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Baroness Anelay of St Johns moved Amendment No. 14:
- Page 5, line 22, at end insert—
The noble Baroness said: I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support. I have tabled this probing amendment in response to a concern raised by the Refugee Children's Consortium in its Second Reading briefing. I referred to it briefly at Second Reading. The consortium warmly welcomes Clause 4, as do we on these Benches. The clause introduces a new offence of trafficking for exploitation. The Government amended the clause in another place to seek to address the consortium's concerns that the definition of exploitation did not provide sufficient protection for children, because it dealt only with the use of violence or deception. Not all children who are exploited are deceived. They may not understand what is being done to them.
The Government's new paragraph 4(4)(d), which has not yet been debated, improves the clause, which still appears to allow some people who traffic children and families to escape prosecution. I am sure that no one would wish that. It is contrary to the consortium's wishes, certainly to my wishes, and—the consortium believes—the wishes of the Government.
The references to "request or inducement" in subsection (4)(d), and the attempt to produce an exhaustive list of positions of vulnerability, still appear to the consortium not to cover all forms of exploitation that involve an abuse of power or of a position of vulnerability. That is the wording adopted in the United Nations Palermo Protocol on trafficking.
My amendment would make the clause reflect the international definition of trafficking as contained in the Palermo Protocol, so that all recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation should be penalised as trafficking whatever the particular methods used. I hope that the Minister will be able to
Lord Avebury: My Lords, it was only a couple of weeks ago that we dealt with the need for greater support for the victims of trafficking, following a Question raised by the noble Lord, Lord Hylton. The subject has come up a number of times since the debates on the previous Bill in 2002.
It is generally acknowledged that trafficking in human beings is an evil that is growing. We also warmly welcome Clause 4, which makes it an offence for a person to arrange travel to, or within, the UK for another, intending to exploit that other person or believing that someone else is likely to exploit her.
The definition of exploitation is set out in subsection (4), and it was improved on Report in another place—as the noble Baroness has explained—by adding the case involving a person who,
The clause now covers some, but not all, of the cases of exploitation dealt with in the Palermo Protocol, as the noble Baroness, Lady Anelay, has explained. That came into force in December 2003. No doubt we are signatories. Can the noble Baroness confirm that we are signed up to both the Palermo Protocol and its parent convention?
If the wording of Clause 4 is compared with the Palermo Protocol, there is a lot missing. Article 3 of the Palermo Protocol defines "trafficking in persons" to include the,
We ought not to narrow the circumstances in which power may be abused, or the victim may be vulnerable, to the particular situations which were enumerated in the clause as amended. As the noble Baroness remarked, Clause 4(4)(d) was never discussed in another place, so if we agree to the amendment it will give the opportunity for honourable Members in another place to have a discussion that they missed because of shortage of time.
Relationships between human beings are infinitely variable, and we ought not to attempt to define the cases where a person has power over his victim, or the victim is vulnerable. The obvious example—where the trafficker has some hold over the family in the country of origin—has already been mentioned in previous debates.
I was struck by the example given in a paper provided by the Refugee Children's Consortium of the case of Victoria Climbie, who, they said, could be seen
A person who brings a child into this country for the purposes of gain but who has not requested or induced the child to do anything has not committed an offence under this clause, no matter how atrociously he may treat the child.
The Minister may say that if the authorities had known how that child was being treated, her guardians would have been prosecuted for other offences. It is possible to imagine situations where the conduct of a guardian fell short of physical ill treatment, but would constitute exploitation in the ordinary meaning of the word. For instance, a child might be made to do an excessive amount of domestic work, and the guardian might say that it was normal in her community. I hope that the noble Baroness will agree to this amendment.
Lord Monson: My Lords, I am glad that this is only a probing amendment, because it seems to me extremely widely drawn.
The noble Baroness, Lady Anelay, is understandably concerned to protect children. But as I interpret the clause—although I am open to correction—it is not confined to children but also includes adults of all ages.
Take, for example, the phrase:
Similarly, consider the phrase "a position of vulnerability". However confident, strong and self-assured individuals may be, we can all in certain circumstances be in a position of vulnerability. As it stands, the amendment is far too vague and widely drawn. But it is a probing amendment and perhaps it can be tightened up next time round.
Baroness Carnegy of Lour: My Lords, the amendment has to be understood in the precise context of the clause.
The Refugee Children's Consortium has a case in this regard. It is anxious that all sorts of exploitation of children should be covered. Subsection (4)(d) defines exploitation as follows: a person is exploited if,
The Lord Bishop of Chelmsford: My Lords, I am glad that we have had this probing amendment, as it gives us the opportunity to comment on the clause as a whole.
I was a child in the years of the black market and rationing after the war. Experience shows that people are most likely to be abused in these ways if the system is too tight. If there is not a transparency, fairness and openness about it—given the disordered world that we live in and some of the countries from which these people—it is easy for systems to be set up and people to be abused. We then need clauses of this sort to put things into law that all of us find to be wholly and totally unacceptable. But if we want to stop the practice, we have to ask whether we making the system so tight that we are constantly subjecting people to such possibilities.
Baroness Scotland of Asthal: My Lords, the right reverend Prelate the Bishop of Chelmsford asks if we are making it too tight; clearly, we do not believe that we are. But this matter stays in our minds when trying to decide whether the rules that we make are proportionate.
I understand that the noble Baroness's amendment is a probing one. If it were not, I would have to agree with the noble Lord, Lord Monson, because subsection (4)(d) has been drafted carefully to ensure that only cases where there is true exploitation are caught by the provision. The amendment of the noble Baroness is drawn much more widely and would, we believe, include those other than children who are described as vulnerable. However, I understood that the noble Baroness had drafted the amendment to allow us to have a discussion, so I have no intention of going through it and identifying why we think it does not match.
Amendment No. 14 would amend Clause 4 to provide that a person is exploited if he is subjected to an abuse of power or is in a position of vulnerability. I understand the mischief to which that is directed. I say to the noble Baroness, I hope by way of reassurance, that we think that mischief is caught by subsection (4)(d). In saying that, let me make it clear that the Government are absolutely committed to tackling human trafficking in all its forms. The noble Baroness is absolutely right to say that we are at one in that purpose.
Noble Lords will be aware of the offence of trafficking for prostitution in Section 145 of the Nationality, Immigration and Asylum Act 2002 and the more comprehensive offences covering trafficking for sexual exploitation included in the Sexual Offences Act 2003. The new offences of trafficking people for exploitation in Clause 4 adds to these other offences to provide a comprehensive legislative response to the crime of human trafficking. We are therefore anxious
This is the sort of scenario at which the amendment is aimed, and we agree that the offences should cover this situation. However, we do not consider that an amendment is necessary to achieve this. We moved an amendment on Report in the other place to provide protection for vulnerable people, in Clause 4(4)(d), to which the noble Baroness, Lady Carnegy, directed our attention. That now provides that a person is exploited if he is requested or induced to do something, having been chosen on the grounds that he is ill, disabled, young or related to a person, in circumstances where a person without the illness, disability, youth or family relationship would be likely to refuse or resist. We consider that this gives the appropriate level of protection to vulnerable people in the way that the noble Baroness seeks.
I hope that this explanation of the effect of the amendment already made to Clause 4 is sufficient to reassure noble Lords that the offence will cover those who prey on the vulnerable, and that the amendment can be withdrawn. We do not believe that they would have to do anything more than that which is set out in subsection (4)(d). We think that that provision catches the very people whom the noble Baroness would want to be caught by the provision relating to vulnerability.
"(e) he is subjected to an abuse of power, or
(f) he is in a position of vulnerability"
"is mentally or physically ill or disabled . . . young, or . . . has a family relationship",
and who has complied with the request to do something, but who would have been likely to refuse if she had not been such a person.
"recruitment, transportation, transfer, harbouring or receipt of persons",
by means that include,
"the abuse of power or of a position or vulnerability",
as in the noble Baroness's amendment.
6.15 p.m.
"he is subjected to an abuse of power".
"Abuse of power" is not qualified in any way. There can be extremely minor abuses of power, such as when police stop a motorist on the spurious grounds that his or her car has mud on the number plate. The motorist has therefore committed a moving traffic offence, and that gives the police a legitimate excuse to breathalyse the driver. There can also be gross abuses of power, and there is no need to give examples of those.
"he is requested or induced to undertake any activity, having been chosen as the subject of the request or inducement on the grounds that"—
as is stated in subsection (4)(d)(ii)—
"a person without the . . . youth . . . would be likely to refuse the request or resist the inducement".
The consortium says that some children—many children, probably—will not realise that they are requested or induced to do anything. As my noble
friend said, they will not understand what is happening to them. That is why they want this addition to the clause. I do not think that it is too general in that context. It is a good amendment and the Government should contemplate accepting it.
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