3 Trafficking in human beings
| (32616)
PE-CONS 69/10
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| 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
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| Legal base | Articles 82(2) and 83(1) TFEU; co-decision; QMV
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| Document originated | 9 March 2011
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| Deposited in Parliament | 24 March 2011
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| Department | Home Office
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| Basis of consideration | Minister's letters of 7 February and 22 March 2011
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| Previous Committee Reports | None; 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).
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| Committee's assessment | Legally and politically important
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| Committee's decision | For debate on the Floor of the House
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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
Ibid. Back
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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