Slavery is not a thing of the past. It continues to be a reality for thousands of people in the UK. It occurs right under our noses: in our towns and cities and in UK businesses. Only this week the Court of Appeal (in Reyes and others v J Al-Malki and others) examined the extent of diplomatic immunity for Saudi Arabian diplomats whose domestic workers alleged they were victims of trafficking and wanted to bring claims against the diplomats for racial discrimination & harassment.
- This article is by Kim Harrison, Slater & Gordon lawyers’ head of human rights together with Richard Scorer, head of the abuse team
The traditional definition of slavery set out in the 1926 Slavery Convention (‘the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised’) has now been updated. ‘Modern Slavery’ is defined as ‘slavery, servitude, forced or compulsory labour, human trafficking and exploitation; including sexual exploitation of both adults and children’.
But on either definition, there are thousands of slaves in the UK – 8,300 according to the 2014 Global Slavery Index, 13,000 according to the Home Office. An Impact Assessment accompanying the Modern Slavery Bill estimates the social and economic costs of human trafficking for sexual exploitation at £890 million per year. The problem is with us and very real. So what can be done about it?
Of course, the Human Rights Act prohibits slavery. Article 4 states that ‘No one shall be held in slavery or servitude’ and ‘No one shall be forced to perform forced or compulsory labour.’ But these fine words need to be underpinned by practical enforcement measures: hence the Modern Slavery Bill, the first draft of which was published by the Home Office in December 2013.
The Modern Slavery Bill
The Bill is partly a consolidating Act, bringing together existing human trafficking and slavery offences. But it also increases the maximum sentence for slavery and human trafficking to life imprisonment, introduces slavery and trafficking prevention orders (STPO) and slavery and trafficking risk orders (STRO) to restrict movement or impose restrictions on convicted or suspected traffickers.
It creates a new requirements for reporting all suspected cases of human trafficking to the UK victim identification and support process, the national referral mechanism (NRM). After much lobbying, the most recent draft of the bill also requires commercial organisations above a certain size to report each year on the steps they have taken to eradicate slavery in their business and supply chains. The bill also contains a power to make confiscation orders using the Proceeds of Crime Act (POCA) and slavery and trafficking reparation orders in to compensate the victim. Finally, the bill creates the post of anti-slavery commissioner.
The first offence in the bill is the offence of slavery, servitude or forced and compulsory labour (reproducing an existing offence in the Coroners and Justice Act 2009). This new offence is intended to address the criticisms of the UK in the case of CN v UK (2012). Here, the court emphasised that domestic servitude is distinct from trafficking and exploitation and involves a complex set of dynamics, involving both overt and more subtle forms of coercion to force compliance. The second offence is human trafficking offence covering both sexual and non-sexual exploitation, the penalty for which is increased to life imprisonment. The third offence is the offence of committing an offence with the intention of committing human trafficking.
Without doubt, the new orders (STPO and STRO) give the Bill some teeth. An STPO can be made if someone has been convicted of a slavery or human trafficking offence and can prohibit that person from doing anything described in the order for a period of at least 5 years. An STRO can be made against a person who is considered to have acted in a way which makes it necessary to protect a person or persons from harm but there does not have to have been a conviction for the STRO to be obtained and any order can last at least two years. Both orders may contain provisions restricting foreign travel in the hope of making repeat or potential trafficking more difficult.
This Bill is massive step forward.
But as currently drafted, it isn’t enough. The bill is geared towards the criminal prosecution and punishment of the perpetrators. This is welcome and long overdue, and a massive step forward in protecting the human rights of modern slavery victims. But those victims need more than this. As well as seeing the perpetrators of this horrific crime punished and imprisoned, they themselves require help, support and compensation to enable them to rebuild their shattered lives, find somewhere safe to live and work and also access to high quality medical treatment and mental health support. This includes access to high quality and timely legal advice in respect of immigration, housing, mental health and civil compensation and redress which means that victims need to be able to access public funding quickly and without hurdles. So what the bill lacks is putting the victims of modern slavery, their needs and their future at the heart of it.
As well as that, the thresholds for prosecution in the Bill are too high. Clause 1 (the offence of slavery, servitude or forced and compulsory labour), has been singled out for special criticism. Despite updating the law on consent to make clear that the consent of the person does not preclude a determination that they are being held in slavery or servitude, evidence would be still be required to demonstrate force or compulsion. This is too high a threshold for cases involving children who are controlled simply because of their vulnerability rather than through physical force or compulsion ( for example through being groomed for sexual exploitation or being trafficked by a family into being their domestic servant). Such victims may have no real understanding that what is happening to them is wrong.
Another problem is the Human Trafficking offence (Clause 2 of the bill). This requires evidence of movement and the intention to exploit must be shown at the point of moving the child from A to B, which is not in line with international law. To close this loophole Baroness Doocey has tabled an amendment to create a new offence of ‘Child Exploitation’ which has wide support including the Labour front Bench. Campaigners argue that this stand-alone offence is needed to capture those cases where evidence of movement is not available or the child cannot disclose because of age or other reasons. All available evidence shows that the majority of child cases are rarely prosecuted because the thresholds for existing offences are either too high or not fit for purpose for more sophisticated or organised child exploitation where grooming or deception rather than force or withdrawal of basic needs are most commonly used.
Others have also complained that the anti-slavery commissioner needs to have more teeth: at the moment the role is limited to reporting, research, educating and making recommendations.
The biggest flaw in the bill, in our view, is the lack of civil compensation remedies. Victims should be able to bring civil claims against perpetrators, many of whom will have benefitted financially from their activities by exploiting workers for less than the minimum wage or no wage at all either in a business or domestic setting. As with other civil claims damages would be offset by any other compensation already paid including reparation orders and CICA. This amendment was debated in December 2014 in the House of Lords but was withdrawn for consideration of existing civil remedies. We understand it is being re-drafted for submission later on this month.
In our view modern slavery victims must have the right to pursue a civil compensation claim. Existing civil claims which can be brought against perpetrators for physical assault and rape or false imprisonment can only go so far in providing compensation; not all victims of modern slavery have been the subject of sexual assault and many will notmeet the criteria for the civil tort of false imprisonment. This is a highly complex and difficult area of law – consent is a defence to false imprisonment and very often those who are trafficked and exploited will not be here under duress or realise the full nature of their exploitation as previously discussed, be they adults or children.
The role of manipulation and grooming in these cases by those who traffic and enslave, who often come from the same communities abroad cannot be understated. An additional problem with existing civil remedies is that most victims will have come here illegally or during the course of their servitude or exploitation will have committed illegal acts which may well preclude them from receiving civil compensation. The Supreme Court recognised this in Hounga v Allen  in an employment law context, but we need to extend this principle to all forms of modern slavery.
As it stands, the civil law does not do enough to compensate victims of modern slavery. That needs to change. An effective civil compensation clause in this ground breaking Modern Slavery Bill would provide that access to justice for some of the most vulnerable members of our society.