Modern Slavery Bill

Written evidence submitted by CARE (MS 04)

Summary

i. CARE welcomes the Modern Slavery Bill (MSB). We believe that this is a key moment to reflect on existing legislation, policy structures and practical action in relation to this horrendous crime and to establish a law that will provide a strong foundation for the future. We believe that it is essential for any dedicated legislation on modern day slavery and human trafficking to take an integrated approach to the issue and contain measures that will seek to prevent trafficking and slavery, to prosecute effectively those who commit these crimes and provide support and protection to victims. To truly be a world-leading law, the Modern Slavery Bill needs to be strengthened in some of these elements. We welcome the addition of part 4 of the Bill on protection of victims following the pre-legislative scrutiny process. However, we are disappointed that many of the recommendations of the Joint Committee on the Draft Bill (hereafter referred to as the Joint Committee) have not been incorporated. We believe this leaves the Bill weaker than it could otherwise be.

ii. CARE believes that to strengthen the MSB amendments are needed as follows:

Child Trafficking Advocates

· To guarantee provision of child trafficking advocates for trafficked children

· To ensure that child trafficking advocates have a statutory foundation for their key functions

· To make certain that child trafficking advocates will be independent of other statutory agencies providing services or making decisions about a child

· To provide child trafficking advocates with the authority to instruct legal representatives, where appropriate

· To extend provision of the advocates to children who are victims of slavery or forced labour

Support and assistance for victims

· To insert a statutory statement of the minimum types of assistance to which a victim is entitled clarifying victims’ rights

· To establish a longer (90 day) reflection and rehabilitation period guaranteed in law

· To clarify the opportunities for a person to appeal a decision about their status as a victim by means of a formal appeals process

Anti-Slavery Commissioner

· To extend the remit of the Commissioner’s role giving the Commissioner functions relating to victims and international laws on trafficking and slavery

· To give the Commissioner greater independence from Government enabling them to scrutinise policy effectively

Offences

· To clarify the definitions of slavery and forced labour based on international law

· To replace references to young people with references to a child under 18 years old

iii. CARE (Christian Action Research and Education) is a well-established mainstream Christian charity providing resources and helping to bring Christian insight and experience to matters of public policy and practical caring initiatives. 

1. Child trafficking advocates (Clause 41)

1.1. Children are the most vulnerable victims of modern day slavery and human trafficking. They are easily manipulated by those who would seek to abuse and exploit them. [1] When child victims come to the attention of the authorities they face a confusing array of official systems and professionals ranging from police and immigration officers to social workers and teachers. For many who are trafficked from overseas, the only adult in this country that they know and trust is the very person who has been exploiting them. A trafficked child needs someone who can stand beside them as a personal point of continuity in all their dealings with the multiple state agencies they have to engage with, someone who does not just accompany them but who can also advocate for their best interests and speak on their behalf with all the different professionals they encounter. [2]

1.2. CARE has been calling for specialist advocacy support for child victims of trafficking to fulfil the role described above for a number of years. We welcome the introduction of the child trafficking advocates trial schemes and the inclusion of a reference to this support in the Bill. However, the clause in the Bill will have limited effect.

1.3. Firstly, clause 41 does not guarantee the creation of advocacy schemes. It simply enables the Secretary of State to do so if they wish. Whilst the trials may provide useful feedback on how to organise such programmes, the need for the advocates is not in doubt. Research conducted by the Refugee Council and The Children Society for the Home Office demonstrated this and clearly recommended the creation of such a scheme. [3] It is not necessary to await the results of the trials before committing to provide this vital support to vulnerable children. Furthermore, the EU Anti-Trafficking Directive and the Council of Europe Anti-Trafficking Convention both require that a "guardian" or "representative" should be appointed for a trafficked child to provide this essential support. [4]

1.4. We recommend that clause 41(1) should be amended to guarantee child trafficking advocates will be provided for all trafficked children.

1.5. Secondly, clause 41 does not provide a sufficient statutory basis to empower child trafficking advocates to support children effectively. The full details of the role must be established in legislation to ensure all the other professionals working with a trafficked child understand the functions of the child trafficking advocate and recognise their authority. A recently published EU handbook on guardianship for trafficked children (the equivalent to an advocate in the Bill) stated "National law should provide the legal basis of guardianship and define the authority responsible for it...... The legal basis of guardianship in national law should include sufficiently precise legal provisions defining a guardian’s duties and functions." [5]

1.6. In April 2014 the House of Lords overwhelming supported a statutory role for child trafficking advocates (or "guardians") by a margin of 98 votes in favour of an amendment to the Immigration Bill. [6] The Joint Committee also recommended statutory provision saying "[the pilot scheme] is not, however, a substitute for a statutory advocate scheme ... [the core functions of the advocate] require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child." [7]

1.7. We recommend that clause 41(4) should be amended to require the Secretary of State to make regulations setting out the specific functions and authority of child trafficking advocates.

1.8. We also urge the Government to provide assurances that the functions of advocates set out in regulations under clause 41 will meet with international guidance from the UN and EU. [8]

1.9. Thirdly, the independence of the advocate needs to be guaranteed. Although reference to the independence of the advocate is made in sub-clause 41(2) it only requires the Secretary of State to "have regard to the principle" of independence and even then only "so far as practicable". The independence of the advocate from other bodies that make decisions about a child’s case is essential to enable them to challenge those decisions in order to promote the best interests of the child. The Refugee Council and The Children Society’s Still at Risk report (mentioned above) recommended that advocacy support should be provided by "an independent, trusted adult." [9] The EU Agency for Fundamental Rights states that "independence and impartiality" is one of the six fundamental principles of guardianship for trafficked children, and specifically rules out the suitability of this support being provided by persons or services that are linked to or dependent on police, immigration agencies, authorities involved in decisions about a child’s status as a victim or services responsible for the child’s accommodation and day to day care. [10]

1.10. We recommend that clause 41(2) should be amended to guarantee that child trafficking advocates will be completely independent from professionals making decisions about a child’s case.

1.11. Finally, unlike measures in the Bill regarding support for adult victims of both slavery/forced labour and human trafficking (clause 42), the provision of child trafficking advocates is made only for children believed to be victims of human trafficking. This seems to be at odds with the general approach of the Bill which seeks to address all forms of modern day slavery.

1.12. We recommend the clause be amended so that child trafficking advocates will be available for children who are victims of forced labour or slavery as well as trafficking in human beings.

2. Identifying and supporting victims (Clause 42)

2.1. CARE welcomes the specific mention of support and assistance for victims in the Bill, including the reference to supporting victims of forced labour as well as human trafficking. We are concerned, however, that the clause requires the Home Secretary to issue guidance about the arrangements for providing support but makes no mention of what form that support should take.

2.2. The European Convention and EU Directive both set out the minimum types of support that should be provided for victims of trafficking. Including these entitlements in the Modern Slavery Bill will clearly establish victims’ eligibility for assistance and ensure at least a minimum level of service is provided long into the future. Such a statement was recommended by the Evidence Review commissioned by the Home Secretary and chaired by Frank Field MP prior to the publication of the Draft Modern Slavery Bill. [11]

2.3. The Bill should be amended to set out the minimum forms of assistance that should be provided to victims.

2.4. We also recommend that the minimum period for which support is provided (the reflection and recovery period) should be extended to three months (90 days) and that this period should include support, planning and monitoring for an individual’s longer term rehabilitation.

2.5. For many victims the existing period of 45 days is not sufficient to achieve a level of recovery that will enable them to access employment or education and fully integrate into society. This was affirmed by many support providers in evidence to the Centre for Social Justice Inquiry into Modern Day Slavery. [12] Research has shown that during the first three months after escaping from human trafficking, a high proportion of victims display symptoms of Post-Traumatic Stress Disorder. [13] Studies also show that longer reflection periods can greatly improve chances of providing substantial assistance to trafficking victims. [14] Many NGOs and expert groups have consistently recommended a reflection period of 90 days since 2009. [15] A number of countries provide longer reflection and recovery periods including Chile – six months, Canada and Norway – 180 days, Germany – three months, Czech Republic – 60 days, Denmark – 30-100 days, [16] and Italy – three months on a renewable basis. [17]

2.6. We also recommend that the arrangements under this clause for determining whether a person is to be treated as a victim of slavery or human trafficking should include a formal appeals process and that this should be stated expressly in the Bill.

2.7. Review of a decision under the National Referral Mechanism (NRM) about whether a person is to be treated as a victim of human trafficking is at present only available through two channels: (a) judicial review, a costly process which does not allow for a re-consideration of the merits of a case, or (b) informal requests by support providers to the relevant Competent Authority to which there is only "inconsistent and unequal" access. [18] CARE believes that all victims should have the same opportunity to challenge such an important decision. A built in appeal process for the NRM was recommended by the Joint Committee. [19]

3. Anti-Slavery Commissioner (Part 3)

3.1. CARE welcomes the creation of an "Anti-Slavery Commissioner" to lead action against human trafficking and modern day slavery. However, the way the Bill sets out the role of the Commissioner is very narrow and the proposals do not allow the Commissioner sufficient distance from the Government. These will both limit the impact of the role. Although strongly criticised by the Joint Committee, the provisions in the published Bill remain almost entirely unchanged.

3.2. The scope of the role has been restricted to ensuring best practice in law enforcement and identification of victims. These are both important matters. However, what is needed is a Commissioner who can take a lead on all aspects of the response to modern day slavery and trafficking. The Commissioner’s functions defined in the Bill fall short of the EU Directive which states "the tasks of [national rapporteurs or equivalent mechanisms] shall include the carrying out of assessments of trends in trafficking in human beings, the measuring of results of anti-trafficking actions, including the gathering of statistics in close cooperation with relevant civil society organisations active in this field, and reporting." [20]

3.3. We recommend amending clause 35 to widen the scope of the Commissioner’s core functions (sub-clause 1) and activities (sub-clause 2) to include promoting the rights of victims, monitoring compliance with international obligations relating to human trafficking and cooperating with non-governmental organisations.

3.4. Under the Bill the Commissioner will be appointed by the Home Secretary (clause 34) who will also have the power to direct the Commissioner’s work. The Commissioner may only make reports on matters "permitted" by the Home Secretary (clause 35(2)(a)) or which appear in the Commissioner’s strategic plan which itself must be approved (and can be amended) by the Home Secretary (clause 36). The Commissioner is also dependent on the Home Secretary for staff, office space and other facilities. This will severely hinder the Commissioner’s ability to scrutinise Government policy objectively and offer independent recommendations.

3.5. The Joint Committee highlighted that "the statutory safeguards intended to ensure independence for the Commissioner fall short of those applicable to comparable roles, such as the Independent Reviewer of Terrorism Legislation and the Independent Chief Inspector of Borders and Immigration. The draft Bill does not offer sufficient protection for the Commissioner’s independence in the long term. Failure to do so will undermine the Commissioner’s credibility..." [21] The US State Department has also recently recommended that the UK should "establish an independent anti-trafficking coordinator to ensure assessments of anti-trafficking efforts are transparent and allow for NGO feedback to facilitate self-critical, comprehensive recommendations in each region." [22] There will be substantial question marks over the transparency and independence of any conclusions or report produced by a Commissioner established under the current provisions in the Bill.

3.6. We recommend that the involvement of the Secretary of State in determining the matters the Commissioner can report on and approving the Commissioner’s strategic plan and annual reports should be removed. We also recommend that similar text to that of section 49 of the UK Borders Act regarding the funding and staffing of the Chief Inspector of Borders and Immigration role should replace clause 34(4) establishing a similar level of statutory protection for the independence of the role. [23]

4. Definitions of modern slavery and exploitation (clauses 1-3)

4.1. The offence of slavery, servitude and forced or compulsory labour in clause 1 of the Bill contains no clear definitions. This could result in a failure of frontline investigators and prosecutors to understand what particular circumstances fall within the scope of the clause. The Joint Committee particularly criticised the drafting of the offences in the Draft Bill which were almost identical to the existing offences. The Committee report highlights evidence they received demonstrating concerning gaps in the current legislation where certain behaviour that might be presumed to be criminal was considered outside the scope of the existing legislation. [24]

4.2. A full definition of slavery, servitude and forced and compulsory labour based on definitions found in international law should be included in the Bill. [25]

4.3. The reference to Article 4 of the European Convention of Human Rights (ECHR) does not remove this deficit. Article 4 of the ECHR provides only definitions of what does not fall within the relevant terms. The inclusion of this reference in the offence requires further reference to the ongoing case law of the European Court of Human Rights. Without inclusion of foundational definitions this reference adds rather than reduces complexity. [26]

4.4. Clause 1 should make clear that consent is not relevant in the context of slavery and servitude and the definition of forced labour should set out that a person’s apparent consent to exploitative labour conditions is invalid where that consent was not given freely and with full knowledge of the circumstances (for example because of deception or fraud).

4.5. The definition of exploitation in clause 3 also has some major flaws. Sub-clause (5) mentions only force, threats, and deception, and makes no mention of other means of inducing a person to perform services which are listed in the EU Directive such as other forms of coercion, fraud, abuse of power or the exchange of payments/benefits with a person having control over the victim. It is vital that the Bill makes it clear that a person can be compelled to surrender to exploitation by a variety of means.

4.6. Subsection (6) refers to children using the terms "young" and "youth". These terms are vague and do not adhere to international law which defines a child as a person under the age of 18 years. [27] Use of the terms "youth" and "young" was also criticised by the Joint Committee. [28] We welcome the comments from the Home Secretary that she is re-considering the definition of these terms. [29]

4.7. We recommend the terms "young" and "youth" should be replace by references to offences against "a child," defined as a person under the age of 18 years.


[1] Jenny J. Pearce, Patricia Hynes and Silvie Bovarnick. (2009) Breaking the wall of silence: Practitioners’ responses to trafficked children and young people. University of Bedfordshire and NSPCC. page 7

[2] Refugee Council and The Children’s Society, Still at Risk, September 2013

[3] Ibid. page 9

[4] Article 10(4) of the European Convention on Action Against Trafficking in Human Beings; Articles 14(2) and 16(3) of Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims

[5] European Union Agency for Fundamental Rights, Guardianship for children deprived of parental care - A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking, June 2014, page27 "Guardianship" is the generally used term for such a support role in the international community. The handbook acknowledges that "The use of the terms ‘guardian’, ‘representative’ and ‘legal representative’ is inconsistent, and national terminologies also vary, so the emphasis should be on the functions of the appointed person, rather than on the title or terminology used." page 14

[6] Amendment 55A to the Immigration Bill 2013-14 see House of Lords Hansard 7 April 2014 columns 1138-1164

[7] Joint Committee on the Draft Modern Slavery Bill, 2013-14 HL 166, HC 1019, April 2014; paragraph 115

[8] For example: Guidelines on the Protection of Child Victims of Trafficking, UNICEF technical notes, September 2006, section 4.2, page 17; Reference Guide on Protecting the Rights of Child Victims of Trafficking in Europe, UNICEF, 2006, section 5.2, page 51 and pages 117-8, Check List for Guardians: Roles and Responsibilities; Prevent. Combat. Protect. Human Trafficking. Joint UN Commentary on the EU Directive – A Human Rights-Based Approach, November 2011, pages 76-77; European Union Agency for Fundamental Rights, June 2014, Op.Cit.

[9] Refugee Council and The Children’s Society, Still at Risk, September 2013 page 9

[10] European Union Agency for Fundamental Rights, June 2014, Op.Cit. pages 27, 36-37

[11] Establishing Britain as a world leader in the fight against modern slavery- Report of the Modern Slavery Bill Evidence Review December 2013; paragraph 4.7

[12] Centre for Social Justice, It Happens Here, 2013 page 170

[13] Cathy Zimmerman, The health risks and consequences of trafficking in women and adolescents. Findings from a European study, 2003; Cathy Zimmerman, Stolen smiles: a summary report on the physical and psychological health consequences of women and adolescents trafficked in Europe, 2006. Both cited in Brunovskis 2012 below.

[14] Anette Brunovskis: Balancing protection and prosecution in anti-trafficking policies (Norden Institute) 2012. This principle was also echoed in a 2013 report from the International Organisation for Migration Evaluation of the Effectiveness of measures for the Integration of Trafficked Persons

[15] Joint NGO Statement on the Draft European Convention against Trafficking http://www.amnesty.org/en/library/asset/IOR61/020/2004/en/67c56b59-d589-11dd-bb24-1fb85fe8fa05/ior610202004en.pdf ; European Commission Expert Group on Trafficking in Human Beings http://www.unodc.org/documents/human-trafficking/Toolkit-files/08-58296_tool_7-1.pdf page 327-8

[16] Joint Committee on the Draft Modern Slavery Bill, April 2014, Op.Cit. paragraph 93

[17] IOM, An overview of National Integration Schemes Accessible to Victims of Trafficking and Successful Practices 2013

[18] Anti-Trafficking Monitoring Group, Hidden in Plain Sight, October 2013, page 27

[19] Joint Committee on the Draft Modern Slavery Bill, April 2014, Op. Cit. paragraph 82

[20] Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims; Article 19

[21] Joint Committee on the Draft Modern Slavery Bill, April 2014, Op. Cit. paragraph 154

[22] US Department of State, Trafficking in Persons Report 2014, page 394

[23] Also recommended by the Joint Committee. Op Cit, clause 32 of the Committee’s alternative Bill, page 27

[24] Joint Committee on the Draft Modern Slavery Bill, Op.Cit. paragraphs 13 -19 & 27

[25] This would apply to both clause 1 and clause 2 references to slavery and forced labour offences. Relevant provisions include: ILO Slavery Convention 1926, the Forced Labour Convention 1930 and the Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery 1956. The Ballagio-Harvard Guidelines on the Legal Parameters of Slavery were adopted by a group of international experts in 2012 and provide a helpful interpretation of these for the 21st Century on which basis clear definitions could be drawn up.

[26] Home Office white paper Draft Modern Slavery Bill December 2013, page 4 states one objective of the Bill is to "consolidate and simplify existing slavery and trafficking offences to provide clarity and focus when investigating and prosecuting traffickers"

[27] Including in Article 2(6) of the EU Anti-Trafficking Directive Op.Cit.

[28] Joint Committee on the Draft Modern Slavery Bill, Op.Cit. paragraph 23

[29] During Second Reading of the Modern Slavery Bill. House of Commons Hansard 8 July 2014 column 173

Prepared 2nd September 2014