My Lords, I also have Amendments 2 and 3 in this group. The Minister has, quite understandably, urged noble Lords not to endanger the Bill by continuing to seek to improve it—or, to use his words, to improve it “even further”. We must all accept that the Bill has been improved significantly and will be improved, the more so when we get to the end of this stage. We will be considering, I think, 72 government amendments this week.
I well understand, of course, the point that he makes. As much as with any Bill that I have ever known, there is a passion within and outside this House to end up with the best Bill possible, and we owe a lot to a lot of people who work on these issues. What is possible may not be quite the same as what would be if we had another six months, and I accept that some of what some of us would like to see in the Bill needs time for consideration and consultation—more time than we have before the end of the Parliament. I prepared all that to allow other noble Lords to leave the Chamber before I got to the point of my amendment.
We have opportunities for changes or to make sure that the Bill does what we think it does, which we can do without the best endangering the good. With my amendments in this group, I want to be quite sure that Clause 1, whose first two subsections reproduce Section 71 of the Coroners and Justice Act 2009, does not itself, in its additional subsections, become the victim of the best. The term used in subsection (3) is that “regard may”—and I would like to inquire about the purport of that—
“be had to all the circumstances”.
Subsection (4) gives examples of “personal circumstances” that may make someone particularly “vulnerable” to servitude, slavery, forced labour and so on.
I tabled amendments to the same effect in Committee, because I was concerned then, and remain concerned, that “circumstances” is a term used for external matters, while “characteristics”, which is the term I use in my amendment, means things that are intrinsic to the person. Yesterday I went to the Shorter Oxford English Dictionary. I am ashamed to say that I had not realised until then that “circumstance” comes straight from the Latin: “circum” meaning “around” and “stance” from “stare”, meaning “to stand”: in other words, something surrounding—as I say, something external. On the other hand, “characteristic” is defined by that dictionary as,
“a distinguishing trait or quality”.
The distinction that I had been concerned about is borne out by the definitions. A characteristic is not a circumstance.
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The examples given in Clause 1(4) are not an exhaustive list—I accept that. The list includes at least one item that is both a characteristic and a circumstance: that is, “family relationships”. They are an externality, if you like, but they impact very much on who a person is. My Amendment 3 would add “disability” to the list because disability is not an illness. The list refers to “mental or physical illness”. I think the days are past when people often confused mental illness and disability.
I mentioned this to a colleague, who pointed me to the Equality and Human Rights Commission guidance that deals with what are called “protected characteristics”, of which disability is one, along with age, sexual orientation and five others. Disability is recognised as distinct from illness later in the Bill, in Clause 3(6), which deals with exploitation for the purposes of trafficking. It is also distinguished in Clause 45(4), which deals with the defence for victims who themselves commit an offence; that refers to “relevant characteristics”. I think that mental disability, such as learning difficulties, could be more likely than mental illness to make someone vulnerable to being picked up and forced into labour. Psychological characteristics—I am using very non-clinical language here—such as being unable to cope with life could make someone very vulnerable.
The point, of course, is that one would not want a prosecution to fail because the term “circumstances” is too limited. My noble friend might tell me that the formula “regard may be had” might be a safety net here, or he may be able to point to case law since,
“references to holding a person in slavery or servitude or requiring a person to perform forced or compulsory labour are to be construed in accordance with Article 4 of the Human Rights Convention”.
In Committee, the Minister said:
“Through its decisions, the European Court of Human Rights has provided clear guidance on the meaning”,—[Official Report, 1/12/14; col. 1134.]
of the term “servitude” and so on. I looked at the guidance and it is certainly clear, but I got no help on the term “circumstance”.
The Minister will come to his Amendment 4 in due course, but I welcome bringing closer the actions that constitute an offence under Clause 1 and exploitation for the purposes of trafficking. I hope the Minister
will address points made about this by the Equality and Human Rights Commission, which I assume he has received, that the amendment does not capture all those who facilitate or arrange exploitation where there is no movement or movement cannot be evidenced—this was something that we spent some time on in Committee; that it does not cover situations where there is no overt threat of physical force; and that it may reduce protection for children.
I look forward to the noble Baroness, Lady Young of Hornsey, introducing her Amendment 7. In Committee, the Minister said that the EU trafficking directive covers liability for,
“offences by third parties that occur as a result of lack of supervision”,—[Official Report, 1/12/14; col. 1198.]
but I was unclear, reading Hansard again, where that takes us on enforcement. I do not want to pre-empt what she might have to say on this, but I am offering her some support when she comes to probe that point.
I also take the opportunity to raise a point on that EU trafficking directive. I hope the Minister is aware that I was going to raise this, as I emailed him this morning about it. I understand that the UK has still not submitted a report to the EU on the implementation of the directive, which was due last year, although most of our partner states have done so. This is specifically in relation to Article 20 of the directive, where the deadline was last October. I am told—I have no evidence other than one email, but it was from someone I trust—that the UK has not been participating in EU meetings of the national rapporteurs and equivalent mechanisms, and that in the last meeting it was the only member state not to be represented. This is obviously important in itself, and because delay means that there is a problem in having civil society organisations comment on the report.
Having gone through some rather inquiring comments—I do not want to say that they are critical, because I very much support what the Government are doing in this area—I come back to my original points on circumstances and characteristics. I beg to move Amendment 1.