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


Conclusions and recommendations


Offences

1.  It was clear from the evidence we received that merely suggesting amendments to clauses 1 to 3 of the draft Bill was insufficient to meet our aim, or that of the Home Office, to consolidate and simplify existing offences to make enforcement administratively simpler. The clauses as currently drafted maintain existing gaps in coverage of behaviour that we consider to be criminal and, in addition, we have identified errors in drafting which could cause practical and legal problems. On this latter point we draw the attention of the Home Office and parliamentary counsel to the evidence provided by the Rt Hon. the Lord Judge and HHJ Edmunds QC for their further consideration. (Paragraph 27)

2.  We conclude that the current definitions within Part 1 of the draft Bill are not as broad as the Government believes them to be, nor as broad as international definitions such as those in the Palermo Protocol, and as a result fail to capture current or potential future forms of modern slavery. We believe that maintaining a link to international definitions is important to prevent the "double criminality" requirement being used as an escape route from prosecution by slave masters and traffickers. (Paragraph 28)

3.  The Home Office must recognise that Part 1 needs to be sufficiently broad, clear, and simple, to allow all parts of the law enforcement process to understand and apply it. It is far too confusing as it stands. (Paragraph 29)

4.  We conclude that a series of offences that allow for indictments containing alternative counts in decreasing levels of severity of criminal behaviours, drafted with reference to agreed international definitions, would best meet the aims which we and the Government share. We recommend six offences: slavery of children and adults, child exploitation, exploitation, child trafficking, trafficking, and facilitating the commission of an offence of modern slavery. (Paragraph 38)

5.  Our proposed clauses would ensure that any indictment followed the pattern set out in the Act. This would create a cascade of overlapping offences, enabling the prosecution to invite the jury, and the judge to direct the jury, to approach the case by considering the more serious count first and only consider a lesser alternative count if not satisfied of the more serious one. On our model, the jury would acquit only where it concluded that the defendant is not guilty of any modern slavery offence, and not on the basis of some technicality about the nature or type of exploitation. We think that this approach also helps to identify the level of offending and enables the judge to impose a sentence which reflects the jury's conclusion as to the gravity of the offending. (Paragraph 39)

6.  We do not consider that our proposed offences impliedly repeal existing laws against slavery, but recommend that the Home Office give due consideration to the issue of implied repeal in responding to our Report and in the drafting of any Modern Slavery Bill presented to Parliament. (Paragraph 40)

Civil Prevention Orders

7.  The Minister for Modern Slavery and Organised Crime, Karen Bradley MP, suggested that the Orders in Part 2 of the draft Bill were an example of a measures that would effectively prevent modern slavery. We agree with her in principle, but disagree that this is what the Orders do in practice. (Paragraph 42)

8.  It is unclear to us what types of slavery-related behaviour would fall within the scope of a Part 2 Order, but would not be a criminal offence and therefore more appropriately prosecuted as a criminal offence. (Paragraph 50)

9.  Given the potential for restrictions of everyday behaviours or rights to result from the imposition of the Prevention and Risk Orders, there is a high threshold requirement of legal certainty: first over the threshold requirements for the imposition of an Order; and second, clarity as to the contents of the Order and the effects of such an Order being imposed upon an individual. But this is also a practical issue for magistrates, who will be required to assess whether an Order is necessary but with no guidance on the risk factors they should consider to make the imposition of an Order proportionate, or on the possible restrictions they could impose which would be proportionate to the actual risk presented by the defendant in front of them. This should be rectified. (Paragraph 52)

10.  We agree that the Home Office cannot simply rely upon the Court's duties under section 6 of the Human Rights Act to rectify a lack of legal certainty on the face of the Bill. (Paragraph 53)

11.  We applaud the Home Secretary's wish to take the battle to the slave masters and traffickers. The Orders in the draft Bill are a copy of the orders for sexual harm currently contained in Part 9 of the Anti-social Behaviour, Crime and Policing Act 2014. We support the need for and likely use of the Slavery and Trafficking Prevention Order on sentencing (clause 11 of the draft Bill), but request that the Home Office amends the clause to meet the requirements of legal certainty and to specify the type of restrictions that can be imposed by the Order; and considers creating a further means of review in relation to Orders imposed under clause 11(1)(b) and (c) of the draft Bill. Clearer provision for the Orders to start to run upon release from prison is needed. (Paragraph 56)

12.  We recommend the following changes be made to the Slavery and Trafficking Prevention Order on application in the draft Bill:

a)  Clause 12 be amended so that the test meets the requirements of the principle of legal certainty;

b)  Clause 13(3)(d) be amended to read "formal" caution;

c)  Specify the type of restrictions that can be imposed by the Order;

d)  Specify the time limit between the commission of the offence and the application for the Order—we suggest three years;

e)  Amend the Interim Order to read: The Court may, impose such an order where it is necessary for the purpose of protecting persons generally, or particular persons, from immediate physical or psychological harm caused by the defendant committing such an offence;

f)  Apply a minimum age for imposition of the Orders—we suggest 16 years of age. (Paragraph 57)

13.  The White Paper states that Risk Orders can be imposed "only where a court is satisfied that the individual presents a sufficiently serious risk to others". However, the test for imposition of a Risk Order under clause 21 of the draft Bill is much lower, namely that "The court ... is satisfied that the defendant has acted in a way which makes it necessary to make the order". We have heard convincing evidence that the Risk Orders have not been sufficiently thought through. We recommend that the clauses 21 to 28 of the draft Bill be removed. (Paragraph 58)

Victims

Non-criminalisation of victims of modern slavery

14.  We conclude that there should be a statutory defence of being a victim of modern slavery, which should:

a)  be clear on the causative link between the slavery of the victim and the offence committed

b)  provide protection that is proportionate to the offence committed by the victim

c)  include consideration of the temporal link between the slavery and the offence, and

d)  make specific provision for murder, namely, that there is no full defence, but, as with the existing law on loss of self control, murder is reduced to manslaughter. (Paragraph 69)

Assistance and support for victims of modern slavery

15.  Referral to the National Referral Mechanism (NRM) remains a voluntary decision for the individual victim, and we expect that there will be some victims who do not use the NRM system, simply because they do not wish to be referred. There may be other victims too who do not use the NRM but to whom it is appropriate to provide some care and assistance. It is to this end that we have included an order-making clause in the Committee Bill that gives power to the Secretary of State, in consultation with the Anti-Slavery Commissioner, to publish and maintain guidance on the provision of assistance and support to victims of modern slavery. (Paragraph 76)

Reforming the National Referral Mechanism

16.  We are very disappointed that there has been so little progress on the review of the NRM. It has made our task more challenging. (Paragraph 78)

17.  We recommend that the draft Modern Slavery Bill is amended to give statutory authority for the NRM to ensure greater consistency in its operation, decision-making and provision of victim support services. This statutory basis should also provide for a mechanism for potential victims to trigger an internal review and to appeal against decisions taken by competent authorities. (Paragraph 82)

18.  We recommend that the NRM should cover all victims of modern slavery as defined in Part 1 of the Committee's Bill. (Paragraph 83)

19.  Officials with responsibility for determining immigration claims should not take decisions on modern slavery victimhood. There is an inherent conflict of interest in such an arrangement. The UK Human Trafficking Centre's (UKHTC) multi-disciplinary staffing model is far more appropriate. (Paragraph 90)

20.  The current NRM subjects victims of trafficking to a support and assistance lottery dependent on their nationality and the region where support is offered. We recommend that competent authority status be removed from UK Visa and Immigration (UKVI). (Paragraph 91)

21.  The NRM is overdue major reform. The Home Office's review should be ambitious and have a wide remit. We recommend that the Secretary of State should, by Order, and in light of the conclusions of the review, set out: the stages of the identification process; the criteria for assessing whether organisations are suitable for carrying out those stages; the timescales by which each stage should occur; the tests to be applied, including standards of proof; provisions for an independent internal review or appeal; and the minimum standards of assistance and services which shall be provided for victims and potential victims of modern slavery in the framework. (Paragraph 98)

Duty to notify

22.  The varying descriptions of the scope and effect of clause 35 of the draft Bill in Home Office documentation suggest that it is ill thought-through. While we very much support the Government's desire to improve statistics on modern slavery, it is not clear that imposing a duty on NRM first responders to notify the National Crime Agency to potential victims of human trafficking would achieve that aim. At the same time, it risks undermining trust in, and use of, vital victim services. We recommend that the duty to notify clause is removed from the draft Bill and is reconsidered as part of the NRM review. The NRM review should also consider the merits of the Anti-Slavery Commissioner rather than the National Crime Agency receiving and collating victim notifications. (Paragraph 101)

Advocates for child victims

23.  Local authority Care Orders and Cafcass guardians are an insufficient response to the particular needs of trafficked children. (Paragraph 105)

24.  We recommend that in the Modern Slavery Bill the Government provides for the introduction of advocates for all trafficked children. Their extreme vulnerability justifies bespoke support. Such a scheme would also further support the Bill's primary objectives by protecting children from those who would exploit them and by giving those who have been victims the support and confidence required to give evidence against their abusers in court. The introduction of advocates should not prevent local authorities taking trafficked children into care where appropriate. (Paragraph 114)

25.  We welcome the Home Office announcement of pilot schemes for personal advocates for trafficked children. It is not, however, a substitute for a statutory advocate scheme. The nature of the exploitation suffered by children, together with their youth and isolation, means they are frequently unable to make decisions in their own best interests. Co­ordinated and timely action on the part of public agencies is more likely to occur if those agencies know they will be held to account and that the advocate has a right to access information and appropriate documents. Both of these functions require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child. (Paragraph 115)

26.  We recommend that an advocate is appointed at the point at which a child is identified as a potential trafficking victim and that the advocate continues to represent the child until a durable solution based on the best interests of the child is found, or the child reaches the age of 21, whichever is the earlier. (Paragraph 118)

27.  In recommending the creation of an advocate scheme for trafficked children we have been mindful of the effects on the public purse. On the basis of the evidence we have received, we do not believe the cost of an advocate scheme for the small number of highly traumatised children involved would be disproportionate. (Paragraph 121)

Children and presumption of age

28.  We recommend that a presumption of age clause be added to the draft Bill to give clear effect to the UK's international obligations. (Paragraph 124)

Special measures and protection of victims

29.  We recommend that the Government

a)  extends the existing special measures under section 17(4) of the Youth Justice and Criminal Evidence Act 1999 to include all modern slavery offences;

b)  extends the scope of section 41 of the Youth Justice and Criminal Evidence Act 1999 to include victims of modern slavery;

c)  considers, in collaboration with the Lord Chief Justice and the President of the Queen's Bench Division, the merits of a Modern Slavery Act "ticket" for judges, or similar arrangements.

Legal assistance

30.  We recommend the establishment of a fund for provision of legal services to victims of modern slavery consistent with our international obligations but also to meet the practical need for timely legal advice. Regardless, we recommend that the definition of victims in paragraph 32 of Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 is expanded to cover victims of all modern slavery offences and that funding is retained for judicial review challenges to negative NRM decisions. We also recommend that legal aid is available to defendants for Slavery and Trafficking Prevention Orders or Risk Orders as with other civil prevention orders. (Paragraph 133)

Compensation

31.  We recommend that paragraph 2(1) of Annex B of the Criminal Injuries Compensation Scheme 2012 is amended to make specific reference to crimes of modern slavery, and that the Scheme should be funded accordingly. Victims should be compensated not for a loss of earnings for what is illegal employment, but for the loss of opportunity to earn money freely. We also recommend that the Government considers creating a specific tariff for victims of modern slavery, and uses some of the proceeds of confiscated assets to boost the money available for victim compensation through the Criminal Injuries Compensation Scheme. (Paragraph 142)

Child Rights Impact Assessment

32.  We recommend that the Home Office complies with Cabinet Office guidance when publishing the Modern Slavery Bill and includes a summary in the explanatory notes of the anticipated effects of the Bill on children. (Paragraph 143)

Anti Slavery Commissioner

Independence

33.  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. (Paragraph 154)

34.  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. (Paragraph 155)

Functions

35.  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. (Paragraph 160)

36.  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. (Paragraph 164)

37.  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. (Paragraph 165)

Supply Chains

Voluntary initiatives

38.  We recognise the important role NGOs have played in raising awareness of the problem of modern slavery in supply chains. We also welcome the voluntary actions that have taken place at company and industry level. However, we do not believe that voluntary initiatives alone will be enough to ensure that all companies take the necessary steps to eradicate slavery from their supply chains. (Paragraph 170)

Legislating for supply chains

39.  Legislation on supply chains does not have to be burdensome for reputable businesses to implement. Proportionate legislative action can ensure that firms no longer turn a blind eye to exploitation occurring in their names and can therefore stimulate significant improvement. We welcome the support of major businesses for appropriate legislative measures. We also call on the Government to take a responsible lead in eradicating modern slavery from its own supply chains. (Paragraph 173)

40.  We recommend that, as a proportionate and industry-supported initial step, quoted companies be required to include modern slavery in their annual strategic reports. This could be done in a straightforward way by amendment of section 414C of the Companies Act 2006 to include modern slavery among the issues which companies are required to address in the strategic report. (Paragraph 183)

41.  We recommend that the Secretary of State, by Order, specify the requirements for the modern slavery section of companies' strategic report. These requirements must include explanations of how the company has, with respect to modern slavery:

a)  verified its supply chains to evaluate and address risks

b)  audited suppliers

c)  certified goods and services purchased from suppliers

d)  maintained internal accountability standards, and

e)  trained staff.

The Order should also require that this information is published online. (Paragraph 184)

42.  We see merit in companies making individual non-executive directors responsible for the company's annual statement on slavery in supply chains. However, we have no desire to reverse some of the effective alternative approaches some companies have already adopted. At this stage, legislating to specify companies' internal accountability arrangements for modern slavery eradication is not justified. Nonetheless, whether specific, individual responsibility at board level for modern slavery issues should be mandated should be considered by the Government in its statutory review of the Modern Slavery Act recommended in chapter 9 of this Report. (Paragraph 187)

The Gangmasters Licensing Authority

43.  The Gangmaster Licensing Authority (GLA) has been much praised as an internationally-respected model of good practice. The weight of evidence we received suggested that expanding the GLA's powers and industrial remit would yield positive results. At the same time, we recognise that its resources are already over-stretched, and any expansion in its role would require additional resources. (Paragraph 194)

44.  We recommend that the Government conducts a review of the GLA including its:

a)  powers;

b)  industrial remit, which might include risk-based analysis of sectors;

c)  funding model and levels;

d)  sponsoring department; and

e)  collaboration with other agencies.

The review should be completed in time for any necessary amendments to the Gangmasters (Licensing) Act 2004 to be made before the Modern Slavery Bill receives Royal Assent. (Paragraph 195)

Asset Recovery

45.  We recommend that the Home Secretary use her powers to introduce an Order to amend Schedule 2 of the Proceeds of Crime Act 2002 (POCA) specifically to include the offences set out in Part 1 of the Government's draft Bill as "lifestyle offences" for the purposes of obtaining confiscation orders. (Paragraph 204)

46.  It is imperative that law enforcement authorities should be able to freeze relevant assets at the earliest possible stage in an investigation, and rarely, if ever, more than 24 hours after arrest. We therefore strongly recommend that the test for obtaining a restraint order be amended to make it less stringent. We note that the Government has already committed to reducing the test from "reasonable cause to believe" to "reasonable suspicion". We approve of this formulation. We also recommend that the existing requirement to demonstrate risk of dissipation be explicitly removed. We urge the Government to bring forward the necessary amending legislation before the end of this Parliament. (Paragraph 208)

47.  We recommend that the Association of Chief Police Officers sets out in guidance essential considerations for the use of early restraint powers in the context of modern slavery offences, giving due consideration to the vulnerability of victims. Law enforcement agencies should be encouraged to seek restraint of all assets, including those of low value, which may be used in the exploitation of victims with a view to causing maximum disruption to such activities. (Paragraph 210)

48.  We recommend strongly that the Government places modern slavery at the top of its list of priority areas for the pursuit and enforcement of confiscation orders. (Paragraph 213)

49.  We would welcome stronger sanctions for non-payment of confiscation orders which are designed to make modern slavery offenders highly unlikely to opt for a longer prison sentence in order to protect the proceeds of their crimes. (Paragraph 216)

50.  We recommend that clauses 7 and 8 of the draft Bill be extended to cover any property that the court deems to have been related to the offence. We consider it especially important that premises used in connection with modern slavery should be removed from the control of those involved in such offences. (Paragraph 222)

Overseas domestic workers

51.  We recommend the Home Office reverse the changes to the Overseas Domestic Worker Visa. This would at the very least allow organisations and agencies to remove a worker from an abusive employment situation immediately. It would also enable the abuse to be reported to the police without fear that the victim would be deported as a result. This in turn would facilitate the prosecution of modern slavery offences. (Paragraph 227)

52.  Enabling diplomatic domestic workers to bring claims against their employer would be a powerful deterrent to abuse. We recommend the Government consider the merits of granting visas to diplomatic domestic workers only where they have contractual arrangements directly with the Embassy or other diplomatic mission. (Paragraph 228)

The Scottish Parliament, National Assembly for Wales and Northern Ireland Assembly

53.  Modern slavery straddles borders without respect for jurisdiction: the UK government must work closely with the devolved institutions as they produce their own legislative responses. (Paragraph 233)

54.  We recommend that the proposed Anti-Slavery Commissioner should work across the whole of the UK, in co-ordination with any existing or future commissioner, co­ordinator, or similar persons that any of the Devolved Administrations may wish to appoint. (Paragraph 236)

55.  The Home Office must consider and discuss with the Northern Ireland Executive the effect in Northern Ireland of any potential increase in the use of the National Crime Agency to tackle modern slavery on a UK-wide basis, given that in Northern Ireland the Agency has operational powers only in the reserved sphere. (Paragraph 238)

Review

56.  We recommend that there should be a clause requiring regular review of the Modern Slavery Act as a statutory means of ensuring the currency and continuing effectiveness of the legislation. Our Bill makes clear that the outcomes of the first such review should be published three years after any part of the legislation has come into force and that further reviews should take place on a five-year cycle. (Paragraph 239)



 
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