My Lords, I am grateful to the Minister for moving his amendment, which I am happy to support, but I wish to discuss some profound changes in relation to the offence of trafficking and will therefore speak to Amendments 23 and 25. Our opposition to Clause 3 standing part of the Bill is of course consequential on those two amendments.
Amendment 23 aims to delete the current definition of human trafficking and insert a new one based on international definitions, while Amendment 25 would create a separate offence of exploitation to ensure that a conviction can still happen without the element of travel. We have a unique opportunity here to strengthen the law, with a view to protecting victims and to securing more prosecutions. The fact there are so few prosecutions shows that the current definitions do not work, although I well understand the view expressed earlier by the noble and learned Lord, Lord Mackay, that the Bill must be a means of prevention, not just a means to more prosecutions.
I do not understand why the Government have decided, as the noble Baroness, Lady Doocey, said earlier, to copy and paste existing offences into this new Bill. If the offences have not worked in the past, I do not believe that they will work after the Bill has been enacted. At Second Reading, various examples were given by my noble friend Lord Tunnicliffe—more have been given today—of perpetrators who should have been prosecuted but who were either not prosecuted or prosecuted for lesser offences. In the discussion on the last group, the Minister said that we must not make it more difficult to secure prosecutions, which of course I agree with, that we need to increase awareness, which is absolutely right, and that we need more training, which I certainly agree with. Given that in debates on other Bills we have talked about the need for training, but it has simply not happened, I wonder whether in due course we should make certain sorts of training mandatory. However, that is for another day. Notwithstanding those facts, even if there were increased awareness and better training, it would not be enough, although I note that the noble Lord will have further discussions with the DPP and CPS between now and Report.
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My noble friend Lord Rosser and I are not alone in our views: many noble Lords spoke of these things at Second Reading, as have many of our colleagues in the House of Commons. A wide range of groups have been pushing for a new definition of human trafficking and a separate offence for exploitation, including the coalition of groups that have come together to form the Anti-Trafficking Monitoring Group with the help of legal experts in trafficking, including barristers. The Joint Committee on the draft Bill was concerned about existing gaps and loopholes. The Joseph Rowntree Foundation noted that the current clauses,
“do not capture the full array of situations linked to”,
slavery and exploitation. Particularly where it may be difficult to prove slavery, we have to ensure that another offence is available to secure a conviction. If not, these crimes will go unnoticed and will only materialise over time as more severe forms of exploitation, which would subsequently amount to forced labour and slavery.
We have concerns as regards the current definition of human trafficking in the Bill and the weight it places on travel and movement. Trafficking does not always require movement. In reality, it is conducted through acts which include recruitment, harbouring and transferring, and the receipt, exchange or transfer of control over another person. The absence of these specific terms is problematic in cases involving large criminal networks, where different people take different roles in the trafficking process. It is also a problem where victims arrange their own travel into and around the UK and to the site of exploitation, which often occurs when individuals are deceived about work conditions or when conditions deteriorate over time.
The Equality and Human Rights Commission says that the prerequisite of travel in the offence means that,
“it may not be possible to prosecute those involved in the trafficking chain where there is no movement”.
Therefore, those involved in the initial stages of trafficking—for example, those who recruit victims—may not necessarily be convicted under the current definition. The draft Bill committee also pointed out that under the current definition it would be hard to convict someone who trafficked a victim—that is to say, moved them—but did not care how the victim would be treated by the person they delivered the victim to. In that case, the defendant does not intend or believe anything about the future treatment of the victim, and therefore would not be caught by Clause 2.
The language in our definition of human trafficking reflects the language used by the International Labour Organization, in article 2 of the EU directive on trafficking, Article 4 of the Council of Europe Convention on Action against Trafficking in Human Beings and Article 3 of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, also known as the Palermo Protocol. As noble Lords will know, the human trafficking definition was established in an internationally binding treaty integrated into the national laws of some 134 countries. We are an international player, we live in a globalised world and we have to ensure that our definitions are in line with our international obligations. Focusing on travel and movement could incorrectly be linked to immigration—I think we will look at that sort of problem later. Moreover, it fails to capture the reality of modern trafficking. The words,
“arranges or facilitates the travel of another person”,
are far too simplistic to enable effective prosecutions. The draft Bill committee concluded that the offences in Part 1,
“fail to capture current or potential future forms of modern slavery”.
As the Bill is currently drafted, there is no separate offence of exploitation; it would only be part of Clause 2 and should fall within the criteria of Clause 3. Clause 3 cannot even be looked at unless the conditions of Clause 2 are fulfilled. Clause 3 fails to include two of the most common forms of exploitation: forced begging and exploitation for the purpose of begging, as discussed earlier. The draft committee recommended a separate clause on exploitation that would apply in situations where the victim is an adult, there is no travel and the standard need to secure a child exploitation offence has not been secured by the prosecution.
The creation of separate offences for adult exploitation and trafficking and for child exploitation and trafficking would create an overlapping pattern to ensure that the offences were watertight and to give the courts—both judge and jury—a selection of offences to consider. The then Lord Chief Justice of England and Wales—the most senior criminal judge in the country—the noble and learned Lord, Lord Judge, said,
“that is another aspect of the Bill that troubles me. We are making provisions for slavery, servitude and compulsory labour in clause 1 of the Bill. In clause 2, trafficking is the offence. It becomes an offence because you do it with a view to exploitation—knowing, believing or whatever words are chosen to be used. You could have an offence of trafficking, full stop, and a separate offence of exploiting. As it stands at the moment, you have a single offence with two parts—here is the trafficking, and it is with a view to exploitation”.
He goes on to say:
“My concern reading clause 2 and the various subclauses is, ‘Is this really what we want?’—a single offence that has two ingredients, rather than two separate offences and, possibly, a third offence, which would put the two together”.
We take the same view.
In giving evidence to the draft Bill committee, Detective Inspector Roberts of Kent Police gave the example of the Lithuanian chicken catchers who were living in squalid conditions and paid very poorly. Even though their experiences were dreadful, their case did not amount to slavery or forced labour, as the bar was too high in current legislation. This is a prime example that proves how the current law is not working. So why duplicate it when here we have an opportunity to make it more effective? We believe that we need a separate exploitation offence that captures vile criminal behaviour which does not quite meet the threshold of the other offences in the Bill and in current legislation.
I know that the Minister will say what he said earlier in respect of children, that creating two separate offences can create risk and confusion, and there is a plethora of legislation already in place, but we believe that having the two new offences will create certainty and clarity and, most importantly, will lead to more prosecutions. I well understand if the Minister and others think that the definition in our amendment might not be perfect, and I know that reaching a definition on exploitation is extremely difficult, but the amendment provides a sound basis for further work.
Leading judges, barristers, legal experts, members of the CPS and senior members of the police are all telling us that there is a problem with the current drafting of the offences in the Bill and that the current legislation is not working. I believe that we have to listen to them. As the Minister will know, the modern slavery strategy has four main components, the first of which is “pursue”—that is, prosecuting and disrupting individuals and groups responsible for modern slavery. We agree with that aim, which is why I am speaking to these amendments.