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(d) a person uses or attempts to use him for any purpose within sub-paragraph (i), (ii) or (iii) of paragraph (c), having chosen him for that purpose on the grounds that
(i) he is mentally or physically ill or disabled, he is young or he has a family relationship with a person, and
(ii) a person without the illness, disability, youth or family relationship would be likely to refuse to be used for that purpose.
Lord West of Spithead: My Lords, human trafficking is an appalling crime and the Government are committed to tackling it and protecting its victims. The amendment will help in our ongoing battle against trafficking. It widens the definition of the offence of human trafficking to capture the mischief usually referred to as trafficking of children for benefit fraud. I am grateful to the noble Baroness, Lady Hanham, and other noble Lords for bringing this matter to our attention.
For an act to be regarded as trafficking for non-sexual exploitation, our current legislation requires, among other things, for the trafficker or someone else he knows about, to intend to exploit a person. One definition of exploitation in the current offence requires a person to be requested or induced to undertake any activity.
As noble Lords have argued, very young children, including babies, cannot be requested or induced to do anything; nor would they be carrying out any activity themselves. Their passivity therefore means that they may not be regarded as having been exploited as currently defined in the context of trafficking, and therefore another person may not be liable for an offence of trafficking.
That issue was highlighted in the case of Mrs Peace Sandberg, who purchased a baby from Nigeria to seek priority housing in the UK. In this case, the babys role was passive. Mrs Sandberg was convicted of facilitation, not trafficking, and jailed for 26 months in 2008.
We believe that such conduct should rightly fall under the remit of trafficking. Our proposals will amend the definition of exploitation to enable that by removing the requirement for the child to be requested or induced to undertake any activity. Accordingly, if someone uses or attempts to use another person, including a small child, to obtain a benefit or gain of any kind, he or she would be capable of committing the offence.
The related amendments are designed to allow for the new offence to apply to England, Wales and Northern Ireland but not to Scotland. Human trafficking is a devolved matter in Scotland and it is normal procedure that the Scottish Parliament legislates for Scotland where there is a suitable Scottish legislative vehicle available. The Scottish Government have indicated that they will look to bring forward similar amendments for Scotland through their Criminal Justice and Licensing (Scotland) Bill, which already contains provisions on trafficking, to ensure consistency of the law across the UK. I commend the amendments to the House.
Baroness Hanham: My Lords, I have much pleasure in putting my name to this amendment. The noble Lord, Lord West, may be thankful that he has tabled
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Lord Avebury: My Lords, I add one word of thanks to the Minister for the amendment and those that go with it. We agree that there was a gap in the legislation and that the amendment seems to have adequately filled it, so that the exploitation of trafficking of babies for non-sexual purposes will now be includedwhereas, as the noble Lord explained, in the case of Mrs Sandberg, there seemed to be a definite gap. That has now been closed. We are most grateful to the Government for that.
Baroness Howe of Idlicote: My Lords, I add my congratulations to the noble Lord, Lord West, and to the noble Baroness, Lady Hanham. It is clear that gaps have been exploited and that young people and children have just gone missing and no one can account for them in any way. With that in mind, one is sorry that the noble Lord, Lord Ramsbotham, will not be moving his amendments, but I understand that there is ongoing discussion about them. I hope that the Minister will confirm that.
Lord Kirkwood of Kirkhope: My Lords, this takes us to Clause 53 and a different part of the Bill. It is an important part. I do not propose to detain the House any longer than I can possibly help, but I hope that colleagues will understand that there is a great deal of concern. The concerns are mainly about asylum rather than immigration and borders, so I had some difficulty in trying to slip the amendment under the wire, so that we could discuss it.
The amendment seeks to clarify the duty on the welfare of children by including explicit financial provision. It has to be said at the beginning that Clause 53 is
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I accept that the Bill is not principally about asylum. We are promised a so-called simplification measure. We will get consultation on that later in the autumn, and we look forward to it. The Immigration Simplification Bill has already been published in draft. It is a massive Bill, but it has major omissions, one of which is proper provision to prevent the destitution of children in asylum-seeking families whose legal rights have been exhausted through the courts.
My concern is that the consultation phase in areas that are still quite opaque might take some time, and the political timetable suggests that an election next year is likely to intervene. That means that it is likely to be a long time before proper regulation for failed asylum-seeking families is given the necessary attention by way of primary legislation. The destitution that has resulted from the prevailing provisions will exist for a lot longer than any of us are comfortable with. This is urgent, and the amendment is a marker for what will be a keenly followed and keenly contested area of public policy in the autumn when the Government bring forward their provisions in the Immigration Simplification Bill.
I fully accept that the Government must have provisions for deportation and voluntary return in any immigration system, which is not easy. Government is not easy; indeed, I do not think that any of us is arguing that. Having said that, however, and having said that Clause 53 is welcome, the clause does not go nearly far enough to address the extent of the deprivation of families in the United Kingdom at the moment.
My former constituency of Roxburgh and Berwickshire, when I was a Member of the other place, did not have very much experience of asylum cases because it did not have that profile of constituency casework. However, since I have come to your Lordships House, and certainly after the Second Reading of this Bill, I have made it my business to look into the provisions that are made for those under 18 in families whose asylum rights have been exhausted, and I am shocked at some of the effects on small numbers of families who have to depend on Section 4 or Section 95 provisions for support. It is not an exaggeration to say that some families face destitution; destitution is not too strong a word.
I am also surprised and disappointed at the extent to which families and children in them are in a wholly different position. They are considered to be entirely separate from all other young people living in the United Kingdom. The lack of statistical provision to try to find out exactly what is happening to that category of young person is very worrying. The noble Lord, Lord Ramsbotham, has tabled amendments that seek to address that question. I add my voice to those who say that we really do not know the data and the statistics to enable us to understand the extent of the deprivation that stalks our land in this day and age.
Of course the people in the immigration agencies and the UK Border Agency are not hard-faced menthey are professionals doing the best they can in difficult circumstancesbut one thing that they have to deal with more than anything else and which creates difficulties for them is that provisions that were made for short-term support are now systematically and as a matter of course being used as long-term support. As someone who follows social security law quite carefully, it is one thing for families to fall in and out of poverty. That sometimes happens. The circumstances of families after a short time in poverty are qualitatively and quantitatively entirely different from those of families after a long time in poverty. Families are being sentenced to levels of support that were meant for short-term provision over a long period of time. The evidence is that our system is sentencing people to the long-term use of systems that were never designed for that purpose.
I am concerned, too, about the backlog of cases. The latest evidence available to me, although I fully acknowledge that the backlog is being reduced, is that it will be 2011 before the 280,000 cases, which is the suggested current level of backlog in some areas, will be cleared. That means that the neglect of some of these families will continue until then. I could go on but I will not.
Reports are produced daily and weekly. One was produced a fortnight ago by Refugee and Migrant Justice, an organisation of excellent lawyers who defend human rights in the United Kingdom, and is called, Does Every Child Matter? I note the question mark at the end. It is an important part of the title, and I hope that the Minister will find a copy of that report in his red box over the Easter Recess, because it makes compelling reading.
If all that was not enough, there is a great deal of uncertainty about healthcare provision and failed asylum-seeking families access to healthcare and social work support. I was interested to hear about the Appeal Court ruling earlier this week by Lord Justice Ward. I have not seen the judgment, so I will make no comment, but the newspaper reports of that court case suggest that it will be even harder for failed asylum-seeking families to access healthcare. For all these reasons, we really cannot ignore this issue. We must do something about it.
Financial support could be addressed in all sorts of ways in the future, as the amendment suggests. The Independent Asylum Commissionan excellent organisation that produced three excellent reports which I have recently read and rereadconcluded that the best way of getting financial support to these families is to allow them to work in some circumstances before they are invited to leave voluntarily or are deported.
If I had a little longer, I would argue at some length that the Section 4 voucher system, which requires people to have to exist on vouchers, is entirely discredited and should be abolished. It would be much more sensible and better value for money if the Section 95 more generous level of support was made available. The cost savings in winding up the voucher scheme would more than pay for the extra costs of the Section 95 provision.
Abolishing Section 9 will obviously be on the agenda. It is not directly related to financial support, so I will not say anything about that because I would be straying out of order. But we will want to return to abolishing Section 9 provisions in the autumn when the consultation begins.
The human rights environment has substantially changed since the 1999 parent Act on asylum was crafted, followed by the provisions of the 2004 Act. The United Nations Convention on the Rights of the Child, taken with the new appropriate and perfectly proper concentration on human rights in giving people dignity in a way that public policy applies to them, suggests that Section 4 vouchers and Section 9 provisions need to be seriously and urgently addressed.
Finally, this might sound like a cheap political point, but it is not meant to be. Our Prime Minister, Gordon Brown, has got an enviable and rightly drawn reputation for being passionate about child poverty. However, he seems to have forgotten this small group of vulnerable young people under our asylum provisions. It is time for the Government to accept amendments such as this and to look urgently at what they can do later in the consultation on the Immigration Simplification Bill. The Prime Ministers wish in relation to children in other parts of the United Kingdom would be brought to bear on failed asylum-seeking families. Their need is great and their cause is just. At the moment, the system is badly in need of repair. I hope that this amendment will go some way to putting that situation right. I beg to move.
The Earl of Listowel: My Lords, I support the noble Lord in terms of Section 9 of the Asylum and Immigration (Treatment of Claimants, etc.) Act. The pilot for Section 9 found that a number of families simply disappeared from the system. Their children must be very vulnerable, with poor access to education and health as a result. It was very unsuccessful in its intention to return families to their home countries. I understand that two children entered care as a result of this process, so one family at least was broken up due to the Section 9 pilot.
The Government have been keen to retain this power, although I understand that they have not used it since. Perhaps the Minister will write to me on that. This is a strong power. We are all fallible and can all make mistakes. It troubles me that this power remains in the Bill and that it could be misused.
Baroness Howe of Idlicote: My Lords, I, too, support the amendment. I have seen the report, Does Every Child Matter?, which is very worrying. Although the refugee legal centre which produced this report is certainly supportive of the Governments efforts and is, by no means, all critical, there are strong comments that there is a long way to go. It makes recommendations. We hope that the Minister will be able to explain further the Governments programme and how well it has succeeded.
Lord West of Spithead: My Lords, I am grateful for this amendment, which provides an opportunity to explain more clearly what we mean by welfare in Clause 53. This is an important point, which we have not yet explored in our debates on the clause. Perhaps
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It is valuable to bring up the point about welfare. As noble Lords know, the intention of Clause 53 is to mirror as closely as possible the effect of Section 11 of the Children Act 2004. We want the border force to be on the same footing as other public bodies which have significant dealings with children so that we can improve interagency working and be more effective in the way in which we jointly safeguard and promote the welfare of children, which I think all of us in this House will agree is extremely important.
For that to happen, all agencies involved need to share the same understanding of what we mean by welfare. In fact, DCSFs statutory guidance on Section 11, the guidance on which we intend to draw heavily for Clause 53, already defines the word welfare. It may help if I quote from paragraph 2.7 of that guidance which states:
In this guidance, welfare is defined ... in terms of childrens health and development, where health means physical or mental health and development means physical, intellectual, emotional, social or behavioural development.
The existing definition of welfare focuses on those elements which are most crucial to childrens well-being. It is a tried and tested definition and well understood by those in the field. I see no merit in creating a new definition specific to the border force, which I am sure is not what the noble Lord intended. I am also sure that this is a probing amendment. Not only would this risk distracting staff from the priority areas I have just outlined, but it would also risk causing confusion in relations with other bodies working with children and thus undermine the very objective we are seeking to achieve with the clause in the first place.
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