Conclusions and recommendations
MODERN SLAVERY
BILL
BACKGROUND
1. We welcome the Bill which is, as the Government's
human rights memorandum rightly claims, a substantial human rights
enhancing measure. (Paragraph 1.5)
INFORMATION PROVIDED
BY THE
GOVERNMENT
2. 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. (Paragraph 1.9)
OFFENCES (PART
1)
3. 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
(Paragraph 1.18)
4. 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. (Paragraph 1.24)
5. 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. (Paragraph 1.32)
PREVENTION ORDERS
(PART 2)
6. 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. (Paragraph 1.38)
7. 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.
(Paragraph 1.42)
ANTI-SLAVERY
COMMISSIONER (PART
3)
8. We welcome in principle the creation of the
office of Anti-slavery Commissioner as a potentially significant
human rights enhancing measure (Paragraph 1.44)
9. 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. (Paragraph
1.46)
10. 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.
(Paragraph 1.49)
11. 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. (Paragraph 1.51)
12. Given the Bill's important enhancement of
human rights, we were surprised and disappointed by the Government's
statement at it does not sees 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. (Paragraph
1.55)
13. 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. (Paragraph 1.56)
PROTECTION OF
VICTIMS (PART
4)
14. 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. (Paragraph 1.58)
15. 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.
(Paragraph 1.58)
16. 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.
(Paragraph 1.59)
17. 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.
(Paragraph 1.65)
18. 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. (Paragraph 1.66)
19. 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. (Paragraph 1.70)
20. 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. (Paragraph 1.71)
21. 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 (Paragraph 1.73)
22. 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. (Paragraph
1.74)
23. We welcome the statutory presumption of age
as a positive measure enhancing the protection of child victims.
(Paragraph 1.75)
24. 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 (Paragraph 1.78)
25. 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.
(Paragraph 1.82)
SUPPLY CHAINS
26. We welcome the Government's willingness to
bring forward an amendment on the issue of supply chains. 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. (Paragraph
1.89)
OVERSEAS DOMESTIC
WORKERS
27. 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. (Paragraph 1.95)
GANGMASTERS LICENSING
AUTHORITY
28. 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. (Paragraph 1.100)
29. 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. (Paragraph 1.102)
30. 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. (Paragraph 1.103)
SOCIAL ACTION,
RESPONSIBILITY AND
HEROISM BILL
INFORMATION PROVIDED
BY THE
DEPARTMENT
31. We commend the department for acting in accordance
with our recommended best practice in the information it has provided
to assist us in our scrutiny of the Bill's human rights compatibility.
(Paragraph 2.4)
SIGNIFICANT HUMAN
RIGHTS ISSUES
32. It now appears to be clear, from the Government's
response to our questions, that different parts of the Bill have
different purposes. Clauses 2 and 4 are intended to send a signal
designed to counter a public perception about the current law,
while clause 3 is intended to change the substantive law. We
consider below the strength of the evidence that exists to demonstrate
the need for legislation introduced for these two purposes. As
we have previously commented in legislative scrutiny Reports,
we doubt whether merely sending a signal, rather than changing
the substantive law, is an appropriate reason for legislating,
unless there is clear evidence that the law is being misinterpreted
and therefore misapplied in a way which undermines the purpose
of the law in question (Paragraph 2.21)
EVIDENCE
33. We have considered carefully the strength
of the evidence base showing that the specific risk of legal liability,
as opposed to risk generally, is a reason why people do not volunteer,
and we have found it weak. The evidence relied on by the Government
as demonstrating a public perception that volunteering carried
too great a risk of legal liability is almost entirely anecdotal,
and we do not consider such evidence to be a sound basis for legislating.
(Paragraph 2.26)
34. We do not consider that the Government has
demonstrated by evidence that courts sometimes pay insufficient
regard to the matters set out in clauses 2 to 4 of the Bill which
makes it necessary to take the unusual step of introducing legislation
directing them to have regard to those matters when carrying out
their judicial function of adjudicating in individual cases.
Even were we satisfied that such evidence exists, we would doubt
the appropriateness of directing the courts, in mandatory language,
to have regard to certain factors when carrying out their judicial
function, rather than leaving the matter to their discretion,
for the same reasons we gave in our Reports on the Government's
proposed reforms to judicial review in Part 4 of the Criminal
Justice and Courts Bill. (Paragraph 2.32)
SCOPE OF
APPLICATION
35. To the extent that clause 3 of the Bill will
lead to some health and safety cases against employers being decided
differently, we do not consider that the Government has demonstrated
the need to change the law to restrict employees' right of access
to court for personal injury claims in the workplace. (Paragraph
2.39)
36. We draw to Parliament's attention the Government's
acknowledgment that the Bill is drafted sufficiently widely to
apply to claims brought not only against volunteers but against
public authorities. (Paragraph 2.41)
37. We do not share the Government's view that
the Bill will not apply to actions for breach of the duty to act
compatibly with Convention rights under s. 6(1) of the Human Rights
Act 1998, where the claim is for a breach of a public authority's
positive obligation to take steps to protect Convention rights.
While the general interpretive obligation in s. 3 of the Human
Rights Act should prevent the new Act from being interpreted and
applied so as to prevent damages being awarded where required
by the Convention, the breadth of the wording of the Bill gives
rise to unnecessary uncertainty about the effect of the Bill on
the liability of public authorities for failure to take steps
to protect Convention rights. (Paragraph 2.45)
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