Modern Slavery Bill 2014 House of Lords Second Reading 17 November 2014 For more information, please contact: Parliamentary lead: Rebecca Thomas, 020 7832 7853 Rebecca.Thomas@equalityhumanrights.com Legal lead: Sarah Lowe, 0161 829 8445 Sarah.Lowe@equalityhumanrights.com 0
Introduction The Commission welcomes this Bill, which is the first of its kind in Europe, and one of the first in the world, to combat some of the most severe forms of exploitation and human rights abuses in the modern world. However, while strongly supporting the aims of the Bill, the Commission considers that the way it is drafted in some places risks leaving some victims of slavery and trafficking without adequate protection, and some perpetrators able to participate in these inhumane practices free from the fear of being convicted of a criminal offence. The Commission's legal analysis concludes that the drafting of Clauses 1, 2, 3, 40, 41 and 45 needs to be amended to ensure that the Bill provides clear and comprehensive protection for victims of slavery and trafficking, and complies fully with the UK s obligations under EU Anti Trafficking Directive 2011/36/EU (the Directive) and international human rights instruments. Our main concerns are described below. Vulnerable victims Clause 1 of the Bill aims to ensure that personal circumstances which make a victim particularly vulnerable are considered when determining if they have been subject to slavery, servitude and forced or compulsory labour. However, we are concerned that the list of factors set out in clause 1(4) may result in the vulnerability of some victims not being given appropriate consideration and some offenders therefore evading prosecution. For example, as drafted it is not clear that a victim who has migrated to the UK who may also be subject to cultural and economic factors e.g. a migrant domestic worker would be considered to be particularly vulnerable and therefore protected. 1 We consider that Clause 1 should be amended to reflect the language of Article 2(1) of the Directive, so as to ensure that the broad range of complex dynamics which can be used to compel victims are caught by the offence. All trafficking acts should be an offence 1 http://www.jrf.org.uk/publications/chinese-experiences-forced-labour 1
Clause 2 of the Bill makes it an offence to arrange or facilitate a person's travel with a view to them being exploited. It sets out that travel can be arranged or facilitated by recruiting, transporting, transferring, harbouring, receiving or exchanging control over another person. As the Bill is drafted, travel is a pre-requisite in the offence. This means that it may not be possible to prosecute those involved in the trafficking chain where there is no movement of victims or where such movement cannot be evidenced. For example, those who recruit victims and are apprehended before they are moved would escape prosecution. Also evidence from children of the trafficking network, along with details of who moved them and when, can be difficult to obtain thus making prosecution under the current provisions difficult. Therefore we consider that the Bill should be amended to remove the requirement travel is a pre-condition of a trafficking offence. Consent Clause 2(2) of the Bill clarifies that a victim's failure to object to being recruited, harboured, transported etc is not relevant to the crime of trafficking. However the Bill does not make their failure to object to their exploitation, where they have been subjected to force, coercion, threat etc. irrelevant to whether there is a crime. It also does not make it clear that a trafficker's exploitation of a child is a crime regardless of whether they objected or not or whether force, coercion etc. was used. Therefore, the nature and degree of force, threats etc. will be relevant to whether they are a victim of a trafficking offence and provide a potential defence for those accused of trafficking. Courts will become involved in a complex assessment of the vulnerabilities of the victim and the pursuant impact of the threats, force etc. in relation to those. Some means used to compel victims are nuanced and subtle but very effective nonetheless, for example, threats to family in their country of origin, or cultural ritualistic threats. It is also particularly pertinent for children: the report by Alexis Jay into Rotherham 2 noted that children were often not aware that they were being exploited or compelled in order to object. As a result they may not be identified as victims of a trafficking offence and their traffickers escape prosecution. Clause 3(5) identifies that securing services by use of force, threats or deception amounts to exploitation for the purposes of trafficking. This means that traffickers who use coercion, fraud, abuse power or the vulnerability of their victim, accept or give payment to secure the compliance of their victims etc. may not be guilty of an offence under the 2 http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham 2
Bill. Abuse of power or a position of vulnerability or giving or receiving payments of benefits may not necessarily be by way of overt threats of literal force, for example services secured by debt bondage, a common means of controlling a trafficking victim, may not be prosecuted. Furthermore clause 3(6) provides that securing services from children and vulnerable people amounts to exploitation for the purpose of trafficking if an adult, who is not vulnerable, would have been likely to refuse to provide those services. Children are vulnerable by virtue of being a child, as illustrated by the Rotherham report which shows that their experience and understanding cannot be compared to that of an adult. Comparing a vulnerable adult and someone without that vulnerability means that no account will be taken of the influence those vulnerabilities have on the ability of the individual to resist their trafficker. What is relevant to whether a vulnerable adult consented to their exploitation was whether any force, coercion etc. was used and not what a reasonable adult would have done. Therefore the Commission's legal analysis concludes that clause 2(2) should be amended to state that an adult victim's consent to exploitation is irrelevant where force, coercion, threats etc. have been used and that the exploitation of a trafficked child is a crime irrespective of whether they objected or force, threats etc. were used. A test of what an adult would have done should be removed from the Bill and the full range of means used by traffickers to secure compliance from victims should be included. Victims compelled to commit offences Clause 45 of the Bill aims to provide a defence to those victims of slavery or trafficking victims who are being prosecuted for offences they were compelled to commit as a consequence of their trafficking or slavery. In our view the defence is overly complex for consideration by a jury and risks some victims not being able to benefit from the defence, for example those who have been recruited or transported but not yet exploited, such as those who are compelled to commit immigration offences whilst being transported. Also it could be read that a conviction under clause 1 is required for the defence to be engaged which would severely limit its application in light of the current low prosecution rate. In line with the points we raised in respect of clause 1, the limited range of characteristics set out in clause 45(2) may result in the particular characteristics and circumstances of a victim not being considered in 3
determining whether they committed the offence as a consequence of having been trafficked or enslaved. Therefore those victims who are vulnerable to trafficking as a result of their ethnicity, cultural backgrounds, socio, economic or migrant status etc. may not gain the benefit of the defence in relation to offences they committed. For example cannabis farmers from Vietnam who may be subject to debt bondage (a number of whom have had successful appeals against their convictions) may not benefit from the defence. This is further exacerbated by the blanket exclusion of the offences listed in schedule 3 without any consideration of the facts of the case in hand. For example, a victim who helps another victim escape would not benefit from the defence as s25 Immigration Act 1971 is included in schedule 3. Also some victims may commit criminal damage when escaping from wherever they are held but would not be able to use the defence as this crime is included in schedule 3. The requirement in clause 45 that child victims must have been compelled to commit the offence as a result of their being trafficked/subjected to slavery will limit the availability of the defence where children are not aware that they have been trafficked or exploited. From our assessment of the legal implications, we believe that clause 45 should be amended to remove the need for evidence of compulsion for children to ensure that they benefit from the defence and a consistent approach on vulnerability and irrelevance of compulsion of children is taken across the Bill. The full range of relevant characteristics which may make a victim vulnerable to committing offences whilst enslaved or trafficked should also be included and the exclusion of victims from the defence on grounds of the offences committed (as listed in schedule 3) should be subject to consideration of the facts of each case. Clauses 40-41 Anti-slavery Commissioner The Commission notes that there are improvements in the Bill in relation to the independence of the Commissioner. We understand that it is envisaged that the Commissioner is to work in partnership with government to ensure, amongst other things, that those agencies with investigative powers operate effectively. However, the Commission's inquiry into human trafficking in Scotland 3 findings indicate that a stronger role is required. We remain of the view that the Commissioner 3 www.equalityhumanrights.com/uploaded_files/scotland/human_trafficking_in_scotland_/inquiry_into_human _trafficking_in_scotland-full-report_pdf_.pdf 4
should be given further powers, which would include the ability to require the disclosure of data and information, to conduct investigations and inquiries and to hold agencies to account for non-compliance with laws and policies. Protection of children The Commission welcomes the inclusion of provisions relating to child trafficking advocates. Neither the duty for public authorities in clause 50 to notify the NCA of suspected victims of trafficking not the current statutory guidance imposes a clear statutory requirement on specified public authorities and voluntary organisations to record and report trafficked children who go missing from care. Research suggests that approximately 60% of suspected child victims of trafficking in local authority care go missing, and two thirds are never found 4. Furthermore, there is evidence that those who are found are with traffickers again. 5 Therefore intelligence enabling the analysis of trends and patterns is key in addressing and combating the re trafficking of children The Rotherham report highlighted the early awareness of schools and residential care homes and so the valuable part they have to play in combating trafficking. The Commission considers that such a duty should be included within the Bill and explicitly apply to health authorities, schools, prisons, probation services and competent authorities, all of which are likely to come into contact with potential victims of trafficking. It should also apply to voluntary organisations performing a public function (irrespective of whether they are a First Responder). Overseas Domestic workers The Commission notes the government s rationale for changing the ODW visa arrangements. However it believes that the current arrangement (which ties the worker to a single employer) has 4 All Party Parliamentary Group for Runaway and Missing Children, and the All Party Parliamentary Group for Looked After Children and Care Leavers (2012) Report from the Joint Inquiry into Children who go Missing from Care p.13. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/175563/report_- _children_who_go_missing_from_care.pdf ECPACT and Save The Children (2007) Missing Out: A Study of Trafficking in the North West, North East and West Midlands. Available at: http://www.ecpat.org.uk/sites/default/files/missing_out_2007.pdf p.5 5 CEOP (2010) Strategic threat Assessment Child Trafficking in UK paragraph 10.4. Available at: http://www.ceop.police.uk/documents/ceopdocs/child_trafficking_strategic_threat_assessment_2010_npm_ Final.pdf 5
significantly increased the vulnerability to exploitation of overseas domestic workers. This is of continued concern to the Commission in relation to the positive duty to take steps to prevent trafficking. We believe the policy constitutes a breach of Article 4 of the European Convention on Human Rights and this Bill presents an opportunity to address that breach. About the Equality and Human Rights Commission The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. It is an independent body responsible for promoting and enforcing the laws that protect fairness, dignity and respect. It contributes to making and keeping Britain a fair society in which everyone, regardless of background, has an equal opportunity to fulfil their potential. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. It encourages compliance with the Human Rights Act 1998 and is accredited by the UN as an A status National Human Rights Institution. Find out more about the Commission s work at: www.equalityhumanrights.com 6