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

Introduction and Background

In October 2015 the Scottish Parliament unanimously passed the Human Trafficking and Exploitation (Scotland) Act 2015 (“the Act”). This was the culmination of significant partnership working between agencies and across the political spectrum, including the Cross Party Group on Human Trafficking.

The Act creates a new legislative context that simplifies how police and prosecutors can deal with crimes of human trafficking and of slavery, servitude and forced or compulsory labour.

Human trafficking (section 1 of the Act) is about the illegal trade of human beings, both adults and children, for exploitation. Exploitation can take many forms. For example cannabis cultivation, work in the hospitality industries for little or no pay and in poor conditions, being forced to commit benefit fraud for others’ gain, domestic servitude, commercial sexual exploitation, sham marriage and organ removal. These are only examples and there are many others that could be listed.

Slavery, servitude and forced or compulsory labour (section 4 of the Act) are to be construed in accordance with Article 4 of the European Convention on Human Rights. Although no exchange of control over the individual takes place, the victims are still treated as the property of another, obliged to provide services through the use of coercion. The term covers all work or service which is exacted from any person under the threat of any penalty.

Background – Trafficking and Exploitation Strategy

The Act requires Scottish Ministers to develop and publish, for the first time, a Trafficking and Exploitation Strategy. The Strategy was published in May 2017 following collaboration with stakeholders including feedback from survivors themselves. The overall vision of the Strategy is to eliminate human trafficking and exploitation. The Strategy identifies three areas where the Scottish Government will focus efforts:

• Action Area 1: Identify victims and support them to safety and recovery
• Action Area 2: Identify perpetrators and disrupt their activity
• Action Area 3: Address the conditions, both local and global, that foster trafficking and exploitation

As time has moved on since the passage of the legislation in 2014 section 38 of the Act will now also feed into and meet the key outcomes of the Trafficking and Exploitation Strategy as a whole but more precisely in respect of Action Area 2 where there are specific commitments in respect of the duty to notify.

Background – Hidden Crime

It is widely recognised that human trafficking is a hidden and often complex crime and therefore the true scale of the problem is unknown.

Victims can be reluctant to acknowledge the situation they are in and accept that they may be the victim of an offence. There are many reasons for this including fear and a lack of trust of authorities, fear of reprisals from their traffickers and a lack of awareness that there are agencies who can support them to safety and recovery.

The only available data on the numbers of trafficking victims in Scotland is taken from the UK National Referral Mechanism (NRM). 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. If a victim consents to entering into the NRM they will receive a minimum of 90 days support, provided currently by the Trafficking Awareness Raising Alliance (TARA) or Migrant Help.

Since the NRM’s introduction, recorded numbers of victims have increased across the UK. In Scotland there has been a 130% increase in referrals to the NRM in the last 6 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.