Clause 4 - Trafficking people for exploitation

Asylum and Immigration (Treatment of Claimants, etc.) Bill – in a Public Bill Committee at 4:45 pm on 13th January 2004.

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Amendment proposed: No. 19, in

clause 4, page 3, line 32, after 'facilitates', insert

', or conspires to arrange or facilitate,'.—[Angela Watkinson.]

Question, That the amendment be made, put and negatived.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

I beg to move amendment No. 1, in

clause 4, page 4, line 13, after 'is', insert

'the victim of an abuse of power or in a position of vulnerability or he is'.

Photo of Mrs Marion Roe Mrs Marion Roe Conservative, Broxbourne

With this it will be convenient to discuss amendment No. 20, in

clause 4, page 4, line 16, at end insert

'or

(d) the purpose of the travel to the United Kingdom is either to facilitate any form of assault on him or to oblige him to enter any form of illegal adoption.'.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow

The amendment is designed to deal with a possible loophole in clause 4. The clause, which deals with trafficking, has been widely welcomed. Some members of the Standing Committee on what is now the Sexual Offences Act 2003 may remember debating its clauses on trafficking related to prostitution. Clause 4 of this Bill plugs a gap by dealing with the other part of the problem, which is trafficking for labour.

Subsection (4) defines exploitation, but in a way that I believe leaves a possible loophole. Subsection (4)(c) refers to someone being exploited if they are

''subjected to force, threats or deception . . . to provide services . . . to provide another person with benefits . . . or to enable another person to acquire benefits''.

However, there is a possible problem, because children who have been trafficked to the UK, perhaps for benefits fraud or domestic work, might not have been subjected to ''force, threats or deception''. The same might apply to adults who are vulnerable and emotionally dependent on the person who traffics them, as they might co-operate with the trafficker.

In the previous Standing Committee, we discussed the possibility of a child who was subject to abuse not being aware that they were being abused but instead regarding the behaviour as normal. One could imagine a child not realising that they were being exploited. They might not be subjected to force or deception, but instead happily go along with what is asked of them so that someone else can obtain benefits.

I suspect that the wording of the amendment is not perfect, but the phrases ''an abuse of power'' and ''a position of vulnerability'' are in the UN protocol's definition of trafficking, so they have been used in international definitions of trafficking to cover the

type of possibility that I am discussing. I hope, therefore, that the Government will give the amendment some consideration. Perhaps it could be argued that some aspect of the clause already deals with it, but the first line of subsection (4) contains the phrase

''a person is exploited if (and only if)''.

That is an unusual phrase to appear in a clause of this nature, so it seems that subsection (4) may be a little too tightly written and may leave some odd loopholes. We want to avoid the possibility of someone involved in trafficking escaping prosecution. That is the purpose of the amendment.

Photo of Angela Watkinson Angela Watkinson Opposition Whip (Commons)

I rise to speak to amendment No. 20, which stands in my name and that of my hon. Friend the Member for Woking, whose return to the Committee has, most unfortunately, been delayed. I say unfortunately, because he is not only a lawyer but has long-standing and acknowledged experience of this subject.

The amendment is designed to widen the protection for children in a similar way to amendment No. 1. It would widen the protection by including the purposes of prostitution—that is encompassed in the word ''assault'' in the second line—enslavement and forced labour. One hears from time to time of cases in which young people are brought to this country for the purposes of being household servants and are virtually imprisoned—they have no control over their own lives. The amendment refers in particular to ''illegal adoption''. We all recognise what a sensitive and important subject adoption is. It is treated with extreme care in this country and needs to be encompassed in the meaning of the clause.

There have also been accounts—happily only rarely—of the ritual killing of young children in this country, so it is important that we try to include in the Bill every possible eventuality, so that young children are afforded the widest possible protection.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I merely want to comment on amendment No. 1 and to ask whether the hon. Member for Walthamstow is trying to prevent both direct and indirect pressure on a child. Instead of his wording, we could use the words ''either indirectly or directly''. The evils that he wants to prevent should be prevented, but the wording that he has used may not be the best way of going about that. I wonder whether, in the admittedly short time that he has to consider this, he could ask himself whether the words ''indirect or direct pressure'' would meet his case and deal with the evil that he quite properly wants to prevent.

Photo of Mark Oaten Mark Oaten Liberal Democrat, Winchester

I have a couple of questions that relate to the amendments, and I hope that when the Minister sums up, she can clarify them. First, I just want to be clear in my own mind, on the issue of the trafficking of individuals and people and some of the cases that we have heard about involving the adoption or the purchasing of children from other countries, that in fact the provisions of the Adoption (Intercountry Aspects) Act 1999 would take account of adoption. To

ensure that there is no confusion, will she say how that Act relates to some of the provisions in the Bill?

Secondly, all hon. Members desire the proper prosecution of those involved in the trafficking of children. I want to be sure that other provisions in the Bill that deal with the return of individuals to their country of origin—people who could be key witnesses in trafficking offences—would not get in the way of the proper prosecution of those involved. It would be a pity if a prosecution were to fall because of the Home Office's intention to remove someone back to a country who could be a key witness. I hope that the Minister has the chance to comment on those two points.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I am grateful to the hon. Members for tabling their amendments. The way in which the law deals with the trafficking of children, for whatever purpose, obviously is of great importance to us all.

Amendment No. 20 would make trafficking for the purposes of assault or illegal adoption specific offences. We intended that prosecution under clause 4 should be appropriate for a wide range of cases of trafficking for the purposes of exploitation, but without necessarily defining all the circumstances. We wanted to draw the clause widely so as to catch a range of behaviour during which exploitation might take place.

Assault is already an offence, and as most hon. Members will know, in the most serious cases, when the assault is classed as wounding with intent, it can attract a life sentence. It is therefore likely that prosecution for assault rather than prosecution under clause 4 would be more appropriate in certain cases, because it would attract a higher sentence. The higher maximum sentence would be available to the courts, so there would be no specific value in specifying assault in the offence.

It is possible, in relation to amendment No. 20, that the clause is already sufficient to cover trafficking for the purposes of unofficial adoption. The phrase used in subsection (4)(c)(ii),

''to provide another person with benefits of any kind'',

may be wide enough to cover the benefit provided to someone who adopts a trafficked child. However, I want to be absolutely sure on the point, so I am asking my officials, with those in the Department for Education and Skills, to consider whether any benefit is to be gained from including a specific reference to unauthorised adoption—and ensuring that the intercountry adoption legislation that the hon. Member for Winchester helpfully highlighted also fits in with what we propose in the Bill.

Amendment No. 1 is about the abuse of power and the victim's vulnerability. The clause already applies to cases involving the abuse of power. The circumstances of such cases would constitute an aggravating factor, and could be considered by the courts. However, as my hon. Friend the Member for Walthamstow will know, because of my involvement in the Sexual Offences Act process, I am also concerned to ensure that the wording of the clause includes those circumstances in which the sort of coercion identified today may not have been used, but children, because

of their vulnerability, may none the less have been exploited as outlined in the trafficking offences.

It would certainly be possible to keep key witnesses here. Indeed, it is already possible; I am regularly asked by the police or the Crown Prosecution Service not only to retain people in this country but sometimes to return people who are key witnesses in trials for serious offences such as trafficking or murder. It is entirely possible—it is happening now. I would like to consider both amendments further. If any alterations to the wording are necessary, I shall table the appropriate amendments on Report. I hope that the Committee finds that acceptable.

Photo of Neil Gerrard Neil Gerrard Labour, Walthamstow 5:00 pm, 13th January 2004

I thank the Minister for that helpful reply, and I understand the point that the hon. and learned Member for Harborough made. The reason for the choice of words is simple. They are the words in the United Nations protocol and an internationally accepted definition of trafficking. If there is an internationally accepted definition, it is simpler to stick to it than to invent a new one. I am grateful that the Minister is going to reconsider the matter. None of us would want to leave a loophole that makes the prosecution of a particular case more difficult. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

I beg to move amendment No. 21, in

clause 4, page 4, line 19, leave out '14' and insert 'ten'.

In the unavoidable absence of my hon. Friend the Member for Woking, I have been asked to move the amendment. It is a probing amendment, and need not test the patience of the Committee for too long. However, it is important for us to find out why the Government have chosen a maximum sentence of 14 years as opposed to any other penalty for the clearly heinous crime of trafficking people for exploitation.

In the canon of criminal law, the maximum sentences on indictment range from life for murder down to far lesser penalties for lesser offences. I am brought in mind of offences such as kidnapping or false, unlawful or malicious imprisonment, manslaughter, grievous bodily harm, burglary, robbery, theft and sexual offences committed against not just adults but children and young persons. Can the Minister enlighten us about the thinking of the Government in relation to the maximum penalty of 14 years in subsection (5)(a)? I do not attach any magic to the figure of 10 years. The amendment is designed to establish why the Government think that 14 years is the sensible maximum.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

The answer to the hon. and learned Gentleman's question is twofold. First, we have taken a clear view that tough penalties are required throughout the law relating to trafficking, because it is a particularly heinous offence involving, in many cases, the most degrading exploitation of people. Secondly, it is to do with consistency. Let me give the hon. Gentleman some brief background. An EU framework decision on trafficking has recently been adopted and the UK, in line with other EU member states, has to implement it. It commits

countries that are signatories to it to introducing a minimum maximum sentence of either eight years or 10—I shall obtain clarification. Therefore, we have to have at least that sentence.

Building on the 1971 legislation, which introduces a maximum penalty of 14 years for facilitation, we have taken a consistent view in introducing new trafficking offences, first in the Sexual Offences Act 2003 and now in this legislation covering exploitation for non-sexual purposes. A sentence similar to that is required here, because trafficking is facilitation with the objective of exploiting for sexual or non-sexual purposes the person who has been brought in. The legislation covers domestic labour, which, in most cases that have come to light, is tantamount to modern-day slavery.

For those reasons, we need the same maximum sentence of 14 years for those offences. When courts consider the detail of individual cases, they will decide which sentence in that range up to the maximum sentence they want to give someone who is convicted. Courts should have at their disposal the same full range of sentences up to the maximum sentence below life imprisonment for these offences as they have for similar offences. I should add that officials have informed me that the EU framework decision requires a minimum maximum sentence of eight years.

I hope that my explanation satisfies the hon. and learned Gentleman and that he will withdraw the amendment.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

That was a helpful little canter around the Home Office's thinking. Although this is not strictly germane to the amendment or to subsection (5)(a), I am slightly puzzled by the Minister's remarks. She may or may not think it appropriate to respond to my concern that it is thought appropriate that it should be possible to deal summarily with the offences. I assume that there may be very minor cases of trafficking, which it is thought sensible for magistrates to deal with, for which the maximum sentence is six months or a fine. It is difficult to imagine what those might be, and I do not expect the Minister to produce an answer right now because she might want to take advice. Clearly, we are talking about serious and nasty offences, but—

Beverley Hughes rose—

Photo of Edward Garnier Edward Garnier Conservative, Harborough

She has already thought about it.

Photo of Beverley Hughes Beverley Hughes Minister of State (Citizenship and Immigration), Home Office, Minister of State (Home Office) (Citizenship, Immigration and Counter-Terrorism)

I thank the hon. and learned Gentleman for giving way, because we may be able to deal with his question here. These are all serious offences, but he will understand that the range of people involved in the chain—there usually is a chain—to traffick and to exploit people is very varied. Some people in the chain may be apprehended as a result of an operation to disrupt the gang, but their involvement in what is a very serious offence may be peripheral. They may have provided shelter for a night, not necessarily fully understanding the purpose for which the movement of that person was intended. The measure will allow the prosecution to deal with those more peripheral people in a way that is commensurate with their involvement, but still gives them the ability to prosecute through the Crown court the people who are heavily involved in

orchestrating the trafficking and to give them the maximum sentence available.

Photo of Edward Garnier Edward Garnier Conservative, Harborough

Right now is probably not the time to have a discussion about the mental element and the state of knowledge of those who are to be charged, whether they are right at the heart of the crime or peripheral to it. However, I am grateful to the Minister for explaining her Department's thinking to some extent. I trust that the Crown Prosecution Service will study with great care what she has said, so that it will know what she means when it is framing charges against individuals. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 ordered to stand part of the Bill.