Clause 56 - Disapplication of retained EU law deriving from Trafficking Directive

Part of Nationality and Borders Bill – in a Public Bill Committee am 2:00 pm ar 2 Tachwedd 2021.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Holly Lynch Holly Lynch Shadow Minister (Home Office) 2:00, 2 Tachwedd 2021

I thank the Minister for his opening remarks on clause 56. The explanatory notes on the clause state that, as the Minister has just outlined,

“the Trafficking Directive should be disapplied in so far as it is incompatible with any provisions in this Bill.”

There are some substantial and quite technical inconsistencies here that need to be worked through, and to do so we have had to enlist legal expertise from the Anti Trafficking and Labour Exploitation Unit and others, so I thank them all for their service.

The trafficking directive is part of a suite of measures designed to combat the crime of trafficking. The EU has introduced several legislative measures to strengthen the protection of victims of human trafficking, including the 2011 EU directives on preventing and combating trafficking in human beings, and protecting victims of trafficking.

I turn first to the heading of clause 56—“Disapplication of retained EU law deriving from Trafficking Directive”. Subsection (1) refers to

Section 4 of the European Union (Withdrawal) Act 2018”,

which saved the trafficking directive in domestic law, so that it continued to have effect on or after the UK left the EU at the end of December 2020. However, it has the opposite effect, by stipulating that any

“rights, powers, liabilities, obligations, restrictions, remedies and procedures derived from the Trafficking Directive” that were saved cease to apply,

“so far as their continued existence would otherwise be incompatible with provision made by or under this Act.”

Therefore, our primary concern about clause 56 is that the power to disapply the rights derived from the trafficking directive will cease the rights and remedies available to victims generally as a matter of domestic or EU law that continues in force in the UK.

The world’s largest group of modern slavery researchers, Rights Lab, has argued:

“After eight years of the government’s general position being that the rights under the Trafficking Directive were already in domestic law, the choice to legislate now in the Nationality and Borders Bill—to reduce and restrict rights and entitlements through Part 4 of the Bill—and the presence of the express power to disapply them in the event of an incompatibility with the Bill in Clause 56 is concerning. The government should instead ensure that rights under the Trafficking Directive continue to apply in UK law, by incorporating it, and further, it should incorporate ECAT in domestic law and end the fragmented approach to victim identification, protection, and support.”

The clause will also threaten the Government’s ability to combat the perpetrators of human trafficking, as it will further undermine the response to criminal justice and the rights of victims of trafficking as victims of crime in the victims of crime directive and relevant codes of practice. Additional concerns have been voiced in relation to the rights under the NRM of victim identification and support and non-penalisation. For example, article 8 of the directive provides for the non-prosecution or non-allocation of penalties to victims, and requires the UK to ensure that competent national authorities are entitled not to prosecute or impose penalties on victims of trafficking in human beings for their involvement in criminal activities that they have been compelled to commit as a direct consequence of being subject to any of the acts referred to in article 2.

Therefore, that directive is clearly threatened by clause 56 and other provisions of part 1 of the Bill, including clause 51, which I appreciate is precisely why this Government want to disapply it. However, I am afraid that that is just the wrong judgment call.

In conclusion, the clause is incompatible—