Clause 48 - Identification of potential victims of slavery or human trafficking

Nationality and Borders Bill – in a Public Bill Committee at 9:25 am on 2nd November 2021.

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Photo of Roger Gale Roger Gale Conservative, North Thanet 9:25 am, 2nd November 2021

Good morning, ladies and gentlemen. Electronic devices switched off, please, and masks on, if possible, as a courtesy to colleagues. No food and drink in the room, and all that sort of stuff. You will have noticed that there is a change of Minister this morning. [Hon. Members: “Hear, hear!”] Welcome, Mr Whittaker. We crack on.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I beg to move amendment 185, in clause 48, page 43, line 3, leave out from “determination” to end of subsection (4) and insert

“determinations mentioned in paragraphs (c) and (d) are to be reviewed by the Multi-Agency Assurance Panels, who will have the power to overturn the determinations made by the competent authority.”

This amendment seeks to introduce Multi-Agency Assurance Panels at the reasonable grounds stage and will enable them to overturn decisions made by a competent authority.

It is a pleasure to serve under your chairmanship once again, Sir Roger. I both congratulate and commiserate with my neighbour, the hon. Member for Calder Valley, on his rapid promotion this morning to take forward an incredibly important piece of legislation. I wish him all the very best with the rest of the week.

Amendment 185 seeks to build upon the Modern Slavery Act 2015 and introduce multi-agency assurance panels at the reasonable grounds stage, as well as enabling them to overturn decisions made by a competent authority. That would ensure that multi-agency scrutiny is applied at the first stage, offering an important safeguard. Multi-agency assurance panels were part of a range of reforms to the national referral mechanism that were announced in 2017, following the NRM review commissioned by the Home Secretary in 2014. A recent review provided key recommendations, such as establishing new multidisciplinary panels headed by an independent chair, with a view to replacing the decision-making roles of UK Visas and Immigration and the UK Human Trafficking Centre with a single competent authority.

At present, there is multi-agency scrutiny only of negative conclusive grounds decisions, which, even then, is limited, with panels having the power only to ask the single competent authority to review a decision, as opposed to overturning it. A recent review of the national referral mechanism multi-agency assurance panels conducted by the Anti-Trafficking Monitoring Group found that

“at present, MAAPs do not adequately assure NRM decision-making”, the reasons for which include that there is

“no multi-agency involvement in the reasonable grounds stage of the NRM, undermining confidence that there are any checks on bad decision-making at this first stage”.

The report also pointed to

“MAAPs lack of decision-making powers” and times at which

“the evidence reaching the panels is minimal and of poor quality”.

The amendment applies those recommendations and highlights that, as the reasonable grounds stage is effectively the gateway to all anti-trafficking support, an extra level of safeguarding should be available to ensure good decision making. Both the amendments tabled to clause 48 are necessary to ensure that we are not turning our back on victims and restricting opportunities for individuals to refer into the NRM and receive the support they need. The measures have been widely endorsed across the sector and seek to introduce examples of best practice. I therefore strongly hope that the Minister will join us in endorsing these changes.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

It is a pleasure to serve under you, Sir Roger, but not particularly in this role. However, as always, it is a pleasure to be sitting on a Committee that you are chairing.

I thank the hon. Member for Halifax for her valuable contribution on this point. Decision making is of course central to our ability to support possible and confirmed victims of modern slavery. That is why, throughout the Bill, as she will know, we have discussed ways for that to be done as quickly and fairly as possible. It is in that vein that we have sought to clarify the reasonable grounds and conclusive grounds thresholds in primary legislation, to support that effective decision making. It is also why we are committed to reviewing the guidance that under- pins the reasonable grounds test to ensure that it best supports that.

Central to that work is the premise that the reasonable grounds decision should be made quickly. Currently, where possible, that is within five working days of referral to the national referral mechanism. That timeline enables us to quickly identify possible victims and ensure that they receive the appropriate support that they need. All decision makers receive robust training to support that process, and any negative reasonable grounds decisions will be reviewed by a second caseworker or a manager/technical specialist to ensure that all decisions taken are in line with the policy. An individual, or someone acting on their behalf, may also request reconsideration of a negative reasonable grounds decision by the competent authority where there are specific concerns that a decision made is not in line with the policy, or if additional evidence becomes available that would be material to the outcome of a case.

At the conclusive grounds stage, we already have a process whereby negative decisions are considered by those multi-agency assurance panels. That process is set out in the modern slavery statutory guidance for England and Wales, under section 49 of the Modern Slavery Act 2015, and non-statutory guidance for Scotland and Northern Ireland. We believe that that is the right place for the process, enabling us to adapt it in future to changing needs. To put in place the duty for multi-agency assurance panels to review all reasonable and conclusive grounds decisions would cut across that approach. It is not appropriate for that to be set out in primary legislation, as amendment 185 seeks to do, as that would remove the ability to change such a process to appropriate bodies and needs in the future.

Moreover, the amendment would add a new power whereby multi-agency assurance panels can overturn competent authority decisions, rather than the current approach of asking the competent authority to review a decision in specific circumstances. It is right that only designated competent authorities have a decision-making role. The current approach supports a culture of continuous improvement.

As I have set out, we do not believe that primary legislation is needed here. The current multi-agency assurance panels have been subject to an evaluation, and we will consider the conclusions and lessons learned in due course. If in the future we wished to consider multi-agency assurance panels at the reasonable grounds stage, or to change their remit, it would follow that that, too, would be a question for guidance.

Although I presume not intentionally, the amendment would also remove the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery. That is the current test that is applied, in line with our obligations under the Council of Europe convention on action against trafficking in human beings.

Photo of Robert Goodwill Robert Goodwill Conservative, Scarborough and Whitby

Does the Minister agree that decision making in such circumstances is made very difficult by the fact that many people who are victims of modern slavery will not declare that because it is part of the deal with the people traffickers, and many people who claim to be victims of modern slavery are not victims but are using it as a way of getting their asylum claim accepted?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I thank my right hon. Friend for his intervention. He is right that one of the key points in the process is that decision makers have the ability and the training to know what they are looking for to identify whether people are victims of modern slavery.

Photo of Neil Coyle Neil Coyle Labour, Bermondsey and Old Southwark

I recognise that the hon. Gentleman is stepping in as Minister, but he just said that the right hon. Member for Scarborough and Whitby was right in his assertion that many of those who claim to be asylum seekers are not. Could he remind us of the Home Office statistics on that issue?

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I thank the hon. Member for that question. Unfortunately, I do not have those statistics for him, but I will ensure that he gets them by the end of today. I will ask officials to bring forward those numbers.

It is essential that the provision that clarifies that the conclusive grounds threshold test is based on whether, on the balance of probabilities, an individual is a victim of modern slavery remains in the Bill to provide legislative clarity to that threshold. For the reasons that I have outlined, I respectfully ask the hon. Member for Halifax to withdraw the amendment.

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office)

I have heard some of the Minister’s attempts at reassurance. I have real concerns about some of the changes to the reasonable grounds decision. We heard in earlier discussions on the Bill about the introduction of trafficking information notices, which I am concerned will affect the need to take the reasonable grounds decision quickly. The amendment could have been a step towards improved confidence in, and scrutiny of, those early decisions, so I continue to implore the Government to consider introducing those panels in the guidance. It may not need to be in primary legislation, but I hope that the Minister has heard the case for that approach. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I beg to move amendment 176, in clause 48, page 43, line 17, leave out subsection (7).

Under this amendment and the corresponding amendment to clause 57, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.

Photo of Roger Gale Roger Gale Conservative, North Thanet

With this it will be convenient to discuss amendment 177, in clause 57, page 51, leave out lines 42 and 43.

Under this amendment and the corresponding amendment to clause 48, the Secretary of State would no longer be able to change the definition of slavery and human trafficking by regulations. Instead, any changes to the definition of slavery would require primary legislation.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

It is a pleasure to serve under your chairmanship again, Sir Roger. Last week, I was speculating about how long the Immigration Minister might be in post, but I was still shocked. Seriously, we all pass on our best wishes to him for a speedy recovery. I congratulate the Lord Commissioner of Her Majesty’s Treasury, the hon. Member for Calder Valley, on his temporary promotion.

On the whole, we have stayed out of debates on the clause, despite having lots of sympathy for what the shadow Minister, the hon. Member for Halifax, has been saying. The clause largely applies only to England and Wales—distinct legislation is in place in Scotland and Northern Ireland. However, one part of the clause amends the “Interpretation” section of the 2015 Act and that does extend to Scotland and Northern Ireland. With the amendment, we are just posing some questions for the Minister. I appreciate that it is not easy for him to answer in these circumstances, so anything in writing afterwards would be more than acceptable.

Under the 2015 Act “victim of slavery” and “victim of human trafficking” are defined as applying to people who are victims of those respective crimes in the first couple of sections of that part of the legislation. That seemed a logical, straightforward and consistent way of doing things—define the criminal offences and then set out support regimes for victims of those offences. I have heard no complaint that that definition causes problems, but clauses 48 and 57 of the Bill—to which my amendments relate—will use a different definition of modern slavery.

The new definitions do not totally supplant the existing definitions of victims of modern slavery or trafficking in the 2015 Act, but they add a new and potentially different definition for the purposes of identification and support of the victims. The question therefore arises as to why we should have one definition of a victim for some purposes, but another for the purposes of identifying those to be supported? If there is to be a different definition, why is it not on the face of the Bill? Why is it, somewhat bizarrely, left to the Secretary of State to define in regulations what must be two of the most fundamental concepts for the purposes of this part of the Bill?

We do not know how the Secretary of State will use the powers, so that is another question for the Minister: what is the intention? It could be that she wants to be generous and to adopt a wider definition for the purposes of identifying and supporting victims and survivors. In line with other provisions of the Bill, however, it could be that she wants to be more restrictive and to confine the category of people who can get support to a much narrower group. If Parliament really wants to be back in control, it should not be allowing the Government to pass legislation such as this. I simply ask the Minister for an explanation as to why it has been done in this way.

Photo of Craig Whittaker Craig Whittaker Assistant Whip, The Lord Commissioner of HM Treasury

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for his questions. Basically, he asked whether we are amending the definition of modern slavery, and the straightforward answer is no.

To underpin the measures in the Bill, we are creating a power to make regulations to define the meaning of “victim” in accordance with our ECAT obligations. The definition of a victim of slavery or trafficking for the purposes of the Bill will be set out in regulations made under the affirmative procedure.

The hon. Gentleman also asked why we are raising thresholds as such. As I said before, the proposed measure in this Bill will amend the wording of the reasonable grounds threshold in the Modern Slavery Act so that it mirrors some of our ECAT obligations. Alongside this, we are reviewing the reasonable grounds test and the corresponding guidance for decision makers to ensure they are best able to identify genuine victims and reduce the potential for non-genuine victims to misuse the system.

Photo of Stuart McDonald Stuart McDonald Shadow SNP Spokesperson (Home Affairs)

I thank the Minister for his answer. I have made the point I need to make, which is that it is not appropriate to leave it to regulations to define these two fundamental concepts. I am sure this is something that will be pursued in the House of Lords. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Division number 45 Nationality and Borders Bill — Clause 48 - Identification of potential victims of slavery or human trafficking

Aye: 8 MPs

No: 6 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

The Committee divided: Ayes 8, Noes 6.

Question accordingly agreed to.

Clause 48 ordered to stand part of the Bill.