Modern Slavery Bill

Written Evidence submitted by Professor Jean Allain (MS 01)

Section 1 -- Offences

Summary

1. The Government is right to understand Modern Slavery as constituting forced labour, servitude, slavery and trafficking. While other States have included a large number of other types of exploitation which fall into the definition of trafficking, the UK need not go any further, as the use of a residual clause within Section 2(5 and 6) of the Modern Slavery Bill captures any or all other types of exploitation as an element of the crime of human trafficking.

2. The following puts forward definitions of forced or compulsory labour, servitude, and slavery because the case-law of the European Court of Human Rights has yet to set the parameters of these crimes or provide guidance to the criminal justice system, in a manner which would secure convictions and assist victims. The Modern Slavery Bill should not rely on European Court of Human Rights, instead it should act as a beacon, demonstrating UK leadership of the anti-slavery movement which goes back to William Wilberforce.

Slavery, servitude and forced or compulsory labour

3. Since 1950, the European Court of Human Rights, by its own admission, "is not regularly called upon to consider the application of Article 4". As a result, less than a dozen cases emanating from Strasbourg have dealt in a substantive manner with issues of slavery, servitude of forced or compulsory labour.

4. In the Government Response to the Report from the Joint Committee on the Draft Modern Slavery Bill of June 2014, it noted that its justification in setting out its Offences include, inter alia, that "any developments in the case-law on article 4 (both in the UK and in Strasbourg) will be reflected in the way our courts interpret the offences in the Bill, which would not be the case if we followed the approach recommended by the Committee" (p. 7).

5. Yet, it should be recognised that the European Court of Human Rights has provided no true guidance in interpreting the offences put forward in the Bill.

6. Here is the fullest elaboration of the European Court with regard to Article 4:

149. In Siliadin , considering the scope of "slavery" under Article 4, the Court referred to the classic definition of slavery contained in the 1926 Slavery Convention, which required the exercise of a genuine right of ownership and reduction of the status of the individual concerned to an "object" (see Siliadin v. France , no. 73316/01 , § 122, ECHR 2005 VII).

With regard to the concept of "servitude", the Court has held that what is prohibited is a "particularly serious form of denial of freedom" (see Van Droogenbroeck v. Belgium , Commission’s report of 9 July 1980, §§ 78-80, Series B no. 44). The concept of "servitude" entails an obligation, under coercion, to provide one’s services, and is linked with the concept of "slavery" (see Seguin v. France (dec.), no. 42400/98 , 7 March 2000; and Siliadin , cited above, § 124). [1]

For "forced or compulsory labour" to arise, the Court has held that there must be some physical or mental constraint, as well as some overriding of the person’s will (see Van der Mussele v. Belgium , 23 November 1983, § 34, Series A no. 70; Siliadin , cited above, § 117).

150. The Court is not regularly called upon to consider the application of Article 4 and, in particular, has had only two occasions to date to consider the extent to which treatment associated with trafficking fell within the scope of that Article ( Siliadin and Rantsev , both cited above). In the latter case, the Court concluded that the treatment suffered by the applicant amounted to servitude and forced and compulsory labour, although it fell short of slavery.

In the former, trafficking itself was considered to run counter to the spirit and purpose of Article 4 of the Convention such as to fall within the scope of the guarantees offered by that Article without the need to assess which of the three types of proscribed conduct was engaged by the particular treatment in the case in question.

7. The Government has noted that it "shares the Committee’s view that it is crucial to have offences which can be readily understood by law enforcement agencies and the judiciary and that can result in effective prosecutions and convictions". Further, that it wants "the Modern Slavery Bill to have an immediate impact on the ground".

8. These objectives cannot be met through reliance on the case-law of the European Court of Human Rights, instead, the Government should consider setting out a definition for each of these types of Modern Slavery. In so doing, the Government would once more assume the mantle which it carried during the era of Wilberforce and Clarkson, and through its leadership at the League of Nations and the United Nations in marshalling through the 1926 and 1956 slavery conventions: The leadership of international anti-slavery movement.

9. How might these types of modern slavery be defined? With reference to the conventions which set out their international agreed to definitions. Those same definition which the European Court of Human Rights has acknowledge as the basis of its understanding of forced or compulsory labour, servitude and slavery.

Forced or Compulsory Labour

10. Consider the following proposal for a definition of forced or compulsory labour which could be included in the Modern Slavery Bill:

1. For the purposes of this Act "forced or compulsory labour" means any work or service which is-

a. exacted from a person under the threat or use of violence, and

b. for which that person has not offered himself voluntarily.

2. For the purpose of this offence the term "forced or compulsory labour" shall not:

a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

b. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community; or

d. any work or service which forms part of normal civic obligations.

11. The recognised definition of "forced or compulsory labour" was first set out in the International Labour Organisation’s 1930 Forced Labour Convention, and reads: "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily".

12. I have modified this definition by replacing ‘menace of any penalty’ with "under the threat or use of violence". I have done so as there is a long arc of activity which could fall within the definition of forced or compulsory labour, but should not be criminalised. What is required is a line to be drawn between forced labour as a violation of criminal law and that of forced labour regulated by employment law. Thus, the grocery clerk who is required to take less than the national minimum wage, less her manager’s threat of being made redundant is actualised, would constitute forced labour; but this should not engage the police services. The role of the police is not to referee the workplace. However, the ‘threat or use of violence’ would appear to establish a threshold at which the State should be involved in criminalising such activity.

Servitude

13. The European Court of Human Rights has failed to provide any helpful guidance in determining the contours of servitude. Instead, the 1956 Supplementary Convention should be understood as setting out four practice which should be legislated against as servitude [2] . This is so, as for reasons unrelated to the substances of servitude, the diplomats negotiating the 1956 Supplementary Convention chose to use the wording ‘institutions and practices similar to slavery’ rather than servitude. As a result, servitude should be understood as: debt bondage, serfdom, servile marriage and child exploitation/trafficking.

14. Consider the following proposal for a definition of servitude which could be included in the Modern Slavery Bill:

1. For the purposes of this Act "servitude" means-

a. Debt bondage, that is to say, the status or condition arising from a pledge by a debtor of his personal services or of those of a person under his control as security for a debt, if the value of those services as reasonably assessed is not applied towards the liquidation of the debt or the length and nature of those services are not respectively limited and defined;

b. Serfdom, that is to say, the condition or status of a tenant who is by law, custom or agreement bound to live and labour on land belonging to another person and to render some determinate service to such other person, whether for reward or not, and is not free to change his status;

c. Any institution or practice whereby:

i. A woman, without the right to refuse, is promised or given in marriage on payment of a consideration in money or in kind to her parents, guardian, family or any other person or group; or

ii. The husband of a woman, his family, or his clan, has the right to transfer her to another person for value received or otherwise; or

iii. A woman on the death of her husband is liable to be inherited by another person; or

d. Any institution or practice whereby a child or young person under the age of 18 years is delivered by either or both of his natural parents or by his guardian to another person, whether for reward or not, with a view to the exploitation of the child or young person or of his labour.

Slavery

15. Consider the following proposal for a definition of slavery which is to revert to that used by the Committee, which reads:

2. For the purposes of this Act "slavery" means the control by a person of a second person in such a way as-

a. significantly to deprive that second person of their individual liberty, and

b. by which any person obtains a benefit through the use, management, profit, transfer or disposal of that second person.

16. For its part, the European Court of Human Rights remains locked in its 19th Century thinking, making a determination that ‘slavery’ can not exist in its contemporary manifestation. The Court requires "the exercise of a genuine right of ownership", something which has not existed since the legal abolition of slavery during the 1800s, or in the United Kingdom since 1772 and the Somerset v Stewart case [ 98 ER 499 ].

17. However, the same definition of slavery interpreted by the European Court has found purchase in Australia, where more than a dozen cases have been prosecuted since its equivalent of our Supreme Court – the High Court of Australia – made a determination in Tang [(2008) HCA 39] that the 1926 definition applies to instances of contemporary slavery whereby a person can find themselves in a situation of de facto slavery: that slavery is not only about legally owing a person – but about exercising control over a person so that they are a de facto slave

18. Since Tang, a number of leading practitioners and scholars have developed the 2012 Bellagio-Harvard Guidelines on the Legal Parameters of Slavery which set out a reading of the legal definition which, while remaining true to the property paradigm in which the definition was constructed, reflects the lived experience of modern-day slaves. [3] It is this definition which has found its way into the Joint Committee Report, as the definition of slavery.

19. Finally, it might be noted that the basis of the definition of the Joint Committee, ie: Guideline 2 of the Bellagio-Harvard Guidelines also forms the basis of the working definition utilised in the Global Slavery Index which establishes the prevalence of slavery in 162 countries of the world.

July 2014