European Scrutiny Committee Contents


3 Trafficking in human beings

(32616)

PE-CONS 69/10

Directive of the European Parliament and Council on preventing and combating trafficking in human beings and protecting its victims, replacing Council Framework Decision 2002/629/JHA

Legal baseArticles 82(2) and 83(1) TFEU; co-decision; QMV
Document originated9 March 2011
Deposited in Parliament24 March 2011
DepartmentHome Office
Basis of considerationMinister's letters of 7 February and 22 March 2011
Previous Committee ReportsNone; but see (30513) 8151/09; HC 19-xv (2008-09), chapter 3 (29 April 2009); HC 19-xviii (2008-09), chapter 11 (3 June 2009); and HC 19-xxvii (2008-09), chapter 35 (14 October 2009).
Committee's assessmentLegally and politically important
Committee's decisionFor debate on the Floor of the House

Background

3.1 In 2002, the Council adopted a Framework Decision requiring all EU Member States to introduce criminal penalties for offences involving the trafficking of human beings for the purpose of sexual exploitation or exploitation of an individual's labour.

3.2 In 2005, the Council of Europe agreed a Convention on Action against Trafficking in Human Beings which provides a comprehensive framework for the prevention, investigation and prosecution of trafficking in human beings, for measures to protect and promote the rights of victims of trafficking, and for international cooperation to combat trafficking. All EU Member States have signed the Convention, but not all have ratified it.[5] The Council of Europe Convention draws its inspiration from a United Nations Convention against Transnational Organised Crime and, in particular, a Protocol thereto to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children.

3.3 In 2009, the Commission proposed a new Framework Decision which was intended to repeal the 2002 Framework Decision and replace it with a legislative framework incorporating some additional elements, for example, a revised definition of trafficking, stronger criminal penalties, more extensive jurisdiction to prosecute trafficking offences and enhanced protection of victims. However, as the Framework Decision was not adopted before the entry into force of the Lisbon Treaty, on 1 December 2009, it fell as a result of changes to the legal base for EU action in the field of criminal law.

The draft Directive and previous scrutiny

3.4 In March 2010, the Commission proposed a new draft Directive on human trafficking based on Articles 82(2) and 83(1) of the Treaty on the Functioning of the European Union (TFEU). Both Articles provide for the adoption of Directives establishing minimum EU rules in areas of criminal law which have a sufficient cross-border dimension to justify EU action. Article 82(2) covers such matters as the rights of individuals in criminal procedure and the rights of victims of crime. Article 83(1) covers the definition of criminal offences and sanctions for particularly serious crimes where the need for EU action results from "the nature or impact of such offences or from a special need to combat them on a common basis." Trafficking in human beings and the sexual exploitation of women and children are specifically cited as areas of crime which meet these criteria.

3.5 The draft Directive proposed repealing the 2002 Framework Decision and establishing a new EU legal framework, incorporating elements of the 2005 Council of Europe Convention as well as additional measures intended to strengthen action across the EU to prevent and combat trafficking in human beings. As the legal base for the draft Directive was in Title V of the TFEU, the UK's opt-in applied.

3.6 We considered the draft Directive at our first meeting on 8 September 2010.[6] By then, the three month period available to the UK under its Title V opt-in Protocol to determine whether or not it wished to opt in, had elapsed and the Government had informed us of its decision not to opt in. The Minister for Immigration (Damian Green) explained how the Government had reached its decision in a letter dated 29 June 2010:

"[...] the Government has assessed the Directive against the coalition agreement's case by case approach to European Union legislation and its commitment to combating trafficking. We have also considered whether the Directive adds value to the UK's anti-trafficking efforts, and whether or not it is affordable."

3.7 He said that, whilst the Government had concluded that there was much that was positive about the draft Directive, there were also risks. He identified three, in particular:

  • it was not evident that opting in would provide much "added value" to the UK, as it would not make "a significant practical difference" to the way in which the UK tackled trafficking and supported victims; nor would there be a net benefit or loss to the UK, in terms of operational measures, depending on whether or not the UK opted in;
  • the European Parliament might propose changes to the draft Directive which could affect UK interests, such as expanding extra-territorial jurisdiction or the support to be provided to individuals not yet identified as victims of trafficking; and
  • the Directive would make mandatory measures which were currently discretionary in the UK, such as the appointment of special representatives to support child victims during police investigations and criminal trials, thereby reducing flexibility for professionals to determine how best to respond in different cases.

3.8 The Minister added that primary legislation would be needed to provide a statutory basis for those parts of the Directive creating duties or rights. In light of all these factors, the Government had decided to review UK participation in the Directive once it had been finalised and to determine, at that point, whether to seek to opt in retrospectively. The Minister said that this approach would enable the UK "to benefit from being part of the Directive if it chooses without carrying any of the risk of being bound by measures contrary to the UK interest." It would also allow the UK "to signal its continuing commitment to combating trafficking whilst ensuring that the text of the Directive best corresponds to the UK's interests."

3.9 We considered that the draft Directive did not differ substantively from the draft Framework Decision which our predecessors had cleared from scrutiny in 2009. We also thought that the legal base proposed for the draft Directive was appropriate and that it was consistent with the principle of subsidiarity. In light of the Government's decision not to opt in, we decided to clear the draft Directive from scrutiny in the knowledge that, if the Government were to review its decision at a later stage (once the text had been finalised), we would have a further opportunity to consider the Directive and the case for and against UK participation in it.

The Minister's letter of 7 February 2011 and our response

3.10 The Minister's letter informed us that the Council and European Parliament had agreed the content of the draft Directive and that the Justice and Home Affairs Council proposed to adopt it at its meeting on 21 March. He said that the Government intended "to make a decision on the Directive in February" and asked the Committee to indicate its views by 21 February as these were "important to the Government's decision." He outlined the main changes made to the draft Directive during the course of negotiations.

3.11 In our reply of 16 February, we noted that a decision to seek to opt into a Title V measure after its adoption, under Article 4 of the UK's opt-in Protocol, was not subject to the same three month time limit required for opt-in decisions based on Article 3 of the Protocol.[7] We agreed that it was important for the Government to take into account the Committee's views on whether or not the UK should seek to opt into the Directive, and said that we expected to be given sufficient time to scrutinise the Government's position thoroughly and effectively. We therefore asked the Minister to provide us with more detailed information on the legal, policy and financial implications of changes made to the Directive during negotiations and to explain the effect (if any) that the changes would be likely to have in persuading the Government to consider reversing its original decision not to opt into the Directive.

The Minister's letter of 22 March 2011

3.12 The Minister provides a copy of the final agreed text and tells us:

"The Government intends to apply to opt into the Directive. In coming to this decision, the Government considered the finalised text against a number of factors, including whether the Directive adds value to the UK's anti-trafficking efforts, and whether or not it is affordable."

3.13 He explains:

"The Government's decision to apply to opt in is not a change in policy. The Government has been clear since last June that we wanted to consider the final text of the Directive in detail before making a decision. However, the UK has always been a world leader with regard to its anti-trafficking work and has a strong international reputation in this field. Applying to opt into the Directive would continue to send a signal to traffickers that the UK is not a soft touch, and that we are supportive of international efforts to tackle trafficking."

3.14 The Minister recalls the Government's reasons for not opting into the draft Directive at the outset (summarised in paragraph 3.7) and says:

"The main risk has now been overcome: this is a finalised text and so we have avoided the risk of being bound by measures that are against the UK's interests. While the text has expanded somewhat in scope, the new text still does not contain any measures that would significantly change the way the UK fights trafficking. The new text would still require us to enshrine our good practice into legislation."

3.15 He continues:

"If our application to opt in is successful, we will work closely with the Commission on implementation. There is some flexibility in how we achieve the aims of the Directive and we will look at the best ways of doing this for the UK.

"In summary, UK participation would mean we would be required to: widen one existing offence; amend legislation relating to extra-territorial jurisdiction; make mandatory those measures which are currently discretionary (eg appointing special representatives to support child victims during police investigations and criminal trials); and set out the rights of victims to assistance and support. There are no new burdens on the private sector.

"Administrative solutions for transposing some of the obligations may be acceptable, and we would discuss these with the Commission. However, if the Commission does not agree, we would need to legislate to give effect to these.

"Primary legislation would be required to implement some of the Directive's provisions. As such, we would need to find legislative time in a Programme Bill in the second session. All implementing legislation will need to be in force within two years of adoption and our decision to apply to opt into the Directive.

"The total costs arising from the Directive have been estimated at approximately £810,000 per year, with £80,000 per year falling to operational policing as a result of potential activity on extra-territorial jurisdiction."

3.16 The Minister asks for the Committee's views on the Government's proposed approach by 17 May.

The content of the Directive

Legal base and implications for the 2002 Framework Decision

3.17 The legal base for the Directive remains unchanged, but whereas the Commission's original proposal would have repealed the 2002 Framework Decision, the text agreed by the Council and European Parliament states that the Directive will merely replace it for those Member States (all bar Denmark and, at the time of adoption, the UK) participating in the Directive. This suggests that the 2002 Framework Decision would remain binding on the UK if it decided against participating in the new Directive.

The main elements of the Directive

3.18 The Directive would make significant changes to the existing EU legal framework on human trafficking established by the 2002 Framework Decision. The main elements of the Directive are:

  • a revised definition of offences involving trafficking in human beings which is slightly broader than that contained in the 2005 Council of Europe Convention;[8]
  • increased criminal penalties for trafficking offences, based on a maximum term of imprisonment of not less than five years and, where there are aggravating circumstances (for example, the victim is a child), ten years;
  • a requirement for Member States to enable competent national law enforcement authorities to seize and confiscate items ("instrumentalities") used for the commission of, and proceeds derived from, human trafficking offences;
  • a non-prosecution and non-punishment provision which requires Member States, in accordance with the basic principles of their legal systems, to ensure that their competent national law enforcement authorities have a right not to proceed with a prosecution or impose a penalty in the case of victims of trafficking who have been compelled to take part in criminal activities;
  • a requirement for each Member State to establish jurisdiction for trafficking offences committed by one of its nationals, even if committed abroad and the conduct in question would not be considered a criminal offence in the place of commission;
  • detailed provisions on assistance and support for victims of human trafficking which incorporate and, in some cases, exceed the standards established in the 2005 Council of Europe Convention;
  • specific and detailed provisions on assistance and support for child victims which include, in certain circumstances, a requirement for Member States to appoint a guardian or representative responsible for the child's welfare;
  • special protection measures for child victims involved in a criminal investigation or criminal proceedings;
  • a requirement for Member States to ensure that victims of trafficking have access to existing criminal compensation schemes for victims of violent crime;
  • provisions requiring Member States to take appropriate measures to "discourage and reduce the demand that fosters all forms of exploitation related to trafficking in human beings", to raise public awareness of trafficking, to promote regular training to help police and other officials to identify and deal with victims of trafficking, and to consider criminalising "the use of services which are the objects of exploitation…with the knowledge that the person is a victim of a [trafficking] offence";
  • a requirement for Member States to appoint national rapporteurs or establish equivalent mechanisms to collect statistical data on trafficking in human beings and monitor and assess trends; and
  • the establishment of an EU Anti-Trafficking Coordinator to collect data gathered by national rapporteurs, contribute to a biennial report on progress made across the EU in combating trafficking in human beings, and to coordinate the EU's anti-trafficking strategy.

The main changes introduced during negotiations

3.19 The Minister's letter of 7 February 2011 explained that some of the elements summarised in the preceding paragraph were introduced during negotiations (after the UK had decided against opting in). These include:

  • the provision on the seizure and confiscation of items used to commit trafficking offences and of the proceeds of such offences;
  • the requirement that assistance and support for victims of trafficking must not be made conditional on the victim's willingness to cooperate in a criminal investigation, prosecution or trial;
  • the requirement to appoint a guardian or representative for child victims of trafficking where the child's parents or holders of parental responsibility are precluded from representing the child or ensuring his or her best interests as a result of a conflict of interest;
  • the requirement to provide free legal counselling and representation to child victims of trafficking, unless they have sufficient financial resources;
  • specific provisions on unaccompanied child victims of trafficking including a requirement, where appropriate, to appoint a guardian or representative;
  • the requirement to ensure that victims of trafficking have access to existing national criminal injury compensation schemes; and
  • the requirement to supply information to an EU Anti-Trafficking Coordinator.

The Government's assessment of the Directive's implications

3.20 The Minister's letter of 22 March 2011 includes an Annex providing "a detailed breakdown of the legal, operational and financial changes resulting from each Article within the Directive".[9] The Minister says that many of the Articles will not require legal or operational changes or impose additional costs for the UK. We highlight, in this section, those Articles which the Minister considers will require changes.

The definition of offences concerning trafficking in human beings — Article 2

3.21 The Minister explains that the definition of the offence of trafficking goes beyond existing international instruments by including within its scope "begging and exploitation of criminal services (in the context of exploitation) and the exchange or transfer of control over a person (in addition to recruitment, harbouring and receipt, etc)." He says that UK legislation is "in large part compliant" with this definition, but that some changes will be needed. He continues:

"We do not have a trafficking offence that applies to all forms of 'exploitation of criminal activities'. This is arguably very wide and would apply to all criminal activities; current domestic legislation is narrower than this. The CPS is currently able to prosecute where criminal activities have led to a person receiving benefits or services. As such, we do not propose widening existing legislation.

"We would need to amend the current offences of trafficking into, within, or out of the UK for exploitation in order to take extra-territorial jurisdiction (as required by Article 10) in relation to our nationals who traffic people anywhere in the world for the purpose of exploitation. This will involve legislative change, and there will be costs associated with this (more detail under Article 10 below).

"We will also need to amend our existing offence of trafficking for the purpose of labour exploitation, so that this offence can be committed where the trafficking takes place wholly within the UK. (The offence only currently applies where a person is trafficked within the UK and has previously been trafficked into the UK.) However, we do not anticipate this leading to additional costs."[10]

Powers of seizure and confiscation — Article 7

3.22 The Minister says that participation in the Directive "would require further changes to our powers of seizure and confiscation" which do not, as yet, specifically provide for the seizure and confiscation of the proceeds and instrumentalities of trafficking offences.[11]

Jurisdiction — Article 10

3.23 The Minister refers to the Government's Explanatory Memorandum of 25 May 2010 on the draft Directive which indicated that legislation would be needed in England and Wales and in Scotland to extend extra-territorial jurisdiction to cover UK nationals who commit trafficking offences abroad.

Assistance and support for victims of trafficking in human beings — Article 11

3.24 The Minister considers that the Directive would not add new requirements to support victims beyond those which the UK already provides, in compliance with the 2005 Council of Europe Convention, but says that the UK may have to provide the support for a longer period of time. He adds, "The Government's new prime contracting funding model for support for victims of trafficking will enable the prime contractor to assess support needs on a case by case basis."[12]

Protection of victims of trafficking in criminal investigations and proceedings — Article 12

3.25 The Minister says that the UK is compliant in practice with the requirement to provide assistance and support, including access to legal counselling and representation, but that existing legislation may need "minor amendment." He adds that the Directive does not require the UK to provide legal representation in cases where the victim of trafficking is not a party to criminal proceedings.[13]

Protection of child victims of trafficking in criminal investigations and proceedings — Article 15

3.26 The Minister says that appointment of a representative to support and protect a child victim is already covered by practice guidance, but this will need to be enshrined in legislation.[14]

Assistance, support and protection for unaccompanied child victims of trafficking — Article 16

3.27 The Minister indicates that the support stipulated in the Directive is already covered by practice guidance, but that secondary legislation may be needed to implement the right to assistance (for example, the appointment of a representative) where a child victim is involved in a criminal investigation or proceedings.[15]

Appointment of national rapporteurs and support for the EU's Anti-Trafficking Coordinator — Articles 19 and 20

3.28 The Minister explains that the UK already has a mechanism in place — the UK Human Trafficking Centre[16] — to collect data on trafficking in human beings but says he cannot yet confirm whether this will satisfy the requirements of the Directive to establish national rapporteurs or equivalent mechanisms and to facilitate the work of the EU Anti-Trafficking Coordinator.[17]

3.29 Finally, the Minister draws attention to the relationship between the Directive and the 2002 Framework Decision. He says that the Directive stipulates that it will replace the 2002 Framework Decision for those Member States participating in its adoption. An accompanying Council Declaration will make clear that this formula "should not be used as a precedent for future instruments."[18]

Conclusion

3.30 We endorse the sentiment, expressed in the Minister's letter of 7 February, that the views of the Committee are "important to the Government's decision" on whether to seek to opt into the Directive. We note that his letter of 22 March states that the Government "intends to apply to opt into the Directive" and seeks our views on its "proposed approach." We assume, therefore, that the Minister's statement is intended to provide an indication of the Government's preferred approach, and that the Government will not commit itself to a particular course of action until it has considered our views.

3.31 We do not think that the text of the Directive agreed by the Council and European Parliament in any way detracts from our initial judgment that the legal base proposed is appropriate and that the action proposed accords with the principle of subsidiarity. The fact that both the United Nations and the Council of Europe have agreed international Conventions on trafficking in human beings illustrates the global reach of the problem and the need for a comprehensive international approach. We accept, therefore, that the objective of preventing and combating trafficking cannot be sufficiently achieved by Member State action alone and can, by reason both of its scale and effects, be better achieved by action at EU level. We would add, however, that the adoption of the EU Directive should not deflect those Member States that have yet to do so from ratifying and complying with the 2005 Council of Europe Convention.

3.32 We are grateful to the Minister for providing us with a detailed overview of the changes to UK law and practice which UK participation in the Directive is likely to entail. We expect a similarly thorough approach to be taken to future post-adoption opt-in decisions. However, we do have a number of concerns.

3.33 It is not clear to us what the Government has gained by deciding to delay its decision to opt in until a final text has been agreed. The Minister's letter of 22 March reminded us of the risk factors which tilted the balance against opting in earlier:

  • the risk that the European Parliament would broaden the Directive;
  • the lack of added value above and beyond existing UK anti-trafficking efforts; and
  • removal of some operational discretion and flexibility.

3.34 On the first, we accept that the decision not to opt in at an earlier stage mitigated the risk that the UK might be compelled to implement any extension of the scope of the Directive, or of the obligations contained therein, to a degree that would be unacceptable for the Government. But we think that has to be set against the potential loss of influence in negotiating the actual content of the Directive. It may be that, by signalling at an early stage its intention to consider opting in after adoption of the Directive, the Government was able to influence the eventual outcome, but this is not self-evident in the text we have considered. We wonder, therefore, whether, if the Government is to opt in, an earlier decision might have off-set some of the risk highlighted in the third bullet point by, for example, strengthening the Government's hand in pressing for greater operational discretion and flexibility for professionals involved in supporting victims of trafficking, based on practice guidance rather than statutory requirements.

3.35 As regards the second risk factor — the lack of added value — the Minister now tells us that the final text of the Directive "still does not contain any measures that would significantly change the way the UK fights trafficking."[19] Our understanding, however, was that the reason for not opting in earlier was because to do so would not make "a significant practical difference to the way we combat trafficking and support victims."[20] In other words, the lack of significant added value to UK anti-trafficking efforts now appears to be a plus point in deciding whether to opt in when previously it was a negative one. The Government still has not told us specifically which elements of the agreed Directive have tilted the balance in favour of opting in.

3.36 Finally, we note that the adoption of the Directive is to be accompanied by a Declaration which would appear to be intended to reserve the Council's position on the legal consequences of the repeal and/or replacement of earlier legislation by a subsequent legislative act in which not all Member States participate. We remind the Minister that this is an issue which we have raised in relation to other Title V repeal and replace measures in which the UK has decided not to participate, and that we still await a considered response from the Government.[21]

3.37 In light of the wide political interest in measures to prevent and combat trafficking in human beings, we recommend that the Government's decision to opt into the Directive should be debated on the Floor of the House. In the course of the debate, we should be grateful if the Minister could address the issues we have highlighted above concerning the implications of delaying a decision to opt in.





5   The Council of Europe website shows that Germany, Estonia, Greece, Lithuania, Hungary and Finland have not yet ratified. See http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=197&CM=1&DF=&CL=ENG.  Back

6   (31449) 8157/10: see HC 428-i (2010-11), chapter 81 (8 September 2010). Back

7   See Protocol 21 on the Position of the UK and Ireland in respect of the Area of Freedom, Security and Justice.  Back

8   The definition of trafficking in human beings in the 2005 Council of Europe Convention is taken from a Protocol to the UN Convention against Transnational Organised Crime, see Article 3 of the Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children - http://www.unodc.org/documents/treaties/UNTOC/Publications/TOC%20Convention/TOCebook-e.pdf.

 Back

9   See p. 2 of the Minister's letter of 22 March 2011.  Back

10   See pp. 1-2 of Annex A to the Minister's letter of 22 March. Back

11   See p. 3 of Annex A to the Minister's letter of 22 March. Back

12   See p. 4 of Annex A to the Minister's letter of 22 March. Back

13   See p. 4 of Annex A to the Minister's letter of 22 March. Back

14   See pp. 5-6 of Annex A to the Minister's letter of 22 March. Back

15   See p. 6 of Annex A to the Minister's letter of 22 March. Back

16   The UKHTC is a multi-agency body which coordinates work on trafficking in human beings, conducts research, and promotes good practice and training - see http://www.soca.gov.uk/about-soca/about-the-ukhtc.  Back

17   See p. 7 of Annex A to the Minister's letter of 22 March.  Back

18   IbidBack

19   See the Minister's letter of 22 March 2011.  Back

20   See the Minister's letter of 29 June 2010.  Back

21   See, for example, HC 428-ii (2010-11), chapter 13 (15 September 2010). Back


 
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