European Union Trafficking Directive
Item 2, which is on a much more substantive issue, is consideration of a Scottish Parliament information centre research paper on the European Union directive on human trafficking. Members will see from their papers that we have received a letter from various organisations that have an interest in the field and that have raised a number of issues. I hope that we can address those today and take forward some of their ideas. Iain McIver will give us a brief oversight of his paper before we go to members for questions.
Iain McIver (Scottish Parliament)
The committee asked me to look at human trafficking in the context of devolved issues. Immigration and asylum are reserved to Westminster, but policies in those areas impact on devolved responsibilities, such as access to health, education and social work. There are also justice issues, which are devolved.
The European directive on preventing and combating trafficking in human beings and protecting its victims was passed in April 2011. The paper covers the main provisions in the directive, so I do not propose to go through them all.
The directive identifies as a criminal offence
“the recruitment, transportation, transfer, harbouring or reception of persons, including the exchange or transfer of control over those persons, for the purpose of exploitation.”
It outlines penalties, which include imprisonment of at least five years, or 10 years if there are aggravating circumstances when an offence is committed.
The directive also provides for assistance, support and protection for victims of human trafficking. Initially, the United Kingdom Government withheld its position and did not declare whether it wished to opt in to the directive. However, in March 2011, it announced that it would opt in, and it is now making plans to ensure that England and Wales comply with the provisions in the directive.
In Scotland, the Cabinet Secretary for Justice told the Parliament in February this year that he felt that the changes that were made by the Criminal Justice and Licensing (Scotland) Act 2010 meant that Scotland was already broadly compliant with the directive. In October, the Scottish Government hosted a human trafficking summit at which the Government announced that a new statutory aggravation is to be introduced to make it easier to prosecute the perpetrators of human trafficking.
That is a brief summary of the issues that the paper covers.
Thank you. Do members have any comments?
It is helpful to have had a briefing. I was unaware of the cabinet secretary’s views on the issue, but I gather from informal discussions among committee members in our pre-meeting that the cabinet secretary might be open to considering what actions could be taken.
We have received a powerful letter from six or seven important agencies throughout Scotland that focus specifically on human trafficking. Convener, you have told us about your involvement in the issue—I have not had such an intensive experience. The letter makes a persuasive case that, despite the fact that Scotland seems broadly to comply with the requirements of the EU directive, something more specific should be done. I suppose that it is down to the committee to try to persuade the cabinet secretary that he should look at the issue again.
The point that impressed me most in the letter is in paragraph 3 on page 2, on
“The criminalisation and detention of potential victims of human trafficking”,
where it says:
“Scotland cannot be said to be acting in the spirit of Article 8 of the EU Directive, laid out in the preamble of Article 14 whilst people, many of them under the age of 25, continue to be detained for activities they undertook linked to trafficking and their exploitation.”
We are informed in the committee papers about the fragmentation of existing law. Baroness Helena Kennedy QC is compelling when she urges the Scottish Parliament to press the Scottish Government to
“consider introducing a comprehensive Human Trafficking Bill based upon a review of all its legislation relating to human trafficking.”
I would support such an approach and I hope that the cabinet secretary will take that on board.
I understand that the cabinet secretary has huge pressures on him and that the Justice Committee is overwhelmed by work. In the absence of anyone else being willing to undertake a bill in Parliament, I suggest that this committee considers doing so. Although it would be better if one of the specialist committees undertook the work, given the level of expertise round the table—including that of the convener—and the enthusiasm among a number of us to tackle the issue, we ought to be disposed to keep an open mind and be willing to work hard on the issue.
I take on board all those comments. On the issue of a committee bill, we should have a conversation with the Equal Opportunities Committee about its plans. The inquiry in which I was involved in 2010 included a recommendation about looking at what has happened since.
As Helen Eadie said, the letter expresses particular concerns in paragraph 3 on page 2, one of the main ones being that in Scotland we do not have control of the national referral mechanism, because the UK Border Agency has control of that. Unless someone refers themselves or is referred by a first responder with evidence, they are not deemed to be trafficked and are then convicted as an illegal immigrant or convicted under other legislation. There is no right of appeal in the national referral mechanism, which means that UKBA officials make decisions on whether someone has been trafficked and on people’s asylum status at the same time. There is a real concern about conflict of interest in that regard, which is an on-going issue.
Helen Eadie is right about my personal involvement in the issue. I should declare an interest in that I am the co-convener of the cross-party group in the Scottish Parliament on human trafficking.
Helen Eadie is right about all those issues, and I think that taking up some of the points with the cabinet secretary is the way to go. Do members have any other comments?
Perhaps I ought to declare an interest, too, because I am a member of the cross-party group on human trafficking.
Iain McIver’s briefing was helpful, but I am not quite sure what the EU timetable is for the directive. The convener might want to comment on that in a minute.
We have received a useful letter, dated 10 December, from Ann Hamilton and others. I would have thought that, as a first step, it would be helpful for the committee formally to refer the letter to the Scottish Government and invite comments on the matters that are raised in it. My recollection of the cabinet secretary’s comments at the end of February on Baroness Kennedy’s recommendation about a catch-all piece of legislation is that he did not rule it out, but he said that there are a lot of priorities and that parliamentary time is precious. If there were ways of dealing with the issues of parliamentary time, that approach would seem advantageous. However, I take on board what the convener said about the Equal Opportunities Committee’s remit, so we need to investigate that further. It is an important directive and a topic that we need to take seriously.
I welcome the SPICe briefing. Human trafficking obviously has victims and perpetrators, but there are also beneficiaries. The briefing drew my attention to the issue of whether there will be proposals under the directive to target the beneficiaries of human trafficking, or those who might profit from some of the activities that are going on. The briefing paper refers to those who profit from the delivery of goods and services in areas that use forced labour. I would hope that the directive covers that aspect in detail or, if it does not, that it will cover that at a future stage.
We have proceeds of crime legislation in Scotland, but I am unclear about such provisions in EU member states. That is a final loophole that needs to be closed to send out a loud and clear message that those who benefit and profit from human trafficking will be targeted.
That is a valid point. I have the directive in front of me, but there are pages and pages of it. Having a more in-depth look at it on the issue to which Willie Coffey referred would be helpful.
Article 7 of the directive requires member states to
“take the necessary measures to ensure that ... competent authorities are entitled to seize and confiscate ... proceeds from the offences referred to in Articles 2 and 3.”
Rod Campbell asked about the transposition date: member states are required to transpose the directive by April 2013.
The directive goes into a lot of detail, but it is well laid out and it is fairly easy to find things. Would the committee find it helpful to have a copy of the directive?
Members indicated agreement.
09:45
As a citizen of Scotland, the United Kingdom and the EU, I find it challenging that we have different legislation for different things, which is pegged at different levels. That is unhelpful. As Europeans, we need to home in and focus on legislation so that we are all singing from the same hymn sheet.
I am not comfortable with the idea that different parts of the European Union should be cherry picking legislation. I say that because I believe that there are far too many victims of that process. We see examples of immigrants putting themselves at risk by trying to enter the United Kingdom from France in trucks and lorries. More importantly, in this day and age, it is important that our borders are secure. It is important that anyone who walks our streets can identify themselves and say who they are and what they are about.
It beggars belief that, in this day and age, we have different bits of legislation in the European Union on this matter. That needs to change. I am not sure that it is the best position for Scotland to say that we have good legislation and that we only need bits of legislation from Europe. I would appreciate it if the cabinet secretary considered the matter a bit more clearly in terms of where we actually want to go.
There is crime in the streets of Glasgow today. Individuals are being driven round to various begging spots. There are beggars in our car parks and shopping centres and beside our bank machines. Many people are intimidated by them, yet we fail to deal with the issue. There is also prostitution and victimisation of vulnerable people. The challenge is greater than we sometimes believe.
I suggest that we ask the EU to come up with a system that involves us all having the same legislation, so that people are protected equally across Europe and there are no safe havens for criminals in Europe.
I thank Iain McIver for his briefing. The crux of the matter is whether the Scottish legislation is too piecemeal. If that is the case, we should ask the cabinet secretary to look into that and come up with new legislation that will encompass the issue.
I take a different view from my colleague Mr Malik. We are not cherry picking pieces of legislation; we are ensuring that the directive is fully complied with under Scots law. Obviously, we have had a discussion about whether that would best be done through a bill or whether we should try to shore up various bits of legislation.
We need to stress that trafficking is not just a matter of illegal immigration; it is a much more complex crime that also involves legal entrants to the UK. We should not underestimate the level of organised crime that is involved.
The SPICe briefing deals with the timescales and the need to be compliant by 2013, and it has information on the assistance, support and protection of victims, on children’s access to education and on the issue of prevention, with particular regard to the training of officials. All that is relevant to the forthcoming children’s services bill. The committee should ensure that due note is taken of the directive during that bill’s progress through Parliament.
I was not strictly suggesting that people are cherry picking; I was saying that, although Scots law is robust, any piece of legislation that is passed in the EU affects us either directly or indirectly, which means that we have to ensure that Scots law is robust enough to face up to that challenge. Our law lords need to know that, when they are dealing with cases, they must have regard not only to Scots law. Traditionally, most European countries have good, tried and tested legislation. That is fantastic, but things have moved on. People are usually uncomfortable about change, but change is in the air in the European Union.
All citizens in the EU are now protected primarily by EU legislation—it has superseded state law. Obviously it is important that we focus on protection of children and vulnerable people, but our immigration policy affects things and is part and parcel of that. How we treat people with regard to freedom of movement and what rights they might or might not have is where the EU and EU legislation come in. We need guidance from the EU on how best to have legislation that is exactly the same throughout Europe so that there are no safe havens or areas where people can prey on others. That is an important issue.
It might be helpful if Ian Duncan gave us an overview of the status of a directive and what we are trying to achieve.
Ian Duncan (Clerk and European Officer)
An EU directive allows greater flexibility for implementation within the member state. Members will be aware that an EU regulation is primary law that simply becomes law the moment that it is signed off. A directive gives greater freedom to the member state to implement it in a way that is compliant with existing legislation. As long as the member state can justify compliance, it is compliant with that law when it comes in.
We are talking about a directive, which allows the UK and Scotland to determine how best to implement the proposals to achieve the objective and gives greater freedom as to how that can be done. Each member state is entitled to implement the directive in the way that it deems appropriate, as long as it is fully compliant with the directive’s ambition.
It is not a one-size-fits-all approach.
No, it is not.
I just wanted to clarify that for the committee.
Thanks for that. We have given the issue a lot of coverage this morning and we have asked a lot of questions, to which we need a number of answers. If the committee is minded to support the letter from the organisations, I suggest that we formulate a letter to the Cabinet Secretary for Justice that is based on all the questions in it.
Members indicated agreement.
I ask Iain McIver to do a bit more digging on the specific points that members have raised.
To maintain our good working relationships and friendships with other committees, we should alert the Justice Committee and the Equal Opportunities Committee that we are looking at the issue further. Is there anything else that we should do at this point?
Can the cabinet secretary and those committees get a copy of the organisations’ letter? It would be helpful for them to see the context of our discussion this morning.
Yes, you are right. Ann Hamilton emailed me late last night to ensure that all members had a copy of the letter. I think that the organisations will be looking to see what decisions we make. Once the committee has sent its letter to the cabinet secretary, we can share it with those organisations, so that they know our line of inquiry.
We should also write to the Education and Culture Committee, given the proposed children’s services bill.
Absolutely.
We have not discussed in any detail the letter that we received, which was on our desks this morning. There were a lot of other questions in there, to do with issues such as guardianship. Will that letter go to the Scottish Government for its comments?
My proposal was to look at all the issues. The letter has six sections and a few points at the end, and its questions should form the basis of our letter to the cabinet secretary. We could include a copy of the organisations’ letter and ask for comment, guidance and advice on all the points that are raised in it. Once we have received a reply, we can decide what lines of inquiry to pursue further and what direction we want to take. Is the committee content to do that?
Members indicated agreement.
Thank you. I have just given Ian Duncan some more work.