Claire Falconer, Legal Director at Focus on Labour Exploitation (FLEX) blogs about the changes the recently passed Modern Slavery Act will make to the lives of exploited workers.
In March the Modern Slavery Act 2015 received Royal Assent, as one of the last pieces of legislation to be passed by the current government. Its entry into law marked the end of an intense period of parliamentary activity and impassioned debate, and the start of a period of reflection on what has been achieved and what was left behind.
The government has emphasised the number of concessions it made in securing the passage of the Bill, and indeed important amendments were made. These include the insertion of a “Transparency in supply chains” provision, which requires companies with turnover above a certain (undefined) threshold to report on what they are doing to address slavery in their supply chains, and aims to encourage corporate responsibility. Also, a commitment to review the role of the Gangmaster’s Licensing Authority (GLA), opened up the possibility of extending its restricted remit. Finally amendments to the definition of forced labour, slavery and servitude mean this offence may fill some of the gaps left by the government’s narrow definition of trafficking.
But what difference does the law really make for actual and potential victims of severe exploitation? Of course this largely remains to be seen, but there are some areas in which the new law has potential to improve the situation of exploited workers.
Changes to the definition of forced labour, slavery and servitude have the potential to broaden understandings of criminal labour exploitation, and encourage the investigation and prosecution of a larger number of cases. The definition now makes clear that the appearance of, or actual consent of a worker to exploitative work is irrelevant where the worker is being held in forced labour, slavery or servitude. This is important given the number of cases we see in which migrant workers agree to work in sub-standard conditions that further deteriorate into forced labour through controls on movement and withholding wages. This definition also turns attention towards personal circumstances that may lead someone to be particularly vulnerable to exploitation. Such circumstances expressly include the victims’ family relationships and mental or physical illness, but also have the potential to include the victims’ immigration status – a common source of vulnerability to forced labour.
A further important step made by the Act is to protect some people who are victims of modern slavery from prosecution for crimes they are forced to commit while under the control of their exploiters. This includes migration-related crimes such as identity document fraud, and crimes commonly involving trafficked labour, such as cannabis production. Smaller steps forward were also made in the area of victims’ legal rights – Section 8 of the Act requires a court to at least consider ordering compensation for a victim following a slavery or trafficking conviction. The Act also extends legal aid to victims of forced labour, slavery and servitude, where it was previously only available to trafficking victims.
Yet it is also on victims’ legal rights and protections that major gaps remain, and the Modern Slavery Act falls short of meeting key international obligations. Firstly, contrary to the European Trafficking Convention, the Act does not guarantee victims’ access to compensation, either directly from perpetrators through criminal or civil proceedings, or through the Criminal Injuries Compensation Authority. Victims trying to obtain compensation through these avenues currently face numerous hurdles, and very few exploited workers ever recover the unpaid wages they are owed.
Secondly, while the EU Trafficking Directive, requires legal assistance to be provided “without delay”, potential victims of trafficking and slavery still face significant difficulties in accessing legal aid. In particular they cannot access legal advice until a) they have agreed to be referred to the authorities, and b) it has been determined that there are “reasonable grounds” to believe they are a victim. In the case of third-country nationals and undocumented migrants in particular, referral to the authorities is a daunting and potentially dangerous prospect that often requires expert legal advice on options and consequences. Without early legal aid it is very difficult for someone who has been exploited to make an informed decision about their case.
Thirdly, contrary to the UN Human Trafficking Protocol, the Modern Slavery Act definition of human trafficking requires that the victim has travelled into exploitation, and for that travel to have been arranged or facilitated by the perpetrator. This is not a requirement of the international definition of human trafficking, and makes it very difficult to prosecute those involved in exploitation. It reflects the Government’s ongoing preoccupation with immigration, and continued prioritisation of immigration concerns over the prevention of exploitation.
Finally, and most damningly, the Modern Slavery Act failed to abolish the highly damaging tied visa for overseas domestic workers. The tied visa, which prevents overseas domestic workers from changing employers and so binds exploited workers to their exploiters, has been the subject of a sustained campaign by Kalayaan since it was introduced in 2012, and was an ongoing issue in the Modern Slavery Bill debates. In February an amendment was passed in the House of Lords to reinstate the right of overseas domestic workers to change employers. This was swiftly overturned by the Government when the Bill returned to the Commons. Pressed for a solution, the Government extended the right to change employers to victims who agree to be referred to the authorities and who are determined as “victims”. For the majority of overseas domestic workers therefore, the tied visa remains, and perpetuates such an imbalance of power between employer and employee as to itself create a situation ripe for exploitation.
For these reasons and more the Modern Slavery Act is not exactly the triumph that the government suggests. Whilst the Act shows progress in the UK’s approach to forced labour, slavery and human trafficking, it is far too heavily weighted towards prosecution, rather than prevention and protection, and effective responses have been thwarted by immigration concerns. For the large majority of migrant workers exploited across the UK this Act will have limited impact. It does, however, start the journey towards a stronger, more comprehensive approach to labour exploitation in the UK.
Claire Falconer is the Legal Director of Focus on Labour Exploitation (FLEX). FLEX is a UK-based organisation that promotes effective responses to trafficking for labour exploitation worldwide, through research, advocacy, awareness raising and training. This blog was originally posted on the Migrant Rights Network (MRN) website.