My Lords, I shall speak to Amendments 86H, 103 and 104. Along with colleagues from all parties, I have been proposing the introduction of child trafficking advocates under a variety of different names since I first introduced my Private Member’s Bill on human trafficking in 2011. Since then your Lordships have consistently supported this measure as I, with others, have tabled proposals on several occasions over the past three years. Indeed, the clause in the Bill before us today is a direct result of the support shown by this House for the child trafficking guardian amendment to the then Immigration Bill, which was won by a majority of 98. I also recognise the degree to which the Government have moved their position from initial opposition to where we are today, and I am grateful to successive Ministers for taking the time to listen to these debates and engage constructively with the issue and with your Lordships’ concerns.
I warmly welcome the amendments made in the other place to give a stronger commitment to the introduction of child trafficking advocates and in setting out clearly that advocates must always act in the best interests of the child. These demonstrate the Government’s continued openness to listening to the concerns regarding this clause. and I very much hope that the Minister will continue in that vein as he responds to my amendments today.
I know that the Minister will say, as he did at Second Reading, that because there are pilots of child advocates going on around the country in 23 local authorities, we cannot take any further action on advocates during the passage of the Modern Slavery Bill. I support the trials to look into the practicalities of delivery, but I would respectfully disagree with the Minister on the point of substance. I believe that the trials should not hinder us from doing our job to provide the best framework for victims and that we should set out in statute a definition of the powers and functions of an advocate.
Before I explain my amendment, I would like to draw the attention of noble Lords to a significant change in the landscape both practically and politically that has come about since we last debated this matter
in April. On 20 October, the Northern Ireland Assembly voted to create a system of guardians for trafficked children in the Human Trafficking and Exploitation (Further Provisions and Support for Victims) Bill, introduced by the noble Lord, Lord Morrow. The relevant clause in that Bill contains on the face of the legislation a full statement of the functions of the role which are similar to those set out in Amendment 86H. I want to clarify for your Lordships that this provision, which was mentioned by various speakers at Second Reading, has been introduced without any sort of pilot scheme being run in Northern Ireland. In his closing speech at Second Reading the Minister said that the Home Office,
“will learn from that”—
the pilots—
“and on that basis set out in regulations what those responsibilities should be. That is exactly the same as what has happened in Northern Ireland”.—[Official Report, 17/11/14; col. 323.]
I am sure that the noble Lord was aware that there have been no pilots or trials in Northern Ireland; I am not implying that there were and I wanted to clarify the point.
I turn now to Amendment 86H. I am very grateful for the support of the noble and learned Baroness, Lady Butler-Sloss, and the noble Baroness, Lady Royall. I have tabled this amendment with their support because I believe that Clause 47 needs to be strengthened to ensure that the advocates are equipped and empowered to be effective in this vital role, to make sure that the clause meets international best practice and that it fulfils the intentions of this House which were made clear in the Immigration Bill vote in April. It is my opinion that, without Amendment 86H, Clause 47 falls short of these objectives.
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In particular, there is one key aspect of child trafficking advocates which is currently missing from Clause 47: a clear and comprehensive definition on the face of the legislation of the role of the child trafficking advocate. There are two reasons for providing this definition. Without setting out in legislation the details of the advocate’s function, there is the potential for confusion about the particular responsibilities of the advocate and what authority the advocate has in relation to other professionals working with that child. We need to ensure that there will be constructive working relationships between the advocates and all other professionals handling the child’s case. We must also make sure that no gaps can appear due to misunderstanding of the role. During the debate on a similar amendment in December 2013, the Minister, the noble Baroness, Lady Northover, expressed concern that a role such as this could actually make,
“things worse, with other professionals thinking they do not need to concern themselves as much about a trafficked child because their guardian is looking after them”.—[Official Report, 9/12/13; col. 655.]
I am delighted that the Government have moved away from that position. However, I believe that we have a responsibility in establishing this system to ensure that we remove any possibility for confusion or a child falling through the gap. Setting out these functions in legislation will accomplish this.
We must also equip these advocates with statutory authority when engaging with other agencies. An advocate might need to obtain certain information or advocate for certain action to be taken by agencies working with the child, but without statutory authority there is no guarantee that those other agencies will heed the voice of the advocate or co-operate with them. Following our inquiry, the Joint Committee on the draft Bill concluded that this statutory basis is essential to a well functioning system of advocates. In our report we stated:
“Co-ordinated and timely action on the part of public agencies is more likely to occur if those agencies know they will be held to account and that the advocate has a right to access information and appropriate documents. Both of these functions require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child”.
Placing these functions in law was highlighted as recommended best practice in a handbook on guardianship for trafficked children from the EU fundamental rights agency which was published in June. The handbook states:
“The legal basis of guardianship in national law should include sufficiently precise legal provisions defining a guardian’s duties and functions”.
During debate on the Immigration Bill, I specifically asked the Minister, the noble Lord, Lord Taylor, why he was not proposing that advocates have a legal status. He said:
“That is a question that the Modern Slavery Bill will indeed be able to consider”.[Official Report, 7/4/14; col. 1158.]
So, let us consider it today.
At present the advocates, as contained in the Modern Slavery Bill, have no specific legal powers, nor do they have the authority of statute for any of their functions, because these functions do not appear in the legislation. Amendment 86H provides us with an opportunity to create this legal and statutory authority with full transparency of what we are creating and ensuring that there is no confusion about what a child trafficking advocate may or may not do. Indeed, I know that the Home Office has set out some sort of framework already for these pilots.
I am sure the Minister will respond that he is proposing that the function of the advocates will be in the statute under Clause 47(4)(c). The noble Lord said at Second Reading that the Government will,
“set out in regulations what those responsibilities should be”.—[Official Report, 17/11/14; col. 323.]
However, I am concerned about the current wording, which says that the Secretary of State “may” make regulations about child trafficking advocates and that power “may” include the functions of a child trafficking advocate. As far as I am concerned, that is all too uncertain and does not require any action on the part of the current or future Secretary of State. The Home Secretary may feel, following the pilots, that regulations are not required and that policy or guidance will suffice. My proposal for a full statutory statement ensures that there will be clear transparency about the role.
As far as international best practice is concerned, I am pressing that we have a clear statement of the powers and functions of an advocate because it is fair
to say that there is plenty of international guidance on what works best for trafficked children and what is regarded as best practice for the role. The functions in Amendment 86H and in the Immigration Bill amendment voted for by your Lordships in April are based on guidelines for that kind of role produced by UNICEF, the UN and the EU handbook which I mentioned earlier, as are the functions set out in the Northern Ireland legislation. I am greatly concerned that the functions of the advocates determined by the Government following the trials may not meet this international best practice. As I have already said, under the present clause there is no requirement for these functions to be laid out in regulations—there is simply a power to create such regulations. Unless the functions appear in legislation, your Lordships will have limited opportunity to scrutinise them and to ensure that they meet the standards of international guidance.
The functions of the role contained in Amendment 86H and based on this international guidance can be grouped broadly under three headings: first, advocating for the child, assisting them to access services and accompanying them through these processes; secondly, acting as a link between all agencies and professionals engaging with the child; and, thirdly, speaking, on behalf of the child where necessary. All three have the overarching aim of reaching a durable solution for the child’s future and acting always in the child’s best interests.
I welcome the addition made by the Government in another place to state clearly that the advocates must act in the child’s best interests. However, that is a statement about how the advocates should act, not what their functions should be.
I wish now to highlight one specific function of the role of the child trafficking advocate contained in Amendment 86H which I believe to be of utmost importance, and which I know is of great concern to a number of NGOs. This is the power of the advocate to appoint and instruct the child’s legal representatives where necessary.
I have been told by barristers who represent trafficked children that they have great difficulty taking instructions from trafficked children. Empowering the child trafficking advocate to step in to fill this gap, where a child is not capable of instructing their lawyers, is vital in ensuring that the best interests of these children are protected at all stages.
Amendment 86H is based on the amendment to the then Immigration Bill passed by this House in April by a significant majority. On that occasion your Lordships demonstrated your commitment to a statutory provision of child trafficking guardians with statutory authority for their functions. Having lost that vote, the Government responded with a promise of a clause in the Modern Slavery Bill. However, the clause presented is in no way equal to that passed by this House in April. If we allow this clause to pass unamended, our intentions will be left unfulfilled. I urge the Minister to accept Amendment 86H and move closer to carrying out the will of the House as expressed overwhelmingly in April.
With regard to the extension to child victims of slavery and forced labour as well as trafficking, my Amendment 86H goes beyond that of Clause 47 and
of the Immigration Bill amendment in one significant respect. Amendment 86H would make these advocates available to all children who are victims of modern slavery. I am not certain that this Bill is the right place for provisions such as those presented by the amendments of the noble Lord, Lord Patel, and the noble Baroness, Lady Lister, to extend the provision to separated migrant children, but I will listen to the arguments. However, this is a Modern Slavery Bill and it is unclear to me why Clause 47 applies only to victims of trafficking when so many other clauses, including the provision on statutory defence and the guidance about support and assistance for victims, all extend to victims of both slavery and trafficking. The experience and needs of child victims of slavery and forced labour will be very similar to those of victims of trafficking, especially those who are from overseas and away from their families. They should also therefore receive the support of an advocate.
I turn briefly to Amendments 103 and 104, which have been tabled in my name and are also in the group. These amendments would remove the provisions in Clause 57, the commencement clause, which require a further resolution of both Houses of Parliament before the advocate schemes will be rolled out and instead require the Home Secretary to bring the clause into force within nine months of the passing of the Bill. It is my understanding that the Government’s intention with these provisions was a positive one: to provide Parliament with the opportunity for greater scrutiny of decisions made in relation to the commencement of services under this clause—that is, after the trials of the advocates have been completed. In Committee in the other place, my honourable friend the Minister for Modern Slavery and Organised Crime said that,
“the Government will table amendments on Report to strengthen Parliament’s role in deciding whether the provision is to commence after the trials have been completed and evaluated. In other words, I will ensure that the clause is amended so that Parliament has a say over whatever decision is taken by the Secretary of State, given the evidence, to ensure that it is happy with the decision, and there will be a vote to confirm that”.—[Official Report, Commons, Modern Slavery Bill Committee, 14/10/14; col. 420.]
Subsections (6) and (7) of Clause 57 were then introduced at Report.
However, I am not certain whether those provisions are necessary or achieve the scrutiny that we might hope for. Let me explain why. In addition to the amendments referred to by my honourable friend the Minister in another place, a further amendment to Clause 47(1) was introduced by the Government on Report. That amendment made provision of child trafficking advocates a duty, rather than simply an enabling power. It appears to me that the resolution mechanism introduced to Clause 57 presents an additional and unnecessary legislative hurdle which has no additional benefit. Although the Minister, the noble Lord, Lord Bates, stated in his letters to Peers following Second Reading that these resolutions can be brought forward by any Peer or MP—which I must confess was not clear to me from reading the clause itself—I believe that Parliament will have expressed its support for provision of these advocates through the passage of the Bill and that no further resolution should be necessary. Instead of this mechanism, I propose in
Amendment 103 a duty on the Secretary of State to commence the clause nine months after the Bill’s passage.
I have already stated that I welcome the ongoing trials and agree that they will provide valuable information about the practical operation of these schemes. I am therefore content to wait nine months after the passing of the Bill for commencement of the advocates provision, to allow for that learning to be incorporated in the rollout of the system. I am eager to see these schemes begin to operate across the whole country as soon as possible. I mentioned earlier that I first proposed this idea in my Private Member’s Bill in 2011. It is now 2014. Three years have passed and little has been done to address the needs of these extremely vulnerable children and the very real dangers of re-trafficking and further exploitation that they face.
In conclusion, I remind your Lordships that the Northern Ireland Bill has almost completed its passage and that the clause on guardians, which contains a full statutory statement of the functions of the guardian based on international best practice, is expected to commence 10 months after the Bill receives Royal Assent. That will be substantially sooner than is likely for measures set up under this Bill. We face the possibility that trafficked children will be better protected in Northern Ireland than in England and Wales. Let us not be left behind as Northern Ireland moves forward in international best practice standards for supporting child trafficking victims. I commend Amendments 86H, 103 and 104 to your Lordships and ask the Minister to consider them as a means to develop this clause so that it meets all our intentions to protect the most vulnerable children in England and Wales.
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