Draft Modern Slavery Bill - Draft Modern Slavery Bill Joint Committee

Draft Modern Slavery Bill - Draft Modern Slavery Bill Joint Committee Contents

4 Anti-Slavery Commissioner

144. The Home Office identified the provisions relating to the creation of an Anti-Slavery Commissioner (the Commissioner) as "one of the most important aspects" of the draft Bill; a role which could galvanise the national response to modern slavery.[217] Our witnesses, who included two EU independent national anti-trafficking rapporteurs and the holders of three domestic posts upon which the proposal for an Anti-Slavery Commissioner is based, put similar emphasis on the significance of the role.[218] Their evidence however, while generally supportive of the proposition that there be an Anti-Slavery Commissioner, has caused us to have concerns regarding the Commissioner's status and remit as set out in the draft Bill: first, the absence of statutory protection to secure the Home Secretary's stated intention of independence for the Commissioner; and second, the narrowness with which it is proposed the role be defined.

Independence

145. The Dutch National Rapporteur, Corinne Dettmeijer-Vermeulen, illustrated the importance of statutory independence for a UK Anti-Slavery Commissioner when she told us that the long-standing effectiveness of her own role lay in its statutory independence and the trust engendered as a consequence.[219] The Home Office told us that it intends the Anti-Slavery Commissioner to be "independent", with "the authority and autonomy they need to carry out their functions effectively".[220] We welcome this assurance and have no doubt that the current Home Secretary would prioritise the Commissioner's independence in practice. Many of our witnesses, however, pointed out the draft Bill is not consistent with these assurances. We are sympathetic to those who cautioned against relying on either the good intentions of the holder of the office of Home Secretary[221] or the personal qualities of a particular Commissioner to ensure long-term independence;[222] a clear statutory framework of independence is necessary.

APPOINTMENT OF STAFF

146. Under clause 30(4) of the draft Bill, the Secretary of State would provide the Commissioner with such staff as the Secretary of State considers necessary. This is not a novel proposition, mirroring the arrangements put in place for the Surveillance Camera Commissioner.[223] The Home Office clarified in written evidence that the intention is that the Commissioner will "be supported by a small team of civil servants from within the Home Office".[224]

147. The Independent Police Complaints Commission stressed the importance of freedom to appoint staff to the Commissioner's independence:

[...] the perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner), the Anti Slavery Commissioner [...] will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department.

Other comparable domestic and international Commissioners have the freedom to appoint their own staff.[225] The Independent Reviewer of Terrorism Legislation, David Anderson QC, told us that he had appointed a specialist adviser and, given his role, it was "essential that [he] should make that decision". He added that if the Commissioner was to be a simple "adjunct to the law enforcement process", such freedom might not be required.[226] The Independent Chief Inspector of Borders and Immigration, John Vine, told us that his staff were largely civil servants from across the civil service but that he was "able to advertise for staff in newspapers in order to get a good mix of skills".[227] We note that, under the UK Borders Act 2007, section 49, "the Chief Inspector may appoint staff".[228]

REPORTS AND PLANS

148. The draft Bill provides for the Commissioner to make three distinct types of reports:

· on "permitted matters" (under clause 31)

· annual plans (under Clause 32), and

· annual reports (also under Clause 32).

149. Clause 31(3) of the draft Bill defines a permitted matter as one which either the Secretary of State has "authorised the Commissioner to report on", or one proposed in "the current annual plan, approved by the Secretary of State". Regardless of the flexibility the Home Secretary may grant in practice, the terms of the draft Bill in this subsection give the Home Secretary the power to exercise operational control over the choice of topic of the Commissioner's reports and to prevent the Commissioner responding quickly to an urgent or topical issue. The Independent Reviewer of Terrorism Legislation, David Anderson QC, pointed out that he had the right to produce reports on his own initiative,[229] while the Independent Chief Inspector of Borders and Immigration felt "totally free" to choose the topics of his reports as he was "appointed to bring [his] experience and judgment to bear on what [he] should look at".[230] We believe that the Anti-Slavery Commissioner should be able to exercise the same degree of discretion and judgement.

150. Clause 32 of the draft Bill requires the Commissioner to submit an annual plan setting out objectives, priorities and proposed activities for the year which would be subject to approval by the Secretary of State. This arrangement was criticised by the United States Ambassador-at-Large, Office to Monitor and Combat Trafficking in Persons, Luis CdeBaca:

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151. The draft Bill gives the Secretary of State powers to remove (or in the case of reports on permitted matters direct the Commissioner to omit) material from reports where the Secretary of State thinks it is "undesirable for reasons of national security, might jeopardise an individual's safety or might prejudice the investigation or prosecution of an offence".[232] Such wide-ranging powers to enforce redaction seem unnecessary to us and are out of step with international comparators. Both the Dutch and Finnish national rapporteurs publish reports unredacted.[233] The Australian Independent National Security Legislation Monitor is trusted to decide whether there is information in his reports that might prejudice national security or endanger a person's safety.[234]

152. The Home Office suggested that the redaction provisions in the draft Bill broadly mirror those applicable to the Independent Reviewer of Terrorism, in terms of prejudicing criminal proceedings, and the Independent Chief Inspector of Borders and Immigration regarding the safety of individuals and national security.[235] Yet the Independent Reviewer of Terrorism himself told us that the use of the term "undesirable" in the draft Bill seems "to give the Home Secretary a very broad discretion" to redact material on grounds of national security and suggested "necessary" might be more appropriate.[236] We concur.

153. The draft Bill states that the Secretary of State should lay the Commissioner's annual reports before Parliament.[237] The Independent Chief Inspector of Borders and Immigration, to whom a similar arrangement applies, told that it did not impinge on his independence.[238] The Independent Reviewer of Terrorism noted that formally his reports are laid before Parliament by the Secretary of State on receipt but that in practice this had meant "a struggle" of up to three weeks and left open the potential for the provision of information to Parliament and publication to be delayed for news management purposes.[239] The draft Bill gives no indication of timescales for laying the Commissioner's reports before Parliament.

CONCLUSIONS AND RECOMMENDATIONS ON INDEPENDENCE

154. We welcome the Government's proposal to create an independent Anti-Slavery Commissioner. But we note 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 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 will undermine the Commissioner's credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups whose role in combating modern slavery is well-recognised.

155. We do not consider the Surveillance Camera Commissioner an appropriate model for providing staff and recommend that the Commissioner be permitted to appoint his or her own staff on the same terms as the Independent Chief Inspector of Borders and Immigration. We further recommend that the Commissioner be given powers to publish both annual and ad hoc reports on his or her own initiative and without the requirement to secure the approval of the Home Secretary; and to prepare a business plan covering more than a single year. The Commissioner's reports should be redacted on national security grounds only when necessary and should be laid before Parliament within four weeks of receipt. Our Bill sets out how these conditions should be achieved in legislation.

Functions

156. The Minister for Modern Slavery, Karen Bradley MP, explained that the Commissioner was intended to be "the person who puts the rocket up the law enforcement agencies"[240] and indeed the functions of the Commissioner, as set out in Clause 31(1) of the draft Bill, encapsulate this ambition. Police representatives agreed that the national coordination and promotion of best practice which the Commissioner could bring to this aspect of his work would improve the fight against modern slavery.[241]

157. We are disappointed however that the functions envisaged for the Commissioner in the draft Bill are restricted to law enforcement. As the ATMG told us, the role as drafted is "significantly weaker than equivalent mechanisms elsewhere in Europe".[242] Its narrow remit contrasts, for example, with that of the successful Dutch national rapporteur, who described "a very broad mandate", facilitating innovative and creative action.[243]

RESPONSIBILITY FOR VICTIMS

158. Several of our witnesses called for the Commissioner's role to go beyond simply encouraging the prosecution of specific offences and for it expressly to be extended to representation of, and advocacy for, victims of modern slavery. The Modern Slavery Bill Evidence Review recommended the Commissioner should "represent and give a voice to the concerns and best interests of victims and survivors of modern slavery".[244] The United Nations High Commissioner for Refugees (UNHCR) concurred, arguing that such an extension "would be an important step in the fight against trafficking".[245]

159. The Home Office told us that a focused Commissioner role was "crucial" to improving law enforcement and that this would be "the most effective way to prevent people from becoming victims in the first place".[246] Yet our other witnesses emphasised that victim support was fundamental to achieving more prosecutions and should therefore be a specific function of the Commissioner. Luis CdeBaca emphasised the indivisibility of the three Ps of protection, prosecution and prevention. We agree with the Dutch rapporteur that "protecting victims and prosecuting criminals are two sides of the same coin".

160. We recommend that the Anti-Slavery Commissioner's functions clearly include victim protection. It is fundamental to achieving the Government's aim of improved law enforcement.

BROADER RESPONSIBILITIES

161. We note that the draft Bill includes no clear or specific mention of data collection. Our evidence suggests that this is a weakness: we heard of how the long-run statistical reports produced by the office of the Dutch national rapporteur had enabled authorities to make an informed assessment of the changing nature of modern slavery.[247] The AIRE Centre emphasised the potential importance of improved data in shaping measures to prevent modern slavery.[248] We were also told that an independent Commissioner was more likely to be trusted than government and therefore could be a more effective collector and collator of statistics from victims and NGOs.[249] The All-Party Parliamentary Group on Human Trafficking and Modern Day Slavery has argued that the creation of the Commissioner would be key to improving statistics on modern slavery.[250] We agree.

162. We also heard evidence of the importance of the Commissioner promoting trust, cooperation and partnerships between law enforcement bodies, national and local government, agencies, other commissioners and NGOs. Partnership was a key feature of the Commissioner role as envisaged by the Centre for Social Justice and set out in its report, It Happens Here:

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The Dutch and Finnish national rapporteurs and Luis CdeBaca all gave examples of the ways in which they, with their broader mandates, facilitated effective multi-agency and cross-sector collaboration.[252]

163. The Modern Slavery Bill Evidence Review recommended that the "The Anti-Slavery Commissioner should be mandated to work closely with international equivalents [...] and international partners to increase bi-lateral law enforcement agreements and more effective prevention measures". The Dutch national rapporteur emphasised the importance of such international cooperation in preventing trafficking.[253] The lack of a defined international role was identified by the ATMG as a weakness of the Commissioner role as set out in the draft Bill.[254]

164. Accurate and comprehensive data is an essential element in the prevention of modern slavery. It can also play an important role in prosecution by identifying trends in modern slavery crime. An independent Commissioner is ideally placed to act as a focal point for the collection, compilation, analysis and dissemination of information and statistics. The Commissioner's functions should reflect this.

Just as the three Ps of combating of modern slavery—prevention, protection and prosecution, are indivisible, so too should a fourth P be added to the list: partnership. The Anti-Slavery Commissioner will not be sufficiently empowered to adopt a galvanising role if their remit is limited simply to filling in gaps between other preexisting roles. It is essential that the Commissioner is empowered to work with national and international partners and to promote and facilitate domestic and international collaboration on the part of others. The Commissioner needs to have an overarching remit to enable the necessary holistic approach. Clause 33 of the Committee Bill would achieve this.

217 Written evidence from the Home Office, Role of the Anti-Slavery Commissioner Back

218 Ibid. Back

219 QQ 916-917 (Corinne Dettmeijer-Vermeulen) Back

220 Written evidence from the Home Office, Role of the Anti-Slavery Commissioner Back

221 Written evidence from Lord Morrow Back

222 Q 1057 (John Vine) Back

223 Written evidence from the Home Office, Role of the Anti-Slavery Commissioner Back

224 Ibid. Back

225 Q39 (Dr Maggie Atkinson), Q918 and Q924 (Corinne Dettmeijer-Vermeulen), Q 1040 (Eva Biaudet), Q1061 (John Vine), Q1062 (David Anderson QC) Back

226 Q1062 (David Anderson QC) Back

227 Q 1061 (John Vine) Back

228 UK Borders Act 2007 s.49 Back