In this context, protecting the rights of the defendant is important. We have sought to draft these provisions to provide these protections and reflect the need to protect potential victims and remove the risk of harm to them, which is paramount. Although the proceedings by which these orders are obtained are civil proceedings, I put on record that the high burden of proof which applies by virtue of relevant case law in this area ensures that the threshold must in any event be akin to the criminal standard, as my noble friend said. This is the position in respect of existing orders under the Sexual Offences Act 2003, which have been used effectively for more than 10 years, and the new sexual harm prevention order and sexual risk order, and is therefore very well established. For these reasons, we do not believe that this amendment is necessary. Courts and practitioners are familiar with the existing evidential test. Departing from the established approach for these orders could cause uncertainty among practitioners and the courts, which may well reduce their effectiveness. There could also be a perception that, by expressly including a different and more rigid test in the Bill, we want these orders to be judged by a different standard from that applicable to the other orders, which would call into question why different approaches are taken in areas notwithstanding the similarities between them.

Under the system I have described, the court has flexibility in determining the standard to be applied and can take into account and balance all the circumstances of the case—for example, the seriousness of the risk posed by the defendant, the degree of relevance of each fact which must be proved by the applicant and the effect on the defendant of making the order. In the sex offending context, the courts have been able to carry out this exercise for many years in a way which protects the rights of both defendants and those persons at risk. Prescribing the standard as the criminal standard would deprive the courts of this necessary flexibility.

My noble friend made a comparison with the anti-social behaviour regime, to which she made a similar amendment. I think your Lordships will agree that, while anti-social behaviour can cause harm to both individuals and communities, it is not as serious as the horrific abuses of modern slavery. That is why we have modelled these orders on those which tackle sex offenders. Those orders do not prescribe the criminal standard of proof in legislation and were recently approved by Parliament.

I assure the Committee that there are several further safeguards as well as the standard of proof to ensure these orders are used appropriately. The type of harm to be prevented is specified and relates to very serious offences. Statutory guidance will be issued, which will describe risk factors and categories of restriction which may be contained in an order. In determining what measures are necessary, the court must have regard to the rights of both the person at risk and the defendant under the European Convention on Human Rights.

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The Government will also ensure that defendants have the same access to legal aid as is applicable to other civil order regimes.

Legal aid was raised on an earlier amendment. Individuals concerned will have the right to appeal the making, variation or extension of an order and apply to vary or discharge an order if circumstances change. Given that clarification, the substantial safeguards to ensure appropriate use of the orders and my assurance that we shall, of course, continue to reflect on the valuable work of the Joint Committee, I thank all noble Lords who have spoken on this amendment but hope that my noble friend will feel able to withdraw it.

Baroness Hamwee: My Lords, I was not surprised by anything that my noble friend has just said; her reply was very much what I anticipated. However, given both the JCHR’s comments and the recent experience with another order considered by your Lordships, I felt that it was appropriate to flesh out the Government’s reasons. I entirely understand the point about case law and comparisons.

The one thing that troubled me about her reply, if I may say so, was the suggestion that because these offences are more serious than anti-social behaviour—I agree with that—it is therefore unnecessary to be clear about the standard of proof, in the way we were with anti-social behaviour. I hope that that does not in any way detract from what my noble friend said about the standard of proof being equivalent—her words were, “akin to”; but I understand that to mean “equivalent”—to the criminal standard of proof. I do not think that that was what was meant but it sounded a bit like it in one paragraph in the middle of her reply. If it is necessary to confirm that after today, I would be happy for her to do so.

Baroness Garden of Frognal: My noble friend is quite right. It was not the intention to imply that they were in any way worthy of less serious measures.

Baroness Hamwee: Then I beg leave to withdraw the amendment.

Amendment 37 withdrawn.

Amendment 38

Moved by Baroness Hamwee

38: Clause 14, page 10, line 14, at end insert “and notwithstanding the repeal of the offence following the conviction or finding”

Baroness Hamwee: My Lords, the defendant may have been convicted and served a sentence but this seems to be another sanction. I know that if one looks at this through a different lens, the focus is on the victim. However, I thought it appropriate to table the amendment and raise some questions about the prevention orders because, as I say, this is, in effect, another sanction for the defendant for a sentence that has been served.

Clause 14(5) relates to the list of offences that can prompt these orders, including many offences that have already been repealed or which will be repealed

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when the Bill is enacted. The purpose of my amendment is quickly to probe whether it is the case that if the legislation creating such an offence has been repealed the orders can, following the conviction or finding of the court, or whoever makes the finding, nevertheless be applied. Are the prevention orders exactly the same as those which apply under current legislation? I am not sure whether I should use the word “retrospectivity”, but will they be prompted in the same way as they would be by offences under legislation that is no longer in force?

Thinking about this from the point of view of the potential subject of an order, I assume that there will be no particular arrangements regarding court proceedings. I am thinking of potential publicity. I assume that this will be in open court and there will be no anonymity for a defendant who may not have been convicted of anything to prompt the application for an order in court. I beg to move.

5.15 pm

Baroness Garden of Frognal: My Lords, I thank my noble friend for moving the amendment, which aims to clarify this part of the Bill. Slavery and trafficking prevention orders are available in respect of individuals who have been convicted of a slavery or human trafficking offence and who pose a risk of causing harm by the further commission of such offences, which makes it necessary to obtain an order to protect the public from that harm. The provisions already have retrospective effect to the extent that the offence, on the basis of which a person can become subject to a slavery and trafficking prevention order, may have been committed before the coming into force of the Bill. As my noble friend has pointed out, this is reflected in the list of relevant offences in Schedule 1. It is important that these measures can be sought in relation to all relevant offenders and that we do not leave a gap in the availability of the new orders in respect of individuals who have been convicted of old offences or offences replaced by those in the Bill. The offences listed in Schedule 1 include old offences, as well as offences that will be repealed by the Bill, but which nevertheless relate to similar activities as their modern equivalents to ensure that the orders can be sought in respect of all offenders who pose a risk to the public, regardless of whether that offence is still on the statute book.

I understand that there may be concerns that defendants are not penalised again having already received, and possibly served, sentences from the court, but this is not novel. There is similar provision in the Sexual Offences Act 2003 and the Anti-social Behaviour, Crime and Policing Act 2014 in respect of the new orders dealing with sexual harm. While this does not amount to formal retrospection, the provisions have retrospective effect in that conduct committed prior to commencement will carry potential consequences that the person concerned may not reasonably have expected.

Moreover, as slavery and trafficking prevention orders are intended to be civil, preventive measures and not a punishment, Article 7 of the European Convention on Human Rights, which prohibits the retrospective application of a penalty, would not apply. This is supported by the approach taken by the courts to ASBOs and other similar civil orders where the courts

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have been satisfied that such orders are neither a conviction nor a punishment. In other words, these measures do not involve the imposition of a penalty.

My noble friend asked whether these orders would take place in open court. I can assure her that they would be in open court. The general public interest in the law not being changed retrospectively is firmly outweighed by the need to be able to tackle those involved in slavery or human trafficking as soon as these provisions come into force. With those assurances, I hope that my noble friend will feel free to withdraw her amendment.

Baroness Hamwee: I am grateful for that. I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Clause 14 agreed.

Schedule 1 agreed.

Clause 15: Slavery and trafficking prevention orders on application

Amendment 39

Moved by Baroness Hamwee

39: Clause 15, page 10, line 19, leave out paragraph (b)

Baroness Hamwee: My Lords, this may be the longest grouping of amendments, but it may be one of the shortest debates. I note that the noble Lord and the noble Baroness opposite also have an amendment in the group. Amendment 39 and the other amendments in my name ask what place an immigration officer has, or should have, in instigating an application for a slavery and trafficking prevention order or a risk order. They are also to ask, if an immigration officer has this power, how it will work in practice. Are we talking about a suspicion at the border? If that is so, would it not be appropriate for the immigration officer to bring in the police, rather than for the immigration officer to start on this line of applying for one of these orders, even though, as the noble Baroness has said, it does not criminalise? Would the immigration officer have some power to detain linked with this?

I was prompted to table these amendments because of my concern not to confuse slavery and trafficking with immigration offences, at least to the extent of not letting it be thought that this is a problem that is being imported into this country—because, as in the title of the report from a year or so ago, it happens here. My questions are really about the operation of the provision and the place of immigration officers throughout these clauses, which is why there is such a long list of amendments. I beg to move.

Baroness Royall of Blaisdon: My Lords, I shall speak to Amendment 39A in this group. Part 2 makes arrangements for slavery and trafficking risk orders and prevention orders. At present, Clause 15 makes provision for when a magistrate may make a slavery and trafficking prevention order against a person. A chief officer of police may make an application to the magistrates’ court, alongside an immigration officer or the director-general of the National Crime Agency.

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However, a chief officer of police may make such an application only in respect of a person who lives in that chief officer’s police area or who the chief officer believes is in that area or is intending to come to it.

We tabled the same amendment in the other place to question whether a chief officer may also be able to make an order with respect to someone who has previously been to their area or has had connections with the area. The current drafting of this clause does not cover that possibility. At present, it would be possible for a chief officer to apply for a trafficking prevention order for someone in their area but not for anyone who had previously been there and who may still have connections with the area through friends, family or business or in other ways.

I will adapt an example given by my right honourable friend David Hanson in the other place. At present, it is possible for the chief constable of Gloucestershire police to apply for a trafficking prevention order for someone who lives in the Forest of Dean, which is my area. She could also do that if she thought that they were in or would come to the area. There might be individuals who were previously involved in trafficking in my area but who are not currently resident in the area or intending to return there, but they might have connections with it through their family or business or in other ways.

I tabled the amendment because paragraphs (a) and (b) of subsection (4) do not cover every base, but the amendment could mean that the police would have full powers. To use my area of Gloucestershire again, it is quite possible that an individual could conduct activity that should be covered by a slavery and trafficking prevention order but the chief of police is not able to make an application for an order because the individual does not live in the area, is not in the area and does not intend to come to the area, although they have been to it previously or have connections with it.

In her response, the Minister in the other place said that in such a case the chief officer would be able to ask the National Crime Agency or the police force where the individual resides to take the appropriate steps to make an application for an order. In addition, the new Independent Anti-slavery Commissioner would be able to ensure that police officers could work coherently and co-operatively. While of course that is welcome, it is not certain, and the functions of the commissioner as outlined in Clause 41 do not reflect this.

Furthermore, the Minister was hesitant when asked what would happen if an individual left the area. The chief officer would not be able to take any action and would have to rely on other police forces to act. This could be dangerous, weaken the application of slavery and trafficking prevention orders and allow perpetrators to slip through the net. Personally, I do not see the harm in giving an extra power in this subsection to extend it to individuals who may not be covered in paragraphs (a) and (b).

In the Public Bill Committee in the Commons, the Minister, Karen Bradley, indicated that she was willing to reflect on this. It would be good to know whether the Minister was able to provide us with any reassurance on this issue.

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Baroness Garden of Frognal: I thank my noble friend and the noble Baroness, Lady Royall, for tabling these amendments. They raise the important issue of who should be able to use the slavery and trafficking prevention orders or slavery and trafficking risk orders proposed in the Bill, and indeed they relate to the powers of the police across different areas of operation.

The first orders have been designed to manage the risk of harm that would be caused by an individual committing a modern slavery offence. In developing the Bill, the Government have considered carefully who is best placed to be given the powers to apply for these orders and to be involved in the subsequent steps of the process, whether it is receiving the name and address details or applying for variations, renewals or discharge, or whether it is the persons for whom the guidance is intended.

The amendments, although not Amendment 39A, seek to remove immigration officers from the category of persons who can apply for an order. However, the cross-border nature of modern slavery means that it is often linked to immigration crime, and the individuals in the best position to deal with immigration crime are immigration officers. It is therefore appropriate for this group of law enforcement officers to have these powers. They already have law enforcement powers in this country and investigate and support prosecution of immigration and trafficking offences. Given the international nature of modern slavery, this power is appropriate, and to remove them from the list would restrict the role that immigration officers can play in dealing with traffickers and those likely to commit trafficking offences. It means that they would be required to call on the police to apply for the orders, which would add unnecessarily to the burden on the police and, of course, would cause delays as well.

I entirely understand that it is important to ensure there are safeguards in place so that immigration officers apply for these orders only in appropriate circumstances. The legislation is drafted using existing recognised legal persons, and the specific positions of more senior staff in immigration enforcement are not set out in legislation. However, I can assure the House that we will establish, through Home Office policy, that any decision to apply for a slavery and trafficking prevention or risk order by an immigration officer must be approved by the director of criminal investigations within the Home Office. I hope that those assurances will enable my noble friend to withdraw her amendment.

Amendment 39A seeks to include chief police officers for an area with which the defendant previously had a connection in the category of persons who can apply for an order. The role of the preventive orders is to look forwards to prevent the harm that could be caused by future crimes. The provisions about who can apply for an order reflect that. As the noble Baroness, Lady Royall, indicated, this was discussed in the other place and the Government’s position has not shifted from that. In cases where an individual no longer lives in an area, but the chief officer of police has reason to believe they are likely to return, there is a future risk of harm in that area and the chief officer can apply for the orders under the Bill as it stands. As the noble Baroness mentioned, in the few cases where an individual posing a risk is unlikely to return to an

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area, it would be appropriate for the police to inform the National Crime Agency, as it would be logical for it to take this forward across police boundaries, or indeed the police force for the area where the individual resides. Those two bodies would be best placed to manage the risk posed by an individual where they live now. We shall be coming on to discuss the role of the commissioner in more detail later in the Bill.

Clause 15 as drafted provides appropriate powers for the police in relation to slavery and trafficking prevention orders. For the moment we see no reason to take that further forward. We are satisfied that that will cover the cases in the Bill. Given that clarification, I hope that the noble Baroness will not press her amendment.

Baroness Hamwee: My Lords, I thank my noble friend for that reply. She said that the Government would not want to restrict the role of immigration officers. I still find it not so much confusing, but carrying the danger of muddling the issues in the way I explained. What intrigues me, in particular, and I am grateful for the assurance, is that the approval for an application would have to be made by the director of criminal investigation within the Home Office. If that is so, why cannot the police take the matter on and not involve the Immigration Service? I think I had better leave that question hanging and beg leave to withdraw the amendment.

Amendment 39 withdrawn.

Amendment 39A not moved.

Amendments 40 to 43 not moved.

Clause 15 agreed.

Clause 16 agreed.

5.30 pm

Clause 17: Effect of slavery and trafficking prevention orders

Amendment 44

Moved by Baroness Hamwee

44: Clause 17, page 12, line 9, at end insert—

“( ) The Secretary of State shall by regulations specify the prohibitions which may be included in an order (including an interim order) or any variation of it.”

Baroness Hamwee: My Lords, under the Bill the court can make a prohibition for any period, and the criterion is that the prohibition is “necessary to protect” a particular person or persons generally from physical or psychological harm likely to arise from slavery or a trafficking offence by the defendant. Obviously, that goes very wide in terms of the court’s powers. The Joint Committee on Human Rights made the point—I hope that I am not stealing the noble Baroness’s thunder again—that there should be certainty as to the prohibitions which can be applied and recommended that there might be, for instance, an indicative list of the sorts of prohibitions that can be imposed in such orders. Considerations of legal certainty should also

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be given prominence in the development of the statutory guidance. That statutory guidance will apply to the police, to immigration officers and the NCA. I am not sure where the courts stand in this and whether it is improper to issue guidance to a court. The police can apply for a particular prohibition order and the court will have unlimited discretion.

It seems to me that if these prohibitions are capable of being set out in guidance, they are capable of being set out more formally. My amendment proposes that they should be included in regulations rather than in guidance. That would provide certainty as to what prohibitions might be applied and give Parliament the opportunity to debate those prohibitions, and having regulations rather than primary legislation would allow for quite a degree of flexibility. Wishing to see certainty and not to provide completely unconstrained discretion without knowing until case law has developed what might be included in the prohibitions, I am proposing the use of regulations. I beg to move.

Baroness Lister of Burtersett: My Lords, the noble Baroness has not stolen my thunder at all, and again I am most grateful to her for tabling this amendment. It picks up on the recommendations made by the Joint Committee on Human Rights. I want to make one additional point on why this raises an important question of human rights. As we said in our report:

“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”.

Baroness Garden of Frognal: My Lords, I thank both noble Baronesses for speaking to these amendments. They raise the important issue of the prohibitions that can be imposed by the slavery and trafficking prevention orders and risk orders. Prevention is critical to tackling modern slavery effectively and the purpose of these orders is to enable the courts to impose prohibitions on individuals who are believed to pose a risk of causing harm by the commission of a slavery or human trafficking offence. It is important that these orders provide law enforcement agencies and the courts with the ability to respond flexibly to the risks posed by an individual. Clauses 17 and 24 make it clear that slavery and trafficking prevention orders and risk orders will only contain prohibitions that the court is satisfied are necessary for the purposes of protecting people from the physical or psychological harms that would be likely to occur if the defendant committed the slavery or human trafficking offence. These prohibitions can be imposed anywhere in the UK or outside of the UK, they can be for a fixed period of at least five years, and some prohibitions may apply for longer than others.

To enable law enforcement agencies and the courts to respond to changing slavery and human trafficking practices and to tailor prohibitions to the specific risk posed by individuals, we have deliberately not specified the types of restrictions that can be included in the orders. This makes them flexible and capable of restricting any activities that a person undertakes if the court considers it necessary. The approach is in line with existing orders relating to the prevention of sexual

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harm. Making the amendment requested by my noble friend would restrict the flexibility that these orders need to have. We believe that we have already set substantial and appropriate safeguards to ensure that orders will only be used in appropriate circumstances when necessary to stop the harm caused by these very serious offences, by requiring that the court is satisfied that they and the prohibitions that they include are necessary.

I appreciate the power of the argument of my noble friend and the noble Baroness, Lady Lister, and of the arguments of the Joint Committee on Human Rights to ensure that operational law enforcement partners are clear on the types of prohibitions that might be helpful. In line with the Joint Committee on Human Rights recommendation we shall ensure that the statutory guidance in relation to the orders will include guidance on appropriate prohibitions. With that assurance, I hope that my noble friend will feel able to withdraw her amendment.

Baroness Hamwee: My Lords, of course I shall seek leave to withdraw it. I had hoped that by referring to regulations that I described as having a degree of flexibility I might have met the point that I anticipated would come. Wanting flexibility in the range of prohibitions that might be applied raises in one’s mind a concern that they might be changed quite frequently. That would go against the certainty that we are seeking. However, I hear what my noble friend has to say and a little more clarity in the guidance will certainly be welcome. I beg leave to withdraw the amendment.

Amendment 44 withdrawn.

Clause 17 agreed.

Clause 18 agreed.

Clause 19: Requirement to provide name and address

Amendments 45 and 46 not moved.

Clause 19 agreed.

Clause 20: Variation, renewal and discharge

Amendments 47 to 50 not moved.

Clause 20 agreed.

Clauses 21 and 22 agreed.

Clause 23: Slavery and trafficking risk orders

Amendments 51 to 56 not moved.

Clause 23 agreed.

Clause 24: Effect of slavery and trafficking risk orders

Amendment 57 not moved.

Clause 24 agreed.

Clause 25 agreed.

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Clause 26: Requirement to provide name and address

Amendments 58 and 59 not moved.

Clause 26 agreed.

Clause 27: Variation, renewal and discharge

Amendments 60 to 63 not moved.

Clause 27 agreed.

Clauses 28 and 29 agreed.

Clause 30: Offences

Amendment 63A

Moved by Lord Rosser

63A: Clause 30, page 22, line 15, leave out “not exceeding £5,000”

Lord Rosser: My Lords, there are two amendments in this group and perhaps I may explain the purpose behind them.

Amendment 63A removes the maximum amount of the financial penalty that can be given for the breach of a slavery and trafficking risk or prevention order, as laid down in Clause 30(3)(b). Amendment 102A is in response to the Delegated Powers Committee report published last week on the power in Clause 30(5) that allows the Secretary of State to amend Clause 30(3)(b),

“to increase or remove the limit on the amount of the fine”.

Clause 30 sets out the penalties that could be imposed on an individual for breaching a slavery and trafficking risk or prevention order or an interim slavery and trafficking risk or prevention order. The penalties are,

“imprisonment for a term not exceeding 5 years”,

on conviction or indictment, and,

“imprisonment for a term not exceeding 6 months or a fine not exceeding £5,000 or both”,

where there has been a summary conviction. In the other place we questioned the need for the £5,000 limit, both in relation to the limit and how appropriate it would be and the relationship between this and the provision that is coming into force in the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would remove any upper limit on maximum fines in the magistrates’ courts.

In respect of the first amendment, while a prison sentence is adequate and serious, we are concerned that the £5,000 limit is too low. People trafficking is a profitable business where criminals make large sums of money at the expense of victims, and in order to tackle slavery and human trafficking we need to ensure that penalties act as a sufficient deterrent.

The Delegated Powers Committee was concerned about Clause 30(5) on penalties, since it confers a power on the Secretary of State,

“to increase or remove the limit on the amount of the fine”,

by regulations, subject to the negative procedure. The Government have said that this power has been included in order to allow for the removal of the limit on the fine when Section 85(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into effect. That section removes the £5,000 upper limit for fines which may be imposed on summary conviction

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in respect of offences that have been enacted before the date on which that subsection is brought into force. But that subsection has not yet been brought into force and the Minister in the other place said that the subsection would come into effect before this Bill receives Royal Assent and that this is why Clause 30(5) contains the provision in question in order to bring the Bill into line with the new policy.

However, the Delegated Powers Committee considers that,

“it is only justifiable to rely on section 85(1) for the use of the negative procedure where the power is exercised within a reasonable period of the commencement of that provision. Accordingly, we consider the power under clause 30(5) to increase or remove the limit under subsection (3)(b) should only be subject to the negative procedure where it is exercised during the period of 12 months beginning with the day on which section 85(1) is brought into force. In any other case, the power should be subject to the affirmative procedure”.

Achieving that is the thrust of our Amendment 102A, which I appreciate refers to the regulations being made,

“12 months after the passing of this Act”,

rather than 12 months beginning with the day on which Section 85(1) is brought into force, which is what I think the Delegated Powers Committee was seeking. I hope that the Minister will feel able to accept either the terms of our amendment on this point or alternatively—and we would certainly be quite happy with this—the Delegated Powers Committee’s recommendation, to which I have already referred. I beg to move.

Baroness Garden of Frognal: My Lords, I am very grateful to the noble Lord, Lord Rosser, for bringing this amendment forward.

As the noble Lord said, Amendment 63A seeks to remove the limit to the fine that can be imposed on summary conviction for not complying with a slavery and trafficking prevention or risk order. As he set out, these maximum fines have been set in line with existing limits on fines commensurate with the offence committed, and are in line with equivalent provision in relation to the sexual harm prevention order and the sexual risk order, which were passed in the previous Session of Parliament as part of what is now the Anti-social Behaviour, Crime and Policing Act 2014.

To ensure that the measure can respond flexibly to future changes in sentencing policy, Clause 30 also provides for the Secretary of State to amend or remove the maximum amount of the fine which may be imposed for summary conviction for breach of an order.

The Committee will be aware that, as the noble Lord has set out, the Legal Aid, Sentencing and Punishment of Offenders Act 2012 includes a provision which, when commenced, will remove an upper limit on maximum fines in the magistrates’ courts, which are on the commencement day set at £5,000 in the type of circumstances covered by this provision. We anticipate that by the time that the Bill reaches Royal Assent, the limit on fines imposed in the magistrates’ court will have been removed under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which would make this amendment unnecessary. So I do not believe that we need to remove the £5,000 limit at this point.

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Amendment 102A would make any future amendment to the level of fine by regulations subject to the affirmative resolution procedure if it takes place more than 12 months after Royal Assent. As the noble Lord said, this is in line with a recent recommendation of the report by the Delegated Powers and Regulatory Reform Committee. We welcome that report and will consider it carefully ahead of Report, including the recommendation on this provision.

Given that clarification and my assurance that this matter will have further consideration, I hope the noble Lord will feel able to withdraw this amendment.

Lord Rosser: I thank the Minister for that response. I am more than happy to beg leave to withdraw the amendment.

Amendment 63A withdrawn.

Clause 30 agreed.

Clauses 31 and 32 agreed.

5.45 pm

Clause 33: Guidance to chief officers of police etc

Amendment 64 not moved.

Clause 33 agreed.

Clauses 34 to 37 agreed.

Schedule 2 agreed.

Clauses 38 and 39 agreed.

Clause 40: The Independent Anti-slavery Commissioner

Amendment 65

Moved by Lord Warner

65: Clause 40, page 30, line 26, leave out subsections (3) and (4) and insert—

“(3) The Secretary of State shall pay remuneration and allowances to the Commissioner, and—

(a) shall before the beginning of each financial year specify a maximum sum which the Commissioner may spend on functions for that year,

(b) may permit that to be exceeded for a specified purpose, and

(c) shall defray the Commissioner’s expenditure for each financial year subject to paragraphs (a) and (b).

(4) The Commissioner may appoint staff and secure accommodation, equipment and other facilities, within the financial limits under subsection (3).”

Lord Warner (Lab): My Lords, the amendment is in my name and that of the noble Lord, Lord Patel. My concern here is to make a greater reality of the independence of the anti-slavery commissioner by giving the postholder control over choice of staff and accommodation and suchlike within an agreed budget.

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I believe that subsections (3) and (4) of Clause 40 give the Secretary of State too much detailed control over the commissioner that will in practice jeopardise their independence and will certainly jeopardise the perception of their independence, which is just as important.

I recognise that on Report in the other place the Government tried to respond to criticism by placing “independent” in front of “anti-slavery commissioner” in the Bill. That is certainly an advance, but it does not go far enough and does not meet the criticisms and recommendations in the report of the Joint Committee on the draft Bill, which are summarised in paragraphs 154 and 155 of that report.

As a member of the Joint Committee, let me briefly remind the Committee of a key passage in those paragraphs, which states:

“The draft Bill does not offer sufficient protection for the Commissioner’s independence in the long term. Failure to do will undermine the Commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups whose role in combating modern slavery is well-recognised”.

That is the central purpose of my amendment: to strengthen trust in the independence of the commissioner, with some specific ways of giving the postholder greater independence.

As the Joint Committee’s report went on to say, the anti-slavery commissioner is being treated less favourably in terms of independence than other comparable commissioners appointed by the Home Secretary: namely, the Independent Reviewer of Terrorism Legislation and the Independent Chief Inspector of Borders and Immigration. A critical part of independence in these posts is the clear right to appoint your own staff, to which I would add the symbolism of not being located in the same building as the government department that appoints you.

Those two issues—independence in selection of staff and premises—are in my amendment. I regard them as critical to conveying to the outside world the independence of the commissioner. That is even more the case if the commissioner’s remit is to be widened beyond the scope of the Home Office—a subject that we shall turn to in the next group of amendments.

My amendment is based on personal experience as a battle-hardened Whitehall warrior; it is not just a theoretical fancy. Let me briefly share with your Lordships my experience as the first chairman of the Youth Justice Board back in 1999, when I had to set it up with a chief executive and a secretary. The board was, in statute, clearly an independent body. However, that did not stop the Home Office encouraging our location within the Home Office, kindly offering us staff and, when we refused that, pushing on with endless reporting and meetings over our independent activities.

Control is in the Home Office DNA—whoever is the Home Secretary and whatever individual Home Secretaries may say. The default setting for the average Home Office civil servant—with due respect to those in the Box—is to protect the Home Secretary, irrespective of whether the Home Secretary needs or even wants protecting. Staff seconded to the commissioner will return to their department, and they will not be welcomed

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back with open arms if they are deemed to have allowed the commissioner endlessly to flourish attitudes independent of the Home Office on any specific issue. In any case, we put those staff in an impossible position by sending them to a commissioner’s office. They are conflicted: do they look after their future career or do they do what the commissioner wants if he or she wants to strike out independently?

It is this experience that has convinced me to run my own show as Birmingham’s children’s commissioner and politely decline friendly offers of support from DfE officials. I suspect that the newly appointed commissioner will run into trouble at some stage over the staffing issue if we do not give him more freedom to manoeuvre with an amendment similar to mine.

I am very supportive of the other similar amendments in the group. All I would like the Minister to do today is to accept that we have a considerable point and agree to consider with us an amendment which meets the concerns I have expressed. I regard the independent commissioner’s right to appoint their own staff as absolutely crucial to their success. I beg to move.

Baroness Royall of Blaisdon: My Lords, I shall speak to Amendments 65A and 69A in this group, and I of course welcome Amendment 65. I endorse everything that has been said by my battle-hardened friend, who speaks from experience.

We on these Benches are very supportive of the new anti-slavery commissioner, who will undoubtedly play a pivotal role in our fight against modern slavery. Although we acknowledge and are grateful for the good work that numerous central government departments, local government agencies and NGOs do in this area, a main point of contact to co-ordinate and oversee the entirety of the work to tackle modern slavery is invaluable—vital.

The Centre for Social Justice’s report looking into modern slavery in 2013 stated:

“Such diverse activity requires independent oversight and coordination for it to be effective”,


“There is significant need in the UK for the appointment of a single individual to oversee efforts to fight modern slavery in the UK, in light of the disparate national response”.

So we warmly welcome the introduction of this post. As noble Lords will know, Kevin Hyland has already been appointed as the new commissioner. I am sure that this gentleman will do an excellent job and we welcome him to his post. However, I feel that it is a premature appointment; it has been made before this House has even finished its debate on this role and finalised its discussions. It cannot be right that any appointment is made before the job description is finalised. I just do not think that is the correct way to proceed.

At present, we do not feel that the clause as drafted would ensure that the independence of the anti-slavery commissioner is embedded. We thank the Government for introducing “Independent” into the title of the role but the insertion of the word is simply not enough. By merely calling the role independent without providing the structure to make that independence possible, the Government are almost setting the commissioner up

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to fail by making it virtually impossible for him to meet the expectations created by the title “Independent Anti- slavery Commissioner”. The funds, staff, accommodation and other facilities will still be determined by the Secretary of State, after consultation with the commissioner.

Amendment 65A, which is similar to that in the name of my noble friend Lord Warner and the noble Lord, Lord Patel, would change the wording of the clause to ensure that the Secretary of State may only determine how much money to give the commissioner, without having any involvement in the appointment of the staff or other matters. At Second Reading, the Minister stated:

“The commissioner’s role is set out in a similar way to other commissioners”.—[

Official Report

, 17/11/14; col. 239.]

However, I beg to differ. Having looked at the Borders Act 2007, we have used the same language and inserted it into our first amendment to enable this anti-slavery commissioner to have the same independence as others in similar roles. That is the same approach taken by the draft committee, which also adopted this wording in its alternative modern slavery Bill. Alongside this, the independent reviewer of terrorism stressed the need for a truly independent commissioner to the draft Bill committee to put it on an equal footing with himself and similar appointments, such as that of the Children’s Commissioner.

Our second amendment, Amendment 69A, is to ensure that the commissioner has full independence with regard to his activities, timetables, priorities, resources and funding. It has been drafted by the Anti-Trafficking Monitoring Group, with the help of respected and experienced barristers and legal experts. Rapporteurs in other European countries, such as the Dutch national rapporteur, all cite their autonomy and independence as being crucial to their role. We absolutely have to ensure that the wording in the Bill reflects the true independence of the commissioner. Although we know that the current Home Secretary visualises a strong and leading role for this commissioner, which is terrific, the same may not be said for any future Home Secretaries or Ministers down the line—and her assurances must be consistent with the language in the Bill. I note what my noble friend said about the Home Office as an institution.

The Independent Police Complaints Commission stressed the importance of the commissioner being able to appoint their own staff and said that the perception of that independence, if not its reality, may be affected by its statutory closeness to the department—in this case, the Home Office. The independent reviewer of terrorism legislation, David Anderson QC, told the committee that roles such as the one performed by his specialist adviser were essential, and that it was consequentially essential that he made the decision about the appointment himself. The Independent Chief Inspector of Borders and Immigration, John Vine, also pointed out the benefits of the commissioner being able to appoint their own staff in that they should be able to advertise for the roles freely and choose from a good mix of skills and applicants.

In written evidence, the Home Office stated that its intention was to have a small team of civil servants supporting the commissioner. If that situation arose, it is all very well to support but we do not want those

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people to be appointed by the Home Office. Is the Minister able to shed light on how they would be able to work in an independent manner if they were, at the end of the day, accountable as employees to the Home Office? There would seem to be a friction there.

In the Government’s response to the draft committee, they said:

“It would not be effective or efficient for such a role to be supported by an independent human resources function”.

Surely, appropriate assistance could be provided to the commissioner when choosing his own staff, if it were necessary and requested.

Our concerns were also echoed by the Joint Committee on Human Rights, which said that,

“the Commissioner looks very much like a creature of the Home Office, with very little interaction with Parliament”.

Notwithstanding the matters in Clause 41, which we will speak about next week, the Joint Committee also pointed to the inability of the commissioner to appoint their own staff. The committee recommended that the Bill be amended to change this, otherwise the commissioner’s operations would be largely controlled by the Home Office, as I have said before.

6 pm

The location of the role within the Home Office and its lack of structural independence mean that questions about transparency and independence will hang over any reports made by the commissioner, which takes me back to what my noble friend said about trust. It is vital that this person and the reports that they provide must have the full trust of the citizens of this country, especially those who are subjected to the evils of slavery. It is important that the anti-slavery commissioner is seen to be independent of the Government and has the ability to co-operate with other groups, organisations and sectors, which is a huge part of their role. The Finnish and Dutch models both have clear organisational frameworks that are widely considered to be successful in fighting human trafficking, so why are these models and that real evidence of good practice from other countries not considered appropriate when considering our own version? What is different about our system?

Once again, we welcome the new role of the Independent Anti-slavery Commissioner, but we are concerned about the independence. The current drafting of the Bill does not have the adequate statutory safeguards intended, and leaves the role open to misuse in the long term. This is not only inconsistent with the roles of other international commissioners but inconsistent with our own other independent commissioners, reviewers or chief inspectors as laid out in other legislation. When questioned, the Government have recognised the significant differences between the legislative frameworks governing the Children’s Commissioner and the proposed anti-slavery commissioner, but they somehow still maintain that both models produce independent bodies. For all the reasons given, I simply cannot understand how this can be the case.

We have tabled Amendment 65A because we believe that to accomplish the high aims envisaged for the commissioner, they must also be able to challenge the Government as well as local authorities and law enforcement agencies. It should not be necessary to

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rely on the personal gravitas, expertise and independent-mindedness of the individual appointed as the commissioner; rather, the commissioner should be equipped with the resources and statutory independent status necessary to play the role of a critical voice both in private and in public.

Baroness Butler-Sloss: My Lords, I support the amendment of the noble Lord, Lord Warner. As a member of the commission, I thought originally that the Government putting in the word “independent” was sufficient. I have to say that I have been reflecting on that, though. I have listened to what the noble Lord, Lord Warner, and the noble Baroness, Lady Royall, have said about this, and I have gone back to what was said by our Select Committee. The noble Baroness has set out many of the points that were made under Part 4 of our report, particularly in paragraphs 146 and 147. There was one quotation she did not make, though, which was from the Independent Police Complaints Commission. It stresses the importance to the commissioner’s independence of the freedom to appoint staff, saying:

“The perception of that independence, if not its reality, may be affected by its statutory closeness to the department. Unlike the Prisons Inspectorate or the IPCC (or indeed the Victims Commissioner)”—

really a very important part—

“the Anti Slavery Commissioner … will be unable to engage his or her own staff, or be located outside the department. He or she will therefore be relying on negotiating the right number and expertise of departmental civil servants, whose careers and ultimate accountability lie within the department. In my view, this is unfortunate, as it does not provide the Commissioner with any visible separation from the department”.

In our recommendation, we point out that failing to have sufficient protection for the commissioner’s independence in the long run will undermine the commissioner’s credibility and capacity to establish relationships based on trust with NGOs and other stakeholder groups, whose role in combating modern slavery is well recognised.

On Monday I made a point to the Minister about perception and the enormous importance of the Bill being seen as an iconic Bill that will lead not just in this country and Europe but across the world. I do not doubt the integrity of Kevin Hyland and have great respect for him, but the anti-slavery commissioner must have the ability to speak independently and a group of staff on whom he can rely to be responsible to him, rather than to the Home Office. If he does not have that, it will have a real impact, I regret to say, on the ability and willingness of NGOs to want to deal properly with the anti-slavery commissioner. This is a very important point, and the more I have thought about it, particularly listening to the two speeches that the Committee has just heard, the more I think that the Minister should take this matter away and reflect upon it. To have entirely Home Office staff appointed by the Home Office will not look good to NGOs.

Baroness Hamwee: I agree with everything that has been said on that last point. One can imagine that NGOs which the commissioner wishes to consult will find themselves going to Marsham Street to meet him. That seems entirely inappropriate.

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I thought the term “friction”, which the noble Baroness used, was very delicate. I have written down other terms which might describe somewhere on the spectrum between tension and conflict. My first block of five amendments in this group seeks to establish a direct relationship between the commissioner and Parliament rather than for the reporting to be permitted by the Home Secretary. It is very important that there should not be or be perceived to be a block between the commissioner and his ability to have reports published and debated by Parliament. I have not sought to take out Clause 41(6), which allows the Secretary of State to direct the omission of material which would be against the interests of national security, might jeopardise safety or prejudice an investigation or prosecution. I am sure we will be told that the Home Secretary does not seek to censor reports from other commissioners and other independent persons, but this is about perception as well as reality.

Amendment 68A would take out the definition of a permitted matter, which follows from what I have just said, and Amendment 68B would allow the commissioner to publish without seeing whether the Secretary of State and the devolved authorities want to exercise other powers. I can see immediately that I have made a mistake here; clearly, I should have retained the reference to subsection (6) but I am sure that noble Lords will understand the general point I am making. Amendment 72A is an extremely clumsy way of trying to find some shorthand for deleting reference to the Secretary of State’s approval, but it all amounts to the same thing.

Baroness Lister of Burtersett: My Lords, I support all these amendments, which aim to ensure the genuine independence of the anti-slavery commissioner and to establish a relationship with Parliament. As I said, they are very much in line with the recommendations of the Joint Committee on Human Rights, of which I am a member. I am grateful to all noble Lords who tabled them; a very powerful case has been made. I apologise if I echo some of the arguments, but some of them bear repetition.

The JCHR welcomed the creation of the office of the anti-slavery commissioner as,

“a potentially significant human rights enhancing measure”.

However, whether it fulfils that potential depends very much on it being genuinely independent of government. As we have heard, a very constructive debate in the Public Bill Committee led to an amendment on Report which added “independent” to the statutory title of the commissioner, as my noble friend Lord Warner, explained. I welcome that, as it reflected the all-party consensus around the importance of the commissioner’s independence. As the JCHR observed,

“the post cannot be made genuinely independent merely by adding a label”.

We listed the provisions and omissions that mean that it cannot be described as independent in any meaningful sense, which are for the most part covered by noble Lords’ amendments, so I will not go through them.

In light of those severe limitations on the commissioner’s independence, we asked the Government in what sense the role is independent and why it is less so than the Office of the Children’s Commissioner.

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Their response was to accept that there were significant differences in the legislative framework governing the two bodies, but, as we heard, they maintained that both models produced independent bodies. Yet the widespread view both inside and outside Parliament is that that does not constitute independence because, as the JCHR said, the role would largely be controlled by the Home Office, serving simply as an adjunct to it. My noble friend Lord Warner spelt out very graphically what that might mean in practice.

This debate on what constitutes independence brings to mind the famous exchange between Humpty Dumpty and Alice:

“‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean—neither more nor less.’

‘The question is,’ said Alice, ‘whether you CAN make words mean so many different things.’

‘The question is,’ said Humpty Dumpty, ‘which is to be master—that’s all’”.

I thought that was rather appropriate in the context of a debate about slavery. Surely, ultimately, in deciding what constitutes independence here, Parliament should be the master, and the related concern of the JCHR, taken up in the amendment in the name of the noble Baroness, Lady Hamwee, was about the commissioner’s relationship to Parliament.

The JCHR has sought to strengthen the relationship between Parliament and a number of bodies which form part of the human rights machinery, including the Office of the Children’s Commissioner, and I very much commend the way the Government have strengthened and ensured the independence of that office. We stated in our report:

“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”.

However, we were surprised and disappointed, to put it mildly, by the Government’s statement that they do not see the commissioner’s role primarily as part of the national human rights machinery. I find it extraordinary that in one of the most human rights-enhancing Bills brought forward by the Government, the machinery to implement it is not seen as part of the human rights machinery. Can the Minister explain why, and does he accept that that rather diminishes the potentially human rights-enhancing role of the Bill?

We have heard from members of the Joint Committee on the draft Bill how that committee itself stressed the importance of the independence, which is crucial for both credibility and establishing the trust of NGOs and other stakeholders. I would add to that list, most importantly, the victims of modern slavery themselves. The committee heard from the Dutch equivalent, who said that,

“the long-standing effectiveness of her own role lay in its statutory independence and the trust engendered as a consequence”,

as my noble friend Lady Royall has said. It expressed sympathy with,

“those who cautioned against relying on either the good intentions of the holder of the office of Home Secretary”.

We all know and appreciate the commitment of the current Home Secretary on the issue of modern slavery. But when even the autonomy of the Chief Inspector

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of Borders and Immigration has been undermined by the Home Secretary’s recent refusal to publish five inspection reports, leading to his recent warning to the Public Accounts Committee that the independence of his role has been compromised, that must send out warning signals for a role that has less statutory independence.

6.15 pm

I have not been in the House that long, but it is not often in my experience that Bills come here with such widespread support for the basic principles. It seems such a shame to tarnish that by refusing to acknowledge the case that we should treat the commissioner—who after all will be upholding the human rights of some particularly vulnerable groups—as part of our important human rights machinery, and according the role the independence that it deserves and requires to be trusted and effective.

Lord Patel (CB): I have added my name to the amendment in the name of the noble Lord, Lord Warner. Powerful arguments have already been presented as to why there is a need to make the role of the commissioner truly independent, and I strongly support that. The noble and learned Baroness, Lady Butler-Sloss, also referred to the evidence and the comments made by the Joint Committee in the scrutiny of the draft Bill. I further add that the role needs to be truly independent. When we come to discuss the functions, as we will on Monday, there will be several amendments, including mine, which we will no doubt debate at length. Those are important amendments. If we put the two groups of amendments together, it will make it even clearer why the role of the commissioner needs to be seen and defined as truly independent.

Lord Hope of Craighead (CB): My Lords, I make a brief comment on this debate from my experience of setting up the Supreme Court. One of the concerns in moving the appellate jurisdiction from this House to the Supreme Court was the risk of its not establishing its independence from the Executive, which was of course never in doubt when the Appellate Committee sat in this House. One of the surprising struggles that we had to have at the beginning of the Supreme Court’s existence was in persuading officials in the Ministry of Justice that they did not really have any say over how the Supreme Court ran its affairs. It took some time to establish that point—and, in particular, that the chief executive, on whom the court depends for so much of its running, was to be answerable to the President of the court and not to the Lord Chancellor. Of course, that battle has been won and is now in the past, and the relationship is perfectly harmonious. But the fact that it took something like two or three years to establish that point was a lesson. It was not spelt out in every detail in the legislation that set up the Supreme Court, which was deliberately simple and easy to understand. I wish to stress that it is vital to get this sorted out at the very beginning, because opportunities for doing so later in legislation do not occur very often. I hope that the Minister will take that point into account as well as the others.

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Lord Bates: My Lords, this has been an extremely interesting and welcome debate, and I pay tribute to the noble Lord, Lord Warner, for introducing it. He slightly got me on the wrong foot, from my limited experience of the Home Office, when he said that control is in its DNA. Many of us were thinking, “Would that it were so”. It is something that of course is very important, when we are talking about the anti-slavery commissioner. Before coming to the specifics of the amendments, I wonder whether I might note some general principles about where we are coming from. All the way through, I have been very grateful that on all sides of the House there seems to be genuine good will about where the legislation is going and a genuine desire to improve it on its passage.

When we began with the process of the Modern Slavery Bill and of putting in the commissioner, it was a very specific role. It was saying that the problem was that there were far too few prosecutions occurring because there was far too little understanding among victims of their rights of redress and far too little understanding among police, prosecuting authorities and those responsible at local authority level for them to come forward and make sure that victims are protected. That was the reason the role was set out as it was. There was a distinct argument that it was, effectively, for someone—I am searching for a more gentle legal term—to put a rocket behind the individuals on the front line to ensure that we do more to tackle this.

Then, of course, we had the appointment of the Independent Anti-slavery Commissioner designate, Kevin Hyland. He comes with impeccable credentials that were widely recognised at Second Reading when his appointment was announced, subject to the passage of the Bill. We recognised that here was somebody with excellent credentials, both from a law enforcement point of view and also from a victim’s point of view. We then added to that an element that was very clear from the pre-legislative scrutiny. The initial argument for the commissioner was that the Home Secretary wanted to have somebody, basically, who woke up every morning and went to bed every night thinking, “What have we actually done to clamp down on modern-day slavery?”

It then went through pre-legislative scrutiny, which identified that there needed to be a degree of independence in the role. There was a debate about that. There was a very strong belief, to which the noble Baroness, Lady Lister, referred, that the commissioner should have a specific role in relation to victims. Again, those messages were taken on board. As my noble friend Lady Hamwee said, there was also a view that there should be a sense of parliamentary involvement and accountability in this. Therefore, through that process, we designated the anti-slavery commissioner to be independent, in the very name. I accept that it is a name and that that needs to be backed up by action.

There was then the annual report that was going to be laid before Parliament, in accordance with previous legislation on how that is done. That then would give rise to debate, discussion and analysis and I am sure that the Independent Anti-slavery Commissioner will be a frequent visitor to the Select Committees and committees of your Lordships’ House and in another place. So this was very much the direction in which we

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were going. Where there is, perhaps, a little resistance, it is because we do not want to load this individual, capable through he is, with so many different responsibilities or make his entourage so wide that he loses sight of the fact that he has a very specific and serious task, which is to ensure that he brings more perpetrators of these evil crimes to justice in the courts.

In that context, there are other elements set out in the strategy—for example, that the role would involve working closely with others. It refers to a partnership with the Home Secretary. That is a crucial element. The department to which the police and the border agency are accountable needs to work in partnership with others to tackle this issue. The Modern Slavery Strategy, published last week, states at page 29:

“The Commissioner will also work closely with the Inter-Departmental Ministerial Group (IDMG) on Modern Slavery, whose remit is to oversee and coordinate anti-modern slavery efforts across the UK and bring about important and necessary change at the right level”.

That is a key part of the role. However, I accept that there are specific roles.

I very much wanted the noble and learned Lord, Lord Hope, to talk more about his experiences. I imagine that it would be very interesting to learn more about the setting up of the Supreme Court. I am sure that noble Lords would be very interested to hear about that. However, the noble and learned Lord also talked about the evolving role and said that it took two to three years to establish these things and that there was a sense of finding them out. We have always said from the outset that this Bill is a first step down the road towards tackling this crime which has been identified and therefore we want to make it as strong as possible.

Other commissioners were mentioned. The noble Lord made reference to the Victims’ Commissioner who is located in the Ministry of Justice. The Children’s Commissioner, to whom the noble Baroness referred, is located in the Department for Education, Sanctuary Buildings.

Lord Warner: To put the record straight, I did not mention the Victims’ Commissioner, I mentioned two Home Office commissioners, which was the point of my argument.

Lord Bates: Indeed, I am sorry. It was the noble Lord, Lord Rosser. I am tempting fate here because he will deny all knowledge of that. However, I think there was reference to the Victims’ Commissioner. I am sorry if that was not by the noble Lord, Lord Warner. As I say, the Victims’ Commissioner is located in the Ministry of Justice and the Children’s Commissioner is located in Sanctuary Buildings. That was seen as being helpful. I should say that the anti-slavery commissioner designate is located at present in Globe House. He shares that office—the noble Lord, Lord Warner, did refer to this—with the Chief Inspector of Borders and Immigration. That is where he is physically located at present.

I am grateful to noble Lords for tabling Amendments 65, 65A, 67A, 67B, 67C, 67D, 67E and 69A. The amendments relate to the independent anti-slavery commissioner’s power to appoint his or her

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own staff and their freedom to report on certain matters. I reassure noble Lords that the commissioner will be absolutely independent. We changed the title of the commissioner to include the word “independent” after debate in Committee in another place to reflect the Government’s commitment to respect the independence of the commissioner. The commissioner will have the freedom and independence to look at the prevention, detection, investigation and prosecution of slavery and trafficking offences and the identification of victims without fear or favour, and make reports which will highlight where improvements can be made. We want to ensure that the commissioner has the authority and autonomy he or she needs to carry out their functions effectively, while at the same time ensuring that their remit is clearly focused. The commissioner’s independence will be respected, just as the Government respect the independence of other similar office holders.

Amendments 65 and 65A would allow the commissioner to appoint his or her own staff and, in the case of Amendment 65, to secure their own accommodation, equipment and other facilities. The Government do not believe that the commissioner needs a statutory power to appoint his or her own staff. The commissioner’s role will be supported by a small team of analytical and support staff, so it would simply not be effective or efficient for such a role to be supported by an independent human resources function. However, we do want the commissioner to have full confidence in his team. Following normal government practice for roles of this nature, we would expect that staff would be recruited from the Civil Service, using Home Office human resources. In line with typical practice, we would expect the commissioner to take part in the selection process to ensure that he or she has confidence in their team.

Similarly, it would simply be inefficient to require the commissioner to find and secure their accommodation and facilities, although of course they will be involved in this process, as was the case with the provision of accommodation for the designate commissioner. We want a commissioner who is focused on catching the perpetrators and identifying more victims, not someone who is more concerned with administrative tasks. The purpose of the Secretary of State providing support to the commissioner is so that their time is free to do the job they have been appointed for—tackling modern slavery and improving the UK’s responses.

6.30 pm

Amendment 69A would give the commissioner the power to determine their own activities, timetable, priorities, resources and funding without reference to the Secretary of State. I understand the motivation for this amendment and respect the independence of the commissioner, but I do not believe that this is a practical or necessary approach, nor is it in line with other equivalent office holders.

In relation to the commissioner’s budget, I am not aware of any equivalent organisation that can set its own budget, without limit, by law. That is not a basis for an efficient and effective role. While it is right that the commissioner has the ability to influence those organisations and agencies that are responsible for

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tackling modern slavery, the Government also have a responsibility to the taxpayers in this country and to Parliament.

Amendments 67A, 67B, 67C, 67D and 67E would allow the commissioner to report on any matter they chose, rather than just those permitted matters included in the strategic plan, whose importance would therefore be greatly reduced. The purpose of the commissioner agreeing the strategic plan with the Secretary of State is to ensure that the commissioner’s activities remain aligned with their general functions and a coherent overall strategy to counter modern slavery. I am well aware that the independent commissioner may criticise government and public authorities—and it should absolutely have that right so to do. But that criticism has a purpose—to support the fight against modern slavery. A partnership between the commissioner and the Secretary of State around initial priorities in the plan will help to ensure that even the toughest of reports are helping to drive real improvements.

It is not unusual for public bodies with significant independence from Ministers to have to agree their plans. Radically restricting the Home Secretary’s ability to approve the plan, or allowing the commissioner to report on matters outside of this plan, would unnecessarily weaken the strong partnership needed between the commissioner and the Secretary of State, particularly as other examples show that this does not necessarily significantly impinge on their independence. It is of course important to emphasise that the plan may be modified or replaced by full agreement between the commissioner and Secretary of State. It is only right and proper that the Secretary of State has a role in ensuring that the commissioner’s plan reflects agreed aims and objectives to enable the fight against modern slavery to be successful.

This has been an excellent debate and has provided a lot of food for thought. I am sure that it is something that we will return to later in the Bill, particularly in the provisions relating to responsibilities. I believe that the commissioner has been set up in the Bill in an appropriate way to ensure his independence while also enabling the commissioner to stay relentlessly focused on tackling the perpetrators of this terrible crime and ensuring that victims are properly identified. I am absolutely clear that the independence of the commissioner will be respected by the Secretary of State, just as the independence of other similar roles has been respected.

I will reflect on the important contributions made. I am sympathetic to the view that it should be clear that the commissioner can appoint a team that he has confidence in and I will reflect on how that can be achieved. I therefore hope that the noble Lord will feel able to withdraw the amendment.

Baroness Royall of Blaisdon: It will be for my noble friend to decide whether to withdraw, although I am sure that he will at this stage. I should like to make two points. First, none of the amendments suggests that there should be an open-ended budget and that the commissioner should decide on it. The amendment clearly states that before the beginning of each financial year there should be a specified sum. I would not like anyone, within or without this building, to think that we are being profligate because we absolutely are not.

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Secondly, the noble Lord did not really address the issue of perception, which is so important. That was the point made by the noble and learned Baroness, Lady Butler-Sloss. Why should this independent commissioner be different in certain respects from independent commissioners in other countries—for example, the Netherlands, where independence works very well and is respected throughout the world? We want to ensure that our commissioner enjoys the same respect.

Baroness Butler-Sloss: Before the Minister answers the noble Baroness, I will add what might be a conciliatory note, standing as I do in a different place from the noble Lord. It seems to me that a compromise is quite possible. I can understand restrictions on budget. I can see the need to find accommodation, which I know the Home Office has—but not in 2 Marsham Street. That would be a start. It seems that the staff—I do not know how many they would be—could be partly from the Home Office. However, the person who matters most, the head of the commissioner’s team, should be somebody from outside. That would give the perception that the noble Baroness just mentioned and which I mentioned earlier.

The Minister ought to look at this very carefully. If he will forgive me for saying so, I do not think that his speech dealt with the problems that I raised, which are very real. I listen. I do not have the experience of the noble Lord, Lord Warner, of trying to run a particular inquiry. On the inquiries I have done, I have always taken the staff I have been given. However, when I was President of the Family Division, I was given staff from the Ministry of Justice—it was not called that in those days. I managed to persuade them that I came first. I am not sure that one can necessarily do that, if I may say so, in the Home Office. It is very important that the senior person or people in the staff of the anti-slavery commissioner should be seen, as the anti-slavery commissioner himself will be seen, as independent of the Home Office.

Baroness Royall of Blaisdon: My Lords, I meant to mention one more point, which was the one made by the noble and learned Lord, Lord Hope, about the experience that he had setting up the Supreme Court. We probably got it wrong in that instance; we should have had more foresight. We put up our hands if we get things wrong. Now that we have that lesson before us, we should learn from the experience of the Supreme Court and not say, “Oh, well, we’ll see how it goes”. That is a great lesson and we should learn from it.

Baroness Hamwee: My Lords, we will come to the staff’s functions and powers next week, but we should not lose sight of the fact that some of them need to have experience that is far wider than and quite different from that of the Home Office: we are talking about health and the whole of the welfare system, at least. That point has been made in the context of the powers, but let us mark it in the context of staff as well.

Baroness Lister of Burtersett: At the risk of overloading the Minister with questions, I asked a very specific question that I do not think he answered: why do the

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Government not see the office of the anti-slavery commissioner primarily as part of the human rights machinery?

Lord Bates: I will come back to a few of the points raised there. I take the point the noble Baroness made about what was intended in the wording on the budget, but none the less, there is an element, in the way that the amendment is currently worded, that would allow the commissioner a degree of independence in the level of the budget that he sets.

We envisage that the staff will be analytical staff. There will be quite a lot of data collection on the number of prosecutions, the number of people going into and coming out of the national referral mechanism, and on the compensation and reparation orders that will go out. There will be quite a lot of data support. While I appreciate the olive branch from the noble and learned Baroness, Lady Butler-Sloss, suggesting a way forward on this, the independent person in this process ultimately is the commissioner himself. The commissioner will not be, by anybody’s standards, a Home Office place-person. He is somebody with genuine credentials and independence. I think that he will make a significant difference to the role, and I am sure that he will have a very clear view of what his role should be.

On the specific point of appointing staff, I am happy to give an undertaking that I will take this away and reflect a little more on it. In saying that, I would not want the Committee to be of the view that we do not envisage that the commissioner will have to have confidence in his team and that he will be part of the recruitment process. When we limit his pool of staff to people from the Home Office—we are not really limiting it; it is quite a large pool of several thousand—I am sure, from my limited experience, that he will be fishing in, and recruiting from, the finest pool of talent in Whitehall. However, I hear what is being said and we will return to this. I totally accept that appearance is very important in these matters.

The noble Baroness, Lady Lister, asked me a specific point about the human rights machinery. The Independent Anti-slavery Commissioner is not a national human rights institution as defined under the Paris principles but, as was felt by the Joint Committee, the commissioner will play a key part in improving our human rights response to tackle modern slavery.

I hope that with those words the noble Lord will feel able to withdraw his amendment, even if he has to come back and fight another day.

Lord Warner: My sympathies are entirely with the Minister in having to read out some of that stuff. It was almost a revelation and confirmed me in my view that Home Office speechwriters are not blessed with a natural perception of the perception of their words. At the end of the day, the real issue is whether the Home Secretary and the Government are willing to live up to the word that they have put in the title of the anti-slavery commissioner, that word being “independent”. Frankly, first, the Minister was erroneous in some of what he said, and I would just like to correct that. Secondly, he really has not dealt with all the remarks that have been made this afternoon. I will make those two points.

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My amendment does not say that the commissioner will in any way fix his budget; it makes it absolutely clear that the Home Secretary fixes the budget. Therefore, there is no question of the commissioner running amok and incurring public expenditure willy-nilly because he or she wishes to do so.

On the recruitment system, I thought that we were almost going to get violins playing when the Minister talked about the qualities of the Home Office. I am sure that there are very talented people there, but that is not the point. The point is whether the independent commissioner can go out into the marketplace and recruit people from a wider circle than civil servants—which is where the pool seems to have been set—and bring into that office people, particularly from the NGOs, with real experience of the world that he will be operating in. The Minister did not give any assurances on that.

Lord Bates: I apologise for interrupting the noble Lord. When I talked about budget setting, I should have made it clear that I was specifically referring to the amendment in the same group in the name of the noble Baroness, Lady Royall, which states that the commissioner is able to determine,

“without limitation … the Commissioner’s resources and funding”.

That is what I was referring to. It was not the noble Lord’s amendment but it was in the same group.

Lord Warner: My Lords, I am nothing like as much of a spendthrift as that. I recognise that the Home Secretary will exercise control over that. However, the main point in everything that has been raised this afternoon concerns the ability to recruit your own staff. If there is no give whatever on that by the Government, the Minister must expect us to come back with an amendment on Report. I suspect that we would all be willing to meet the Minister to help him garner the arguments that might persuade his boss to take a different view. If he would like to have a meeting, I am sure that we would co-operate.

The message has to go back to the Home Secretary and Home Office Ministers that we need to see whether we can change the Bill to give some reality to the independence of the anti-slavery commissioner. With that, I beg leave to withdraw the amendment.

Amendment 65 withdrawn.

Amendment 65A not moved.

Clause 40 agreed.

House resumed.

Taxation of Pensions Bill

First Reading

6.46 pm

The Bill was brought from the Commons, endorsed as a money Bill, and read a first time.

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Health: Lesbian, Bisexual and Trans Women

Question for Short Debate

6.46 pm

Asked by Baroness Barker

To ask Her Majesty’s Government what the National Health Service is doing to improve the health of lesbian, bisexual and trans women.

Baroness Barker (LD): My Lords, in 1999, shortly after I became a Member of your Lordships’ House, I met Lord Campbell of Croy at an event. During our conversation he said, with a note of some pride in his voice, that he had been the Member speaking in your Lordships’ House when the ladies abseiled in from the Gallery to protest against Section 28. Much has changed since then. Section 28 is now history and, as someone who suffers from vertigo, I have to say that I am glad we no longer have to descend by ropes; we can walk in and take our place alongside everybody else in your Lordships’ House.

Today is historic. This is the first time that we have ever had a debate in this House about lesbians, bisexuals and trans women, and their health needs in particular. I am not turning my back on our gay brothers but I just ask them: today, please don’t rain on our parade.

I am delighted to say that the noble Baroness, Lady Gould, has agreed to take part today. She is my predecessor as the chair of the gender identity forum, and she will be talking about the needs of trans women. This debate has been planned and is being followed by many members of our community. I wish to thank in particular Jane Czyzselska from DIVA magazine, and the readers who contributed points; Jess Bradley from Action for Trans Health; Ruth Hunt, the admirable new director of Stonewall and the Lesbian and Gay Foundation in Manchester, which, under the leadership of Siân Lambert, produced a report, Beyond Babies and Breast Cancer, which sparked today’s debate.

The NHS constitution says that it,

“provides a comprehensive service available to all”,

irrespective of,

“gender, race, disability, age, sexual orientation, religion, belief, gender reassignment, pregnancy and maternity or marital or civil partnership status”.

However, the problem is that we have a growing body of evidence that says that it does not do that.

In 2008 we had Stonewall’s report, Prescription for Change: Lesbian and Bisexual Women’s Health Check. There wasa bisexuality health briefing in 2012, a GP survey covering 2012-13 and the Beyond Babies and Breast Cancer report. It may be small-scale and most of it is very qualitative data, but there are consistent findings that lesbians, bisexual women and trans women experience discrimination in the NHS. The problem is that lesbians are often lumped in together with gay men. The needs of gay men are not insignificant; they are very important, but they are different. On the other hand, lesbians are included in the health needs of all women, yet our health needs are very different.

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Somewhere along the way, principally because of a lack of awareness and training in NHS staff, we end up getting a very poor service.

Almost half the women who were surveyed for those reports were not out to their GP, and when they did come out their statements were ignored. Only three in 10 lesbian and bisexual women said that healthcare workers did not make inappropriate comments when they came out. I have a wonderful quote:

“I was once asked by a male GP if I was in a sexual relationship. To which I replied yes. He asked if we were using condoms. I said no. Before I could say anything else, he went on a 10 minute rant about using condoms, being on the pill, STIs. When he stopped for air, I replied that I would ensure that my girlfriend would take care from now on. He spluttered and went bright red before promptly stabbing me with an injection that I really didn’t need!”.

Another story is as follows:

“After coming out to a nurse at a GP practice when I went for a smear, she did not know whether to test me for chlamydia and suggested that I see next time if I’m ‘still …’—presumably she meant still lesbian! I haven’t been back to the GP since”.

That is the important thing, and I can attest to similar experiences myself over the past 30 years. When there is such an inappropriate response from a health worker, it completely undermines your confidence.

Very few lesbian and bisexual women have been properly tested for STIs, and those who do turn up at genitourinary medicine clinics have a much higher incidence of STIs than heterosexual women. Quite often, health workers give them the wrong information and advice. One woman said:

“I was treated for cervical cancer after receiving a positive smear. I was originally told that I didn’t need a smear as I had never had sex with a man”.

There are other ways of contracting this viral infection. Sometimes lesbians get a bit fed up with having to be the teachers of the health workers who should be dealing with us.

A number of reports both in this country and abroad have been published about the fact that rates of smoking and alcohol consumption are statistically higher among lesbians and the gay community. It is tough when you have to deal with discrimination every day, and sometimes it is hard to be as healthy and fit as you should be. Some of us make an effort. I am pleased to report that I managed to give up smoking two years ago and I am still going strong. But there is only one alcohol clinic that is specifically targeted at gay women, and that is Antidote, run by London Friend. The problem is that generic services really do not target their messages at lesbians at all.

I turn to cancer screening. Because of lifestyle factors, we know that lesbians and bisexual women have a higher rate of diagnosis, but again there are no specific services and very few specific messages targeted at women from our community. On mental health, the reports we have suggest that although many women live perfectly healthy and happy lives, there is an increased incidence of mental ill health. Its prevalence is greater still among bisexual women. I have to say that there are no data on any of these conditions to show what happens to lesbian, bisexual and trans women from black and minority ethnic communities. There are simply no resources. Lesbians cope well, but

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there are no mental health services that are particularly designed to help us, and as a consequence we have to be pretty resilient on our own.

Some things can be done that could make a difference. The biggest difference would be made if clinicians and front-line staff in primary care recognised and understood that some of us are gay. They should not always ask questions that presume we are not. Bless them, sometimes they say things for the most benign of reasons, but it is still discrimination and they need a lot of training to help them get over what is essentially a flaw in their medical practice. Some partnerships have been formed between certain specialist organisations and lesbian and gay community groups which have worked very well. Manchester has the Pride in Practice project where the Lesbian and Gay Foundation has worked with nurses and doctors so that they are trained to ask questions in a way that does not make a presumption about the person to whom they are talking.

There are many more things that could be done. I am not asking for special services. That is not going to happen, given the financial situation at the moment. The NHS is a service for us all and therefore some of us, because of our background, have the right to expect that that universal service will meet our needs.

I have four specific points to put to the Minister. The first is to ask when Public Health England will put forward a strategy for promoting the health and well-being of lesbian and bisexual women. There is one for gay men; there is not for lesbians and bisexual women. Secondly, will NHS England develop a data standard on sexual-orientation monitoring? At the moment there is no monitoring of the way in which we interact with the NHS. Thirdly, the biggest problem is that GPs simply do not know how to talk to us. Can the Minister work with the Royal College of General Practitioners to develop some standards for questions to be asked of patients in a non-pejorative way? Lastly, in our work with GPs, could the health outcomes of lesbians and bisexual and transsexual women be part of the overall monitoring of GP practice?

We are citizens of this country. We are taxpayers. We support the National Health Service. It is only fair that we should expect it to recognise that we exist and should be able to access those services with dignity like everybody else.

6.56 pm

Lord Cashman (Lab): My Lords, I congratulate the noble Baroness, Lady Barker, on introducing this extremely important topic. She rightly referred to the three lesbians who abseiled into your Lordships’ House. Why did they do that? They did it on the absolute principle of equality. From that brave fight against Section 28, which all parties were to recognise was wrong and should be repealed, came a determination that we would treat all our citizens equally.

The good news is that I prepared a very long speech. The even better news is that my computer refused to print it. I have yet to discover whether it was bi-phobic, transphobic or homophobic, or merely that the operator was technologically incompetent. I think that it was the latter. As a gay man, I will try not to rain on the parade of the important issues that we are

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discussing. Therefore I will not give a prepared speech, but, as Edgar says at the end of Shakespeare’s

King Lear

, I will:

“Speak what we feel, not what we ought to say”.

In the excellent work that is placed before us by the House of Lords Library it is clear that there is an inequality in access to health services for lesbians, and bisexual and trans women. It is clear in the sexual minorities report, which I have here and which conclusively looks at more than 2.1 million respondents, that the healthcare access and treatment experienced by people within GP services was poor and inadequate.

I must declare an interest as the co-founder of Stonewall. I want to refer to the Stonewall Healthcare Equality Index 2013. But before I do, I say also that I await eagerly the contribution of the noble Baroness, Lady Gould of Potternewton, who has a long and distinguished record within your Lordships’ House and beyond on the issues that we are discussing.

The really interesting part of the Stonewall Healthcare Equality Index 2013 is that,

“32 healthcare organisations entered, including mental health trusts, acute trusts, ambulance trusts, social enterprise organisations, community services, clinical commissioning groups and independent sector providers. The organisations provide services to over 15 million patients and are from across all regions of England”.

When you first read the report, you think it is good news, but the reality is that:

“A third of respondents said they felt the healthcare organisation they used was gay-friendly”—

in other words, two-thirds found that it was not. The report continues:

“Half of respondents felt they were treated with dignity and respect all the time”—

but what of the other 50%? The report also says:

“Two in five respondents felt comfortable telling healthcare professionals their sexual orientation all of the time”.

That was in 2013. I await the 2014 report because, despite the Government’s good intentions—I recognise that there are good intentions; there are enough reports and action plans on the way forward—I fear that the gap is widening rather than narrowing.

It is equally worrying that older gay, bisexual and trans women, as well as gay men, are increasingly fearful about what will happen to them when they approach social care in their later years. We must consider this with the utmost seriousness because I believe that access to health and healthcare systems defines the kind of civilised country in which we would like to live, and if we cannot serve the minorities of our society, we have failed.

There is a very interesting document in the Library, Advancing Transgender Equality: A Plan for Action—another one. The responses to the Government’s surveys indicate that,

“transgender people face persistent challenges in accessing public services … More than half of respondents said they suffered discrimination in accessing public services because of their transgender status … More than half of respondents said health was their most significant area of concern … Two thirds of respondents said they had experienced threats to their privacy (e.g. having one’s gender identity revealed at work without consent)”.

There is enough evidence for us collectively, on all sides of the House, to move forward with determination.

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I believe that I have outlined quite clearly that there is inequality in healthcare services. I make a special plea on behalf of the trans community. Trans women and men are so often forgotten in the language of non-discrimination. Their needs are overlooked and it is shocking, indeed shameful, that the World Health Organization still classifies trans as a pathological disorder. I hope that the UK Government will lead discussions within the WHO to end that swiftly.

I also had the great good fortune to attend a Home Office LGBT internal networking group. It was a wonderful morning of sharing of experiences—good and some doubtful—of what it was like to work in the Home Office, and the Home Office is like any other big employer. There was a trans woman who stood up and gave her experience. At the end of her presentation there were questions and someone asked her, “What is it like at work? How are you described?”, and she said—I am paraphrasing—“Well, at work it is like it is for most people who are different. It is difficult. How am I described? I am described as ‘that thing’”. Can your Lordships imagine what that does to you and your mental well-being, let alone your physical well-being?

Now is the time to move forward. I look forward to hearing from the Minister about what action plans have been undertaken and what is actually being done within the NHS in England.

I have enjoyed speaking in this debate, although “enjoyed” is perhaps not the right word when we are talking about inadequate services and the expression of difference and human rights. I believe that access to decent healthcare is a human right. This country has a good and proud record on this, stretching back generations. However, I honestly believe that we need one more push so that we narrow the gap in accessing goods and healthcare services for good, decent, honourable women and men of this country, who deserve such. I thank your Lordships.

7.05 pm

Baroness Gould of Potternewton (Lab): My Lords, I, too, thank the noble Baroness, Lady Barker, for introducing this important debate. It may have been a very short debate and there may not be many of us who have participated, but the words that we have said will be on the record, which is the most important thing. I thank also my noble friend Lord Cashman for his kind remarks and for his being able to participate with his great experience on the subject.

As we have heard, there is no question but that people in the LGBT communities are more likely to report ill health and experience unfavourable and negative responses from parts of the NHS. Like the noble Baroness, Lady Barker, I will concentrate my remarks on trans women, for they and trans people in general often require the services of medical staff in a way that lesbian and bisexual women do not. Many trans women who consider and embark on transition require medical assistance such as psychotherapy, cross-gender hormone treatment and surgery.

It might be useful to give a brief explanation of the process of medically assisted transition and of where treatment is available. Initially, the individual’s GP refers the patient to a gender identity clinic, sometimes

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via a local mental health service. After a minimum of a year attending the gender identity clinic, the individual may be referred for various surgical procedures. Cross-gender hormone treatment does not usually start until after the second appointment at the clinic.

There are seven specialist clinics in England dealing with adults and three providers of gender assignment surgery, which take referrals from all over the country. The question has to be whether this is enough provision to satisfy the need, for the number of people seeking such medical assistance has increased by at least 11% each year since 2004, thereby substantially increasing the demand for the few specialist services which provide care and treatment for patients with gender dysphoria.

Some 7,700 people are being treated or waiting to be treated at gender identity clinics. Such clinics are exempt from the 18-week deadline to provide treatment on the grounds that they are currently classified as mental health providers, despite a government statement in 2002 that gender dysphoria is a widely accepted medical condition and not a mental illness. However, I understand that this is now under review. Can the Minister confirm that that is the case?

There are two areas where waits can occur: the initial referral to the clinic and any subsequent referrals for surgery. The average waiting time on both lists is currently around a year, but that time is likely to increase. Extreme examples of waits are not unknown, such as that of the woman who waited eight years for her first appointment at a gender identity clinic. Long waiting times can inevitably lead to anxiety, depression and even suicide attempts, and there is little support during that time for those patients. Surveys repeatedly indicate that between 30% and 40% of trans women have attempted suicide before or during treatment, a rate which drops close to the national average after treatment, which in itself says an awful lot.

This specialist service is now the responsibility of NHS England, which inherited a mixed system from various historical commissioning processes. The new centralised commissioning body should provide a more consistent approach for the benefit of trans women, who are becoming more aware about what treatment to expect and about their human rights.

To date, NHS England has produced an interim gender dysphoria protocol to be completed next year, as well as service guidelines. A task and finish group has been created to look at key areas. The latter arose after concerns raised by Healthwatch England and local Healthwatch committees around the country about trans people’s healthcare and treatment. Specifically, Healthwatch England identified miscommunication locally about who commissions or funds the service, considerable delays in accessing services, individuals being put on waiting lists when “money has run out” and changes in timelines for treatment. There is terrible inefficiency that means that individuals fall out of the access pathway and struggle to reaccess the service. One can only imagine the despair of the trans woman faced with such a dreadful situation.

It is disconcerting that issues that have been raised over the past decade were still being discussed at a consultation only last week. The consultation heard of a lack of patient care and the reluctance of GPs to

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refer to clinics or take responsibility for prescribing cross-gender hormones. Wider concerns were also expressed about health professionals’ treatment of trans people. Although there are trans women who receive satisfactory treatment, many others do not. That can arise because of our GPs’ lack of knowledge. As the noble Baroness, Lady Barker, said, GPs play an enormous role in ensuring that proper treatment is provided right across the field. GPs need to be provided with more detailed information so that they can ensure gender identity services in the process to transition. Lack of understanding by GPs and their staff can cause great distress. It is difficult enough to confide feelings of gender dysphoria to a doctor without feeling fear, guilt, shame and ridicule. All too often, trans people leave a consultation feeling worthless.

As for lesbian and bisexual women, examples of humiliation abound. For example, one woman says:

“I asked for advice on a gender identity issue and the doctor told me to go away once he’d stopped laughing”.

That can continue for life, as clearly shown by the trans woman who had been a female for 15 years who went to her GP for a flu jab and was called “Mr” very loudly in reception. When she expressed concern about the lack of confidentiality, she was told that revealing her birth gender was relevant to the procedure. The mind boggles. What utter and absolute nonsense that was, as it was in the case of a woman who went to a hearing consultant. He decided that it was appropriate to question her about her trans notes on her medical file.

That is just the tip of the iceberg. There are many more examples of stigma, discrimination and ignorance. Any kind of abuse of a patient is unacceptable. It is crucial that NHS England and all the services within the NHS safeguard patients from abuse of any sort.

To find the level of discrimination, evidence was collected last year which identified a number of allegations, 98 of which were reported to the GMC. Of those, 39% related to GPs, 22% to gender specialist services and 17% to mental health services. The GMC expressed interest in pursuing 39 of those cases, but it is not clear that any action has yet been taken.

Paragraph 59 of the GMC’s Good Medical Practice guidelines states:

“You must not unfairly discriminate against patients or colleagues by allowing your personal views to affect your professional relationships or the treatment you provide or arrange”.

It is the breaches of that rule that have caused many patients to have a complete lack of trust in their clinics. Additionally, more than half the complaints related to both gender specialist services and general practice with allegations of refusal to treat or refer—also directly prohibited by the GMC’s Good Medical Practice guidance. It may be because of the complete lack of solid research that some GPs have such bad attitudes. Most are unaware of what basic monitoring they should be carrying out for trans women or how to translate those results. Also, linked to this lack of research, oestrogen and hormone-blocking treatment is not currently licensed or regulated and therefore not always prescribed, but hormone therapy is essential to maintain the health of the trans woman. Further, it means that trans people can be tied to a GP who will prescribe, and face uncertainty if they have to move their home.

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There are, however, discriminatory practices within the NHS itself. There is currently no national policy on access to gender-specific screening, such as prostate screening for trans women. The NHS pledges to all patients undergoing treatment which might affect their fertility that they will have access to reproductive services such as gamete storage so that in future they can, potentially, have children via IVF but there is substantial evidence of storage clinics turning trans women away. I wait to hear from the Minister what advice he will be giving to NHS England to correct these examples of discrimination, which I am sure he agrees cannot continue.

The only way to solve these injustices is for treatment and care to be clearly patient-centred and non-proscriptive, while recognising individual preferences and circumstances. I welcome the changes in the NHS protocols which recognise this solution, but I ask the Minister to try and get some sort of speed in the timescale for full implementation.

7.16 pm

The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con): My Lords, I begin by thanking my noble friend very warmly for securing a debate—the first one, in my experience—on the important issue of the health of lesbians, bisexual and trans women. These are women who may face discrimination by the NHS because of prejudice or, as we have heard, a lack of understanding about the particular health needs that they may have.

The noble Lord, Lord Cashman, spoke eloquently about the duties and principles of a civilised society in relation to minority groups of people such as these. The NHS constitution is our way of enshrining those principles in relation to the National Health Service. It commits the NHS to providing a comprehensive service available to all, irrespective of gender, race, disability, age, sexual orientation, religion, belief, gender reassignment, pregnancy and maternity, or marital or civil partnership status. The service is designed to diagnose, treat and improve both physical and mental health. It has a duty to each and every individual whom it serves and it must respect their human rights. At the same time, it has a wider social duty to promote equality through the services it provides and to pay particular attention to groups or sections of society where improvements in health and life expectancy are not keeping pace with the rest of the population.

However, despite this we recognise that discrimination still takes place. In my comments, I will highlight some of the work that we are taking forward to combat such discrimination. The Department of Health is funding a number of organisations to help tackle some of the challenges that lesbians, bisexual and trans women face when seeking to access health services. First, the department has awarded Stonewall £235,000 over three years for its Health Champions programme. This supports 20 NHS organisations a year to improve their knowledge and awareness of the health needs of lesbian, gay and bisexual people—if noble Lords do not mind, I will use the acronym LGB—and helps them to deliver a more personalised health and care service.

Secondly, the department is funding the Lesbian & Gay Foundation to carry out two projects over three-year periods. The first, with a grant of up to £140,000,

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focuses on the recruitment, training and empowerment of LGB community leaders, enabling them to engage with NHS structures. The second project, with a further £108,000, is its Pride in Practice project, which aims to increase LGB people’s access to appropriate healthcare.

Thirdly, the department is funding the National LGB&T Partnership with a grant of £186,000 this year. The partnership is made up of a number of organisations, and this funding enables them to work with Public Health England to ensure that LGBT people’s needs are included in their business plan priorities; with the Department of Health to produce an LGBT companion to the adult social care outcomes framework; and with NHS England on the future of gender identity services for adults.

The noble Lord, Lord Cashman, and the noble Baroness, Lady Gould, expressed concern about the classification of trans people. It is universally accepted that gender nonconformity is not a mental disorder. However, specialist services in this country are commissioned from mental health trusts, and input from psychologists and psychiatrists, among others, is essential to offer advice and assessment for people affected by concerns regarding their gender identity. Some patients will not require or wish to receive any hormonal, physical or surgical treatment, but improvement in the patient’s self-perceived psychological and emotional well-being is a key goal of treatment for all patients. I will be happy to write to noble Lords expanding on that.

I turn to my noble friend’s concerns, in particular about lesbian and bisexual women. She spoke of insensitivity by general practitioners towards lesbian and bisexual people. I am sorry to say that the experiences she recounted resonate with some of the briefing that I have received. In September this year, a study funded by the Department of Health saw experts examine data from over 2 million responses to the general practice survey of 2009-10, including 27,000 responses from people who identified themselves as gay, lesbian or bisexual. It found that lesbian, gay or bisexual people were up to 50% more likely than heterosexuals to report negative experiences with the GP services that they received. Admittedly, the figure was 1.7% of lesbian, gay and bisexual people who reported their overall experience with their GP as very poor, compared with 1.1% of heterosexual people: nevertheless, that is a statistically significant difference. All patients deserve high-quality care from their GP regardless of their sexual orientation. Patients expect their GP to offer the best care, so if ever there were an example of how important it is for GPs to use the results of the GP Patient Survey to improve the services that they offer, surely this is it.

With regard to training and asking the appropriate questions, which is clearly part of all this, we have asked Health Education England to ensure that the recruitment, education, training and development of the healthcare workforce generally results in patients, carers and the public reporting a positive experience of healthcare, consistent with the values and behaviours identified in the NHS constitution. The quality of care is as important as the quality of treatment. We also asked Health Education England to ensure that

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there is an increased focus on delivering safe, dignified and compassionate care in the education and training of healthcare professionals.

In response to my noble friend’s point about mental health, Public Health England recognises the increased risk of suicide and self-harm among lesbian, bisexual and trans women. As part of its response, it is developing a professional toolkit for nurses with the Royal College of Nursing on youth suicide prevention among lesbian, gay, bisexual and trans youth in order to ensure that young people get better support.

My noble friend asked about the possibility of a strategy and what we were doing to monitor data. Public Health England recognises the health inequalities affecting all three groups of women. Many of these issues were clearly set out in the lesbian, gay and bisexual and trans companion document to the public health outcomes framework, published last year by the National LGB&T Partnership. I do not have time to read out some of the key points from that, but it is worth studying because it presents a very good way forward.

Improving the quality of the data is an important aspect of this. Public Health England recognises the challenges involved in understanding at a population level the health of these women because of the lack of routine data collection. It and NHS England are working together with the National LGB&T Partnership to integrate sexual orientation monitoring alongside other demographic data collection across the NHS.

The noble Baroness, Lady Gould, spoke very powerfully, as she always does, about the position of trans people and, in particular, about waiting times. NHS England acknowledges that there are some system delays at both gender identity clinic level and surgery level. It has set up, as she mentioned, a task and finish group to look at the issue of delays and has engaged with the three surgical providers to discuss options. It is under no illusions about this. I am well aware that Healthwatch England has made its opinions very clear to NHS England, and I pay tribute to it for that.

In general in this area, NHS England has created a gender identity clinical reference group which has developed a new service specification and clinical commissioning policy. It has also established a transgender network designed to hear the views of people and to influence the strategic direction of services. It is organised and facilitated by the NHS England patient and public voice team.

The noble Baroness also mentioned the workforce. NHS England has confirmed that the number of surgeons contracted to provide feminising gender reassignment surgery is currently 1.5 whole-time equivalent. It hopes there will be an additional 0.8 whole-time equivalent available by the autumn of next year. Two surgeons are currently training to perform gender reassignment surgery and are employed by the NHS. There is another one whole-time equivalent capacity available, but this is not currently contracted by NHS England. Clearly, surgery of this kind is highly specialised. It takes at least six months’ additional training to learn these particular techniques, and trainees would normally be established consultants in neurology, gynaecology or plastic surgery.

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As regards hormonal treatment, oestrogens are not authorised, licensed or regulated for the use of trans women. Consequently, GPs may refuse to prescribe them. Specialist clinics make recommendations for the prescribing and monitoring of these therapies but do not directly prescribe them or provide physical or laboratory monitoring procedures for patients. It is true that there are no preparations of oestrogen licensed for the treatment of gender dysphoria. NHS England’s specialised services circular 1417 sets out arrangements for prescribing and monitoring medications.

GPs undoubtedly have an important role in the healthcare of people with atypical gender identity development, not only around the time of their transition to a social role and physical development congruent to their gender identity but for the rest of their lives when they no longer have a need for specialised gender identity services. If I can expand on those remarks, I would be happy to write to noble Lords.

The noble Lord, Lord Cashman, asked what actions had been delivered from the actions plans. The Department of Health has delivered on all its commitments in the trans and LGB action plans. The Government Equalities Office will shortly publish a report on all the work carried out by government in this area.

Responsibility for improving the health of the nation lies with Public Health England and NHS England and I am pleased to say that both organisations are working to improve the health of these groups of women. My noble friend mentioned cervical screening. Public Health England’s NHS cervical screening and breast screening programmes are offered to all women irrespective of their sexual orientation although Public Health England is working with the Lesbian & Gay Foundation to support screening for lesbian and bisexual women. This is especially necessary in respect of the cervical screening programme, which encourages lesbians to be screened despite the common misconception that this is not necessary.

Public Health England also recognises that there are health inequalities which are common across all three groups of women, such as the significantly increased risk of mental ill health, self-harm and suicide and also issues specific to gender identity, such as the ease of access to gender identity clinics. Many of these issues have been clearly set out in the companion to the public health outcomes framework published by the National LGB&T Partnership. The partnership is also developing healthy living guides for trans people which cover a wide range of topics including sexual health, mental health and well-being, physical activity and diet. Public Health England acknowledges the challenges involved in understanding, at a population level, the health needs of these women because of the lack of routine data collection, about which I have already spoken. Therefore they are working together with stakeholders to integrate sexual orientation monitoring alongside other demographic data collected across the NHS.

As part of its response to the increased risk of suicide and self-harm among these groups, Public Health England is developing a professional toolkit for nurses with the Royal College of Nursing on youth suicide prevention among LGBT youth to ensure they

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get better support. That builds on previous work by the department to support young people’s mental health. In addition, Public Health England has been working in partnership with the Royal College of General Practitioners to raise awareness of sexual orientation through a new e-learning resource.

I turn briefly to the work that NHS England has been taking forward in respect of gender reassignment. Since April 2013, NHS England commissioned gender identity services, as the noble Baroness mentioned, and soon after this it established a gender identity clinical reference group, which comprises clinical staff, patients, carers and representatives of professional bodies. In June last year the group embarked on the development of a new service specification and clinical commissioning policy. A transgender network has been established to support that work, and now has more than 100 members. The network is designed to hear the views of stakeholders and to influence the strategic direction of services, and is facilitated by the NHS England patient and public voice team. In recognition of the time required to develop the new service specification, an interim gender protocol was adopted in July 2013, based on the NHS Scotland gender reassignment protocol.

Finally, I know there are concerns in the trans community about waiting times for treatment—I have

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covered those in my earlier remarks. However, I emphasise that once within a gender identity clinic, patients should receive appointments with the team at an interval appropriate to their need. NHS England is aware of the situation and has set up a task and finish group specifically to address issues around delays. As I have indicated, any delays before gender reassignment surgery are related to capacity problems among surgery providers. I understand that around 455 patients are waiting for surgery, at various stages of clinical readiness. The positive thing is that in future, NHS England will be in a better position to monitor that, as it will hold the data centrally.

In summary, although the legal framework is in place to make discrimination on the grounds of gender, sexual orientation and gender reassignment unlawful, and despite the fact that equality is enshrined in the NHS constitution, we acknowledge that discrimination sometimes still takes place. What we need to do now, building on the legal framework, is to strive to change hearts and minds to eradicate prejudice. However, of course, that is not just a role for government; surely we all have a role to play in that endeavour. Each one of us needs to be honest about our own prejudices, and work to establish a more equal and fairer society for all.

House adjourned at 7.33 pm.