Slavery and Human Trafficking (Definition of Victim) Regulations 2022

Motion to Approve

That the draft Regulations laid before the House on 23 May be approved.

My Lords, on 4 July the other place voted to affirm these regulations, which support the implementation of Part 5 of the Nationality and Borders Act 2022 which, as noble Lords will recall, received Royal Assent at the end of April. Section 69 of that Act gives the Secretary of State the power to define the terms “victim of human trafficking” and “victim of modern slavery” for the purposes of Part 5 of the Act.

The definitions of these terms are therefore relevant to the provisions in Part 5 relating to the circumstances in which the Secretary of State must provide assistance and support to identified potential victims under Section 64 and the circumstances in which an identified potential victim may be disqualified from protection if, for example, they are a threat to public order, as set out in Section 63. When these sections use the term “victim”, that refers to the definitions contained in these regulations. As such, the regulations simply ensure that such provisions in Part 5 of the Act can work in practice.

As noble Lords familiar with this area will know, there are already definitions of slavery and trafficking in primary legislation under Section 56 of the Modern Slavery Act 2015. However, these definitions relate to the criminal offences in Sections 1 and 2 of that Act, which deal with slavery and human trafficking respectively. What this means in practice is that the 2015 Act definitions require evidence of conduct amounting to a criminal offence, which is not a requirement for the purposes of victim identification, nor a prerequisite to provide support.

While these definitions in the 2015 Act therefore remain appropriate in the context of the criminal law, I hope noble Lords will agree that, for the purposes of identification and support, we should have definitions that enable victims to be identified whether or not a criminal threshold has been met for the purposes of a prosecution. The regulations being considered today therefore provide statutory definitions that are better suited to defining a victim for the purpose of identification and support, and distinct from the criminal justice-related definitions under Section 56 of the 2015 Act, which will remain untouched.

Following the remarks of the former Minister for Safeguarding during the passage of these regulations through the other place, I take this opportunity to thank the Secondary Legislation Scrutiny Committee for the interest it has shown in the regulations. I will now provide some reassurance following the concerns raised by the noble Lord, Lord Coaker, in his amendment, and clarification on the points the committee raised in its recently published report.

As set out during the progress through this House of the Nationality and Borders Bill, now an Act, when drafting the proposed definitions we have sought to define the terms in alignment with the definitions of a victim contained in the Council of Europe Convention on Action against Trafficking in Human Beings, otherwise known as ECAT, and the United Nations Palermo Protocol. It is intended that signatory states interpret and apply ECAT’s rights and obligations. I can be clear that our definitions are compliant with ECAT’s definitions of slavery and human trafficking. We have not mirrored the convention word for word, given that it is drafted in such a way that requires signatory states to provide further detail and, in this instance, clarity where there is potential for ambiguity. To mirror the language word for word would result in gaps and a lack of detail that would be unhelpful for victims and practitioners. Instead, we have remained compliant with ECAT while aligning with current operational guidance.

At this stage I emphasise that the activities and forms of exploitation mentioned in ECAT are covered by the draft regulations. As in the drafting of ECAT, we have intentionally avoided including reference to specific forms of exploitation in recognition of the evolving nature of trafficking and modern slavery, and so as not to exclude victims of what might currently be unknown forms of exploitation. This is consistent with current statutory guidance and operational practices. I can therefore reassure noble Lords that the regulations do not, as the amendment suggests, narrow the ability of victims to be identified.

In fact, the proposed definitions in totality are familiar to practitioners, since they reflect those contained in existing statutory guidance issued under Section 49 of the 2015 Act, which applies in England and Wales, and the non-statutory guidance available in Scotland and Northern Ireland. For instance, the term “criminal exploitation” is not mentioned in the regulations or in ECAT, but is clearly covered by the definitions of either human trafficking or slavery, depending on the precise nature of the exploitation, and will remain as currently defined in the statutory guidance. We think the approach is the logical one to take in seeking to balance the need to identify victims of existing forms of exploitation and victims of new forms of exploitation as they emerge.

On concerns regarding the engagement process in relation to these regulations, it is fair to say that key stakeholders and the public more broadly have had suitable opportunities to comment on this policy. During the formal public consultation on the New Plan for Immigration, which ran from 24 March to 6 May last year, most stakeholder and public respondents said they thought the modern slavery proposals would be effective in building a resilient system that identifies victims of modern slavery as quickly as possible. These regulations support that objective. The public consultation also provided an opportunity for modern slavery stake- holders to comment on the modern slavery policies that, fundamentally, these regulations underpin.

More recently, the Government have worked closely with victim support charities, NGOs and support providers, including members of the victim support modern slavery strategy implementation group. We therefore consider that it was unnecessary to undertake a formal public consultation, given the opportunities to comment on the modern slavery policies to which these definitions relate and the opportunity given to key modern slavery stakeholders to comment directly on the drafting of the definition.

I look forward to the contribution of the noble Lord, Lord Coaker, and to giving any further clarification, if that is needed. For now, I beg to move.

Amendment to the Motion

Moved by

At end insert “but this House regrets that the draft Regulations have not been subject to consultation, and give rise to concerns that the changes will narrow the ability of victims to be identified and to access support”.

My Lords, this amendment stems from the regulations needed following the passage of Section 69 of the Nationality and Borders Act. Given the controversy around that Act, and the general criticism of the inclusion of Part 5, which dealt with modern slavery in an immigration Bill, you would have thought the Government would have been especially careful around the definitions to be left to secondary legislation—but indeed not.

The Delegated Powers and Regulatory Reform Committee warned the Government:

“One thing which is noticeable about the power conferred by clause 68(1)—

now Section 69(1)—

“is the absence of any express link to Article 4 of ECAT or Article 4 of the ECHR. The power is simply a power to define the terms in regulations without limiting in any way the provision which may be contained in the regulations. We consider this to be inappropriate. The policy is for the definitions of the terms ‘victim of human trafficking’ and ‘victim of slavery’ to reflect the provisions of Article 4 of ECAT and Article 4 of the ECHR.”

The committee was saying to the Government that they needed to be extremely careful, given the powers being given to Ministers through secondary legislation, rather than in the Bill, to ensure that the definitions were extremely well thought through and had the support of those who worked with them.

The Government say that there is broad agreement. I thank the Minister for her introduction, but perhaps she can explain why, if there is broad agreement, on 15 June in a letter to Dame Diana Johnson MP, who is chair of the Home Affairs Select Committee, 39 separate organisations wrote saying: “There has been no formal consultation about these regulations, despite the existence of established stakeholder groups, and we are concerned that the definitions are incompatible with international law and that they narrow the definitions and therefore scope for identification of victims”. That does not sound to me like broad agreement. Those organisations include ECPAT, the Anti Trafficking and Labour Exploitation Unit, Hope for Justice, Slave-Free Alliance, Focus on Labour Exploitation, the Helen Bamber Foundation, Unseen, the Refugee Council and the Scottish Refugee Council, and the Children’s Rights Alliance for England. The list goes on; 39 separate organisations wrote saying that they were unhappy with the consultation and what was going on. Why are they all wrong and the Government right? Given the sensitivity we had during the passage of the Nationality and Borders Bill, surely the Government should have gone out of their way to make sure that the sector was happy with what was going on. We would not then have the situation where I felt it necessary to bring this amendment before your Lordships.

What has become of “may make” in the regulations? I am not a lawyer—there are many lawyers in this House, and they will tell me if I am wrong—but I ask which has tougher language: “may make” or

“any of the person’s personal circumstances (such as the person’s age, the person’s family relationships, and any physical or mental disability or illness) that significantly impair”