My Lords, I also have Amendments 3, 5, 6 and 100 in this group, all of which are directed to the best interests of the victim or survivor. I say to the noble and learned Baroness that I regard it as my job—and all our jobs—to worry. I accept that sometimes I worry a little too much but I doubt I will change that now.
As we have just been discussing, Clause 1 refers to a person’s “personal circumstances”. My amendment seeks to add “or characteristics”. The terms in parenthesis in Clause 1(4) are, in one case, a circumstance—“family relationships”—but others, such as illness, are more of a characteristic. Maybe they are circumstances as well, but I regard circumstances as being more external and characteristics as more about the person himself. I do not suppose that there is a neat or clear dividing line but I am concerned that “circumstances” may not be as broad as I would like it to be. If the Minister agrees, perhaps one can look at Clause 1(3) as well.
The list in parenthesis in Clause 1(4) is obviously not intended to be exhaustive—it starts “such as”—but it refers to “mental and physical illness” without mentioning disability. I am suggesting adding “or disability” because elsewhere in the Bill there is reference to both disability and illness. Obviously, they are not the same and inclusion here would avoid any doubt about that.
Perhaps this tips over into characteristics as well but in my view circumstances certainly include experiences, particularly a position into which a victim has been
forced and has been found. Experiences go to make up the person, and if we are embarking on the sort of description that is included here, that is a term that also might be considered. To be appropriately broad, I am suggesting changing “such as” to “including”.
Perhaps I could take this opportunity to ask my noble friend whether in Clause 1(3), where it says:
“In determining whether a person is being held in slavery … regard may be had to all the circumstances”,
“may” means “shall”. What is the extent of the court’s discretion here? In particular, after having regard to all the circumstances, could the court determine that, despite other evidence, a case is not so extreme that it could be described as slavery? In adding these provisions to what is in the current legislation in Section 71 of the 2009 Act, I am not really clear what we are gaining. I suppose that, once the question about “may” or “shall” in Clause 1(3) has been answered, the same issue or something similar arises in Clause 1(4). Perhaps another way of putting this is to ask whether there have been difficulties in prosecuting under Section 71 that would have been addressed by having these two provisions, although my noble friend may not know the answer to this given the small number of prosecutions, to which he has referred.
This group also includes Amendment 100, which was tabled in my name. This amendment is rather different. It looks at a new offence of exploitation, and really does no more than just consider it. This amendment was also tabled in the name of the noble Baroness, Lady Young of Hornsey. I will not have been the only one who, in seeking to get to grips with these issues, has become interested in the ill treatment of labour in a much wider sense than we are dealing with in the Bill. There is a spectrum—or, as it has been termed, a continuum—from direct, decent work to slavery. This is very much a probing amendment. It would obviously not be appropriate to jump straight into a new offence without careful consideration and, indeed, without wide consultation.
The concept of a continuum is not mine. I was interested to read a report from the Joseph Rowntree Foundation by Klara Skrivankova, which talks about a continuum reflecting the real life experiences of workers whose employment relationships are not static. It discusses the variability in their working conditions resulting from the circumstances, their personal vulnerabilities and external pressures. The model of the continuum also considers the spectrum of substandard working conditions that might not constitute forced labour but are identified as underlying causes, and perhaps are on the way to forced labour. Putting it another way, such an offence would apply the convention according to modern standards.
This was particularly put into my head in conversations with Focus On Labour Exploitation—or FLEX—which is a small charity with a very big agenda. I discussed this very recently with a counsel who has undertaken many prosecutions in this area. Indeed, I recognise one of the case studies referred to in the strategy that was recently published. The first thing the counsel said was that to have such as offence, which was not as severe as forced labour, would make things easier for the Crown. There would be more guilty pleas. He
immediately followed that by saying that it would take the heat off the victim. The jury would naturally think that a victim must be vulnerable, and the jury would not succumb to the tendency, which he has observed, to assume that forced labour requires violence.
The counsel also said that the maximum sentence of life imprisonment—although I am not arguing with that being provided for here—can be something of a deterrent to a jury, in his view. He compared this with rape. That carries high maximum penalties, but he believes that a jury has been unwilling to convict because it is worried about the penalty that might be imposed, which it thinks would be inappropriate.
In the same conversation, a psychologist said that there being a maximum sentence of life can be an enormous burden on a victim, who, in the very complex relationships that are created in such situations, may feel quite a responsibility to the slave master. The counsel with whom I discussed this even said that he thought that there would be no need to define exploitation because the best assessors of whether somebody had been exploited would be a jury. He compared it with affray, where a jury does not have a difficulty in assessing whether a reasonable person would fear for their safety on the streets.
I am suggesting in this amendment the instigation of a review, including of the legislation establishing the public authorities that I have listed—they are regulators but not only regulators, and are in a position to get a very good handle on what may be going on; for instance, on a construction site—and very wide consultation working towards a report. This may not be the way to word the amendment—I am sure that it is not—but, crucially, the Minister could tell us, even if not today, that the Government will consider this and take it on, and that it does not actually need to be in legislation. I beg to move.
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