Much fanfare greeted the passage of the Modern Slavery Act 2015 (‘MSA 2015’), hailed by the government as an “historic milestone” at the end of Parliament. The reality is a more modest step forward.
What’s all the fuss about?
According to the preamble, MSA 2015 aims:
… to make provision about slavery, servitude and forced or compulsory labour and about human trafficking, including provision for the protection of victims;
The MSA 2015 consolidates a variety of criminal legislation relating to human trafficking. Schedule 1 lists the relevant offences. They include the offences of trafficking for sexual exploitation into, within, outside and out of the UK (in the Sexual Offences Act 2003, sections. 57-59), facilitation of trafficking for exploitation (in the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, section 4), slavery, servitude and forced or compulsory labour (in the Coroners and Justice Act 2009, s.71) as amended.
What’s new?
MSA 2015 recognises that modern international businesses are exposed to the risk of involvement in modern slavery and exploitation. It contains a transparency in supply chains (or ‘TISC’) clause in section 54. This requires certain large companies to disclose in each financial year what steps they have taken, if any, to eradicate slavery and human trafficking from their supply chains or business activities. Disclosure statements must be approved by the board of directors or equivalent.
MSA 2015 also establishes an Independent Anti-Slavery Commissioner and creates a statutory defence for victims of trafficking or slavery in criminal proceedings, among other things.
What does civil society say?
A number of deficiencies were identified by NGOs and lawyers who heavily contributed to the Act’s evolution and passage through Parliament.
Law enforcement-focus
Overall, the Act is highly dependent on the criminal justice system. Critics observe that prosecution cannot always provide adequate support, empowerment or redress for victims. Extremely vulnerable individuals are unlikely to give evidence against well-resourced international trafficking networks. Victims cannot directly seek financial compensation from criminal courts but must rely on the police and prosecution to present their case.
It may also be said that criminal law is not a particularly adequate tool for tackling businesses who benefit from large-scale exploitation embedded in the global marketplace.
Overseas domestic workers
In April 2012, as part of more restrictive immigration controls, the visas of overseas domestic workers were tied to their employers. This condemns hundreds of people to household slavery under abusive employers who they are often unable to escape without becoming undocumented.
Under MSA 2015, this will restriction remains largely unchanged. Despite the House of Lords voting in favour of an amendment that would have allowed such workers to change employers if they experienced abuse, the government made a further amendment, now in section 53, requiring overseas domestic workers to receive a positive determination from the National Referral Mechanism confirming they have been trafficked before they are allowed to change employer. This imposes a significant bureaucratic barrier between victims of abuse and legal remedies.
TISC clause
It is highly disappointing that despite the best efforts of campaigners, the TISC clause contains what Anti-Slavery International has described as a “massive loophole”.
The clause applies to all “commercial organisations” with a substantial turnover (to be set by secondary legislation). However, section 54(12) defines “commercial organisations” as corporate bodies doing some or all of their business in the UK.
This exempts UK-based parent companies from reporting on the activities of their wholly-owned overseas subsidiaries. This embarrassing omission renders the clause seriously inadequate given the complex and devolved structure of many multinational corporations operating in high-risk sectors and regions.
Ultimately, a reporting requirement is unlikely to be an effective deterrent to companies who benefit directly or indirectly from slavery or forced labour in their supply chains. Many large companies are used to reporting on the human rights effects of their operations and related social responsibility programmes. The TISC clause may add little to existing reporting frameworks. For these reasons, it is a limited contribution to the public accountability of commercial organisations on this issue.
Conclusions
A better law would have included tougher and more carefully crafted amendments to plug existing gaps in the protection of victims and mechanism for redress and accountability. But perhaps MSA 2015 is best seen as a ‘work-in-progress’. It is unlikely to be the last word on the issue and we can expect further amendments to be debated in the next Parliament.
This post is indebted to the expert analyses of Parosha Chandran, barrister at 1 Pump Court, and Anti-Slavery International, who presented at an event hosted by the René Cassin on 22 April 2015. For more details, see this link.
