JCHR legislative scrutiny priorities for Modern Slavery Bill

Transcription

1 BILLS (14-15) 043 Amnesty International UK JCHR legislative scrutiny priorities for Modern Slavery Bill Submission to the Joint Committee on Human Rights 1

2 August 2014 Amnesty International United Kingdom Section The Human Rights Action Centre, New Inn Yard, London EC2A 3EA Tel:

3 BILLS (14-15) 043 Amnesty International UK 1. Amnesty International UK (AIUK) is a national section of a global movement of over three million supporters, members and activists. We represent more than 230,000 supporters in the United Kingdom. Collectively, our vision is of a world in which every person enjoys all of the human rights enshrined in the Universal Declaration of Human Rights and other international human rights instruments. Our mission is to undertake research and action focused on preventing and ending grave abuses of these rights. We are independent of any government, political ideology, economic interest or religion. Introduction 2. AIUK welcomes this opportunity to contribute to the work of the Joint Committee on Human Rights (the Committee) in its assessment of the UK government s efforts to tackle modern slavery in all its forms through the Modern Slavery Bill (the Bill). AIUK has a wealth of experience of working on Human Trafficking and Slavery and were one of the leading organisations that campaigned for a robust victim centred approach on the text of the Council of Europe Convention on Action against Trafficking in Human Beings, and continue to work to promote states ratification compliance. Child guardians (clause 17) 3. Last year, the Committee recommended the Government conduct pilots of child guardians for unaccompanied children seeking asylum and child victims of human trafficking. 1 Twelve months later, the Government announced trials of advocates for the latter. 2 Clause 41 of the Bill empowers the Secretary of State to make arrangements for child trafficking advocates. Details of their role and responsibilities are left to regulations. The Government intends trial(s) to run for 12 months, to assess their success or otherwise and to regulate accordingly.3 4. AIUK supports clause 17 of the Anti-Trafficking Monitoring Group (ATMG) alternative Bill which would establish a statutory scheme for independent legal guardians for children, who may be victims of trafficking or other abuse. The clause sets out, at subparagraph (3), guardians key responsibilities. What the Government has said and published to date provides no indication that trial(s) will test each and all of the matters there listed. 5. For example, clause 17 of the alternative Bill includes, at subparagraph (3)(c), appointing and instructing the solicitor representing the child on all matters relevant to the interests of the child. The Immigration Law Practitioners Association (ILPA) has long highlighted that in the absence of a guardian empowered to give instructions (as distinct from merely helping the child to find and communicate with a solicitor), lawyers can and do face circumstances where a child s instructions are not in their best interests, including 1 Human Rights of Unaccompanied Migrant Children and Young People in the UK, First Report of Session , HL Paper 9/HC 196, June 2013, paragraph See 3 See e.g. the Delegated Powers Memorandum published with the Bill, available at 3

4 where the child thinks their best interests lie in protecting their relationship with, and the interests of, the child s trafficker. 4 It is a matter of grave concern that the obvious risks to children arising from this have for so long not been addressed, and may remain to be addressed following the trial(s) which do not appear to include provision for lawyers to receive instructions from advocates. AIUK recommends that the Committee supports clause 17 of the ATMG alternative Bill and/or urges Government to ensure that advocates have the ability and authority to directly instruct the child's lawyers Overseas domestic workers (clause 19) 6. In April 2012, the Government amended the immigration rules relating to overseas domestic worker visas. The changes significantly increased employers control over overseas domestic workers, including by tying the worker to the particular employer. The Joint Committee on the Draft Modern Slavery Bill highlighted that this institutionalises their [overseas domestic workers ] abuse; it is slavery and is therefore incongruous with our aim to act decisively to protect the victims of modern slavery. 5 These changes have led to increased abuse of, and reduced the help that can be provided to, overseas domestic workers as Kalayaan have reported AIUK supports clause 19 of the ATMG alternative Bill which would reinstate by subparagraph (1) protections removed in 2012 as recommended by the Joint Committee on the Draft Modern Slavery Bill. 7 It would also strengthen protections against slavery and other abuse, including by subparagraph (8) ensuring a direct contractual relationship between diplomatic domestic workers and the relevant diplomatic mission as that Committee also recommended. 8 AIUK recommends that the Committee supports clause 19 of the ATMG alternative Bill. Supply chains (clause 20) 8. The Bill, by ignoring the human rights responsibilities of companies, is neglecting a key factor in the prevalence of modern slavery in the UK the demand for trafficked labour across a number of industries. The presence of forced labour in company supply chains contravenes international standards that the UK should be holding its companies to. These standards include the International Labour Organisation Forced Labour Convention 1930 (No. 29) and its 2014 Protocol 9, and the UN Guiding Principles on Business and Human Rights (UNGPs). 9. The UNGPs, adopted by the UN Human Rights Council in June 2011, require companies to conduct human rights due diligence to address their impacts across all their business 4 ILPA drew attention to this concern in its evidence for the Committee s inquiry leading to its First Report of Session , op cit (see e.g. paragraph 170 & Q47); as it did in its written evidence published with the Committee s Twenty-Sixth Report of Session , Human Trafficking, HL 245/HC 1127, October Draft Modern Slavery Bill, Report of Session , HL Paper 166/HC 1019, April 2014, paragraph Modern Slavery Bill Public Bill Committee, First Sitting, Monday 21 July 2014, Q46, evidence of Kate Roberts 7 Op cit, paragraph Op cit, paragraph

5 BILLS (14-15) 043 relationships, which include their supply chains. 10 The UK Government was the first State to develop an Action Plan to implement the UNGPs. 11 This was launched in September 2013 by the Foreign Secretary and the Business Secretary. 10. The Bill would be significantly strengthened if it contained measures that would have the effect of reducing the demand for modern forms of slavery. To reduce the incidence of slavery, the drivers for cheap, easily exploitable labour need to be understood and addressed. So long as companies are allowed to avoid taking the necessary measures to identify and root out forms of slavery in their supply chains, a pull factor will ensure the continuation of human trafficking regardless of the legislation in its current form. 11. While there is a role for voluntary mechanisms in improving labour rights, reliance on a purely voluntary approach has not been effective in ensuring that UK-registered companies meet minimum labour standards throughout their international supply chains. The failure to address the situation effectively through other approaches requires the government to introduce legislation. In the absence of appropriate legislative measures, laggard companies will continue to mismanage supply chains. This creates a situation where the most exploitative labour conditions are tolerated. 12. Studies commissioned by the Joseph Rowntree Foundation have revealed the prevalence of forced labour across a number of UK industries, including care, cleaning, hospitality, construction, and meat and poultry processing. 12 The following indicators of forced labour in the UK have been identified in these studies: Threats or actual physical harm to the worker; Restriction of movement and confinement, to the workplace or to a limited area; Debt bondage, where the worker works to pay off debt or a loan, and is not paid for his or her services; The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt; Withholding of wages or excessive wage reductions that violate previously made agreements; Retention of passports and identity documents, so that the worker cannot leave or prove his/her identity and status; Threat of denunciation to the authorities, where the worker has an irregular immigration status. 13. The Modern Slavery Bill evidence review chaired by the Rt Hon Frank Field MP recommended measures to free the country s supply chains from slave labour, including the introduction of legislation building on and improving the California Transparency in Supply Chains Act 2010 and requiring companies to disclose in their annual reports the steps they 10 UN Guiding Principles on Business and Human Rights, June 2011, see Principles 17-21; 11 Good Business: Implementing the UN Guiding Principles on Business and Human Rights, September 2013; _final_online_version_1_.pdf 12 Forced Labour in the UK, Joseph Rowntree Foundation, 2013; 5

6 are taking to eradicate slavery from their supply and product chains and business practices The Joint Committee on the Draft Modern Slavery Bill supported legislation on supply chains pointing out that this does not have to be burdensome for reputable businesses to implement. The Committee took evidence from major businesses that expressed support for appropriate legislative measures AIUK believes that without measures designed to provide greater transparency about the risks of modern slavery in the supply chains of UK-registered companies, and the steps that companies are taking to address these, the Bill will be only partially effective in reducing the incidence of, and preventing modern slavery. Legislating for Supply Chain due diligence, along the lines of California s Transparency in Supply Chains Act will help create a corporate culture in the UK that will be intolerant of modern forms of slavery and enable it to be rooted out of the labour market. AIUK recommends that the Committee urges the Government to adopt a Transparency in Supply Chains amendment to the Bill that builds on and improves on the California Transparency in Supply Chains Act 2010, in keeping with Clause 20 of the Anti-Trafficking Monitoring Group's alternative Bill".. Anti-Slavery Commissioner (Clauses 34, 36 and 38) 16. AIUK, alongside our partners in the ATMG, welcomes the proposal to establish an Anti- Slavery Commissioner (Commissioner), but consider that they should have a wider remit than is prescribed in the Bill and be independent of the Government in performing its functions. AIUK believes there are a number of weaknesses in the proposals of the Bill which would limit and compromise the effectiveness of the role. These include: The Commissioner is to be appointed by the Home Secretary (Clause 34(1)) The staff, resources and expenses required for the function of the Commissioner s office are to be provided for by the Home Secretary (Clause 34(3) and (4)) The Commissioner s activities and areas of focus have to be agreed upon by the Home Secretary (Clause 36(6) The Home Secretary can edit and remove any material from the Commissioner s reports and annual reports before publication (Clause 36(10) 17. In the UK, the independence of comparable bodies has been significant in their ability to exercise their functions well. These bodies include the Equality and Human Rights Commission, which has powers and duties under the 2006 and 2010 Equality Acts. The 2006 Equality Act necessitates that the Secretary of State should constrain the Commission in determining its activities, timetables and priorities as little as possible. 13 Modern Slavery Bill Evidence Review, December 2013; 14 Draft Modern Slavery Bill Report, Joint Parliamentary Committee, April 2014; 6

7 BILLS (14-15) In addition, the 2010 review of the Office of the Children s Commissioner 15 proposed that consideration should be given to strengthening the Commissioner s independence, especially in respect of reporting and the appointments process and recommended: The removal of the requirement to consult with the Secretary of State prior to undertaking an inquiry and the Secretary of State s power to direct the Commissioner to undertake an inquiry; The involvement of Parliament in the appointment process; The Commissioner submits reports simultaneously to Parliament and the Secretary of State, and the Government presents a written statement to Parliament on the action to be taken in response to the recommendations; The Commissioner receives a three-year budget with the freedom to determine how best to meet its objectives. 19. We welcome that the Committee endorsed these recommendations in respect of the Children s Commissioner, particularly the need for strengthened independence from the Secretary of State; and the potential for a stronger and more direct relationship with Parliament At present the proposed powers of the Anti-Slavery Commissioner are significantly narrower than that of rapporteurs elsewhere in Europe (e.g. Finland, which AIUK and the ATMG would identify as a model of good practice). Rapporteurs in other European countries, such as the Dutch National Rapporteur have reiterated independence and autonomy as critical to their ability to ensure their countries performance in combatting trafficking. 21. The success of the Commissioner will be dependent on their ability to thoroughly and independently scrutinise anti-slavery actions in the UK and assess their impact. To do this effectively the powers of the Commissioner would need to include statutory powers to collect and request data and information on trafficking from public bodies, monitor trends and assess the impact of policies and legislation relevant to trafficking and report directly to Parliament. AIUK is concerned that the role is solely focused on law enforcement, and is therefore still lacking in comparison to other similar UK and international bodies. AIUK recommends that the role should include the monitoring of victim assistance and prevention work. 22. Clause 38 (2) - Whilst we acknowledge that advocacy/representation in respect of particular individuals or cases is not included as part of the proposals on this role, we would see great benefit in the remit enabling the Commissioner to hold an inquiry where a case presents issues of relevance to wider public policy. Therefore, AIUK recommend this clause is 15 Review of the Office of the Children s Commissioner (England), John Dunford, November 2010, Cm 7981, p36 16 Sixth Report of Session , Reform of the Office of the Children s Commissioner: draft legislation, HL Paper 83/HC 811, December 2012, paragraph 22 7

8 amended to detail the power to hold an inquiry. Such power would be similar to the authority conferred on the Office of the Children s Commissioner for England, a power highlighted for its significance in the 2010 review of the office. 23. AIUK, and its ATMG partners, recommends that the Anti-Slavery Commissioner should be an independent body with statutory powers and sufficient resources to: Request data from relevant public authorities and service providers; Monitor trends and the effectiveness of relevant law and policy; Review the availability and implementation of support and protection measures for victims of modern slavery; Report directly to Parliament. Legal Aid 24. A central aim as described by the Home Secretary at Second Reading of the Bill is to enhance support and protection for victims of modern slavery. 17 This is demanded by any serious concern for the plight of victims and the effects of slavery. It is also key to any serious attempt to improve capacity to successfully identify and prosecute human traffickers and slave masters, and to reduce and end their abuses, for which the cooperation and evidence of victims is, as the Home Secretary recognised, crucial. 18 Yet, changes to legal aid provision have greatly reduced support and protection available to victims. The Bill provides an opportunity to remedy this. 25. Under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), a victim of human trafficking may be entitled to legal aid in connection with an employment law or damages claim arising from his or her exploitation. 19 He or she may also be entitled to legal aid in connection with an immigration claim, but only if first formally recognised through the National Referral Mechanism (NRM) as a victim or potential victim of human trafficking The Bill recognises that slavery extends beyond human trafficking. 21 LASPO legal aid provisions should be extended to include all victims of slavery. These should be further amended to ensure that victims can obtain legal aid for advice and assistance in relation to their immigration status prior to any referral to, or decision by, the NRM. This is vital because fears concerning immigration status deter victims from taking steps to escape abuse, and are used by human traffickers and slave masters to control their victims. 22 This is significantly compounded, but not solely contingent upon, the conjoining of immigration control and victim identification arising from UK Visas and Immigration s role in determining victim status, a conflict of interest expressly recognised by the Joint Committee on the Draft 17 Hansard HC, 8 July 2014 : Column 166 per the Rt Hon Theresa May MP 18 Hansard HC, 8 July 2014 : Column 177 per the Rt Hon Theresa May MP 19 Paragraph 32(2) & (3) of Part 1 of Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act Paragraph 32(1) op cit 21 Clause 45 expressly distinguishes between slavery and human trafficking, albeit many instances may be caught by both definitions. 22 See e.g. UN Office on Drugs and Crime (UNDOC), Global Report on Trafficking in Persons 2012, December 2012, pp15 & 40, The Anti-Trafficking Monitoring Group, All Change: Preventing Trafficking in the UK, April 2012, pp49-50 and Draft Modern Slavery Bill, Report of Session , op cit, pp65-66 (paragraphs ) 8

9 BILLS (14-15) 043 Modern Slavery Bill in highlighting several flaws in UK Visas and Immigration practice and understanding The current legal aid arrangements are a significant barrier to victims coming forward by effectively denying them legal advice about the immigration consequences in advance of doing so. NGOs are generally not able to fill this void because of the complexity of immigration law and practice, and the unique regulatory scheme to which immigration advice is subject. 24 AIUK recommends that the Committee urges Government to amend Schedule 1 of the Legal Aid, Sentencing and Punishment of Offenders Bill to ensure that all victims of modern slavery have access to legal aid in relation to employment, damages and immigration claims; and to ensure that victims have access to legal aid in relation to immigration prior to referral or decision by the NRM. Access to Healthcare 28. The Government has recognised the especial importance of healthcare practitioners in providing an opportunity to identify, gain the trust of and support victims of human trafficking to escape situations of abuse. 25 However, current policy to extend NHS charging of undocumented migrants risks exacerbating the current problem, which arises from the inadequate exemption from such charges provided to these victims. 26 The exemption is inadequate because it only applies to those formally recognised as a victim or potential victim via the NRM. 27 Those yet to be identified, and the majority of those still suffering abuse and exploitation, 28 are thus excluded from the exemption and liable to these NHS charges. The fear of being charged (and of immigration consequences which this might attract) is a significant deterrent to seeking healthcare; and this undermines the good intention of empowering and encouraging healthcare practitioners to be able to support victims. 29. AIUK supports the following amendment proposed by Doctors of the World UK. It would enable a healthcare provider to encourage continued engagement of, and develop trust and confidence with, a suspected victim of slavery or human trafficking by assuring the victim there will be no charge. This would benefit the victim s health and chances of being assisted to escape his or her abusers. After Clause 44, insert New Clause 23 Report of Committee, op cit, paragraphs Immigration advice is regulated by the Office of the Immigration Services Commissioner (OISC) under the scheme established by Part V of the Immigration and Asylum Act The scheme provides for advisers to be accredited at different levels, and the level of accreditation among NGOs within the scheme is often at level 1 which does not permit e.g. advice on making an asylum claim or applications falling outside the immigration rules. 25 Then Health Minister, Anna Soubry MP, recognised this in Aprils 2013 when launching new training and advice to NHS staff, see 26 See e.g The National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556, regulation In 2012, around two-thirds of trafficking victims identified by the Serious Organised Crime Agency (SOCA) had not been referred to the National Referral Mechanism (and we assume victims not identified by SOCA had also not been referred): see SOCA, A Strategic Assessment on the Nature and Scale of Human Trafficking in 2012, August 2013, p6 (paragraph 8). 9

10 Provision of NHS services to victims of modern slavery Where a provider of services, to which section 175 of the National Health Service Act 2006 relates, believes that a person may be a victim of slavery or human trafficking, no charge may be made under that section for services from that provider to that person. 30. AIUK recommends that the Committee supports this amendment and/or urges Government to amend the National Health Service (Charges to Overseas Visitors) Regulations 2011, SI 2011/1556 to ensure exemption from NHS charges extends to all victims of modern slavery including prior to any referral to (and decision by) the NRM. For further information on any of the issues raised please contact Amnesty International UK at parliament@amnesty.org.uk A copy of the Alternative Modern Slavery Bill prepared by the Anti-Trafficking Monitoring Group (ATMG), to which this submission refers, is available at: e_modern_slavery_bill.aspx 10