beg to move.

Photo of The Bishop of St Albans The Bishop of St Albans Bishop

My Lords, I shall speak to amendments 156A and 156B in the names of the noble Lord, Lord Alton of Liverpool, and the noble Baroness, Lady Prashar, to which I have added my name. I hope I can be fairly brief because much of the ground has been set out brilliantly by the noble Lord, Lord Alton, and I am very grateful for that.

The reality of Clause 59 is that raising the threshold—from “reasonable grounds” to believe that someone maybe a victim of modern slavery, to “is” such a victim—could lead to the national referral mechanism failing to identify victims of modern slavery, effectively shutting them out of the support that they so desperately need. That was picked up yesterday in our General Synod debate across the road, to which the right reverend Prelate the Bishop of Bristol has already alluded.

The Clewer initiative, to which she has also alluded, is our response to modern slavery. It was set up in 2016 and published three strategies for 2022. Two of these included promoting victim identification and providing victim care and support. Our concern, along with the Clewer initiative, is not just to get down to the legal minimum but to try to accompany people on what is the most traumatic journey, through which many of them will need considerable help. Part of the reason for that—many Members of your Lordships’ House will grasp this but many people in wider society do not—is that much modern slavery is effectively hidden, and sometimes so subtle that even the people involved in it do not always get what is going on. That is why it affects drug traffickers, fruit pickers, beauticians, people working in nail bars and so on, as well as the obvious areas where people find themselves caught up—for example, in the sex industry.

This coercion is a subtle thing, but it plays a central role in keeping individuals in this misery. It can range from violence to substance addiction, debt bondage and, of course, withholding people’s papers. So, it is a long and complex process. The CURE initiative states that beyond these factors, one of the key elements in controlling victims of modern slavery is creating a fear of any authority so the victims simply do not know where to go. Often, victims will hide.

So it is crucial that, as we are trying to think about the right threshold, we make sure people are getting support and not being prevented before they have even accessed a lawyer, translator or advocate to help evidence their experiences. My fear is that, without these amendments, exploiters and slavers will be able to lean on this increased threshold to further manipulate and control their victims, and deter them from seeking help.

I will just underline some statistics—and one or two more—that the noble Lord, Lord Alton of Liverpool, mentioned. In 2020, the single competent authorities, he said, made 10,608 reasonable grounds and 3,454 conclusive grounds decisions. Of these, 92% of reasonable grounds and 89% of conclusive grounds were positive; and 81% of reconsidered claims at reasonable grounds stage were later positive. In other words, the vast majority of those who receive positive reasonable grounds decisions go on to be confirmed as victims. That is the crucial thing here.

It seems extraordinary that it looks as if the Government are trying to bring the UK in line with the Council of Europe Convention against Trafficking—ECAT—for reasonable grounds decisions on whether a person is a victim of modern slavery, particularly when our current legislation, it would appear, goes well beyond ECAT and strengthens the identification mechanisms to ensure that fewer victims fall through the cracks and fail to receive the appropriate support after the terrible injustices they have incurred and the suffering they have experienced.

I cannot tell whether this alignment it seems the Government are doing is simply for alignment’s sake. But it does seem extraordinary when we were told again and again that the point about Brexit was that we did not need to align with others and could actually make the right decisions. Yesterday’s debate paid huge tribute to our Government in this country for being a trailblazer in this work. I fear that we are going backwards at a time when we need a much stronger lead in our nation. I am struggling to identify any positives with respect to the increased reasonable grounds threshold, and I worry it will simply play into the hands of traffickers. We need the Government to look afresh at this section. I particularly commend these amendments as a way that we may improve this Bill as it goes through Parliament.

Photo of Baroness Prashar Baroness Prashar Crossbench 1:45 pm, 10th February 2022

My Lords, I rise to support Amendments 156A and 156B, in the name of the noble Lord, Lord Alton, and supported by the right reverend Prelate the Bishop of St Albans and myself. I will be extremely brief as all the points I wished to make have already been covered. Therefore, I really want to say that I strongly support the amendments and the arguments made by the noble Lord, Lord Alton, that the Government should put on the face of the Bill that a reasonable grounds decision should be made on the tried and trusted standard of “suspect but cannot prove”. I think his explanation and the logic of his arguments were compelling, so I would urge the Government to pay some heed.

Photo of Lord Deben Lord Deben Conservative

My Lords, I declare an interest because, in my work on sustainability in the business that I chair, we of course help companies to deal with modern slavery. That is why I wish to rise. It does mean we know a bit about it, and I have to say to the Government that everybody who knows a bit about it does not agree with the Government. That is why we have to say this very clearly.

The problem with modern slavery is that people who are involved in it hardly know where they are and what it is all about. That is the difficulty because, whatever we do, access to whatever we do is always going to be the problem. We have to find ways of ensuring that as many people as possible can enter into the beginnings of a conversation which will, in the end, reach the position in which they will be released from modern slavery—and it is that beginning moment that is most important and delicate.

I agree with the noble Lord, Lord Alton, that what is being proposed in this part of the Bill should not be here at all, simply because, in this context, it makes a comment which it should not make. In this context, it comments that this is something to do with nationality, borders and immigration. But it is nothing to do with any of those except accidentally—and I use that word in the technical sense.

We ought to be immensely proud of this legislation. I sit as the independent chairman of the Climate Change Committee, so I do not often mention the fact that I have been a Conservative for many years. I am not quite sure of the situation in certain circumstances, but that is the position in which I find myself, and I will say that I think it is one of the great statements of the Conservative Party that it was at the centre of passing this legislation. It shows that we have a real understanding of the responsibility of those who have to those who have not. That is why the intervention of the right reverend Prelate is absolutely appropriate, because this about the attitude to human beings that we should have if we are people of faith.

Anything that detracts from a triumph should be opposed, above all, by those who have been proud of it in the past. That is why I do not want this particular debate to go on without somebody from these Benches making the points. It is wrong to make it more difficult for people to get into the system. The moment you move away from “suspect but cannot prove”, you make it more difficult, and I hope that this House will not allow the Government to do this. Above all, I hope that the Government will think again about why they want to do this. They have presented no proof that there is any widespread misuse of this. Even if they did, I put it to the Minister that that is a price we have to pay. They have not proved it; there is no evidence for it; but, even if there were, one has to accept that the nature of the people we are dealing with means that we have to reach out further than we would in other circumstances.

At the moment, I fear that the Government are like the Levite rather than the Good Samaritan, and I wish them to return to their proper place, which is to cross the road to find out what is happening.

Photo of Baroness Butler-Sloss Baroness Butler-Sloss Chair, Ecclesiastical Committee (Joint Committee), Chair, Ecclesiastical Committee (Joint Committee)

My Lords, for the reasons given by other speakers—particularly the last speaker, with whom I profoundly agree—I support these amendments. However, I want to raise a slightly different point on Clause 59. It appears to apply to children. I have had, over the years, numerous meetings with the Home Office, and I thought we had got to the position where the Home Office agreed that the NRM was not the right place for children to go, because anyone under the age of 18 becomes immediately, on arrival in this country, the responsibility of a local authority under Part 3 of the Children Act 1989. Consequently, local authorities take over these children.

As the Minister, the noble Lord, Lord Wolfson, pointed out, there are these independent guardians—advocates, who act as guardians—but the children are supposed to be cared for by a local authority with an independent guardian and should not be going through the NRM. What disturbs me about Clause 59, in addition to the points that have already been so ably made, is whether it is really intended that the Government want children to go through the NRM. Should not they in fact all be dealt with entirely through local authorities, with the help of the advocate?

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration), Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, my name is to Amendment 157. This is a rhetorical question, but is not it interesting that the noble Lord, Lord Deben, who, if I am right, was not able to be here for the first group of amendments, has made points that were not rehearsed in his presence but are exactly the same points, as he says, from the point of view of the best traditions of Conservatism?

Clause 59 again prompts the question: why, and what is the problem? What is the evidence for what the Government perceive as a problem? Are there too many people claiming to be victims? Like other noble Lords, I thought the problem was that we do not know how many there are. We try to identify them, but we know that we do not manage to identify them all—but we know that all the indicators are that modern slavery goes wide and deep. The problem is that we do not identify everyone that we want to support. What underlines the Modern Slavery Act is getting people to the situation in which they can be supported.

Under Amendment 157, the Member’s explanatory statement actually refers to “current statutory guidance”, a point that was very well made in the previous debate.

I want to say a word about Amendment 173, on navigators. I am quite intrigued by this—guardians for adults, is that what is intended? Some police forces have a much better understanding of how to deal with victims, or possible victims, of slavery. I am not sure whether I have the name of this right, but I think that there was a transformation unit; the noble Lord, Lord Coaker, may remember. The police did a lot of work at one time. Can we hear about that from the Minister?

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration), Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

Indeed, it was excellent. That is why I raised it—because I wonder what has happened to it. As I say, I find the suggestion made in Amendment 173 intriguing, and I hope that it will be taken very seriously.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

I rise briefly to say that we support the amendments in this group. I say to the noble Lord, Lord Deben, as the noble Baroness, Lady Hamwee, said, and we have said right across the Chamber, the points that he made about the contribution that Theresa May made—within the coalition Government, as I was reminded—were fantastic.

Photo of Lord Deben Lord Deben Conservative

I was not there for that, but it seemed to me that it was worth repeating, if I may put it clearly.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

Well, it is the first time that I have heard repetition in this Chamber, so I thought that the noble Lord could not have been here. But it was a serious point, and it deserved to be made again, because we all agreed with it.

We support all the amendments in the group. I will speak specifically to Amendments 157 and 173. The other amendments have been spoken to very ably by the noble Lord, Lord Alton, and others, so I will not address those, in the interests of time. With respect to Amendment 157, it is intriguing that the statutory guidance says that

“a Conclusive Grounds decision will not be made until at least 45 days of the recovery period have passed”.

Why does the Bill reduce that to 30? That is my understanding, unless I have misread it. We talk about enhancing, but, as I say, 45 days is the period in the statutory guidance, while the Bill talks about 30 days.

Given that we are in Committee, it would be interesting to hear more on this. Am I wrong? Does the 30 days refer to something different? I cannot find references to 45 days in the Bill, but that is what is in the statutory guidance. Could the Minister respond to that? It would be helpful to the Committee to know what the 30-day period is vis-à-vis the 45 days set out in the statutory guidance, which is what the whole sector uses with respect to the recovery period and is, indeed, how I have understood it.

As has been said, the recovery period gives the police time to gather evidence and build a relationship with the victims. It gives the victims time to access support, break the control of their traffickers and build relationships with agencies. All of this is beneficial to securing prosecutions, which are woefully low, whatever the efforts of the Government and the police. The crucial question is: how does this help? What is gained by reducing the recovery period? I just do not understand the logic of that.

Can the Minister inform the Committee—he may not be able to do so now, but this is worth asking before we get to Report—how many decisions are currently made at the 45-day mark? The anti-slavery commissioner has given figures that the average length of time it took for a conclusive grounds decision to be made in 2020 was 465 days. So why would the Government seek to shorten a timeframe that they are already substantially failing to meet? Have I profoundly misunderstood something—if that is the case, it would be helpful for the Committee for me to be corrected—or am I right and there is something here that we need to understand?

I thank the noble Baroness, Lady Hamwee, although she is not in her place. On Amendment 173 on victim navigators, we can see the success that the pilot has had. It would be interesting to know what plans the Government have to roll this out. Clearly, they are looking at ways to try to increase the prosecution rate for people traffickers, which we would all support. However, there is currently nothing in the Bill about what is expected with victim navigators. What is happening? Is that just being rolled out as a matter of policy anyway and does not need to be in the Bill because it is going to happen? As the noble Baroness, Lady Hamwee, pointed out, where victim navigators are in place with police forces, working with the CPS and others, the prosecution rates have improved, as I understand it. That seems to suggest that it would be helpful if victim navigators were rolled out into all police force areas.

Amendments 157 and 173 are probing amendments to understand the operation of the Bill. We also support the amendments that the noble Lord, Lord Alton, and others have put before the Committee.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 2:00 pm, 10th February 2022

My Lords, I am grateful to all noble Lords for their contributions. The amendments in large part concern provisions around the identification of modern slavery and trafficking victims.

First to speak was my noble friend Lady McIntosh of Pickering, who sought an explanation for Clause 59. The clause places the conclusive grounds threshold of a “balance of probabilities” into legislation. This is in line with the threshold that is currently applied and accepted by the courts and aligns with our current obligations under the treaty to which a number of speakers have referred: the Council of Europe Convention on Action against Trafficking in Human BeingsECAT.

We submit that to remove this provision, as Amendment 156 would, would cause an inconsistent approach towards the two thresholds: the reasonable grounds threshold would be contained within legislation, whereas the conclusive grounds threshold would remain only in guidance. By legislating for both thresholds, decision-makers are able to rely on clear precedent and the process is both certain and ascertainable. This search for clarity will run through and inform the answers I will put before the Committee in this debate.

Amendments 156A and 156B from the noble Lord, Lord Alton of Liverpool, would amend the test for a reasonable grounds decision in legislation. The matter of whether there are “reasonable grounds to believe” that an individual is a victim is the appropriate threshold —again, as it mirrors our obligations under ECAT. For those reasons, I cannot accept Amendments 156, 156A and 156B.

I shall expand on matters raised by the noble Lord, Lord Alton, touching first on the ability that exists in legislation for people to challenge a decision made. Multiagency assurance panels are required to review all negative conclusive grounds decisions made by the competent authority for all cases submitted to the relevant competent authority. Multiagency assurance panels do not review negative reasonable grounds decisions. The role of multiagency assurance panels and the processes they follow are set out in the modern slavery statutory guidance for England and Wales promulgated under Section 49 of the Modern Slavery Act 2015. There is equivalent non-statutory guidance for Scotland and Northern Ireland; it is not found in primary legislation. The guidance states:

“An individual, or someone acting on their behalf, may request reconsideration” of a negative reasonable grounds decision by the competent authority

“if additional evidence becomes available that would be material to the outcome of a case, or there are specific concerns that a decision made is not in line with guidance.”

The final conclusive grounds decision remains the responsibility of the competent authority. Multiagency assurance panels do not have the ability to overturn negative conclusive grounds decisions made by the competent authority. The competent authority can be asked to review a case where there is concern that the decision has not been made in line with existing guidance; that, in the view of the multiagency assurance panel, that would add value and clarity but has not been sought; or that the evidence provided and used in the decision-making process was not weighed appropriately and considered. So an element of its ability to reconsider and discretion remains in place.

I think the whole Committee will be aware that understanding of the painful effects of trauma and suffering on individuals and their ability to recollect is developing and has developed considerably over recent years, as a better comprehension of these strains and pressures comes to be understood. That understanding filters into this field, as into others. In particular, I refer your Lordships to understanding in the criminal justice system as to why people may make declarations or give statements that are not in their best interests or that they subsequently seek to go back on.

This topic seems to inform the points raised by the right reverend Prelate the Bishop of St Albans and my noble friend Lord Deben. Victims may well not want or be able to relive their trauma to state officials. Moulded by forces that those of us who have been happy enough to lead comfortable and sheltered lives can barely comprehend, they may find state officials intimidating.

Will the policy inhibit such people and impact adversely their ability to come forward and speak up? We recognise that some victims of exploitation may be fearful of coming forward to talk to the authorities, including some of the organisations that operate as first responders. That is why a range of organisations operate as first responders, including charities—some of which the Committee has heard about—that work closely with victims and local authorities.

We are keen to ensure that potential victims of trafficking are identified as early as possible and are supporting this with an improved legal aid offer for victims of trafficking with no immigration status within the United Kingdom and subject to immigration removal. This is to ensure that individuals receive the correct support package at the earliest opportunity to address their needs, regardless of when cases are brought, to make sure that those who need protection are afforded it.

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

My Lords, the Minister is dealing with these issues with great sensitivity and I welcome the tone of his remarks. He has—I think deliberately—left a number of questions hanging, saying that a lot of work is being done on this and that people are considering these sensitive and detailed questions and looking at them more thoroughly. This all begs the question: who has demanded this change in this legislation at this time, in advance of us having detailed information laid before us?

It seems that we have it the wrong way around. Given that his noble friend said earlier that there will be a Bill specifically to improve the modern-day slavery legislation, why cannot we hold this over until we see more clearly where the information is wrong, where it is right and what the evidence is? Is it not the nature of good government to look and examine the evidence before bringing measures forward? I do not see any evidence that this has happened so far.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I do not wish to appear to give a cursory answer to the noble Lord in a debate of this sensitivity, but my noble friend Lord Wolfson of Tredegar committed to write on the data—I am grateful to the noble Lord for nodding his head in recognition. I imagine that the point he seeks to raise will be discussed in any such correspondence. Does that satisfy him at this stage?

Photo of Lord Alton of Liverpool Lord Alton of Liverpool Crossbench

I am grateful to the Minister, but it seems to be the wrong way around. Normally, there is pre-legislative scrutiny of complex and sensitive issues, and this is a classic example where there should have been pre-legislative scrutiny, as there was before the 2015 legislation, in some detail and at some length. Why was it thought that in a Bill dealing specifically, as the noble Lord, Lord Deben, said, with nationality, borders and immigration, we should deal with an issue of this sensitivity? Would it not be better for the Government to withdraw this section of the Bill and come back with comprehensive legislation that we could all support?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I hear the points that the noble Lord makes. With respect, it seems that he moves forward into a question already put to my noble friend Lord Wolfson of Tredegar when he stood at the Dispatch Box in relation to the earlier matter. As he advised the Committee, the Government are concerned about misuse of the system. Rather than seeking to anticipate data that I confess not to having, with the noble Lord’s permission, I will move on from this point. I am again grateful to him for nodding his head.

I was expanding to the Committee on matters raised by the right reverend Prelate the Bishop of St Albans. We recognise that potential victims may not feel able at an early point to discuss information relevant to these matters bearing on their experience. That is why, in Clause 58, we have included the safeguard of “good reasons”. Each case will be considered carefully, including any reasons for not bringing information earlier, which will enable decision-makers to take trauma into account.

I am sure that I am merely rehearsing matters already within the knowledge of the Committee, but examples of what may constitute good reasons for late disclosure of information include where the victim was still under the coercive control of the trafficker, did not recognise themselves as a victim at that point, or for reasons relating to capacity—intellectual, emotional or age capacity—did not understand the requirement or the proceedings.

We will set out our approach in guidance, giving decision-makers the tools to recognise the effect that traumatic events can have on people’s ability to accurately recall or share or recognise such events. We are concerned that by too prescriptively setting out the parameters of what can constitute good reasons in guidance, we will inhibit the flexibility of decision-makers to take a case-by-case approach, as my noble friend Lord Wolfson of Tredegar sought to emphasise in his submission to the Committee earlier, depending on a person’s specific situation and vulnerabilities.

I hope those remarks have gone some way to answer the points raised by the right reverend Prelate and my noble friend Lord Deben. I hope I have emphasised something which I am sure does not need to be shared across the House, as compassion for victims of these dreadful and wicked crimes is understood universally throughout the Committee, across party lines and in the House generally.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 2:15 pm, 10th February 2022

I am anxious not to delay matters but to seek clarification at this stage. A number of noble Lords have raised concerns about why the burden of proof has been changed and the fact that, through this higher standard, a number of victims may not enter the system at all. I cannot believe it is the Government’s wish to prevent genuine victims of modern slavery and trafficking to be excluded from the process. My noble and learned friend gave a simple, clear clarification that it was to make the bar the same for both, but the fallout, in the view of legal opinion from practitioners who will be using this on a daily basis, seems to be that we will inadvertently exclude justified victims from the whole process. I cannot believe that this is the Government’s intention, where they are genuine victims.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I am grateful to my noble friend for her intervention, which permits me the opportunity of not only repeating what I said from the Dispatch Box earlier about the importance of decisions being taken on a case-by-case basis, but advising the House—perhaps I should have done so in answering the noble Lord, Lord Alton of Liverpool—that in addition we are providing enhanced support and training to first responders.

The rationale underpinning the change proposed in relation to burdens of proof is certainly not to seek to exclude persons who ought to receive help and assistance from receiving it. The Government’s wish is that all who are victims should receive assistance and all who are criminal should receive their due punishment.

Photo of Lord Deben Lord Deben Conservative

If that is the rationale, I do not see why we need the change. I seriously do not understand what possible advantage changing this could be, whereas I perfectly clearly see what the disadvantage is. Although the Minister seeks in the most effective way to present the Government’s case, the word “rationale” is not one I would have used I these circumstances.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My noble friend sends me back to the dictionary. I shall include the use of that word in my reading later, among the other things which I expect I will be asked to reflect on. I think we are—or maybe I am—guilty of mixing up two things. The reason for the change to the test to introduce the balance of probabilities is to align ourselves with our international obligations under ECAT. It is in order to avert any baneful consequences thereof that I made reference to the enhanced support and training which first responders will receive, and to the other measures which I discussed.

Photo of Lord Deben Lord Deben Conservative

I am sorry; I will not interrupt again. I still do not understand the rationale of bringing ourselves into line with our international obligations. We do not break our international obligations by going further than the international obligations, so we are already in line with them; all we are doing is withdrawing to what are, in many of our minds, unsatisfactory international obligations. Without getting into the Brexit issue, I very much agree with the right reverend Prelate when he suggested that we thought this was precisely what the Government did not want to do. I happen to want to do it but that is a different thing. I feel rather hit by this in both ways.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The justification is to ensure clarity across the legislation, and I appreciate the comment made by the right reverend Prelate, and rehearsed by my noble friend, about advantages flowing or not from the Brexit process, which so many of your Lordships will have discussed. However, our ability to act differently from our partners across the channel is a valuable one, but what we seek to obtain by this measure is legislative clarity and a consistency in decision-making which will, we hope, benefit victims and develop understanding among all the agencies in this important sector. My noble friend is resuming his mask, and he did say that he would not interrupt again, although I hope that he will not bar himself from further interventions later in the debate.

I turn to Amendment 157, tabled by the noble Lord, Lord Coaker. I thank him for his powerful and compelling opening contribution to this debate and to earlier debates on the topic, and for his work at Nottingham University. I offer the Committee reassurance that we are committed to providing victims with at least a 45-day recovery period, or until a conclusive grounds decision is made, whichever period is the longer. Our position is—I maintain that this does not need to be placed on the face of the Bill, and I return to the earlier discussions with my noble friend Lord Deben—that it would create a misalignment with our international obligations under ECAT.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

I thank the Minister for all of that, and the commitment to 45 days. Why does it say 30 days in the Bill? Have I got that wrong?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

No, I think the noble Lord is correct. It is 30 days for the alignment with ECAT, but the 45 days appears in the guidance, and we commit to providing support over that period: a 45-day recovery period as expressed in the guidance, or until a conclusive grounds decision is made.

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

So there is an absolute commitment to 45 days for the gap between reasonable grounds and conclusive grounds, even though legislation which we are going to pass says 30 days?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

The noble Lord shrugged his shoulders, but I repeat that the justification for this is to align with our international obligations with our partners in ECAT.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration), Chair, Justice and Home Affairs Committee, Chair, Justice and Home Affairs Committee

My Lords, this did not stop us passing the Modern Slavery Act, which was ahead of the rest of the world.

Photo of Lord Deben Lord Deben Conservative

I am sorry to remove my mask, but I am told in the Climate Change Committee, of which I am chairman, that we have to have a British ETS which is not aligned with the rest of Europe because that is what we want. Why does it apply to climate change but not to modern slavery? On both of those issues we are in advance and wish to continue to be in advance. I do not understand this alignment element.

Photo of Baroness Ludford Baroness Ludford Liberal Democrat Lords Spokesperson (Exiting the European Union)

Can I join the maskless crew? Surely international law, and certainly EU directives, are usually a minimum requirement, so if we wanted 45 days and a European instrument said 30, that is brilliant; it is better. It at least complies, so what is the problem?

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I hear from all sides of the Chamber, including from the noble Baroness, Lady Chakrabarti—

Noble Lords:

Oh!

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

Sorry, I do not mean once again from the Dispatch Box to rain brickbats upon the noble Baroness’s head.

Once again, I am not in a position to answer or explain myself on the basis of views taken by the Climate Change Committee, but in this context alignment with our ECAT partners was considered desirable.

I move on to Clause 60, which sets out the minimum time for the recovery period in line with our international obligations under ECAT. It provides us with the flexibility to set the operational practice as needed in guidance, which is important to reflect the changing needs of victims and the understanding of victims’ needs in a developing area of law.

In practice, in 2020 the average time for a conclusive grounds decision was 339 days. This long period stems from pressures on the system, which we are working to reduce through our transformation project to ensure that victims get certainty more quickly, but it is notably longer than the proposed 45-day minimum.

In light of this explanation and the assurance of continuation of the current support set out in guidance, I hope that noble Lords in the Committee agree that Amendment 157 to Clause 60 is unnecessary. I urge noble Lords to take the view that promotes clarity and to consider that the objective of making sure that we are aligned with our international obligations is such to prompt the noble Lord not to press this amendment.

Amendment 173, again from the noble Lord, Lord Coaker, seeks to introduce victim navigators for modern slavery and human trafficking victims in every police force in England and Wales. This matter was discussed in the Commons during the passage of the Bill. As was expressed on behalf of the Government, we are absolutely committed to ensuring that victims of modern slavery have the support they need when engaging with the police and through the criminal justice process.

As to the development that the noble Lord from the Front Bench advised the Committee of—that of victim navigators—we strongly support police forces using these NGO-led support models. Victim navigators are one model within that category. For that reason, we have commissioned independent research of three existing NGO victim support programmes, to help us better to understand what provision is in place and what effective support looks like for these victims. This will help inform advice to forces in the future about best practice and encourage national take-up of the most effective models of support. I also agree with the sentiment behind this proposed new clause that providing support to victims to help them navigate is something that can be studied and will inform advice to forces in future about best practice. We are already working to understand the most effective support measures, and we have made grant funding available to police forces and the GLAA to help identify and fill gaps in support.

I am grateful to the noble Lord for his nods of assent and for agreeing that the work already under way should be completed and will help us to develop an understanding of how best we can support victims in engaging with the criminal justice system. It is right that we conduct that evaluation before putting a specific model of support into legislation. That is why I resist this amendment at this time and invite the noble Lord not to press it.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative 2:30 pm, 10th February 2022

My Lords, it has been an excellent debate. I thank everyone for their contributions. I think there may be a question outstanding from the noble and learned Baroness, Lady Butler-Sloss, as regards children under the age of 18, but I take it as read that anyone aged under 18 would still be referred to the local authorities. I assume that my noble and learned friend will write to us if that is not the case.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

I am grateful to my noble friend for that, and I beg the pardon of the noble and learned Baroness for not addressing her question directly. If she is content, I will have that expressed in writing to her.

Photo of Baroness McIntosh of Pickering Baroness McIntosh of Pickering Conservative

I am grateful to my noble and learned friend. He has endeavoured to be as full as possible in his response to all noble Lords. I express my disappointment that the guidelines are being changed in the way the Government envisage. I am slightly confused, because a lot of the situations for which this Bill makes provision would not have arisen if we had kept our international and European responsibilities under the Dublin convention, whereby we could have returned many asylum seekers to the first country in which they arrived.

It is a regrettable change. I do not think my noble and learned friend disagreed that a number of victims will be omitted from the system as a result. I will consider with others what to do at the next stage, but at this stage I beg leave to withdraw the amendment.

Amendment 156 withdrawn.

Amendments 156A and 156B not moved.

Clause 59 agreed.

Clause 60: Identified potential victims of slavery or human trafficking: recovery period

Amendment 157 not moved.

Clause 60 agreed.

Clause 61: No entitlement to additional recovery period etc