“Damaging”: Part 5 condemned in the Lords

Peers discussing modern slavery changes, in the Nationality and Borders Bill, have unanimously condemned Part 5. The campaign to scrap Part 5 is gaining momentum.

On 10th February 2022, the Lords began its line-by-line scrutiny of Part 5. The chamber was united in its confusion around why moves to restrict support for survivors of modern slavery were included in a Bill designed to ‘toughen up’ the immigration system.

“Government needs to rethink this all over again”

Baroness Hamwee (Lib Dem) pledged to “investigate” a way to leave out Part 5 at the next stage of debate entirely. “This is so shaming, because this part of the Bill affects people who we are so keen to support and protect”.

Lord Alf Dubs (Labour), notable for his work with Safe Passage, called Part 5 “depressing”.

“I do not even know what the case is for the Government to do this.”

Meanwhile, Baroness Meacher (cross bench) called for the Home Secretary to “face noble Lords directly” before “the wickedness of Part 5… is allowed to go by”. Lord Alton of Liverpool (cross bench) echoed the desire to remove Part 5 entirely, stating “the Government really need to recast and rethink this all over again”.

The debate gave prominence to the concerns of the charity sector. One of the key architects of the Modern Slavery Act 2015, Baroness Butler-Sloss, joined Lord Kerr of Kinlochard in drawing on the non-profit sector’s condemnation of “damaging and unhelpful” Part 5. She said:

“I do not know whether the Minister, who is not at the Home Office, realises the extent to which all the non-governmental organisations of this country… deplore this part of the Bill without exception. This Minister may not know that but, goodness me, the Home Office does.”

Some in the House objected to claims by the Government’s Lord Wolfson that Part 5 was drawn up based on ‘real world’ need to tackle abuse of the system. Baroness Jones of Moulescoomb (Green) rebutted:

“I don’t think this Government have any concept of what exists in the real world. It is not appropriate for the Minister to talk about the ‘real world’ when he is denying the stories he has heard today.”

“What evidence is there? I cannot find it”

Many in the House pointed to the lack of data to back up claims by Government that the National Referral Mechanism (the system for identifying and supporting victims of trafficking) was being abused. Lord Vernon Coaker (Labour) asked where there was “evidence” of a “real problem that needs urgently to be tackled?” “There is none… I cannot find it.”

Indeed, Freedom of Information requests by ourselves at After Exploitation have triggered responses from the Home Office claiming that ‘no central record on vexatious trafficking claims’ is held.

Some Peers raised that, even if the Home Office did evidence some abuse of the system, it would be a price worth paying to ensure some of the most vulnerable do receive help. Lord Debden (Conservative), said:

They have not proved it; there is no evidence for it; but, even if there were, one has to accept that the nature of the people we are dealing with means that we have to reach out further than we would in other circumstances.”

The Lord Bishop of Bristol echoed this sentiment, particularly in relation to ‘trauma deadlines’ which would see victims miss out on support if they struggle to disclose details of abuse ‘quickly enough’:

“What Clause 57 [and 58] will do, in order to cut down on a relatively small level of abuse, is add to the barriers that are put before victims.”

“It is a natural human reaction… one does not want to talk about one’s awful experiences”

Much was said of the need to challenge the ‘trauma deadlines’ set out in Part 5 under Clauses 57-58.

Lord Cashman (Labour), explained that it may take survivors a long period of time to overcome the stigma of exploitation. Those experiencing “appalling discrimination and persecution”, he said,often see “pain and shame buried for decades”.

Lord Dubs (Labour) defended the “natural human reaction” to “avoid talking about awful experiences”. He raised the example provided by one NGO, supporting women who were raped when seeking safety across the Sahara: “Many of them do not want to talk… it is not within their tradition and culture… yet here we are demanding that they should.”

Meanwhile, Baroness Prashar (cross bench) spoke to the “devastating effect” of “damaging the credibility” of victims:

[We should] not undermine victims by starting from a position of disbelieving them and then requiring them to prove otherwise. That would be regressive”

“Undoing years of hard work”

Other areas of concern included changes to the support ‘gateway’ for survivors, which would be made stricter under Part 5.

Currently, if specialist Home Office decision makers decide a survivor ‘may’ have been trafficked, this is the point at which they receive immediate help such as safe housing and counselling.

However under the Part 5 threshold changes, Lord Debden explained, the goal posts would be moved to put survivors under more scrutiny much earlier on in their support journeys:

“The moment you move away from “suspect but cannot prove” [as a decision-making threshold for accessing support], you make it more difficult, and I hope that this House will not allow the Government to do this””

“We are already in line with our international obligations… all we are doing is withdrawing to what are, in many of our minds, unsatisfactory internal obligations.”

Meanwhile, Baroness McIntosh highlighted After Exploitation’s data, to make the case that a ‘stricter’ system is not needed:

Raising the standard of proof at reasonable-grounds stage where minimal information is collected by the competent authority could foreseeably result in fewer referrals being made

It is worth noting that 81% of all negative decisions at this first stage which where reconsidered were found to have been wrong,

“Wiggle room”

Lord McColl (Conservative) was one of many peers to challenge the ‘case-by-case basis’ approach being favoured by the Government under Part 5. Whilst Clause 63 enshrines statutory (or ‘guaranteed’) support for survivors in law, it heightens the bar when it comes to which survivors can access it – providing support only where “necessary”, not in all cases where survivors are identified.

Lord McColl, the sponsor of a number of various private members’ Bills relating to modern slavery support, said:

“The problem with it (statutory support) not being in the Bill is that it gives the Government what one could describe as wriggle room. We do not know when the guidance will be issued, nor what it will say… by the time we do, we will have missed a valuable opportunity to make a significant difference to victims.”

“This is more restrictive than in Northern Ireland and Scotland. Why have they decided to restrict the support in this way?”

Despite promises for a minimum of 12 months’ support, McColl added, “to date the Government have not brought forward an amendment to ensure that this support is on a statutory footing, nor set out any details of what that might involve.”

Meanwhile, Lord Marrow (DUP) challenged restrictions on leave to remain for survivors in Clause 64 which would, again, see some survivors subjected to a stricter decision-making system giving Government more discretion to reject claims.

The Government have made the criteria much narrower than current guidance… [It] would prevent leave to remain being granted to a confirmed victim on the grounds of their need for support for their recovery, if they could receive that support elsewhere—even when the alternative country is not a signatory to the European trafficking convention

“Keeping victims in fear”

Finally, Peers voiced concerns around the widely slated ‘ban on support’ for survivors with a criminal sentence. Under Clause 62, victims who have served a sentence of 12 months or more would not have the right to be considered as a survivor, or to access support.

Lord Dubs pled with Government to “respect” that many survivors are “under threat”, “fearful”, and “may have been compelled” to commit a crime as a result of their exploitation or associated vulnerabilities.

Lord Bishop of Bristol also spoke to the impact that a ban on support for victims with offending histories would have on maintaining a fair system. He argued that such a measure would deter survivors from coming forward, and would embolden traffickers and create a ‘black and white’ system which does not recognise the nuances of why people may undertake criminalised activity:

“one of the most effective ways to keep victims in fear is to force them to commit crimes so that they will be criminalised if they come forward to the authorities.”

“things are not that easy. People who have done bad things can and often do become victims of slavery. People who have become victims of slavery find themselves compelled to do bad things.”