I’ve written before about what the Modern Slavery Act 2015 (MSA 2015) might mean for those affected, including businesses whose global supply chains may be at risk of involvement in modern slavery.
The Act has received mixed reviews.
Last Tuesday, still buzzing from the London Legal Walk, I attended an event held by the Business and Human Rights Resource Centre and heard from 5 speakers on the key trends in modern slavery litigation. Below is a brief overview, in case you missed the event.
Nick Grono from the Freedom Fund defined strategic litigation as using the law to promote social change, beyond the outcome of the individual case itself. It has been a tool for campaigners for several hundred years. An early and famous example of a successful legal challenge to slavery was Somerset’s case (1772). Somerset was bought and enslaved by a British slave-owner in Boston. After being taken to England, Somerset escaped but was recaptured and imprisoned on a ship bound for Jamaica. Lawyers argued his detention was unlawful as slavery was not recognised by the common law of England nor was it legislated for. High Court agreed, rejecting the arguments of the slave-owner that he was entitled to recover his property by the effect of contract law and ordering that Somerset be freed. Modern day litigation seeks to change the cost-benefit analysis that companies make when they approach issues of compliance in this area.
Shanta Martin, partner at Leigh Day solicitors, spoke about the ongoing case against the Houghtons, described by officials as “the worst UK gangmaster ever”. Six Lithuanian men accuse DJ Houghton Catching Services Limited, and the several of its senior staff of trafficking them into forced labour in the UK, in overcrowded and dirty conditions. The farms on which the men worked supply leading brands, including “Happy Eggs”. A claim was filed in the High Court after the men had tried repeatedly to get police to bring the Houghtons to justice over a 3-year period following their release. The Houghtons have taken a number of procedural points in their defence and the litigation continues.
Professor Roger Alford from the University of Notre Dame discussed the use of tort law to address modern slavery in US cases, including the re-framing of human rights violations as traditional torts. Seen through this lens, detention becomes false imprisonment and torture becomes assault or battery. Further notable trends include the increasing amount of legislation being imposed upstream, such as California’s Transparency in Supply Chains Act. His view was that both criminal and civil remedies were appropriate tools and could be complimentary or follow one another in any given case. Take, for example, the current US litigation against BNP Paribas for complicity in the Sudanese genocide. The civil case has followed a US public prosecution relating to similar facts.
Kevin Hyland, the UK’s new Anti-Slavery Commissioner, spoke about the growing legislative burden on companies to ensure that their supply chains are free from forced labour. Despite some changes in attitude in the commercial sector, there have been many failures by the police to investigate complaints of trafficking in the UK, including from minors. The general purpose of the MSA 2015 was to bring about a change in culture and turn businesses into ‘accident avoiders’ when it comes to abuses embedded in their value chain. According to Hyland, this seems to be working on key industry leaders. The Secretary of State can apply for an injunction against non-compliant businesses. (I’d be interested to see if this power is ever used, in practice…)
Danielle McMullan, senior researcher at the BHRC, gave her analysis of the levels of compliance with section 54 of the MSA 2015, which requires companies with a total global turnover of £36 million or more to publish a “slavery and human trafficking statement”. In summary, most of the statements that have been published fail to comply with the guidelines and many appeared repetitive in their content. Many companies had failed to get the statement signed by a director or publish a link to the statement on the homepage of their website, as required by the 2015 Act. There is clearly a long way to go to ensuring compliance with this reporting mechanism and companies that do not take these requirements seriously are only increasing their litigation risk.
The event pulled together a wide range of experts in trafficking law and the discussion illustrated the ‘work-in-progress’ nature of litigation in this area. MSA 2015 missed the opportunity to create a civil cause of action to protect the victims of trafficking and exploitation in the UK. The Act does not even define what ‘trafficking’ is: you have to look to international law and Article 3 of the Palermo Protocol. Victims seeking justice in the civil courts have to cobble together a variety of claims from tort and employment law. Some of these claims remain vulnerable to being struck out on the basis of illegality (because you cannot generally sue on the back of an illegal contract).
The law in this area is evolving, but mostly because Claimants and their representatives are taking risks and pushing the legal boundaries. Regrettably, the government’s removal of legal aid for civil litigation can only slow down the progress towards ending modern slavery. Some Claimants may benefit from the assistance of the charitable wings of city law firms, but others don’t.
I can’t help feeling that the historical parallels with the abolitionist movement should be deployed with caution and qualified by the fact that white male philanthropists of the abolitionist movement perpetuated forced labour, (ie. slavery by another name).
Recognition and giving voice to those who have suffered from trafficking (in presentations and on speaking panels) is an important part of movement building. Otherwise, the discussion can alienate the very groups who should otherwise be engaging in it.