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

Conclusions and recommendations



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)


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)


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)


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)


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)


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)


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)


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)


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)



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)


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)


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)


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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Prepared 13 November 2014