Clause 23 - Slavery and trafficking risk orders

Modern Slavery Bill – in a Public Bill Committee am 3:15 pm ar 9 Medi 2014.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of David Hanson David Hanson Shadow Minister (Home Affairs) 3:15, 9 Medi 2014

I beg to move amendment 80, in clause 23, page 17, line 35, leave out “an” and insert “a senior”.

Photo of David Crausby David Crausby Llafur, Bolton North East

With this it will be convenient to discuss the following:

Amendment 79, in clause 23, page 17, line 40, after first “a” insert “sufficiently serious”

Amendment 87, in clause 23, page 18, line 2, at end insert—

‘(2A) An order will be “necessary” for the purposes of subsection (2)(b) where—

(a) there is insufficient evidence to bring a prosecution, but there is clear evidence of future risk of commission of trafficking or slavery offences,

(b) the defendant(s) have been convicted of offences linked to trafficking or slavery overseas (but not an equivalent overseas offence under section 17(4)) and where there is evidence of a future risk of offending involving slavery or trafficking,

(c) the defendant(s) have been charged, but not convicted of a slavery or trafficking offence, and protection from the risk of the commission of a slavery or trafficking offence cannot be achieved by bail conditions alone, or

(d) the defendant(s) are part of or affiliated with a group or organisation engaged in slavery or trafficking offences and whose core offenders are currently being prosecuted.”

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

You were not in the chair this morning, Mr Crausby, but we had a discussion about the question of chief immigration officers in earlier parts of the Bill. Clause 23(1)(b) simply states that a slavery and trafficking risk order can be made by an immigration officer—the lowest level of officer. We discussed a menu of options when drafting our amendments, to get some certainty about the Bill, and chose to insert the word “senior”, which is reflective of earlier clauses in the Bill. I would welcome the Minister’s view on that, because there seem to be things that immigration officers can do in clause 23 that they cannot do in earlier clauses. I would like some indication of the level of responsibility involved. Why does a slavery and trafficking risk order have to be made on an application by a chief officer of police, rather than by a constable, yet an immigration officer—a lower grade—may also make an application, rather than the chief or senior immigration officer cited earlier?

Amendment 79 would insert the words “sufficiently serious”. We have discussed the evidential test, and I do not wish to labour the point. I will be interested to hear what the hon. Member for Brent Central says about her amendment.

Photo of Sarah Teather Sarah Teather Democratiaid Rhyddfrydol, Brent Central

I have tabled amendment 87 to get some clarity from the Minister about the orders, and it picks up on some of the points that the right hon. Member for Delyn made about half an hour ago. Some of my questions about the evidential proof required were answered by the Minister’s earlier response, but I have others I would like to put to her.  My main concern is that such orders could be used as an alternative to prosecution and thereby drive down, rather than up, the number of prosecutions in this area. A lot of the Committee’s discussion thus far has been about the low rate of prosecutions—and, indeed, the low rate of convictions. I think everyone in the Committee is of one mind, and I know she is very determined that we should drive up prosecutions. However, I have some worries about how the clause has been drafted; it may not yield the desired results.

I have some concerns about the workability of the orders, which is something the Joint Committee focused on in its examination of the Bill. The key issue is that there is no connection with the criminal justice system; there is no need for prosecution or charge. I completely accept the difficulty of prosecution. The Minister will say that that is precisely why we need extra tools in the toolbox to protect victims, but there is a danger of that becoming a self-fulfilling prophecy. The key question for me is: under what circumstances would there be insufficient evidence to prosecute someone for what is a very serious offence—trafficking or slavery—and yet enough evidence for the court to deem a risk order necessary? She said to the right hon. Member for Delyn that the same evidential level of proof is required: a criminal level of proof. Will she clarify that?

In an earlier evidence session, the Magistrates Association stated:

“if there is not any evidence to lead to a prosecution, is there any evidence to lead to an STRO? Where is that line drawn? If it is at criminal proof, it is at a very high level—beyond reasonable doubt. There will need to be clarity about what the potential risk is and specific evidence that that risk is in danger of materialising.”

The question is whether, if different standards of proof are required, that will be a shortcut to avoid prosecution. If the same level of proof is required, I cannot quite see how we are going to meet the required evidence level to pursue the risk orders. We cannot seem to have one or the other. The worst possible scenario would be if we ended up with risk orders being used as a shortcut to avoid going to trial when we need to ensure that people are prosecuted and convicted.

I am certain that the Minister is on the same page as me and I hope she will reassure me with facts. The Government’s fact sheet on this part of the Bill says that the Government

“must be able to prevent very serious modern slavery offences where the risk is clear, but we cannot secure a criminal conviction for a previous offence.”.

The fact sheet notes that the police have said that risk orders will be useful to disrupt peripheral activity when the investigation is focused on core offenders. Finally, it mentions that risk orders could be useful where it is proven to be “difficult to prosecute” in instances where witnesses

“are unwilling to give evidence”.

The intention behind the amendment is to put that on the face of the Bill, so that it is a bit clearer on the circumstances in which such orders might be used.

These are significant powers—this picks up on the point that the right hon. Member for Delyn made. We need to know that they are used appropriately and to ensure that they are not used as a shortcut to avoid serious prosecution. I will not read out the amendment because Members are perfectly able to read it themselves. I am trying to ensure that we are absolutely clear about  what the orders are for, rather than allowing them to hamper what I think the Committee is in one mind in trying to achieve.

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

I am grateful to right hon. and hon. Members, and to my hon. Friend the Member for Brent Central for tabling the amendments and for giving me the opportunity to explain how the Government have framed the provisions to ensure that they are used appropriately to manage the risk of harm from modern slavery offences. The Government’s intention in proposing slavery and trafficking risk orders is to prevent modern slavery offences. As I have stated, prevention is a key part of the Government’s approach to stopping these terrible crimes. Clause 23 is intended to give the courts appropriate powers to manage the risk of causing harm posed by an individual who may commit a slavery or human trafficking offence, such that it is necessary to protect others from physical or psychological harm that would be likely to occur.

Amendment 79 relates to the test for imposing a slavery and trafficking risk order. The test includes a requirement that the order must be necessary to protect people from the risk of harm from a slavery and trafficking offence or offences. The amendment seeks to ensure that the level of risk of the new modern slavery offences taking place is established—that it is sufficiently serious before an order is imposed. The change is not needed because the current test provides appropriate safeguards, which have a similar effect in practice to the proposed amendment.

To meet the existing test set out in the clause, the court must already be satisfied that a restriction is necessary. A court can conclude that a restriction is necessary only if the risk that the restriction is intended to manage is real and substantial and if no lesser steps would work to address the risk. For the court to be satisfied that a prohibition is necessary because no lesser measure will manage the identified risk, it is implicit that it must be satisfied that there is a sufficiently serious risk that must be managed in this way. I can assure Members that the clause as drafted provides sufficient safeguards regarding the appropriate application of orders.

On amendment 87, the orders are drafted in line with other existing orders—for example, those relating to sexual harm, which leave the determination of which behaviours and scenarios indicate that an order may be necessary to the courts. Therefore, it makes sense to mirror existing legislation that is already working effectively. There is a risk that, in defining a list of scenarios, some behaviours of individuals who pose a risk might not be captured. For example, an individual prosecuted for an offence other than one relating to slavery or servitude, but where there is nevertheless evidence of a risk of future modern slavery offences, might not be covered by the amendment.

My hon. Friend the Member for Brent Central wanted confirmation that such orders would not be used as an easy get-out from prosecutions or used as an alternative way. Her view is that the high threshold means that they are no different to a prosecution. There is a difference between proving the risk of future harm and proving that a specific offence has been committed in the past. We need to focus on that difference. Where a specific offence has been committed in the past and can be  proved, we would expect a prosecution to be taken forward. However, there will be instances where the future offence is the risk. For example, someone might be convicted of a different offence, but it might become clear during the court proceedings that there is a risk of their committing future modern slavery offences.

Risk orders can also be used where somebody is awaiting trial, but the trial will not take place immediately. Protections will need to be in place for the victims. Victim safety is paramount, even in the absence of conviction. My hon. Friend mentioned the National Crime Agency’s point, which it made in oral evidence to the Committee, that the slavery and trafficking risk orders could be used where a prosecution could not take place because the victim was unable to give evidence. We all want prosecutions to take place, but there will inevitably be cases where the victims are just too vulnerable to give evidence—or are unable to do so safely—so that we can obtain a conviction. If a risk order can be applied for and obtained, that gives the public protection, because the individual cannot continue their activities.

Photo of Andrew Stunell Andrew Stunell Democratiaid Rhyddfrydol, Hazel Grove

The Minister is being extremely helpful, but will she comment on where the situation where a case collapses and a conviction has not been secured? There might be reasonable suspicions that the person concerned was still involved in the same business. Would such orders be applicable in those circumstances?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department

My right hon. Friend is right that there will be instances where that happens, and risk orders can be used at that point. We are all disappointed when prosecutions fail and convictions are not secured—that can happen for a multitude of reasons—but we will at least have something to fall back on if we know that we can prevent future harm.

It is worth saying that the police have indicated that they expect risk orders to be used to restrict the behaviour of individuals at the periphery of modern slavery investigations, where there may be insufficient evidence to convict those individuals, but the risk is still clear. The police also considered that risk orders could be useful in controlling the behaviour of others who posed a risk, but where it was difficult to prosecute—for example, brothel keepers who advertise internationally for women and who move the women backwards and forwards across borders. There may be insufficient evidence to convict them of a trafficking offence.

Where an individual has a relevant conviction overseas, but not for a specific modern slavery offence that would fall under the prevention order regime, risk orders could be used to effectively manage any threat that that individual posed in the UK.

In some situations, a victim does not wish to provide evidence or to support a prosecution, but the information they provide would give grounds for identifying a subject for such an order. Last week, we talked at length about the need for evidence, but some victims are just not prepared to give evidence, and they will have good reasons for that. In that case, risk orders could at least be used.

Risk orders follow the approach of existing non-conviction orders, such as risk of sexual harm orders, which have been used to prevent serious sexual offences.

My hon. Friend the Member for Brent Central asked a question to the effect of whether the orders were a second-best solution. It is important that they are available to law enforcement. We must be absolutely sure that victims are protected when they are at risk. We also absolutely want offenders to be brought to justice. Prosecution should be pursued whenever possible, but risk orders are there to give extra protection to those we so desperately wish to protect.

Photo of Sarah Teather Sarah Teather Democratiaid Rhyddfrydol, Brent Central

What is the Minister going to do to make it clear to the police and the Director of Public Prosecutions that the priority is prosecution, rather than using these orders? If people find they can apply quite quickly and get things sorted, the case might never proceed to conviction, especially when victims will undoubtedly be nervous about giving evidence. How will we ensure that we prioritise prosecution?

Photo of Karen Bradley Karen Bradley The Parliamentary Under-Secretary of State for the Home Department 3:30, 9 Medi 2014

My hon. Friend asks an important question, and that is part of the Government’s overall strategy on modern slavery. The message from the Committee should be clear—that we wish to see prosecutions—but I also want to see the anti-slavery commissioner, which we will debate later, put in place to ensure that those prosecutions are pursued in the best way they can be. The orders will be used only when it is not possible to convict somebody or where we have no evidence that they have committed a crime to date, but we have evidence that they will commit crimes in the future. It is an enhancement; it is certainly not a replacement.

My hon. Friend’s amendment 87 would make the process for seeking an order more complex by introducing further criteria and increase the likelihood of legal challenges as individuals subject to an order could argue that their behaviours were outside the triggering behaviours listed in the legislation. That is why we did not want to give an exhaustive list. We know that criminals tailor their behaviour to try to find loopholes in legislation, and there is a risk that they would use the list as a checklist by reference to which they could evade law enforcement.

Amendment 80 would ensure that only a senior immigration officer could make a slavery and trafficking risk order on application. The clause is drafted with reference to existing recognised legal persons, and specific positions of senior staff in immigration enforcement are not set out in legislation. We will establish, through Home Office policy, that any decision to apply for a slavery and trafficking prevention or risk order must be approved by the director of criminal investigations, a person of equivalent seniority to those who can apply for orders within the police and NCA. We consider that this safeguard will ensure that the orders are used appropriately without that provision appearing in the Bill. We have set substantial and appropriate safeguards to ensure that the orders will be used only in appropriate circumstances and with the approval of senior persons within enforcement bodies. Given that reassurance, I hope that right hon. and hon. Members will not press their amendments.

Photo of David Hanson David Hanson Shadow Minister (Home Affairs)

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.