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"In our view, the existing criminal law offences pertaining to trafficking, the slave trade, false imprisonment and kidnapping are not apt to cover all offences of servitude. In order for the United Kingdom to comply with its obligations under Article 4 ECHR and the ILO, ... dissuasive and directly applicable statutory criminal offences of forced labour and servitude are needed which penalise and permit effective prosecution of those who subject others to abuse and oppression. Without them, the United Kingdom is vulnerable to successful challenges in the European Court of Human Rights. We are aware of two such challenges in the pipeline".

The opinion goes on to look at a number of detailed questions. For example, paragraph 18 of the judgment says:

"These technical problems make it particularly difficult to prosecute all perpetrators of servitude or forced labour, in circumstances where long sub-contracting chains and informal economic sectors are structural factors which play a 'major role in the exploitative employment relationship'. They also make the offence almost impossible to prove".

5.45 pm

On pages 3 and 4 of the opinion the question is asked:

"Does English law contain criminal offences which penalise enforced labour or servitude? ... In our view, there is no offence known to English law of subjecting another to servitude or forced labour which: a. clearly criminalises imposition of forced labour or servitude, in all the circumstances in which Article 4 requires signatory states to provide a remedy; or b. is sufficiently clear and robust to have dissuasive effect".

Without wearying the Committee-I am conscious of the time-let me end by quoting the conclusion from counsel's opinion:

"We do not imagine that any politician, of any party, would consider it unnecessary to have in place penal legislation which complies with the United Kingdom's obligations under Article 4 ECHR, and which provides redress to victims, and penalties for perpetrators of so grave a crime of abuse and oppression. The issue is only whether it is necessary for such an offence to be specifically created, or whether existing provisions of the criminal law already cover all circumstances of servitude and forced labour.

For the reasons set out above, we do not consider that the existing provisions of the English criminal law provide effective protection and penalties for servitude and forced labour. The introduction of such offences is necessary, both to protect the victims of serious abusive crime, and in order to avoid findings by the ECtHR against the United Kingdom of violations of Article 4 ECHR".

My noble friend's admirable amendment seeks to plug that gap. I hope that the Minister will feel able to respond positively to the persuasive arguments which he has already heard and which no doubt other noble Lords will wish to add to.

Lord Thomas of Gresford: Listening to the debate, I was taken back over 20 years to Hong Kong, where I was involved with problems arising with the Philippine amahs, or maids, who were and still are numerous in that territory, which was then a colony. The Hong Kong Government introduced regulations which made it impossible for Philippine amahs to move from one job to another within Hong Kong; they had to go back to the Philippines. That put a weapon in the hands of employers, which was exploited.

We brought the cases of six of them, who were abused in the same sort of ways that we have heard quoted by previous speakers, to the Privy Council and, although we were not able to set aside the regulations which had been introduced, simply bringing the matters

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forward, bringing them to court and into the light of day caused a significant amelioration of the conditions under which Philippine maids were employed. Of course, they had a number of advantages. First, most if not all of them spoke English; secondly, they were so numerous-anyone who has been in Hong Kong on a Sunday will no doubt confirm that-that there was a great deal of support all round; and, thirdly, they had a trade union. Therefore, it was possible for them to take these steps.

I contrast that with the problems that have been outlined today. As has been said, it is a fairly new phenomenon for underpaid, exploited people in conditions of virtual servitude to be brought to this country, but it is happening. It is happening to people who do not have a large community of fellow nationals to whom they can turn. Many of them do not speak English; they are certainly not unionised; and it is difficult to imagine that they would have ready access to the necessary legal remedies that might be open to them. It is distressing to learn that, if these people go to the police, they are turned away as there are no specific offences which cover their situation.

False imprisonment is such a rare criminal offence that not many police forces are going to get involved in that sort of investigation, even if they can understand precisely what the claims are about. Therefore, I wholly support these amendments and the organisations behind them-Anti-Slavery International and Liberty-and I commend the noble Baroness, Lady Young, for outlining these problems so fully. I assure her that we on these Benches will give full support to these amendments.

Lord Lester of Herne Hill: Perhaps I may make it quite clear, since I might be misunderstood, that when I asked the question I did of the noble and learned Baroness, Lady Butler-Sloss, it was not because I was in any way not enthusiastic about creating these new offences-I am. However, I also think that it will be necessary to use the civil law in aid of the criminal law. Although I entirely understand the problem that if people are in slavery, they will not be in a position themselves to invoke the civil law protection, there are already statutes such as the one on protection against harassment, the common law on false imprisonment and so on. We have found with female genital mutilation that we created the crime but there has not been a single prosecution, for reasons that are fairly obvious. I hope that we will create new offences here. However, in order that we can translate those into something that gives effective protection, it cannot just be left to the police service to do the enforcement. We will need to do something; not the same as with forced marriage-of course not, it is a different problem. But there will be a need to think about employing civil protection and not just relying on criminal sanctions, with the criminal burden of proof and all the difficulty about doing so. I am enthusiastic about the amendment tabled by the noble Baroness, Lady Young, but I think that we may have to go further if we are to make it more than simply another crime on the statue book.

Lord Mackay of Clashfern: I, too, support these amendments. They are sufficiently clearly stated for it to be likely that where anything of the kind is brought

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to the attention of the police, the police will take action. It is also true that if these are made statutory offences, there will be a power in the court to give statutory compensation under the criminal law. That might be an effective remedy because I can see that these people might not wish to involve themselves in civil litigation, but if they can be compensated immediately on the offence being established to a sufficient extent, that might meet the case. I add my congratulations to the noble Baronesses. This is extremely important, and fortunately it is relatively easy to give effect to what they propose.

The Earl of Sandwich: I add my two minutes' worth of support for my noble friend's amendment as a former council member of Anti-Slavery International and having seen the legal opinion of Matrix Chambers. I thank my noble friend Lord Alton-who, coming from Liverpool, always sets the debate in a historical context-for setting out the case so clearly and powerfully. That saves me from having to speak for very long.

We are discussing the domestic migrant worker whose passport is taken, who is certainly under financial pressure, who is kept for long hours indoors and who may be subjected to considerable violence. We know from the expert voluntary organisations that there is substantial evidence that these practices are still going on in the UK, and may even be condoned by the vagueness of our present law. It seems astonishing that, according to the opinion we have had, the present law is insufficiently robust to protect the victims of the crime. The widespread public condemnation of trafficking following the mass arrest of young women and children from eastern Europe and the terrible Morecambe Bay disaster led to a spate of legislation in which many of us played a part, and the Government have responded. Some of the cases that we hear of forced labour and debt-bonded labour in this country remind me of conditions in north-east Brazil and come very close to modern slavery.

We have to thank the Parliamentary Assembly of the Council of Europe for making two recommendations on domestic slavery that have already been mentioned. In a case that was brought to the European Court, France was held to be in breach of Article 4 in failing to provide specific protection to a young Togolese girl. This leaves the UK very exposed. It seems clear that, in the terms of the ECHR and the rulings of the European Court, there is no specific legislation here to look after these people.

I draw only one example from the opinion of Matrix Chambers, which my noble friend has mentioned. Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 makes trafficking unlawful, but the Act merely establishes the facts; it does not enable the prosecution to prove the elements of the offence to be beyond reasonable doubt. I hope the Minister will address this point, because the complexities of trafficking make the offence almost impossible to prove. I know that the Minister, with his experience, has had time to study this opinion, and I recognise that the Bill may not be the best vehicle for these amendments, but will the Government at least accept that there is a weakness in the present law that will have to be addressed if these criminals are to be caught?



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Lord Kingsland: The noble Baroness is confident that she has identified loopholes in the law that allow people to be exploited in ways that amount to slavery or forced labour, and she has spoken movingly and eloquently about the consequences. The campaign group Liberty has produced a brief in support of her contentions and has obtained an opinion from Matrix Chambers, as we have learnt, which indicates that the current laws are deficient.

At this stage, our position is to support the principle behind the noble Baroness's amendments and to examine in detail the Government's response. The Minister and his team in the department will undoubtedly have brought their considerable bank of expertise to bear on this matter, and we will listen to what the Minister says with great interest.

We prefer, where possible, to make proper use of existing laws rather than push for the creation of new ones. However, if it becomes clear that there needs to be new legislation to protect those who are currently failed by the law, we would support such a measure or measures. For that reason, I urge the noble Baroness, Lady Young, and her supporters not to push for a Division at this stage but to allow us to reflect, having heard the Minister, and return to this matter on Report.

Lord Bach: The Committee is very grateful to the noble Baroness, Lady Young of Hornsey, and her supporters for raising this issue in this way in Committee. It has been a very interesting debate and some very interesting points have been made, leaving the Government with much to think about. It would be asking a little too much of the Government to say today that we are persuaded, because the truth is that we are not yet. However, the body of supporters from around the Committee, not least the noble and learned Lord, Lord Mackay of Clashfern, is impressive by any standards. The issues that have been raised are very serious, as the noble Lord, Lord Kingsland, was just saying. Knowing what to do about them may be a little more difficult.

Of course we all agree that servitude and forced labour have no place in our society. It has been more than 200 years since the abolition of the slave trade and more than 170 years since the abolition of slavery in the British Empire. But, sadly, that does not mean that the world is free of slavery in all its ghastly modern manifestations. The inhumane treatment of certain individuals occurs and it is right that we should take this matter seriously. These amendments are not limited to any specific group, but one of the main causes for concern is in respect of migrant workers who may be particularly vulnerable to exploitation. As populations become more mobile, the prevalence of these offences may well increase, which is a matter of concern.

However, we are not convinced that the suggested new offences are necessary. We have extensive laws that we believe already provide everyone with practical protections and which cover all the behaviour that these amendments seek to make criminal. Trafficking people for exploitation is already a serious criminal offence under Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, and here I should say that I am grateful to the noble and learned Baroness, Lady Butler-Sloss, for what she said about

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the Government's actions in this field. Exploitation for the purposes of the Section 4 offence explicitly includes behaviour that contravenes Article 4. Similarly, trafficking for sexual exploitation under the Sexual Offences Act 2003 is a serious criminal offence. Anyone found to be exploiting a person who has been trafficked may also be complicit in that trafficking offence. Moreover, we should not forget the common law offence of false imprisonment for those offenders who prevent a victim's freedom of movement.

Some individuals may face sexual or other violence, or threats of violence, but there are already comprehensive measures under the current law for dealing with such threats and violence in a wide range of circumstances. Not least, an employer who causes a migrant worker to suffer psychological harm could be open to an assault charge in the same way as he could be for physical violence. The maximum sentence depends on the nature of the violence or threats, but it can be severe if the level of violence is severe. Of course, it follows that if an employer confiscates a passport or uses deception, he or she may well have committed theft or fraud. There are also sentencing guidelines which lay down clearly that the court must take into account aggravating factors. Such factors include the vulnerability of the victim and the fact that the offender is in a position of trust. If the offender is operating in a group or a gang, as he might often be in cases of trafficking, that in itself is an aggravating factor. I mention also employment legislation designed to protect all workers, including migrant workers. As the Committee knows, the legislation covers maximum working hours, minimum wages, minimum age limits for children in employment and health and safety. All these may well be contravened if a person is held in servitude or required to undertake forced or compulsory labour.

The amendments rightly seek to provide serious penalties for these serious crimes, but our argument remains that the existing criminal law already allows for appropriate charges to be brought and appropriate penalties to be imposed for this behaviour.

6 pm

Lord Lester of Herne Hill: I wonder whether, as a way of informing noble Lords between now and Report, it would be possible to look at Ken MacDonald's opinion where he goes through with great care all the reasons why he and Helen Mountfield consider that the existing criminal law is not sufficient. Between now and October, could the noble Lord respond to that opinion in a letter to the noble Baroness, Lady Young, and others who have taken part in the debate in order that we can see whether, as he suggests, the law is sufficient or not? It is a question of fact in the end, but what is now being said by the Minister does not, for perfectly understandable reasons, actually meet the points Ken MacDonald is making. Perhaps this would be a sensible way of informing the House before we come back to the issue, or am I being premature in making the suggestion?

Lord Bach: As always, the noble Lord has come up with a good suggestion. This opinion, which has yesterday's date on it, was kindly sent to my officials and I shall say something about it. Of course, it

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deserves a longer consideration and a response and I shall do my best to make sure that that happens. It will obviously be an important part of the debate from now on.

I do not need to go through the maximum sentences for assaults and other criminal offences, but we know that offences of false imprisonment can carry a maximum penalty of life and often attract sentences of eight years or more. I remind the Committee that trafficking for exploitation carries a maximum penalty of 14 years.

I come now to one of the main parts of this problem. Whether to prosecute in each case, and what charges are most appropriate, are rightly matters for the police and the CPS. We have taken informal soundings from the Association of Chief Police Officers to see if it is aware of any difficulties in charging individuals who are involved in exploiting the vulnerable in this way. We understand that the North Yorkshire Police has commissioned Project Acumen, overseen by its chief constable, which will review and analyse the victims of sexual and labour exploitation. It will also analyse the scope and nature of offenders and criminal groups involved in organised immigration crime and trafficking in human beings. This will include, first, identification of the main market sectors affected; secondly, an initial appraisal of the likely significance of the main ethnicities and nationalities involved as victims and offenders; and, thirdly, the identification of any key regional variances in either markets, victims or offenders. The final report is due to be published by the end of February next year and we believe the findings will be helpful.

We shall continue, of course, a dialogue with the police to explore what measures might be useful in tackling this problem. I venture to think that one of the issues behind the amendment is a concern that in practice, even though offences may have been committed, the police, for whatever reason-and there may be good reasons as well as bad reasons-do not feel able always to bring a prosecution. We certainly need to look at that more closely during the summer.

I now say a word about our obligations under Article 4, which provides that no one shall be held in slavery or servitude or be required to perform forced or compulsory labour. It is implicit from the case law that if existing criminal laws provide practical and effective protection for the rights set out in Article 4, then the state concerned will have discharged its obligations. As a Government, we would of course have serious concerns if we thought that we were not discharging our obligations under an instrument as important as the ECHR. We enacted the Human Rights Act to give further effect to convention rights in the UK and to ensure that those rights could be enforced in our domestic courts. I hope the Committee will accept that we take our international obligations seriously. We feel that we have discharged our obligations under the ECHR

Let me offer an initial thought on the important opinion of the two counsel referred to. It has been suggested that a new offence is necessary in order to satisfy our Article 4 obligations but, at present and on

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first reading, we do not agree. Neither the ECHR, nor the ILO conventions, nor case law interpreting the ECHR, to which the two distinguished barristers referred in their advice, requires a specific forced labour or servitude offence. Rather, what is required is for the state to provide "practical and effective protection" of a claimant's rights by ensuring, for example, that there is effective deterrence by way of criminal law. As I have already argued, we think that there is effective deterrence through a range of existing criminal offences. Deterrence may also, of course, be in the form of successful prosecutions, which we have, with sufficient penalties, which there are. If we were to enact a bespoke offence as the amendment seeks, it does not follow that any prosecution for such an offence would be successful. Alternatively, of course, a prosecution might not be brought, in which case claimants' rights are still not protected.

That is all that I want to say today on this subject. I make it clear that I cannot make any promise, or even a hint of one, that if the matter is withdrawn today, which I invite the noble Baroness to do, I will be able to say anything very different if it is raised again on Report.

Baroness Butler-Sloss: Will the Minister take into account who has written this opinion-that is, the former Director of Public Prosecutions, who is more likely than most to know what the law is, in the sense of what could be prosecuted? Would he consider it appropriate to show that opinion to the present Director of Public Prosecutions, Mr Keir Starmer, to see whether he shares the view of his predecessor?

Lord Bach: I am very conscious of the author of the opinion, for whom I personally have a high regard, as no doubt the noble and learned Baroness does too. I see no reason why-having first asked permission of my noble and learned friend the Attorney-General, as she would expect me to do-the opinion should not be shown to the Director of Public Prosecutions.

I appreciate that my answer will not be satisfactory to the supporters of the noble Baroness's amendments. I do not hold out great hopes that, if we come back to this in the autumn, I will be able to give any ground, let alone major ground. I will just say that during the next few months we will consider carefully everything that has been said in this debate, the opinion and other matters that come to our attention, particularly with regard to police activity and behaviour in this field. If we do come back to this in the autumn, I look forward to that debate as well. I thank the noble Baroness, Lady Young, and her supporters for the meeting that we had last week during which I, certainly, learnt a lot.

Lord Alton of Liverpool: I wonder if could press the Minister about the consultation that he says he will have over the summer. He gave the example of the actions of the chief constable of Yorkshire in promoting a project there to look at the problems of people who might be caught up in servitude. Will he extend that consultation to speak to some of the other chief constables as well to find out what their feelings are so that, when we come back to consider this matter again

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on Report, we will be comprehensively advised of the views not only of the former Director of Public Prosecutions and maybe the current one-an eminently sensible idea-but also of police officers? Can the Minister's own officials also look at an evaluation of the number of times that cases have been brought forward or considered and not taken forward for prosecution because the law has what we believe are these gaps in it at present?

Lord Bach: I will do as much of that as I can. I cannot promise that there will be an overall full-scale review of this issue between now and then, but I will certainly continue the work that we are doing on it.


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