Legislative Scrutiny: (1) Modern Slavery Bill and (2) Social Action, Responsibility and Heroism Bill

Legislative Scrutiny: (1) Modern Slavery Bill and (2) Social Action, Responsibility and Heroism Bill - Human Rights Joint Committee Contents

1 MODERN SLAVERY BILL

BACKGROUND

1.1 The Modern Slavery Bill[1] was introduced in the House of Lords on 5 November 2014, having completed all stages in the House of Commons on 4 November.

1.2 Lord Bates has certified that in his view the Bill is compatible with Convention rights. We wrote to the Rt Hon Theresa May MP, Secretary of State for the Home Department, on 9 July asking a number of questions about the Bill. The Home Office Minister for Modern Slavery and Organised Crime, Karen Bradley MP, responded by letter dated 28 July 2014. Copies of all correspondence are available on our website.[2]

1.3 The Bill was preceded by a white paper and a draft Bill which was subjected to pre-legislative scrutiny by the Joint Committee on the Draft Modern Slavery Bill.[3] The Government published its response to the Joint Committee's Report on the draft Bill at the same time as it introduced the Bill.

1.4 The Bill consolidates and improves current criminal offences in relation to slavery and trafficking and increases the maximum penalty. It provides for two new civil preventive orders, the Slavery and Trafficking Prevention Order (available post-conviction) and the Slavery and Trafficking Risk Order (available without a prior conviction). It establishes a new office of Anti-Slavery Commissioner. It also introduces a number of specific measures designed to improve protection and support for victims and potential victims of slavery and trafficking, including special measures to protect witnesses, a statutory defence for victims compelled to commit offences, a presumption about the age of victims and provision for child trafficking advocates.

1.5 WE WELCOME THE BILL WHICH IS, AS THE GOVERNMENT'S HUMAN RIGHTS MEMORANDUM RIGHTLY CLAIMS, A SUBSTANTIAL HUMAN RIGHTS ENHANCING MEASURE. It takes a number of important steps to fulfil the State's positive obligation to provide effective legal protection for the victims and potential victims of slavery and human trafficking. The Government also considers that the Bill substantially enhances the rights of children under the UN Convention on the Rights of the Child ("UNCRC"). While there are some measures which have required scrutiny of the Government's justification for interfering with ECHR and UNCRC rights, most of our scrutiny of the Bill has focused on whether the Bill goes far enough to fulfil the various positive obligations on the UK contained in the ECHR and the UNCRC and a number of specific international instruments relevant to slavery and trafficking.[4]

1.6 Our Committee, like its predecessors, has a long-standing interest in human trafficking and related issues, and our scrutiny of this Bill also provides us with an opportunity to follow up some relevant recommendations made in a number of previous Reports covering the subject, including our recent Report on Unaccompanied Migrant Children.

1.7 We identified the Bill as one of our main priorities for legislative scrutiny this Session and issued a call for evidence in relation to it.[5] A total of ten written submissions were received and we have given careful consideration to all of them in drafting this Report.[6] We are grateful to all those who engaged with our scrutiny of the Bill's human rights compatibility by submitting evidence.

INFORMATION PROVIDED BY THE GOVERNMENT

1.8 A free-standing memorandum on both the ECHR and the UNCRC was published on the Home Office website at the same time as the Bill was introduced. The memorandum is detailed and helpful in the evidence it provides of the Government's analysis of the human rights implications of the Bill, including where, in the Government's view, the Bill enhances human rights and in particular the rights of children.

1.9 WE WELCOME THE HOME OFFICE'S HUMAN RIGHTS MEMORANDUM ACCOMPANYING THE BILL, AND IN PARTICULAR THE FACT THAT IT COVERS THE UNCRC AS WELL AS THE ECHR AND GOES BEYOND BEING SIMPLY A "COMPLIANCE" MEMORANDUM BY MAKING CLEAR WHERE, IN THE GOVERNMENT'S VIEW, THE BILL ENHANCES HUMAN RIGHTS. THIS IS IN ACCORDANCE WITH PREVIOUS RECOMMENDATIONS WE HAVE MADE ABOUT THE MOST USEFUL FORMAT FOR DEPARTMENTAL HUMAN RIGHTS MEMORANDA AND WE RECOMMEND THIS APPROACH TO OTHER DEPARTMENTS AS AN EXAMPLE OF GOOD PRACTICE.

OFFENCES (PART 1)

SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR (CLAUSE 1)

1.10 Clause 1 of the Bill provides for a criminal offence of slavery, servitude and forced or compulsory labour. It re-enacts, with some amendments which are considered below, the existing offence contained in s. 71 of the Coroners and Justice Act 2009. A person commits an offence if they hold another person in slavery or servitude, or require another person to perform forced or compulsory labour, and the circumstances are such that the person knows or ought to know that the other person is held in slavery or servitude or is being required to perform forced or compulsory labour.[7]

1.11 The Bill expressly provides that the references in the definition of the offence to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour "are to be construed in accordance with Article 4 of the Human Rights Convention."[8] Whether the definition of this offence should make such express reference to a particular right in the ECHR was not a matter considered by the Public Bill Committee, but as Parliament's human rights committee we consider it an issue of some general significance that warrants careful consideration.

1.12 Article 4 ECHR provides that "no one shall be held in slavery or servitude"[9] and "no one shall be required to perform forced or compulsory labour".[10] Article 4(3) excludes certain categories of work or service from the term "forced or compulsory labour", such as compulsory military service, work in prison or "any work or service which forms part of normal civic obligations" such as jury service. Article 4 ECHR has been interpreted by the European Court of Human Rights as imposing a specific positive obligation on States to penalise and prosecute effectively any act aimed at maintaining a person in a situation of slavery, servitude or forced or compulsory labour.[11] In the case of C.N. v UK, the Court found the UK to be in violation of its positive obligation under Article 4 ECHR because of the absence of specific legislation criminalising domestic servitude.[12]

1.13 The Government explains why clause 1 makes specific reference to Article 4 ECHR in its response to the Report from the Joint Committee on the Draft Modern Slavery Bill. The Joint Committee had recommended removing the reference to Article 4 ECHR from clause 1. The Government rejected this recommendation, for the following reasons:

One particular suggestion of the Committee was to remove the reference to Article 4 of the European Convention on Human Rights from clause 1. However, the introduction of the specific offence of slavery, servitude and forced or compulsory labour, in section 71 of the Coroner's and Justice Act 2010, was as a result of concerns that the UK was not compliant with its obligations under Article 4. It is therefore an important and necessary reference that recognises and provides effective protection for individuals against treatment which is contrary to Article 4 (prohibition of slavery and forced labour). In addition, any developments in the case-law on article 4 (both in the UK and in Strasbourg) will be reflected in the way our courts interpret the offences in the Bill, which would not be the case if we followed the approach recommended by the Committee. This seems to us to have obvious advantages in ensuring the offences can be applied to future offending behaviour.

1.14 We note, however, that section 3 of the Human Rights Act 1998 already requires courts to interpret legislation in a way which is compatible with the Convention rights, so far as it is possible to do so. That obligation is of general application: it applies to all legislation, including legislation defining criminal offences; it applies to future legislation, enacted after the passage of the Human Rights Act itself; and it requires all legislation to be interpreted compatibly with all the Convention rights given effect by the Human Rights Act, including Article 4. The generality of the s. 3 interpretive obligation therefore calls into question why it is necessary for clause 1(2) of the Bill expressly to provide that clause 1(1) is to be construed in accordance with Article 4 ECHR.

1.15 The Government does not mention s. 3 of the Human Rights Act in any of its explanatory material about clause 1 of the Bill. We therefore asked the Government:

· why, in the light of the general interpretive obligation in s. 3 of the Human Rights Act, it is necessary for clause 1(2) of the Bill to require expressly that the terms of the offence are to be construed in accordance with Article 4 ECHR;

· whether there are any other examples of statutory provisions creating criminal offences which make specific reference to a particular Convention right; and

· whether, given the existence of s.3 HRA, it would be more appropriate for specific reference to Article 4 ECHR to be confined to administrative guidance to decision-makers, such as the CPS guidance to prosecutors.

1.16 The Government's response to us does not refer at all to s. 3 HRA but in substance repeats the arguments it made in response to the Report of the Joint Committee on the Draft Bill. It points out that clause 1 re-enacts (with some additions) the existing offence in s. 71 of the Coroners and Justice Act 2009 which includes the express reference to Article 4 ECHR. The original reference to Article 4 in s. 71 of the 2009 Act, the Government says, was a product of the history of that particular provision: it was introduced in order to remedy the violation by the UK of Article 4 ECHR found by the European Court of Human Rights in C.N. v UK because of the absence of specific legislation criminalising slavery, servitude or forced or compulsory labour. The reference to Article 4 was included to ensure that the scope of the new offence was in accordance with the prohibitions and exceptions of that Article. It also followed the precedent set by the human trafficking offence which was introduced in 2004 by the Asylum and Immigration (Treatment of Claimants etc.) Act.[13]

1.17 The Government says that retaining a specific offence with explicit reference to Article 4 "ensures compliance" with Article 4 ECHR: it ensures that the Clause 1 offence continues to be interpreted in the same way as the s. 71 offence that it replaces, and avoids any significance being wrongly attributed to its removal; and it ensures that the offence "remains explicitly linked to the definition of slavery, servitude and forced or compulsory labour as it develops through domestic and Strasbourg case-law, and through that case-law it links to the definitions within other international conventions such as the International Labour Organisation Conventions". The Government therefore considers it to be more appropriate that the reference remains in the Bill rather than in administrative guidance.

1.18 IN OUR VIEW, THE GOVERNMENT'S AIM IN REFERRING TO ARTICLE 4 IN THE CLAUSE 1 OFFENCE—TO ENSURE THAT THE OFFENCE COVERS FUTURE OFFENDING BEHAVIOUR IN THE LIGHT OF JUDICIAL INTERPRETATION OF THE MEANING OF SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR IN FUTURE CASES—IS IN PRINCIPLE TO BE WELCOMED FROM A HUMAN RIGHTS PERSPECTIVE. IN VIEW OF THE GREAT VARIETY OF WAYS IN WHICH PEOPLE CAN BE HELD IN SLAVERY OR SERVITUDE, OR REQUIRED TO PERFORM FORCED OR COMPULSORY LABOUR, AND THE POTENTIAL FOR FUTURE FORMS TO EMERGE, WE WELCOME THE GOVERNMENT'S OBJECTIVE, WHICH IS TO PREVENT THE EFFECTIVENESS OF THE OFFENCE FROM BEING LIMITED BY TOO RESTRICTIVE AN APPROACH TO INTERPRETING ITS SCOPE.

1.19 We note, however, that imposing specific interpretive obligations by referring expressly to particular Articles of the Convention in individual statutory provisions could cast doubt on the generality of the interpretive obligation in relation to all Convention rights and all legislation in s. 3 of the Human Rights Act. Reference to specific Articles of the Convention is good practice in administrative guidance to front-line officials, such as the CPS's guidance to prosecutors, but s. 3 of the Human Rights Act means it is not, strictly speaking, legally necessary in primary legislation in order to ensure that the terms of the offence are interpreted in accordance with relevant developments in the case-law on Article 4.

1.20 The Government's explanation of its reasons for referring specifically to Article 4 ECHR suggests that it is concerned about the risk that relevant developments in the case-law on Article 4 cannot be taken into account when interpreting the scope of the offence because this would fall foul of the prohibition on the retrospectivity of criminal offences. We accept that this is a legitimate concern. However, the European Court of Human Rights has itself made clear that:[14]

However clearly drafted a legal provision may be, in any system of law, including criminal law, there is an inevitable element of judicial interpretation. There will always be a need for elucidation of doubtful points and for adaptation to changing circumstances. Indeed, in the United Kingdom, as in the other Convention States, the progressive development of the criminal law through judicial law-making is a well-entrenched and necessary part of legal tradition. Article 7 (art. 7) of the Convention cannot be read as outlawing the gradual clarification of the rules of criminal liability through judicial interpretation from case to case, provided that the resultant development is consistent with the essence of the offence and could reasonably be foreseen.

1.21 A judicial interpretation of the meaning of slavery or servitude or forced or compulsory labour in the clause 1 offence which went beyond these confines would be incompatible with the prohibition on retrospective criminal offences in Article 7 ECHR. In such a case, the qualification on the general interpretive obligation in s. 3 HRA would apply: it would not be "possible" to interpret the offence in clause 1(1) so as to give effect to that judicial interpretation. Concerns about retrospectivity therefore do not require express reference to be made to Article 4: they are already accommodated by s. 3 HRA.

1.22 The above considerations would point towards recommending that the reference to Article 4 ECHR in the new clause 1 offence is unnecessary and should be deleted. We note, however, that there appears to be some uncertainty about the significance that would be attributed to such an amendment of the current law which already expressly mentions Article 4 ECHR. Lord Judge, for example, in his evidence to the Joint Committee on the Draft Bill, explained his objection to the inclusion of a specific reference to Article 4 ECHR in the provision in the following terms:

1.23 This reasoning appears to have been why the Joint Committee on the Draft Bill recommended that the reference to Article 4 ECHR be removed from clause 1 of the Bill.[16] Neither Lord Judge nor the Joint Committee considered the effect of the interpretive obligation in s.3 HRA, but their assumption appears to be that removing the reference to Article 4 ECHR would mean that the definition of slavery, servitude and forced or compulsory labour would thereby be severed from Article 4 and would not have to be interpreted in the light of developments in the definition of those terms in the domestic and Strasbourg case-law on Article 4. That would defeat the Government's welcome objective of ensuring compliance with Article 4 ECHR, and it therefore strengthens the Government's argument for retaining the specific reference to it in the definition of the offence.

1.24 WE CONSIDER THAT, ON BALANCE, IN LIGHT OF THE DRAFTING HISTORY OF THE PREDECESSOR PROVISION AND THE APPARENT LACK OF CLARITY ABOUT THE EFFECT OF REMOVING THE REFERENCE TO ARTICLE 4 ECHR, AND NOTWITHSTANDING THE GENERALITY OF THE OBLIGATION IN S. 3 HRA, THE DEFINITION OF SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR IN THE CRIMINAL OFFENCE IN CLAUSE 1 OF THE BILL SHOULD CONTINUE TO BE EXPLICITLY TIED TO ARTICLE 4 ECHR. RETAINING SUCH A SPECIFIC REFERENCE TO ARTICLE 4 ECHR IN THE CLAUSE 1 OFFENCE WILL BEST SERVE BOTH LEGAL CERTAINTY AND THE GOVERNMENT'S WELCOME OBJECTIVE OF ENSURING THAT THE SCOPE OF THE OFFENCE KEEPS UP WITH ANY RELEVANT DEVELOPMENTS IN THE DEFINITION OF SLAVERY, SERVITUDE AND FORCED OR COMPULSORY LABOUR IN BOTH DOMESTIC AND STRASBOURG CASE-LAW.

CHILD-SPECIFIC OFFENCES

1.25 The Bill, like the draft Bill before it, does not include any child-specific offences of trafficking or exploitation. The Joint Committee on the Draft Bill was concerned that by essentially consolidating existing offences into one piece of legislation, without substantively re-defining any of those offences, there would be gaps in coverage which would leave some victims of modern slavery without the benefit of the protection of the criminal law. It was particularly concerned about the lack of child-specific offences. All of the offences in the draft Bill required an element of force, coercion, threat, deception or other means of control, but the Joint Committee thought that consent was irrelevant in cases involving the trafficking and exploitation of children because children cannot consent to their own exploitation. It therefore recommended that the Bill should recognise the special case of children by creating separate offences of exploiting and trafficking a child.

1.26 The Government rejected this recommendation, for a number of reasons. In its response to the Joint Committee's Report it said that it shares the objective of providing effective protection for child victims of slavery, servitude, forced labour and trafficking, but considers that the proposed offences relating specifically to children were too broad in scope and uncertain, and that they risked criminalising behaviour that clearly should not be criminalised. It did not want to weaken the framework by diluting the offences, preferring slavery and human trafficking to be regarded as two of the most serious offences available to prosecutors. It also thought that introducing a suite of six new offences, as the Joint Committee recommended, in place of all of the existing offences, risked making convictions more difficult by causing confusion for juries and introducing new legal complexities for judges who are familiar with the existing offences.

1.27 However, whilst not introducing any child-specific offences, the Government has sought to respond to concerns that the Bill does not give adequate recognition to the special case of children by including specific provision designed to ensure that the particular vulnerability of children is properly taken into account. The existing offence of slavery, servitude and forced or compulsory labour, for example, which is re-enacted by clause 1, has been supplemented by provisions clarifying that, when determining whether a person is being held in slavery or servitude, or required to perform forced or compulsory labour, regard may be had to all the circumstances, including any of the person's personal circumstances which may make them more vulnerable, such as their age or family relationships.[17] The definition of "exploitation" for the purposes of the human trafficking offence is also broadly defined to include securing services from children and vulnerable persons.[18] The Government considers that, with this provision in the offences in the Bill, there are no gaps in coverage for child victims of modern slavery.

1.28 We received submissions from organisations which specialise in working with child victims of trafficking, such as UNICEF UK and ECPAT, who welcome the Bill in general but are not persuaded by the Government's reasons for not including separate child trafficking or exploitation offences. They call for specific offences of child trafficking and exploitation, separate from the human trafficking offence provided for in clause 2 of the Bill. They also call for the Bill to include a definition of a child as being under 18.

1.29 The UN Committee on the Rights of the Child recently issued its Concluding Observations on the UK's compliance with the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography.[19] The UN Committee welcomed the various measures taken by the UK to implement the Protocol, including the adoption of various laws, but was "concerned that such efforts have focused almost exclusively on trafficking and that there is no comprehensive legislation that addresses all the offences covered under the Optional Protocol, such as the sale of children."[20] The UN Committee made a number of recommendations that are relevant to Parliament's consideration of this Part of the Bill, including:

· that all types of offences under the Optional Protocol, including the sale of children, child trafficking, child prostitution and child pornography are covered under a comprehensive piece of legislation;

· that the definition of sale of children, which is similar but not identical to that of trafficking in persons, is amended in national legislation in order to adequately implement the provision on sale in the Optional Protocol; and

· that the Modern Slavery Bill is amended to ensure that all children up to 18 years of age are protected against all types of offences under the Optional Protocol.

1.30 To help us reach a view on whether the Bill should provide for child-specific offences of trafficking and exploitation, we asked the Government to indicate its response to these recommendations of the UN Committee on the Rights of the Child. The Government said that it is considering the recommendations of the UN Committee and "will fully respond to those recommendations in the UK's next Periodic Report to the UN Committee on the Rights of the Child." However, its position is that UK law already protects all under-18s against all types of offences under the Optional Protocol through a variety of different offences, including some offences under the Sexual Offences Act 2003 as well as the existing trafficking, slavery, servitude and forced or compulsory labour offences. In any event, the Government says, the objective of the Modern Slavery Bill is not to bring together legislation on all offences covered by the Optional Protocol to the UNCRC, but to bring together modern slavery offences. Although the Bill does not include child-specific offences, it does expressly recognise the particular vulnerable position of children in both the slavery and human trafficking offences. The Government also does not consider there to be any requirement under EU Directives or other international obligations to have a separate child trafficking offence.

1.31 The Government's view is that protection of children is best achieved through the general offences in Part 1 of the Bill, rather than child-specific offences of trafficking and exploitation. The main reason given for this is that "there are real practical problems for prosecutions in proving the age of often undocumented young victims." A child-specific offence would require the prosecution to prove the age of the victim, and the victims of these offences are often undocumented because they come from communities which do not necessarily have birth certificates or other means of proving age. The Report of the Joint Committee on the Draft Bill referred to the advice it had received "from a large number of witnesses on the practical difficulty of requiring the prosecution to prove the age of a child.[21] We also note that the Director of Public Prosecutions, Alison Saunders, in her evidence to the Public Bill Committee, was against having separate child-specific offences, partly because the proliferation of offences risked complicating matters for juries, and partly because the experience of the CPS is that proving somebody's age, where that is an element of the offence which must be established, can be quite difficult.[22] She preferred the simpler approach of a smaller number of broadly defined offences, with age being treated as an aggravating factor.

1.32 WE ARE SYMPATHETIC TO THE RECOMMENDATION OF THE JOINT COMMITTEE ON THE DRAFT BILL THAT, TO AVOID GAPS IN COVERAGE, THE BILL SHOULD INCLUDE CHILD-SPECIFIC OFFENCES OF EXPLOITATION AND TRAFFICKING, AS WE SHARE THE CONCERN TO ENSURE THAT THE BILL DOES NOT LEAVE ANY GAP IN THE LEGAL PROTECTION AVAILABLE FOR CHILDREN AGAINST THESE CRIMES. HOWEVER, WE RECOGNISE THAT THERE IS CONSIDERABLE EVIDENCE TO SUPPORT THE GOVERNMENT'S VIEW THAT THERE IS LIKELY TO BE A SERIOUS PRACTICAL PROBLEM IN PROSECUTING CHILD-SPECIFIC EXPLOITATION AND TRAFFICKING OFFENCES, AND WE SEE THE FORCE OF THE DIRECTOR OF PUBLIC PROSECUTION'S CONCERN THAT THE BILL SHOULD NOT MAKE IT MORE DIFFICULT TO PROSECUTE TRAFFICKING AND EXPLOITATION OF CHILDREN. WE WELCOME THE BILL'S EXPRESS RECOGNITION OF THE PARTICULAR VULNERABILITY OF CHILDREN IN THE DEFINITION OF THE CRIMINAL OFFENCES OF SLAVERY AND HUMAN TRAFFICKING IN THE BILL, AND WE RECOMMEND THAT THE EXTENT TO WHICH THE BILL LEADS TO AN INCREASE IN PROSECUTIONS FOR OFFENCES RELATING TO CHILDREN BE CAREFULLY MONITORED WITH A VIEW TO ENSURING THAT THERE IS NO GAP IN LEGAL PROTECTION FOR CHILDREN AS A RESULT OF NOT HAVING ANY CHILD-SPECIFIC OFFENCES IN THE BILL.

WHOLE LIFE ORDERS

1.33 The Bill provides for the possibility of a modern slavery offender to receive a "whole life order" and the Government's human rights memorandum explains why, in the Government's view, there is no incompatibility with Article 3 ECHR since the decision of the Court of Appeal in the McLoughlin case.

1.34 We recently recommended a probing amendment to the Criminal Justice and Courts Bill dealing with this issue,[23] which was debated in the House of Lords; and we provided an update on this in our second Report on that Bill published on 17 October.[24] We do not say anything further about the issue in the context of this Bill, other than to draw to the attention of both Houses the two recent Reports in which we have considered the matter. We may return to the issue in our Report on human rights judgments before the end of the Parliament.

CONFISCATION OF ASSETS

1.35 The Bill adds the offence of slavery, servitude and forced labour to the list of offences set out in the Proceeds of Crime Act 2002, and the confiscation order regime will therefore apply.[25] The Government is taking forward the recommendations of the Joint Committee on the Draft Bill in relation to the confiscation of assets in the Serious Crime Bill. We have already reported on those provisions in our Report on that Bill,[26] published on 17 October, in which we recommended certain amendments to that part of the Bill, and we merely draw that Report to Parliament's attention.

PREVENTION ORDERS (PART 2)

1.36 Part 2 of the Bill introduces two new civil orders: the Slavery and Trafficking Prevention Order (a "Prevention Order")[27] and the Slavery and Trafficking Risk Order (a "Risk Order").[28] They are civil orders, similar to orders for sexual harm and anti-social behaviour, which may be sought in connection with certain individuals involved in slavery or trafficking. The trafficking orders can be imposed on individuals for up to 5 years and can impose restrictions on their behaviour, subject to criminal sanction for breach of any order. The courts may also make an order in circumstances where an individual is deemed unfit to stand trial or deemed not guilty for reasons of insanity (these criteria mirror provisions in the Sexual Offences Act 2003). In these circumstances, while the court will be asked to impose an order restricting an individual's behaviour, which if breached will be an offence, there may have been no determination that the individual has been responsible for behaviour which gives rise to a risk of criminal offending. Orders of this type engage both the right to a fair hearing (Article 6 ECHR) and the right to respect for private life (Article 8 ECHR).

STANDARD OF PROOF

1.37 In order to ensure compatibility with the right to a fair hearing, the standard of proof to be applied in proceedings for these types of preventive order is generally the enhanced civil standard, which is practically indistinguishable from the criminal standard (proof beyond reasonable doubt).[29] The Government accepts that the standard of proof to be applied will be "akin to the criminal standard".[30] However, this is not spelled out on the face of the Bill, which is silent about the standard of proof. This is in contrast to the recent Anti-social Behaviour, Crime and Policing Act 2014, which specifies the standard of proof in relation to anti-social behaviour orders.

1.38 We therefore wrote to the Government to ask why it does not consider it necessary to make clear that the criminal standard should apply to any factual determination necessary for the making, renewal or variation of any Slavery and Trafficking Prevention or Risk Order.[31] In response, the Government stated that an explicit reference is unnecessary due to case law which establishes the principle that, in the context of civil orders applying to anti-social behaviour, the requisite burden of proof is the criminal standard.[32] IN OUR VIEW, AN EXPLICIT REFERENCE TO THE APPLICABLE STANDARD OF PROOF ON THE FACE OF THE BILL WOULD ENHANCE LEGAL CERTAINTY, AND IS IN LINE WITH THE DRAFTING OF THE ANTI-SOCIAL BEHAVIOUR, CRIME AND POLICING ACT 2014. STATUTORY PROVISIONS FOR CIVIL ORDERS OF THIS TYPE SHOULD MAKE CLEAR ON THE FACE OF THE BILL THAT THE CRIMINAL STANDARD APPLIES AND WE RECOMMEND THAT THE BILL BE AMENDED TO PUT THIS BEYOND DOUBT.

CLARITY OF THE PROHIBITIONS WHICH CAN BE IMPOSED IN A PREVENTION OR RISK ORDER

1.39 The broad and open-ended definition of the types of prohibitions that may be included in a trafficking order also raises questions about legal certainty. An order can prohibit a person "from doing anything described in the order."[33] The only constraint on this broad power is that the court must be satisfied that the prohibition is "necessary for the purpose of protecting persons generally, or particular persons, from the physical or psychological harm which would be likely to occur if the defendant committed a slavery or human trafficking offence."[34] With the exception of foreign travel, the types of prohibitions that may be imposed are therefore unspecified and potentially wide-ranging. This is in contrast to, for example, the TPIMs legislation which includes an exhaustive list of the sorts of prohibitions and requirements that can be included in a TPIMs order.[35] The Joint Committee on the Draft Bill recommended amending the Bill to specify an exhaustive list of prohibitions that can be contained in an order.[36]

1.40 In order to ensure compatibility with the right to respect for private life, any restriction must satisfy the requirements of legal certainty. It is essential that prohibitions contained in the orders are clear, as a breach of an order is a criminal offence. We therefore wrote to the Government to ask for a more detailed explanation of why it does not consider it necessary to provide in the Bill either an indicative or an exhaustive list of the prohibitions that can be included in prevention and risk orders, and why the inclusion of "persons generally" in the category of persons at risk is considered sufficiently clear and precise.[37]

1.41 In response, the Government considered that prescribing the type of restrictions that may be imposed by an order would undermine the ability of enforcement bodies and the courts to respond flexibly to the risk posed by an individual. Statutory guidance will provide details of the categories of prohibitions that can be contained in an order. The Government further states that it will work with the police, Immigration Enforcement, the NCA and the courts to provide support and guidance.[38] The Government also says that the Bill refers to "persons generally" because the nature of trafficking and slavery means that an individual may pose a risk to specified individuals, or a more general risk to people who they may seek to traffic or enslave.

1.42 WE ARE CONCERNED ABOUT WHETHER THESE PROVISIONS ON PREVENTIVE ORDERS ARE SUFFICIENTLY DEFINED ON THE FACE OF THE BILL TO PROVIDE THE REQUISITE LEGAL CERTAINTY. WE RECOMMEND THAT THE PROVISIONS BE TIGHTENED UP BY, FOR EXAMPLE, INCLUDING ON THE FACE OF THE BILL AN INDICATIVE LIST OF THE SORTS OF PROHIBITIONS THAT CAN BE IMPOSED IN SUCH ORDERS. WE ALSO RECOMMEND THAT CONSIDERATIONS OF LEGAL CERTAINTY BE GIVEN PROMINENCE IN THE DEVELOPMENT OF THE STATUTORY GUIDANCE THAT WILL BE DRAWN UP FOR FRONTLINE PROFESSIONALS.

ANTI-SLAVERY COMMISSIONER (PART 3)

1.43 The Bill provides for the establishment of an Anti-slavery Commissioner,[39] who is to be an "independent office-holder appointed by the Home Secretary, with the general function of encouraging good practice in the prevention, detection, investigation and prosecution of the modern slavery offences and the identification of victims of those offences".[40] The Government has made clear in its response to our questions that, while it expects that the human rights response of the UK to victims of modern slavery will be improved as a result of introducing the Commissioner, "we do not see the role primarily as part of the national human rights machinery."

1.44 WE WELCOME IN PRINCIPLE THE CREATION OF THE OFFICE OF ANTI-SLAVERY COMMISSIONER AS A POTENTIALLY SIGNIFICANT HUMAN RIGHTS ENHANCING MEASURE. There were three areas of this Part of the Bill, however, which we decided to subject to closer scrutiny in light of our work on the Office of the Children's Commissioner:[41] the Commissioner's mandate, independence and relationship with Parliament.

MANDATE

1.45 The Joint Committee on the Draft Bill was disappointed that the functions envisaged for the Commissioner in the draft Bill were restricted to law enforcement. It recommended that the Commissioner's functions be extended to include victim protection, and that they should also include acting as a focal point for the collection, compilation, analysis and dissemination of information and statistics about modern slavery. It also recommended that the Commissioner's functions should include working with national and international partners and to promote and facilitate such collaboration.

1.46 The Government rejected the Joint Committee's recommendation that the Commissioner should have a broader role. It was concerned by the risk of the Commissioner focusing on a general advocacy role at the expense of identifying key practical improvements, and of the role cutting across other strategic roles, such as the Victims' Commissioner. It therefore preferred to keep the role more tightly focused on law enforcement, which would be in the interests of victims and potential victims by making enforcement more effective. The Government did, however, agree to add to the Commissioner's role the function of encouraging good practice in the identification of victims of modern slavery offences,[42] and to include in the list of things that the Commissioner may do "co-operating with or working jointly with other persons, in the United Kingdom or elsewhere."[43] WE WELCOME THESE TWO CHANGES TO THE COMMISSIONER'S FUNCTIONS MADE BY THE GOVERNMENT BETWEEN THE PUBLICATION OF THE DRAFT BILL AND THE INTRODUCTION OF THE ACTUAL BILL - NAMELY, TO ALLOW THE COMMISSIONER TO CO-OPERATE OR WORK JOINTLY WITH OTHER PERSONS ON MODERN SLAVERY ISSUES, IN THE UK OR ELSEWHERE.

1.47 We feel, however, that the Commissioner's mandate remains weak (confined to encouraging good practice) and narrowly focused (primarily still on law enforcement). We therefore asked the Government for a more detailed explanation of its reasons for not strengthening and extending the Anti-slavery Commissioner's remit by giving it a role in relation to the victims of modern slavery analogous to the role of the Children's Commissioner in relation to children.

1.48 In its response the Government maintains its position that the Commissioner is primarily intended to oversee the law enforcement response to trafficking and slavery, ensuring that the perpetrators are identified, disrupted and brought to justice. Its role, in short is to galvanise and improve the law enforcement response. The Government expects the Commissioner to work collaboratively with both the Victims' Commissioner and the Children's Commissioner, but draws a sharp distinction between the role of the Anti-slavery Commissioner and those two Commissioners: the Anti-slavery Commissioner is not intended to be an advocate for victims or to have a campaigning role. Although the Anti-slavery Commissioner's general role and functions, and some of its specific functions, are said to be comparable to other similar bodies, including the Surveillance Camera Commissioner as well as the Victims' Commissioner and the Children's Commissioner, the Government says that the scope and remit of the Anti-slavery Commissioner's role is intended to be much narrower than the role of the Children's Commissioner, and that is therefore reflected in the annual budget and level of support for the contrasting roles. The new Commissioner will have an annual budget of up to £500,000, compared to a budget of £2,272,000 for the Children's Commissioner, £265,000 for the Victims' Commissioner and £250,000 for the Independent Reviewer of Terrorism Legislation.

1.49 IN OUR VIEW THERE IS A RANGE OF OPTIONS FOR THE ANTI-SLAVERY COMMISSIONER, BETWEEN AN ADVOCACY/CAMPAIGNING INSTITUTION AT ONE END OF THE SPECTRUM AND AN OVERSEER OF THE GOVERNMENT'S LAW ENFORCEMENT RESPONSE AT THE OTHER. NATIONAL HUMAN RIGHTS INSTITUTIONS, SUCH AS THE EQUALITY AND HUMAN RIGHTS COMMISSION AND THE CHILDREN'S COMMISSIONER, GENERALLY DO NOT HAVE THE OMBUDSMAN-TYPE POWER TO TAKE UP INDIVIDUAL CASES, BUT THEY DO HAVE A SIGNIFICANT ROLE IN COLLECTING DATA IN ORDER TO MONITOR THE STATE'S PERFORMANCE IN OBSERVING THE RIGHTS OF INDIVIDUALS.

INDEPENDENCE

1.50 The Anti-Slavery Commissioner is intended by the Government to be an independent office-holder, and the Government agrees with the Joint Committee on the Draft Bill about "the importance of the independence of the role." It made some changes to the Bill in response to the Joint Committee's recommendations designed to strengthen the Commissioner's independence, including by requiring the Home Secretary to lay the Commissioner's reports before Parliament "as soon as reasonably practicable"[44] and by tightening slightly the test for when the Home Secretary can redact such reports before they are laid before Parliament.[45] However, the Government rejected other more significant recommendations made by the Joint Committee intended to strengthen the Commissioner's independence.

1.51 WE BELIEVE THAT THERE REMAIN SEVERAL PROVISIONS IN OR OMISSIONS FROM THE BILL WHICH MEAN THAT THE COMMISSIONER CANNOT BE DESCRIBED AS "INDEPENDENT" IN ANY MEANINGFUL SENSE. In particular:

· The Commissioner is to hold office "in accordance with the terms of the Commissioner's appointment".[46] There is no provision in the Bill about the duration of the appointment, whether the term is renewable, or the grounds for removal or process for removal. These are all left to be determined by the Home Secretary in the terms of appointment.

· The Commissioner will not be able to recruit their own staff, but will be provided with such staff and such accommodation as the Secretary of State considers necessary for the exercise of the Commissioner's function.[47] According to the Government's response to our letter, the Commissioner "will be supported by a small team of civil servants from within the Home Office".[48]

· The Commissioner may only report to the Secretary of State on any "permitted matter",[49] which is defined as a matter which the Secretary of State has authorised the Commissioner to report on.[50]

· The Commissioner's strategic plans, setting out how the Commissioner proposes to exercise the Commissioner's functions, including the Commissioner's objectives and priorities for the period of the plan, must be submitted to the Secretary of State "for approval".[51] The Government said, in its response to the Joint Committee Report on the Draft Bill, that "it is normal for independent Commissioners to agree their programme with the Secretary of State. […] The requirement for approval helps ensure this coherence. Once the plan is agreed, the Commissioner will be entirely independent and be able to report freely on his or her findings."

· The Secretary of State may direct the Commissioner to omit from any report before publication any material whose publication the Secretary of State thinks would be against the interests of national security, might jeopardise the safety of any person or might prejudice the investigation or prosecution of an offence;[52] and the Secretary of State can herself remove any material from the Commissioner's annual report, on the same grounds, before it is laid before Parliament.[53]

· The Secretary of State has the power to specify, in regulations, which public authorities are under the statutory duty to co-operate with the Commissioner.[54]

1.52 In view of the above features of the statutory scheme, we asked the Government in what sense the Anti-slavery Commissioner is "independent" from the Government, and why the Commissioner should be any less independent of the Government than the Children's Commissioner. The Government accepts that there are significant differences in the legislative framework governing the Children's Commissioner and the proposed Anti-slavery Commissioner, but maintains that "both models produce independent bodies."

RELATIONSHIP WITH PARLIAMENT

1.53 We have sought to strengthen the relationship between Parliament and a number of bodies which form part of the UK's national human rights machinery, including the Equality and Human Rights Commission, the Children's Commissioner and the Independent Reviewer of Terrorism Legislation. In our view, the Anti-slavery Commissioner proposed in this Bill has the potential to be another part of that machinery with an important human rights role and in our view it should enjoy as close a relationship with Parliament as those other bodies which are part of that machinery. The Bill provides for the Commissioner's reports to be laid before Parliament by the Secretary of State, but otherwise the Commissioner looks very much like a creature of the Home Office, with very little interaction with Parliament.

1.54 We asked the Government whether it agrees that it would be desirable for the Anti-slavery Commissioner to be encouraged to develop a relationship with Parliament comparable to that which is currently being developed by the Equality and Human Rights Commission, the Children's Commissioner and other parts of the national human rights machinery, informed by the Belgrade Principles; and, if so, how the Commissioner's relationship with Parliament could be strengthened and developed. The Government agreed that it is important that the Commissioner develops a strong relationship with Parliament early in his or her tenure, and points out that the Commissioner will be expected to provide Parliament with a comprehensive and transparent view of how their role supports the better prevention, detection, investigation and prosecution of modern slavery crimes.

1.55 GIVEN THE BILL'S IMPORTANT ENHANCEMENT OF HUMAN RIGHTS, WE WERE SURPRISED AND DISAPPOINTED BY THE GOVERNMENT'S STATEMENT THAT IT DOES NOT SEE THE ROLE OF ANTI-SLAVERY COMMISSIONER "PRIMARILY AS PART OF THE NATIONAL HUMAN RIGHTS MACHINERY". WE RECOMMEND THAT THE PROPOSED ANTI-SLAVERY COMMISSIONER SHOULD BE REGARDED AS PART OF THE NATIONAL HUMAN RIGHTS MACHINERY, RATHER THAN SIMPLY AS AN ADJUNCT OF THE HOME OFFICE WHOSE PRIMARY ROLE IS TO OVERSEE THE LAW ENFORCEMENT RESPONSE TO TRAFFICKING AND SLAVERY, ENSURING THAT PERPETRATORS ARE IDENTIFIED, DISRUPTED AND BROUGHT TO JUSTICE. WE NOTE THE GOVERNMENT AMENDMENTS TO THE BILL AT REPORT STAGE WHICH INCLUDE THE WORD "INDEPENDENT" IN THE STATUTORY TITLE OF THE COMMISSIONER, BUT THE POST CANNOT BE MADE GENUINELY INDEPENDENT MERELY BY ADDING A LABEL. AS THE BILL IS PRESENTLY DRAFTED, THE PROPOSED COMMISSIONER CANNOT PROPERLY BE DESCRIBED AS "INDEPENDENT" SINCE, IN VIEW OF THE FEATURES OF THE STATUTORY SCHEME OUTLINED ABOVE, IT IS LARGELY CONTROLLED BY THE HOME OFFICE. WE ACCEPT THE NEED TO AVOID ANY OVERLAP OR CONFUSION WITH THE ROLE OF THE VICTIMS' COMMISSIONER, BUT WE DO NOT CONSIDER THIS TO BE AN INEVITABLE RESULT OF BROADENING THE ROLE BEYOND ITS CURRENT NARROW FOCUS ON LAW ENFORCEMENT.

1.56 WE RECOMMEND THAT THE BILL BE AMENDED TO BRING THE COMMISSIONER CLOSER TO THE MODEL OF THE CHILDREN'S COMMISSIONER, BY STRENGTHENING THE COMMISSIONER'S REMIT AND BOLSTERING ITS INDEPENDENCE FROM THE GOVERNMENT. WE ALSO RECOMMEND THAT THE NEW COMMISSIONER DEVELOP A CLOSE AND STRONG RELATIONSHIP WITH PARLIAMENT, ALTHOUGH WE CONSIDER THIS TO BE MORE A MATTER FOR THE COMMISSIONER AND PARLIAMENT (AND ITS COMMITTEES) TO ESTABLISH AND DEVELOP IN PRACTICE THAN A MATTER FOR THE BILL.

PROTECTION OF VICTIMS (PART 4)

1.57 Part 4 of the Bill introduces a number of measures to provide support and protection to victims of slavery and trafficking.[55] The provisions are largely based on recommendations by the Joint Committee on the Draft Bill. In its human rights memorandum, the Government considers that only clause 46 (the duty to notify the National Crime Agency about suspected victims) raises any ECHR compatibility issues. However, the measures contained in Part 4 include important steps in fulfilling the UK's positive obligations contained in the ECHR and a number of other international instruments.

1.58 WE WELCOME THE PROVISIONS IN PART 4 OF THE BILL AS SIGNIFICANT HUMAN RIGHTS ENHANCING MEASURES. HOWEVER, WE RECEIVED A NUMBER OF SUBMISSIONS ARGUING THAT THE BILL DOES NOT GO FAR ENOUGH IN THE PROTECTION AND SUPPORT IT PROVIDES FOR VICTIMS, AND DOES NOT SATISFY THE POSITIVE OBLIGATIONS WHICH THE UK IS REQUIRED TO FULFIL UNDER ARTICLE 4 ECHR.[56] WE NOTE THAT MANY ORGANISATIONS WITH EXTENSIVE EXPERIENCE OF WORKING WITH THE VICTIMS OF SLAVERY AND TRAFFICKING ARE CRITICAL OF THE BILL FOR CONCENTRATING LARGELY ON LAW ENFORCEMENT AND INSUFFICIENTLY ON PROTECTION AND SUPPORT FOR VICTIMS, WHICH THEY CONSIDER TO BE A PRECONDITION TO BETTER ENFORCEMENT BECAUSE OTHERWISE VICTIMS LACK THE CONFIDENCE TO COME FORWARD. IT IS IMPORTANT THAT THE BILL GETS THE BALANCE RIGHT BETWEEN ENFORCEMENT ON THE ONE HAND AND PROTECTION AND SUPPORT FOR VICTIMS ON THE OTHER. WE HAVE THEREFORE CONSIDERED WHETHER SOME OF THE MEASURES IN THE BILL COULD GO EVEN FURTHER IN PROTECTING THE RIGHTS OF VICTIMS.[57]

1.59 WE HAVE FOUND IT DIFFICULT TO ASSESS THE EXTENT TO WHICH THE BILL WILL LEAD TO REAL IMPROVEMENTS IN THE PROTECTION OF VICTIMS OF MODERN SLAVERY WITHOUT HAVING MORE INFORMATION AVAILABLE ABOUT THE REVIEW OF THE NATIONAL REFERRAL MECHANISM. ALTHOUGH THE INTERIM REPORT OF THE REVIEW IS AVAILABLE, IT IS NOT YET CLEAR HOW PROBLEMS WITH, AND WEAKNESSES IN, THE CURRENT MECHANISM WILL BE RESOLVED. WE RECOMMEND THAT THE FINAL REPORT OF THE REVIEW BE MADE AVAILABLE IN TIME TO INFORM DEBATES ON THIS PART OF THE BILL IN THE LORDS. THE ADEQUACY OF PART 4 OF THE BILL CAN ONLY PROPERLY BE ASSESSED IN THE LIGHT OF THE GOVERNMENT'S POSITION ON IMPORTANT ISSUES SUCH AS WHETHER THE NATIONAL REFERRAL MECHANISM SHOULD BE PLACED ON A STATUTORY FOOTING, AND WHETHER A MORE FORMAL PROCESS IS NEEDED FOR THE IDENTIFICATION OF VICTIMS OF TRAFFICKING, INCLUDING A RIGHT OF APPEAL AGAINST SUCH A DETERMINATION.

DEFENCE FOR SLAVERY OR TRAFFICKING VICTIMS COMPELLED TO COMMIT AN OFFENCE (CLAUSE 45)

1.60 Clause 45 introduces a new statutory defence for slavery or trafficking victims who have been compelled to commit a criminal offence as a direct consequence of their trafficking or slavery situation. At present, the Crown Prosecution Service (CPS) follows its own internal non-statutory guidance when deciding whether to prosecute victims of trafficking who have been compelled to commit criminal offences.[58] The guidance makes clear that a child victim does not have to prove compulsion.

1.61 In the most recent review of the UK's compliance with the UNCRC Optional Protocol on the sale of children, child prostitution and child pornography, the UN Committee on the Rights of the Child expressed particular concern about the treatment of child victims of trafficking in the criminal justice system having been arrested and charged with a range of offences, including causing, inciting or controlling prostitution for gain, keeping a brothel, theft, and cultivation of cannabis plants.[59] The UN Committee recommended establishing mechanisms and procedures to ensure that child victims are treated as victims rather than criminals by law enforcement and judicial authorities, including a clear obligation of non-prosecution of child victims in the criminal justice system.[60]

1.62 The Children's Society and UNICEF UK have argued for a stronger non-prosecution principle on the face of the Bill in respect of child victims. They believe that the guidance from the Crown Prosecution Service is not working effectively, highlighting that child victims are still being prosecuted for crimes directly resulting from their trafficking situation. They argue that a statutory non-punishment provision is necessary, not only from a child safeguarding perspective but also to prevent the risk of secondary traumatisation to the child.[61]

1.63 We wrote to the Government to ask whether the new defence for slavery and trafficking victims is sufficient in order to ensure that child victims are not arrested, charged or prosecuted for crimes directly relating to a slavery or trafficking situation, particularly in the light of the most recent UNCRC Concluding Observations. We also asked for more information about how the Government will ensure that the new statutory defence is put into practice by all relevant frontline professionals, including the police and the CPS.[62]

1.64 In response, the Government stated that it is satisfied that the proposed defence and CPS guidance provide sufficient protection for child victims. It points out that the new statutory defence reflects that a child's age should be considered by the court, by ensuring that the person's age is given specific consideration in the assessment of the defence. The Government also outlined its intention to "work closely with relevant stakeholders" to ensure that the statutory defence is understood and effectively applied by frontline professionals, including the police and CPS.[63] The Government has also stressed that the creation of a new statutory defence is "very unusual in English law and should not be done lightly".[64]

1.65 WE WELCOME THE INCLUSION IN THE BILL OF A NEW STATUTORY DEFENCE FOR TRAFFICKING VICTIMS AS A SIGNIFICANT HUMAN RIGHTS ENHANCING MEASURE WHICH IMPLEMENTS AN IMPORTANT POSITIVE OBLIGATION ON THE UK. WE ALSO WELCOME THE GOVERNMENT'S COMMITMENT TO ENSURING THAT CHILDREN ARE NOT INAPPROPRIATELY CRIMINALISED. HOWEVER, WE CONSIDER THAT THE PROPOSED DEFENCE COULD BE IMPROVED BY MAKING CLEAR ON THE FACE OF THE BILL THAT A CHILD VICTIM DOES NOT HAVE TO PROVE COMPULSION, IN LINE WITH CURRENT CPS GUIDANCE, AND TO IMPROVE PROTECTION FOR CHILD VICTIMS. WE ALSO WELCOME, AND STRESS THE IMPORTANCE OF, THE GOVERNMENT'S INTENTION TO WORK TO ENSURE THAT THE STATUTORY DEFENCE IS UNDERSTOOD AND EFFECTIVELY APPLIED BY FRONTLINE PROFESSIONALS, INCLUDING THE POLICE AND CPS.

SPECIAL MEASURES FOR WITNESSES IN CRIMINAL PROCEEDINGS (CLAUSE 46)

1.66 Clause 46 of the Bill amends the Youth Justice and Criminal Evidence Act 1999, which deals with the availability of "special measures" (e.g. giving evidence via video link or from behind a screen) for vulnerable witnesses giving evidence in criminal prosecutions. Trafficking victims are already eligible for special measures. Clause 46 extends the existing law to slavery victims. WE WELCOME THE EXTENSION OF CURRENT SPECIAL MEASURES FOR VULNERABLE WITNESSES GIVING EVIDENCE IN CRIMINAL PROSECUTIONS TO VICTIMS OF SLAVERY AS A HUMAN RIGHTS ENHANCING MEASURE.

CHILD TRAFFICKING ADVOCATES (CLAUSE 47)

1.67 Clause 47 makes provision for child trafficking advocates, whose role would be to represent and support children who are thought to be victims of trafficking. The clause gives the Secretary of State power to make arrangements enabling child trafficking advocates to be appointed. In doing so, she would be required to have regard to the principle that a child ought to be represented by "someone who is independent of any person who will be responsible for making decisions about the child". The clause also enables the Secretary of State to make regulations about the circumstances in which a person may act as a child trafficking advocate, the appointment and function of child trafficking advocates, and a requirement for public authorities to cooperate with child trafficking advocates. The clause also provides that, within nine months of the Bill being passed, the Secretary of State must lay before Parliament a report on the steps she proposes to take in relation to the exercise of her powers under this provision. The Explanatory Notes to the Bill state that this report will follow a trial of the child trafficking advocates scheme, due to commence in summer 2014.[65]

1.68 A recent handbook published by the EU's Fundamental Rights Agency (the "FRA") provides guidance to Member States on guardianship systems, which is relevant to the proposed system of child trafficking advocates. The handbook sets out a number of key standards, including: independence, impartiality, quality, accountability, child participation, and the need for sufficient human and financial resources [66]

1.69 In its Concluding Observations on the Optional Protocol, the UN Committee on the Rights of the Child recommends that the UK prioritises "the appointment of a competent and statutory guardian as expeditiously as possible to safeguard the best interests of the child during the criminal justice process and ensure that a child victim is referred to asylum-seeking or other procedures only after the appointment of a guardian and that they are entitled to access, free of charge, to a qualified legal representative."[67]

1.70 WE WELCOME THE PROVISION FOR INDEPENDENT CHILD TRAFFICKING ADVOCATES AS IN PRINCIPLE A POSITIVE, HUMAN RIGHTS ENHANCING MEASURE. HOWEVER, AS THE BILL PROVIDES ONLY FOR AN ENABLING POWER TO ESTABLISH THE SYSTEM OF INDEPENDENT CHILD TRAFFICKING ADVOCATES, IT IS DIFFICULT TO ASSESS, AT THIS STAGE, WHETHER IT WOULD SATISFY THE UNCRC'S RECOMMENDATION OR OUR OWN PREVIOUS RECOMMENDATIONS IN OUR REPORT ON UNACCOMPANIED MIGRANT CHILDREN. The Joint Committee on the Draft Bill recommended a statutory scheme for advocates for child victims of modern slavery. Its revised Bill included a list of minimum responsibilities of the advocate, including to ensure that all decisions are made in the child's best interest, to ascertain the child's opinion, and to assist the child to access legal representation.[68]

1.71 We received submissions arguing that the Bill should go further and establish a statutory scheme for independent legal guardians for children.[69] We asked the Government why it does not consider it necessary to make detailed provision for child trafficking advocates in primary legislation, and for its view on whether the proposed system of advocates meets the UNCRC recommendation in relation to guardians.[70] In response, the Government highlights the specific references in the clause to certain elements of the advocate's role, such as independence and the right to require cooperation from public authorities. The Government also states its view that the advocates will promote the best interests of the child (Article 3 UNCRC) and will ensure that the child's views are voiced and respected (Article 12 UNCRC).[71] WE WELCOME THE GOVERNMENT'S AMENDMENT OF THE BILL AT REPORT STAGE TO MAKE CLEAR ON THE FACE OF THE BILL THAT CHILD TRAFFICKING ADVOCATES HAVE A DUTY TO ACT IN THE BEST INTERESTS OF THE CHILD.[72]

1.72 The Government is reluctant to bring forward any more detailed provisions about the proposed child advocates scheme until the current trial has been completed and independently evaluated. However, the Minister indicated that there would be a further role for Parliament in assessing the evaluation of the trial: the Government has committed itself to bring forward an amendment that it says will strengthen Parliament's role in deciding whether these provisions are to commence after the trials have been completed and evaluated.

1.73 WHILE THE BILL CONTAINS A REQUIREMENT FOR THE GOVERNMENT TO REPORT TO PARLIAMENT ON THE STEPS IT IS TAKING TO IMPLEMENT THE CHILD TRAFFICKING ADVOCATE SCHEME, WE WOULD HAVE WELCOMED AN OPPORTUNITY DURING THE PASSAGE OF THE BILL TO SCRUTINISE IN MORE DETAIL THE PROPOSED SYSTEM FOR CHILD TRAFFICKING ADVOCATES, PARTICULARLY IN RELATION TO THEIR POWERS AND FUNCTIONS. HOWEVER, WE WELCOME THE GOVERNMENT'S AMENDMENT TO THE BILL AT REPORT STAGE WHICH WILL ENSURE THAT PARLIAMENT HAS SUCH AN OPPORTUNITY WHEN THE EVIDENCE FROM THE TRIALS IS AVAILABLE.[73]

1.74 We also asked the Government for its view about whether or not there is a need for a more comprehensive system of guardianship for non-trafficked unaccompanied children, as highlighted in our inquiry into unaccompanied migrant children.[74] In response, the Government states that the focus of the provision is on specialist support for trafficked children. The Government refers to guidance and regulations issued by the Department for Education which set out the steps that all local authorities should take to plan for supporting unaccompanied asylum seeking children. IN OUR VIEW, THE BILL PRESENTS AN OPPORTUNITY TO ENABLE THE ESTABLISHMENT OF A MORE COMPREHENSIVE SYSTEM OF GUARDIANSHIP FOR BOTH TRAFFICKED CHILDREN AND UNACCOMPANIED MIGRANT CHILDREN, AND WE RECOMMEND THAT THE BILL BE AMENDED TO INCLUDE AN ENABLING POWER TO ESTABLISH SUCH A GENERAL SCHEME.

PRESUMPTION OF AGE (CLAUSE 49)

1.75 Clause 49 applies where a public authority with responsibility for providing assistance and support to suspected trafficking victims believes that a potential victim may be under 18. The clause provides that until the person's age has been determined by a local authority assessment (or otherwise), the public authority must assume they are under 18. This meets the UK's obligations under the EU Directive on Preventing and Combating Trafficking in Human Beings. WE WELCOME THE STATUTORY PRESUMPTION OF AGE AS A POSITIVE MEASURE ENHANCING THE PROTECTION OF CHILD VICTIMS.

1.76 We note, however, that this statutory obligation will only apply to the provision of local authority assistance and support. In relation to criminal matters, the CPS guidance refers to an obligation in the Council of Europe Anti-Trafficking Convention,[75] which provides: "When the age of the victim is uncertain and there are reasons to believe that the victim is a child, he or she shall be presumed to be a child and shall be accorded special protection measures pending verification of his/her age". Case law has also established that if, at the end of a "due enquiry" into age,[76] the age of the defendant remains in doubt, they must be treated as a child.[77]

1.77 UNICEF UK highlights research that shows that trafficked young people are frequently mistakenly identified as adults or prosecuted for immigration offences and held in detention because their age was not believed or they held false documents from their traffickers.[78] In our Report on unaccompanied migrant children, we noted that there remains a continuing risk of detention for those claiming to be children.[79]

1.78 We therefore asked the Government whether it considers there to be merit in placing the non-statutory presumption of age that is contained in the CPS guidance on a similar statutory footing as the Bill proposes in relation to local authority assistance and support.[80] In its response, the Government does not respond to this question. It simply states that the presumption of age clause was added following pre-legislative scrutiny of the draft Bill.[81] It further states that guidance will cover details of how the presumption of age will operate. WE RECOMMEND THAT THE BILL PLACES THE NON-STATUTORY PRESUMPTION OF AGE THAT IS CONTAINED IN THE CROWN PROSECUTION SERVICES'S GUIDANCE ON A SIMILAR STATUTORY FOOTING TO ENHANCE PROTECTION FOR TRAFFICKED YOUNG PEOPLE.

LEGAL AID FOR VICTIMS OF MODERN SLAVERY

1.79 An important aspect of support and protection for the victims of modern slavery is the availability of legal aid. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, "victims of trafficking in human beings" (as defined in the Council of Europe Convention Against Trafficking in Human Beings) are entitled to civil legal aid in relation to a claim in employment law arising out of their exploitation,[82] and in relation to a claim for damages arising in connection with their trafficking or exploitation.[83] They are also entitled to civil legal aid in relation to immigration issues, but only where there has been a conclusive determination by the National Referral Mechanism that the individual is a victim of trafficking or where there are reasonable grounds to believe that they are such a victim and there has not been a conclusive determination that they are not.[84]

1.80 We received submissions arguing that victims of modern slavery, including victims of trafficking, should be able to obtain legal aid for advice and assistance in relation to their immigration status before any referral to, or decision by, the National Referral Mechanism. Amnesty International UK, for example, argued that extending the availability of legal aid in this way is vital to the practical and effective protection of victims of modern slavery, because fears concerning immigration status deter victims from taking steps to escape their exploitation and abuse, fears which enable human traffickers and slave masters to maintain their control over victims. Amnesty argues that the limited availability of legal aid in relation to immigration matters for victims of modern slavery constitutes a significant barrier to such victims coming forward, because it prevents them from getting legal advice about the possible immigration consequences of coming forward.

1.81 In our Report in the last Session of this Parliament on the implications for access to justice of the Government's proposed legal aid reforms, we expressed similar concerns about the scope of exemptions from the proposed residence test for victims of trafficking. We welcomed the Government's decision to exempt certain trafficking cases from the proposed residence test for legal aid, but were concerned that the proposed exemptions for victims of trafficking did not go far enough, and we recommended that the exemptions be extended to cases where the status of the trafficking victims is contested and to legitimate challenges to failures to investigate or prosecute.[85] The Government rejected our recommendation on the basis that anyone excluded from legal aid because of the residence test can apply for exceptional funding where the failure to provide legal aid would be a breach of their ECHR or directly enforceable EU law rights.[86]

1.82 AS WE HAVE MADE CLEAR IN OUR EARLIER REPORTS ON LEGAL AID, WE ARE NOT PERSUADED THAT THE EXCEPTIONAL FUNDING SCHEME IS OPERATING IN SUCH A WAY AS TO GUARANTEE THAT LEGAL AID IS AVAILABLE IN ALL CASES WHERE FAILURE TO PROVIDE IT WOULD AMOUNT TO A BREACH OF THE ECHR OR EU LAW. WE REMAIN SYMPATHETIC TO THE VIEW THAT RESTRICTIONS ON THE AVAILABILITY OF LEGAL AID TO VICTIMS OF HUMAN TRAFFICKING IN RELATION TO IMMIGRATION ISSUES CONSTITUTE A REAL PRACTICAL BARRIER TO SUCH VICTIMS COMING FORWARD. WE RECOMMEND THAT THE OPPORTUNITY SHOULD BE TAKEN IN THIS BILL TO AMEND THE LEGAL AID, SENTENCING AND PUNISHMENT OF OFFENDERS ACT TO ENSURE THAT LEGAL AID IS AVAILABLE IN RELATION TO IMMIGRATION ISSUES PRIOR TO REFERRAL OR DECISION BY THE NATIONAL REFERRAL MECHANISM.

SUPPLY CHAINS

1.83 The Bill does not take forward the recommendation of the Joint Committee on the Draft Bill that it should make provision aimed at tackling modern slavery in supply chains, for example by introducing specific reporting requirement on companies in relation to the use of slavery in their supply chains or requiring companies to address the issue in their annual strategic plan.

1.84 We received written submissions from a number of NGOs arguing that reliance on a purely voluntary approach has not been effective in ensuring that UK-registered companies meet minimum labour standards throughout their international supply chains and that the Bill should be amended to include a provision modelled on the California Transparency in Supply Chains Act 2010, requiring companies to disclose in their annual reports the steps they are taking to eradicate slavery from their supply and product chains and business practices.[87] These submissions point out that the Joint Committee on the Draft Bill took evidence from major businesses expressing support for appropriate legislative measures. They also draw attention to the growing number of academic studies which demonstrate that modern slavery in supply chains affects a number of UK business sectors.[88]

1.85 Since the reasons for this omission from the Bill were not entirely clear from the Government's response to the Joint Committee Report, we asked the Government to clarify whether the Bill does not make provision in relation to supply chains because the Government favours an entirely voluntary approach, or whether its position is that it is not necessary to make provision in the Bill because reporting requirements will soon be in place in any event through imminent changes in EU law.

1.86 The Government replied that its strategy to counter modern slavery in supply chains depends on the combination of the Government's work with the private sector to tackle exploitation in supply chains together with the legislative reporting framework around human rights set out in changes to the Companies Act 2013 (requiring certain listed businesses to include human rights issues in their annual strategic reports) which will be further strengthened in 2016 when an EU Directive on non-financial reporting comes into force.

1.87 In a letter dated 13 October 2014 to members of the Public Bill Committee, the Government said that having considered all the evidence and listened to the debate in Committee it now considers that there is scope "to improve the legislative framework further to encourage businesses to take action". It intends to bring forward Government amendments at Report stage which "will require businesses above a certain size threshold to disclose each year what they have done to ensure that there is no modern slavery in their supply chains." The Minister's letter promises a "world-leading provision".

1.88 Our predecessor Committee considered the question of reporting standards imposed by company law in its inquiry into Business and Human Rights in the 2008-09 Session of the last Parliament, and recommended that the Government consider amending the Companies Act 2006 to undertake an annual human rights impact assessment as part of their business review, in light of the recommendation of the UN Special Rapporteur on Business and Human Rights, Professor John Ruggie, that companies should undertake such an assessment as part of their human rights due diligence.[89] Since that Report, as submissions from NGOs point out, the UN Guiding Principles on Business and Human Rights have been adopted by the UN Human Rights Council. The UN Guiding Principles require companies to conduct 'human rights due diligence' to address their impacts across all their business relationships, which includes their supply chains. In September 2013 the UK Government was the first Government to adopt an Action Plan to implement the UN Guiding Principles.[90]

1.89 WE WELCOME THE GOVERNMENT'S WILLINGNESS TO BRING FORWARD AN AMENDMENT ON THE ISSUE OF SUPPLY CHAINS.[91] THE LATENESS OF THE GOVERNMENT'S AMENDMENT MEANS THAT WE HAVE NOT HAD THE OPPORTUNITY TO SCRUTINISE IT IN DETAIL AGAINST THE EMERGING INTERNATIONAL STANDARDS, BUT THE HOUSE OF LORDS WILL WISH TO DO SO, IN PARTICULAR FOR ITS COMPLIANCE WITH THE RELEVANT PARTS OF THE UN GUIDING PRINCIPLES ON BUSINESS AND HUMAN RIGHTS.

OVERSEAS DOMESTIC WORKERS

1.90 The Joint Committee on the Draft Bill recommended that the Home Office reverse those changes to the Overseas Domestic Worker Visa which were made in 2012.[92] Between 1998 and 2012, visa rules allowed an Overseas Domestic Worker to change employer (but not their sector of work). This scheme was cited by the International Labour Organisation[93] and the UN Special Rapporteur on the Human Rights of Migrants as best practice.[94] The Immigration Rules 2012 removed the right of an Overseas Domestic Worker to change employer. When the new regime was introduced, the Government acknowledged that 'the [overseas domestic worker] routes can at times result in the import of abusive employer/employee relationships to the UK'.[95]

1.91 In response to the recommendation of the Joint Committee on the Draft Bill, the Government outlined the safeguards that exist in the current regime, including the requirements that the employment relationship pre-exists at least 12 months before entry into the UK; that there is strong evidence for the existence of the relationship; that written terms and conditions are agreed between the employer and the worker before entry in the UK; and that information is given by UK authorities to the workers, before they arrive, on their rights and avenues for help while they are in the UK. The Government does not agree with a return to the previous arrangements.[96]

1.92 The Report of the Joint Committee on the Draft Bill set out evidence that it had received which challenged the assumption that such safeguards provide adequate protection.[97] The Centre for Social Justice in its 2013 report, It Happens Here, argues that while the information safeguard exists on paper, the Government has not taken sufficient steps to implement it in practice. It provides evidence to suggest that information letters are not issued in many cases, and where they are issued, contain no information on possible employment rights or on guidance on where information can be found. This report also concluded with a recommendation to restore the ability of domestic workers to change employers.[98] The Joint Committee on the Draft Bill considered that "tying migrant domestic workers to their employer institutionalises their abuse; it is slavery and therefore incongruous with our aim to act decisively to protect the victims of modern slavery."[99]

1.93 We asked the Government to provide its assessment of the compatibility of the current visa regime for overseas domestic workers with its legal obligations to prevent slavery and trafficking.[100] In response, the Government reiterated its position that the Overseas Domestic Worker Visa regime contains sufficient safeguards to protect victims, or potential victims, of slavery and trafficking, and that the current regime is consistent with international obligations.[101]

1.94 We received submissions from Amnesty International (UK) and the Anti-Trafficking Monitoring Group, arguing that evidence shows that the 2012 changes to the visa rules have led to increased abuse of, and reduced help to, overseas domestic workers, and arguing for an amendment to the Bill that would reinstate the protections that were removed in 2012, in particular the ability of the worker to change employer (but not sector).[102] In Public Bill Committee, an amendment adding a new clause to the Bill that would have reversed the 2012 change to the Immigration Rules was defeated on the casting vote of the Chair.

1.95 WE REGARD THE REMOVAL OF THE RIGHT OF AN OVERSEAS DOMESTIC WORKER TO CHANGE EMPLOYER AS A BACKWARD STEP IN THE PROTECTION OF MIGRANT DOMESTIC WORKERS, PARTICULARLY AS THE PRE-2012 REGIME HAD BEEN CITED INTERNATIONALLY AS GOOD PRACTICE. WE RECOMMEND THAT THE BILL BE AMENDED TO REVERSE THE RELEVANT CHANGES TO THE IMMIGRATION RULES AND TO REINSTATE THE PRE-2012 PROTECTIONS IN THE BILL.

GANGMASTERS LICENSING AUTHORITY

1.96 The Gangmasters Licensing Authority (the "GLA") is the Non-Ministerial Departmental Public Body responsible for regulating the supply of workers to parts of the agricultural, horticultural and shellfish industries. In order to operate, employment agencies (described in the Gangmasters (Licensing) Act 2004 as labour providers) working in the relevant sectors have since October 2006 been required to be licensed by the authority.

1.97 The Joint Committee on the Draft Bill recommended that that the Government conduct a review of the GLA, including its powers, remit, funding, sponsoring department, and collaboration with other agencies. The Joint Committee further recommended that such a 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.[103]

1.98 In its response to the Joint Committee on the Draft Bill, the Government outlined that the transfer of GLA sponsorship from DEFRA to the Home Office will improve collaboration with policing agencies for its enforcement activities. The Government's response further stated that the Government agrees that there is scope to review some of the GLA's powers, remit and structures, and that the Home Office is considering the other issues for review raised by the Joint Committee.[104]

1.99 In its briefing on the Bill, the Joseph Rowntree Foundation argues that, as a result of the GLA's effective work in the agricultural, horticultural and shellfish industries,

105

In its report, Forced Labour in the UK, the Foundation further highlights the lack of a labour inspection regime encompassing all industries.[106] In its submission to us, the Foundation recommends extending the remit of the GLA, and accordingly its resources, to cover a wider number of industries where exploitation is known to occur.[107]

1.100 We wrote to the Government to request further information about the outcome of its consideration of the issues recommended for review by the Joint Committee on the Draft Bill.[108] In response, the Government repeated its position that it is continuing to consider the powers and remit of the GLA and that it will keep Parliament informed of any policy changes.[109] WE SUPPORT THE CASE FOR EXTENDING THE REMIT OF THE GANGMASTERS LICENSING AUTHORITY TO COVER OTHER AREAS OF WORK WHERE EVIDENCE SUGGESTS THAT ABUSE AND EXPLOITATION OF WORKERS IS TAKING PLACE, AND WE RECOMMEND THAT THE GOVERNMENT KEEPS PARLIAMENT CLOSELY INFORMED ABOUT THE PROGRESS OF THIS REVIEW. WE ENCOURAGE THE GOVERNMENT TO SHOW GREATER URGENCY ABOUT THE REVIEW THAN IT HAS TO DATE AND RECOMMEND THAT IT REPORTS ON THE OUTCOME OF THE REVIEW BEFORE CONSIDERATION OF THE BILL IS CONCLUDED, SO THAT THE POTENTIAL FUTURE CONTRIBUTION OF THE GANGMASTERS LICENSING AUTHORITY CAN BE PROPERLY CONSIDERED BY PARLIAMENT ALONGSIDE THE MODERN SLAVERY BILL.

DEVOLUTION

1.101 In view of the concerns expressed by the UN Committee on the Rights of the Child about fragmentation and inconsistencies in the approach to modern slavery in the devolved jurisdictions in the UK, we asked how the Government proposes to ensure a consistent, UK-wide response to modern slavery and trafficking, given that the Bill will only extend to England and Wales.

1.102 The Government says that it has worked closely with the Devolved Administrations to tackle modern slavery, and that ministers from each administration are members of the UK Government's Modern Slavery Inter-Departmental Ministerial Group, to ensure a co-ordinated approach. Although the Bill only extends to England and Wales at present, the Government says that it continues to work closely with the Devolved Administrations to assess whether the territorial extent of any provisions in the Bill should be extended during its passage. WE WELCOME THE GOVERNMENT'S AMENDMENTS TO THE BILL AT REPORT STAGE WHICH EXTEND THE ROLE OF THE ANTI-SLAVERY COMMISSIONER FROM BEING FOCUSED ON ENGLAND AND WALES TO HAVING A UK-WIDE REMIT, AND EXTENDING TO THE WHOLE OF THE UK THE BILL'S ENFORCEMENT POWERS IN RELATION TO SHIPS WHERE SLAVERY OR TRAFFICKING IS SUSPECTED.

1.103 We also asked when Child Exploitation On-line Protection ("CEOP") and the National Crime Agency ("NCA") will become fully operational in Northern Ireland.[110] The Government says that it is keen for the NCA to become operational in Northern Ireland, but it accepts that the assistance and support that the Agency can provide in Northern Ireland is less than that available in the rest of the UK. It says that the Northern Ireland Justice Minister is leading discussions to agree the terms on which the NCA can take on its full powers in Northern Ireland. In the meantime, we note the growing concern about the fact that the key agency in countering modern slavery, the National Crime Agency, is still not fully operational in Northern Ireland.[111] WE REITERATE THE NEED FOR A CONSISTENT, UK-WIDE RESPONSE TO MODERN SLAVERY AND TRAFFICKING SO THAT VICTIMS RECEIVE THE SAME PROTECTION AGAINST THESE PRACTICES REGARDLESS OF THE JURISDICTION IN WHICH THEY HAPPEN TO RESIDE.