This is worth underscoring briefly. We accept that this is not a homogeneous group. This is not a group of people who have had similar experiences or who have similar needs. They are a very heterogeneous group and have different needs that must be addressed. That ought to be taken into account. The report highlighted that the Scottish system, which works very well without any legislative basis, would not necessarily translate well into England and Wales because of the different circumstances regarding trafficked children in different areas.

While we are concerned about child victims of modern slavery, the current trial and the provision in the Bill are focused on a particularly vulnerable group—namely, trafficked children. We know that trafficked

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children need to receive consistent support and protection to avoid them going missing and being retrafficked. We agree with my noble friend that the Bill is not the appropriate place for measures to extend the provision of advocates to all unaccompanied children, given its specialist focus on modern slavery.

I have dealt with the points raised in particular by my noble friend Lord McColl. I am aware that other points were raised. As I said when we discussed previous amendments, we will reflect on those points very carefully. I am sure that my noble friend Lord McColl, who accurately anticipated my response to his amendment, will probably tell us that he wants to revisit this issue later in our proceedings—which of course is his right. Perhaps in the interim we could have more discussions about how we can ensure that these child trafficking advocates work in the best way possible. We might also be able to share some interim findings from the trial that started in September, which would help inform the debate. With those assurances, I ask the noble Lord to consider withdrawing his amendment.

Lord Patel: My Lords, I pay tribute to my friend, the noble Lord, Lord McColl, and to the noble and learned Baroness, Lady Butler-Sloss. I paid tribute to them at Second Reading but do so again. We all know how hard both of them, particularly the noble Lord, Lord McColl, have worked for years for this Bill.

I thank those who supported my amendment—namely, the noble Baronesses, Lady Lister of Burtersett and Lady Kennedy of The Shaws, and the noble Earl, Lord Listowel. I understand the difficulties of including all separated and unaccompanied children in the Bill. However, I was trying to emphasise that we have enough evidence to suggest that separated children are very much at risk and often end up being trafficked or becoming involved in modern slavery: for example, the example I gave of child T. It would be a great shame if a Bill on modern slavery ended up excluding this group of very vulnerable children, for whom we have to find a solution in due course. However, I recognise the complexity of involving all unaccompanied children.

As the Minister rightly said, the central amendment in this group is Amendment 86H under the lead name of the noble Lord, Lord McColl. My name was added to that amendment, but the vagaries of communication over the weekend and of the printing of the Marshalled List meant that it was not included.

In summing up, the Minister said it was likely that the noble Lord, Lord McColl, would wish to revisit the issue. I noted that the noble Lord nodded enthusiastically, so the Minister was left in no doubt that he and those who support the amendment, including me, will return to it at a later stage.

The vagaries of the House procedures do not allow the noble Lord, Lord McColl, to thank all those who supported him, but I do so on his behalf. With that, I beg leave to withdraw the amendment.

Amendment 85A withdrawn.

Amendments 86 to 86H not moved.

Clause 47 agreed

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8.45 pm

Amendment 86J

Moved by Baroness Hamwee

86J: After Clause 47, insert the following new Clause—

“Assessment of victims

A person suspected of being a victim of an offence under sections 1 or 2 shall be assessed psychologically during the investigation of the offence.”

Baroness Hamwee: My Lords, I have Amendments 86J, 86K and 86L in this group. Amendment 86J seeks to insert a new clause. I contacted a member of the Bar who practises in this area and asked him whether the provisions available to protect and support victims in court and in their dealings with the police were adequate, even if they were not always well used. In other words, should we be thinking of anything to go in the legislation or is it really a matter of guidance and practice? He came straight back to me with the thought which I have incorporated in this amendment.

Of course, protection in court is very much a matter of practice, in line with some legislation and with guidance. The practice needs a foundation. This would be a foundation for something quite wide. My counsel friend said:

“Every other measure follows from an assessment and those presenting a case will do so fully informed if they have the psychological assessment”.

The victims of slavery and trafficking are so very unlike others. There are many issues that befall them and their presentation in court is difficult. My counsel friend believes, as is obvious, that an assessment should be mandatory.

This is not about referral to the NRM; it is about investigation and prosecution as well as support. An assessment may say that there is nothing too much to be concerned about, but it may say that this individual is very damaged, very vulnerable and that the best way to investigate is as follows. Or, in court, someone with the appropriate knowledge can say, “The victim giving evidence is not able to articulate what, from my work with him, I believe he is feeling. A different line of questioning may be appropriate”. This is not just about support; it is also about the resilience to give evidence and to assist the police, and resilience in proceedings.

My other two amendments can be put very briefly. The first adds a reference to consultation to Clause 48 —the Secretary of State’s guidance on the items listed. I am suggesting that this should be after consultation. I hope that my noble friend will be able to reassure me that it will be after consultation. The second amendment—in order to get the grammar right, it requires a few more words—essentially changes “determining” to “identifying” in Clause 48(1)(c)—the arrangements for identifying whether a person is to be treated as a victim of slavery or trafficking. This is to probe whether this provision is about the NRM, where the term “determination” is used, but so is the term “identifying”. Determination has a whiff of formal proceedings which may be wider than the Government intend. As I say, this is a probing amendment.

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Amendment 86M is probably the central amendment in this group and I do not want to steal any thunder by speaking to it, save to say that it is an extremely important amendment and I am very glad that it has been tabled. If we are establishing rights for victims, the logic is that those with the power to grant or deny the right must also be held to account—and that would be via a right of appeal. My first amendment is 86J and I beg to move.

Lord McColl of Dulwich: My Lords, I am pleased to introduce Amendment 86M in my name, that of the noble Baroness, Lady Howe, and that of the noble Lord, Lord Judd. I am grateful for the input of the charities involved in its development, including CARE, ECPAT and the Anti-Trafficking Monitoring Group.

The amendment deals with what is, for me, a foundational aspect of any modern slavery Bill worthy of that name, yet it is not adequately provided for in the current draft. The Bill will be the foundation of legislation for all action on modern-day slavery for decades to come. As such, it must have the victims at its heart and make proper provision for them. I welcome the addition of Part 5 following the recommendations of the pre-legislative scrutiny by the Joint Committee on the draft Bill, of which I was privileged to be a member. However, I feel that Clause 48, which provides a mechanism for guidance on identifying and supporting victims, does not go anywhere like far enough to ensure that the Bill is victim-focused.

I thank the Minister for his comments in his letter sent to Peers following Second Reading, sharing the concern that we provide victims with the services that they need. I am pleased to know that the Government are considering the recommendations of the review of the national referral mechanism and hope that this will lead to a significant improvement in the identification of victims and the provision of support services. However, I do not share the view implied in the Minister’s letter that legislating for the NRM will make the system inflexible, nor do I believe that legislation is a distraction from the process of improvement.

In my opinion, Amendment 86M provides a much needed statutory foundation for operational and structural improvements, in response to the critique of victim identification and support in the review. The flexibility of guidance can be useful in responding to changing circumstances, but guidance is not the place to establish fundamental principles. It is my view that the fundamental principles for identifying victims and providing them with support and assistance should be laid out in legislation. Amendment 86M lays out these core principles. The clause relates broadly to two issues: first, the processes around identifying victims; and secondly, supporting victims—how long we should support them and with what types of services.

Let me first turn to the matter of identifying victims. Amendment 86M addresses the fundamental principle that the formal process for identifying victims and conferring on them a certain status that makes them eligible for services and support needs to be transparent through proposed new subsections (1) to (4). During our scrutiny of the draft Bill, the Joint Committee heard evidence from many NGOs that, because the

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national referral mechanism is established only in policy and guidance, there is a lack of transparency about decision-making. Anti-Slavery International described this as leading to,

“arbitrariness of application and access for victims”.

The 2013 report from the Anti-Trafficking Monitoring Group, Hidden in Plain Sight, indicates that existing guidance relating to processes under the NRM does not seem to be consistently followed, which gives me great cause for concern over the Government’s proposal that guidance under Clause 48 will be sufficient to ensure the correct operation of the NRM process.

I welcome the review of the NRM that has been undertaken and I am pleased that the Modern Slavery Strategystates that the Government are giving serious consideration to its recommendations for a radical restructuring of the process. However, I believe that any such restructured process should ultimately be established in regulations. This was also the view of the Joint Committee, which said that the Home Secretary should set out the process for identification by order. This approach will provide the flexibility which the Minister mentioned in his letter, but equally allows for greater transparency in the process than exists at present.

Amendment 86M requires the Home Secretary to establish the identification process in regulations and to seek the input of an Independent Anti-slavery Commissioner on the guidance about the identification of victims. One key aspect of this transparency is the process for which Amendment 86M specifically provides. It is the creation of an internal and external appeals process. The current NRM process has no such formal mechanisms for review. Where individuals wish to challenge a negative decision, they must either make an informal request for reconsideration or seek judicial review. The informal process, relying as it does simply on the discretion of an official, is in no way transparent and provides no sense of security for victims when they enter the system. On the other hand, judicial review is extremely formal and costly and does not review the substantive merits of the person’s case. A formal built-in appeals process, with the possibility of a second-tier external review, is needed to provide appropriate transparency and accountability. This is why I have proposed new subsection (1)(c). I was rather disappointed with the response of the NRM review to this point. I am not convinced that its proposals for regional multidisciplinary panels will reduce the need for challenge, nor that the review’s suggestion—that another panel chair could offer a second pair of eyes when a review is requested—will be adequate to provide the transparency that is so important. I hope the Government will support my proposal for a more formal process set out in regulations.

I was also disappointed to read that the NRM review reported that the submissions from many NGOs showed overwhelming support for the preservation of the national referral mechanism solely for victims of trafficking. I am sorry, but I disagree. I recognise that international reporting structures and data comparisons mean we need the clarity of specific statistics on victims of trafficking, but we must ensure that there is a clear mechanism for the identification of victims of

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slavery who have not been trafficked. Without such a mechanism, we are left, once more, with the problems of transparency which I am seeking to address through Amendment 86M. As it stands, Clause 48 applies to victims of the offences under both Clauses 1 and 2, and this is right. Amendment 86M also applies to victims of slavery and trafficking offences and would require a formal mechanism for identification to be established in regulations.

Having set out the requirements for identification, I turn to proposed new subsection (5). This sets out how long the assistance must be provided for under the reflection and recovery period. There are two questions for your Lordships. First, how long should it be and, secondly, should we set this time period in statute? Those of your Lordships who have studied the European convention will know that our international obligation is to provide a so-called recovery and reflection period of at least 30 days. Such a period shall be sufficient for the person concerned to recover. The UK already has a recovery and reflection period of 45 days, so we are ahead of the minimum. However, I have heard NGOs say, time and again, that even 45 days is not long enough for a victim to properly reflect and recover and that 90 days would be far more appropriate. This is what I am proposing in Amendment 86M. Indeed, the NRM review says:

“Many to whom we spoke thought that victims ‘are failed’ at the end of the 45 day period”.

This is a very sobering assessment of how we are treating victims. Studies show that, during the first three months, a high proportion of victims of human trafficking display symptoms of post-traumatic stress disorder and that longer reflection periods can greatly improve chances of providing substantial assistance to victims of trafficking. That is why I am supporting a 90-day reflection and recovery period.

9 pm

The question of the length of the reflection and recovery period was raised at Second Reading. I was encouraged that the Minister said that he will be looking at the length of the reflection and recovery period and I hope he will study the evidence that I have mentioned. However, I am concerned that he is waiting for input from the child trafficking advocates trials as it is likely that there will be different issues for adults and children.

Your Lordships may feel that this recovery and reflection period could be governed by guidance but I have been minded to include it in this amendment because GRETA, the Council of Europe’s group of experts, in its 2012 report on UK compliance with the European convention against human trafficking recommended that the right to a recovery and reflection period should be enshrined in law.

In their response to the report, the Government clearly stated that they did not agree that enshrining the reflection and recovery period specifically in UK law was necessary. We completely disagree. We need to demonstrate more clearly this “victim-focused approach” that the Home Office modern slavery strategy speaks of and make clear that the needs of victims are central to this Bill. By doing so, we will give more victims

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confidence to come forward and ensure that more of them receive the assistance so vital to their recovery. That will also give them confidence to give testimony against the perpetrators of these horrific crimes. It is with that intention that I have included a requirement to ensure that assistance and support should continue after criminal proceedings take place, as this too is a traumatic experience for victims. It also meets the requirement of Article 11 of the European directive that assistance and support is provided,

“before, during and for an appropriate period of time after the conclusion of criminal proceedings”.

Proposed new subsections (6) to (9) in Amendment 86M would set in statute the principles on which assistance should be given. Proposed new subsection (10) would set out the detail of what “assistance and support” should be provided for victims as a minimum. I should make clear that I have derived these principles and details of assistance from Articles 11 and 14 of the EU directive and Article 12 of the convention; that is, I am setting out what our international obligations already require us to do to support victims of trafficking.

I know that the Minister will tell me that all these services are being provided because we are under international obligations, but my experience on the committee makes me less convinced that this is the case. It seems to me that we need to be a lot more robust on what and how we are providing services. I have already mentioned the GRETA report and I will do so again. The provision of proper assistance and support for victims of trafficking was one of the key recommendations of the GRETA report into UK compliance with the European convention. GRETA said that the UK should,

“ensure that all potential and actual victims of trafficking are provided with adequate support and assistance from their identification through to their recovery”.

Amendment 86M would provide that support and assistance for victims of trafficking and slavery. By putting the obligations in the directive and the convention in statute, your Lordships’ House would be guaranteeing that assistance and support would be provided. Moreover, we will be guaranteeing that the full range of assistance mandated by the international conventions will be available to every victim.

At the moment, the only obligation on this Government and any future Government is that the Home Secretary must issue guidance about the arrangements for providing support. There is no mention in the clause of a duty to provide assistance. Neither is there any requirement that the guidance should cover the types of assistance to be provided or the minimum standards to be met. A statement of the types of support and assistance that I am including in Amendment 86M was recommended by the evidence review chaired by Frank Field MP, which was commissioned by the Home Secretary prior to the publication of the draft Bill. The review stated:

“We believe the Bill should go further and detail the protections, entitlements and support that victims are entitled to. This should lead to a more consistent support regime for victims around the country, which in turn should give victims the confidence that their needs will be met”.

Minimum standards are required to ensure a decent level of service. The issue of consistency in the provision of assistance mentioned in the evidence review is

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extremely important. At present, there are no official minimum standards or independent auditing processes for organisations that provide support and assistance to victims. This was a point raised only last month in the NRM review.

The standard of care currently available to victims has been described as a postcode lottery. This cannot be acceptable. It will not surprise your Lordships that another of the GRETA report recommendations was that the UK,

“should adopt clear support service minimum standards for victims of trafficking and the provision of adequate funding to maintain them”.

Minimum standards for care provision were also recommended by the Centre for Social Justice in its report It Happens Here, published in 2013, and by the Anti-Trafficking Monitoring Group in 2010, and reiterated in its 2013 report. The same message is coming across loud and clear.

We must take action to ensure that all victims can access the support that they are entitled to as a result of our treaty commitments. Amendment 86M would ensure that support and assistance would be available to victims of both trafficking and slavery through subsection (10) of the proposed new clause, on the basis of an assessment of their needs; and that it would meet minimum standards set out by order of the Secretary of State through proposed new subsection (6)(d). Clause 48 as it stands does none of these things.

In conclusion, we are priding ourselves that this Bill is at the forefront of dealing with modern slavery and I am indeed very pleased to see all the progress that has been made in this area. However, in terms of defining what support we should provide for victims, we are not at the forefront: we are behind the curve. The Bill introduced in Northern Ireland by the noble Lord, Lord Morrow—which has its Final Stage debate tomorrow—has a statutory statement of support and assistance that will be made available to adult victims. I sincerely hope that this House will ensure that we do not remain behind the curve and that we support Amendment 86M.

Baroness Howe of Idlicote: My Lords, I am very pleased to speak in support of Amendment 86M, in the name of the noble Lord, Lord McColl, to which I, and the noble Lord, Lord Judd, have added our names. At Second Reading, I welcomed the fact that the Government had responded to the concerns expressed by the Joint Committee on the draft Bill about the absence of any victim care provision through the introduction of Clause 48, which requires the Secretary of State to offer guidance about victim care. I also made clear, however, that in my view this fell far short of the provision of the statement of support services for victims of trafficking that would be expected to be itemised on the face of any ambitiously titled Modern Slavery Bill, which we are encouraged to think is leading the world on these very important matters. I, too, thank the Minister for the comments in his letter sent to Peers, following Second Reading, in which he shared the concerns that we provide victims with the services that they need.

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Those of your Lordships who have had an opportunity to look at the Modern Slavery Strategy, published on 29 November, will see statements about the Government's commitment to continue raising the profile of victims, which is very welcome. Paragraph 7.1 of the strategy states very clearly that,

“our approach to tackling modern slavery is victim-focused”,

but any victim looking at the support promised to them by this Bill would, I fear to say, fundamentally disagree. The current wording of Clause 48 gives very little reassurance to victims and seems to pay scant attention to our international obligations under the European convention and the European directive.

I am sure the Minister will say that we do not need Amendment 86M because all the assistance and support is being provided already. I am not convinced by that argument. I do not dispute that the Government take seriously their obligation to care for victims, as the Modern Slavery Strategy, the NRM review and the interdepartmental ministerial group policy statement have all indicated. However, I am not convinced that in practice all victims are receiving the support they are entitled to. The Joint Committee said:

“The quality of victim support and assistance provided under the NRM varies greatly. We have privately heard from victims some harrowing stories of poor medical treatment, no access to legal advice and wholly unsuitable accommodation”.

This is not an acceptable way to treat victims who, as the Government rightly say,

“have often endured horrific physical, psychological or sexual abuse at the hands of slave drivers and traffickers”.

If this Bill contained details of the minimum levels victims should be receiving under our international obligations, it would strengthen the likelihood that all victims would receive that level of assistance. Noble Lords will know that in 2012 GRETA, the Council of Europe’s group of experts, published its first analysis of UK compliance with the European Convention against Trafficking in Human Beings. Recommendations 26 and 27 state that the UK,

“should make further efforts to ensure that all potential and actual victims of trafficking are provided with adequate support and assistance from their identification through to their recovery. This should involve, in particular: … adopting clear support service minimum standards for victims of trafficking and the provision of adequate funding to maintain them; … ensuring that all children victims of trafficking benefit from the assistance measures provided for under the Convention, including appropriate accommodation and access to education … ; …. enabling victims of trafficking to have access to the labour market, vocational training and education as a form of rehabilitation; … ensuring that victims of trafficking who need it can benefit from translation and interpretation services; … improving the provision of legal advice or assistance to victims on various matters (NRM, asylum criminal proceedings, compensation)”.

Amendment 86M, which proposes to replace Clause 48, meets GRETA’s recommendations, as the noble Lord, Lord McColl, has told us.

Not only do we need to ensure that victims have access to all the support they are entitled to under the European convention and the EU directive, we also need to ensure that more victims can access this support. According to the National Crime Agency, some 60% of the potential victims who were encountered in 2013 by local authorities, police forces and NGOs were not

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referred to the national referral mechanism and thus could not access government-funded assistance under the victim support programme. Many other charities also say that they provide assistance to victims who do not wish to be referred to the NRM. We need to do all we can to build confidence among individual victims that, if they come forward, they will receive help.

The evidence review chaired by Frank Field for the Home Secretary prior to the publication of the draft Bill makes the following recommendation:

“The protections, entitlements and support that victims are entitled to should be clearly defined in law to help ensure that victims (and the NGOs that support them) are more confident to come forward. Formalising these provisions in law should in turn increase the accountability of the agencies responsible for delivering this support”.

I wholeheartedly agree with this, which is why I have put my name to Amendment 86M. As the UN says, in commentary on its model laws on trafficking,

“Adequate victim assistance and protection serve the interests both of the victim and of the prosecution of the offenders. From a law enforcement perspective, poor victim assistance and protection may discourage victims from seeking assistance from law enforcement officials for fear of mistreatment, deportation or potential risk to their personal safety”.

9.15 pm

The Government have repeatedly stated that one of the principal aims of the Bill is to increase the level of successful prosecution. Strong programmes of assistance and support, with clear foundations in law, not only serve to meet our moral obligations to victims but also play a key part in enabling victims to be more confident witnesses supporting successful investigations and prosecutions.

The imperative for this change is further compounded by the fact that the human trafficking and exploitation Bill in Northern Ireland sets out support services to victims very clearly on the face of the Northern Ireland legislation, which is, as we have heard, about to come into effect. I understand, too, that the Scottish Government are minded to do the same with its forced trafficking bill. Do we really want it said that the England and Wales Modern Slavery Bill is weaker than the Northern Ireland legislation-centred approach? I very much hope not. We can and surely should be better. I commend Amendment 86M to the Committee.

Baroness Cox: My Lords, I rise to speak to Amendments 102B and 102C as probing amendments in order to return to the important issue of legal aid for victims of trafficking and slavery. Possibly these amendments might be more appropriately grouped with government Amendment 85, which has been widely welcomed and on which I would like to add my own congratulations.

These amendments have two aims, identified by the Immigration Law Practitioners’ Association, the Anti-Trafficking Monitoring Group and the Refugee Children’s Consortium. The first is to clarify the Government’s reason for preventing the commissioner from examining individual cases; and the second is to highlight the concern that, unless legal aid is provided for trafficked and enslaved persons as soon as they are encountered, many will continue to fall through the cracks of provision

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of desperately needed help. There is currently a protection gap that should be filled by the full provision of legal aid for all trafficked and enslaved persons from the first point of contact with a lawyer.

The amendments highlight the situation that, as things stand, the anti-slavery commissioner will be prevented from investigating individual cases when Clause 44 comes into force. They provide that Clause 44 cannot come into force until such time as legal aid is expanded for victims of slavery and trafficking. That is not to say that Clause 44 should then do so. The powers of the commissioner can be brought into force without the restrictions that Clause 44 would impose. It would give the commissioner a power to investigate individual cases and to be able to respond appropriately, including responding to emergencies.

By making orders under Section 9 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the Lord Chancellor can change which cases are eligible for legal aid. Orders under Section 9(2)(a) are orders to broaden the scope of legal aid. My amendment is not more precise than that. One reason for this is that the national referral mechanism is under review. We do not yet know exactly what the new system for victims of trafficking and slavery will look like. Indeed, the Home Office review of the national referral mechanism states:

“In the event that reasonable grounds determinations were to be phased out … Legal Aid, Sentencing and Punishment of Offenders Act 2012 would need to be amended. This is done through the making of an Order under Section 9 of the Act …six months should be allowed for drafting this process”.

The other concern is the great need for more legal aid to be available at an earlier stage in the process. Victims of trafficking currently qualify for legal aid for their immigration cases if they have a decision that there are “reasonable grounds” to believe that they have been trafficked. Until the competent authority and the national referral mechanism have made a positive “reasonable grounds” decision, a person is not eligible for legal aid. If the competent authority subsequently reaches a negative decision at the final conclusive grounds stage, this renders them ineligible once more. I have been advised by the Immigration Law Practitioners’ Association that the Government’s amendment on legal aid for victims of slavery is subject to the same limitations.

It is of great concern that legal aid is not available to those who are afraid to approach the national referral mechanism in the first place. According to the anti-trafficking and labour exploitation unit, a person who escapes from a trafficker or situation of exploitation and comes to them is likely to be destitute. The person is usually frightened and often illiterate and unable to speak English. In most cases that person has no immigration status, papers or passport. Traffickers keep control of the passports of their victims in many cases. Perversely, fear of immigration enforcement has therefore become a tool in the traffickers’ arsenal. Traffickers tell their victims that they are illegal and threaten to report them to the immigration authorities, which they say will arrest them, detain them and remove them from the jurisdiction. These are not idle threats; victims of trafficking are often disbelieved and detained.

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Before turning to the authorities, including the statutory services such as police, who are first responders, victims of trafficking want to know what their options are. Will they be allowed to stay in the UK? Will they be safe? They have been in situations of powerlessness and subject to abuse. They are inherently very vulnerable, so victims of trafficking and slavery need advice about immigration. Without it, some opt to stay in situations of exploitation. It is a crime to give immigration advice if not authorised to do so, and for good reason—to protect people. Yet this means that NGOs providing shelter, which are first responders but not authorised to give immigration advice to the necessary level, cannot step into that breach left by the lack of legal aid.

If I may give one example to illustrate the dire predicament of such vulnerable people, Pranjali is an Indian national whom the excellent charity Kalayaan has assessed as having been trafficked. Pranjali is afraid to approach the national referral mechanism. She was subjected to appalling labour exploitation in the Middle East and here in the UK. She has tried to commit suicide multiple times and has visible scarring on her body. However, Pranjali is the sole provider for her family back in India. She became vulnerable to being exploited because her husband at home is disabled and needs money for his medical treatment. She entered on the tied, six-month domestic worker visa scheme last year but escaped from her employers, yet the Immigration Rules prevent her working for a different employer. She needs advice now as to whether she is likely to qualify for a residence permit as a victim of trafficking, which is her only option to regularise her status. She is weighing the risks of approaching the national referral mechanism, including the risks of being detained and removed, penniless, back to India—jeopardising her ability to provide for her husband’s medical treatment.

Victims of trafficking and slavery are thus in a Catch-22 situation. They will not receive help from a lawyer unless they get a positive decision but are far less likely to get a positive decision without a lawyer to assist them, both in making disclosures about what happened to them and in supporting those disclosures with evidence. The Home Office review of the national referral mechanism records that:

“Victims who escape and present themselves may not know where they have been held or the names of those holding them and the only evidence they have is the story of their experience. Research has shown that those who are severely traumatised have difficulty in providing a coherent story. These factors together can create a perception that decision-making is heavily (and wrongly) based on credibility whereas the decision-maker may feel constrained by the lack of evidence of a crime”.

Mistakes at this stage are difficult to rectify later and can adversely affect the rest of the case. It may be claimed that legal aid is available for everyone who claims asylum but not every victim of trafficking or slavery is a refugee.

In essence, my amendments seek to clarify the situation where a legal adviser encounters a person whom they determine needs legal advice on the immigration consequences of a referral to the national referral mechanism as a victim of trafficking or slavery. That person should surely be eligible for legal advice

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and for representation in their immigration matters whether or not a referral is ultimately made. Without such eligibility victims of trafficking and slavery, who are already inherently immensely vulnerable in so many ways, are also vulnerable to falling through the gaps of provisions that they so desperately need. I would be very grateful for any clarification or reassurance that the Minister is able to provide.

Lord Hylton: My Lords, Amendment 86M, tabled by the noble Lord, Lord McColl, is important in its own right and I am happy to support it. The amendment includes a period for reflection and recovery, which will be particularly helpful to overseas domestic workers who have been exploited or abused and who may have little or no English. I believe the amendment could be a ladder by which these overseas domestic workers in England, and particularly in London, could have access to legal aid and due process in civil cases as provided for by the Government’s Amendment 85, which was accepted earlier. In particular, if applications on behalf of aggrieved persons could be made by NGOs and law centres, the thing might be made to work and it would help those who particularly need it. For years we have seen bad and vicious employers enjoying a large measure of impunity. This must be ended. The amendment seems to agree with the Government’s stated wish to improve protection for victims.

Lord Alton of Liverpool: My Lords, I would like to be associated with the remarks from my noble friend Lady Cox concerning the potential gaps that people could fall through and her remarks and questions about the national referral mechanism and legal representation for those who are caught up in trafficking.

I particularly support Amendment 86J, moved by the noble Baroness, Lady Hamwee, and Amendment 86M, tabled by the noble Lord, Lord McColl. There is a link between these amendments because the noble Baroness quite rightly identifies those who may have been psychologically traumatised by their experiences. She rightly said that people could be extremely vulnerable and very badly damaged. Any of us who have met people who have been trafficked know that that must be true. If people have been concealed in a vehicle, smuggled into the country and exploited in the ways that have been described in speech after speech in Committee, these grotesque experiences will have maimed them psychologically. Hence it is important that there should be some psychological assessment and support for people who may be suffering from acute trauma and mental illness of one kind or another—something that is always neglected anyway in the National Health Service for our own citizens, let alone for people who have come through these kinds of experiences.

The noble Baroness, Lady Hamwee, is right to say that people should be assessed psychologically during the investigation of the offence. That theme is picked up in Amendment 86M, in subsection (6)(c) of the proposed new clause, where the noble Lord, Lord McColl, would make provision,

“to assist victims in their physical, psychological and social recovery”—

a point returned to in proposed new subsection (10)(c) with,

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“medical treatment, including psychological assistance”.

This is a recurring theme in these two amendments and I am surprised that provision is not being mandated anyway by the Bill and wonder whether it is not possible to do what the noble Baroness and the noble Lord have argued for. What do the Government intend to do to safeguard people who may be suffering from mental illness and who may have been traumatised through their experiences?

9.30 pm

I make one other observation, particularly about the list that we have been provided with by the noble Lord, Lord McColl, which, as he said, is rooted in the European Union directive and the convention. I was taken by the fact that, using his customary crystal ball, he was again predicting what the Minister might say in his reply. No doubt the Minister will end up being irritated if too many of us try to anticipate his reply, but he may well say that a list of this kind is something that would not normally be placed on the face of a Bill. However, I would contrast that with the debate that we had earlier on about Schedule 3. We had a long list; indeed, my noble and learned friend pointed out one or two of the things in that list that are unlikely to be involved in trafficking, but nevertheless they are there. I wonder, therefore, if it is not possible to accept the amendment in the way that it has been drafted, whether another schedule could be provided so that these things could be included. After all, we have heard quite rightly from the Government again and again throughout today’s debates, and indeed through all the proceedings on the Bill, that they want it to be victim oriented and they want to place victims at the heart of the legislation. If we were to have lists dealing with offences but not lists dealing with victims, that would be rather bizarre, so I hope that the Minister will be creative when he comes to reply.

I do not wish to put words in the Minister’s mouth but, as he was so generous on a whole series of earlier amendments in saying that the Government would go away and think further about them, I wonder whether there might be a way of incorporating some of the very admirable principles contained in Amendment 86M, including safe accommodation, medical treatment, counselling, information, access to education and to translation and interpretation services. That last is a sine qua non—surely it is a given that that would have to be provided. These are all admirable things, and we should find a way of saying that, in the normal course of things, that is what we would expect to be provided.

Lord Browne of Belmont: My Lords, I support Amendment 86M. The focus of the amendment is on improving the provision of support for victims of human trafficking and slavery, which I believe to be imperative if we are to appropriately respond to the impact of these crimes. The United Kingdom is a signatory to both the 2005 Council of Europe convention against trafficking in human beings and the 2011 EU directive on preventing and combating trafficking in human beings and protecting its victims, both of which are legally binding on the UK.

However, as we all know, signing up to a directive or a convention is only half the battle. The key issue is

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how a member state decides to implement the directive or convention in practice. In many areas the British Government and the devolved Administrations, who are responsible for criminal justice powers, have flexibility in deciding how they will implement these international instruments. A good example of this is seen in how we decide to design our human trafficking offences. Both the convention and the directive mandate that such offences are required, but the relevant legislatures in the UK can shape the offences as they choose.

However, Articles 11 and 14 of the directive and Article 12 of the convention set out the details of the practical assistance and support that states must provide to victims. Among these requirements are that assistance and support should be provided to victims before, during and—for an appropriate period of time—after the conclusion of criminal proceedings, and that the assistance and support should include at least standards of living capable of ensuring victims’ subsistence through measures such as the provision of appropriate and safe accommodation and material assistance, as well as necessary medical treatment, including psychological assistance, counselling, information and translation and interpretation services where appropriate.

The UK is obliged under international law to provide those measures of assistance and support; that is not in dispute. Now it is being argued that the obligation to provide such assistance and support does not need to be in statute, and that we can merely rely on guidance to fulfil the requirements. I do not believe that that is good enough. Indeed, as we have heard, the group of experts established by the Council of Europe convention, GRETA, has recommended that the UK put into statute this right to a reflection and recovery period during which the assistance is provided. To my mind, there is no logical reason why such obligations should not be outlined in statute with the details of delivery being set out in guidance. Amendment 86M would achieve such a goal.

I am afraid that, once again, I will take this opportunity to refer to the Northern Ireland Bill. Amendment 86 mirrors the requirements for assistance and support under the directive and convention, and unsurprisingly, therefore, it is similar to Clause 18 of the Northern Ireland Human Trafficking and Exploitation Bill introduced by my party colleague, my noble friend Lord Morrow. The Northern Ireland Assembly unanimously supported this clause when it was debated a few weeks ago. It sets out clearly in statute the range of assistance and support that adult victims of human trafficking will receive when they have been, or are about to be, referred to the national referral mechanism. Indeed, the Minister of Justice in Northern Ireland fully supports Clause 18 of the Northern Ireland Bill. He agreed with my noble friend Lord Morrow that such a move would be a positive one for the victims in Northern Ireland. The Minister of Justice and my noble friend co-operated very effectively to put forward an excellent clause that has been accepted by the Assembly.

I am very proud of the fact that Northern Ireland is leading the way within the United Kingdom through the Human Trafficking and Exploitation Bill. This Bill is superior to the Modern Slavery Bill in its proposals to assist and support victims of human trafficking.

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There is a risk—one that can be avoided but I fear will not be—that the support for victims will be superior in Northern Ireland to the rest of the United Kingdom. The setting out of the minimal level of assistance to victims in Clause 18 of the human trafficking and exploitation Bill is a model that the Modern Slavery Bill should follow for England and Wales. It is not more expensive, and it provides much greater clarity for victims and NGOs working with victims to as to what assistance and support they are entitled to. I urge your Lordships to consider carefully what is being done in Northern Ireland and to produce a similar measure in the Modern Slavery Bill. I commend Amendment 86M to the Committee.

Lord Bates: My Lords, I am struck in these amendments by how prescient contributors are of the arguments I am about to deploy. I was wondering how it could be that people were so aware of this. The reality is that we have had a rather open and extensive consultation period. Indeed, the officials working on the team are constantly meeting with outside groups and talking to people. Alongside that, my noble friend Lady Garden and I have been trying to do the same with your Lordships’ House. Therefore, I suppose that it is not too much of a surprise that respective positions are known—but that does not mean that they cannot be moved on either side.

I take slight issue with one of the caricatures put forward, perhaps unintentionally, by the noble Lord, Lord Browne, that somehow victims’ protection in the United Kingdom may not be of the same standard outside Northern Ireland. I do not accept that. Not least, of course, we are going to have an Independent Anti-slavery Commissioner, who will cover Northern Ireland. I am sure that that would be a key part.

The other point is that, as I have said before, we are open to looking at the legislation and experience in Northern Ireland and to sharing best practices with each other. The notion that somehow victims are just a passing shot in the Bill does not stack up to the discussions we are having or the legislation, where we talk about victim reparation orders, enhanced access to legal aid—which has been widely welcomed—special proceedings in court to encourage victims to come forward, presumptions about age, child trafficking advocates, and statutory defence if they are involved in committing a crime. All the way through, we all shared a commitment that those who have suffered most should be considered most. At the same time, we recognise that one of the best ways that one can serve victims is by ensuring that others are not added to their number by making prosecutions.

Those points made, I am not quite sure I will live up to the creative billing the noble Lord, Lord Alton, urged on me, but I shall respond as best I can to the points made. I am grateful for the tabling of Amendments 86J, 86K, 86L, 86M, 102B and 102C, which deal with crucial issues relating to identifying and supporting victims of modern slavery and to legal aid. This is why the Modern Slavery Bill includes a provision requiring the Secretary of State to issue guidance to ensure that front-line professionals understand how they might

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encounter and identify potential victims of modern slavery and how they can help them to access the support they need.

This guidance will focus on the effective identification of both child and adult victims of modern slavery and will provide information to front-line professionals and others on potential signs that someone may be a victim and on what to do. It will also set out the assistance and support on offer to victims through the government-funded adult victim care contract, currently operated by the Salvation Army, and local authority child welfare and safeguarding arrangements, including the presumption about age provisions in Clause 49. The Independent Anti-slavery Commissioner will also have a key role in ensuring that victims can be quickly identified by all front-line professionals. We are fully intending to consult on this guidance so that we can get it right, and therefore I do not believe that the amendment is necessary.

Amendment 86J seeks to require all victims to be psychologically assessed during the investigation of a modern slavery offence as set out in Clauses 1 or 2. While I appreciate my noble friend’s intention of ensuring that an assessment of victims’ needs is undertaken at an early opportunity and her awareness of the often deep psychological trauma these heinous crimes can inflict, I do not believe that this amendment is the right approach to achieve those laudable aims. The amendment may force victims to undergo a psychological assessment, even if they do not want one. I am sure that that is the last thing we should do. Added to that, all the way through this victim-focused legislation is the idea that victims have to consent to all the actions taken on their behalf. Instead, I offer the following reassurance. Adult victims who are referred to the national referral mechanism are entitled to receive psychological support through the national victim care contract currently run by the Salvation Army. Any such support would be provided following an appropriate assessment of an individual’s needs.

I now turn to Amendment 86L, tabled by my noble friend Lady Hamwee. I believe it is a probing amendment in relation to the intention of Clause 48(1)(c), which sets out that guidance should include,

“arrangements for determining whether a person is to be treated as a victim of slavery or human trafficking”.

The purpose of this paragraph is to ensure that such guidance covers the national referral mechanism decision-making process to determine whether a person is to be treated as a victim of slavery or human trafficking. The wording of the Bill reflects the terminology used in relation to the national referral mechanism. “Determination” is used to describe the reasonable and conclusive grounds decisions by the competent authority, whereas “identify” is used to refer to the initial identification of potential victims by first responders. I reassure my noble friend that the paragraph as presently drafted covers both these elements of the national referral mechanism process, and I trust that the intention of the amendment is not to limit the scope of the guidance in any way.

Amendment 86M seeks to put a referral mechanism into statute which ensures that victims get at least 90 days’ support which is not conditional on the

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willingness of the person to act as a witness in any criminal proceedings. Although administratively we provide potential victims with a minimum of 45 days to recover and reflect, in practice many victims are supported for a much longer period. As noble Lords may know, we are currently retendering the contract for adult victim care services and have reflected on the national referral mechanism review recommendations in building the requirements for the new contract. That includes consideration of how we might provide ongoing support to victims once they have received a decision confirming that they are a victim of modern slavery. Our aim is to help these individuals move on with their lives so that they are not revictimised through being retrafficked.

Finally, Amendments 102B and 102C will enable the commissioner to exercise functions in relation to individual cases until amendments are made via secondary legislation to legal aid provisions. The Government are strongly of the view that it is not the role of the commissioner to champion individual cases or to track victims who receive support. Their role is to strengthen our collective response to modern slavery, working closely with law enforcement agencies and other stakeholders, including civil society organisations, to identify more victims and prosecute more perpetrators. We recognise the importance of understanding the longer term outcomes of victims. That is why we are considering how we can work with the victim care contractor to best achieve this. Of course, information from individual cases may help inform the commissioner’s work in this regard, but it is not for the commissioner to advocate for individuals.

Potential victims of trafficking currently gain access to legal aid following a positive reasonable grounds decision of the national referral mechanism. Legal advice is not necessary for an NRM referral. The reasonable grounds decision is generally made within five working days after an individual has been referred to the NRM, and the decision has a low threshold. This test is an important gateway to avoid abuse of a system that provides access to a range of support, including legal aid. We recognise that there are concerns about the operation of the NRM. That is why we commissioned a full review of the system and will be piloting a new approach to the NRM in response to that review. We will ensure that any wider changes to the NRM are reflected in the provision of legal aid.

I thank noble Lords for tabling these amendments and allowing us to discuss some crucial issues. I hope that I have addressed noble Lords’ concerns and that—with the undertaking, as with previous groups, that we will continue reflecting on the detailed comments that have been made—they will take that reassurance and not press their amendments.

Baroness Hamwee: My Lords, I was looking to see if the noble Lord, Lord McColl, wanted to come in. I know that all noble Lords are very appreciative of the time and effort that Ministers and officials are putting in to meetings and discussions outside the Chamber. I hope that the teasing and the prescience does not deter them from continuing with that; I am grateful to the noble Lord, Lord Alton. My amendment about psychological assessment—I take the point about consent

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—is really not about the NRM or about support for victims and their recovery; that is obviously extremely important. I was seeking to pick up the role of psychological input into an investigation and prosecution. That is a different matter. It is clearly not appropriate now for me to expand on that any further, but if I can test the Minister’s patience, maybe this is something for outside the Chamber.

I note what the Minister said on my other two amendments—I am happy about those—and I beg leave to withdraw Amendment 86J.

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Amendment 86J withdrawn.

Clause 48: Guidance about identifying and supporting victims

Amendments 86K and 86L not moved.

Amendment 86M not moved.

Clause 48 agreed.

House resumed.

House adjourned at 9.49 pm.