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Fifth Report Contents

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Drawn to the special attention of the House

Draft Slavery and Human Trafficking (Definition of Victim) Regulations 2022

Date laid: 23 May 2022

Parliamentary procedure: affirmative

These Regulations set out definitions for the terms “victim of slavery” and “victim of trafficking” to enable the functioning of Part 5 of the Nationality and Borders Act 2022. The Home Office states that the intention of this new legislation is to establish definitions that are consistent with both existing statutory guidance and the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT). The changes aim to allow victims to be identified whether or not the threshold of criminality under the Modern Slavery Act 2015 has been evidenced.

We have however received two submissions, from CARE and ECPAT UK, which believe that the way these definitions are worded means they will not work as intended. Matters of legal drafting are outside our scope, but it appears to us that more comprehensive consultation prior to laying the Regulations might have resolved these concerns. We also note that the Delegated Powers and Regulatory Reform Committee highlighted potential difficulties in adapting the ECAT definitions in its report on the Bill. The Minister may wish to review the potential defects identified in the correspondence, so as to be able to confirm to the House, during the forthcoming debate, whether the proposed wording will accurately deliver the Home Office’s policy intention, and whether that intention is to exactly replicate Article 4 of ECAT or to modify it in some way.

These Regulations are drawn to the special attention of the House on the ground that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

1.These Regulations set out definitions for the terms “victim of slavery” and “victim of trafficking” to enable the functioning of Part 5 of the Nationality and Borders Act 2022 (“the 2022 Act”), which will rely on these definitions for identifying such victims which in turn triggers provision for their protection and support. The Regulations were laid by the Home Office and are accompanied by an Explanatory Memorandum (EM).

2.The Home Office outlines the problem being addressed in section 7 of the EM: current definitions are linked to criminal offences, therefore, someone is only classed as a victim of slavery if the conduct against them constitutes an offence under section 1 of the Modern Slavery Act 2015 (“MSA 2015”). The intention of this new legislation is to broaden that definition to allow victims to be identified whether or not the threshold of criminality has been evidenced, and also to align with the internationally accepted definitions in the Council of Europe Convention on Action Against Trafficking in Human Beings (ECAT) and the Palermo Protocol.1

3.The revised definitions will not be used by the criminal justice system, however, perpetrators will continue to be prosecuted under sections 1-2 of MSA 2015, which relate to the offences of slavery, servitude and forced or compulsory labour. The definitions in these new Regulations are for operational use and intended to be consistent with existing statutory guidance. They aim to provide those involved in identifying victims through the National Referral Mechanism, charities and NGOs with clear parameters and terms to rely upon in the implementation of modern slavery policies.

Disputed definitions

4.We have received submissions from two such organisations, CARE and ECPAT UK (Every Child Protected Against Trafficking), which convey concerns about the definitions used in these Regulations:2

• The ECPAT UK submission focusses on the wording of the definitions which it perceives as narrowing the scope from the current MSA 2015 position. ECPAT is particularly concerned that age is only one of several factors to be taken into account, asserting that this is contrary to various international conventions which require different treatment of exploited children.
• CARE draws attention to the wording of regulation 2(2)(a) which refers to circumstances that “significantly impair the person’s ability to protect themselves from being subjected to slavery, servitude or forced or compulsory labour” and contrasts this with the language used in section 1(4)(a) of MSA 2015 which states that regard may be had to circumstances “which may make the person more vulnerable than other persons”. CARE believes that the proposed wording is contrary to the Modern Slavery Act Statutory Guidance paragraphs 2.82-2.983 and “could be inferred as placing a duty on the person to protect themselves from vulnerability that could be a contributory factor to their exploitation”.
• Both organisations are critical of the way the term “travel” is used in the definition, concerned that it should not be limited to travel across international borders, since “county lines” groups coerce young people into moving drugs within the UK.

5.We raised these concerns with the Home Office and the response is published in full alongside the submissions.4 The response reiterates the Home Office’s intention to align the definitions with ECAT and the Palermo Protocol and the belief that the drafting adequately reflects those definitions:

“We disagree that the regulations are too narrow. The activities mentioned in ECAT Article 4 would be covered by the Draft Regulations and we have intentionally avoided including reference to specific forms of exploitation in recognition of the evolving nature of trafficking and modern slavery so as not to exclude victims of what may currently be unknown forms of exploitation.

The draft regulations make specific reference to all elements of trafficking at Section 3(2), setting out that “P may in particular arrange or facilitate V’s travel by recruiting V, transporting or transferring V, harbouring or receiving V, or transferring or exchanging control over V”. Here, recruiting, transporting or transferring, harbouring or receiving, and transferring or exchanging control of the Victim are given equal weight as actions for trafficking.

The ECAT Article 4(a) definition of “trafficking in human beings” requires recruitment, transportation etc., by the means specified in that Article, for the purpose of exploitation. In relation to children, Article 4(c) makes clear that the recruitment, transportation etc. of a child shall be considered trafficking, irrespective of the means used. Regulation 3(5)(b) of the draft regulations does the same.

Exploitation under Article 4 includes forced labour or services. The policy intention is that in order to come within the definition of “trafficking”, the services could be also provided under threat or deception. That is reflected in regulation 3(6)(d).

The draft regulations do not state that children (a person under the age of 18) can consent to their own exploitation. However, it is the policy position that a child can consent to providing a service and for that not to be exploitation. Where there is any element of force, deception or threat to induce them to provide that service, it is exploitation. That is the effect of regulation 3(6)(d). When considering the individual circumstances of a case, a person’s age (as well as other factors) will affect what amounts to force, threat or deception.”

Consultation

6.Both the organisations that wrote in claim that there had been inadequate consultation with the anti-trafficking sector about these Regulations.

7.The Home Office responded that it had conducted extensive public consultation on this general topic in connection with the Nationality and Borders Bill and New Plan for Immigration.5 The Home Office confirmed that, while they did hold a number of talks with stakeholders including the Victim Support Modern Slavery Strategy Implementation Group and various police, immigration and enforcement authorities, it was about the principles and objectives of these definitions: the specific wording proposed was not available to them. Neither was any material with the proposed definition available to people outside that stakeholder group.

8.We understand that the Delegated Powers and Regulatory Reform Committee (DPRRC) expressed concern over these prospective definitions in its report on the Bill.6 The DPRRC found it inappropriate that, what was then clause 68(1), proposed to give Ministers an unlimited discretion to define these terms rather than making a direct reference to Article 4 of ECAT and Article 4 of the ECHR on the face of the Bill. The Committee was prescient, as the current situation appears to have arisen because of the difficulties of trying to interpret the Articles of the conventions.

9.The language used by the Home Office in its supporting material may also add to the uncertainty since it talks about definitions being “compatible with”,7 “reflecting” or “aligning with” Article 4 of ECAT, which may or may not imply a complete replication. We therefore suggest the Minister makes the position unequivocally clear when introducing the debate.

Conclusion

10.Matters of legal drafting are outside our scope, but it appears to us that more comprehensive consultation prior to laying the Regulations might have resolved these questions.

11.It seems that all involved are pushing for the same objective, but the two submissions raise different and detailed concerns about whether the operational definitions as they appear in these Regulations will match international conventions and existing statutory guidance, as the Home Office says it intends. The Minister may wish to review the potential defects identified in the correspondence, so as to be able to confirm to the House, during the forthcoming debate, whether the proposed wording will accurately deliver the Home Office’s policy intention, and whether that intention is to exactly replicate Article 4 of ECAT or to modify it in some way.

M56 Motorway (Junctions 6 to 7) (Variable Speed Limits) Regulations 2022 (SI 2022/607)

Date laid: 6 June 2022

Parliamentary procedure: negative

These Regulations enable the operation of variable mandatory speed limits between junctions 6 and 7, as part of the M56 “all lane running scheme” (ALR scheme). There has been considerable concern over the safety of these smart motorway schemes which involve the conversion of the hard shoulder to a permanent running lane. On 21 January 2022 the Secretary of State for Transport agreed to all of the recommendations in the House of Commons Transport Committee’s 3rd Report, including that he would pause the rollout of future ALR smart motorway schemes until a full five years’ worth of safety data is available. We find it inexplicable that the Explanatory Memorandum to this instrument makes no mention of the Transport Committee’s reports or how the safety issues it raised will be applied to this ALR scheme.

We are concerned that the effect of these Regulations will be to bring the Junction 6 to 7 scheme into operation with emergency refuge areas at a much greater distance apart than is currently considered optimal, and have written to the Minister for an explanation of why the scheme is considered safe when it pre-empts the collection of the safety data to which the Transport Secretary has committed.

These Regulations are drawn to the special attention of the House on the grounds that they are politically or legally important and give rise to issues of public policy likely to be of interest to the House.

12.These Regulations have been laid by the Department for Transport (DfT) to enable the operation, from 12 September 2022, of variable mandatory speed limits between junctions 6 and 7 of the M56 as part of the “all lane running scheme” (ALR scheme) near Manchester Airport.

13.This means that vehicles will be running on all four lanes. The existing hard shoulder is being converted into a permanent running lane and will become the new lane 1 when the scheme is completed and opened to traffic in September 2022.

Transport Committee Report

14.There has been considerable concern over the safety of these smart motorway schemes and on 2 November 2021 the House of Commons Transport Committee published a critical report which concluded that:

“the scale of safety measures needed to effectively and reliably mitigate the risks associated with the permanent removal of the hard shoulder on all-lane running motorways has been underestimated by successive Administrations, the Department for Transport and National Highways”.8

15.In his response on 21 January 2022, the Secretary of State for Transport, the Rt Hon. Grant Shapps MP, agreed to all of the Transport Committee’s recommendations, including that he would pause the rollout of future ALR smart motorway schemes until a full five years’ worth of safety data was available.9

16.We queried how these Regulations conformed with this undertaking. DfT responded that this commitment was qualified as follows in the Government’s response to the Transport Committee:

“We will complete schemes already in construction given they are all over 50% complete. In addition, leaving Traffic Management in place for the duration of the pause would lead to significant disruption to the travelling public and could potentially lead to drivers using less safe A-roads.

The schemes currently in construction will have SVD [Stopped Vehicle Detection] technology in place when opened as well as some additional Emergency Areas (EAs), where possible.”10

17.DfT explained in supplementary material that, at the time of the Secretary of State’s announcement in January, the M56 J6 to 7 scheme was already in construction and over 50% complete with an Open for Traffic date of September 2022. It was therefore considered that this scheme should proceed to completion and would open with Stopped Vehicle Detection in operation.

18.Recommendation 3 of the Transport Committee’s 3rd Report said:

“The Department and National Highways should retrofit emergency refuge areas [EAs] to existing all-lane running motorways to make them a maximum of 1,500 metres apart, decreasing to every 1,000 metres (0.75 miles) where physically possible.”

The Transport Secretary’s response accepted the recommendation stating that:

“the Government is committing £390m over the duration of the second Road Investment Strategy to roll out an EA retrofit programme. This will see over 150 additional EAs being added to ALRs in operation and construction by 2025.”11

19.We therefore also asked DfT whether this ALR scheme for the M56 includes the use of EAs and, if so, at what separation distances. National Highways responded:

“The scheme has 4 designated Emergency Areas (EAs) that will be operational–2no. westbound and 2no. eastbound in the direction of travel. The EA average spacing is 2.5km. There is a programme within National Highways being developed to address EA spacings across smart motorways.”

20.The Junction 6 to 7 scheme will therefore be brought into operation with emergency refuge areas at a much greater distance apart than is currently considered optimal.

Conclusion

21.We note that this ALR scheme complies with the letter if not the spirit of the commitment the DfT gave in January this year. What we find inexplicable however is that the Explanatory Memorandum makes no mention of either the Transport Committee’s reports or how the safety issues it raised apply to this scheme.

22.Indeed, the EM continues to assert that “variable mandatory speed limits will … reduce the likelihood of accidents… [and] help the scheme achieve its safety objectives associated with reducing the average annual rate of collisions or casualties, reducing driver stress, and increasing and improving the quality of driver information.” (EM paragraph 12.1) This is what the collection of five years’ worth of safety data is intended to examine, and such a statement now would appear premature.

23.We have therefore written to the Minister for an explanation of why the scheme is considered safe when it pre-empts the collection of the safety data to which the Transport Secretary has committed.

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