11 Trafficking in human beings
| (30513)
8151/09
COM(09) 136
+ ADDs 1-2
| Draft Council Framework Decision on preventing and combating trafficking in human beings, and protecting victims, repealing Framework Decision 2002/629/JHA
Commission staff working documents: impact assessment and summary of assessment
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| Legal base | Articles 29, 31(1)(e) and 34(2)(b) EU; consultation; unanimity
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| Department | Home Office |
| Basis of consideration | Minister's letter of 12 May 2009
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| Previous Committee Report | HC 19-xv (2008-09), chapter 3 (29 April 2009)
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| To be discussed in Council | No date set
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| Committee's assessment | Politically important
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| Committee's decision | Not cleared; further information awaited
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Previous scrutiny of the document
11.1 When we considered the draft of this Framework Decision in
April,[47] we noted that
the JHA Council had adopted a Framework Decision in 2002 which
defines the offence of trafficking in human beings and requires
Member States to ensure that, for example, the penalties for an
offence are effective, proportionate and dissuasive and that special
protection is given to children who are victims of the trade.
We also noted that, in 2005, the Council adopted an Action Plan
to support and supplement the implementation of the Framework
Decision.
11.2 We recalled that, in 2008, the Commission published
an evaluation of the implementation of the EU legislation and
Action Plan. Its main finding was that Member States had transposed
the Framework Decision into national law but there was a serious
gap between what the national legislation said and what Member
States were actually doing.
11.3 In 2005, the Council of Europe adopted a Convention
on trafficking in human beings. The Commission staff working document
annexed to the draft Framework Decision (ADD 1) says that the
Convention "is regarded by experts as constituting the highest
international standard to date, since it provides a comprehensive
framework" for prevention, investigation, prosecution, victim
support and cooperation between Member States; and that "Implementing
such measures would lead to significant improvements." The
Commission staff working document also says, however, that the
Convention contains weaknesses: for example, some of its provisions
are not binding. So far, 11 Member States, including the UK, have
ratified the Convention and a further 14 are in the process of
ratifying it.
11.4 In the light of its evaluation of the implementation
of the 2002 Framework Decision, its views about the Council of
Europe Convention and its consultations, the Commission proposes
this new Framework Decision to:
- re-enact some of the provisions
of the 2002 Framework Decision;
- amend some of the others to add new requirements
for action by Member States (for example, on the length of prison
terms for offences);
- create new obligations for Member States on,
for example, the prevention of trafficking, assistance to and
protection of victims and training for police and others concerned
with the investigation and prosecution of offences; and
- repeal the 2002 Framework Decision.
11.5 In his Explanatory Memorandum of 14 April 2009,
the Minister of State at the Home Office (Mr Phil Woolas) told
us that the Government's preliminary view was that the Commission's
proposals were broadly in line with existing UK policy on trafficking.
But the Government would ask the Commission for clarification
of quite a lot of the proposed Articles.
11.6 In the Conclusion to our report on the document,
we expressed surprise that the Commission is proposing new legislation
when, according to the Commission's own recent evaluation, Member
States are not actually implementing the legislation they have
enacted to transpose the 2002 Framework Decision and when fewer
that half the Member States have ratified the 2005 Council of
Europe Convention. We put a number of questions to the Minister
about this and other matters.
The Minister's letter of 12 May 2009
11.7 In his letter of 12 May, the Parliamentary Under-Secretary
of State at the Home Office (Mr Alan Campbell) replies to our
questions. We set out below the questions (in italics) and the
Minister's replies.
Might concentration on full implementation of
the 2002 Framework Decision and the Council of Europe Convention
be a more effective way to counter trafficking in human beings
and help victims than creating new legislative requirements?
11.8 The Minister tells us that, in the Government's
view, the Council of Europe Convention is one of the most important
international instruments on trafficking in human beings and that
its widespread adoption would represent a major advance. But the
Government is sympathetic to the idea that the existing Framework
Decision should be updated to take account of developments in
human trafficking since 2002. All Member States would be obliged
to give effect to the updated Framework Decision. In negotiation,
the Government would seek to ensure that any proposals to go further
than the Council of Europe Convention add value and do not create
unnecessary regulation. Subject to that qualification, the Minister
says:
"The Government therefore expects the [proposed
new] Framework Decision to further strengthen the international
legal architecture against trafficking, alongside the Council
of Europe Convention and other international treaties (e.g. the
UN Palermo Protocol)".
Article 3 of the draft Framework Decision proposes
that Member States should ensure that some trafficking offences
are punishable by imprisonment for a maximum term of not less
than six years, another class of trafficking offences by imprisonment
for not less than 10 years and a third class for a maximum term
of not less than 12 years. Might this unacceptably fetter the
discretion of the judiciary to decide sentence on the facts of
each particular case?
11.9 In reply, the Minster says:
"Article 3 proposes minimum maximum penalties
for trafficking, taking into account different aggravating circumstances.
The Commission's objective was to reduce the variation between
the minimum penalties across member states, which vary considerably
at present. The UK is already compliant with this proposal as
our maximum penalty for trafficking is 14 years — more than
any of the proposals in the Framework Decision.
"We share the Committee's view of the importance
of preserving the Judiciary's discretion in deciding on sentences
based on the particular circumstances in each case. We have already
made this view known in the … Working Group negotiating the
Framework Decision. Our position is that the proposals, which
lay down what the minimum terms should be for maximum penalties,
would not interfere with the Court's discretion given the current
maximum sentence for trafficking offences in our domestic legislation
(14 years). On that basis, we are prepared to accept this proposal."
Article 8(4) sets out a procedure for settling
conflicts of jurisdiction in parallel proceedings for the offence
of human trafficking in more than one Member State. The procedure
appears to be inconsistent with the procedures for resolving such
conflicts which are proposed in the draft Council Framework Decision
on prevention and settlement of conflicts of jurisdiction in criminal
proceedings.[48]
11.10 The Minister tells us that the Government shares
our view that there should be a consistent approach to dealing
with conflicts of jurisdiction. It considers that the proposed
Framework Decision on the prevention and settlement of such disputes
should apply, as a general rule, to cases about trafficking in
human beings. The Government will, therefore, seek to ensure consistency
between the two measures.
What is the Government's view on the requirement
in Article 12(3) of the draft Framework Decision for each Member
State to "consider" making it a criminal offence knowingly
to use the services of a victim of a trafficking offence?
11.11 In reply, the Minister says:
"This proposal urges member states only to give
consideration to such measures. It does not impose anything more
than that … the Government is content that the UK could comply
with such a provision. The proposal merely serves a function in
highlighting the option whilst leaving it up to member states
to decide on how or whether to take it forward. As the Committee
will be aware, our own proposals exceed this. The proposed strict
liability offence of paying for the sexual services from someone
controlled for gain is contained in the Policing and Crime Bill
currently before Parliament. The Government recognises that this
legislation is important in sending out a strong message about
the unacceptable nature of trafficking, and other forms of coercion
affecting those involved in prostitution and the responsibility
of citizens in avoiding using the 'services' of trafficked women
and thereby contributing to the demand for trafficking."
11.12 Finally, the Minister offers to provide us
with progress reports on the negotiations.
Conclusion
11.13 We are grateful to the Minister for his
reply. We retain our doubts, however, that the proposed new Framework
Decision would be a more effective means to counter trafficking
in human beings and help its victims than the proper implementation
of the existing EU legislation and the Council of Europe Convention.
We note the Minister's answers to our other questions and draw
them to the attention of the House.
11.14 We are grateful for the Minister's offer
to keep us informed about the negotiations. Pending his progress
reports, we shall keep the document under scrutiny.
47 See headnote. Back
48
(30410) 5208/09 and (30502): see HC 19-xii (2008-09), chapter
7 (25 March 2009). Back
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