Agenda item 2 is our first evidence-taking session on the Human Trafficking and Exploitation (Scotland) Bill, which, as people will see, will be in round-table format. I should tell the witnesses that the committee split into three groups for some initial informal evidence taking.
I welcome all of our witnesses to the meeting. The purpose of the session is really to allow you to interact in giving evidence, but I ask that you do so through the chair. You should indicate that you wish to contribute with a strong glint in your eye, a wave of your finger or something; we will take a note of your interest and I will let you know where you are in the list. That is how it works. When I call you, your microphone will come on automatically—you will see a wee red light on the cuff at the top; you do not need to push anything. We have a very good recording man, and he will make sure that you are heard.
I ask everyone to introduce themselves and say where they come from. I will go anti-clockwise—and this week I will remember what anti-clockwise means.
I am convener of the Justice Committee and member for Midlothian South, Tweeddale and Lauderdale.
I am deputy convener of the committee and member for Dumfriesshire.
I represent Abolition Scotland.
I am a Central Scotland MSP.
I am from Barnardo’s Scotland.
I am the MSP for North East Fife.
I am from Migrant Help.
I represent Scotland’s Commissioner for Children and Young People.
I am a North East Scotland MSP.
I am from the Scottish guardianship service.
I am a North East Scotland MSP.
I am from the Scottish Refugee Council.
I am a Highlands and Islands MSP.
I am from Soroptomist International.
I am a North East Scotland MSP.
I am from Community Safety Glasgow’s trafficking awareness-raising alliance—or TARA—service.
I am a Mid Scotland and Fife MSP.
I am from Victim Support Scotland.
Did you see all the little red lights coming on? That was a good little rehearsal.
We have before us the bill, and today’s evidence will assist us in working out what is good, bad and indifferent about it. Does someone want to kick off with a comment? By the way, I thank everyone for their written submissions.
Barnardo’s Scotland welcomes the bill, and we were glad of the visit from Justice Committee members. However, we believe that some areas of the bill need to be strengthened. For example, we would like a child to be defined in the bill as “any person who is under the age of 18 years”; we want a section on presumption of age; and we would like clarity on the provision for trafficked children, particularly what the provision should be for 16 and 17-year-olds.
We also want the provision of independent guardians for children who have been or who are suspected of having been trafficked to be put on a statutory footing, and we would like provision of a statutory defence for children in addition to the Lord Advocate’s guidelines on the presumption of non-prosecution. Finally, we would like an additional statutory aggravation to recognise the vulnerability of child victims of trafficking and the seriousness of the offence of trafficking when it is against a child, and for that to be considered at the sentencing stage.
I am happy to discuss any of those issues with the committee.
Does anyone else want to come in on any of those issues?
We would raise three issues. The first is the need to look at criminalising demand for the purchase of sex, which has been done in Sweden and Norway, and the Northern Irish Assembly has just passed a law to do that as well. In those jurisdictions that have done that, it has been shown to reduce demand for paid-for sex and human trafficking. Secondly, like Barnardo’s, we would like child-trafficking guardians to have a statutory basis, rather than just a policy or voluntary basis. Thirdly, we need to improve survivor services. In particular, we perhaps need to extend the period of time that is available, from 45 days to 90 days, and ensure that there is adequate provision for survivors.
Like Barnardo’s Scotland, we broadly welcome the introduction of the bill. We are keen to ensure that the bill embeds a rights-based approach in policy and practice and that the bill fully recognises the particular vulnerability of children who have been trafficked. I highlight articles 35 and 39 of the United Nations Convention on the Rights of the Child, which talk about preventing
“the abduction of, the sale of or traffic in children”
and promoting
“physical and psychological recovery and social reintegration”
of child victims. We see that happening through having a clear definition in the bill of a child as someone who is under 18 years of age, consolidation of existing legislation relating to children, a clause on the best interests of the child, provision for independent guardians and clarity on the provision for 16 and 17-year-olds, including a presumption of aid. Finally, we would like consideration of a provision on a statutory defence for children who are victims of trafficking.
Thank you for inviting us to speak today. We warmly welcome the bill, as we believe that it is a great opportunity for victims who have been trafficked or exploited to receive the support that they need, how and when they need it. However, we would like to raise a few points.
First, we are concerned about the vulnerability factors in the bill, which are too prescriptive and simplistic and do not take into account all the ways in which a victim can be exploited or vulnerable.
Our second concern is about the non-prosecution of victims. Although we are pleased that the Lord Advocate has guidance on the presumption not to prosecute someone who has committed a crime as a result of their becoming a victim of trafficking, we believe that the Northern Irish and English legislation has stronger provisions in that area. We would like to see a statutory defence in the bill as well as the Lord Advocate’s guidance.
However, the fundamental issue for us is to ensure that adequate and timely support is provided to victims. Although we understand that most of the work will be done through the strategy, which we warmly welcome as well, there is a chance in the bill to ensure that support is provided as soon as possible and as soon as it is needed. We believe strongly that support should not be dependent on the national referral mechanism process, immigration status or anything other than the need of the victim. Specifically, that relates to the timeframe, which Gordon Macdonald talked about, and providing support to victims before they get the chance to decide whether they want to go on with the NRM process or report to authorities.
We welcome the introduction of the bill. We support some of the suggestions that our colleagues have raised, including those on the presumption of aid and the non-prosecution principle.
We would like to see the means element of human trafficking reflected in the bill and we are seeking clarification on that. All the international definitions have three key elements. The act of trafficking is covered by the offence—recruitment, transportation, harbouring and receipt of a person. Then there is the means—how the traffickers do the trafficking, which is through coercion, deception and, in particular, the abuse of a position of vulnerability. We would be really keen to see that reflected in the bill.
We seek clarification in the bill on whether support for victims will depend on entry to the national referral mechanism and on whether support will be available in the period before an adult consents to enter the NRM.
Finally, we support the calls to criminalise the purchase of sex. Our experience over 10 years has clearly evidenced the strong links between the sex industry and trafficking of the women to meet the demand.
For those of you who do not know, Soroptimist International is a worldwide women’s organisation that seeks to improve the lives of women and girls.
By far the majority of victims of trafficking are in fact women and children, and we very much welcome the bill. We would like to see the purchase of sex criminalised, because most trafficking—a large percentage—is about sexual exploitation. We would like that to be stopped because it is about supply and demand, and if we cut the demand, we will cut the supply.
Northern Ireland has criminalised the purchase of sex and one of our fears is that those who want to be involved in that will move across to Scotland unless we have strong robust laws to protect our people.
At Migrant Help, we warmly welcome the bill. We would like to see a long-term strategy and framework around safe repatriation, if victims voluntarily choose to return home. There is currently no strategy and the process is quite ad hoc, so we would like the bill to address that. We would also like it to address data sharing with Police Scotland, and we would like more information on what that could look like. We welcome the concept, but we need a bit more information.
The Scottish Refugee Council warmly welcomes the bill, which marks the culmination of leadership from Scotland’s human rights community, a number of politicians and now the Parliament and Government. It is an important marker on our journey towards tackling slavery.
There is a lot that is good in the legislation. The strategy is very important, because it is about Scotland working together to take responsibility for acting against the crime of trafficking. Trafficking is manifesting in different parts of the country as well as across sectors. In many ways, it is a symptom of how we live in developed Western economies.
The strategy is about getting all the different sectors together to take leadership and to build up knowledge and intelligence on the issue. It is commendable that the Scottish Government has set down a legal duty to report to Parliament on the strategy. We welcome that duty in particular, because the strategy will be the vehicle for the long-term approach that we need if we are going to tackle such a severe crime and human rights violation.
The Scottish Refugee Council works in the international protection world, particularly—but not only—in relation to asylum seekers. We know that part of the experience of people in the asylum process, who are often deeply resilient but are in very vulnerable circumstances, is that they are taken advantage of and subject to exploitation.
For more than 10 years, we have worked with a number of key partners—notably TARA, which is the pioneering service on the issue in Scotland and works with survivors—to help people who have suffered from trafficking and exploitation.
A big frustration for us and many others has been the conflation of trafficking and immigration—
You mentioned that in your written submission.
Action on that is to be welcomed and thankfully is now happening at UK level. We need to decouple those two processes, because trafficking is essentially a crime and a human rights violation; the issues around immigration that sometimes arise are only secondary. We welcome the introduction of dedicated legislation to tackle what is a crime and a human rights violation.
We think that there is a logic to the bill, particularly as regards the very welcome step that the Scottish ministers are taking in placing themselves under a duty to provide support and assistance to survivors. That is a very concrete step in taking control of what happens to survivors. I think that there is also a real logic to the development of a Scotland-based identification process. That gets away from the current process, which is too legalistic and is confined to decision making by organisations that were set up for different purposes—in other words, border control or combating serious and organised crime. We very much welcome the bill’s provisions on survivors, and we would like them to be developed as the bill goes through the parliamentary process with a view to having more of a Scotland-based identification process.
10:15At the other end, we would like more control to be taken in Scotland of enabling survivors to make the fullest possible recovery with due regard to their personal circumstances and/or whether they are assisting with the relevant legal proceedings—criminal proceedings or proceedings related to, for example, compensation. We think that the bill is an extremely important step towards Scotland developing a holistic approach to survivors through identification, assistance and recovery. We very much welcome that, and we hope that it can be worked through as the parliamentary process proceeds.
The non-prosecution and non-penalisation of survivors is a key principle in relation to international law on trafficking. Indeed, it is a key principle in relation to preserving criminal responsibility. We see the issue from first principles. Fundamentally, the provision is about survivor rights—it is nothing to do with immunity from prosecution, and I do not think that anyone is considering it in that way. Secondly, it is integral to criminal procedure in law, because it is integral to the principle of criminal responsibility. We see that as an important way to conceptualise the principle. Thirdly, it is a prerequisite to getting at the people we want to get at—I am talking about organised criminals in particular—because survivors are potential witnesses. They are the ones who will provide lines of inquiry et cetera.
We think that the statutory guidelines are a welcome first step in relation to this crime, but we think that the provisions in the bill need to be strengthened. Our aim is not to get at the independence of the Lord Advocate, which is a key tenet of the Scots system, but to—
So you are not in favour of a statutory defence.
We are in favour of a statutory defence. We do not see it as an either/or situation. We do not see statutory guidelines, which are about prevention, and a statutory defence, which provides an additional safeguard for individuals when the system—for whatever reason—breaks down, as being mutually exclusive; we see them as being part of a holistic approach.
The Law Society of Scotland and the Faculty of Advocates agree with the idea of a statutory defence.
I want to pick up on what you said about the conflation of trafficking and immigration. When Alison McInnes, John Finnie and I were at Barnardo’s, the issue of domestic trafficking, which somehow slips off the agenda, was drawn to our attention. Are you saying that we focus too much on trafficking as being an immigration issue?
That has been one of the symptoms of the inappropriate conflation of what is a human rights abuse with immigration. Immigration is a secondary consideration. The question that people need to direct their minds to is whether the person has suffered a human rights violation as a result of what we are calling trafficked exploitation and what should be done to assist that individual to recover.
At the moment, we have organisations that are conflicted. That is particularly the case for the UK Border Agency.
I want to reiterate some of the points that have been made. I am here representing Aberlour and the Scottish guardianship service. I am responsible for delivering the day-to-day work with child victims of trafficking, and I am a guardian to some child victims of trafficking.
It is important to raise some of the operational issues—
You are talking about children who are trafficked from outwith the European Union.
Yes. All the children we work with have an immigration element to their case.
It is extremely important that the definition of what a child is is more explicit, because that is an issue that comes up time and again, particularly for 16 and 17-year-olds. There needs to be a duty to refer children to the Scottish guardianship service to give guardians a more statutory footing. At the moment, in practice, we are still very much just an invited party at meetings and in respect of information sharing, which impedes our ability to do our job of supporting victims of trafficking. It is really important to have a duty to refer trafficked children to a guardian.
I agree with the points that have been made about the creation of a statutory defence as an additional safeguard, because I have seen many children being put through the criminal justice process and criminalised for activities that they had been forced to undertake.
The bill needs to be more explicit about what support should be provided to trafficked children under the Children (Scotland) Act 1995. We cover the whole of Scotland and have found that there is a lot of disparity in the support for trafficked children, who get treated differently in different local authority areas.
Can you give an example of that, please?
Until recently, it has taken a lot of advocacy from us and other agencies to address the situation of 16 and 17-year-old children who arrive here. They will often be accommodated under the provisions of section 22 of the Children (Scotland) Act 1995 as opposed to those in section 25, which would treat them as looked-after and accommodated children. Under section 22, they do not receive the same level of care in terms of access to the section 29 provisions of the 1995 act on leaving care services and support. We have often seen children discharged from care without support when they are 18.
The current situation for children who are treated under section 22 of the 1995 act causes a lot of problems in terms of the lack of pathways planning. The bill needs to be more explicit about support for trafficked children. At the moment, the level of support that they get depends on what local authority they present in, because different local authorities interpret the law differently. That has been a point of advocacy for the guardians for a number of years.
I have Alison McInnes and Christian Allard on my list to ask questions—I have noticed you—but I will take Lisa Gamble first.
I take the opportunity to echo what the Scottish guardianship service said about the bill. We want to see provision for 16 and 17-year-olds clarified in the bill by including in it the relevant provisions from the 1995 act. We want to see a provision in the bill that reads something like the example in our written submission, which states that
“where a child is suspected to be a victim of trafficking and who is 16, but under 18 and:
- appears to require accommodation;
- has no one with parental responsibility for him, is lost or abandoned, or there is no one who can provide suitable care for the child; and,
- the child wishes to be accommodated; then,
- the local authority must provide such accommodation under Section 25 of 1995 Act.”
I reiterate that the children’s commissioner is fully supportive of having clarity in the bill on provision for 16 and 17-year-olds. We are aware of the issue and it has been brought to the commissioner’s attention. We are certainly very supportive of ensuring that section 25 of the 1995 act is used. We know that that point has been highlighted by Police Scotland, the Legal Services Agency and others in their evidence to the committee.
Thank you. Gil Paterson has just arrived—thanks very much, Gil, for coming back from the Public Petitions Committee meeting. If no more witnesses wish to speak for the time being, I will take Alison McInnes.
Obviously and quite rightly, from the outset of the meeting there has been a strong focus on children and lack of provision for them in the bill as introduced. Of course, determining a child’s age can be very difficult without proper documentation. Both Lisa Gamble and Chloe Swift talked about presumption of age. Can you elaborate on what you are looking for in that regard?
The bill’s definition of a child is someone under 18, but a child victim of trafficking is often not clear when they come into the country what their age is. We think that the bill therefore needs a provision on presumption of age that would state, as we outlined in our written submission, that
“where a person who is suspected of being a victim of trafficking and there is reason to believe they may be under 18, they should be treated as a child ... the Bill should specify that until an age assessment of that person’s age has been carried out by a local authority, a public authority must assume that a person is younger than 18, and a child.”
A similar provision is in the Modern Slavery Bill and the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015.
I was going to ask whether the presumption of age operates somewhere else, even in common law—apart from in statute.
I am not sure about common law, but it certainly operates in the England and Wales and Northern Ireland legislation on trafficking.
We are certainly very supportive of a reference to a presumption of age. We have been very clear in our evidence about needing a definition of a child as under 18. We note that, in the child impact assessment produced by the Scottish Government, there is a specific line about individuals of an unknown age receiving services. We think that it is particularly important that systems are in place to ensure that child victims can be provided with services when they are defined as under 18 years of age until an age assessment has concluded. We consider that to be particularly important in cases where there might be a lengthy wait for an age assessment. As Lisa Gamble said, it is in line with the requirement in the EU directive on trafficking and part 5 of the Modern Slavery Bill.
We are saying that we understand that there is an obligation under the Council of Europe convention and the EU directive. As somebody who manages a service for adult victims, I know that, over the years, we have had women referred to us who have been assessed as older than they state, which creates additional complexities for us to ensure that we are meeting our duty of care to young people who we agree are under 18 but who, until there is a formal age assessment and further agreement is reached, have to access adult services.
In many places we do not have registered birth certificates and so on, so there is no documentation.
Exactly.
I reiterate that we support adding the presumption of age to the bill and we support the definition of a child. We are concerned that there would be some discrepancies or ambiguities around support provision for 16 and 17-year-olds. We would not want there to be any gaps in service provision for any reason. We echo what has been said.
I want to challenge the witnesses on three points. We heard a lot this morning about being more explicit and trying to give more detail in the bill. I read in the submissions about the bill being gender blind. There is an issue about nationality of course and about people being trafficked from abroad. It would be helpful to hear your views on how specific the bill should be. We visited TARA last week. Traffickers are very clever at finding loopholes. Would it be helpful not to be so specific, especially in the sentencing part? On gender and prostitution, we have to make sure that males are protected as well. On age, we have to make sure that there is a statutory defence for adults as well. On nationality, we have a big problem because how much can you protect EU citizens—even UK nationals—who have been trafficked at one point or another?
Under that umbrella, you are saying that, if we are too specific, we could get it wrong, by excluding people.
To pick up the point around gender services, we know that globally and across Europe it is predominantly women and children who are exploited for all forms of human trafficking. We have obligations under the Council of Europe convention and the EU directive, which recognise the gendered nature of this crime and recognise that gender-specific services should be provided. Using the language “gender-specific” does not preclude men and boys from accessing support that is pertinent to their particular needs. However, particularly for women who have survived quite extreme sexual violence, gendered services are an absolute requirement.
10:30
I echo Bronagh Andrew’s response. One of the virtues of the bill is its inclusivity. It brings into being an inclusive definition of trafficking that homes in on exploitation and works back from that to identify who the person who is being exploited is, and what their characteristics are.
As Bronagh Andrew rightly said, international law has recognised that women and children, in particular girls, are especially vulnerable to being taken advantage of and exploited. The next level up from that inclusive definition is to recognise that vulnerability in terms of key points around the identification of indicators of trafficking. That goes right through to the criminal justice system having a low opinion of individuals who exploit children, taking into account aggravating factors in the sentences that are applied. The European Union human trafficking directive and the Council of Europe convention recognise that explicitly.
I completely understand the rationale behind the question and the desire to ensure that we do not have unintended consequences from limiting protections, but what matters is that we have an inclusive definition of the crime and that we recognise the particular vulnerabilities of particular groups of people through trafficking indicators that home in on that. It would be interesting to look into that issue of trafficking indicators: does the bill deal adequately with trafficking indicators in terms of vulnerability, particularly for gender and age? That also involves how the criminal justice system deals with the matter.
I am trying to get this trafficking indicators thing into my head. Is that not dealt with under section 1, on the definition?
Trafficking indicators involve characteristics such as age—where a child is concerned—gender and the control methods that are applied to an individual, such as debt bondage or threats to one’s family and loved ones. It is more accurate to say that “trafficking indicators” is more of a policy term, which is used—
Would that not be more useful for the police and the Lord Advocate, rather than for the text of a bill?
That is a legitimate debate to have: do we want to present trafficking indicators in the bill, or do we want to have them in guidance? We certainly want to have them in guidance. The question is legitimate.
The reason why I raised that point was as an example in response to Christian Allard’s point on the unintended consequences of being too specific in the legislation. I do not think that it is a problem, so long as we have a very inclusive definition of the crime.
I have Nicola Merrin, Lisa Gamble, Chloe Swift and Gordon Macdonald wishing to contribute on the question of being too specific in the bill. So that we can get through everything—this is your one shot—I ask you just to say, “I support that view,” if you agree. That would be helpful. I know that that curtails the discussion a little bit, but we want to pick up on other issues in the bill and we want to get them absolutely right from the point of view of people whom you meet who have been abused and who have to use services.
Just to clarify, is this to make the vulnerabilities more vague?
Yes.
Yes, we would support that. We support TARA and the provisions on the abuse of a position of vulnerability.
On the issue of being specific about children, the bill currently does not recognise the vulnerability or needs of children at all. I just want to make that clear.
We have already noted that.
I would make the same point. I wish to clarify that the vulnerabilities of children are not addressed in the bill. Children have particular vulnerabilities, as Graham O’Neill has identified.
That is where the position of abuse of vulnerability comes into its own right. The EU directive makes the following definition:
“A position of vulnerability means a situation in which the person concerned has no real or acceptable alternative but to submit to the abuse involved.”
That recognises that vulnerability is multifaceted, and that a whole lot of different issues impact to make an individual vulnerable to the crime.
I draw attention to something in our written evidence. The European Parliament passed a resolution last year noting that 96 per cent of identified and presumed victims are either women or underage girls. Furthermore, 62 per cent are trafficked for sexual exploitation. That shows the gendered nature of the crime.
Could you elaborate a little on the provision in section 1, particularly the use of the word “travel”, so that we can see whether there are some concerns about that or any other aspects of that section?
We share the concern about the use of the word “travel”, because it ties in with the idea of immigration, as we heard in the evidence from Barnardo’s.
Community Safety Glasgow was concerned about the use of the word “travel”, which implies international movement. Focusing overtly on that word leaves it unclear whether, in British cases of sexual exploitation involving children or adults, people being moved from one part of a city to another would constitute travel. Part of our concern about the offence as defined is that it does not reflect the means element, and that the word “travel” focuses very much on movement, which skews our understanding.
In her submission for a member’s bill, Jenny Marra recognised the call for a definition of human trafficking in Scots law. My understanding is that the offence as it stands would act as the definition. As such, it does not capture that important means element of the act of human trafficking.
I am rattling around looking for that EU directive. Can anybody help us out with that? There was a better definition in that directive, I felt. It is in one of the submissions. I will let someone else look for it. In the meantime, let us hear from Nicola Merrin.
Although the means element is in the part of the bill that deals with exploitation—I think that it is section 3(8)—it is not within the full definition. There is no element of giving or receiving payments or benefits to achieve the consent of a person; my understanding is that that is not there at all. We would reiterate TARA’s point about the definition.
It is the bit about travel that I am looking for. Jayne Baxter has handed me the directives, but I am looking for the one that deals with the point about taking the emphasis away from travel. It is still important, but it is not the be-all and end-all, and that is our concern.
It is about that definition of travel. Suppose that a woman who has been exploited and who meets all the tests was moved from Pollokshaws to Possilpark in Glasgow. Would the offence as it stands capture that? Would that woman meet the test for travel?
We know that trafficking is a process that involves several stages. My concern is that some perpetrators might not be caught by the offence, because somebody is responsible for recruitment, and somebody else is responsible for transportation, and somebody else in the country of origin is responsible for the means element, the coercion and the abuse. The individual could then be sold on to somebody who is exploiting, and it is not clear whether the offence would capture all the perpetrators involved in the person’s journey of being trafficked and exploited.
There is a lot about travel in that section. Section 1(1)(b) refers to a person who
“arranges or facilitates that travel with a view to the other person being exploited.”
Section 1(2) states:
“It is irrelevant whether the other person consents to any part of the arrangement or facilitation of the travel.”
There is huge emphasis on that. We understand that it is important, but there may be another way of helping us to do it.
You mentioned the irrelevance of consent. As others have pointed out, it relates only to the travel element, but it should relate to all elements of the definition—the means and the exploitation as well.
We will get the quotation from the directive at some point. We are still rummaging around for it.
I want to pick up on Bronagh Andrew’s point about the importance of ensuring that the bill adequately covers internal trafficking. One of the key areas for Barnardo’s is child sexual exploitation. We run services for child sexual exploitation in Scotland, and you came to visit safer choices. In the past year, we have dealt with two cases that had involved international trafficking from outwith the UK, where the children had come via the north-east of England, but in 10 cases there had been internal trafficking, with children being trafficked across Scotland, whether that was from Glasgow to Aberdeen or to Fife. It is important to be mindful of that as the bill proceeds.
Yes. I think that the word “travel” is limiting us.
Several of the written submissions refer to the need to decriminalise the sale of sex and criminalise the purchase of sex, and there is a suggestion that that could be part of the bill. Would that be better dealt with outwith the bill, as a separate piece of legislation of the type that Rhoda Grant suggested, or could it be covered by the long title under the phrase
“provision to reduce activity related to offences”?
It is included in the Northern Ireland human trafficking act, so I am sure that it could be covered in the bill if there is the political will for that. The issue is whether there is the political will to consider it as part of the bill. We encourage the committee to consider supporting an amendment at stage 2 in that area. If there is a feeling that more information is needed on the issue, a separate piece of legislation could be looked at, but we have been round the houses on it. We have had a proposal for a bill before. There is no reason why it could not be included in the Human Trafficking and Exploitation (Scotland) Bill.
If we proceeded with an amendment at stage 2, there would have to be substantial further evidence, because it would expand the scope of the bill to catch all purchase of sex, taking it beyond human trafficking. Do you agree that we would require to take further evidence?
It would cover all purchase of sex, but the reason for it would primarily be to deal with the problem of human trafficking.
Yes, but I suspect that, because it would be all-encompassing, substantial evidence would have to be taken. I am not ruling it out. I am just making the point that that might be the case. Do you concur?
Yes. The committee could, of course, consider appointing a rapporteur to go away and look at the issue and come back with some information.
We will leave the committee to think about that, but we might not want to do that on such a substantial matter.
Who has the definition that I have been looking for? Lisa Gamble does—that is excellent
The focus is more on control. It is taken from article 2 of the EU trafficking directive, which states:
“The recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud”—
I kind of like that definition better. I saw it last night, but I could not find it this morning. I think that the control element would take in domestic trafficking across parts of the UK.
I want to comment on the point that Gordon Macdonald raised. The Council of Europe convention and the EU directive provide for member states to take actions to prevent human trafficking. If we are applying a supply-and-demand model, I think that the links between the sex industry and women being trafficked to meet demands are clear, but within articles under both the directive and the convention, member states can consider the criminalisation of the use of a victim of trafficking. We need to consider that.
I am not disputing the point about supply and demand. I am just looking at the matter from the point of view of the evidence that is required.
Gordon Macdonald mentioned the Northern Ireland human trafficking bill. Was the provision in that bill there from the beginning—from the first draft?
Yes. There was some debate about the provision in Northern Ireland, but when it came down to it, the vast bulk of the parties supported it, including Sinn Féin.
Thank you for that. Jenny Marra is next, to be followed by John Finnie and Roderick Campbell. I should also say that Gil Paterson has joined us; it was a long time ago, but I forgot to mention it.
I want to ask three specific questions, if the convener will allow me that. The first goes back to the definition of a child. I want to ask a legal question on that. We have been told this morning that we do not have the presumption of age. Can the witnesses say whether we would, if the bill was to proceed without that, breach the Council of Europe recommendations or the EU directive?
Just put your three questions, and then we can let the witnesses discuss them.
Okay.
My second question is the same as the first but relates to the non-prosecution element of the bill. If we are to proceed, as the bill states, just with the Lord Advocate’s guidelines, will we fall short of the EU directive on or the Council of Europe recommendations on protection of victims?
Thirdly, would we be better with a rewritten definition of the crime of trafficking that is more robust and all-encompassing and that would therefore include the means, too?
10:45
I think that some of those questions have been glancingly touched on. Witnesses can address all three, if they like—or not, as the case may be.
I know that the questions have been touched on, but I am looking for full legal clarification on them.
We are going back to them, Jenny.
I am not sure that I can give you legal counsel, but article 13 of the EU directive states clearly that
“Member States shall ensure that, where the age of a person subject to trafficking in human beings is uncertain and there are reasons to believe that the person is a child, that person is presumed to be a child in order to receive immediate access to assistance, support and protection”.
Similarly, article 8 talks about
“Non-prosecution or non-application of penalties to the victim”.
The EU directive is legally binding, so it would be down to the lawyers to interpret exactly what the articles mean. Our perspective is that the presumption of age should be included in the bill.
Does anyone else want to comment?
I echo what Chloe Swift said about the presumption of age, particularly in relation to the direct effect of the EU human trafficking directive. I do not know whether omission in the bill of the presumption of age is tenable, given that it is a clear requirement in the EU human trafficking directive, as well as the Council of Europe convention. It is something that I—and, I am sure, many others—would hope and expect would be resolved in the bill.
Can I clarify that, Graham? Are you saying that, given the omission of the presumption of age, the bill falls short of the EU directive?
If there is no other statutory provision in Scotland for that, that is a legitimate question. I am stopping short of absolutely clarifying that, but what I am saying is that if there is no other statutory provision for survivors of trafficking—that is, children under 18—for presumption of age, then the answer is yes.
The same question was asked about prosecution and statutory defence. If that is not in the bill, is that a breach of the EU directive? Who wants to have a bash?
I do not know whether that would be a breach of the directive because the language is quite careful; it is along the lines that member states “can consider” or “are entitled to consider”. I do not know that it is a breach of our European obligations not to legislate for that, but it is something that we need to legislate for.
I do not want to pre-empt the committee but I suspect that, in terms of the statutory defence, the committee would be quite sympathetic to it. We should bear it in mind that the Faculty of Advocates and the Law Society of Scotland have also come out in favour of that, so we are already pushing at an open door.
As Bronagh Andrew said, international law says something about putting in place provisions for when this happens. The Lord Advocate’s guidance would do that, but our position is that that is already in place. There are stronger provisions in other legislation. We would like to see both.
We go back to the definition of the crime of trafficking, which we have glanced at a little.
I have one other point about the definition. The definition in the bill does not include forced begging or criminal activities, which are included in the EU directive.
There is a catch-all, is there not?
There may well be a catch-all. However, the bill talks about the provision of services and the acquisition of benefits but not about forced begging and criminal activities, which are specifically mentioned in the EU directive.
I am wondering whether there is a catch-all. There is usually some way round it, such as “and other, connected activities”. Is there anything like that?
As Gordon Macdonald indicated, section 3(7) says:
“The person is subjected to force, threats or deception designed to induce the person—
(a) to provide services”
or to provide someone else with benefits. That would cover—
It might be useful to have a catch-all.
We would like forced begging, forced marriage and forced criminal activity to be specified.
With regard to definitions, article 2 of the EU directive ensures that the “means” that are set out in the second limb of the directive’s definition reflect children’s particular vulnerabilities, and makes it clear that, where a child is a victim of trafficking, no possible consent to exploitation should ever be considered legally valid. That is just a point of clarification if we are moving away from the emphasis on travel.
We have heard about the hierarchy of interests with regard to immigration authorities and criminal justice authorities, and I certainly favour the rights-based approach for individuals that Chloe Swift has articulated.
I have a specific question for Graham O’Neill and Christopher Gaul. The Scottish Refugee Council submission talks about some of the powers that might come out of the work of the Smith commission, including significantly
“the right to grant trafficking survivors temporary leave to remain for specified purposes”.
Will the bill remove some of the tensions between the different layers of interest? To what extent will the additional powers for Scottish ministers help? Everyone acknowledges that this is an international issue that requires co-operation. Will you comment on the proposal?
That is a very good question. We have been frustrated by the conflation of immigration and trafficking and—as I said at the outset—we welcome the fact that Scotland is taking responsibility in legislation for survivor assistance and care. We think that a precondition for that is survivor identification, and that a logical conclusion of Scotland’s more holistic approach to what happens to survivors is that, because Scottish ministers are taking responsibility for identification, assistance and support, they should also have the particular powers to enable survivors to have the fullest possible recovery. After all, they, Scottish institutions and Scottish third sector organisations are closest to the survivor, know what the survivor needs and have the survivor’s trust and confidence, so it would be a real shame—indeed, it would be quite perverse—if after implementation of the bill the Home Office were still able to come in and remove that person from the country. We want to avoid that, because it does not constitute a survivor-centred approach. Instead, it means that immigration in practice intrudes in a concrete way on an individual’s ability to survive, and we do not think that such an approach is in the interests of anyone, including the UK authorities.
The logical conclusion of taking a fully survivor-centred approach to this crime and human rights violation is what is contained in the suggestion in the Smith commission report; to their credit, the parties agreed that the UK and Scottish Governments should give additional consideration to the question whether through executive devolution Scottish ministers should, instead of some policy arrangement, have the actual power to grant trafficking survivors temporary leave to remain for specified purposes. That would comply with international obligations to enable such individuals to recover fully and would, where applicable, allow them to be witnesses in criminal proceedings.
As you would hope and expect, we are taking a close interest in the matter and want to work with the Scottish and UK Governments to encourage that process. Given that the bill is going through Parliament, we invite, as we say in our submission, the committee to take an interest in the matter. We would be very happy to work with you on developing it further.
Convener—
Wait a minute, Mr Gaul. I have Nicola Merrin, Bronagh Andrew and then you. I have a list.
I imagine that Mr Gaul was trying to respond to my question.
I am sorry, John. Did you name Mr Gaul?
Yes.
I missed that.
I agree with Graham O’Neill and the Scottish Refugee Council.
On-going police investigations are severely hampered when Home Office involvement removes someone from the country. That ties in with our comments on what is needed. If the survivor chooses to go home—there are instances in which they are desperate to go home as quickly as possible—that needs to happen of their own volition. It needs to be because they wish to do so, and there needs to be support and a framework for on-going support, regardless of whether they are in this country or not. That will also act as a bridge for the police investigations, should the police wish to remain in contact with a person who has returned home.
The lack of a framework in general is quite startling. We have counted at least 10 different mechanisms in different projects or programmes through which people return home. That is not helpful to them, us or Police Scotland.
Is the problem the national referral mechanism? I think that it is under review, but it is UK wide. Could we do with something that draws together everything in Scotland, but not in a silo? Obviously, there should be sharing, because people move about. Is the national referral mechanism part of the problem?
Jeremy Oppenheim recently produced his report on the national referral mechanism. He has proposed that there be a panel rather than responsibility lying either with the United Kingdom Human Trafficking Centre or with UK Visas and Immigration. The focus of that panel would be—as Graham O'Neill mentioned—very different because it would take a victim-centred approach. It would not be about immigration violation. I think that the Human Trafficking Foundation, Barnardo’s in England and ECPAT UK recently produced worrying correspondence from UKVI that had rejected a person’s application as a victim of human trafficking. The culture in which people operate and the lens through which they see dictate whether they think that somebody has had their human rights violated and is a victim.
Yes, but as I read it, the bill’s aim is to ensure that people receive the appropriate protection and support. A lot of that support will be very local in Scotland, from councils and so on. We heard from Catriona MacSween the different interpretations of what is to be provided. Would it be more helpful, if we are looking for support very early before people get into the criminal justice system, speak to the police or whatever, to have provision here in Scotland that is better, that is co-ordinated and that is, as far as possible, universal?
Yes, I agree.
How would you do that? The national referral mechanism, which has been mentioned, seems lumpy—that is a word of mine, but you know what I mean by it. Nicola Merrin, you tell me about that.
Oh, dear.
Well then, don’t. [Laughter.]
I will; do not worry.
It has been raised time and again in various reports that there are problems with the national referral mechanism. Obviously, it is a reserved UK issue; it is being reviewed at the moment. In the bill and the strategy, we can ensure that support is provided before, and is separate from, the NRM process.
That would to some extent duplicate the process.
No—it would be tied in. The issue just now for us is the funding. A person is a suspected victim of trafficking until we decide that they are a victim of trafficking. I think that there is flexibility at the moment—TARA will explain that—but we are looking for more than flexibility. We are looking for the provision of support before the person decides that they may wish—
I understand that, but what I am getting at is where we have as far as possible a comprehensive note of people who have been identified or are suspected of being victims of trafficking, and there is support in place, we should ensure that, in practical terms, people get the same support throughout Scotland and that we know who and where they are. There is all the talk about strategies and so on. I do not know whether that is happening now. That is what I am asking. I am looking at you, Bronagh Andrew. [Laughter.]
Consideration of the national referral mechanism as it stands, as it has been reviewed and the recommendations made to take it forward would be an evidence session in its own right, to be honest.
For a long time, TARA has been very supportive of a Scottish national referral mechanism. We gave evidence on that to the Equal Opportunities Committee back in 2010. The system as it stands—bear in mind that there have been recommendations for significant change—is too focused on immigration and credibility, it does not take a victim-centred approach as such, and it is an interpretation of what the Organization for Security and Co-operation in Europe has suggested a national referral mechanism should be.
The NRM should be about identification and protection, but the system has become one that is about testing credibility, about data collection and about a lot of other things. It is not about the individual who has potentially been trafficked and building a wall of support and protection around them so that they feel safe and able to support investigations and prosecutions.
I can provide you with further information about the national referral mechanism.
11:00
You referred to the Equal Opportunities Committee. We will get the Scottish Parliament information centre to provide us with material on that.
Support provisions for people who are under 18 should be provided in the child protection system and the child should get access to a full assessment for future support, in line with the getting it right for every child principles. Our concern about the NRM is that decisions are probably best made by a person who knows the child. If not enough information goes into an NRM form, people are making decisions that are not based on the full information about the child, which will have quite a big impact on the outcomes for the child. Perhaps Catriona MacSween could pick up on the NRM and children.
I agree. The NRM does not offer children much, to be honest. Children do not consent to enter the process. There are often multi-agency meetings of professionals who know the child, are experienced in doing assessments and who are saying that they think that there are enough indicators to suggest that a child has been trafficked, but for our group of children, cases are sent to UK Visas and Immigration to make that decision. Sometimes the decision that comes back says that it does not think that the child has been trafficked—someone in the Home Office will say that the child has not been trafficked when we have many professionals who are saying that they think that the child has been trafficked. That has a detrimental effect because local authorities sometimes then remove the safeguarding measures that are in place for that child.
The NRM for a child is more about data collection; it does not offer much. I do not think that any one of the young people whom I have worked with has received leave to remain from having been identified as a trafficking victim. Decisions would be better made in child protection teams.
The NRM was set up, reactively, by the UK Government in response to its obligations under the Council of Europe Convention on Action against Trafficking in Human Beings; it was not set up with the needs of trafficked individuals as the primary interest. I realise that that is quite a strange thing to say, but numerous reports have found that not only does the NRM not deliver for adults but, in particular, it does not deliver for children—indeed, there is nothing for children in it.
Jeremy Oppenheim’s review for the Home Secretary, which was published last November, made some very good points, although other bits need to be worked through. The good points include the principle that the people who are closest to the individual—in Scotland, those would be your professionals, statutory bodies and bodies such as TARA—should be the ones who make decisions. There should be a multi-agency approach, based on the application of child protection assessment principles. Those should also be applied to adults, so that there is a shared decision about what is best for the individual, with the individual involved in the decision, rather than a form being filled in and returned to the UK human trafficking centre and the Home Office, after which people do not really hear about it.
The NRM has no discernable impact on an individual’s life other than the most serious one, which is the decision whether to accept that someone has been trafficked.
In practice, the system has not been set up with the individual’s needs in mind, and the bill gives us a real opportunity to think about how to design a better system. Of course, one wants the system to be consistent with that in the rest of the UK, because of the international crime dimension, but nonetheless one should never compromise on it. We should ensure that we have multi-agency, assessment-based decision making, through which those who know the survivor best are able to put in place the assistance package that will enable them to recover as much as possible. Understandably, the Government did not put that in the bill, because its introduction coincided with the publication of Jeremy Oppenheim’s review. However, that review has been published and the Home Secretary has accepted its recommendations in principle. Discussions are going on between UK Government and Scottish Government officials and ministers about how the identification question could be answered through the bill and other legislation. The committee will want to take an interest in that, particularly when it speaks to the minister.
We will.
I call Chloe Swift next, then Bronagh Andrew and then Christopher Gaul.
Some of the complexities—
Rod Campbell wants in. I will let him in immediately after Christopher Gaul, no matter who puts their finger in the air—I am talking about Gil Paterson.
Shall I continue?
Yes, please. I have to keep them happy.
The complexities that have just been described around the table are one of the best arguments for putting the guardianship service on a statutory footing. The service can help children navigate the challenges and complexities of the NRM processes, some of the complex child protection procedures and, in some cases, asylum and immigration issues.
We have called for the bill to make provision for an independent guardian, to protect children’s rights, advocate for their best interests and get them the help that they need to realise their rights. Catriona MacSween might want to pick up on some of those points.
She is not on my list. Roddy Campbell has to get in before he bursts.
Well, Catriona MacSween agrees with me.
We have been calling for a provision that highlights the need for public bodies to take into account the best interests of the trafficked, separated child, to ensure that some of the particular vulnerabilities of children are taken into account. The existing child protection system and legislation should be brought into line with the best interests duty.
Children experience similar issues with the NRM as adults do. As a very experienced first responder, we are still told that individuals whom we have assessed as having been trafficked are not considered to be trafficked for the purposes of the NRM. That is challenging: it impacts on the ability of the women concerned to recover and to continue to engage. Sometimes, there is too much of a focus on decisions that come from the national referral mechanism. In effect, the NRM is a policy or a process; it does not have legal status at the moment.
I echo colleagues in saying that it is a very complex process. Margaret Mitchell and Christian Allard met a couple of the women we support and when they asked them about the NRM, those women did not really understand what they were being asked about. It is particularly complex for people who also have an on-going asylum claim. It is just another thing from the Home Office that they have to sign.
We sometimes query informed consent and adults’ capacity to consent to enter into the NRM. That can have an impact on what they understand about their rights. For example, any information that they give can have an effect on further immigration claims.
I totally agree with TARA. We say in our submission that a Scottish NRM would have an impact on other things. For example, the current NRM does not record the individual’s pre-trafficking experience or socioeconomic context. That information is vital if we are looking to stop trafficking. You want the bill to be progressive and to lead the way, and Scotland could really take the lead on the issue.
The bill could also have an impact on data sharing and Police Scotland. We would welcome a mechanism for sharing data between organisations such as ours and the TARA service, which work with the victims for a substantial period of time and probably retain a pool of information that could be vital. Again, such a mechanism would need to be worked out to ensure that the victim, rather than the information that comes from them, is the focus.
We have been considering alternatives to the NRM with regard to the bill’s provisions at section 8(4) and section 8(5), on the
“Duty to secure support and assistance”.
As the Faculty of Advocates—of which I am a member; I declare an interest in that respect—mentions in its submission, the bill does not make provision for a survivors service. Abolition Scotland’s submission also suggests that section 8 might be strengthened by further legislative provision.
The Faculty of Advocates suggests that
“minimum standards for support and assistance, whether by way of primary legislation ... or ... by statutory Code of Practice”
might improve matters. What are your views on the provisions in the bill as drafted, and to what extent would you favour those being strengthened by such mechanisms?
It was rightly recognised that the meaning of “support and assistance” in the Modern Slavery Bill for England and Wales needed clarification, and that has been provided through guidance.
Section 8 of the Human Trafficking and Exploitation (Scotland) Bill absolutely needs to be clarified, either through a statutory code of practice or through guidance, with regard to key questions on what support and assistance actually mean and what criteria will be applied to access to support and assistance. That leads on to questions about needs assessment and how that will be worked through.
As Bronagh Andrew mentioned, there are also questions around informed consent. We know that, almost by definition, the impact of trafficking and exploitation is that they traumatise individuals. There is a question around the timeline for getting support, which leads to the question of criteria. If a person is deciding whether to give informed consent, they need support—in almost all cases, I would imagine—before they can do that. We need to address that if we are designing the new system around the needs of and reality for the survivor.
There needs to be clarification through a statutory code of practice or through guidance on how the duty in section 8 will work. It is very good that the Scottish Government has put in primary legislation the principle of giving support and assistance to individuals and is making that a duty, but we need to clarify how that will work in practice.
To pick up on some of Graham O’Neill’s points, we were really pleased to see the basic fundamentals of support included in the Human Trafficking and Exploitation (Scotland) Bill, which goes further than Westminster’s Modern Slavery Bill. We think that the duty should be underpinned by statutory guidance on minimum standards for that support.
We also think that all those who support individuals or investigate cases of human trafficking should have to undergo accredited training. I do not know whether that would be better placed in the bill or in the strategy, but I think that some governance is needed around the support that is provided to children and adults who have been trafficked.
I also want to flag up an issue with the support provision in the bill. The
“Duty to secure support and assistance”
in section 8 is very much about victims of human trafficking; it does not cover those who have been held in slavery or servitude or who have been forced into compulsory labour. I do not know whether that is an oversight: people who have been identified as trafficked can access that support, but it is not clear whether those who have been identified as being held in slavery or servitude would also be entitled to access it.
I think that that comes under section 3, on
“Exploitation for purposes of offence of human trafficking”,
although I may be wrong about that.
I am not a lawyer, so I am not sure how the sections all work together.
Section 4 also deals with that area. The bill spreads the net pretty wide in terms of what constitutes—
But section 8 refers to human trafficking; it does not mention other forms of exploitation.
We will have to think about that. I think that section 4 probably secures that support, but I will have a look.
Following on from that point, we agree with what has been said about section 8(1), which refers to support when
“an adult is a victim of an offence of human trafficking”.
We believe that, instead of focusing on time periods—which I know are linked to the NRM—support should be provided from the moment that someone is identified as a possible victim of human trafficking. There is too much emphasis on credibility. I imagine that if someone said to Victim Support Scotland that they were a victim of rape, theft or whatever, we would never say to them, “You have to prove it before we provide you with the service.”
Another issue is that victims of human trafficking are so vulnerable that they need time to recognise and accept what has happened to them. Often that can happen only through work with, say, support workers, and they need time to recover—
They might not even think that they have been trafficked. They have no idea what has happened to them—they think that they had friends.
11:15
Exactly. Moreover, we provide information about the criminal justice system to other mainstream victims to allow them to make an informed decision about whether they want to report matters to the police, and I think that it is unfair for victims of human trafficking to be dealt with on a different level and almost forced to go through that process. We must also ensure that any individual needs assessment comes back to what the victim needs, rather than what we consider they should be provided with.
Finally, with regard to the support and assistance provision in section 8(4), I am not sure but I think that the submission by NHS Greater Glasgow and Clyde psychological trauma services highlights the reference in 8(4)(e) to “counselling”. This will make me sound quite pedantic, but I note that counselling is a specific psychological treatment, and I think that the reference should be widened to “psychological treatment”, “emotional support” or something like that.
I note that section 8(4) says that the support and assistance referred to “is not limited to” the various things that are listed. [Interruption.] That was a very aggressive wave, Ms Andrew. I can see you. [Laughter.]
A consultant clinical psychologist who is co-located with our team three days a week has made her own submission to the committee, but we certainly recommend that the bill specifically include a reference to access to psychological assessment and treatment, if that is required. Many survivors of human trafficking have post-traumatic stress disorder and other mental health issues and I know that, in her submission, our psychologist, Dr Sharon Doherty, has said that counselling is not always effective and in fact could be harmful.
Section 8(4)(c), which refers to “medical advice and treatment”, could be extended to include the access to psychological assessment that you mentioned.
I think that a specific reference would be helpful.
We echo the points that have been made about counselling and consistent standards across the country. Another area that could do with a wee bit more clarity is accommodation and, in particular, the need for accommodation to be appropriate and secure. I recently had a conversation with someone in the police, who said that there is a shortage of such accommodation in Scotland, particularly for young people and children.
What are the panel’s views on the overlap between the sections that we are discussing and the trafficking strategy? Indeed, what are your general views on what should be in the strategy?
I do not mean to be contrary, but Barnardo’s Scotland would really like provision with regard to children to be outlined in the bill, not in the strategy.
That point has certainly been made—and taken.
We have made it very clear that we want provision with regard to children to be set out in the bill. As for the strategy, we would like it to take a rights-based approach to children and adults, and we want it to ensure that there is cohesion between the existing processes and that children’s particular vulnerabilities are taken into account in the existing child protection procedures. We need a rights-based approach that considers the relevant articles of the UNCRC.
I call Nicola Merrin. [Interruption.] Do not worry—we are not counting the number of times you have spoken. Yes, we are. No, we’re not.
We feel that the strategy should contain two particular elements. First, it should raise the awareness of the public and professionals. A lot of good work has already happened on that through, for example, Police Scotland, and we believe that such an approach would help with the identification of victims.
What is most important is how people deal with the situation when they come across someone who has been victimised and trafficked. In our training for professionals, we want to focus on lawyers, who might be in a position to identify people who have been trafficked and who are going through the prosecution system—that is really important. The most fundamental aspect is support for the victim and ensuring that all agencies work together. There has been talk of compensation for victims of crime, which is an issue that is often forgotten about because it is not seen to be as important as the provision of support. The Legal Services Agency provides support on compensation, but so does Victim Support Scotland.
It is really important that everyone works together, not just the specialist agencies. The strategy would be the best place to lay that out.
For the past eight years or so, Soroptimist International has been raising awareness of human trafficking throughout our communities. We encourage the public to attend the open meetings that are held by our clubs throughout Scotland so that they can hear about modern-day slavery.
Wearing my old hat as a retired general practitioner, I remember that when foreign nationals came into our GP surgery with a translator, as they often did, I was always a bit suspicious because I could not have a one-to-one conversation with the patient. I recently talked to one of my younger colleagues who still practises and has learned a lot about modern-day slavery from me and other soroptimists. She is now really switched on to the situation of young women being brought into the surgery with translators and is suspicious when she cannot communicate with the patient. Not only the police and social workers but healthcare workers need to know about trafficking and how to handle it.
I totally agree with Nicola Merrin about the training of all front-line professionals, including those in the health service—Dr Cairns rightly raised that point—professionals across local authorities, such as those in environmental health, and professionals in the fire service—I am thinking of people who go into various buildings and businesses. They are the ones who are going to see people and who need to learn to think about things laterally and not just look at the jobs that they are doing. We totally agree that the strategy should focus heavily on training.
We want to see some of the prevention work reflected in the strategy. I am talking about not just prevention work at the local and national levels but work through our international obligations to prevent trafficking, prevent people from being vulnerable to it in the first place and, picking up on what Chris Gaul said about safe returns, prevent revictimisation on return. We are keen to see a robust prevention aspect in the strategy.
There is an opportunity in the strategy to go into more detail about support for victims, particularly in relation to economic empowerment and basic literacy. I draw the committee’s attention to the International Justice Mission guidance that we attached to our written submission, as another issue that could be looked at is how statutory agencies might work with civil society in helping victims, not just in Scotland but in the home countries that victims go back to. For example, the Scottish Government could look at how it could support such people, particularly through overseas aid. Support for improving justice systems could also be looked at. As Andrew Bevan, who is in the public gallery, has said, there are 4 billion people in the world who do not have access to proper justice systems, which is a part of the problem that is often neglected.
I want to echo and maybe develop the really important point that Chloe Swift made about the rights-based approach. Part of the thinking behind Jenny Marra’s proposed member’s bill was the principle of involving survivors in the development of a strategic approach. The strategy will be a vehicle for long-term change, and there will be a report to the Parliament on it every three years, so the rights-based approach must be at the heart of what the bill seeks. It might not be on the face of the bill, but it should certainly be one of the starting points for the development of the strategy. Involving the people who are affected should be a principle, but there are also strong practical reasons for involving such people, given the insights that individuals who survive trafficked exploitation unfortunately have.
Do you have a comment, Roderick?
I am finished.
I was hesitant to move on in case it prevented you from saying more.
I apologise to everyone for being late. What we are discussing is very important, but the Public Petitions Committee was discussing a petition on a hospice in my constituency and the petitioners needed my help. I do not know whether I gave them any help, right enough, but that is where I was.
We will find out when we read the Official Report.
Yes. I particularly apologise to TARA, which looked after us so well when we visited it in Glasgow.
My question—I hope that it was not asked before I arrived—is about the UK commissioner. The matter seems to be reserved. What are people’s opinions on that in the context of the bill?
Nobody else has dealt with that.
It is welcome that we will have a UK commissioner to address this human rights violation. The Scottish Refugee Council provided submissions to the Justice Committee at the end of last year in the context of the legislative consent memorandum process in relation to the UK commissioner. There is a serious question about whether the provisions in the English and Welsh legislation are adequate to safeguard Scottish interests, given that the vast majority of the competencies and powers that relate to the wellbeing of survivors and tackling the crime are devolved.
Reasonable consultative mechanisms are in place for the UK commissioner and the Home Secretary to consult Scottish ministers but, from what I can see in the legislation, they do not get at the formulation of policy or priorities. That is when we would want to have autonomy or a degree of discretion in a Scotland commission as part of the UK commission, as opposed to nearer the end of the process, when priorities have nearly been finalised.
We made submissions on that point at the end of last year and we definitely think that the committee needs at least to consider it, particularly when the Scottish ministers give evidence on whether the provisions in the English and Welsh legislation are adequate to safeguard Scottish interests.
I do not want people to repeat things, because we are running short of time.
We would like the anti-slavery commissioner’s obligations towards Scotland to be explicitly mentioned in the legislation, to ensure that he understands that we have a unique legal system and that different policies and processes apply, and to reflect that so that Scotland does not simply become an addition to his more general work. We are keen for that to be made explicit in the legislation.
Christina McKelvie is nodding.
I certainly support that, convener. Thank you for allowing me to attend your committee today. I have a personal interest and a political interest in the matter.
When we had the EU’s anti-trafficking co-ordinator in front of the European and External Relations Committee, she was clear about the responsibility of member states, and of regions in those member states, especially when they have different legal set-ups and devolved issues around care, rehabilitation and support and health services. My nod was certainly affirmative.
I thought that it was an affirmative nod. Jayne Baxter is next—she has been patient.
It has been fascinating to hear the expert testimony about how we can make the bill better.
I visited the Scottish guardianship service and I was extremely impressed by what I saw and heard that day. What would happen for trafficked children if we did not develop and get into statute the services that are provided there? I ask Catriona MacSween to speculate about the consequences of not doing the things that the service does.
The particular vulnerabilities of children who have been trafficked have been raised several times today. Having a guardianship service and a guardian working with the child helps them to understand and participate in the processes that they find themselves in.
Guardians can hold people to account. The fact that a child is being looked after by a local authority does not mean that they are accessing all their rights and entitlements or that the appropriate safeguards are being put in place. A guardian looks out for the child’s best interests in ensuring that all their needs are met.
The job is in the name—guardian.
It is. Children who have been trafficked are still being put into their own tenancy when they are 16. That is clearly not suitable and is not an appropriate safeguard, but there is a lack of resources, and because they are over 16, they will not be put in a children’s unit. A lot of work has still to be done on providing support and assistance that is appropriate for children.
Guardians are advocates, but we also play a huge part in educating young people and helping them to understand the processes. All the children we have worked with so far—bar one, I think—who have been trafficked have also been claiming asylum. About 45 per cent of the young people we work with undergo an age assessment, and some have been through the criminal justice process. We are talking about a child going through multiple processes and having to instruct lawyers, and a guardian is there to be by their side.
The process is complex and time intensive. The number of hours and the amount of support that a guardian puts into working with a child are way above what any social worker would be able to provide. A lot of children would slip through the net if guardians were not involved.
I am conscious that we have had quite a good whack at this, so I thank our witnesses for their written and oral evidence, which has all been helpful. We will have more evidence sessions, and we will then consider our draft stage 1 report after the Easter recess, when the witnesses will be able to see the views that we have come to. I also thank the witnesses for hosting members’ visits, which were useful.
11:31 Meeting suspended.