Human Trafficking and Exploitation (Scotland) Act 2015 section 38: consultation
This consultation document is about section 38 of the Act, which relates to the duty to notify and provide information about victims.
Section 38(1) of the Act
A specified Scottish public authority must notify the chief constable of the Police Service of Scotland about a person who is, or appears to be, a victim of an offence of human trafficking or an offence under section 4.
‘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”[1].
The Scottish Government is of the view, subject to this consultation exercise, that the Scottish public authorities listed below should notify Police Scotland about a person who is, or appears to be, a victim of a section 1 or section 4 offence.
The Scottish Government recognises the issues that have been raised in stakeholder engagement to date. The issues that are most frequently raised are below:
- Confidentiality/data protection
- Inadvertently discouraging access to health care and other services
- Who ultimate responsibility would sit with in the organisation that is named
- Increased demands on staff time and resources in complying with the duty
- Duplication of referrals
- Different IT systems across some services
- Geographical reach of some services
The reasons why the Scottish Government would like to name these bodies is explained below.
| Who |
Reason |
|---|---|
| All 32 Scottish Local Authorities |
Local authorities are First Responders for the NRM process and many front line services such as housing, adult and child protection, education, social work, community safety and mental health will come into direct contact with potential victims. At present, if a person does not consent to enter the NRM, no information is collected. An alternative anonymous referral under section 38 of the Act would allow this information to be collected and inform enforcement and support provision. This data will be collated by Police Scotland who will be able to see what local authority areas victims are being recovered from and potentially what local authority areas perpetrators are active in. Local authorities could also use the information to raise awareness amongst their services and the local community. |
| All 14 Scottish Geographical NHS Boards |
The NHS are not First Responders for the NRM process however front line medical, and non-medical staff, could potentially play a pivotal role in identifying potential victims that may otherwise go unnoticed or remain invisible. Human trafficking has parallels with other crimes such as domestic abuse, child protection, violent and sexual offences. Victims of these offences may present at different NHS access points and staff must decide if information requires to be passed on to the appropriate authorities in terms of safeguarding and the reporting of crime. At present there is no record of potential victims of trafficking accessing NHS services. |
| NHS 24 |
NHS 24 services may come into contact with potential victims who choose to access health care services outwith normal working hours, or potentially to avoid face to face discussions. |
| Scottish Ambulance Service |
The nature of the work of the Scottish Ambulance Service means that staff and Community First Responders may come into contact with potential victims. The time that staff have with potential victims may be limited, for example at the scene of an accident. However the circumstances may alert those attending that something is not quite right and point towards the injured person being a victim. As Community First Responders are based in many locations across Scotland they may see things that indicate trafficking or exploitative behaviour when carrying out their duties. |
| Scottish Fire and Rescue Service |
The SFRS is in a unique position to identify potential victims as it may be able to gain access to properties in the course of their work that other agencies are not. The list below are premises where the SFRS may visit and victims have been recovered from most, if not all, of these types of premises in Scotland.
|
| Scottish Ministers for the purposes of including Marine Scotland |
Fishing is one of a number of industries where trafficking victims have been recovered in Scotland, across the UK and beyond. The Scottish Government recognises that many operators in the fishing industry, or any other industries where trafficking has been identified, do their business legally and legitimately. However it must be acknowledged that exploitation does occur and therefore capturing data about victim profiles, location of exploitation and other factors is important in order to support victims to safety and recovery, identify perpetrators and disrupt their activity and address the conditions that foster trafficking. The Scottish Government believes some Marine Scotland staff such as compliance officers will be in a position to spot signs of trafficking and exploitation given their direct interaction with fisherman and trawler activity. |
| Scottish Ministers for the purposes of including Scottish Prison Service |
The Scottish Government is aware that some victims of human trafficking have not been identified during the criminal justice process and are only identified once they are within the prison estate either on remand or serving a sentence. It is possible that a victim has been remanded or serving a sentence for criminal behaviour carried out as a result of exploitation and the signs/indicators of trafficking have been missed by Police, Solicitors and the Courts. It is also possible that an individual may be remanded or convicted and serving a sentence for a crime unrelated to being trafficked but once in the prison estate they disclose having been trafficked or display indicators that suggest historical trafficking. NHS staff and social workers based in prisons will be in an ideal position to spot the signs of trafficking in addition to the prison staff responsible for the welfare of individuals in custody. |
| Scottish Environment Protection Agency (SEPA) |
SEPA may have a role to play in combatting human trafficking due to its regulatory and enforcement activity around protection of the environment in respect of water and waste. The Scottish Government understands from our stakeholders that these are two areas of activity where either victims are recovered or where perpetrators may be active. |
Question 1:
Do you agree that these bodies should be named in Regulations under section 38(1) of the Act?
| Who |
Yes |
No |
If no, please give your reasons for this here. |
|---|---|---|---|
| All 32 Scottish Local Authorities |
|||
| All 14 Scottish Geographical NHS Boards |
|||
| NHS 24 |
|||
| Scottish Ambulance Service |
|||
| Scottish Fire and Rescue Service |
|||
| Scottish Ministers for the purposes of including Marine Scotland |
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| Scottish Ministers for the purposes of including Scottish Prison Service |
|||
| Scottish Environment Protection Agency (SEPA) |
In addition to the NHS Boards mentioned above the Scottish Government recognises there are other access points to NHS services that potential victims of trafficking may use, such as Dental Practice, Community Pharmacists and General Practice. However they cannot be named in Regulations because they do not fall within the legal definition of ‘Scottish public authority’.
The Scottish Government is of the view, subject to this consultation exercise, that for the reasons described below voluntary notifications should be encouraged by these groups of professionals and their staff.
Dental Practice Staff
Dental Practice staff may provide a service that victims may seek to access in order to receive treatment for injuries they may have sustained, or to seek treatment for poor dental hygiene.
Community Pharmacists
Community pharmacists may be an access point to NHS services if a victim is not registered with a GP or if they do not wish to attend at A&E or other mainstream NHS services.
General Practice Staff
General Practice staff may come into contact with victims during the course of their duties and this is another access point for victims to receive treatment. The Scottish Government is aware that females are more likely to attend GP services in the very late stages of pregnancy without having received any previous antenatal care or males may attend GP services as a result of injuries sustained following labour exploitation.
It is important to remember that not all victims will be from outside the UK. It is possible that Scottish citizens may potentially be vulnerable to exploitation and require medical treatment. In such incidences potential victims could be registered with a GP and seek treatment there.
Question 2:
Do you agree that those listed below should be encouraged to submit voluntary notifications?
| Who |
Yes |
No |
If no, please give your reasons for this here. |
|---|---|---|---|
| Dental Practice Staff |
|||
| Community Pharmacists |
|||
| General Practice Staff |
Question 3:
Are there any other Scottish public authorities that you think should be subject to the Duty to Notify? Yes/No
| If you answered yes to Question 3 please name the body and reason for each body here. |
|
|---|---|
| Body |
Reason |
In terms of content of the Regulations it will be the Scottish public authority that is named and subject to the legal duty and not an individual person or role within that public authority. The Scottish Government recognises that a one size fits all approach will not be feasible in terms of implementation of the duty and is of the view, subject to this consultation exercise, that it will be for each public authority to determine how this duty will work in practice.
Question 4:
Do you agree that bodies named in Regulations should establish their own processes for complying with the duty? Yes/No
If you answered No to Question 4 please give your reason why
A notification under subsection (1) relating to an adult must not include information that (a) identifies the adult, or (b) enables the adult to be identified (either by itself or in combination with other information) unless the adult consents to the inclusion of that information.
Contact
Email: susan.young@gov.scot
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