COMBATING TRAFFICKING IN HUMAN BEINGS|
Commission Communication: combating trafficking in human beings and combating the sexual exploitation of children and child pornography:
Draft Framework Decision on combating trafficking in human beings; and
Draft Framework Decision on combating the sexual exploitation of children and child pornography
Draft Framework Decision on combating trafficking in human beings
||(a) Articles 29, 31(e) and 34(2)(b) EU; consultation; unanimity
(b) Articles 31(e) and 34(2)(b) EU; consultation; unanimity
||(b) 27 April 2001
|Deposited in Parliament:
||(b) 1 May 2001|
|Basis of consideration:
||EM of 11 October 2001
|Previous Committee Report:
||(a) HC 28-vii (2000-01), paragraph 11 (28 February 2001)
|To be discussed in Council:
||6-7 December 2001
8.1 The previous Committee considered document
(a) in February. That document comprises two Framework Decisions,
one related to trafficking in human beings and the other to the
sexual exploitation of children and child pornography, and a Communication
which sets them in context. The Committee did not clear the document,
but asked for a progress report before the May Justice and Home
Affairs Council, at which political agreement on the proposal
was to be sought.
8.2 Although document (b) was deposited in May,
the Explanatory Memorandum was not submitted until 11 October.
The document was discussed at the Justice and Home Affairs Council
on 27 and 28 September. Provisional agreement was reached on it,
subject to consideration of the European Parliament's opinion
and to parliamentary scrutiny reservations from five Member States,
including the United Kingdom.
Document (b) and the Government's view
8.3 Document (b) is the revised Framework Decision
on combating trafficking in human beings. In a helpful Explanatory
Memorandum, the Parliamentary Under-Secretary of State at the
Home Office (Mr Bob Ainsworth) details the main amendments to
the previous text, indicating what the Government thinks of them
and referring back to the concerns of the previous Committee and
of the sister Committee in the House of Lords. He says:
"Article 1 has been
set out differently from earlier versions of this Decision in
order to reflect the complexity of the proposed offence. Previously,
trafficking for the purposes of exploiting victims' labour on
the one hand, and exploiting them sexually on the other, were
set out separately in Articles 1 and 2. The two Articles have
now been combined on the basis that the acts concerned are the
same, although their purpose can differ. The Government welcomes
"Article 1 begins with the statement that the
acts which follow should be punishable. It then sets out the acts
which might comprise or form a part of the offence when
they are committed in one of a list of circumstances, and for
particular purposes, which are also cited (e.g. 'recruitment
... when ... use is made of coercion, force or threat ... for
the purpose of the exploitation of that person's labour...').
"References in Article 1 to a person being trafficked
for the purpose of exploiting his '...fundamental rights ...
in infringement of labour standards governing working conditions,
salaries and health and safety...' have been deleted and replaced
with a reference to trafficking for the purpose of '... exploitation
of that person's labour or services, including at least forced
or compulsory labour or services, slavery or practices similar
to slavery or servitude...'. This amendment addresses one
of the significant concerns expressed in the earlier Explanatory
Memorandum on this instrument and by the Committees.
"The words '... a misuse of authority, influence
or pressure' in Article 1(1)(c) have been replaced by '...there
is an abuse of power or of a position of vulnerability...'.
Article 1(1)(d) 'there is another form of abuse' has been
deleted and replaced by 'payments or benefits are given or
received to achieve the consent of a person having control over
another person...'. This terminology is borrowed from the
Trafficking Protocol to the United Nations Convention on Transnational
Organised Crime, which the United Kingdom has signed but not yet
"A new paragraph 2 has been inserted providing
that the consent of a victim is irrelevant when any of the means
listed has been used. This addresses one of the concerns raised
by the Committees and the Government agrees with this amendment.
A new paragraph 3 has been inserted providing that when the victim
is a child the acts shall be punishable even when none of the
means listed has been used. The Government agrees with this approach.
A new paragraph 4 has been inserted providing that a child means
any person under the age of eighteen. This is consistent with
international instruments to which the UK is a signatory.
"Article 8 has been replaced by two new paragraphs.
The first paragraph provides that a prosecution or investigation
of a trafficking case must not depend on the victim's testimony.
The second reads across to a parallel Framework Decision relating
to the standing of victims in criminal proceedings and provides
that child victims of trafficking will be considered particularly
vulnerable in the terms of that Framework Decision. The Government
believes this appropriately balances the rights of the victims
8.4 In relation to the Government's view of the
proposal as a whole, the Minister comments:
"As stated in the previous
Explanatory Memorandum, the Government is keen to combat this
horrific trade in human beings on every front. The Government
has accepted by signing the Trafficking Protocol to the United
Nations Convention on Transnational Organised Crime that there
is a need for a specific offence of trafficking in human beings.
We also consider it desirable to harmonise offences and penalties
in this area on a EU basis. Implementation of the offences in
this Instrument will require primary legislation. We are not yet
in a position to comment on the responses to consultation on these
proposals in Setting the Boundaries, resulting from the
review of sexual offences."
8.5 We are disappointed that it took the Minister
so long to provide an Explanatory Memorandum on this proposal.
Had we received it earlier, the Government might have avoided
having to give provisional agreement in Council to an uncleared
8.6 However, the Explanatory Memorandum itself
is helpful, and the text appears to have been improved in several
respects. In particular, we welcome the fact that Article 1, about
which the previous Committee had concerns, has been amended so
that it is now clear what behaviour is to be criminalised.
8.7 We clear both documents, since, although
the scope of document (a) is broader than that of document (b),
the Explanatory Memorandum provides a satisfactory response to
all the questions raised on it.