Human Trafficking and Exploitation (Scotland) Bill
The Need for New Legislation
Like the rest of the UK, Scotland’s approach to addressing human trafficking has suffered for many years from legislation which is not fit for purpose. The law had developed piece-by-piece over the years and, as a result, lacked the coherence required to adequately address the complex nature of human trafficking. Consequently, the lack of a single definition of the offence made prosecutions difficult and, therefore, rare. The system of support offered to survivors similarly developed over time, suggesting a lack of a clear strategy to ensure that survivors receive the care which they require.
The need for new legislation was evident throughout the UK. As the devolution settlement entrusts certain key policy areas to the Scottish Parliament, such as the criminal law and the provision of health and social services, Scotland required her own legislation to complement that introduced at Westminster and Northern Ireland.
The legislative process began with a proposal for a Private Members Bill from Jenny Marra MSPs in September 2013. This proposal sought to radically alter Scotland’s approach to human trafficking and gained widespread support, reflected in the 50,000 responses to its public consultation. Leading trafficking expert Dr Anne Gallagher stated that, "if passed, it would be the most innovative and comprehensive piece of anti-trafficking legislation in the world". Subsequently, the Scottish Government supported the proposal and the Human Trafficking and Exploitation (Scotland) Bill was introduced in December 2014.
This new legislation must be welcomed in its attempts to rectify many of the failings of the past. It seeks to provide victims with suitable support, whilst also including provisions relating to offences, sentencing and other measures aimed at disrupting and preventing trafficking.
The consolidation of the offence of human trafficking in a manner which is in keeping with international law and which encompasses all forms of exploitation of both children and adults is an important step forward. The legislation also provides other important measures aimed at assisting those working to prosecute and convict perpetrators of human trafficking. The human trafficking aggravation, for example, allows for the imposition of stricter penalties upon those convicted of related offences where prosecution for human trafficking itself is not possible. The Act will also empower the court to impose a Trafficking and Exploitation Risk Order upon those convicted of an offence to further disrupt trafficking networks.
The Act also makes improvements to protection offered to victims of human trafficking. Scotland’s senior prosecutor, the Lord Advocate is, for example, obliged to publish guidance regarding the prosecution of trafficking victims who have committed offences. This guidance will require the prosecutor to consider, when determining whether or not to prosecute, the fact that the individual was compelled to commit the offence in question. There is also a duty upon the Scottish Ministers to secure the support and assistance that the survivor requires. Crucially, that support must not be conditional upon the individual providing assistance with any criminal investigation or prosecution. This protection includes enhanced provision for child victims of trafficking, such as a presumption that the individual is a child where this doubt as to their age and the creation of independent child trafficking guardians.
Perhaps of greatest interest moving forward is the requirement for the Scottish Ministers to create a trafficking and exploitation strategy. This strategy, which will be reviewed every 3 years, is to outline important information relating to the support to be provided to victims of exploitation, the steps taken to prevent trafficking occurring, as well as actions taken to raise awareness of the problem. Interestingly, this provision obliges the Scottish Ministers, prior to publication or review of the strategy, to consult with interested individuals and organisations.
This strategy will contain much of the essential details of how Scotland will address trafficking in the medium-to-long term. It will, therefore, be fascinating to see how this strategy develops and how prominent a role NGOs and other experts have in shaping its content.
Notably, the Act does not contain a provision adopting the so-called Nordic Model of criminalising the purchase, but not the sale, of sex. This Model has been introduced in Northern Ireland and whilst many campaigners had called for its inclusion, the Scottish Government has decided not to adopt that approach. It may be that the success or otherwise of the Northern Irish example will be influential in any future discussion of this issue in Scotland and the rest of the UK.
Following the passage of this legislation there is certainly reason for optimism amongst those campaigning for the eradication of human trafficking in Scotland. Once it receive Royal Assent, the Human Trafficking and Exploitation (Scotland) Act theoretically rectifies many of the inadequacies which have thus far hindered efforts to effectively address the issue. However, much will hinge upon how these provisions are implemented and, in particular, the content of the Scottish Ministers’ Strategy.