Oral evidence: Draft Modern Slavery Bill, HC [1019], Tuesday 28 January 2014
Oral evidence, 28 January 2014.
Witnesses
Matthew Evans, Director, and Saadiya Chaudary, Solicitor and Legal Project Manager, AIRE Centre, examined.
Chairman
Matthew, welcome. Would you identify yourself and your colleague for the record?
Matthew Evans
My name is Matthew Evans. I am the director of the AIRE Centre, and this is my colleague, Saadiya Chaudary, who is our trafficking expert.
Chairman
Thank you.
The Lord Bishop of Derby
Welcome. In terms of the draft Bill, how far do you think it helps us to meet our international legal obligations—for instance, the Council of Europe’s Anti-Trafficking Convention? From looking at it, would you think we would need to make some changes to bring it up to speed if there are obligations that it does not seem to connect with?
Matthew Evans
I will answer it as a general point, in the sense that the AIRE Centre obviously welcomes a Modern Slavery Bill codifying what has been up to now piecemeal legislation. We would also obviously welcome the identification of the Anti-Slavery Commission as regards a National Rapporteur as required by the 2011 directive. One of our concerns is that there are clear minimum standards set out by the trafficking convention, the 2011 directive and the ECHR, and that currently the Modern Slavery Bill is very long on prosecution and enforcement and very quiet in relation to victim protection and a victim-centred approach. All three of those pieces of legislation—article 4 of the ECHR, the convention and the trafficking directive—have as their starting point a victim-centred approach. Not to go much into it, but Joseph Raz described the ECHR as grounds of duties in others: i.e. unless we respect the duties and the human rights of other people, then we cannot expect other people to respect ours. There is a fundamental misunderstanding sometimes about the ECHR and the trafficking directive that, somehow, it is all about imposing obligations on other people. In fact, it is a very victim-centred approach.
The Lord Bishop of Derby
Would you say that there are gaps or that things just need spelling out more clearly?
Matthew Evans
Well, I am aware that a number of people in this room have contributed to the review that took place prior to this. From our point of view, we would want to see more of those recommendations find themselves within the Modern Slavery Bill. I will pick up on a couple of points, and then perhaps Saadiya could answer in more detail. There are a couple of issues. For instance, article 15 of the convention requires legal advice and assistance. There is a fundamental tension between that and schedule 1, paragraph 32, of the LASPO Act, which reduces the right of trafficking victims to gain legal advice and assistance, reduces judicial review in particular cases and reduces legal advice only to people who have had a positive resolution in relation to the trafficking convention. There are also tensions in relation to the risk assessment periods, for example, which are required by article 16. There are various recommendations in relation to the UN convention on drug use, which sets out what a risk assessment should undertake. There are tensions in relation to secure and stable accommodation. For instance, the directive of 2011 says that it has to be gender specific. There is nothing within the Modern Slavery Bill that highlights that. On the recovery period as set out, the UK meets its obligations in relation to 45 days, above the 30 days required by the directive, but the expert committee in relation to trafficking recommended 90 days—three months. A number of countries, including Poland and Croatia, have 90 days as a recovery period. There are a lot of tensions, mainly around victim protection issues, which we would want to see and find encompassed within the Modern Slavery Bill.
Lord Warner
I want to turn to the NRM. What sort of changes would you like to see in the NRM system? Does the NRM need to be put on some form of statutory basis? How detailed would you imagine that statutory basis to be?
Saadiya Chaudary
Our starting position would be that we do think the NRM needs a statutory basis. As it is presently constructed, we feel the division between the UK Visa and Immigration and the UK Human Trafficking Centre is problematic. We do think there is a conflict between the policies that drive UK Visa and Immigration and the purposes of the National Referral Mechanism, which is to identify and provide support and protection to victims of trafficking. For that reason, we would encourage the immigration authorities to be removed from decision making when it comes to recognising victims of trafficking. We would say that, where there are related immigration issues, the first and foremost consideration would be the status of the victim as a trafficking victim or not, and the immigration issues would be assessed separately from that. In terms of what the legislation should perhaps look like, we think it should set out the formal role and powers of the National Referral Mechanism. We think it is essential that there should be some form of formal review or appeals procedure against a negative reasonable grounds decision. There should be the possibility of public funding made available for victims to be able to pursue these reviews and appeals. There should also be set out within the legislation, as far as possible, a procedure by which the National Referral Mechanism operates in terms of maybe time periods or the kind of support provided to individuals within those time periods at the reasonable ground stage and perhaps at conclusive ground stage as well.
Matthew Evans
That tension can be seen in the percentage of decisions upheld when you compare the Home Office versus the UKHTC. The UKHTC obviously deals with EU and UK victims of trafficking. It has a nearly 80% upholding of somebody being identified as a potential victim of trafficking. That drops right the way down to 20% when the Home Office is involved. We are not the first people to raise the issue about the Home Office being in quite an invidious position regarding targets and the general atmosphere especially in relation to third-country nationals. How much that affects their decision making is something that a number of research papers have picked up on.
Lord Warner
Do you see this as stuff that should be in primary legislation or more as issues that should be dealt with in more detail in secondary legislation? I am not altogether clear what you do and do not want on the face of the Bill.
Matthew Evans
What we would want in relation to the face of the Bill is for the National Referral Mechanism to be on a statutory basis in primary legislation and for there to be a clear appeal procedure in relation to that. We would also want within primary legislation, although that would obviously be teased out in relation to guidance, a much more victim-centred approach in relation to transposing at least the minimum standards that are within the directive and the convention.
Sir John Randall
Your organisation provides training to agencies. What do you think is their gap in knowledge that you seek to address with training? What do you find that they do not know about?
Matthew Evans
The essence is primarily about individual legal rights within Europe, and we take cases both to Strasbourg and Luxembourg. Within that context we also run projects, and as part of those projects we run training. Gaps have certainly been identified in relation to the definition of trafficking and the identification of trafficked victims. That is seen not just within the front-line staff—social services, local authorities and so on—but also with regard to prosecutors and judicial authorities. We would certainly want a more formalised training regime running across the board of all of those agencies so that people are very clear about what the definition of trafficking is, what the criteria are, and the sensitivity around particular areas such as child victims. There is a very different interview process between a child victim and an adult victim. We would want to see something similar to what has happened with the NHS, which has had a number of training provisions within it in relation to staff.
Sir John Randall
When you give this advice or training, do they approach you or do you suggest to them that they might like it? Which way round is it?
Saadiya Chaudary
Usually, organisations come to us. They come through our advice service with individual cases, and as a result they say, “Can you come and give us some more general training on these issues?”
Sir John Randall
So it would be relatively random in as far as they have a case, rather than somebody saying, “In case we get a case, we would like to have some knowledge beforehand”?
Saadiya Chaudary
Yes.
Sir John Randall
It is always going to be reactive.
Saadiya Chaudary
Yes; usually they have had some contact with us in the past in relation to an individual case.
Sir John Randall
You would like to see, as a part of it, that all these various agencies actually have to have training in these issues.
Saadiya Chaudary
Absolutely, yes.
Mrs Spelman
I want to come on to the subject of the Anti-Slavery Commissioner. Matthew, to what extent do you think the Anti-Slavery Commissioner’s role as currently drafted in the draft Bill will meet the requirements of article 19 of the EU directive?
Matthew Evans
In relation to article 19, we would like it to be independent—a separate legal entity. We take a slightly different view from the Children’s Commissioner in that we would like to see it premised upon the same basis as the Children’s Commissioner in terms of it being independent from the Home Office—a separate legal entity. I appreciate the issues raised by the Children’s Commissioner regarding a memorandum of understanding and making sure that toes are not stepped on, but they would not be the first two such Commissioners who have had overlapping work and have managed to work together. We think it is essential that it reports to Parliament and not to the Home Office, and that it has a data collection and analysis mandate as well. That is something which, for instance, the UKHTC does not have as a statutory footing.
Mrs Spelman
The Children’s Commissioner comes under the wing of the Department for Education. Is there another Government Department that you think this Commissioner should be situated under, or are there some other models from abroad that you think would commend themselves to us in order to secure that greater independence that you feel is needed?
Matthew Evans
One of the issues around National Rapporteurs in general, and in relation to people’s responses across Europe in relation to the requirement now for a National Rapporteur, is that a number of them are located within Ministries of Justice. I think a concern that has been raised by the Commission is that that does not really fulfil the independent role that article 19 envisages. I am unsure of where the Anti-Slavery Commissioner would sit, but I do not think that it should sit within the Home Office.
Mrs Spelman
Could I just come back to the terminology here? A Rapporteur in European institutions performs a very different role from a Commissioner or ombudsman role. Is it the directive that makes a requirement for a Rapporteur?
Matthew Evans
It is a National Rapporteur or equivalent. My understanding of the Anti-Slavery Commissioner is that this is one way in which to meet those obligations.
Saadiya Chaudary
I would just add to what Matthew has said. In relation to article 19 of the directive, we would welcome the Commissioner looking at the prevention, detection, investigation and prosecution of offences.
Mrs Spelman
The French model?
Saadiya Chaudary
No. The Commissioner is currently set up to encourage good practice in relation to prevention, detection, investigation and prosecution. Article 19 goes further than that and also provides that they should have close co-operation with civil society organisations. That also suggests an overview of protection of victims, which is why we are not quite sure where the Commissioner should sit, because that could include education or health services as well and an overview of those support mechanisms provided to victims. We do think that an overview of that should also come within the Commissioner’s role.
Chairman
When you talk about the protection of victims, can you just give us some more information on that?
Saadiya Chaudary
This is from articles 10 to 16 of the trafficking convention. On identification, victims are entitled to minimum support mechanisms, including financial support and assistance, psychological recovery, and assistance to adequate health services. If it is a child victim, there should be access to education. In addition to that, there is the right to compensation and protection from criminalisation. If a victim is going to be returned, then, as Matthew mentioned earlier, an appropriate risk assessment should be carried out in relation to that return. We think these are important provisions that should be laid out quite clearly in primary legislation as a reflection of those standards as set out under European law.
Chairman
That is very clear; thanks.
Fiona Mactaggart
One thing that you did not refer to in article 19 was the requirement to carry out assessments of trends in trafficking in human beings and the gathering of statistics in close co-operation with civil society organisations that you referred to. Do you think that the Commissioner role as presently drafted is able to do the assessments of trends?
Saadiya Chaudary
As the clause is presently drafted, it does not appear that the Commissioner is able to carry out a general overview of the trends across all the sectors that come into contact with trafficking victims. We do think that the Commissioner should carry that out and have an overview of all the links in this chain in the UK and elsewhere. That would be in terms of the investigation and prosecution, where victims are coming from, how many are now being supported, how many are identified, and how many are being dealt with by various authorities, in what way and what the outcomes are. It would be extremely useful to have all of that information and data collated in one area.
Mrs Spelman
Pursuant to that and coming back to the point about what it means to be a Rapporteur, one of the key functions of the Rapporteur is to report—in other words, to publish what they have found out. Do you think that what is proposed, as drafted at the moment, will crack this problem of unreliable information being available and that the Commissioner would be sufficiently independent to be able to publish the results of their findings?
Saadiya Chaudary
We are concerned by the clause as drafted at the moment. We think that, if the Secretary of State has a say on the reports and the contents of the reports, that will not allow the Commissioner to publish all the information required in the objective manner needed.
Fiona Mactaggart
You said that there are restrictions on publishing in the present draft. What about the powers of the Commissioner to obtain information? Do you think that is sufficient?
Saadiya Chaudary
My understanding from the clause as drafted is that the public authorities have a duty to provide information to the Commissioner—information sharing with the Commissioner. We don’t have a strong view on this, but, as drafted, it suggests that, if that co-operation and duty is there, then the Commissioners should not be barred from getting the information they require. That may be adequately put in the Bill.
Fiona Mactaggart
In your view do public authorities at the moment know what information they have?
Saadiya Chaudary
No.
Matthew Evans
To be fair, I do not think it is just a UK problem; it is Europe-wide. Eurostat has been quite clear about the fact that, often, with regard to information around trafficking there is incomplete information. The whole idea about what the Modern Slavery Bill might achieve, and one of the things in relation to making the UK a leader in relation to combating anti-trafficking, is to give the Anti-Slavery Commissioner enough powers, and for the public authorities and various parts of civil society to have sufficient information and knowledge, to be able to impart that information. They need to know what the Anti-Slavery Commissioner is looking for, to be clear about their statutory duty to provide that information and for the Anti-Slavery Commissioner to have an independent and robust ability to be able to report on their findings. If one wants to be a leader in relation to anti-trafficking, then the provision of that information is fundamental. Until you know what the trafficking problem is, the sources of trafficking, how many people are being trafficked, why and so on, how on earth are you ever going to combat it?
Chairman
Very good. Thank you very much. When we are getting nearer to writing our report, which is not many weeks away, we might want to come back to you, if we may, about the protection side that you talked of, which is really important. Thank you very much for helping us. Oral evidence: [Draft Modern Slavery Bill] 20