Hansard

I thank all members for their contributions. There have been detailed speeches from members who have been involved, for a number of years, in the issue of tackling human trafficking and exploitation. I have listened with great care to members’ views and concerns. I will try to cover as many of the issues as I can, but I apologise to members whose points I do not get the chance to cover.

I turn to what I think Hugh Henry characterised as the “thorny” issue of the proposal for a statutory defence. Obviously, the committee considered that issue, and I am mindful of the views that members have expressed today. Some members are sympathetic to the proposal, but are not persuaded that there should be a statutory defence on the face of the bill in light of the evidence that was received from the Lord Advocate.

I reassure members that we have taken a deliberate approach. We considered the whole issue of a statutory defence being put on the face of the bill and chose not to do so for the specific reasons that I outlined to the committee. We have chosen to take a much more victim-centred approach, which allows us to intervene at a much earlier stage and gives the Lord Advocate and the Crown the flexibility to act at an early stage.

Some members have suggested that we should have the Lord Advocate’s guidelines—he has indicated that he is prepared to make them instructions, and we are more than content to lodge an amendment at stage 2 to make provision for that—and a statutory defence in the legislation at the same time. However, as the Lord Advocate has also pointed out, if there were a statutory defence alongside the instructions, the instructions that he published would be governed and influenced by the statutory defence; it would have a direct impact on them.

The other potential consequence is that defence agents could start to become dependent on what would be the statutory defence approach. That would undermine the victim-centred approach that we are trying to achieve, which will involve identification and intervening at an early stage through the use of the guidelines or instructions. If defence agents then felt that they were just going to use the statutory defence, they would be less likely to flag up to prosecutors any concerns that the individual may have been trafficked.

It is not that the matter was not considered in great detail in the drafting of the bill, but we considered that there was a way in which greater focus could be given to the needs of victims. That is why we are not persuaded that a statutory defence should be put on the face of the bill. I suspect that we will return to that issue at stage 2 in the committee and possibly at stage 3, as well.

Several members raised the issue of the presumption of age. That, too, is a very challenging and difficult area, because the likelihood is that many people—particularly younger people—who have been trafficked will have come from areas and jurisdictions that have no papers, so we will have no way of identifying their age. As things stand in local authorities and social work provision, if a vulnerable person is identified and it is thought that they are a child or a young person although they do not have papers, they should be dealt with as a child or a young person until it is known otherwise, because it can take several weeks or months to come to a confirmed position on identifying and finalising someone’s age. The approach that we have taken involves trying to avoid the potential problem of an individual who does not have papers and who may appear to be a child but is not a child ending up being put into children’s services, or the other way round.

However, I acknowledge some of the concerns that members have raised and we are looking again at whether we should make provision in the bill to address that issue. The Lord Advocate has raised that issue, too. We will therefore consider whether we should amend the bill at stage 2 to have a statutory presumption of age in order to address those issues and concerns.

On the term “travel” and the approach that we have taken on that, it is important to emphasise that the offence in the bill does not criminalise travel; rather, it criminalises the specific act of arranging or facilitating another person’s travel, including by

“recruiting the person with a view to transporting or transferring the person ... transferring or exchanging control of the person”

or

“harbouring or receiving the person”.

Those acts are all part of what was set out in the EU directive. In addition, the approach that we have taken around the definition of the offence, including the term “travel”, is virtually the same as that which has been taken forward in England, Wales and Northern Ireland.

The wording is written to ensure that we have a distinction between human trafficking and exploitation. “Travelling” is an important element of that. However, as I said in my opening speech, it is not about travelling from one country to the next, but about travelling within the UK. We will look to see whether we can amend the bill at stage 2 to provide further certainty and clarity on the matter, given the concerns that have been raised.

I turn to the issue of guardianship, which Jenny Marra and a few other members raised. It goes without saying that we all have an interest in doing the right thing for any child or young person who finds themselves being trafficked. We must ensure that we find a mechanism to achieve that most effectively. Our approach in the bill has sought to achieve that. We have a range of legislation in place that applies to children and young people and a range of agencies have statutory responsibilities that apply whenever a young person or a child is identified as being vulnerable, as would be the case for any child or young person who was being trafficked.

I recognise members’ concerns about having appropriate guardianship for children in such circumstances. Although the approach that I have set out, including the measures that we will progress through the strategy, is the one that we favour at this point, we will look at where we can put in place further mechanisms or provisions to address those issues. That includes the possibility of statutory provisions.

I turn to several other matters that have been raised. There is absolutely no doubt that one of the most important elements in progressing the legislation is the creation of an offence. However, the bill also looks at the whole range of measures that we must take to support and assist those who have found themselves being trafficked or exploited. The strategy will be central in helping to deliver that support and assistance.

I am mindful of Alison McInnes’s concerns about the list of support and assistance measures that is provided in the bill. I reassure members that the list is not exhaustive. What is provided goes beyond that; it does not set out exclusively all that can be provided. However, we will look at amending the bill at stage 2 to change the term “counselling” to “psychological assessment and treatment” to address the issues raised.

I am conscious that the criminalisation of the purchase of sex is a complex issue. Rhoda Grant, Joan McAlpine and John Mason made known their strong views and other members expressed concerns about including that in the bill. I said at the start of the process that I would meet those from both sides of the argument. I have met the half who support the measure, and I will meet those who oppose the inclusion of any such provision in the bill. A substantive issue has been raised, which must be considered. I am mindful of the committee’s view that it does not consider that the bill is the right vehicle for that measure. I assure the committee and the Parliament that, by the time that I arrive at the committee for the stage 2 considerations on the matter, I will be able to set out the Government’s view having met both groups.

The bill has broad support across the chamber. It will make Scotland a hostile place for those who want to indulge in human trafficking and exploitation—a place where they cannot do business. I assure those people that the Government’s approach at stages 2 and 3 will be to build on the bill and ensure that Scotland becomes that hostile place for those who peddle such crime.