Human Trafficking and Exploitation (Scotland) Act 2015 section 38: consultation analysis

About this report

This report provides an analysis of responses to the Scottish Government’s consultation on section 38 of the Human Trafficking and Exploitation (Scotland) Act 2015^[1] (“the Act”): Duty to notify and provide information about victims.  The consultation ran from 16 June 2019 to 06 September 2019.

The consultation paper can be accessed here: https://consult.gov.scot/justice/duty-to-notify-and-provide-information/

Background

The only available data on the numbers of trafficking victims in Scotland are taken from the UK National Referral Mechanism (NRM)^[2]. The NRM is a framework for identifying potential victims of trafficking and ensuring they receive appropriate support and assistance. It was introduced in 2009 to meet the UK’s obligations under the Council of Europe Convention on Action against Trafficking in Human Beings.

Since the NRM’s introduction, recorded numbers of victims have increased across the UK.  In Scotland there has been a 417% increase in referrals to the NRM in the last 7 reported years (see table below).  Although not its primary purpose, the NRM is the only significant mechanism for accruing and processing data about trafficking and exploitation in the UK.  For those victims that do not consent to enter the NRM, no data is recorded^[3].

	Female			Male
Year	Adult	Minor	Age not recorded	Adult	Minor	Age not recorded	Total
2019	120	44	10	218	112	8	512
2018	67	22		108	31		228
2017	63	24		81	39		207
2016	54	21		49	26		150
2015	52	19		51	23		145
2014	48	14		38	11		111
2013	52	13		25	9		99

Section 38 of the Act places a duty on specified Scottish public authorities to provide information to Police Scotland about people who are, or appear to be, victims of human trafficking or of slavery, servitude and forced or compulsory labour. Once Police Scotland receive this information they must notify a third party – in practice this is likely to be done by collating the information and providing a regular report.

The purpose of the duty to notify can be broken down into 3 main categories.  Ultimately the collation and processing of data contained in notifications will help to achieve the original policy intention behind section 38 of the Act:

• To provide a more accurate picture of the scale and extent of trafficking in Scotland, to enable more effective targeting of enforcement activity and provision of support services.

However as time has moved on since the Human Trafficking and Exploitation (Scotland) Bill 2014 passed through Parliament, section 38 of the Act will now also feed into and meet the key outcomes of the Trafficking and Exploitation Strategy:

• Identify and support victims to safety and recovery;
• Identify perpetrators and disrupt their activity; and
• Address the conditions that foster trafficking

Part 4 of the Act introduced Trafficking and Exploitation Prevention Orders (TEPOs) and Trafficking and Exploitation Risk Orders (TEROs).  These are orders that can be imposed on people who have committed, or might commit, a trafficking or exploitation offence prohibiting or requiring them to do certain things.

Although a person must have committed a trafficking or exploitation offence before a TEPO can be made, Police Scotland are able to apply to the Courts for a TERO if there is a risk that an adult may commit a trafficking or exploitation offence and there is a need to protect a particular person, or persons generally, from the physical or psychological harm which would be likely to occur if the adult was to commit a trafficking or exploitation offence.

The collation of the information proposed in this consultation may assist Police Scotland in applying for TEROs that will safeguard victims whilst further investigations are ongoing into any alleged criminal activity and subsequent prosecutions.

This consultation offered the opportunity to provide views on the following:

• Who should be named in Regulations as a Scottish public authority that will be subject to the duty;
• What information should be included in notifications both to and from the Police;
• Who the Police should pass information on to; and
• Which other bodies, who cannot be named in the Regulations, should be involved.

‘Scottish public authority’ for this purpose is defined as “any public body, public office or holder of public office whose functions are exercisable only in or as regards Scotland’^[4]