My Lords, I am grateful to Parosha Chandran, standing counsel to Anti-Slavery International, of which I am a patron, for her support and advice in tabling this amendment, and to Focus on Labour Exploitation for its briefing on the subject.
The point of the amendment is to provide another tool to help gain access to justice for the victims of trafficking and enslavement. In the Bill, compensation is currently limited to providing compensation as a result of criminal prosecution. Civil remedies tend to be simpler and more accessible. This amendment on civil remedies has three interrelated objectives: first, to provide an effective way of reducing the financial profitability of slavery, trafficking and exploitation by imposing civil damages against those who engage in the activity; secondly, to create a deterrent effect; and, thirdly, to enable victims to be adequately compensated for harm done.
As many noble Lords will know, the civil standard of proof is set at a different level from that required in criminal prosecutions. These cases will be judged on whether it is probable that a civil offence took place rather than beyond reasonable doubt, as is the case with criminal offences. Amendment 34 will not affect other existing remedies, such as employment law claims, other civil actions for damages or claims under the criminal injuries compensation scheme, which will still operate where necessary and appropriate. This set of new modern slavery civil liability offences will not prevent a victim’s reliance on those instruments; they will still have a job to do.
The characteristics of contemporary forms of slavery and exploitation are very diverse and include: debt bondage; the physical and psychological abuse of vulnerable people; the absence of direct physical harm; threats of denunciation to the authorities; and fear of actual or potential violence directed at the victim, their families and loved ones. The nature of these contemporary forms of slavery and the lasting harm done to victims is not always best served by the existing, more traditional routes to civil remedy. Thus the amendment seeks to identify civil law counterparts to the criminal offences of trafficking, forced labour and enslavement. This is needed because, for example, false imprisonment or harassment in civil law do not relate to the totality of the experience of being enslaved and its psychologically damaging aftermath. How can a claim be brought against a trafficker for breach of contract when there is no contract in most of these cases?
The amendment is worded to ensure that civil actions do not jeopardise criminal proceedings as the civil action may be halted pending the outcome of a criminal trial. Equally, civil actions may be pursued where no criminal investigation has taken place. In some cases, a successful civil action may be the precursor to a successful criminal investigation and prosecution. An important feature of the amendment is that individuals, organisations or businesses that escape criminal prosecution due to insufficient evidence to meet the criminal standard can be named in any civil action brought, which will serve as a powerful deterrent; for example, a civil claim for damages for human trafficking may enable compensation claims to be brought by British girls and young women
against men who trafficked and sexually exploited them as children anywhere and where no commensurate compensation orders were made.
The outcome of the civil action will not be dependent on the criminal prosecution of offenders, so the victims in the recent Rotherham cases, for example, would also be enabled to bring civil claims for damages for the harm done to them by the men who trafficked them and who may never face criminal prosecution.
On the limitation period for bringing a claim, we have determined that this should be at least commensurate with contract claims—that is, six years—and that the provisions should apply for a longer period should a court find it appropriate to extend the period available in which to bring a civil action. This corresponds with the extension of time provision under the Human Rights Act 1998.
In the USA, the Trafficking Victims Protection Act—the TVPA, as it is known—became federal law in 2000. The Act criminalised human trafficking and contained numerous provisions for victim protection, but did not at that time contain a civil liability offence. It was quickly recognised that the omission was detrimental to the operation of the Act, and this was remedied by the introduction in 2003 of a federal right of action for survivors of trafficking.
This autumn, it was reported that 35 individual states in the USA and the District of Columbia had chosen to introduce their own civil liability clauses within their state’s legislation, thereby enabling victims directly to claim damages against their abusers. The take-up of this method of pursuing enslavers and traffickers in the USA strongly indicates the importance and effectiveness of such civil liability clauses in reducing the profits of modern slavery offenders, deterring other perpetrators and securing appropriate redress for the victims of trafficking and enslavement-based harm directly from those who seek to profit from human misery. I beg to move.