Human Trafficking and Exploitation (Scotland) Act 2015: consultation on regulations

Introduction

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

2. A Guide to the Act has been prepared.

3. The Act creates a new legislative context that will simplify how police and prosecutors can deal with these crimes. Until now, police and prosecutors have had to rely on a number of different legislative instruments to charge suspected perpetrators.

4. The offence of human trafficking is defined in Section 1 of the Act as the recruitment, transportation or transfer, harbouring or receiving or exchange or transfer of control of another person for the purposes of exploiting them. The arrangement and facilitation of these actions also constitutes the offence. This definition does not require coercive means such as threats or intimidation to be present and it is irrelevant if the victim 'consented' to any part of the action.

The offence of 'Slavery, servitude and forced or compulsory labour' is defined in section 4, covering the exploitation of persons who have not been trafficked.

Both offences now carry a maximum sentence of life imprisonment.

5. The Act also takes forward improved protection for victims, through the Lord Advocate's instructions on the presumption against the prosecution of victims in certain circumstances and by placing a duty on Scottish Ministers to provide support and assistance for victims. Further, the Act makes provision for orders for which the police can apply, to disrupt activity related to trafficking and exploitation.

6. This consultation document refers to section 10 of the Act, which relates to the provision of support and assistance to victims of an offence under section 4 - slavery, servitude and forced or compulsory labour.

7. This consultation allows you to give your views. The responses will then be analysed and considered by the Scottish Government with a view to determining how support and assistance should be secured for victims of the section 4 offence.

Background

8. Section 10 of the Act enables Scottish Ministers to make regulations about provision of support to victims of an offence under section 4 of the Act - slavery, servitude and forced or compulsory labour. It does not place a duty on them to provide that support in the way that Section 9 does with regard to victims of an offence under section 1 - human trafficking.

9. The Guide to the 2015 Act may be of help in considering this section and an extract is set out below.

The offence of slavery, servitude and forced and compulsory labour

This is set out in section 4 of the Act. A person commits an offence where they know or ought to know that they are holding another person in slavery or servitude. A person also commits an offence where the person knows or ought to know that they are requiring another person to perform forced or compulsory labour. The meaning of "slavery, servitude and forced or compulsory labour" is not set out directly in the Act. Instead, the Act provides that the phrase is to be construed in accordance with Article 4 of the ECHR, which prohibits a person being held in slavery or servitude or being required to perform forced or compulsory labour.

Accordingly, where the treatment of a person would not be allowed under Article 4 of the ECHR then that treatment will fall within the scope of the offence.

Section 4 goes on to make clear that when deciding whether the offence has been committed, then the personal circumstances of a person which may make them more vulnerable, are to be taken into account. It also provides that the fact that a person consents to being treated in this way does not mean that the offence has not been committed.

Differences between the offences

Slavery, servitude and forced or compulsory labour is included as a form of "exploitation" in section 3 of the Act. Where a person carries out a "relevant action" as defined in section 1, together with an intention to exploit in a way which would - if the exploitation occurred - amount to an offence under section 4, then an offence of "human trafficking" has been committed. That is the case even if the exploitation does not in fact occur.

Accordingly, where slavery, servitude and forced and compulsory labour occurs without the presence of a "relevant action", then it is only the offence of slavery, servitude and forced or compulsory labour which has been committed. It does not matter whether that other person consents to that action being taken. A "relevant action" is any of the following:

• Recruiting another person;
• Transporting or transferring another person;
• Harbouring or receiving another person;
• Exchanging control over, or transferring control over another person;
• Arranging or facilitating (without necessarily doing), any of the actions above.

Travel from one place to another is not a required action for there to be an offence under section 1 (human trafficking) in Scotland.

Because the offence of human trafficking under section 1 is wide, this means that the circumstances in which an offence under section 4 would be committed are limited but nonetheless possible. For example, someone who is enslaved and exploited by their family.

The Regulations under consideration would only apply to the victims of this section 4 offence.

Proposals

The Scottish Government plans to commence this section and make Regulations in order to provide support and assistance to adult victims of a section 4 offence. These Regulations would be subject to the affirmative procedure.

In order to inform our policy thinking, there are a number of issues on which we would welcome your views.

1). The Regulations would be able to set out the method of determining whether an adult is or appears to be a victim of an offence under section 4.

In your view, how should that determination be made? For victims of the equivalent offence in England, Wales and Northern Ireland this is carried out through the National Referral Mechanism ( NRM). The NRM is a framework for identifying victims and ensuring they receive the appropriate support. Further background on the NRM can be found here.

Do you agree that this should be the route for potential victims recovered in Scotland too?

Y/N

If you do not agree, what would you suggest? What should identification encompass?

2). The Regulations would also be able to set out how long support must be provided for (equivalent to the mandatory period for adult victims of human trafficking). They may also set out the period during which support and assistance may be provided (the equivalent of the discretionary period for adult victims of human trafficking).

The Scottish Government proposes that a 90 day period of mandatory support would be available to victims of slavery etc, the same as will be the case for victims of human trafficking (a section 1 offence) once the relevant Regulations are in force, with a discretionary period based on need until a conclusive determination is given.

Do you agree with these proposals?

Y/N

Please feel free to comment further on your answer.

3). The Regulations would also be able to set out the types of support and assistance to be provided. In section 9, the list of support and assistance that may be provided for trafficking victims includes accommodation; day to day living; medical advice and treatment (including psychological assessment and treatment); language translation and interpretation; counselling; legal advice; information about other services; and repatriation.

The Scottish Government proposes that the same types of support and assistance should be provided for victims of slavery etc, insofar as they are required by the adult.

Do you agree?

Y/N

Do you have any further comments?

4). The Regulations may also set out the manner in which the support and assistance should be provided. The Scottish Government proposes that the support and assistance should be provided in the same way as that provided for victims of a section 1 offence i.e. through the same providers as those appointed to support victims of a section 1 offence. Annex A gives further details

Do you agree?

Y/N

Do you have any further comments?

5). Do you have any other points you want to make with regard to support for victims of slavery, servitude and forced or compulsory labour?