1st Report, 2015 (Session 4): Legislative Consent Memorandum on the Modern Slavery Bill (LCM (S4) 35.1)

SP Paper 638 (Web Only)

Remit and Membership

Remit:

To consider and report on:
a) the administration of criminal and civil justice, community safety and other matters falling within the responsibility of the Cabinet Secretary for Justice; and
b) the functions of the Lord Advocate other than as head of the systems of criminal prosecution and investigation of deaths in Scotland.

Membership:

Christian Allard
Roderick Campbell
John Finnie
Christine Grahame (Convener)
Alison McInnes
Margaret Mitchell
Elaine Murray (Deputy Convener)
Gil Paterson
John Pentland

Committee Clerking Team:

Joanne Clinton
Neil Stewart
Christine Lambourne

Legislative Consent Memorandum on the Modern Slavery Bill (LCM(S4) 35.1)

The Committee reports to the Parliament as follows—

BACKGROUND

1. The Modern Slavery Bill[1] was introduced in the House of Commons on 10 June 2014. There are provisions in the Bill (as amended) which apply to Scotland and which relate to devolved matters. Therefore, a Legislative Consent Memorandum (LCM) on the Bill was lodged on 14 November 2014.

2. The Committee took evidence on the LCM from Michael Matheson MSP, Cabinet Secretary for Justice, on 16 December 2014.

POLICY INTENT OF THE LCM

Provisions of the Bill that relate to devolved matters

3. At introduction, the Bill did not contain any provisions that extended to Scotland. However, amendments tabled on 28 October 2014 extended provisions to Scotland in relation to:

  • police powers to pursue, board and detain ships at sea for the purpose of investigating various slavery and human trafficking offences; and
  • the establishment of an independent Anti-Slavery Commissioner.

4. In evidence, the Cabinet Secretary described human trafficking as “a hidden crime that does not respect border controls or national boundaries and it is crucial that we work with the UK and Northern Irish Governments to ensure that our laws take it into account”.2

Enforcement powers in relation to ships

Powers to stop, board, divert and detain a vessel

5. Clause 36 and Schedule 1 of the Bill set out enforcement powers for police officers working in Scotland (both Police Scotland and National Crime Agency officers). The powers proposed would allow officers to stop, board, divert and detain a vessel for the purpose of preventing, detecting or investigating a relevant offence under the Bill. They would have the power to search a ship and to obtain information, seize items and to arrest persons suspected of committing an offence.

6. Paragraph 8 of the LCM states that—

“Detailed provisions within the new clause also set out the requirement that a Scottish constable or enforcement officer will require the consent of the Secretary of State before exercising these powers in relation to a UK ship in foreign waters, or a foreign ship within UK territorial waters”.3

7. When asked about the circumstances in which Scottish police officers would require the consent of the Secretary of State to proceed, Kevin Gibson, from the Scottish Government’s Directorate for Legal Services, advised the Committee that—

“This really relates to the boarding of foreign vessels, all of which is regulated by the United Nations Convention on the Law of the Sea, which requires any circumstance where a foreign vessel is to be boarded to be routed through a central authority in the country whose officers propose to board that vessel. The central authority for the UK is the secretary of state, because, as the cabinet secretary has said, this is a reserved matter”.4

8. His colleague, Keith Main, from the Scottish Government’s Safer Communities Division, added that this provision applies equally to police officers from England, Wales and Northern Ireland.5

Powers to move across jurisdictions in “hot pursuit” situations

9. Clause 38 provides for additional powers, with the intention of giving police officers the powers required to operate effectively against shipping moving across normal limits of jurisdiction in ‘hot pursuit’ situations. Thus, for example, giving enforcement powers to Scottish officers pursuing a ship in English waters, and to English officers pursuing a ship into Scottish waters.

10. The Cabinet Secretary assured the Committee that the provision of these additional powers across the UK will give Police Scotland and their counterparts in other parts of the UK the same legal authority and powers to pursue vessels6.

11. The Scottish Government considers that, whilst police officers currently have a range of relevant powers, it, in discussion with the other UK administrations, has concluded that the powers are not sufficient for the purpose of tackling human trafficking.

Recommendation

12. The Committee considers that the Bill’s provisions in relation to police powers to pursue, board and detain ships at sea for the purpose of investigating slavery and human trafficking offences, along with the provisions on “hot pursuit” situations are sensible and appropriate.

Establishment of independent Anti-Slavery Commissioner

Overview

13. The Bill provides for establishment of a UK-wide independent Anti-Slavery Commissioner. It seeks to confer functions on the Commissioner relating to devolved matters. It also alters the executive competence of Scottish Ministers, by giving them regulation-making powers in this area.

14. The general functions of the Commissioner, which are set out in Clause 41, are to encourage good practice in the prevention, detection, investigation and prosecution of slavery and human trafficking offences and the identification of victims of those offences. The Bill would allow the Scottish Ministers to commission Scotland-specific reports, which would be laid before the Scottish Parliament.

15. Clause 42 provides for the Commissioner to prepare a strategic plan. Before approving that strategic plan, the Secretary of State would have to consult Scottish Ministers. The Commissioner would also be required to publish, and submit to Scottish Ministers, an annual report, which would be laid before the Scottish Parliament.

16. Clause 43 provides for Scottish Ministers to specify in regulations various public authorities which will be subject to a duty to cooperate with the Commissioner. The Regulations would be subject to negative procedure.

17. Paragraph 22 of the LCM states that “in general, the main delivery partners have been supportive of the Scottish Government’s position [on creation of a UK Commissioner,] but it is expected that there will be calls for a specific Scottish Commissioner”.7 However, paragraph 19 states that “human trafficking does not respect national boundaries [and that] having one UK-wide Commissioner will provide consistency across the board and hold each jurisdiction to account on the same basis”.8

The role of the Commissioner in Scotland

18. The Committee received written evidence from the Scottish Refugee Council (SRC). The SRC believes that the Bill should provide adequate safeguards to ensure that Scottish interests are reflected in the work of the Commissioner in respect of Scotland. The SRC’s submission argues that the Cabinet Secretary for Justice should seek to include an enabling power in the Bill for Scottish Ministers to appoint, or have the power to consent to, a Commissioner for Scotland within the Independent Anti-Slavery Commission, analogous to the Scotland Commissioner within the Equality and Human Rights Commission.9

19. When asked whether there was scope to create a Scottish commissioner, the Cabinet Secretary advised that this had been considered but that it is difficult to quantify exactly how many cases there are in Scotland10 He stated that—

“The view was that it might not be advantageous to have a commissioner who would deal with what may be a relatively small number of cases, whereas it might be useful to have a commissioner who would deal with a much larger number of cases, gain greater experience and learn about good practice in other parts of the UK”.11

20. Nevertheless he indicated that the Scottish Government had specifically considered the UK Commissioner’s engagement with Scottish Ministers and their role in Scotland, and made clear that—

“Although the commissioner will operate on a UK-wide basis, they will have a specific Scottish aspect, which Scottish ministers will have a direct role in shaping. We wanted to have someone who could draw on wider experience to feed into our processes and improve the work that we are doing to tackle human trafficking and exploitation”.12

Recommendation

21. The Committee notes that the LCM seeks to provide consistency across the UK. However, the Committee welcomes the Cabinet Secretary’s comments that Scottish Ministers will have a direct role in shaping the Scottish aspects of the Commissioner’s work.

Review of the National Referral Mechanism for victims of human trafficking

22. The National Referral Mechanism (NRM) is the process by which people who may have been trafficked are identified, referred, assessed and supported by the UK Government. The process was set up in 2009 following the signing of the Council of Europe Convention on Action against Trafficking in Human Beings (2005).13 The Home Secretary commissioned a review of the NRM in April 2014 which was published in November 201414.

23. During evidence, the Scottish Government was asked to comment on the implications of this Review and how it relates to the LCM. Neil Rennick, the Scottish Government’s Acting Director, Justice, indicated that officials were in discussions about the implications of the review and timings of the approach it is to propose. He stated that the Home Secretary is keen to take forward a “number of pilots” to test how the approach proposed by the NRM review might operate in practice, but that early indications are that the timescales for those pilots will extend beyond the Modern Slavery Bill timescale.15 He added that—

“We are not expecting anything arising from the NRM review to impact on that bill or, therefore, on the LCM. Clearly, we will work closely with the Home Office about the implications of the NRM review because … identifying victims is crucial to this whole area”.16

24. The Committee notes that the Scottish Government does not expect anything arising from the NRM review to impact on the Modern Slavery Bill and related LCM, but that it is working closely with the Home Office on any potential implications. The Committee asks to be advised of any pertinent issues arising.

HUMAN TRAFFICKING AND EXPLOITATION (SCOTLAND) BILL

Background

25. On 17 March 2014, the Scottish Government announced that it would introduce a human trafficking bill during this parliamentary session. The Bill was introduced in the Scottish Parliament on 11 December 2014 and aims to—

  • clarify and strengthen the law against traffickers and those who exploit individuals;
  • introduce new measures to disrupt and prevent trafficking and those who exploit others;
  • ensure the rights of trafficked victims to access support and assistance;
  • place a duty on the Lord Advocate to publish guidance about the prosecution of credible trafficked and exploitation victims who have committed offences;
  • ensure a strategic, cross-agency approach to tackling trafficking and exploitation.17

26. Commenting on the relationship between the UK Modern Slavery Bill and the Human Trafficking and Exploitation (Scotland) Bill, the Cabinet Secretary advised that the Scottish Government Bill goes further than the UK Bill in relation to protection and assistance for survivors, but that—

“We should learn from each other. The UK Government is taking a particular approach. Our view is that the victims of these crimes should get the right type of support and assistance. Our bill puts victims at the very heart of the process. This is not a national strategy that we can choose whether to implement; it is a requirement in the bill to embed such provision in practice in Scotland”.18

27. The Committee notes the Cabinet Secretary’s comments that the Human Trafficking and Exploitation (Scotland) Bill goes further than the UK Modern Slavery Bill.

CONCLUSIONS

28. Having taken evidence from the Cabinet Secretary, the Committee is content with the provisions in the Modern Slavery Bill that relate to devolved matters in Scotland. As noted above, the Parliament will examine related issues when scrutinising the Human Trafficking and Exploitation (Scotland) Bill, introduced in the Scottish Parliament on 11 December 2014.

29. The Committee therefore recommends that the Parliament approves the legislative consent motion on the UK Modern Slavery Bill, to be lodged by the Scottish Government.19


Any links to external websites in this report were working correctly at the time of publication. However, the Scottish Parliament cannot accept responsibility for content on external websites.

Footnotes:

1 UK Modern Slavery Bill. Available at: http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0051/15051.pdf.

2 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 24.

3 Legislative Consent Memorandum on the Modern Slavery Bill, p4. Available at:
http://www.scottish.parliament.uk/LegislativeConsentMemoranda/ModernSlaveryBillLCM.pdf.

4 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 28.

5 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 28.

6 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 25.

7 Legislative Consent Memorandum on the Modern Slavery Bill, p4. Available at:
http://www.scottish.parliament.uk/LegislativeConsentMemoranda/ModernSlaveryBillLCM.pdf.

8 Legislative Consent Memorandum on the Modern Slavery Bill, p4.

9 Scottish Refugee Council. Written submission, p3 . Available at:
http://www.scottish.parliament.uk/S4_JusticeCommittee/General%20Documents/Scottish_Refugee_Council_written_submission.pdf.

10 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 25.

11 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Cols 25-26.

12 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 26.

13 Home Office, Review of the National Referral Mechanism for victims of human trafficking, November 2014, p11. Available at:
https://nrm.homeoffice.gov.uk/documents/2014/11/nrm-final-report.pdf.

14 Home Office, Review of the National Referral Mechanism for victims of human trafficking, November 2014, p11.

15 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 27.

16 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 27.

17 Human Trafficking and Exploitation (Scotland) Bill, Policy Memorandum, pp5-6. Available at:
http://www.scottish.parliament.uk/S4_Bills/Human%20Trafficking%20Bill/b57s4-introd-pm.pdf.

18 Scottish Parliament Justice Committee. Official Report, 16 December 2014. Col 26.

19 Legislative Consent Memorandum on the Modern Slavery Bill, p1. Available at:
http://www.scottish.parliament.uk/LegislativeConsentMemoranda/ModernSlaveryBillLCM.pdf.

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