Joint Committee on Draft Modern Slavery Bill
Oral evidence: Draft Modern Slavery Bill, HC [1019], Tuesday 28 January 2014
Ordered by the House of Commons to be published on 28 January 2014.
Members present: Mr Frank Field (Chair), Baroness Butler-Sloss, The Lord Bishop of Derby, Baroness Doocey, Baroness Kennedy of Cradley, Lord McColl of Dulwich, Lord Warner, Fiona Bruce, Fiona Mactaggart, Sir John Randall, Mrs Caroline Spelman and Sir Andrew Stunell.
Questions [37-80]
Witness[es]: Dr Maggie Atkinson, Children’s Commissioner, Office of the Children’s Commissioner gave evidence.
Q37 Chairman: Welcome to the Joint Committee. Would you identify yourself for the sake of the record?
Dr Atkinson: I am Dr Maggie Atkinson and I am Children’s Commissioner for England.
Q38 Mrs Spelman: We would like to explore the subject of the model of a Commissioner and ask you some questions about to what degree, in your experience, your independence from Government is primarily a function of the reporting lines that you have. In other words, I am exploring the relationship that you have to the Secretary of State. How does that work and how independent does that make you feel?
Dr Atkinson: As Children’s Commissioner for England I do not report to the Secretary of State; I am a corporation sole. Unlike the Commissioner that is proposed in this draft Bill, I can appoint staff, I can let contracts and I can intervene. I do not have the power to institute judicial review, but it is possible that I may, after the Children and Families Bill, subject to the will of Parliament, becomes an Act.
The Commissioner as described in the draft Bill is actually a member of staff of the Home Office. In conversations at my office over the draft, as I prepared to come for this session, it becomes a bit problematic, we think, to call it a Commissioner because it can’t commission anything. If you look at the National Human Rights Institution, which is the EHRC, its members are Commissioners. I am Children’s Commissioner for England. There are four of us in the UK. All of us are separate from, although we relate to, Government. I am Government-funded, as are the other three in the other three UK nations. My remit letter, which arrives with me to tell me how much my budget will be for the coming financial year, cannot and therefore does not tell me what to do.
The Secretary of State may not like what I have to say in my annual report, but he is very clear, and has been clear in the House, that he will neither interfere nor attempt to direct. Although the 2004 Act which set me up permits the Secretary of State so to do, when we were reviewed in 2010 he made a statement in receiving the review report that he would no longer seek to direct my activities. He makes very reasoned requests that we provide him with material, and whenever it is possible—and it does not fetter my independence—we do so.
The explanatory notes to the draft Bill are very useful, I think, for your pre-legislative scrutiny purposes. The Commissioner as described in the draft Bill is a member of the Home Secretary’s staff. The Home Secretary may alter both the plans and the annual report that that post holder creates, presents and publishes.
I very strongly welcome the fact that Government want to legislate on the heinous crimes as described by the Home Secretary that the Bill seeks to address. I can’t help saying to you, in your pre-legislative mode, that, as currently drafted, the Bill rather conflates trafficking and slavery and enslavement, which are not the same things as each other. It might help debates in either House were you to point out some of the issues that may need to be readdressed in a Bill that is going to make the difference that this Bill seeks to make.
Q39 Mrs Spelman: We will ask you questions about definitions later on and it will be really, really interesting to drill into those distinctions, but my little crop of questions is focused round this issue of how we make the Commissioner independent. You have hinted at some of the tools in your toolkit that allow you to assert your independence, but could you point us to the most important of those and also the most important tools to assure your accountability?
Dr Atkinson: The ones I have just highlighted are one set, which is very much about how we are governed, how we run ourselves as an organisation, and how I set my priorities in response to what children, policymakers and academic research are saying. But there is then a second set about the ways in which the 2004 Act stipulated what the powers of the Commissioner shall be.
I have the power to enter any premises where a child is deemed cared for, apart from their private home. We do go in and out of youth justice custodial settings on no notice. The Governor can’t say, “Well, we’re busy.” We can and do go in and out of asylum settings, which is where many of the trafficked children who could otherwise become enslaved are found. We can and do go in and out of social care settings. In the inheritance that we will pick up from the Office of the Children’s Rights Director, my intention is that we do a programme of visits to children’s homes.
That sense of powers, which cannot be gainsaid, is really important in the life of a Children’s Commissioner. We are not an ombudsman. We cannot direct and we do not regulate. We do not hold professions to account. What we do do is stand in a space that I would define as serious moral authority. That is because I can and do—and the Act is very explicit—appoint such staff as I deem fit to assure that my remit is fulfilled. The explanatory notes to this draft Bill make it very clear indeed that this Commissioner will not have that power.
We do not have to be accommodated in the same buildings as Government should we choose not to be, although there is very strong pressure that we remain on Crown Estate. I do not have to put up with the Secretary of State saying, “That’s your desk,” and I do not think he would want to. It will be an uncomfortable period of time if any Anti-Slavery Commissioner were to have to say something which, from the evidence gained as part of the way they do their job, means that what they have to say is uncomfortable for Government, whoever that Government may be. There are moments when what I say is absolutely in support of what Ministers have pushed through—for instance, some of the amendments to the Children and Families Bill going through now. I am delighted when I can say that.
There are moments when what I have to say is deeply uncomfortable for the media, for politics and for wider society. I cannot hesitate in doing that and in saying what needs to be said. If there is going to be an Anti-Slavery Commissioner who is going to be worthy of that name, there will be moments of deep discomfort with any stamp of politician who happens then to be Home Secretary. The greater the distance that can be put in legislation between that person and any politician, the better, it seems to me.
Q40 Mrs Spelman: To create that independence, where would you ideally locate the Commissioner?
Dr Atkinson: I do not see there being a problem in this person being a member of the staff of the Home Office, as long as the legislation is honest in that that is what it is going to be. Calling it a Commissioner may lead to confusion with the model that is currently described in the draft Bill.
I think it is a Home Office function—of course it is—because it is about crime and it is about justice, as well as being about immigration for some people who are trafficked into the country across borders. Therefore, the area of Government is absolutely right. It is whether or not you can truly call it an independent office, when it is very clear from the description in both the Bill and the explanatory notes that that is not what it is going to be, because the Home Secretary can direct what goes into the plan and the annual report. So it is less about where it sits than how it is described.
Now, were it a hugely independent model, it would need a memorandum of understanding with me because, under the Children and Families Bill shortly to be enacted, subject to the will of Parliament, I become the statutory champion for all of the rights of the child, which include enslavement, forced labour, trafficking, asylum, immigration, abuse and neglect. We would need an extremely strong memorandum of understanding in order to avoid stepping on each other’s toes. I do not think it is about them stepping on mine and not me on theirs. It would be about needing an extremely strong carving-out of the territory, which is the way we work with the Equalities and Human Rights Commission. We have regular conversations about the depth of our specialism for the under-18 population, although I recognise very clearly that they are the National Human Rights Institute.
Were this Commissioner to be strengthened and to become a truly independent office, they would need a memorandum of understanding with the EHRC as well. It is about being careful what you wish for, I guess. If we end up with something that is truly independent and there is a rowing back on, “It shall not be a corporation sole; it may not appoint its own staff; it will write up a report which is approved by the Home Secretary”—all of which I see as problematic, and you then ended up with somebody desperately strong—it would need a modus operandi of working with everybody else in the landscape.
Q41 Baroness Doocey: Are there any examples of Commissioners or similar posts that you think it might be helpful for the Committee to examine?
Dr Atkinson: There are endless models. Baroness O’Neill and Mark Hammond at the EHRC clearly work with a group of people who are appointed to the position of Commissioners at the EHRC. Anne Owers chairs the Independent Police Complaints Commission. The people who sit on that board are called Commissioners. If anybody speaks for the IPCC, it is a Commissioner—not the paid staff.
There are many models. What you would have to do, probably, is to dismantle the model that is described in this Bill if you were going to institute one. I guess the greatest favour that you, as a pre-legislative scrutiny committee, can do for both Houses is to help them to explore the potential difficulties of having somebody called a Commissioner who is actually a member of staff.
Q42 Baroness Doocey: I take the point you are making, but are there any of the models that are currently working that you think it would be helpful for us to look at in greater depth?
Dr Atkinson: If I look at my opposite number in Scotland, he is a royal appointment. He works not to any single Department in the Scottish Government or the Scottish Parliament, but through a special committee of the Scottish Parliament. He is still funded by the Scottish Government—of course he is—but, because he has the defence of being a royal appointment into that position, his independence, I think, is extremely strongly guarded, whether or not Scotland chooses to become an independent nation in September.
All four UK Children’s Commissioners are also corporations sole and, therefore, are set aside from needing either an executive board or a group of non-executive directors. I will have an advisory board—I have one now—but they are purely advisory; they carry no risk or liability. There are elements of the models that set up all four of the UK’s Children’s Commissioners that you might quite usefully look at. We are all corporations sole. None of us have an executive structure. If the buck stops anywhere, it stops at our desks—all of us. Only one of us is a royal appointment; the rest of us are not. We are all appointed to limited terms of office. Under the current legislation for me it is five years; under the coming legislation it will be six. There are elements of the legislation that say, “And you may, or you may not, be reappointed should the Secretary of State so deem.”
There are many, many models. If you looked across the sea to the Republic of Ireland, their Children’s Commissioner is a full ombudsman. She is written into the constitution of the nation. She is called on by Ministers to run commissions of inquiry. I am not quite sure how you would resource an organisation to do that, but she is, and so are many European Children’s and Human Rights Commissioners. They are not only Commissioners; they are ombuds. There are endless models. It is what the nation decides should be that will be the crux.
Q43 Baroness Doocey: Could you talk a little bit about how you co-ordinate your work with the other nations and what are the drawbacks—the pros and cons—of that in practice?
Dr Atkinson: Where matters are devolved I have no say in what they do. We understand that between ourselves as a foursome. Where matters are reserved—so, for asylum across all four nations and for youth justice with Wales—the law says that those issues are mine. In practice, we work to a memorandum of understanding, which we are in the process of revising now and will publish, probably in the spring. When we can, we work very closely together. On issues, for example, when yet again the UKBA—as it then was—wanted to use dental x-rays on teenage asylum seekers to prove their ages, we stepped in alongside the Chief Dental Officer and the Chief Medical Officer and had it stopped. It was all four voices working together that pressed the weight of that, even though asylum is actually mine.
The complications arise whenever something in national law belongs to one or other of us, but the minute a child hits housing, education, social care or medical care it is devolved. That is why we need a memorandum and why we revisit it about once every two years or so to check whether it is still current.
We have a stated agreement that we will work together whenever we possibly can because we are all bound under the state party to the United Nations Convention on the Rights of the Child and how well or otherwise the nation delivers on it. Where an issue is entirely devolved, the Commissioners work entirely through their own Assemblies or Governments, and that is explicit in the MOU.
Baroness Doocey: Thank you very much.
Q44 Lord Warner: I want to pursue the issue of where this Commissioner best sits vis-à-vis children. Twenty-five per cent of victims of modern slavery, give or take, are children. Now, you are the Commissioner responsible for the best interests of children, if I may put it as crudely as that. Where do you think the best interests of children are best served? Is it with a Commissioner “in the Home Office” or an independent Commissioner outside the Home Office’s responsibility?
Dr Atkinson: That is a difficult one, because, of course, we do take up issues, and, when Mr Field ran his Commission ahead of this Bill being drafted, my deputy appeared before that Commission because we had done so much work on sexual exploitation. You will have heard me talk or seen my evidence to the Joint Committee on asylum-seeking children because I have a very good specialist on asylum seeking; but I only have one. Yes, you are absolutely right that 25% of those who are trafficked and/or enslaved are under 18, but there are 12 million children in England, and any Children’s Commissioner—me or a successor following the passage of legislation—has to look to all 12 million of them wherever we possibly can, although obviously with a greater concentration on the most marginalised.
I very strongly welcome the Home Office’s intention to strengthen efforts to address what—in the Home Secretary’s foreword is very clear—is a truly heinous crime, sometimes committed in plain sight, as she has also said. The strengthening of the will, the endeavour and the work that can be applied to something this horrific is very strongly to be welcomed. How independent you can make that person will be the crux of the matter.
I am the lead of an executive, non-departmental public body of the Department for Education, but it cannot tell me what to do, and there lies your issue. If it is to do with children and I deem it fit and it is about their rights, I will do it. That is going to be the challenge for a Commissioner who is housed at and directed by the Home Office.
Q45 Lord McColl of Dulwich: You have already partly answered this question, but as you are the advocate for child victims does this proposed post step on your toes? You have talked about a memorandum of understanding. Would you like to expand on the overlap that might occur?
Dr Atkinson: Inevitably, there will be an overlap because the children who are enslaved, sold into slavery, used as slaves and/or trafficked in or within the UK, are all covered by the United Nations Convention on the Rights of the Child; of course they are. I would need to understand very explicitly, following the passage of legislation, exactly what this person’s powers actually are. Once it has all settled down and we have the final text of what will be an Act, what are the actual powers? That would have to be our starting point.
My powers are actually quite extensive. I can investigate any issue to do with childhood and children. I can go anywhere I please. I can challenge any statutory body. All statutory bodies have to give me information if I ask for it. If I write a report, all statutory bodies have to respond; they have to do so in writing, and I can badger until they do. If you end up with somebody who is that powerful as a result of scrutiny through both Houses, then we would have to decide how we were going to work in the territory. Are we going to work jointly? Are we going to work as members of each other’s teams? If it remains as it is described in the Bill, then I come back to what I said earlier. I do not consider it a Commissioner. It may be a champion; it may be somebody with very special responsibility within the Home Office for this very difficult and horrific crime, but I have problems in seeing it as a Commissioner. It seems to me that that will potentially be where the tussle is in the debates that are to follow.
Q46 Lord McColl of Dulwich: Do children experience slavery and human trafficking in different ways from adults?
Dr Atkinson: Children are vulnerable simply because they are children. Some of the trafficked youngsters whom we have met in the course of our work are incredibly deeply traumatised. Often, they are brought into the country in the first place having been torn from whichever adults were their closest and dearest. They are extremely easy to exploit simply because it is very difficult for them to resist. My deputy cannot be here this morning, but I know some of you will have met her and she has given evidence. She speaks of meeting particularly teenage boys, who have been trafficked across the border from countries like Afghanistan and some other Asian—including south Asian—nations, and made to commit crimes. Then, instead of being treated as victims, as the previous DPP insisted, they have been arrested, taken through the court process and are in prison because they were found growing cannabis, being used in sexual exploitation or whatever.
They are victims. They are still greater victims because they are so young. Their ability to resist their exploiters is limited in comparison with that that adults could put up. Their ability to recover from trauma is, I would say, significantly different from the ability of an adult to be resilient enough to resist and to recover. What happens to you in your childhood, for good or ill, marks you. If it is good, it marks you for being an upstanding and resilient citizen. If it is ill, then society owes you healing.
Q47 Fiona Mactaggart: Can I ask you to speculate that, through the proceedings of this pre-legislative scrutiny and so on, we create a real Commissioner of the kind that you have described? You said earlier that you have to focus on all 12 million children in Britain. Do you think that such a Commissioner would be able to work with you significantly to advance the resilience, as you have described it, and hope for trafficked, exploited and enslaved children?
Dr Atkinson: I think yes is the answer to that. We have both implicit and, with some organisations, explicit memorandums of understanding now. We are not an inspector or regulator, but we work very closely alongside, for example, Her Majesty’s Inspector of Prisons. Nick Hardwick, who is the current HMIP, leads what is called the National Preventative Mechanism under the UN Convention against Torture and its Optional Protocols on Cruel, Inhuman and Degrading Treatment. Because we have the power of entry at my office, we are the children’s branch of the NPM. We do not fetter him and he does not fetter us. We go in on different expectations, using different standards, but he knows and it is explicit.
We will have to have a similarly explicit one with Ofsted once the new legislation goes through. It is not about whether the landscape will be more crowded; it is about how clear the understanding is as to what our different functions are. We work with youngsters who have been through policing situations. We know what the IPCC does and they know what we do. We do not get in each other’s way; we strengthen each other’s voices.
Q48 Fiona Bruce: Good morning. You have spoken very movingly of society owing victims—particularly child victims—healing. In your written submission to the Modern Slavery Bill evidence review you said, “On balance, we think that an independent Anti-Slavery Commissioner would assist in driving improvements for victims.” But that implies you have some concerns. Are there any that you want to tell us about that you have not already mentioned?
Dr Atkinson: To be honest, what I said earlier covers it. The key word in that part of our written submission is the word “independent.”
Q49 Fiona Bruce: Talking again about the functions of the proposed Anti-Slavery Commissioner, you posed the question, “What are the actual powers?” Again, in the draft Bill they have been confined to encouraging “good practice in the prevention, detection, investigation and prosecution of offences.” Do you think that is broad enough? Could you comment again on the memorandums of understanding, if they are going to be broadened, as to how that would work in practice?
Dr Atkinson: I think those very active verbs are very important. I am never quite sure how well, for example, very hard-pressed police services understand what it is they are looking at. Our work on sexual exploitation indicated that sometimes they don’t. Therefore, if there is somebody who is pressing good practice, showing people what it looks like when it works, and who is exemplifying through practice on the ground how others should be organised and operating, that is all to the good. The more we can continue to inform dedicated professionals what they should be looking for and how they should be addressing it, the better.
I do not think it is about breadth. I come back again to how fearless, “without fear or favour,” and how unfettered that person could be. Were those active verbs then accompanied by that sort of unfettered independence, you might actually get somewhere.
Q50 Fiona Bruce: To include a role as an advocate for victims?
Dr Atkinson: Very much so. We know that part of our role at the Office of the Children’s Commissioner is so to advocate.
Q51 Sir Andrew Stunell: The National Referral Mechanism is something that seems to be at the core of this. You have suggested that the Anti-Slavery Commissioner should have some oversight of it. Can you say something about why you think that and how you think that could work in practice?
Dr Atkinson: Our experience of how well the National Referral Mechanism works now is that it is very uneven. It is also split between two constituent authorities in terms of who has charge of it. Maybe that adds to the unclear way that it is received elsewhere.
We are never certain how far, for example, the governor of a young offender institution understands that this child here should be being referred through the NRM and not held in your institution, because there is clear evidence that they are a victim rather than a perpetrator.
Were a person, whether truly independent or answering to the Secretary of State as the Bill currently has it, to have real strong oversight of something that is directly to do with rescuing those who are enslaved, or in slavery or trafficked, and were it through one mechanism or channel, and not co-owned across a variety of channels and organisations, it seems to us that the ability to make it clearer to everybody else in the system what the NRM is for, how it works, how you refer, what it looks like when you refer and what the chains of consequence then are—the possibility of making all those things far clearer—is something that should probably be seized through the passage of a Bill like this. That is how we see it. The opportunity to review how it works, to whom it is answerable and through what channels, is given in a Bill like this. The possibility of a discussion about it is clear.
Q52 Sir Andrew Stunell: Once that review has taken place and we have the new structure, hopefully, very much better, do you think the Commissioner should be in a position to overrule a decision that he or she thinks is mistaken?
Dr Atkinson: I think you are probably asking me questions above my pay grade, to be honest.
Q53 Sir Andrew Stunell: You are at the highest pay grade; you have explained that.
Dr Atkinson: But you then end up, if you will forgive me, potentially entangled in judicial process, in challenges through the courts. You will know that there have been referrals all the way up to the Supreme Court and back again of people who have been either referred or referred wrongly through the NRM and whose asylum cases have been judged by the Supreme Court to go absolutely contrary to what Government and the Borders Agency, as it then was, wanted. That is why I smiled and said it might be above my pay grade.
The very last thing you need is for a mechanism that is supposed to be robust to be somehow toppled or left open to such questions that it is deemed unsuitable or unworthy of what it is trying to do. If you do not set it up right and you don’t set it up clearly, and any review through this Bill could end up with clarification or making it even murkier, if you don’t get clarification at the end of it, the possibility of it being absolutely dismantled through court processes is counterproductive, isn’t it? It would not make anything better for anybody.
Q54 Sir Andrew Stunell: Okay, so if we have a human trafficking centre looking after this, as you have suggested, you also said that that should have a widened skills base, which presumably means they would have fewer wrong answers in your judgment. Would you like to say something about the resources it does need and what you see as the gaps there?
Dr Atkinson: In terms of the widened skill base issue, this is not me saying, “And you should bulk up its resources and give it millions and millions more pounds.” We are in a time of financial constraint. My own office has been part of lowering how much we’ve got since I came into office in 2010, and we do not expect to be immune from that. I do not think the HTC should either.
For me it is about doing what we have had to do. Each time we have had a financial settlement since I came into office in March 2010, we have had to look all over again at who we have, how they are deployed and what the balance of skills is. If you look at where we have been since 2010, we have scaled down our back office; we have scaled down our communications team; we are at single specialisms. What we have managed to do, each time somebody has left or we have had to reconfigure, is to bring in more skill on the policy side of things. We have more skill, for example, from very experienced social care professionals.
What we were saying in our written submission was that, whether the resource level stays the same or shrinks, who you have matters enormously. Do you have social care expertise? Do you have people who understand trauma and how to deal with it? Do you have people who understand that trafficking and slavery are not the same things and that you deal with them differently? It is about balancing who you have with what you have to do and not simply refilling posts that are left by somebody with somebody who is just exactly the same.
Q55 The Lord Bishop of Derby: On that theme, I was going to ask about resourcing. You began to answer it. Clearly, you make very important claims about the importance of independence and the wide remit that you have. Given the limitations on resourcing and the pressure to reduce them, how do you go about setting priorities, and how does that relate to your pitch for funding—i.e. does that compromise your independence—and how do you do that negotiation?
Dr Atkinson: The first thing is that we do not pitch for funding. We are told what we are getting, more or less. We work very closely with our sponsoring department to help them to continue to make our case. We have a sponsor team within the DFE, and they know to the nth degree what we spend on what, with what results and with what impact.
Q56 The Lord Bishop of Derby: So your independence runs in parallel with quite a close working relationship with a particular Department.
Dr Atkinson: It does. In the days when there were many, many NDPBs, in most cases what the DFE with its family of bodies did was not only to say, “Here is your budget,” but, “This is what we want you to do with it; we want you to concentrate on these five priorities in this way, with this aim in mind.” When I get my remit letter, what it says is, “This is your budget. You are the accounting officer; spend it well.”
Q57 Baroness Butler-Sloss: We are running out of time, Maggie, so I have two short questions. First, I get the impression that you would want to exclude the immigration side—the UKBA—from making decisions about whether people should or should not be treated as victims. The second question, very quickly, is, should all children go through a revised and improved NRM?
Dr Atkinson: To answer your second question first, yes, because they will not have trafficked themselves across our borders; somebody else has done it. In terms of the involvement of what used to be the UKBA, if I have given that impression, I apologise. That is not what I meant. Inevitably, for children who are trafficked in, they are the first team they meet at terminal 5 at Heathrow or wherever else. It is about how well trained they are. It is about how their radars are tuned to spot what is coming in, and it is about how consistent that is between the different ports and airports of entry.
Q58 Chairman: That is brilliant; thank you very much.
Dr Atkinson: Not at all; thank you.
Q59 Fiona Mactaggart: Could I just ask one sneaky question, Frank? One of the things you have argued is that the Anti-Slavery Commissioner should require public authorities to publish information to undertake research. Why do you think this post could get us better information and data about this issue?
Dr Atkinson: I guess one of the great benefits of them being within the Home Office and within the staff—if that is where they remain once this Bill has gone through—is that the Home Office already has those powers. In some ways, as a Government Department, it probably has greater powers to insist on that data being brought forward than we do. We sometimes have to argue.
Q60 Fiona Mactaggart: So why isn’t the data in the public domain at the moment?
Dr Atkinson: Blimey, I’m not sure I could answer that question, good lord.
Q61 Chairman: If you have any reflections on it, you might give us a note.
Dr Atkinson: We will, and if we think of anything else, Chairman, that could help your deliberations we will send it in.
Chairman: That would be brilliant. Thank you very much.
Examination of Witnesses
Witnesses: Matthew Evans, Director, and Saadiya Chaudary, Solicitor and Legal Project Manager, AIRE Centre, examined.
Q62 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.
Q63 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.
Q64 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.
Q65 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.
Q66 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.
Q67 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.
Q68 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?”
Q69 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.
Q70 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.
Q71 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.
Q72 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.
Q73 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.
Q74 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.
Q75 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.
Q76 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.
Q77 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.
Q78 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.
Q79 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.
Q80 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