I welcome the opportunity to speak on behalf of the Justice Committee, which is the lead committee in consideration of the bill. I, too, would like to thank all those who took the time to provide evidence to the committee: there is, of course, a full list of them in annex A of our report. I add that even if someone has not been invited to give oral evidence, all the evidence that is provided, which comes from as wide a range of people as possible, is invaluable to the committee.
As well as taking formal evidence, the committee was keen to speak informally to victims of trafficking and exploitation, and with the front-line workers who support them. We did that in advance of our tackling stage 1, and we did it by splitting into three groups. The trafficking awareness-raising alliance—TARA—Barnardo’s Scotland and the Scottish guardianship service were happy to host our visits, so I would like especially to thank them for giving us an invaluable insight into the issues that victims face, how arrangements are currently working and how they might be improved.
In addition, I want to thank members of the Justice Committee, which is—I am currying favour—a pleasure to chair. That gets me no brownie points from them; I know them too well. I also thank the members of our clerking team, who try to keep me on the straight and narrow, and I thank the Scottish Parliament information centre.
Recent and unfolding tragedies in the Mediterranean remind us of the desperate measures that people are willing to take to escape fear, war, poverty and violence in their home countries. The committee is keen to keep a close eye on how that issue develops and, of course, on the response that is made to it, although we are aware that no amount of legislation will deter the desperate.
Human trafficking and exploitation are serious and complex crimes that know no borders. They extend well beyond the sex trade and involve provision of cheap labour for a number of purposes, all of which are exploitative and all of which involve people being used as a commodity. As we know, Scotland is not immune to such crimes, but it is clear that there are real difficulties in identifying the perpetrators, who need to be brought to justice, and the vulnerable victims, who are in need of real support and protection. It was clear from our visits that victims do not always see themselves as having been trafficked. Indeed, someone may start off as an illegal immigrant but in reality be the victim of traffickers. It is an extremely complex issue.
The recent tragic events aside, in recent years we have become more aware of incidents of human trafficking and exploitation happening closer to home. Agencies in Scotland reported that there were 55 potential victims of human trafficking in 2013, and 111 in 2014—those statistics come from the national referral mechanism. Trafficking is, of course, a hidden crime. As I have said, victims often believe that they are in a relationship with their trafficker and that they are not being trafficked, or they fear retaliation against themselves or their families.
In Scotland, a lot of excellent work has been done in the past few years by the Parliament’s Equal Opportunities Committee, the Equality and Human Rights Commission, the Commissioner for Children and Young People in Scotland, Jenny Marra—through her proposal for a member’s bill—and Parliament’s cross-party group on human trafficking, which is chaired by Christina McKelvie. In addition, similar legislation has been passed in England and Wales and in Northern Ireland.
The Justice Committee unanimously supports the general principles of the bill, and we believe that it will help to identify and to bring to justice the perpetrators of trafficking and exploitation, and to provide better protection and support for victims. However, we have made a number of recommendations that are aimed at improving certain aspects of the bill, some of which have already been addressed by the cabinet secretary. I have complained before about the way in which we do things—it seems to me that we put the cart before the horse. We should report, then the cabinet secretary should be able to comment on the report. But there we go.
In the time that is available to me, I will pick out a few highlights. I will also touch on a number of related policy issues that are not dealt with in the bill, but which were raised during evidence.
There was broad support among witnesses for the provisions in section 1 of the bill, which creates a single offence of human trafficking for the purposes of all forms of exploitation of adults and children, but we heard from a number of witnesses that the definition of the offence should be more closely aligned with international definitions and that there is a danger that the emphasis that the definition puts on the term “travel” might result in its not capturing adults and children who are moved from city to city, or from one area to another in this country. We have asked the Government to look at that again. I heard what the cabinet secretary said, but sometimes trafficking does not involve any movement at all, so I do not know whether the committee will be wholly satisfied with the Government’s position: that is up to the committee.
One area that generated a lot of debate among witnesses and committee members was whether the duty that the bill will place on the Lord Advocate to publish guidelines on prosecution of credible trafficking victims who have committed offences will provide adequate protection. Some witnesses argued that a statutory defence for a person who commits an offence as a consequence of being a victim should be included in the bill, in addition to the provision that is made for prosecutorial guidelines. We understand that similar measures on a statutory defence were included in similar legislation in England and Wales, and Northern Ireland.
There were compelling arguments on both sides of the case. The dean of the Faculty of Advocates argued that a statutory defence would provide an additional safeguard for victims, whereas the Lord Advocate was concerned that—as the cabinet secretary said—it would place the onus on a person to demonstrate that they are a victim, with evidence being led before a jury, and he argued that guidelines would give more flexibility for prosecutions to be abandoned or for the court to set aside a conviction based on evidence or intelligence, at any time. I think that it is fair to say that we were to some extent in a quandary as to which was the more convincing case. This is the trouble when we have arguments being put forward by the dean of the faculty on one hand and the Lord Advocate on the other—the last one who spoke has us believing them.
In evidence, the cabinet secretary confirmed that prosecutorial guidelines and statutory defence are not mutually exclusive. We asked him to consider the position further. He has made his position clear today: we will see where that takes us. We welcome the Lord Advocate’s intention to publish instructions rather than guidelines, in order to give more weight to the document.
The committee also welcomes measures that will allow legislation on proceeds of crime to be used against traffickers. It is only right that people who have profited from trafficking and exploiting vulnerable people have the property and income that they have gained from that criminal activity confiscated. We agree with the Government that that will help to create a hostile environment for traffickers to operate in.
A general theme that arose throughout the evidence taking was that the bill should place greater emphasis on the needs of child victims of trafficking and exploitation. We felt, therefore, that there would be significant merit in including in the bill a section relating to child victims. From what the cabinet secretary said, I hear that that has not met with a positive response from the Government—it is to be in the strategy. However, we may press on. In particular, we were persuaded that more clarity is required to ensure that child victims receive appropriate and consistent support across all areas of Scotland, and we asked the Scottish Government to consider whether that should be clearer in the bill or whether it should be included in the forthcoming trafficking and exploitation strategy—the Government has moved to the latter.
We support the inclusion of a presumption of age section in the bill, which would mean that if a person’s age is uncertain but there is reason to believe that they are a child, they should be treated as a child in order that they can receive immediate access to support and protection. Some people might pretend to be older than they are because they think that that is more secure for them, and many others will not have any paperwork or might not even know their date of birth. Therefore we are pleased that the Scottish Government is considering that issue further.
Finally, we received a number of submissions calling for the bill to be amended to include provisions that would criminalise the purchase of sex. There are, of course, others who would strongly disagree with that policy. We did not discuss the substance of the rights and wrongs of any legislation on that, but members took the view that the bill is not the vehicle that would do the issue justice. We were struck by evidence from Amnesty International and others that argued that we would do a disservice to victims of trafficking, sexual exploitation and prostitution if the issues were conflated in one piece of legislation. In addition, the committee took the view that criminalisation of the purchase of sex would have implications beyond the matters that are dealt with in the bill, so we took the view that the bill is not the correct vehicle. I stress that we did not consider whether criminalisation of the purchase of sex was the right thing to do, but whether it could be done in the bill. We took the view that it could not. It was a question of process, rather than substance.
We agree with Scottish ministers that there is a need for training and education to raise awareness so that we can identify and provide support for all victims of trafficking—especially children. The bill has done that and it will continue to do it—that has also happened through the offices of various members—including Jenny Marra and Christina McKelvie—who have taken the matter forward. We have raised the profile of the whole agenda, particularly with regard to exploitation in workplaces, which is sometimes seen as a lesser part of the problem.
I have touched on some of the issues that were raised in evidence during the committee’s stage 1 consideration of the bill, and I am sure that other committee members will pick up areas that I have not had time to cover. For instance, I hope that somebody speaks about the national referral mechanism, which we could see is flawed. I look forward to hearing other contributions to the debate.
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