We will now hear oral evidence from the Recruitment and Employment Confederation, the National Association of Licensing and Enforcement Officers, and Focus on Labour Exploitation. For this session, we only have until 11.25 am. I warn the witnesses not to be surprised if the Minister asks questions, because he is allowed to do that in this session. Will the witnesses please introduce themselves?
May I begin with the illegal working offences in the Bill, in particular the extension of an offence to employees as well as employers, and ask the panel how they think that will impact on the power relationship between an exploiting employer and exploited employees? Secondly, do the panel think it will have any impact on the confidence of employees to come forward? If criminal cases are to be brought, it is very important that those affected come forward and give an account, and possibly give evidence. Thirdly, do the panel think that there is any evidence that the employee offence is needed, given the other offences that are already in existence? Caroline Robinson, I think you particularly expressed some views on this.
Caroline Robinson: At FLEX, we think that the offence of illegal working is extremely dangerous, for three reasons. They relate to modern slavery, in particular, which is a key focus for our organisation and a major focus of this Government, who have set out to be a world leader in tackling modern slavery.
First, we think that people will be fearful of coming forward to be referred into the UK national referral mechanism as victims of trafficking. Only last week, we were working with a victim of trafficking who is currently in a situation of trafficking in the cleaning sector, but who has an undocumented status and is very fearful of coming into the national referral mechanism. The NRM provides 45 days’ support for victims of trafficking and a potential positive conclusive grounds decision that that person has been trafficked. If, however, they are unlucky and not found to be a victim of trafficking, for whatever reason—people are extremely fearful of that—now, under this offence, they might face 51 weeks in prison. That is the first reason.
The second reason is that we know that traffickers use the threat of deportation, removal and reporting to immigration officials in order to abuse and exploit workers. We are extremely worried about this offence, which you stated yourself is an addition to existing offences that people who have overstayed or entered the country undocumented would already face penalties for under the Immigration and Asylum Act. This offence, which serves a public relations function in terms of intensifying the hostility towards migrants, will be used by exploiters to intensify that hostility, to ensure that people remain in situations of exploitation and to threaten people with removal. We heard about a situation in the fishing industry recently in which a man was being abused and was living in extremely dangerous conditions. When he asked to have better conditions and living standards, the skipper called the Home Office, took him to port and reported him for removal. The conditions that people are living in and under which people are exploited are very much related to their immigration fears.
The third reason is something that was raised a lot on Second Reading, namely the criminalisation of trafficked persons. Although the Home Secretary set out the statutory defence, which is in the Modern Slavery Act 2015, it is quite narrow in its terms. The schedules exclude a number of offences for the victims of trafficking, such as aggravated criminal damage, but if I was to leave the building in which I was held I would no longer be covered by the statutory defence in the Modern Slavery Act.
We also know that people are in different types of situation in the UK. I was interviewing trafficked persons on Friday, and a woman I spoke to, who was in the national referral mechanism, was exploited when she first came to the UK. She then managed to escape that exploitative situation on her own, and entered into various undocumented working relationships. What would the situation be in relation to her? What would it be in relation to someone who was in an undocumented working relationship when they first entered the UK and was then exploited? How does this relate? We have a number of questions in relation to that and are deeply concerned. Given that, as you said, there are offences that relate to undocumented workers already, we think the measures are entirely unnecessary and very dangerous.
We know migrants are quite knowledgeable—they are good about communication and about the details—so do you think that the knowledge that working in Britain would be illegal and a criminal offence might deter people and make it less likely that they would allow themselves to be trafficked in the first place? With that knowledge, they are less likely to come to this country.
Caroline Robinson: The question of whether migrants are knowledgeable about the different offence structures in the UK is an interesting one. I think a lot of myths circulate. There is a perception of marginalisation and that people are not on a par with British citizens in terms of rights. As for individual offences, and the fact that this offence is 51 weeks but the offence under the Immigration and Asylum Act is six months, I do not think that people are aware of that distinction. When you talk about imprisonment versus removal, there is certainly a fear of imprisonment among the trafficked persons that I talk to, and a real fear of officials. However, in terms of the level of detail, and this extra detail when going to countries outside the EEA area, and how that would have an impact, I think there is a distinction—
Caroline Robinson: I have been working on the field of human trafficking for 11 years now. At international policy forums, the first thing that Governments are prepared to do is put money into awareness raising and huge prevention campaigns. This Government put £2 million into a widespread awareness campaign about the modern slavery hotline, which was great, and about modern slavery. A lot of effort goes into awareness raising about the threats and the dangers that people face, yet they still come.
For clarity for the Committee, will the witness define what she means by trafficking? I thought trafficking meant people who were not aware and were tricked. What is your understanding of trafficking?
Caroline Robinson: Trafficking as defined in the UN human trafficking protocol involves the act, the means and the purpose, the act being to recruit, transfer or move someone into a situation, the means being to coerce, threaten or deceive and the purpose being exploitation of various forms. The act also includes harbouring, which is the retention of someone in a situation, so we and many eminent international legal scholars understand trafficking to mean when someone is held—through coercion, threat, deception—in a situation of exploitation. For our intents, and for many Governments, although not the English Government, trafficking is not a question of movement but of holding someone in that situation, and therefore trafficking could be a situation, as described on Channel 4 news last night, of Romanian workers held in an apple packing factory through threat, coercion and exploitation—not moved into the UK, but held in a harbouring situation, as set out in the UN human trafficking protocol.
Can I go to the flipside of enforcement and look at protection? The role of the director of labour market enforcement has been widely welcomed, and rightly so. Most discussion so far has been about enforcement. Do the witnesses have views on the protective role of the director and whether the remit is wide enough?
Kevin Green: We certainly welcome the role. We think it will add value in terms of the whole data gathering co-ordination across Government. In terms of its role in protecting vulnerable adults, that is dependent on the resource and the way that it actually functions in reality. For us, extending the remit of the GLA in terms of it being able to investigate exploitation is important. That is welcome. I know that that is part of the consultation. Again, going to the last point, you have to be very careful about any kind of regulation for the victims of these offences, because a lot of the stuff that we see is criminal activity. A lot of legitimate businesses and recruitment agencies are infiltrated. Often, it is dependent on an individual worker being quite brave—being a whistleblower and flagging this up so that authority can be brought in. We need to be very careful that we do not demonise the people who are in vulnerable positions.
We welcome the development. We think it will move things forward. The level of protection is much more about the level of resource available across the breadth of activity that it will cover.
Caroline Robinson: I share that view about protection being linked to resources. We advocated strongly during the Modern Slavery Bill’s progress through Parliament for expanded remit and resources for the Gangmasters Licensing Authority and for an overarching labour market focus on inspection and enforcement. We welcomed the Prime Minister’s announcement on 21 May, and the measures in the Immigration Bill go some way to address that.
The point about the protective purpose of the director is very important. For us, the core purpose of that role should be the protection of vulnerable workers and the prevention of exploitation. That has been at the centre of the work of the Gangmasters Licensing Authority and has been part of its success. That authority, as we know, operates on a limited budget, so the resources are also of critical importance. On the role of the director of labour market enforcement and the labour market enforcement strategy, what most concerns us is the power of the director to hold control of the budgets, governance of those labour inspectorates and shifting budgets according to the strategy.
We know that the Gangmasters Licensing Authority is extremely stretched in its current remit and has done a great deal to ensure a level playing field in those core sectors in which it operates. If it is to be shifted into other sectors, we believe that the good work it has done in the existing sectors is under grave threat. This overarching role is a good thing, but it requires extra resources if any changes are to be made, and it definitely needs to have, as the core purpose of that role, the protection of workers and the prevention of exploitation.
John Miley: The ability of the agency to get involved in enforcement workers’ licensing is welcome. It will cut corners—that is not the right phrase. It will remove barriers for them in respect of enforcement. Currently they have to await police action for the licensing authority to attend. To be able to be a responsible authority—to be a responsible body under the Licensing Act 2003—will certainly improve that status for them.
Caroline, I want to come back to you and the answer you gave to my colleague earlier. You said that you were not sure that illegal immigrants are aware of the rules and regulations around countries. Most people in the UK know that when you go abroad there is a huge perception in the wide world that Britain is a light touch.
I grew up in Australia and the children of a lot of my friends I grew up with have come to the UK and know full well that they can overstay their visas without too much hassle. We have 100,000 students who overstay their visa requirements. There are also the heritage cases we know about, and the traditional open-door policy. How can you say that you are not sure whether somebody coming to this country with the intention of being an illegal immigrant is not aware of the rules and regulations?
Caroline Robinson: I was talking about specific rules and regulations and whether the distinction between six months and 51 weeks would be transferred to someone in a village in Nigeria, for example. I am not sure that I agree about the light touch. Your case about Australia is interesting. I once arrived in India without a visa and the Indian officials allowed me to leave my passport at the airport and spend my time in India, and then to return and leave.
We are not talking about India, we are talking about the United Kingdom and what has traditionally happened in this country. The general perception, throughout the world, not just Australia, is that we have traditionally been a light touch. That is among people who come and go just for holiday visas, for example. If you intend to come here as an illegal immigrant, surely you will have the knowledge that you can get away with far more than people who do not intend to do that in the first place.
Caroline Robinson: What I was suggesting was that it is quite a different situation for people from different countries. If you are on a holiday visa and are Australian and overstay, potentially that is a little bit different from arriving here from a country such as Nigeria and overstaying. The situation and the response might be different. That is part of what I was suggesting.
Caroline Robinson: We have had a raft of immigration legislation over many years, with controls and responses. I am not sure whether that means that people think the more immigration legislation that we have, the more of a light touch people perceive us to be. Then perhaps there is a problem with the legislation, I do not know.
Caroline Robinson: What we think will prevent people from working here undocumented is to reduce the demand for undocumented workers. To do that, we require enforcement of labour standards across the board. To be clear, the demand for undocumented workers is not because employers prefer undocumented over documented workers; it is because they cannot pay documented workers below minimum wage as easily as they can undocumented workers. They still try, and as I mentioned, Channel 4’s investigation last night showed Romanian workers being paid below minimum wage and being treated in substandard conditions, because they were under the perception that they were not entitled to the same rights as British citizens.
We know that 78% of those exploited for their labour are, in fact, documented in the UK. So the reduction in demand for undocumented labour through the enforcement of labour standards by this director of labour market enforcement is welcome, but to do that we need a labour inspectorate that is level with other labour inspectorates across the EU. To have just 0.8 inspectors per 100,000 workers at the moment leaves us quite open to abuse. We just heard from the Migration Advisory Committee, which said in its report last year on low-skilled migration that there is just one inspection by the HMRC national minimum wage inspectorate per 250 years for employers. The frequency of inspections is certainly an incentive for employers to employ undocumented workers, as the fear of being caught is low.
My personal feeling is that clause 8 is a show pony for the Daily Mail. It will not actually make any difference to people coming into the country to work illegally. However, what is your opinion of clause 9? Do you think that it goes far enough to put the onus on employers to not employ people illegally and not exploit workers?
Kevin Green: I gave evidence to the Modern Slavery Bill Committee when that legislation was going through. One thing that is quite important is that large businesses manage their supply chains effectively and are held to account. We recognise that there was some movement towards that in the legislation, and the anti-slavery commissioner clearly has a remit to look at that. We do not think that that has gone far enough. We think that large employers, such as supermarkets, need to be very aware of what is happening throughout their supply chain and should be held to account. That is much more likely to deliver results, along with strong enforcement, than creating more legislation and regulation that is not enforced.
Kevin Green: It is helpful, but I am not sure that it goes far enough. Think about how the supply chain works for the construction industry, with multiple small organisations working into a large developer. Hold the large developer to account, make them accountable for what activity happens in their supply chain, and I think you will drive out a lot of the bad practice that we are hearing about.
John Miley: I think it helps. I am quite keen to ensure that the licensing authorities are not given some sort of role in this in respect of being responsible. If we are making checks on certain documentation, I do not want us to be part of the problem. If something happens and we miss a check, we do not want to be responsible for it. It is important that owners and employers are responsible. It certainly gives the enforcement agencies the opportunity to take proper action against them.
Caroline Robinson: The evidence from the National Crime Agency statistics shows the range and scale of the exploitation referred into the national referral mechanism. The scientific adviser’s report to the Home Office was published last year, and estimated that there are 13,000 victims of modern slavery in the UK. If we go by the NRM stats, one third of those would be victims of labour exploitation—about 4,300 victims of labour exploitation in the UK. Those are the statistics.
Caroline Robinson: Harbouring was placed on the UN human trafficking protocol by the Americans at the time of the travaux préparatoires to the protocol. It was based on the definition of harbouring in US domestic law, which is about retaining individuals in a situation—keeping people in a situation and harbouring in the same situation.
I am keen to ensure that we learn from other countries, and I am interested to know what the panel thinks we can learn from them about effective labour market enforcement. In particular, I am interested in the line of questioning that I was pursuing earlier, which was about the relationship between immigration officers and labour market enforcement regimes. For example, in the States there are clear firewalls, which the Americans think enhance effective labour market enforcement.
Caroline Robinson: FLEX has just conducted a review of other countries’ labour inspection frameworks, and we have also been looking at research; we have been conducting research as part of a pan-European project on improved identification of victims of modern slavery. That research in particular showed an interesting finding in the Netherlands, which we had previously held up as a great example of labour inspection; it has a very large labour inspectorate and has conducted work in this area in the past. However, the victims of trafficking we spoke to there said that the confused mandate of the SZW inspectorate caused problems on the ground, so that they were unwilling to come forward. That is because the inspectorate serves two functions: one, to identify undocumented workers; and, two, to identify exploitation.
The concern in our research then was that the people we had spoken to had not come forward to be identified by inspectors at the time of inspection, because of the overlap they saw between the inspectorate and the aliens police, which often conduct joint investigations; and the inspectorate has an overlapping mandate.
We are also concerned that where this overlapping mandate exists, it is quite hard to look for two things at the same time. We have our own example of that in the UK. We have the case R v. Khan, Khan and Khan, from 2010, about nine men who were held in in a restaurant by the Khan family in a situation of trafficking for labour exploitation. Those men were there for four years in situations of exploitation before they were discovered and before those perpetrators were convicted of trafficking. During that time, the judge’s report from the court said, there were regular inspections by Home Office officials. So the documents were in order, but the labour exploitation was not; those people were being held and trafficked for labour exploitation, yet regular Home Office inspections identified nothing. Eventually, they were able to seek help from family members or friends to leave that situation.
Kevin Green: Our take on it is that we are part of a global organisation of recruitment businesses called Staffing Industry Analysts. We recognise the need for strong labour enforcement, and there are lots of examples of where it works well.
One area that we would certainly flag up, and where we need to be careful, is in putting too much of an onus on business to address this issue through some kind of licensing regime. We have looked internationally and we cannot find any example of where we think this adds a huge amount of value. We think that a lot of this activity is about criminal activity, where people are trafficked and in forced labour.
We are very clear that the role is, first, to hold large organisations to account, as I have already talked about, through supply chain management, and, secondly, to have a strong inspectorate, which has the resources to investigate and bring people to bear, rather than creating a huge bureaucracy for a lot of legitimate businesses, where there is more responsibility to produce evidence, and which would add cost and complexity to legitimate businesses. What we are really doing here is trying to find the people who are undertaking this activity of forced labour and human trafficking.
I want to ask Mr Miley, who has expertise and experience in licensing, how he thinks the powers contemplated in the Bill could strengthen existing enforcement around standards in the licensing process, and who should be holding licences. Also, I would like to know about his experience of using closure notices, and some of those short-term measures that are currently reflected in licensing legislation and are now being contemplated in a broader sphere.
John Miley: To answer the last question first, my authority has had no particular experience of using a closure notice. We have come close to it, but we tend to try to negotiate issues out before such things has happen. It is good that the proposals reflect the current practices under the Licensing Act 2003, which will make life a lot easier for licensing authorities to utilise the situation. There is the potential for reviews of a premise’s licence if a closure notice is actually turned into a closure order, which would be quite useful.
As for general enforcement, it is difficult to quantify the real issues relating to illegal working in licensed premises. As I said before, there is the possibility that that happens in late-night refreshment houses. In ordinary licensed premises, such as public houses and restaurants, that does not tend to be the case. It also seems that the national fraud initiative has not discovered much in the way of that in the past year. It has found more in the taxi trade, which I understand will be dealt with later in an amendment to the Bill.
The Bill will give the immigration agency the ability to undertake risk-based inspections and actions without needing to get the police involved, which happens currently. I am unsure whether it will improve standards. I suspect that if people can get away with it, they will continue until they are caught. An example then needs to be made and the employer needs to be properly castigated.
Do you have any comments on intelligence sharing and joint working with other agencies to support the work of local authorities?
John Miley: It is to be commended. Generally speaking, licensing authorities do not work in silos. They work in the broader scheme of things, and work with the police and the Security Industry Authority and more generally with immigration. Good work is currently going on in quite a lot of cases. We do an awful lot of partnership working. In fact, it is one of the cornerstones of the licensing procedures that we consult and gather information among ourselves. In Nottinghamshire, all the responsible authorities meet every six weeks. That will include the immigration authority when the Bill is passed. It is a useful evidence and information gathering and sharing process.
I want to explore a little more around employers who are repeat offenders. I have witnessed examples of activity from smaller businesses that have caused concern. Does clause 9 go far enough to prevent such businesses, once caught, from doing it again? Is it enough to stop people who have already caused concern for agencies?
Undocumented workers. It has not always reached a full conclusion, so there has perhaps been a view that the penalties are not stiff enough. That is why I am interested to know whether this measure is enough finally to stop people taking those decisions and using undocumented workers.
Kevin Green: My take is that we have to be very careful. There are lots of businesses, and we look at national minimum wage breaches. There are only two cases that have involved recruiters, and they were just miscalculations. Such businesses should be held to account to make sure that they put it right, and then we move on. There is a difference in holding businesses to account. Sometimes small businesses without the resource might make mistakes, and we still need to hold them to account. There is lots of regulation already in place to do that. I think some clarity about that and resource for enforcement are important, but that is very different from somebody who is actually bringing people, harbouring people—what I would call human trafficking. That is criminal activity, and we need strong clarity about the potential punishment, the right level of resource and the right level of intelligence gathering across the different agencies, where this is moving in the right direction.
One of the things that we have uncovered is that, when they find criminal activity, lots of my members will provide examples and identify areas to the GLA where they think they have been infiltrated or where they see information, bank details and telephone numbers being given from one employer—they will then whistleblow to the GLA. Those legitimate businesses need to be sure that, by whistleblowing, they are actually helping to resolve the issue. Resource for the GLA is critical in moving this forward. They need the resource to go after the people who are carrying out real exploitation so that we do not mix them up with small businesses that make the odd mistake along the way.
I want to take Ms Robinson back to her point about defences under the Modern Slavery Act 2015, in which I take a great interest—I sat on the Public Bill Committee. I have that Act and the Criminal Damage Act 1971 in front of me because she made a specific reference to that defence. As I understand it, the defence supplied in the 2015 Act in relation to criminal damage specifically excludes criminal damage with the intent to endanger another person’s life, so it is a rather more specialist case than she might have suggested. Secondly, on Second Reading of this Bill, the Home Secretary was very clear that all those defences will continue to apply. Will Ms Robinson explain her view?
Caroline Robinson: Sorry, I was thinking about Second Reading of the Modern Slavery Act. Yes, she did say that, which is why I said it will be very interesting for organisations such as mine, and many others, as part of the Anti-Trafficking Monitoring Group to know for sure what would be the situation in the case I set out in which there is a series of events in a person’s stay in the UK. They might be exploited when they arrive and then they escape that exploitation on their own—that happens many times, including to a woman I spoke to last week—before entering undocumented work.
Secondly, what would be the situation if I was in undocumented work when I arrived in the UK and then that work deteriorated to the point of exploitation, as we know is a regular pattern in exploitative working conditions? What would happen there? Would I be offending for that work at the beginning, or would the modern slavery defence, if proved, counter that previous work? Those are the questions that remain for us. It would be brilliant to have expanded detail on that in Committee.
I want to pick up with Mr Green, and perhaps Mr Miley, how the Bill intends to improve the market regulation and enforcement of workers’ protections. Why has such a culture built up in certain sectors, and how have we allowed that? Does what is in front of you work for that culture to be broken down?
Kevin Green: What we need—and many people have said this consistently—is the ability to share intelligence across multiple agencies. I think that the director of labour market enforcement is a step in the right direction. Points were made earlier—for instance, how we bring in the Health and Safety Executive and local authorities, because they are going into premises on a regular basis. Over time, that should be extended. Once there is intelligence gathering, it is about the right enforcement regime to tackle that. So, where it is potentially a minor breach, through something like the conduct regulations—there I think we have the right enforcement in place. Sometimes you really need detailed police investigations to crack a criminal activity that has been very exploitative. I think this is a step in the right direction. The additional offences, apart from the one for individuals, are probably helpful. So my answer is that I think it will be helpful in addressing some of that; but, again—as I have said consistently today—it is about the level of enforcement activity. It is very rare for us to agree with the TUC, but—
Order. I am really sorry. I am afraid that that brings us to the end of the time allocated to ask questions. Again, I thank the excellent witnesses; we could have spent a lot longer on this.
On a point of order, Mr Bone. This afternoon we move to witnesses who deal with the landlord and renting provisions in the Bill. In an answer given orally last week, there was an assurance that the evaluation for the west midlands pilot of the scheme would be available before the Bill Committee. Since we are getting to that witness this afternoon, where is the evaluation? I would certainly benefit from reading it before I start my questioning at 3 o’clock.
I can say that, as Members may have noticed, there is a written ministerial statement on the Order Paper in relation to the right to rent scheme roll-out more generally. Alongside that, the evaluation is being published. I suspect—and can certainly talk to hon. Members outside the Committee as well—that the evaluation will be available on gov.uk well in advance of our considerations this afternoon.