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Lord Avebury: My Lords, I certainly agree with the noble Baroness, Lady Anelay, that it would be absurd to
 
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levy fines on somebody who came here as an asylum seeker and has spent the last three months or so in custody, because he will obviously not have any resources out of which he could pay such a levy. I am most grateful to the noble Baroness for her support for the amendment and to the noble Lord, Lord Hylton, for his useful and cogent remarks.

I disclaim any special expertise in these matters. It was kind of the Minister to ascribe that to me, but I rely heavily on the advice of the agencies, particularly the Immigration Law Practitioners' Association, whose briefings have been absolutely splendid, as I am sure all your Lordships who have been depending on them will agree. It has the expertise; it knows where the shoe is pinching. All the matters I have raised come from their experience of asylum cases.

I did not think that the Minister answered my points adequately. He said that the asylum policy instructions applied throughout the whole of the consideration of these cases, but they do not. I quoted an example of when the CPS expressly repudiated the application of asylum policy instructions with regard to a particular offence, which was not dealt with by Section 31 of the 1999 Act. That was an important distinction, on which the Minister did not touch. Nor did he say anything about the lack of any sentencing guidelines for magistrates' courts. I still think that we are making a serious mistake in agreeing this clause, by depending on the guidelines that will ultimately appear and not taking steps to ensure that there will be proper co-ordination between the CPS, the magistrates' courts, the police and the IND.

Before I sit down, I should like to give another example. In Section 173 of the Extradition Act 2003 there is a mandatory code of practice, which is seen as appropriate in that context. I cannot see what is the qualitative difference between codes for extradition in that Act and the offences with which we are dealing in this section. In the few seconds that remain to me, I will not be able to persuade the Minister, so I shall withdraw the amendment for the time being, but without an undertaking that we will not return to the matter at Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 4 [Trafficking people for exploitation]:

Baroness Anelay of St Johns moved Amendment No. 15:

The noble Baroness said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 16 and 17. I am grateful to the noble Lords, Lord McNally and Lord Avebury, for their support for the amendments, which would ensure that the definition of exploitation is sufficiently broad to cover cases of exploitation of children. It should ensure that, if a request or inducement is made to one person—a parent, for example—but another person—the child, for example—is the one involved in the activity, then the exploiter can be charged
 
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with trafficking. I want to ensure that those trafficking in children, especially very small children, cannot escape prosecution.

In Committee, I tabled amendments to probe whether the changes that the Government made at Report in another place had left a loophole—I refer to col. 1642 of Hansard for 5 April. I readily acknowledged then that those amendments were my own very rough stab at providing an opportunity for debate, and not the honed article. I am grateful to the noble Baroness, Lady Scotland, for writing to me following the Committee stage with further clarification of the Government's position. The letter was undated but I received it on 11 May. I decided at that stage that I should take further advice from the Refugee Children's Consortium, whose briefing raised the question in my mind in the first place. After talking to the consortium's representatives, I tabled these amendments which are their drafting and which I fully support.

The consortium warmly welcomes Clause 4, as I do. At Report in another place, the Government amended the clause adding what is now subsection (4)(d) to address concern that the definition of exploitation did not provide sufficient protection for children and that Clause 4 as drafted would allow some people to escape prosecution who, in any normal sense of the word, would be seen as traffickers of children. The consortium, as I do, fully recognises that the Government have been striving throughout to ensure that there is no such loophole. The good will is there: we are trying to use that good will to close the loophole.

The concern can be simply stated—does the clause cover the situation where a request or inducement, force threat or deception is made to person A, but person B is exploited? To be guilty of trafficking under this clause, a person must arrange or facilitate the arrival of another person in UK, and intend to exploit that person, or believe that another person intends to do so. Thus the definition of exploitation is central to proving the offence. I certainly accept that the noble Baroness, Lady Scotland, wanted to close any lacuna. She referred to the Government's interpretation of the Palermo protocol. I examined that in detail and, since it is quoted in her letter at length and that letter is in the Library, I will not try the patience of the House at Report by reading it all out.

As we see it, the lacuna is as follows. Children may not be subject to treatment amounting to slavery or forced labour. They could therefore not satisfy the definition of exploitation in Clause 4(4)(a). Children may not be trafficked for their organs, thus they may not satisfy the definition in subsection (4)(b). As for subsection (4)(c), the threat of violence may not be made to the child; the parent may be told that the child will be harmed. As for subsection (4)(d), not all children who are exploited are deceived; they may not understand what is being done to them. The parent may be asked to agree that the child becomes involved in an activity; no one may ask the child at all. Thus it appears that those who traffic in children may escape prosecution under this clause. In the case of those
 
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addressed in subsection (4)(d), it is highly likely that any request or inducement would have been made to a third party, not to the person trafficked.

The noble Baroness, Lady Scotland, said in her letter to me:

That is confusing. The clause is not about defining trafficking for the purposes of protecting its victims. It is about coming up with the definition to ensure that those who exploit others can be prosecuted. In her letter, the noble Baroness, Lady Scotland, went on to say:

That is also a little confusing, because threats would be more likely to fall within subsection (4)(c) and not subsection (4)(d). However, I do not consider that my amendments fall into that confusion. The amendments are concerned with the definition of exploitation and ensuring that it is broad enough to cover the ways in which children are exploited. The reference to a threat or request being made to a third party is simply a means towards the end of obtaining a satisfactory definition, as was the amendment laid at Committee which introduced the words,

As I said earlier, we are all trying to achieve the same objective. I am trying to take this one step further along that process. I look forward to the Minister's response. I beg to move.

Lord McNally: My Lords, I, too, look forward to the Minister's response. I hope that it will not be overly defensive because the suggestions of improvement come from the Opposition Front Bench. As the noble Baroness, Lady Anelay, said, we warmly welcome the fact that Clause 4 is there. The attempt of all parts of the House now is to get as good and effective a clause as possible and one that will allow us to get at the traffickers. That is the test. People are genuinely appalled and amazed at revelations in the press of the extent to which people—who can apparently sleep at night—can earn vast amounts of money by the organised crime of people trafficking and, more particularly in terms of what we are trying to deal with here, children trafficking. It is something that unites all sides of the House. The search is on the for a clause as all-encompassing as possible to get at this evil trade. I hope that the Minister responds in that way.


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