We have also experienced over the past few days the major conference that took place at Lancaster House, addressed by the Home Secretary and the Independent Anti-slavery Commissioner designate. It was attended by 30 countries of the Santa Marta group—a group set up by the Home Secretary with other countries to try and get a more co-ordinated and robust international response. I hope that noble Lords will feel heartened by that. I can also advise noble Lords that, ahead of their next meeting next year, the group of 30 countries working hand in hand in this area, in partnership with the churches, including the Vatican and the Bishops’ Conference, have identified how this can be prosecuted further. They indentified four topics to work on: exploiting technology to tackle the problem; education and raising awareness among professionals, particularly with children; increased engagement with the diplomatic community and embassies; and the fact that new models of exploitation continue to emerge. That is the working task of the Santa Marta group. I would certainly be happy to facilitate a meeting and engagement between that working group of the Santa Marta group and noble Lords with an interest in that area.

Regarding the comments raised by the noble and learned Baroness, Lady Butler-Sloss, about the supply chain, I am getting briefing on that coming through to me, but it may well arrive in time for our next day in Committee on Wednesday, when we will look at the supply chain in more detail under Part 9.

The noble Baroness, Lady Royall, to whom I pay tribute for her long track record in this area, asked about, among other things, the operation of the interdepartmental ministerial group on modern slavery. I can confirm that the Home Office chairs that group and it works closely with the Foreign and Commonwealth Office and DfID, as would be expected. The Ministry of Justice, in which the Victims’ Commissioner my noble friend Lady Newlove is located, the Department for Education, where the Children’s Commissioner is represented, the Department of Health, the Department for Work and Pensions, the Attorney-General and the Department for Business, Innovation and Skills all take part in that cross-departmental group.

My noble friend Lady Hamwee asked for specific information on data sharing. Clause 41(3) sets out a non-exhaustive list, simply giving some examples of what the commissioner may do. The commissioner may already collect statistics if he feels it would be useful to him. Indeed, this is also covered by the

8 Dec 2014 : Column 1639

express reference to research in Clause 41(3)(c). We are therefore not convinced that we should seek to insist that the commissioner focus on collecting statistics, given that the interdepartmental ministerial group on modern slavery is already formally tasked with reporting on trafficking statistics. Indeed, statistics are also a major element of the

Review of the National Referral Mechanism for

V

ictims of

H

uman

T

rafficking

, which has already been referred to. Section 9 highlights “Data and Intelligence” and the changes that should be made there. There are several recommendations on page 58 on data and intelligence gathering. The Home Secretary has already said that she accepts in principle all the recommendations.

The noble Lord, Lord Patel, asked whether the redaction of reports is different for the Children’s Commissioner. The Independent Anti-slavery Commissioner will be able to require law enforcement agencies to provide sensitive information concerning ongoing investigations into modern slavery offences. This may include information on law enforcement criminal investigation capabilities. The redaction powers are there to ensure that matters of important public interest are not inadvertently put at risk. We would not expect the Children’s Commissioner to request sensitive operational material, but this may be an important part of the anti-slavery commissioner’s role. We have therefore included the redaction power in the Bill.

My noble friend Lady Hamwee asked whether this works across the independent reviewer of terrorism legislation. I reassure my noble friend that the independent reviewer of terrorism legislation also has safeguards built into the legislation regarding reports. The Secretary of State must be satisfied that a report will not prejudice criminal proceedings, as set out in Section 36 of the Terrorism Act.

My noble friend also asked about introducing data-sharing protocols. The Home Secretary has agreed in principle all the recommendations in the national referral mechanism review. They included data-sharing protocols.

The noble Baroness, Lady Lister, was probably having another go at trying to get an answer, so I hope that this is a more satisfactory response. The focus of the commissioner is to drive improvements in the operational response to tackle modern slavery. On the ground, the Government expect that in pursuance of this objective there will be significant human rights benefits. However, the Government are confident that it is not necessary to create a national human rights institution like the Equality and Human Rights Commission in order to achieve this goal. I hope that goes somewhere. Perhaps when she reads it in Hansard, it might help. If not, then of course the opportunity to come back is there.

5.45 pm

My noble friend Lord Deben made a very powerful speech and expressed a number of points. I want to reflect on them very carefully, as he asked me to do. I will do that.

On whether the number of convictions could be used, I take this opportunity to put on record the fact that on a previous day in Committee when I referred

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to 226 convictions, that was in fact the number of cases flagged up by the Crown Prosecution Service as involving modern slavery. The actual number of convictions in 2013 was 68. When that figure is compared to the 10,000 to 13,000 people who we think are victims in this country, that is the reason that, in the words of the noble Lord, Lord Patel, we need to put a rocket behind the prosecuting authorities to make sure that the anti-slavery commissioner focuses on that. However, he also has to focus on identifying the victims of those offences.

I was grateful for the conversation that my noble friend Lady Newlove, the Victims’ Commissioner, and I had. I found it extremely helpful. She spelled out the importance of that role and that the people who come forward are not to be treated simply as witnesses in a prosecution but are victims of a heinous crime and need full attention so that we can take steps to repair as far as possible the damage which has been done by the criminals involved. In my conversation with Kevin Hyland, I mentioned our meeting, the idea of the memorandum of understanding and looking at the annual reports which my noble friend lays before Parliament and which it is anticipated that the Independent Anti-slavery Commissioner will lay before Parliament to see how they could work more closely together. It seems to me that they are both extraordinarily able people and we are fortunate to have them in their roles. If they get together and work out what they want to ensure that we have legislation and roles that work in the interests of victims, that is something to be welcomed.

The noble Lord, Lord Hylton, referred to the international dimension. I think I have referred to that in terms of the Santa Marta group and the references to the strategy. The noble Lord, Lord Judd, also referred to that from his distinguished record in international humanitarian work. I refer him to the comments which were made, as I do my noble friend Lady Hodgson of Abinger, who spent some time outlining the international directions of this and wants to see that we have embassies and high commissions, particularly in target countries, working on this. I repeat that assurance.

The noble Lord, Lord Browne, asked about the ad hoc reports and the meaning of “permitted matter”. The amendment to the definition of permitted matters has ensured that it is now no longer only the Secretary of State who may authorise ad hoc reports. I assure the noble Lord that in practice this does not prevent the commissioner requesting to be asked to write a specific report. The commissioner will need to do this only if it is a matter which is not considered in the strategic plan, which of course can be revised by the commissioner and submitted to the Secretary of State for approval at any time. There is another element in relation to the anti-slavery commissioner which is that, where there are changes and redactions to be made, they are to be agreed between the Secretary of State and the Independent Anti-slavery Commissioner.

I have tried as far as possible to address the points raised. I repeat the assurance that this is very much work in progress. There is no arrogance in terms of saying that we have got it absolutely right. I want

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carefully to reflect on the substantive contributions to this debate, but in the mean time I ask the noble Lord to consider withdrawing the amendment.

Lord Warner: My Lords, the last part of the Minister’s remarks was, I think, the most helpful. We have heard some extraordinarily powerful speeches this afternoon, particularly from the noble Lords, Lord Patel and Lord Deben. The Minister said he would reflect on those views. The mood of the House is very clear across the Benches that the remit of the anti-slavery commissioner needs to be widened and the shackles of the Home Office need to be loosened in the Bill. I noticed, slightly twitchily, that the Minister talked about the modern slavery strategy almost, on occasion, as a kind of substitute, avoiding memoranda of understanding—devices, I would suggest, for avoiding making some of these changes to the Bill. I think that most noble Lords who spoke this afternoon expect the Minister to come back with some changes in the Bill about the remit of the anti-slavery commissioner. As long as the Minister is clear about that, I am very happy to withdraw my amendment.

Amendment 66 withdrawn.

Amendments 66A to 68B not moved.

Baroness Garden of Frognal (LD): My Lords, I shall speak also to Amendments 70, 71, 75 and 76 in this group. I suspect that this group will not detain your Lordships to quite the extent that the first group did. As noble Lords will be aware, when the Bill was introduced in June, the remit of the Independent Anti-slavery Commissioner was limited to England and Wales. After very constructive discussions with the devolved Administrations, the Government brought forward amendments in another place to extend the remit of the commissioner to cover the whole of the UK, subject to the approval of the Scottish Parliament and Northern Ireland Assembly.

The amendments I propose today are technical changes to ensure that the limited and specific redaction powers in relation to reports made by the commissioner fully reflect responsibilities within the Scottish Government. These amendments make it clear that, where a report may inadvertently prejudice the prosecution of an offence under the law of Scotland, the Lord Advocate is the appropriate person to remove the necessary material from the report. We have worked closely with the Scottish Government to extend these measures and are content that the commissioner will still work effectively with this amended redaction power.

A supporting memorandum of understanding will set out the timeframes around the exercise of the redaction powers to ensure that there is no undue delay in the publication of the commissioner’s reports.

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Given that these amendments support the UK-wide remit of the commissioner, I hope that the House will support them. I beg to move.

Amendment 69 agreed.

Amendment 69A not moved

Amendments 70 and 71 agreed.

Amendment 72 not moved.

Clause 41, as amended, agreed.

Clause 42: Strategic plans and annual reports

Lord Warner: My Lords, I shall speak also to Amendments 72D, 73B, 74AA, 74CA and 74DA in my name. These amendments are all designed to give the anti-slavery commissioner greater freedom of manoeuvre in dealing with the Home Office and to prevent endless procrastination over the release of reports submitted to the Home Secretary and the Home Office, particularly if they contain what I would call “unacceptable messages”. We have been over this ground in both sets of amendments at some length. This is all of a piece with some of our earlier discussions. We have certainly seen in real life how reports of other independent sources of inspection or advice can—how can I put it?—languish in government department in-trays. Some of these amendments attempt to address real issues.

I accept that my amendments are pale imitations of the more radical amendments moved and discussed by the noble Lord, Lord Patel, in the previous group. I would certainly withdraw some of mine if the Government were moved to accept many of his. That is not bargaining across the Table but a statement of fact; the noble Lord has some very powerful amendments which deliver more effectively than my amendments. I do not always travel hopefully about whether Home Office Ministers in this place are able to deliver changes, so I shall press on with my more limited amendments.

Amendment 72ZZA requires the commissioner to produce a three-year plan, not just a one-year plan. That enables him—sensibly, I think—to plan ahead for a reasonable period of time. Amendment 72B

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removes the detailed control of the Home Office over the plan, as prescribed in Clause 42(4), (5) and (6). These seem totally superfluous, given that Clause 42(1) already gives the Home Secretary the power of approval over the strategic plan. Why do we need these extra, more detailed control methods, other than to demonstrate what we have said for some time about the Bill: that it too often finds ways of controlling the room for manoeuvre of the anti-slavery commissioner?

Amendment 73B removes the detailed Home Office control over the nature of the commissioner’s annual report by removing Clause 42(9). It is another attempt to loosen the shackles, in the phrase I used earlier. Amendments 74AA, 74CA and 74DA are designed to ensure that Ministers do not delay in laying the commissioner’s annual report before Parliament, the Scottish Parliament and the Northern Ireland Assembly. They all require the annual report to be laid within a month of receipt by the particular Ministers.

These amendments are in the best interest of the commissioner’s independence and safeguard the position of Parliament and the Northern Ireland Assembly. We have to remove some of these controls in order to give the commissioner more freedom of manoeuvre and to ensure that important reports are not delayed in reaching Parliament and public scrutiny. I beg to move.

Baroness Hamwee: My Lords, I have Amendments 73ZA and 74ZA in this group and it would be very odd if I did not agree with the noble Lord, Lord Warner, given the debate we have just had. I do not think that I need to lay it on with a trowel. However, I will use this opportunity to refer to the duties of the independent reviewer of terrorism legislation, because Section 36 of the Terrorism Act 2006, to which my noble friend referred, has a mere six subsections, and that is it—and he gets on with it. I have still not been able to find the constraints on his report, which would take the form of redactions, to which my noble friend referred. However, as I said, I can understand the need for them for the commissioner as well as for the reviewer.

6 pm

My Amendment 73ZA would add to the items to be covered in the strategic plan a reference—not the most felicitous, but I wanted to get in a mention—to the voluntary sector. It has such an important role in this work, and partnership has, quite rightly, been mentioned several times today. The review of the national referral mechanism refers to the voluntary sector as the “linchpin” and goes on to make some suggestions for change in this context. However, it clearly is a linchpin; I do not know where we would be without it as regards both identifying and supporting victims and survivors of trafficking. So I felt that it was appropriate to have the strategic plan in some way articulate the partnership, and my second amendment would provide for reporting on this. I have also suggested that the strategic plan might make recommendations. I suppose that by its nature a strategic plan makes recommendations—they must be implicit in the planning —but I was not entirely confident of that, so I thought that it was worth raising.

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Lord Bates: My Lords, I thank the noble Lord, Lord Warner, and my noble friend Lady Hamwee for tabling their respective amendments. The provisions that we have put in the Bill enable the commissioner to produce strategic plans and to report in a way that will make a real difference to the fight against modern slavery. Those are important and necessary aspects of the role.

Amendment 72D would remove subsections (4) to (6) of Clause 42, which set out what the plan involves. Removing those subsections would weaken the effect and focus of the plan. It is important that the commissioner sets out a clear plan of action for the time period they specify. The commissioner will be best placed, in consultation with the Secretary of State, to determine what should be in the plan and the period of the plan. Removing those subsections would also seriously weaken the constructive and collaborative relationship we want to establish between the Secretary of State and the commissioner, because the amendment would also remove the provision which permits the Secretary of State to propose modifications to the plan for the commissioner’s agreement.

I fully understand the intention behind this amendment and the concern that the independence of the commissioner should be guaranteed. However, I should set out at the start of my contribution why the provisions in the Bill which relate to the plan take the right approach. If the Independent Anti-slavery Commissioner is to make a real difference on the ground, it is important that he should have a constructive relationship with the Secretary of State. In that way, even if the commissioner’s reports are highly independent and very critical, there is a good chance that they will be implemented and make a real difference, not only through the Secretary of State but through the interdepartmental ministerial group.

The provisions in relation to the commissioner’s strategic plan and reports reflect that. It is the commissioner who prepares the strategic plan. He defines his own role: setting out priorities, objectives, areas he will report on and other activities he will undertake. It is the commissioner who decides how long the plan should last, between one and three years. There is then an opportunity to ensure that there is effective collaboration with the Secretary of State and the devolved Administrations through the process set out for the Secretary of State to approve the plan after consultation with the devolved Administrations. That ensures that the commissioner’s work will properly cover the whole of the UK and that it respects devolution settlements. However, the Secretary of State cannot rewrite the plan. She can approve a plan only where any changes are made with the agreement of the commissioner, so the principle of the independence of the commissioner is respected at all times.

Amendment 73B is consequential on Amendment 72D and removes what the annual report must include. Although I appreciate why the noble Lord has tabled such an amendment, it would not help the commissioner to focus on his key priorities. It is important that the plan indicates what the commissioner will do and the report provides an assessment of how the commissioner has undertaken the activities proposed in the plan.

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That would mean that the report is not structured or focused on tackling the issues that have been collectively identified as priorities.

Amendment 72ZZA seeks to require the commissioner to prepare a three-year plan as soon as reasonably practicable after their appointment. The commissioner can already prepare a three-year plan under the existing provisions. However, the commissioner may wish to draft a plan for a shorter time period, particularly when first in the role, which is why the provisions enable the commissioner to produce a plan that is between one and three years in length. That gives the commissioner the flexibility to decide the period of any plan, based on what he proposes to deliver in that specified time period and having regard for any other relevant factors.

Amendment 73ZA in the name of my noble friend Lady Hamwee seeks to require the commissioner to report on the voluntary sector’s role in relation to providing protection and support for victims and to make recommendations. I have made it clear that the commissioner will set the strategic plan, in consultation with the Secretary of State, and that the plan will be focused on delivering the commissioner’s key aims; namely, to encourage good practice in the prevention, detection, investigation and prosecution of modern slavery offences and the identification of victims.

At this point I join my noble friend in paying tribute to the remarkable work that the charities and NGOs which operate in this area have done over very many years. In many ways this has come to the fore. It has been picked up as an issue by government and is now in the public square. However, long before it arrived there, many of the NGOs and charities to which my noble friend referred had been doing invaluable work in looking after the broken lives that are the result of these crimes.

I firmly believe that the commissioner in setting out his plan will have full regard to the voluntary sector. The noble and learned Baroness, Lady Butler-Sloss, referred to her conversation with Kevin Hyland, who talked about the importance of NGOs and said that he would perhaps draw someone into his senior team who has a significant and respected NGO background to underscore the importance of partnership in that work. I firmly believe that the commissioner should develop his plan first and I am not convinced that it would be helpful to his independence to dictate very specific areas that he should include at this stage.

Amendment 74ZA seeks to require the commissioner to report on the extent to which he has undertaken activity in providing information, education or training. Of course, that is exactly the type of information that we would expect the commissioner to include in any annual report, as well as the other things he may do in pursuance of his functions as set out in Clause 41(3). However, it is not necessary to specify that the commissioner must report on this particular aspect over and above the other things he may do. In addition, we should not stipulate to such an extent the things that the commissioner must report on. That is exactly the type of constraint we are seeking to avoid.

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Finally, Amendments 74AA, 74CA and 74DA require the Secretary of State, the Department of Justice in Northern Ireland, and the Scottish Ministers to lay any strategic plan or annual report they receive from the commissioner as soon as reasonably practicable and no later than within one month of receiving it. Again, I fully accept the intention behind these amendments—to get the reports and plans laid quickly—but they are not needed. The pre-legislative scrutiny report raised this concern. The Government responded positively by altering the Bill so that the annual report has to be laid as soon as is reasonably practicable, as was the Government’s intention in any event. In addition, to support the laying of the strategic plans and annual reports produced by the commissioner, we will be developing a memorandum of understanding between the Secretary of State, the Department of Justice in Northern Ireland and Scottish Ministers to ensure that plans and annual reports are laid promptly and simultaneously, following receipt from the commissioner. This is an area on which all the Administrations agree so that Parliaments and legislatures can undertake scrutiny of them.

In responding, I should deal with the point raised by my noble friend Lady Hamwee about Section 36 of the Terrorism Act 2006. With regard to redaction under subsection (5):

“On receiving a report under this section, the Secretary of State must lay a copy of it before Parliament”

as soon as the Secretary of State is satisfied that doing so will not prejudice any criminal proceedings. That is the only element there.

With those comments and assurances, and in the spirit in which I dealt with the previous group of amendments—that we remain open to considering all the comments made—I ask the noble Lord to withdraw his amendment.

Lord Warner: My Lords, I accept the emollient way in which the noble Lord has responded. We seem to be making progress. When I tabled these amendments I recognised that they were makeweights to the rather wider, more sweeping amendments that were in the previous two groups. As the noble Lord goes away and reflects, he should look again at the evidence to the Joint Committee from the overseas rapporteurs. It shows a level of trust between the rapporteurs and Parliament and Government that does not require Government to specify in enormous detail, in primary legislation, how people are going to behave. If he looks at that, he will see why I tabled these amendments. In that spirit, I beg leave to withdraw the amendment.

Amendment 72ZZA withdrawn.

Amendments 72ZA to 74E not moved.

6.15 pm

Amendment 75 agreed.

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Amendment 76 agreed.

Clause 42, as amended, agreed.

Clause 43: Duty to co-operate with Commissioner

Baroness Hamwee: My Lords, I have two short amendments in this group. I will come back, outside the Chamber, to just what Section 36 says. I am not taking issue with the substance, in any event.

Amendment 76A would delete Clause 43(4). The clause is about the duty to co-operate with the commissioner. It provides that complying,

“does not require or authorise any disclosure of information which contravenes any other restriction on the disclosure of information (however imposed)”.

Looking at Clause 43(4) alongside Clause 43(3), which provides that disclosure,

“does not breach any obligation of confidence”,

I would like to ask my noble friend why one is accepted by the legislation and the other is not. Why does data protection, as I assume it is, apply but not confidential—I am not sure about privileged—information?

My second amendment, Amendment 77A, is quite different, but it is to enable me to ask a question. Clause 43(6) refers to regulations being allowed to be exercised by Scottish Ministers and by the Department of Justice in Northern Ireland. I have suggested that the Welsh Assembly Government be added to the list in order to ask my noble friend about the question of health. Health, after all, is one of the issues to which we need to have regard when we are looking at the needs of people who have been trafficked or enslaved. This seems to me very relevant. I do not know whether it is intended that Wales should come under Clause 43(6)(c), as “any other public authority”—I think that they might be a bit insulted if that were the case—or whether I have got it wrong that health is not intended to be covered in all of this. I beg to move.

Lord Bates: My Lords, I am grateful to my noble friend for moving this amendment and I will try to deal with the questions of clarification that she raised.

The effect of Amendment 76A would be to permit public authorities to provide information to the commissioner where it would otherwise contravene restrictions on the disclosure of information, other than those as a result of an obligation of confidence under the common law. Therefore, public authorities

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would, for example, be obliged to disclose information to the commissioner where such a disclosure would otherwise be restricted by statute or order of the court. While we want to ensure that the commissioner is able to gain access to information from relevant authorities to improve the UK’s response to modern slavery, in doing so we must ensure that we are not requiring those authorities to provide information in breach of existing restrictions on information sharing or permit authorities to disregard court orders, although we recognise that a balance has to be struck.

For this reason the public authorities and officials have been given a certainty that they will not be breaching any obligation of confidence under the common law when providing information to the commissioner. We consider that this subsection ensures that we achieve the right balance between respecting existing information safeguards and ensuring that the commissioner has the necessary powers to carry out the role effectively.

My noble friend’s Amendment 77A seeks to create a power for the Welsh Government to specify which Welsh public authorities are required to co-operate with the commissioner. The Welsh Government play a key role in the UK’s effort to tackle modern slavery. They are active participants in the interdepartmental ministerial group on modern slavery, and we have worked innovatively and determinedly to raise awareness of modern slavery and improve the response in Wales. We have worked closely with the Welsh Government on the development of the Modern Slavery Bill.

The focus of the commissioner’s work, and indeed of this entire Bill, is to combat crime and protect its victims, which are non-devolved matters as regards Wales. Engagement with Welsh authorities by the commissioner would seek to deliver on these objectives and any infringement on those authorities’ devolved functions is entirely incidental to, or consequential on, this purpose. It is therefore wholly appropriate, and consistent with the devolution settlement for Wales, for the Home Secretary to specify that a Welsh public authority is required to co-operate with the commissioner without the need for regulations made by the Welsh Government.

The Welsh Government have been regularly consulted on the role of the commissioner and it is worth nothing that they have not requested the inclusion of a regulation-making power within this clause. We will, of course, consult fully with them before specifying Welsh public authorities in regulations. I pay tribute to the good co-operation which is already taking place between the Welsh Government and the UK Government in relation to modern slavery issues.

Given this explanation, I hope that my noble friend will feel able to withdraw her amendment.

Baroness Hamwee: My Lords, I will, of course, do so. I felt that the response to Amendment 76A was more about “the what”, which I think I understand, than “the why”. However, I do not want to comment further without having had the opportunity to read what my noble friend had to say.

I am not sure that I am persuaded about Wales but that is perhaps not a discussion for now: we may have

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other opportunities to do so. I will think about that further and perhaps have a word with my noble friend about it. I beg leave to withdraw the amendment.

Amendment 76A withdrawn.

Amendments 77 and 77A not moved.

Clause 43 agreed.

Clause 44 agreed.

Clause 45: Defence for slavery or trafficking victims compelled to commit an offence

Baroness Garden of Frognal: My Lords, in moving government Amendment 78, I wish to speak also to government Amendments 79 to 84 in this group. I thank noble Lords for tabling Amendments 80A, 82A, 83A and 84A, which are also in this group, and which all relate to the statutory defence for victims.

Since Second Reading, we have reflected on the specific circumstances of child victims who commit offences as a direct consequence of their slavery or trafficking situation, and that is why I am moving these government amendments. They remove the test of compulsion for children who commit an offence as a direct consequence of their trafficking or slavery situation.

Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. It is vital that genuine victims, trapped by their circumstances in a world of crime, can feel confident to come forward and give evidence without the fear of being inappropriately prosecuted or convicted. We currently have measures in place to meet this objective through the use of prosecutorial discretion by the CPS, backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process. The Director of Public Prosecutions issued revised guidance earlier this year to prosecutors, setting out clearly the policy on non-prosecution of victims.

However, the pre-legislative scrutiny committee heard significant evidence that victims, including child victims, were still being prosecuted for crimes committed while being trafficked or enslaved. The committee looked at the arguments carefully and on balance recommended the creation of a statutory defence as an added protection for victims. The pre-legislative scrutiny committee also recognised that there are risks involved in the radical step of a new defence. There is a need for appropriate safeguards to ensure that a new defence is effectively applied and is not open to abuse—for example by organised criminals, even if they have once been trafficked

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themselves. There is a delicate balance to be struck here and we want to get that balance right.

To be effective, the defence must work effectively for both adults and children who may commit an offence while in a slavery or trafficking situation. We have listened carefully to parliamentarians and NGOs which have raised the particular situation of children. To that end, government Amendments 78 to 84 remove the requirement for a child victim to prove that they were compelled to commit an offence. This will ensure that, regardless of whether a child felt compelled to commit an offence, they will be able to invoke the statutory defence when the offence was committed as a direct consequence of their trafficking or relevant exploitation. The other aspects of the test for the defence will remain, notably that a reasonable person of the same age and in the same situation as the child would have no realistic alternative but to commit the offence.

We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality. I am confident that the defence as drafted will protect those people, while at the same time ensuring that criminals acting on their own volition cannot use a protection for the most vulnerable to get away with their crimes.

I look forward to listening to the debate as noble Lords move their amendments and will respond to those in due course. However, I hope that the House will support these government amendments, which improve protection for child victims. I beg to move.

Baroness Kennedy of Cradley: My Lords, I shall speak to Amendments 80A and 82A.

I very much welcome the Government including a non-prosecution defence in the Bill. It is right to target the real criminals who wallow in the wealth that they have made from exploiting the vulnerable. They have to be stopped from getting clean away. A non-prosecution defence for victims is critical to achieving this. Not only will it protect the human rights of adults and children and stop them being punished for the crimes of their traffickers and slave masters, it will ensure from the outset that victims are seen as witnesses to enable the successful prosecution of traffickers and slavers, so that the real criminals are brought to justice.

I also welcome the government amendments to remove the element of compulsion before the non-prosecution defence can apply for children. Where my position differs from that of the noble Baroness is that my Amendments 80A and 82A seek to remove the inclusion of a “reasonable person” test before the non-prosecution defence applies to adults and children. I shall explain as simply as I can why I think it is necessary to remove this “reasonable person” test for adults, and particularly why it has to be removed for children.

First, the addition of a reasonable person test is an extra hurdle for a non-prosecution defence that does not exist in international law. Article 8 sets just two tests for a non-prosecution defence to apply: that a person’s involvement in criminal activities needs to be compelled and a direct consequence of their being trafficked. Clause 45 therefore goes beyond what we

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need to do to bring the UK into compliance with our international obligations. To quote Parosha Chandran, an expert barrister in the field of human trafficking, its inclusion is “a potentially unlawful tier” that does not exist in Article 8 of the EU directive on human trafficking.

Secondly, the UK has many joint investigations with police forces in other countries. This is necessary because the organised criminal networks we all seek to prosecute operate transnationally. For example, a gang may force trafficked victims to steal from museums in London, Florence, and Paris, and threaten to harm their families if they do not do so. In this situation, Article 8 would be correctly and swiftly applied in France and Italy. Therefore, the victims would be free from the risk of prosecution and would be able to stand as credible witnesses in the criminal prosecutions of the organised criminal network which trafficked them. However, if the authorities in France and Italy asked for the assistance of the UK in approaching trafficked victims who committed robberies in London in order for them to give evidence against the network, the reasonable person test would mean that the UK could not give any guarantees in this regard. The UK would be forced to say that the trafficked victims would be acquitted only if the jury accepted that the conditions of the test were satisfied. Have the Government considered how the inclusion of this test may impact on our cross-border operations to ensure that traffickers are prosecuted?

Amendment 82A seeks to remove the reasonable person test for children. The particular vulnerabilities of children have been discussed many times in this House throughout our discussions on the Bill. Children specifically should not have to satisfy a reasonable person test before a non-prosecution defence applies for three reasons. First, the addition of a reasonable person test goes further than our own existing law for children. In the landmark case of R v L and others the Lord Chief Justice and his colleagues pronounced that only two questions must be addressed for the non-prosecution principle to apply to child victims: age and the criminal offence need to be,

“consequent on or integral to the exploitation”.

This is mirrored in the current CPS legal guidelines on human trafficking as regards children, where it states:

“When considering whether to prosecute a child victim of trafficking, prosecutors will only need to consider whether or not the offence is committed as a direct consequence of, or in the course of trafficking”.

This guidance does not put a third legal reasonable person test into the guidelines after that landmark case. The CPS guidelines repeat the two tests necessary for a non-prosecution defence to apply, namely age and if the offence is directly due to the trafficking. So if Clause 45 is passed unamended, it will go further than our existing law and our obligations under international law. Therefore, when the CPS guidance is rewritten following the passage of this Bill, it will end up being tougher than it is now. The reasonable person test keeps the compulsion test in, but in a different form of words. It will lead to more prosecutions being sought, not fewer.

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6.30 pm

Secondly, the addition of the reasonable person test will stop the traffickers and slave masters being promptly investigated, charged, tried and convicted. The test will undoubtedly influence the police to press charges and the prosecutors to proceed to prosecute on the basis that a jury can now decide. Again, this will lead to more prosecutions, not fewer.

Thirdly, it will stop children being treated as victims from the outset. As Karen Bradley MP said in Committee in the other place, the purpose of this non-prosecution defence is to give victims of slavery and trafficking the space to say, “I am a victim. I should not be prosecuted”. It should allow them to be heard by the criminal justice system. It is not to let criminals off the hook. It is to ensure that the police and CPS take a proper look into the trafficked or enslaved status of a victim. As the Joint Committee, of which I was a member, said, the question we need a non-prosecution defence to answer is not “Did the victim commit the crime?” but “Should that victim be prosecuted for it?”. The addition of the reasonable person test for children negates all this, leading to more prosecutions, not fewer.

For these three important reasons, I am disappointed that the Minister’s amendment removing the compulsion element for children stops short of removing the reasonable person test. I am very concerned that, as drafted, with the reasonable person test remaining, this could have a detrimental effect on children. I do not understand the logic of adding an additional test and an extra barrier to a non-prosecution defence to apply for children when that test is not part of our current law or guidance, is not part of Article 8, could aid the escape from justice of the evil trafficker, could stop children being seen as victims from the outset, and, finally, makes little sense for children.

I think it is very hard—if not impossible—for a person to place themselves in the mind of an enslaved or trafficked child. Many children are happy to help their trafficker—they see them as family. Many children see their enslaved circumstance as the norm and even though they are free to come and go as they please they return to the trafficker every night. Many children are brought up never to question adults and always do exactly as they say. Many children believe vehemently in the witchcraft and ju-ju rituals carried out on them that bind them to their trafficker.

A person would need to understand the cultural, supernatural and psychological impact a trafficker can have on a child as well as the fear they feel. This is a test too high for children. The addition of the reasonable person test effectively rolls back the progress that has been made as regards non-punishment of victims of trafficking. As regards children, our role should be to help and protect these vulnerable children, not make their ordeal worse. I hope that the Minister will support Amendments 80A and 82A.

Lord Rosser (Lab): Our amendment proposes a new clause to the Bill providing for the Director of Public Prosecutions to issue guidance on the charging of known or suspected victims of human trafficking, and for a prosecution of a trafficked, enslaved or exploited person to be reviewed by the Director of Public Prosecutions before going to trial.

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The first part relating to guidance reflects a feeling from a number of groups and organisations involved in these cases that it is far from clear how the Crown Prosecution Service deals with the public interest test when looking at victims of trafficking. We need to reduce uncertainty about when victims will be prosecuted. A model for the clarity of guidance called for in our amendment is the DPP’s guidance in relation to a totally different issue—assisted suicide.

On authorisation for a trafficking prosecution, which is also addressed in our amendment, we want to establish the principle that prosecutions of trafficking victims should happen only in exceptional circumstances, which is why we wish prosecutions of those who have had a national referral mechanism decision or are awaiting one to be authorised at the most senior level, namely the Director of Public Prosecutions.

Trafficked victims can be badly damaged and vulnerable and can wait 12 months in remand before a trial goes ahead, which only adds to their problems considerably. Evidence from the Helen Bamber Foundation to the Joint Committee on the Bill referred to the need for women to feel supported—to feel that they would be believed and that they would not normally be prosecuted. Allowing prosecutions to go ahead goes along with what traffickers would have told their victims: that they would do better to stay with them than go to the authorities and be prosecuted and deported.

Similar evidence from the Poppy Project discussed the 55 women that it has helped in the past year who were identified as trafficking victims only once they were in prison, usually on remand. Another example from the Poppy Project involved an adult woman who had been underground for 11 years in a brothel. She escaped and used a passport that her trafficker gave her and that she thought was legal. It was not and she ended up being imprisoned for immigration offences, even though she was not the one who had committed the crime. No one, it seems, investigated the trafficker who had given her the passport and who was able to carry on recruiting and procuring more victims. While the crime the woman committed was not committed during enslavement, it undoubtedly arose from her trafficking.

One consequence of the examples to which I have referred is that it seems almost certain that more trafficking victims have been prosecuted in this country than traffickers. There is a need for all those coming into contact with people who have been or may have been trafficked to be able to recognise the offence and that we do not find such cases ending up in court unless authorised at the top level as being appropriate to prosecute. I hope that will also be the Government’s objective and that the terms of our amendment will be accepted.

Finally, I would like to raise one point on the issue that my noble friend Lady Kennedy of Cradley has so effectively raised in relation to the reasonable person test. My point is simply a query, since I shall await with interest the Government’s response to her amendments. On the reasonable person test in Clause 45(1)(c), I ask the Minister whether the reference to the reasonable person “in the same situation” as the slavery or trafficking victim means that the assessment

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of whether a reasonable person would have had no realistic alternative to doing the act which constitutes the offence will be based on a view of what a reasonable person who had had experience of suffering the same kind of traumatic experiences and effects as the victim would have done. If so, how many people, in the Government’s view, would be able to make that assessment?

Baroness Hamwee: My Lords, like the noble Baroness, Lady Kennedy, I welcome the principal provisions, but I share her concerns. I thought that she was entirely clear in speaking to the amendments. Trafficking and slavery are trafficking and slavery. Not to be prosecuted for offences committed when one is trafficked or enslaved is a matter of human rights. Those rights should not be dependent on the individual’s characteristics; they are completely separate issues. I do not need to repeat everything that the noble Baroness said, but I will quickly refer—the title is probably longer than the reference—to Policy and legislative recommendations towards the effective implementation of the non-punishment provision with regard to victims of trafficking,by the Office of the Special Representative and Co-ordinator for Combating Trafficking in Human Beings. She said:

“The penalization of a person for acts that they have committed as a cause or direct consequence of being trafficked must be seen in that context:”—

the context of human rights—

“not only does it unjustly punish and stigmatise victims of serious crime; it would also violate these human rights objectives”.

I come back to that. It is not a small point, but it is very specific and clear, and I fear that we will be muddying the waters if the wording remains as it is.

Baroness Garden of Frognal: My Lords, I thank noble Lords for their contributions to the debate, and I am grateful that they felt able to welcome the government amendments.

I turn to the amendments tabled by the noble Baroness, Lady Kennedy of Cradley. As she set out, Amendments 80A and 82 would remove the “reasonable person” test for children and adults. Whenever any statutory defence is created, we must be very careful to ensure that the line is drawn in the right place so that the people who need it can access it, but also to avoid unfairness or injustice to potential victims of serious crime and to prevent the defence being abused by those seeking to escape justice.

The noble Baroness raised concerns that the reasonable person test would breach EU directive requirements, which would make it difficult for us to work in cross-border operations. However, it does not place the UK in breach of the directive. As the pre-legislative scrutiny committee identified, the UK is already compliant with all its international obligations. The test will have no impact on cross-border operations. However, I note what she said, and the comments of my noble friend Lady Hamwee and the noble Lord, Lord Rosser. Perhaps we can agree to discuss this again before Report.

The reasonable person test is an objective test. The “no realistic alternative” formulation in the reasonable person test came directly from the case law that the

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noble Baroness mentioned. In response to the noble Lord, Lord Rosser, on whether the reasonable person would be someone who has suffered the same sort of experiences, that is indeed how that would be applied in these cases. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances. Such a defence may not be justified in every case. For example, the courts have consistently ruled that the defence of duress can never apply in cases of murder. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but society. An objective test plays a crucial role here: allowing a prosecutor or jury to consider all the circumstances, while also considering the accused’s characteristics, such as age and the other characteristics set out. We consider that removing the objective test would leave the defence dangerously broad.

Turning to Amendment 84A, which deals with Director of Public Prosecutions’ guidance on non-prosecution of victims, the Code for Crown Prosecutors is issued by the Director of Public Prosecutions. It gives guidance to prosecutors on general principles to be applied when making decisions about prosecutions. The code requires the prosecutor to complete two stages: is there sufficient evidence to provide a realistic prospect of conviction, and is a prosecution required in the public interest? It is not the case, and never has been, that just because there is sufficient evidence to bring a prosecution the public interest will require one. That discretion is a vital protection and helps avoid unnecessary or unjust prosecutions. The code is supplemented by a body of legal and policy guidance on specific offences and procedures, which includes guidance on suspects in a criminal case who might be victims of trafficking or slavery. This is updated on a regular basis to reflect case law or any other changes and is published on the CPS website.

6.45 pm

The new clause would place the guidance on a statutory footing, require it to be published only after consultation with the Independent Anti-slavery Commissioner, and require the Director of Public Prosecutions to review any prosecution involving a victim of slavery, trafficking or exploitation. The DPP has already revised the relevant guidance this year, so there is no need for a statutory duty to ensure that this important guidance remains in place or is updated. I am sure that, after the passage of the Bill, the DPP will in due course review the guidance again to make sure that it remains up to date.

I understand why the Opposition have included in their amendment a requirement to consult with the Independent Anti-slavery Commissioner on the guidance. It will be vital for the Anti-slavery Commissioner to work closely with the CPS to ensure that all agencies can improve their response to modern slavery. However, it would be most unusual for the Director of Public Prosecutions to have a statutory duty to consult with a particular person before developing or issuing guidance. It is unnecessary to legislate in this way. The Director of Public Prosecutions operates independently under the superintendence of the Attorney-General, who is accountable to Parliament for the work of the CPS.

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The DPP will invariably consult with stakeholders and interested parties as to the content of any guidance that she issues. However, the final shape and effect of any guidance published will, of necessity, need to be determined by the DPP alone and not by others, no matter how expert in the field they may be.

The amendment also suggests that cases involving prosecutions of victims of slavery or trafficking should have to be reviewed by the DPP personally. The CPS already has procedures in place to ensure the careful review of cases involving trafficking victims. In all cases where there is evidence or information that suggests that a suspect might be the victim of trafficking, the case will be reviewed by a suitably senior and experienced prosecutor in light of that information. However, in nearly all cases that have been referred to the Court of Appeal, information about the defendant’s trafficking status has not come to light until they are already serving sentence, as the noble Lord said. That is why the commissioner has a key role to play in ensuring that all agencies and organisations can identify victims effectively and promptly.

The new clause seeks to set out how the CPS should identify a potential victim. We have some concerns about this. The evidence that the CPS bases a decision on is not the same as evidence adduced at court, which is ultimately a matter for the judge and jury, having regard to all the evidence. Proposed new subsections (5)(b) and (c) relate to court proceedings and do not appear relevant to what we want to see: early identification of victims before prosecutions are brought.

We all want this defence to apply when vulnerable, abused and exploited individuals are forced into criminality, while at the same time ensuring that criminals acting of their own volition cannot use a protection intended for the most vulnerable to get away with their crimes. That is why we tabled the government amendments, which, importantly, remove the test that requires children to be compelled to commit an offence. I believe we now have the right balance between providing additional protection for victims and avoiding creating a loophole in the law that would allow wrongdoers to go free. With those assurances and the commitment that we will discuss this again before Report, I hope that noble Lords will feel able not to press their amendments and to support the amendments in the name of my noble friend Lord Bates.

Lord Rosser: Before the noble Baroness sits down, I referred in my contribution to the evidence from the Poppy Project of the 55 women who have been helped in the past year. They were identified as trafficking victims only once they were in prison, usually on remand.

Am I to take from the Government’s response to Amendment 84 that they are now satisfied that with the Bill they have put measures in train to prevent that kind of situation arising? The purpose of our amendment was to say that the prosecution had to be reviewed at the top level, by the Director of Public Prosecutions, before going to trial. Referring to the DPP issuing the guidance was an attempt to stop that kind of situation arising. If the Government are saying that they are satisfied that what they are doing will also address the situation to which I referred, I would be grateful to have it confirmed and on the record.

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Baroness Garden of Frognal: The noble Lord is right in saying that the measures we have put in train should avoid that situation arising again. We are seeking to identify the victims before prosecutions are brought, to ensure that all the relevant evidence is there and that all the concerns about their situation are brought to the fore in any legal case.

Lord Alton of Liverpool (CB): I am very grateful to the noble Baroness for the responses she gave to the noble Lord, Lord Rosser, and the noble Baroness, Lady Kennedy. She will have seen the representations by the Refugee Children’s Consortium, which refer to the link between the compulsion test and the reasonable test. Specifically, it says:

“Now the compulsion test no longer applies to children, the reasonable person test in relation to children is obsolete and should also be removed”.

As the noble Baroness goes away to reflect on the points made in this very helpful debate, will she promise us that she will look specifically at the representations made by the consortium?

Baroness Garden of Frognal: My Lords, we will, indeed, look at them very carefully because it is important to get this right.

Amendment 78 agreed.

Amendments 79 and 80 agreed.

Amendment 80A not moved.

Amendment 81 agreed.

Amendment 82A (to Amendment 82) not moved.

Amendment 82 agreed.

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Amendment 83 agreed.

Baroness Kennedy of Cradley: In Schedule 3 there are very serious, violent crimes listed and it is understandable why they have been included. However, there are over 130 different offences to which the non-prosecution defence will not apply and along with the very serious—murder and rape—there are offences relating to immigration, criminal damage and theft. Schedule 3 has ramifications for victims, so the offences listed, and the existence of such a schedule, should not become law without a debate in this House. We should probe a little deeper and consider five issues with the Schedule.

First, does such a list help the trafficker? Evil minds work in evil ways. To a trafficker, Schedule 3 could be an escape strategy. It has been described, by Parosha Chandran, an award-winning human rights barrister, as a traffickers’ charter. It is a list of crimes that traffickers know the state will prosecute for—they just need to find victims to do them—and traffickers will make sure that victims know that the state will prosecute for those crimes. Will the Schedule therefore have the unintentional effect of dangerously exacerbating the vulnerabilities of those who are already enslaved or trafficked and lead them to become involved in more serious crimes?

Secondly, does such a list lead police and prosecutors to stop looking for the signs of slavery and trafficking for these offences? Despite clearly listing the offences most frequently committed by enslaved and trafficked adults and children, the guidance we already have has not been effective in stopping victims being prosecuted and convicted for these offences. There are a number of examples where no police investigation into the victim’s situation, as a trafficked or enslaved person, has taken place and the victim has been wrongly imprisoned. Even when crimes are flagged as frequent crimes of trafficked victims in the CPS guidance, there is still little or no investigation. So a list of crimes specifically for non-prosecution may never lead to an investigation into the trafficked or exploited situation of the victim. This means that, once again, the traffickers get clean away.

Thirdly, does such a list contain the right offences? As pointed out in the other place, the impact assessment of this Bill states that Schedule 3 is drawn from Schedule 15 to the Criminal Justice Act. However, immigration offences are in Schedule 3 but not in

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Schedule 15. As Michael Connarty MP rightly asked, how can we deny a trafficked victim the right to a statutory defence because they resist arrest? We know that children especially—and adults too—are suspicious of authority, because the traffickers have made them that way; they are scared and do not understand the language. Should this offence be included?

Fourthly, the crime that a victim is typically forced to commit today is not what they may be forced to commit tomorrow. Even though there is provision in the Bill for Schedule 3 to be reviewed, this takes time. In this time, victims are being criminalised by our system and the traffickers are making their escape.

Finally, the facts are established for each individual case, no matter what the crime. If a crime is committed, whether or not it is listed in Schedule 3, the police will investigate and the CPS will still consider whether the evidential threshold has been met, whether it is in the public interest to prosecute and whether the non-prosecution defence applies. If the police and CPS can satisfy themselves that they can secure a conviction by being able to prove their case beyond reasonable doubt, they will proceed to prosecute—whether the offence is listed on Schedule 3 is immaterial, as the child or adult will be prosecuted. If the offence is serious it would, inevitably, be in the public interest to prosecute. Why is the list of exceptions necessary? In Committee in the other place, Peter Carter QC, said:

“I think legislating by list of exceptions is a recipe for disaster and confusion”.—[Official Report, Commons, Modern Slavery Bill Committee, 21/7/14; col. 36.]

I agree. I beg to move.

Baroness Hamwee: My Lords, I support the points made by the noble Baroness, who has pointed to unintended consequences, among other matters. This is a list of the most serious offences and there has not been much consideration of offences which may very often be committed in the context of trafficking. The noble Baroness rightly referred to the violation of immigration law. We heard this afternoon of an instance of false information relating to travel documents. To my mind—I am completely unbiased of course—this sort of thing is entirely understandable.

Looking at the list, I was interested in the inclusion of Sections 1 and 2 of the Bill, when we know that some victims of trafficking and slavery are forced into positions where they act on behalf of their own slave-masters in carrying out some of the acts which are comprised in those offences. But that is no different in substance from the concerns that the noble Baroness has raised about other matters. I share that concern. I do not think that by including the list we are doing anything other than creating difficulties for ourselves in applying the non-prosecution provision.

7 pm

Baroness Butler-Sloss: My Lords, it is entirely understandable that Schedule 3 should be part of the Bill. It is important that the serious offences should not be included in a defence. However, listening to what the noble Baronesses, Lady Kennedy and Lady Hamwee, said, and looking through Schedule 3, it seems to me that a great deal of it is utterly unnecessary.

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I remember discussing this with the former Attorney-General, Dominic Grieve, at a time when he was eventually agreeing that there should be a defence at all. He said that Schedule 3 would apply and I cheerfully said, “Yes, of course it will apply”, but I did not read all the way through. It was not until this version of the Bill came, with all these exceptions to the defence, that one sees that this really goes beyond what is necessary, as the noble Baroness, Lady Kennedy, has put out extremely effectively. As the noble Baroness, Lady Hamwee, says, that may be a problem.

I would have thought that this was absolutely a situation in which the Government, with the assistance of the Director of Public Prosecutions, could sort the wheat from the chaff. A great deal of these offences are not applicable or appropriate for victims of slavery, although they are entirely appropriate in other areas of criminal law where you should not have a defence on these issues. The Government should look at this and consider whether they want the whole of Schedule 3.

Lord Rosser: My Lords, I, too, would like to raise one or two questions about Schedule 3, since my noble friend Lady Kennedy of Cradley has given us the opportunity to consider it.

As I understand it, under Clause 45, a victim is not guilty of an offence only if they have done the act which constitutes the offence because they have been compelled to do that act, the compulsion is attributable to slavery or the relevant exploitation and a reasonable person in the same situation as the person, and having the person’s relevant characteristics, would have no realistic alternative to doing that act. If the victim has managed to meet these requirements, Clause 45(1) still does not apply if the offence committed is listed in Schedule 3, which, as has already been pointed out in another way, extends to six and a half pages of offences. Some are easily understandable for being on that list, such as murder, manslaughter and kidnapping, but others are not so obvious bearing in mind the requirements under Clause 45 that the victim will already have had to meet in order to use Clause 45 as a defence.

In view of that, how does the Minister justify the need for such an extensive list of offences for which a victim can be found guilty even though they have met the three requirements to which I have already referred under Clause 45(1)? How and against what criteria was this list of offences compiled? To look at one example, included in the list is an offence under Section 25 of the Immigration Act 1971 of assisting unlawful immigration to a member state, which is an offence one might normally associate with a trafficker rather than the victim. Is there evidence that victims of trafficking are committing this offence of assisting unlawful immigration to a member state unrelated to their being trafficked themselves? If there is, is it also appropriate that they could be found guilty of such an offence, despite meeting the requirements in respect of compulsion and the reasonable person test under Clause 45(1) to show that they cannot be guilty of an offence unless it is listed in Schedule 3?

Lord Alton of Liverpool: My Lords, like the noble Lord, Lord Rosser, I am puzzled by this. In Part 5, Clause 45(1) seems clearly to set out, in paragraphs (a), (b) and (c), under what terms prosecution would ensue

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or not ensue. As the noble Baroness, Lady Kennedy of Cradley, has rightly told us, the danger with lists is that there may well be things that have not been included on the list that might in due course pertain. I simply ask what may be an entirely innocent and naive question: why is it not possible to put in the Bill a generic term rather than having to have all these details in the legislation?

Baroness Garden of Frognal: My Lords, I thank the noble Baroness, Lady Kennedy, for tabling Amendment 83A and for asking whether Schedule 3 should stand part of the Bill, which relate to the offences excluded from the statutory defence for victims. I also thank my noble friend Lady Hamwee, the noble and learned Baroness, Lady Butler-Sloss, and the noble Lords, Lord Alton and Lord Rosser, for their contributions.

As we have previously discussed, Clause 45 establishes a statutory defence for slavery or trafficking victims where they have been compelled to commit an offence as a direct consequence of their slavery or trafficking situation. As we discussed in the previous group, this builds on the existing use of prosecutorial discretion by the CPS backed up by bespoke guidance. Ultimately, the courts can stop an inappropriate prosecution of a victim as an abuse of process.

Noble Lords questioned how Schedule 3 was drawn up. It was drafted very carefully in consultation with the DPP and CPS. As the noble Lord, Lord Rosser, mentioned in his previous intervention, it is very important that we get involvement from the DPP and CPS in drafting these pieces of legislation. As I have said, it was with approval and consultation that this list was drawn up. There is a need for appropriate safeguards to ensure that a new defence is applied effectively and is not open to abuse, for example by organised criminals, even if they once have been trafficked themselves. There is a delicate balance to be struck and we want to get that balance right.

Amendment 83A, together with the suggestion that Schedule 3 should not stand part of the Bill, would mean that the defence could apply to any offence, including serious sexual and violent offences such as murder and rape. People who have been enslaved or trafficked may commit criminal offences in a wide variety of circumstances and it will not always be the case that a defence is justified. We must not create a defence so wide that it amounts to a loophole in the law. It is important that we protect not just victims but also society. As we developed the statutory defence, our approach was always to ensure that we covered the types of offences often committed by those who are enslaved or trafficked. We have taken detailed advice from the Crown Prosecution Service on this point. As I have mentioned, the offences listed in Schedule 3 reflect those discussions and discussions with the DPP.

The defence is therefore designed to provide an effective protection against prosecution in the types of circumstances that actual victims of modern slavery find themselves in—for example, cannabis cultivation. The list of excluded offences in Schedule 3 can be amended by statutory instrument if experience shows

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the offences listed are not right and fail to protect vulnerable victims. But, in order to avoid creating a dangerous loophole for serious criminals to escape justice, we think it is right that the defence is not available in the cases—mainly serious sexual and violent offences—as listed in Schedule 3. This does not mean that a victim who commits a Schedule 3 offence in a modern slavery context will automatically face prosecution. Where the defence does not apply because the offence is too serious, the Crown Prosecution Service will still be able to decide not to prosecute if it would not be in the public interest to do so. It is right that in very difficult cases involving very serious crimes, including rape and murder, the Crown Prosecution Service carefully considers both the victim of trafficking and the victim of a very serious crime, and seeks to act in the public interest.

I understand the concern of noble Lords that victims should not be inappropriately criminalised; we agree on that, but that is why we are strengthening protections for victims in the Bill. We must be careful, however, that we do not create a loophole for very serious criminals. In the most serious cases, it is right for the CPS to use its discretion—and I emphasise that there is always discretion in these cases—to act in the public interest, based on the specific facts of the case. We are, of course, open to further discussion before Report, but I hope that these assurances will enable the noble Baroness to withdraw her amendment.

Lord Rosser: My Lords, I ask the following question seriously and not frivolously: if this has been the subject of discussion with the DPP, is it therefore the case that there are already examples of victims of trafficking having committed all those offences listed in Schedule 3?

Baroness Garden of Frognal: No, I do not think for a moment that there are examples of victims having committed all those offences in Schedule 3. This is simply set out for public protection, in order to ensure that serious crimes are not automatically given a free ride as a result of the criminals being victims.

Baroness Butler-Sloss: Looking at paragraph 33 of Schedule 3, I think that the last three offences seem improbable for somebody who is compelled to act as a slave: “exposure”, “voyeurism” and “sexual penetration of a corpse”. I do not really see that those three are likely to arise in the circumstances of a victim of slavery.

Baroness Garden of Frognal: My Lords, I think, perhaps, that we will need to discuss this further before Report, because, as I said, this list was drawn up in consultation with the DPP and the CPS. I presume there was a reason for putting those particular items there; it is subject to review and the discretion of the people concerned.

Baroness Kennedy of Cradley: I thank the noble Baroness for her reply and the way in which she has responded. I hope she will reflect on the points made by many noble Lords. We would welcome the opportunity

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for further discussion on this point. If the CPS has discretion—as it always does in all cases—on the threshold of evidence brought to it by the police, I do not see why a schedule of this detail is necessary. Though it is open to amendment, the time it would take for a statutory instrument to go through this House would be time spent by a victim in the criminal justice system; the trafficker would get clean away. The most serious might still need to be included on a list, but the unintended consequence that may arise by us producing something of such length and detail is that we end up with a traffickers’ charter—a recipe for disaster, as described by a barrister and QC. Obviously, I will withdraw the amendment today, but I welcome the further discussion that the noble Baroness has offered before Report. I beg leave to withdraw the amendment.

Amendment 83A withdrawn.

Amendment 84 agreed.

Clause 45, as amended, agreed.

Amendment 84A not moved.

Schedule 3 agreed.

Clause 46 agreed.

7.15 pm

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(3) Civil legal services provided in relation to a claim for damages arising in connection with the conduct by virtue of which an individual who is a victim of slavery, servitude or forced or compulsory labour is such a victim, but only where—

(a) the services are provided to the individual, or

(b) the individual has died and the services are provided to the individual’s personal representative.

Exclusions

(4) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.

(5) Sub-paragraphs (2) and (3) are subject to—

(a) the exclusions in Part 2 of this Schedule, with the exception of paragraphs 1, 2, 3, 4, 5, 6 and 8 of that Part, and

(b) the exclusion in Part 3 of this Schedule.

Definitions

(6) For the purposes of sub-paragraph (1)(b) there are reasonable grounds to believe that an individual is a victim of slavery, servitude or forced or compulsory labour if a competent authority has determined that there are such grounds.

(7) For the purposes of sub-paragraph (1) there is a conclusive determination that an individual is or is not a victim of slavery, servitude or forced or compulsory labour when a competent authority concludes that the individual is or is not such a victim.

(8) For the purposes of this paragraph “slavery”, “servitude” and “forced or compulsory labour” have the same meaning as they have for the purposes of article 4 of the Human Rights Convention.

(9) The “Human Rights Convention” means the Convention for the Protection of Human Rights and Fundamental Freedoms, agreed by the Council of Europe at Rome on 4 November 1950, as it has effect for the time being in relation to the United Kingdom.

(10) The definitions of “competent authority”, “employment”, “employment law” and “personal representative” in paragraph 32(8) also apply for the purposes of this paragraph.”

(3) In Part 3 (advocacy: exclusion and exceptions), in paragraph 13 for “or 32(1)” substitute “, 32(1) or 32A(1)”.”

Baroness Garden of Frognal: My Lords, I shall speak also to Amendment 102. The Government recognise the importance of providing victims of modern slavery with appropriate protections and support. Currently, victims of trafficking are able to apply for civil legal aid for advice and representation in relation to certain immigration matters and damages and employment claims arising from their trafficking exploitation under paragraph 32 of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Following the pre-legislative scrutiny committee’s recommendation that victims of slavery should be provided with enhanced access to legal assistance, the Government committed to extending this provision to cover victims of all forms of modern slavery; that is what these amendments seek to do. I know that there is significant concern across this House that victims should receive appropriate access to legal aid, so I hope that noble Lords will agree that this measure is both necessary and welcome. I beg to move.

Baroness Butler-Sloss: I congratulate the Government on that; I think it is splendid.

Lord Alton of Liverpool: I add my congratulations to those of my noble and learned friend. The Government have listened to the representations that have been made and their response is to be greatly welcomed.

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Lord Hylton: Following those congratulations, it appears to me that Amendment 85 is, on the face of it, desirable. Is it the Government’s intention that the provision will apply to overseas domestic workers in this country? If that is the case, how will such people get access to the benefit of this proposed new clause? In particular, how will they get access if they have already been deprived of their passport by their employer, if they are locked in by the employer or if they happen to be working seven days a week and perhaps 16 hours or more a day? These are very important and relevant questions, and I look forward to a response.

Baroness Garden of Frognal: They are indeed very important and relevant questions. We shall be coming on to this issue in a later group of amendments, so I suggest that we take up the debate on this topic with the later group of amendments that is related to these particular workers.

Amendment 85 agreed.

Clause 47: Child trafficking advocates

Lord Patel: I add my congratulations on the previous amendment, which was brought by the Government. There are some questions to be asked, and the noble Lord, Lord Hylton, addressed one of them, but there will be others that we will come to later. Meanwhile, I will address my Amendment 85A, along with Amendments 86A, 86B, 86C, 86D, 86E, 86F and 86G. My name is also on Amendment 86, under that of the noble Lord, Lord McColl. I am grateful to the noble Baroness, Lady Lister of Burtersett, and the noble Lord, Lord Judd, for putting their names to my amendment.

I will be brief because I see this as an exploratory or probing amendment, depending on the answers that I get from the Minister. I, of course, welcome Clause 47, which introduces an enabling provision for child trafficking advocates. In the light of the government amendment that we just agreed, we will see whether the legal assistance also applies to advocates. This is a significant and welcome step forward to protect child victims of trafficking. My amendment seeks to raise the issue of another extremely vulnerable group of children who, under current legislation, would miss out on the valuable support of an independent advocate to act in their best interests.

Amendments 85A and 86A to 86G would widen the scope of child trafficking advocates to provide advocates for all separated children. It is the separated children who are my concern. This is important for two reasons. Awarding an advocate to all separated children is, in my view, the only way to ensure that all trafficked children are awarded an advocate who can deal with the problems around identifying the victims of trafficking. Separated children are extremely vulnerable

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and need someone in this country to defend their interests. I can illustrate this with one real example. Let us call the child T for the sake of anonymity. The case study was provided at my request by the Children’s Society.

T is a 14 year-old boy who was referred to the Children’s Society by a walk-in health centre. At the time of referral, T was living with an older couple and some other young people, none of whom were related to him. He had come to the UK two years previously but had never regularised his immigration status, registered with a GP or attended a school. He was made to do all the cleaning and cooking in the house in exchange for his accommodation. The Children’s Society immediately realised that he had been trafficked, so the charity contacted the local authority as a matter of urgency.

Despite all efforts, the local authority and the local police were not sufficiently aware of the London Safeguarding Children Board’s guidance on working with trafficked children, and delayed prioritising the case with the degree of care it needed. The young person escaped from the family and ended up going missing, but due to the trusting relationship that he had built up with his project worker, he made contact again. The project worker went to pick him up and requested social services to arrange an emergency foster placement, which they agreed to do on the same day.

T is now in foster care and has started school. Timely access to education was something that the society had to advocate for strongly since none of the professionals involved seemed to know that an undocumented child is in fact required by law to attend school. T was referred to an immigration solicitor, who is helping him with his asylum claim and court order referral to the national referral mechanism for victims of trafficking. T was granted a “reasonable grounds” decision and is now taking part in social activities in a regular boys’ group. The key message of this case is that the help of a trusted, independent adult to ensure that children such as T can access vital services is needed for the welfare of these children and to ensure that they are recognised as the victims of trafficking.

I will focus in more detail on the problems of identifying victims of trafficking. Trafficked children are frequently not identified as such when they first enter the country. They may not acknowledge or disclose that they have been trafficked for some time. This is because of the level of exploitation they may have suffered at the hands of atrocious criminals, and they may even have been trafficked by a family member. Having an independent legal advocate will help to ensure that more children are identified as trafficked and then receive the support and services they are entitled to.

Separated children are extremely vulnerable. We all know the importance of having someone who is looking out for their best interests. However, many of these children have fled war, persecution and torture; they may have become separated from or even abandoned by their parents and carers once outside their country of origin. They are often physically and emotionally scarred when they enter the country. An independent

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legal advocate would support them while they overcome the language and cultural barriers, and help them to exercise their rights by holding local agencies to account. Without advocates, these children often end up living outside the system, destitute and homeless, and denied the safety and support they need and are entitled to as children.

Finally, there are financial benefits from providing advocates for all separated children. Research by the Children’s Society and UNICEF has found that for every £1 spent on service provision for three years, as much as £1.25 can be saved. This increases to £2.40 once the financial benefits for separated children who reach adulthood at the age of 18 are factored in. I will welcome the Government’s response to this amendment and their view on whether the evaluation of the ongoing pilot of child trafficking advocates will address the problems of identifying the victims of trafficking and review whether advocates should be provided for all separated children. I beg to move.

Lord McColl of Dulwich (Con): My Lords, I shall speak to Amendments 86H, 103 and 104. Along with colleagues from all parties, I have been proposing the introduction of child trafficking advocates under a variety of different names since I first introduced my Private Member’s Bill on human trafficking in 2011. Since then your Lordships have consistently supported this measure as I, with others, have tabled proposals on several occasions over the past three years. Indeed, the clause in the Bill before us today is a direct result of the support shown by this House for the child trafficking guardian amendment to the then Immigration Bill, which was won by a majority of 98. I also recognise the degree to which the Government have moved their position from initial opposition to where we are today, and I am grateful to successive Ministers for taking the time to listen to these debates and engage constructively with the issue and with your Lordships’ concerns.

I warmly welcome the amendments made in the other place to give a stronger commitment to the introduction of child trafficking advocates and in setting out clearly that advocates must always act in the best interests of the child. These demonstrate the Government’s continued openness to listening to the concerns regarding this clause. and I very much hope that the Minister will continue in that vein as he responds to my amendments today.

I know that the Minister will say, as he did at Second Reading, that because there are pilots of child advocates going on around the country in 23 local authorities, we cannot take any further action on advocates during the passage of the Modern Slavery Bill. I support the trials to look into the practicalities of delivery, but I would respectfully disagree with the Minister on the point of substance. I believe that the trials should not hinder us from doing our job to provide the best framework for victims and that we should set out in statute a definition of the powers and functions of an advocate.

Before I explain my amendment, I would like to draw the attention of noble Lords to a significant change in the landscape both practically and politically that has come about since we last debated this matter

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in April. On 20 October, the Northern Ireland Assembly voted to create a system of guardians for trafficked children in the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, introduced by the noble Lord, Lord Morrow. The relevant clause in that Bill contains on the face of the legislation a full statement of the functions of the role, which are similar to those set out in Amendment 86H. I want to clarify for your Lordships that this provision, which was mentioned by various speakers at Second Reading, has been introduced without any sort of pilot scheme being run in Northern Ireland. In his closing speech at Second Reading the Minister said that the Home Office,

“will learn from that”—

the pilots—

“and on that basis set out in regulations what those responsibilities should be. That is exactly the same as what has happened in Northern Ireland”.—[

Official Report

, 17/11/14; col. 323.]

I am sure that the noble Lord was aware that there have been no pilots or trials in Northern Ireland; I am not implying that there were and I wanted to clarify the point.

I turn now to Amendment 86H. I am very grateful for the support of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I have tabled this amendment with their support because I believe that Clause 47 needs to be strengthened to ensure that the advocates are equipped and empowered to be effective in this vital role, to make sure that the clause meets international best practice and that it fulfils the intentions of this House, which were made clear in the Immigration Bill vote in April. It is my opinion that, without Amendment 86H, Clause 47 falls short of these objectives.

7.30 pm

In particular, there is one key aspect of child trafficking advocates which is currently missing from Clause 47: a clear and comprehensive definition on the face of the legislation of the role of the child trafficking advocate. There are two reasons for providing this definition. Without setting out in legislation the details of the advocate’s function, there is the potential for confusion about the particular responsibilities of the advocate and what authority the advocate has in relation to other professionals working with that child. We need to ensure that there will be constructive working relationships between the advocates and all other professionals handling the child’s case. We must also make sure that no gaps can appear due to misunderstanding of the role. During the debate on a similar amendment in December 2013, the Minister, the noble Baroness, Lady Northover, expressed concern that a role such as this could actually make,

“things worse, with other professionals thinking they do not need to concern themselves as much about a trafficked child because their guardian is looking after them”.—[

Official Report

, 9/12/13; col. 655.]

I am delighted that the Government have moved away from that position. However, I believe that we have a responsibility in establishing this system to ensure that we remove any possibility of confusion or of a child falling through the gap. Setting out these functions in legislation will accomplish this.

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We must also equip these advocates with statutory authority when engaging with other agencies. An advocate might need to obtain certain information or advocate for certain action to be taken by agencies working with the child, but without statutory authority there is no guarantee that those other agencies will heed the voice of the advocate or co-operate with them. Following our inquiry, the Joint Committee on the draft Bill concluded that this statutory basis is essential to a well functioning system of advocates. In our report we stated:

“Co-ordinated and timely action on the part of public agencies is more likely to occur if those agencies know they will be held to account and that the advocate has a right to access information and appropriate documents. Both of these functions require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child”.

Placing these functions in law was highlighted as recommended best practice in a handbook on guardianship for trafficked children from the EU fundamental rights agency which was published in June. The handbook states:

“The legal basis of guardianship in national law should include sufficiently precise legal provisions defining a guardian’s duties and functions”.

During debate on the Immigration Bill, I specifically asked the Minister, the noble Lord, Lord Taylor, why he was not proposing that advocates have a legal status. He said:

“That is a question that the Modern Slavery Bill will indeed be able to consider”.[Official Report, 7/4/14; col. 1158.]

So, let us consider it today.

At present the advocates, as contained in the Modern Slavery Bill, have no specific legal powers, nor do they have the authority of statute for any of their functions, because these functions do not appear in the legislation. Amendment 86H provides us with an opportunity to create this legal and statutory authority with full transparency of what we are creating and ensuring that there is no confusion about what a child trafficking advocate may or may not do. Indeed, I know that the Home Office has set out some sort of framework already for these pilots.

I am sure the Minister will respond that he is proposing that the function of the advocates will be in the statute under Clause 47(4)(c). The noble Lord said at Second Reading that the Government will,

“set out in regulations what those responsibilities should be”.—[

Official Report,

17/11/14; col. 323.]

However, I am concerned about the current wording, which says that the Secretary of State “may” make regulations about child trafficking advocates and that power “may” include the functions of a child trafficking advocate. As far as I am concerned, that is all too uncertain and does not require any action on the part of the current or future Secretary of State. The Home Secretary may feel, following the pilots, that regulations are not required and that policy or guidance will suffice. My proposal for a full statutory statement ensures that there will be clear transparency about the role.

As far as international best practice is concerned, I am pressing that we have a clear statement of the powers and functions of an advocate because it is fair

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to say that there is plenty of international guidance on what works best for trafficked children and what is regarded as best practice for the role. The functions in Amendment 86H and in the Immigration Bill amendment voted for by your Lordships in April are based on guidelines for that kind of role produced by UNICEF, the UN and the EU handbook which I mentioned earlier, as are the functions set out in the Northern Ireland legislation. I am greatly concerned that the functions of the advocates determined by the Government following the trials may not meet this international best practice. As I have already said, under the present clause there is no requirement for these functions to be laid out in regulations—there is simply a power to create such regulations. Unless the functions appear in legislation, your Lordships will have limited opportunity to scrutinise them and to ensure that they meet the standards of international guidance.

The functions of the role contained in Amendment 86H and based on this international guidance can be grouped broadly under three headings: first, advocating for the child, assisting them to access services and accompanying them through these processes; secondly, acting as a link between all agencies and professionals engaging with the child; and, thirdly, speaking on behalf of the child where necessary. All three have the overarching aim of reaching a durable solution for the child’s future and acting always in the child’s best interests.

I welcome the addition made by the Government in another place to state clearly that the advocates must act in the child’s best interests. However, that is a statement about how the advocates should act, not what their functions should be.

I wish now to highlight one specific function of the role of the child trafficking advocate contained in Amendment 86H which I believe to be of utmost importance, and which I know is of great concern to a number of NGOs. This is the power of the advocate to appoint and instruct the child’s legal representatives where necessary.

I have been told by barristers who represent trafficked children that they have great difficulty taking instructions from trafficked children. Empowering the child trafficking advocate to step in to fill this gap, where a child is not capable of instructing their lawyers, is vital in ensuring that the best interests of these children are protected at all stages.

Amendment 86H is based on the amendment to the then Immigration Bill passed by this House in April by a significant majority. On that occasion your Lordships demonstrated their commitment to a statutory provision of child trafficking guardians with statutory authority for their functions. Having lost that vote, the Government responded with a promise of a clause in the Modern Slavery Bill. However, the clause presented is in no way equal to that passed by this House in April. If we allow this clause to pass unamended, our intentions will be left unfulfilled. I urge the Minister to accept Amendment 86H and move closer to carrying out the will of the House as expressed overwhelmingly in April.

With regard to the extension to child victims of slavery and forced labour as well as trafficking, my Amendment 86H goes beyond that of Clause 47 and

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of the Immigration Bill amendment in one significant respect. Amendment 86H would make these advocates available to all children who are victims of modern slavery. I am not certain that this Bill is the right place for provisions such as those presented by the amendments of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister, to extend the provision to separated migrant children, but I will listen to the arguments. However, this is a Modern Slavery Bill and it is unclear to me why Clause 47 applies only to victims of trafficking when so many other clauses, including the provision on statutory defence and the guidance about support and assistance for victims, all extend to victims of both slavery and trafficking. The experience and needs of child victims of slavery and forced labour will be very similar to those of victims of trafficking, especially those who are from overseas and away from their families. They should also therefore receive the support of an advocate.

I turn briefly to Amendments 103 and 104, which have been tabled in my name and are also in the group. These amendments would remove the provisions in Clause 57, the commencement clause, which require a further resolution of both Houses of Parliament before the advocate schemes will be rolled out and instead require the Home Secretary to bring the clause into force within nine months of the passing of the Bill. It is my understanding that the Government’s intention with these provisions was a positive one: to provide Parliament with the opportunity for greater scrutiny of decisions made in relation to the commencement of services under this clause—that is, after the trials of the advocates have been completed. In Committee in the other place, my honourable friend the Minister for Modern Slavery and Organised Crime said that,

“the Government will table amendments on Report to strengthen Parliament’s role in deciding whether the provision is to commence after the trials have been completed and evaluated. In other words, I will ensure that the clause is amended so that Parliament has a say over whatever decision is taken by the Secretary of State, given the evidence, to ensure that it is happy with the decision, and there will be a vote to confirm that”.—[

Official Report

, Commons, Modern Slavery Bill Committee, 14/10/14; col. 420.]

Subsections (6) and (7) of Clause 57 were then introduced at Report.

However, I am not certain whether those provisions are necessary or achieve the scrutiny that we might hope for. Let me explain why. In addition to the amendments referred to by my honourable friend the Minister in another place, a further amendment to Clause 47(1) was introduced by the Government on Report. That amendment made provision of child trafficking advocates a duty, rather than simply an enabling power. It appears to me that the resolution mechanism introduced to Clause 57 presents an additional and unnecessary legislative hurdle which has no additional benefit. Although the Minister, the noble Lord, Lord Bates, stated in his letters to Peers following Second Reading that these resolutions can be brought forward by any Peer or MP—which I must confess was not clear to me from reading the clause itself—I believe that Parliament will have expressed its support for provision of these advocates through the passage of the Bill and that no further resolution should be necessary. Instead of this mechanism, I propose in

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Amendment 103 a duty on the Secretary of State to commence the clause nine months after the Bill’s passage.

I have already stated that I welcome the ongoing trials and agree that they will provide valuable information about the practical operation of these schemes. I am therefore content to wait nine months after the passing of the Bill for commencement of the advocates provision, to allow for that learning to be incorporated in the rollout of the system. I am eager to see these schemes begin to operate across the whole country as soon as possible. I mentioned earlier that I first proposed this idea in my Private Member’s Bill in 2011. It is now 2014. Three years have passed and little has been done to address the needs of these extremely vulnerable children and the very real dangers of re-trafficking and further exploitation that they face.

In conclusion, I remind your Lordships that the Northern Ireland Bill has almost completed its passage and that the clause on guardians, which contains a full statutory statement of the functions of the guardian based on international best practice, is expected to commence 10 months after the Bill receives Royal Assent. That will be substantially sooner than is likely for measures set up under this Bill. We face the possibility that trafficked children will be better protected in Northern Ireland than in England and Wales. Let us not be left behind as Northern Ireland moves forward in international best practice standards for supporting child trafficking victims. I commend Amendments 86H, 103 and 104 to your Lordships and ask the Minister to consider them as a means to develop this clause so that it meets all our intentions to protect the most vulnerable children in England and Wales.

7.45 pm

Baroness Butler-Sloss: My Lords, I have put my name in support of these amendments in the name of the noble Lord, Lord McColl of Dulwich. He and I have battled for three years—he having taken the lead—and this is a great moment. The Government are to be congratulated on Clause 47. They are to be congratulated on going as far as they have, but they have not gone far enough.

One of the most important points made by the noble Lord, Lord McColl, was on the child advocate having an absolutely clear statutory position. I remember discussing this with representatives of Barnardo’s who had had to work from time to time with local authorities on children in whom they had an interest and who found that some local authorities would not help them because they had no statutory power. This is a serious matter. You have to be able to say to a local authority, “You’ve got to give this to me”, and not, “Please would you mind giving it to me?”. It is a crucial distinction. In Clause 47(4), to which the noble Lord referred, the fact that it says:

“The Secretary of State may make regulations about functions”,

and about,

“requiring public authorities to co-operate with, and provide information to, child trafficking advocates”,

is not good enough. The word has to be “must”; “may” will not do.

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As the noble Lord, Lord McColl, also pointed out, certain basic things are to be found in our Amendment 86H, the majority of which have to be in primary legislation. However, I can see that much of Amendment 86 could be done by regulation. It seems to me that the Government should go away and have a look at these two amendments. Some provisions could appropriately be made by regulation but the really important ones need to be made in primary legislation to give the child trafficking advocate the jurisdiction, to use a legal word, or actual control over what they wish to do for the child by working with local authorities, the police and other agencies, including the National Health Service. They would need to have the right to require those agencies to provide them with documentation and information about the child who is a trafficked victim. Other than that, each of these agencies may, and probably would, be very difficult about supplying the information. That information is crucial for the advocate, who should be there from the beginning of the identification of the child to the moment when the child is settled. With these amendments tabled by the noble Lord, Lord McColl, three years on from when we started, we have got a long way, but the Government need to listen to see that it is not quite sufficient. We need to give the child trafficking advocate the powers as well as the duties.

My last point is about the power to appoint and instruct legal representatives. It is also absolutely crucial to give that child trafficking advocate the powers that these children—mainly brought over from other countries, although there are also some internal children—actually need from them. For those reasons, I strongly support these amendments. As I say, some provisions could be in regulation but there are basic points that have to be in primary legislation.

Baroness Lister of Burtersett: I support Amendment 85A in the name of the noble Lord, Lord Patel, to which I was pleased to add my name. I also express my support for the case made by the noble Lord, Lord McColl, and pay tribute to him for his role in bringing us as far as we have got.

The Joint Committee on Human Rights made the case for a guardian or advocate system for all unaccompanied migrant children in its report Human Rights ofUnaccompanied MigrantChildren and Young People inthe UK. In that report we pointed out that,

“the UN Committee on the Rights of the Child called for the establishment of a system of guardianship in its General Comment No. 6. It says a guardian should be present in ‘all planning and decision-making processes’ to provide ‘the continuum of care required by the child’. The presence of a guardian was also a specific recommendation to the United Kingdom in the UN Committee on the Rights of the Child’s State Report in 2008, which called for an independent system to ensure that a child’s best interests was considered throughout the decision-making process. The UNHCR insisted that a guardian would help ‘best interests remain a primary consideration throughout the procedure’”.

We repeated our recommendation in our report on the Modern Slavery Bill. In essence, the argument is very much that put by Sarah Teather MP in the Public Bill Committee that any unaccompanied child is vulnerable. This is recognised in other European countries, including Scotland. Indeed, these children become

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vulnerable to trafficking, a point made by the EU Agency for Fundamental Rights. It argued that unaccompanied children and children without parental care living in residential institutions are at higher risk of being trafficked. In response to the question raised by the noble Lord, Lord McColl, I suggest that that is perhaps one reason why it is appropriate for this amendment to be in the Bill.

I understand the Government’s fear, as expressed in the Public Bill Committee, that this would risk diluting the advocates’ skill set and expertise and that spreading the expertise too thinly could mean trafficked children not receiving the support that they need, a point made by the Minister, Karen Bradley. However, I think that this argument is weakened by the powerful argument put by the noble Lord, Lord Patel—it is an argument that civil society groups, particularly those in the Refugee Children’s Consortium, have put to us—that we do not always know who is a trafficked child. In order to ensure that trafficked children are not falling through the net, it is important that the advocate or guardian is not restricted only to helping trafficked children. Again, I hope that that meets the reservation expressed by the noble Lord, Lord McColl. It is essential for trafficked children for this to be widened. I hope that the Minister will address this argument and think a bit further about the argument about dilution, which I think is misplaced.

Baroness Kennedy of The Shaws (Lab): My Lords, I support these amendments, including the amendment in the names of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister. I, too, pay tribute to the noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, who have been at the forefront of this commitment to there being an advocate for children.

I want to emphasise some of the things said by the noble Baroness, Lady Lister. I, too, sit on the Joint Committee on Human Rights and we took evidence on unaccompanied migrant children. The concerns about dilution are somewhat misplaced because the experience of people who are doing this kind of work—and I am speaking about colleagues at the Bar—is that children, like adults who have been trafficked, in the first instance because of fear of those who have trafficked them, do not immediately disclose. It is often after some trust has been developed that children will eventually disclose matters that show that they have, in fact, been trafficked and that they are precisely the kind of child whom we should be concerned about. If a child is unaccompanied, almost invariably there is a back story and it takes time to gain the confidence of the child for the full story to become clear. It is important that we recognise that the role of the child advocate should be from the very point of dealing with the child arriving in the country or identified in the country as being unaccompanied but being a migrant.

I want to reinforce some things that were said by the noble and learned Baroness, Lady Butler-Sloss. Local authorities often, I am afraid, fail to understand or respond adequately to the needs of trafficked children. Of course, they have their own problems now financially and so they are feeling particularly hard-pressed. A

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legal advocate has to have powers to compel the council to act; otherwise we will see real gaps in the provision for these children, who need to be properly assessed and supported. Without having that power, the advocate will be no more than a pleader to local authorities and there will be times when children will fall through the net.

I also press on the Government the importance of having a power to instruct legal representation. These things are complicated. The law around this is not simple and I think at quite an early stage there is going to have to be support from experts in the field of immigration law. Invariably it is about immigration law but also children’s law. If the power is not there to be able to access the right kind of legal representation for a child, then the child’s rights may not be properly argued. We often talk about international conventions. It is an area of law that is not straightforward. I hope that the Government will listen to the pleas being made by noble Lords moving these amendments, which I strongly support.

Baroness Howe of Idlicote: My Lords, clearly things have moved on a little since we debated the Immigration Bill on 7 April. Nevertheless, there is clearly a long way to go. I am particularly grateful to the noble Lord, Lord McColl, who I thought made a brilliant speech, and to the other noble Lords who signed this amendment and again brought this issue before your Lordships’ House with Amendment 86H. I am pleased to support them.

While I welcome the action of the Government in trialling the delivery of a child trafficking advocate system, I am disappointed that they are not being bolder in their statement of the principles that would underpin the role of the advocates. I agree with the Joint Committee on the draft Bill, which said that pilots are not,

“a substitute for a statutory advocacy scheme”.

Since that report, the UN Committee on the Rights of the Child has recommended that the UK prioritises,

“the appointment of a competent and statutory guardian as expeditiously as possible to safeguard the best interests of the child during the criminal justice process and ensure that a child victim is referred to asylum-seeking or other procedures only after the appointment of a guardian”.

There are many pages of recommendations from well established and respected international organisations on how a guardian advocate system should function, which would allow us to set out a framework that could be adopted by the Bill.

8 pm

In this context, while the trials are going to be useful in helping us to find out how best to address some of the practical implementation questions, I do not believe that we should wait for the outcome of the trials to address the basic definition of what a child trafficking advocate is. The problem, and the role that it is designed to address, can and should be defined now in this legislation. That of course is what the Northern Ireland Assembly has done, as the noble Lord, Lord McColl, told us in his speech.

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I hope that noble Lords will agree that this House needs to make a significant impact on the definitions in Clause 47. The recent report from the Joint Committee on Human Rights said about the passage of the Modern Slavery Bill in the Commons that,

“we would have welcomed an opportunity during the passage of the Bill to scrutinise in more detail the proposed system for child trafficking advocates, particularly in relation to their powers and functions”.

The truth is that the provision of the name of a role in statute without a definition is exceptionally high risk, as we have all come to see in relation to the national rapporteur role in the EU anti-trafficking directive. One might have assumed that the definition attributed to the role by the British Government would be the one defined by international best practice, but it plainly is not, and that has been possible only because the directive assumes rather than provides a definition of a national rapporteur. We must not make that mistake with this legislation.

Amendment 86H gives us the crucial opportunity to define the powers and functions that a child advocate should have. I, too, commend it to the House for its strengthening of the independent nature of the advocate and for setting out clearly the functions that are expected of an advocate, based on international guidelines.

Baroness Hodgson of Abinger: My Lords, trying to give protection to trafficked children is such an important part of this Bill. I add my congratulations to my noble friend Lord McColl on his excellent Amendment 86H, which would do much to help trafficked children. There are many excellent additions, and I shall touch on some that I consider particularly important.

I agree with the noble Baroness, Lady Kennedy, that it is very important that the advocate is appointed as soon as possible; the sooner that they can start getting to know the child and gaining their trust, the more effective they will be. I support the advocate having powers to appoint and instruct legal representation, as that will ensure that the child’s outcome is best protected.

With reference to establishing contact with the child’s family where the child so wishes and it is in the child’s best interests, I wonder who in this instance judges what is in the child’s best interest. I suspect that most children who are trafficked are probably old enough to have a view on what they want, and it is incredibly important that they are listened to and weight given to those views.

With reference to the appointment of the advocate coming to an end when a child reaches 21, although that is technically adulthood it is still a very young age to be left on your own, perhaps in a strange country and away from any family, not being proficient in English and having gone through all the desperate trauma of being trafficked. Perhaps in this regard the wishes of the child could be considered as to whether they would like some further support from the advocate or to be given a mentor until the time when they feel they can cope on their own.

With regard to a durable situation being found for the child, children need to be returned to their homes wherever possible. I was very moved by the statistic

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that 60% of the trafficked children put into care abscond and often fall back into the hands of their traffickers. This means that often they are very unhappy being put into care. As we know that generally the outcomes for children in care are very low, returning children to their families wherever possible is surely the right thing to do.

Lord Browne of Belmont: My Lords, I am pleased to speak in support of Amendment 86H in the name of the noble Lord, Lord McColl, the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I am sure that other Members of this House will want to thank the noble Lord and the noble and learned Baroness for their persistence and perseverance in repeatedly bringing the need for a child advocate for trafficked children before this House.

As we look today at Clause 47 of this Bill, which in some ways makes provision for child trafficking advocates, I am sure we can agree that we have come a long way on this subject from 2011. I am aware that the Government seek to justify the rather weak nature of the clause on the basis that they want to wait for the conclusion of the advocate trials before providing more detail. In some ways I think this argument stands up to scrutiny but in others I have to say that I find it wanting. No doubt important things will be learnt from the trials that will inform practical questions regarding matters such as implementation, but I do not accept that that should be used as a reason for not providing a clear and up-front statutory definition of the role of the advocate. It seems odd that we should sign up to the name “child trafficking advocate” in the Bill without signing up to a proper definition of the role.

There are at least two major problems. First, in terms of the basic definition of a child trafficking advocate, the definition is set out in numerous international best practice documents and confirmed by our own experience. The Still at Risk report, for example, recommends that an independent trusted adult should be appointed as soon a trafficked child comes to that authority’s attention. Amendment 86H makes it clear that this should happen. The Still at Risk report also says that that person,

“would ensure that all potential victims of trafficking are able to understand their rights, ensure that their voice is heard in decisions that affect them and are supported effectively through the different legal processes they are engaged in”.

I am very supportive of the principle of setting out the functions of the advocate in the Bill, as exemplified in Amendment 86H.

It is significant that this same definition and approach are also reflected in all the relevant international best practice documents developed by the EU, UNICEF and the UN. For example, the UNICEF guidance states:

“The role of a guardian is to be an advocate for the child in a wide range of discussions and decisions about what should happen to the child, in particular to ensure that the decision-making process primarily considers the best interests of the child. The role is also to be a link between the child and the various agencies the child comes into contact with, to ensure the child is kept informed of any relevant developments with respect to him or her, and to accompany the child in a physical way, in particular when she or he is moved between various places”.

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It is also essential that the role of the advocate should be recognised by other public authorities, otherwise, as the noble Lord, Lord Henley, said just over three years ago,

“it risks creating confusion for children if plans for their care are not effectively co-ordinated”.—[

Official Report

, 25/11/11; col. 1282.]

The second reason for my belief that this is not a strong enough clause as it stands is observing the debate on guardians that has occurred over the past few months in Northern Ireland, which the noble Lord, Lord McColl, has referred to. Noble Lords may be aware that the noble Lord, Lord Morrow, has introduced a Bill on human trafficking to the Northern Ireland Assembly. He is sadly not able to give his own wisdom to the House today, as he is in Northern Ireland speaking on other matters on human trafficking before the Assembly. The key point is that, in another part of the United Kingdom, a clearly independent adult will be appointed to a child who has been or who is about to be referred to the NRM or to a separated child. That adult, an independent guardian, will be trained, qualified and supported in that role and the functions are set out in statute in Clause 21 of the Northern Ireland Bill, which will very soon now become law. That person needs to ascertain and communicate the views of the child, represent them, and liaise with other organisations involved in their care and making decisions in relation to the child—for instance, a court or tribunal. They will assist the child to obtain legal advice, keep the child informed about relevant proceedings, contribute to a plan for the long-term welfare based on an individual assessment of the child’s best interests, accompany them as necessary, and work to establish contact with the child’s family where it is in their best interests.

Interestingly, the Department of Health, Social Services and Public Safety may add to their functions as necessary by order so that if new functions arise they can be added. I suggest that this freedom to adjust provides a crucial model for the United Kingdom Government given that, on the one hand, it is simply not credible to include a child trafficking advocate provision in the Bill without a proper definition—especially when, thanks to domestic and international best practice, the definition is clear—yet, on the other hand, adjustment may be desirable in the light of the experience of the trials. It provides a mechanism whereby we could give child trafficking advocates a proper definition but not remove scope for that definition to be amended, although I stress that I think the real usefulness of the trials will pertain to practical matters of implementation rather than that of definitions. If I were to add anything to Amendment 86H, it would be the power to make such additions to the list of the advocates’ functions.

The other thing I should note about the Northern Ireland definition, like that of proposed new subsection (8) in Amendment 86H, is that it makes plain that other persons or bodies providing services or taking decisions about the child have to recognise the role of the guardian and provide the guardian with relevant information so as to allow the guardian to carry out their role effectively. In contrast, Clause 47(4) only enables the Home Secretary to issue regulations to this effect if she so wishes. It seems to me that the provision of child trafficking guardians in Northern Ireland

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goes much further than the current proposals in Clause 47. The reason we are rightly concerned to help victims of trafficking is because they are, without doubt, among the most vulnerable people in our society and that vulnerability is greatest when dealing with children.

Given their greater vulnerability, it seems very odd that the Government should have included such a weak clause in the Bill. While I am happy to celebrate that Northern Ireland will provide the best protection for child victims in the whole of the United Kingdom, it pains me to consider the many trafficked children in England and Wales who will not benefit from this greater protection. I am not satisfied with this, and I very much hope the Government will not settle for such an inequality. The good news is that Amendment 86H closes the gap. I very much hope that the Minister will accept it.

Baroness Hamwee: My Lords, the determination of those who have pursued this cause is admirable. The noble Lord and the noble and learned Baroness are a formidable pair. I simply want to comment on one point in Amendment 86H, about legal representation. From my—now not very current—experience as a solicitor, I well know the importance of being able to take clear or reasonably clear instructions, and to be able to rely on those instructions. I take the point about the voice of the child but I do not think that that is inconsistent with the role of representatives.

8.15 pm

I want to pick up one point made by the noble Baroness, Lady Hodgson, about children going missing from care. Some may be unhappy—I am sure they are all unhappy—but not necessarily unhappy with their care. The evidence seems to be—this is something society has to learn to deal with—that children who have been trafficked are given instructions that if they are picked up, as soon as they can they should get in touch again with their traffickers, and they are told how to do that. It is the traffickers the children know. Some children are uneasy with people they regard as authority figures and therefore will go back to what they know, however bad it is. Learning how we deal with this and preventing that revolving door—return to the trafficked, enslaved situation—is a real concern. I have great admiration for those who feel that they can address and tackle this. It is a very difficult situation. I also have enormous admiration for foster parents working with local authorities who provide specialised care for this group of children.

The Earl of Listowel (CB): My Lords, in recent years three children took their own lives after spending a night in a police cell. They were 17 year-olds and, under current legislation, they could be kept in police cells overnight—if they had been 16 that would not have been allowed, but as 17 year-olds, they were. One of them was Kesia Leatherbarrow. Her mother is a teacher. She leads the maths department in her school. Her father is the deputy head of a local school. Those children had parents to advocate for them, parents who were passionate to see that what happened to their children did not happen to other children. Through

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their advocacy they managed to persuade the Government to change the law so that in future 17 year-olds will not be placed in custody overnight.

I hope I can also express my thanks to the noble Lord, Lord McColl, and my noble and learned friend Lady Butler-Sloss for their hard work and determination over years to bring about the change that we are seeing today. I also thank the Government for working with them and for their constructive engagement in making this the best possible arrangement for these young people, so that while they may lack parents they have the advocates they need to have the best chances in their lives.

I support these amendments. I particularly add my support to the amendment tabled by my noble friend Lord Patel to extend this to all unaccompanied children. This June, thanks to the kind help of the Children’s Commissioner for England, I and some colleagues had the pleasure of meeting five young men from Afghanistan. They had all arrived here as unaccompanied children. One young man was doing extremely well in his studies and spoke with great gratitude of the help he had received. Another had spent time in a mental hospital. His health had been wrecked as a result of the lack of support he had received. I hope your Lordships will agree that we should take steps to ensure that all separated young people have the best help as early as possible so they can do well and not fall. I hope this will be changed as soon as possible. I recognise that the Government have come a long way, but I hope they will give this very careful consideration.

Baroness Royall of Blaisdon: My Lords, I rise to support Amendments 103 and 104 and to speak to Amendments 86 and 86H, to which I have put my name.

The noble Lord, Lord McColl, and the noble and learned Baroness, Lady Butler-Sloss, have been veritable champions of these young vulnerable people and it is thanks to them—I have to say, with our support—that the Government have got far as they have. Of course I welcome Clause 47 and the government amendment that was introduced in the other place—but, as so many have said, we have not quite got there yet, but I have no doubt that we will.

Throughout the passage of the Bill, my colleagues in the Commons, together with some other Members of the House of Commons, consistently argued that unless advocates are given legal powers they will not be able to act effectively in the child’s best interests and truly protect trafficked children. We have a great example before us tonight. It was mentioned by several noble Lords. I pay tribute to the noble Lord, Lord Browne, and to the noble Lord, Lord Morrow, who introduced the Bill in the Northern Ireland Assembly. I hope that our Government will ensure that the laws pertaining to trafficked children are the same throughout the United Kingdom. It is very important and I very much hope we will follow their excellent example.

If we are truly to deliver for these most vulnerable of children, we must ensure that advocates have legal authority to act for the child in cases where they lack the legal capacity to do so. We want guardians to be able to instruct solicitors on their behalf and represent

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the child’s best interests. Advocates must also have the power to compel local authorities to take action where a child is not receiving the services and support to which they are entitled, such as appropriate accommodation. We also want the UK to be brought into line with its obligations under the Council of Europe convention and, as has been said, under the anti-trafficking directive.

Evidence resulting from the work and experience of members of the Refugee Children’s Consortium and from research commissioned by the Home Office and conducted by the Children’s Society and the Refugee Council demonstrate that local authorities often fail to understand, prioritise and adequately respond to trafficked children’s needs. This too often results in these vulnerable children falling through the gaps, as has been said, being housed in inappropriate and unsafe accommodation, such as bed and breakfast, and receiving inadequate adult and financial support.

Those most closely involved also find that the only way to force local authorities to act is litigation, or the threat of it. A legal advocate with powers to compel the local authority to act is therefore vital if we are to ensure that these children are correctly assessed and get the services to which they are entitled. Evidence from the evaluation of the Scottish guardianship pilot found that because guardians did not have legal powers and were not on the same statutory footing as local authority staff, they sometimes struggled to ensure that local authorities provided trafficked children with the correct services, and that because the service had no statutory footing the guardians found themselves having to negotiate, and sometimes renegotiate, the position in order to assist the young people with whom they worked. We have that very fine example before us. We know that it did not work in Scotland, so please let us act now to ensure that it works when we introduce these advocates.

Giving advocates legal powers to instruct solicitors would not conflict with the local authority, which remains responsible for the welfare and safeguarding of the child. The Northern Ireland Assembly’s amendment to its Human Trafficking and Exploitation Bill 2014 puts child trafficking advocates on an equal footing with the local authority and states that local authorities must recognise and pay due regard to the functions of child trafficking advocates. That is another fine example to be followed. The Northern Ireland Bill even has the wording right.

I urge the Government to support this amendment, or something very similar, in order to ensure that advocates have legal powers and that trafficked children are entitled to the support and protection that they deserve, because they deserve no less.

Lord Bates: My Lords, on that last point, the remarks on Northern Ireland of the noble Baroness, Lady Royall, we are, I am sure, as one. We recognise that we are moving. The general consensus, if I may try to sum up the debate, is that progress has been made and we have come a long way, to quote the noble Lord, Lord Browne, and the noble and learned Baroness, Lady

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Butler-Sloss, but perhaps there is further to go. Well, we still have more stages in the consideration of this legislation.

I come to some general remarks. I join nearly all noble Lords in the debate on these amendments in paying tribute to my noble friend Lord McColl for his determined and—I am tempted to say, as a former member of the Government Whips’ Office—unyielding advocacy on behalf of children, going back to the Immigration Bill, but also his own Private Member’s Bill. It has been an example of how it is possible, from the Back Benches, to make significant, important changes to government legislation.

I urge my noble friend, in saying this, to recognise that we have in front of us something that is not timid or weak. Such terms have been used a few times during our discussion. I totally accept that that is how parliamentary discussion and scrutiny should work: the Government give a bit and then people say, yes, thank you—17 year-olds, legal aid—but can we have some more? I understand that, but there is an audience outside this place who needs to have some confidence that we have before us something that is robust and that they can act upon. Yes, okay, the Independent Anti-slavery Commissioner may not have everything spelt out to the last letter as far as your Lordships would like, but the fact is that he is there, he has a vital role to play, and others should work with him to ensure that victims are identified and perpetrators prosecuted. With child-trafficking advocates, again, we may not have everything spelt out to the letter in the Bill, but the reality is that we do have a provision there.

We have heard a lot about the “mays” in Clause 47, but there are some “musts” as well. For example:

“The Secretary of State must make such arrangements as the Secretary of State considers reasonable to enable persons (“child trafficking advocates”) to be available to represent and support children who there is reason to believe may be victims of human trafficking”.

In the next subsection,

“the Secretary of State must have regard to the principle that, so far as practicable, a child should be represented and supported by someone who is independent of any person who will be responsible for making decisions about the child”.

Also, of course, in Clause 47(6):

“The Secretary of State must, no later than 9 months after the day … report on the steps the Secretary of State proposes to take in relation to the powers conferred by this section”.

So there are “musts” there.

I shall deal with some specific points put before us. The issue of support and protection for victims of child trafficking is of the utmost importance across the Floor of both Houses of Parliament. I share the aim of providing a bespoke support system for this most vulnerable group of children. I am dedicated to ensuring that these children receive the support and protection they deserve after the nightmare of their traumatic experience of being trafficked and exploited.

Before I continue, I assure noble Lords that, although modern slavery is a devolved matter, we continue to work closely with the devolved Administrations on the issue. We are fully abreast of the similar provisions which the noble Lord, Lord Browne, in particular,

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referred to in respect of Northern Ireland, as well as the Scottish guardianship service, and we are learning from these. We continue to maintain our positive partnership with the Welsh Government on this matter. We have listened intently to the debate on the issue of child trafficking advocates. Amendment 86 seeks to extend the provision to child victims of slavery and sets out in detail the minimum responsibilities of child trafficking advocates.

In that context I will set out the Government’s approach to achieving the best result for child victims of trafficking. We are trialling child trafficking advocates. The trials are being delivered by Barnardo’s across 23 local authorities in England and are now well under way, having started in September, with a growing number of children receiving the services of a specialist advocate.

8.30 pm

We are making provision in this Bill to place child trafficking advocates on a statutory footing. Our provision sets out key principles in the Bill, such as that the advocate must be independent. Here I take on board the points that were made by the noble Earl, Lord Listowel, and my noble friend Lady Hodgson, who made reference to the fact that children often have a distrustful attitude to figures of authority when they have been trafficked because they may have been complicit in their trafficking away from their country of origin. Therefore, having someone they can trust in this role is vital. However, we should await the outcome of the trial and its independent evaluation before we—and by that I mean Parliament—finalise the very best evidence-based provision for this extremely vulnerable group of children.

That is why the commencement procedures include a provision which ensures that Parliament has the final decision on commencement after nine months from Royal Assent, to give time for the child trafficking advocates trial to finish and the University of Bedfordshire to present its final independent evaluation. That is why the detail of a statutory child trafficking advocates scheme should be set out in regulations and be subject to the affirmative resolution procedure. That approach allows us to set up a scheme that, if required, can be just as strong as the one which, for example, the Northern Ireland Assembly is looking at, once we have the evidence about what will work best.

Therefore, while I share much of the sentiment behind Amendment 86, I have concerns that to set out the details of the role of the child trafficking advocate in the Bill now would tie our hands in ultimately delivering the best possible support and protection for these incredibly vulnerable children. It would also, unnecessarily, mean that any future changes or improvements to the role would have to be made through primary legislation. The Delegated Powers and Regulatory Reform Committee report, published on 28 November, agreed, and accepted that carrying out the trial made it appropriate to leave the detailed provision about child trafficking advocates to be set out in regulations. I am looking carefully at the committee’s recommendations on how that regulation-making power should be framed.

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Amendment 86 would also extend the provision to victims of slavery, and Amendments 85A and 86A to 86G would extend the provision to all separated children. I am also very concerned about victims of slavery, separated children and indeed all groups of vulnerable children. However, the current trial and provision in the Bill is deliberately focused on a particularly vulnerable group. We know that trafficked children need consistently to receive support and protection to avoid them going missing and being retrafficked, which is a significant risk. We should take the important step in this Bill—as my noble friend Lady Hamwee mentioned—of providing focused and tailored support for that particularly vulnerable group.

The trial may allow us to learn lessons that could apply to other groups of vulnerable children. I assure noble Lords that any child entering local authority care is already entitled to the same level of support and protection. They are allocated a social worker, who is responsible for planning the care of the child; they have an independent reviewing officer, who ensures that the child is aware of the implications of their immigration and asylum status; and they also have a right to an independent advocate from the local authority, who is responsible for accurately representing the child’s wishes and feelings.

The Bill will take the very important step of including the statutory provision for child trafficking advocates, and I have heard the concern that support for all vulnerable children should be extended. I ask the House to be mindful that a much broader scheme for advocates would have substantial financial implications, without there yet being clear evidence of its value—that is the purpose of the trial.

Amendment 86H, which is of course the central amendment in this group, also seeks to introduce the word “independent” in the title of the clause. I would like to reassure the noble and learned Baroness, Lady Butler-Sloss, the noble Baronesses, Lady Royall and Lady Lister, and my noble friend Lord McColl that we are very clear that these advocates need to be independent in order to support and protect the child effectively. The principle of independence is set out in Clause 47(2) of the Bill and therefore it is unnecessary to amend the title in this respect.

Amendments 103 and 104 seek to remove the special commencement procedure in relation to this clause. This provision was originally an enabling power. However, the Government amended the Bill in another place to impose an obligation to introduce child trafficking advocates, subject to a special commencement procedure that would take place after the results of the evaluation of the trials were known. The special procedure deliberately gives parliamentarians the final say on commencement of the provision, rather than the decision being that of the Secretary of State. Any Member of the House would be able to call a debate on passing a resolution that the advocates clause should be commenced. Both Houses can require the Secretary of State to commence through such resolutions. This is an appropriate approach that is evidence-based and maximises the role of Parliament.

I understand the motive behind the amendments in their attempt to ensure that the Secretary of State makes the necessary regulations to bring the subsection

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into force. However, I have concerns that the amendments would force the Secretary of State to make regulations potentially bringing the provision into force before the evaluation of the trial has been completed and she has reported back to Parliament on her approach as required under Clause 47(6).

Lord Alton of Liverpool: My Lords, rather in parenthesis, a few moments ago the Minister introduced a new component into the debate when he talked about the financial implications that might be involved were we to support the amendment of the noble Lord, Lord McColl. Can he give us a figure? He has talked about the financial implications and must have some idea of what the cost might be. I was surprised to hear that argument being produced in your Lordships’ House. Does he have a figure that he can share?

Lord Bates: I think that what I am getting at there is self-evident. If you extend the service of child trafficking advocates, clearly there is a cost implication. I was not suggesting at any stage that that was in any way an argument for or against. I was simply saying that it ought to be taken into account before we embark on an extension of the scheme. I am happy to write and come back on that, with further information about the basis of our assessment.

On the points made by my noble friend Lord McColl, it is intended that the functions and role of advocates in any national scheme will be set out in regulations. This will give the advocates the desired legislative basis without forcing us to make decisions about their role prior to the outcome and evaluation of the ongoing trial. The Delegated Powers and Regulatory Reform Committee accepted our approach—a point I have already made. We accept that a different approach has been taken in Northern Ireland, where an advocates scheme has not been trialled prior to setting out details of it in the Bill. It is our position, however, that the detail of advocates’ roles covered in the Northern Ireland Bill can be covered in our regulations, should this be supported by the findings of the ongoing trial. This takes in the point made by the noble Baroness, Lady Royall, when she said that there was a description effectively set out in the Northern Ireland legislation; that could be taken into account. We know that the pre-legislative scrutiny committee acknowledges that there is no one-size-fits-all in terms of advocacy schemes.