Shine A Light

Today MPs vote to end slavery - tomorrow they vote to continue it

One consequence of proposed cuts to legal aid is that children trying to prove they have been trafficked will be denied legal assistance.

Ian Dunt
8 July 2014

This afternoon, the modern slavery bill gets its second reading. It's a decent bit of legislation, arguably the only one in a Queen's Speech which was as turgid and unappealing as a week-old cup of tea. It has faults – notably the absence of independent legal guardians for children and non-prosecution clauses to ensure children were never punished for what they did as a result of being trafficked. But it remains a good bit of law.

Tomorrow, sometime between 11am and 2pm, MPs will vote to enact a 'residence test' to qualify for legal aid, so that only people who have been in the UK legally for a year can apply for free legal representation. It withdraws legal protection from many trafficked children.

It is hard to think of a more discreditable way for a government to behave when it is purportedly trying to eradicate modern slavery. But these are different narratives, so the contradiction is barely noticed. Today is about slavery. Tomorrow is about immigration. In the strange world of politics, there is no overlap.

The change to legal aid contravenes Article 12(2) of the EU Directive 2011/36/EU on Preventing and Combating Trafficking in Human Beings and Protecting its Victims.

This is what the article states:

"Member states shall ensure that victims of trafficking in human beings have access without delay to legal counselling, and, in accordance with the role of victims in the relevant justice system, to legal representation, including for the purpose of claiming compensation. Legal counselling and legal representation shall be free of charge where the victim does not have sufficient financial resources."

At first the government simply planned to strip trafficked children of any access to legal aid, an unconscionable moral decision whose hasty production implied it was an attempt to stem Ukip support. Then, after children's charities issued dire warnings at consultation, this was altered slightly. Trafficked children would be exempted – but with significant caveats.

The exemption is narrow. It only includes cases that are immigration claims, certain employment claims and damages claims connected with the trafficking. A child trying to prove he has been trafficked will not be entitled to legal help.  If the state decides the child is an adult (proof of date of birth is rare in trafficking cases) and refuses him assistance, he has no access to legal help. If the child is put in detention, he can access legal help to get out but not to challenge the conditions or raise concerns about treatment in the centre, including but not limited to sexual assault.

Chris Grayling said trafficked children would be able exempt themselves from the rules if they claimed asylum. He asks for a considerable degree of trust. First-hand reports of how UK Border Agency (UKBA) staff treat vulnerable new arrivals to the UK suggest they will not hold the child's hand and guide them through the process. All the behaviour of UKBA is intent on discouraging people claiming asylum. Suggesting they will now start actively encouraging them is optimistic.

The joint committee on human rights had similar misgivings. Their report concluded the change was illegal under international law. They said:

"We seek assurances from the government that assistance and advice would be given to victims in this situation about this course of action.

"The exemptions do not go far enough. We recommend that the government's exemptions be extended to cases where the status of the trafficking victim is contested, and to legitimate challenges to failure to prosecute or investigate.

"We acknowledge the specific concerns regarding victims of trafficking who are children, or whose age is disputed, and we repeat our earlier recommendation, that all children be exempt from the proposed residence test."

The Children's Society warned that trafficked children who claim asylum and are rejected but cannot be returned to their home country because it is too dangerous will then be left in a new legal limbo: unable to get legal aid; lost in the system. Migrant children who've been living in private fostering arrangements and exploited as domestic servants would also be left vulnerable, the charity said.

Even the children granted refugee status will be forced to wait 12 months until they can access legal aid. In that time. Children's groups have warned they may be left destitute and homeless.

Matthew Reed, Children's Society chief executive, said:

"Many children who have been abandoned, trafficked into sexual exploitation or forced labour … will be left without a voice and right of redress.

"They will be prevented from challenging decisions and denied their basic rights to help and protection."

A quarter of the 2,225 potential victims of trafficking in the UK in 2012 were children. At least ten children a week are trafficked in the UK, destined for domestic work, forced labour or sexual exploitation. We are not dealing with small numbers. We are passing rules that put them at greater risk while touting our moral triumph over slavery.

What are we doing it for? It is honestly hard to find an excuse for the rule change that does not involve pandering to Ukip voters. No economic or social case has been made.

As Liberty's legal opinion said:

"It would not survive scrutiny given its nature and impact, as well as the paucity of the reasoning put forward, and the absence of anything approaching a proper assessment of its implications.

"The flaw in this proposal is fundamental. It is unequal and unfair."

Today MPs vote to end modern slavery. Tomorrow, they will subject more people to it.

It's worth mentioning that Labour has been honourable on this issue. The party forced tomorrow's deferred division and is voting against the legal aid cuts.

Here's shadow justice minister Andy Slaughter:

"These are the actions of a government determined to strip back access for justice for some of the most vulnerable members of society. They are proposing a draconian residence test which would have meant the Ghurkhas, the Afghan interpreters, and many other meritorious claims would have lost out. Therefore Labour are calling on all parties to join us in blocking this latest assault by the government on our justice system

"These proposals, fully backed by the Liberal Democrats, have come about despite government ministers admitting they don’t have any actual figures for the amount of people involved or even whether these changes would save any money. This is not the behaviour of party serious about law and order or upholding the rule of law."

Had enough of ‘alternative facts’? openDemocracy is different Join the conversation: get our weekly email


We encourage anyone to comment, please consult the oD commenting guidelines if you have any questions.
Audio available Bookmark Check Language Close Comments Download Facebook Link Email Newsletter Newsletter Play Print Share Twitter Youtube Search Instagram WhatsApp yourData