Modern Slavery Bill

Written evidence submitted by the Law Society (MS 09)

The Law Society's Response to the House of Commons Public Bill Committee Report on the Modern Slavery Bill

Introduction 

 

• The Law Society of England and Wales (the ‘Society') is the professional body representing more than 145,000 solicitors in England and Wales. Its concerns include the independence of the legal profession, the rule of law and human rights throughout the world.

• This submission has been produced by the Society through its Human Rights Committee in consultation with its Legal Policy Department. [1] The Committee is a specialist body of the Society comprised of practitioners and experts in domestic and international human rights law. It is networked with a broad spectrum of international professional legal bodies, inter-governmental organisations, and non-governmental and civil society organisations.

• The Society regularly writes reports and provides specialist submissions on these subjects to UK, international and inter-governmental bodies.

This paper addresses the Report of the House of Commons Public Bill Committee on the Modern Slavery Bill and the Government’s response to it. It relies on the Paper "The Law Society's Response to the Parliamentary Joint Committee on Modern Slavery" submitted in February 2014. The Society welcomes the amendments that the Government has made to the original Bill in response to the many submissions made by a wide range of experienced individuals and bodies. This paper will concentrate on the outstanding issues which the Society regards of significant importance. However, in doing so does not resile from the position it took in the earlier paper submitted.

A: The Offences – Part 1 of the Bill 

 

1. The Report (the Report) of Draft Modern Slavery Bill Joint Committee (the Committee ) dated April 2014 sets out its concerns about the drafting of the offences - particularly the lack of clarity, precision and simplicity . It also raised concerns that some criminal activity in relation to Modern Slavery will either not be caught by the provisions , or the hurdles required to overcome in mounting a prosecution will prevent effective law enforcement. The Society’s concerns are also that the offences clauses in the Bill are overly complex and do not reflect international definitions of trafficking and forced l abour. Additionally, the Bill lacks c hild specific offences. The Government has chosen a course which has been criticised by a significant number of major bodies involved in fighting Modern Slavery.

2. The Bill had additional shortcomings in that:

a. It does not address how to differentiate between offences against children and those against adults to allow for alternative counts or an aggravated offence;

b. It does not give adequate consideration to slavery and trafficking offences committed against children, which, as the Committee stated, many consider to be particularly egregious;

c. Those who prosecute slave masters and gave evidence to the Committee believe that it will not make successful prosecutions more likely;

d. There is a practical difficulty of requiring the Prosecution to prove the age of a child when victims are unlikely to have documentary evidence available and other assessments are not sufficiently precise ;

e. Slave masters and traffickers will be able to use the "Double Criminality" requirement (that the offence being investigated by the requiring country is also an offence in the receiving country) to avoid successful prosecution.

3. The Government’s reasoning for rejecting the amendments sought to the offences do not deal with the shortcomings and with effort and goodwill can be resolved. The Law Society believes that s ome of the Government's assumptions are misguided; for example, the suggestion that new offences will make it harder to have prosecutions up and running swiftly an d that juries would be confused . Good planning and co-operative working on introducing the changes would eliminate any substantive challenge that the amendments might create . The Law Society believes that c oncerns about Mens Rea are easily dealt with and are not core issues of principle but peripheral .

4. The Society supports the model Indictment contained in Annex A to the Report.

5. The Society agrees strongly with the Committee that the Bill must make it clear beyond doubt that children cannot consent to slavery and that the sale of a child or illegal adoptions can be charged as slavery .

B: Civil Prevention Orders – STPO’s and STRO’s - Part 2 of the Bill 

 

6. The Society shares the Committee’s concerns that these orders have been copied from s9 of the Anti-social Behaviour, Crime and Policing Act and would not work in practice because of the lack of specificity of the terms that can be imposed on the individual. Further that there is no provision to delay the commencement of the Order until the individual is released from prison.

7. The Society is concerned that the present draft might allow a Slavery and Trafficking Prevention Order ( ST P O ) to be imposed when there was no evidence to support a prosecution and that clarity on this was essential to comply with the principle of legal certainty and that there should be no penalty or punishment for doing something that is not prohibited by law. This principle is accepted as a basic requirement of the Rule of Law. Further the reliance on necessity as a justification for imposing this penalty does not guarantee that there will be compliance with the requirement that there shall be no interference with the individual’s rights under existing domestic human rights legislation and in accordance with the UK’s obligations under international law. Additionally, as proposed in the draft Bill, Interim Orders do not even require a necessity threshold. For these reasons the Society supports the recommendations of the Committee on these issues

8. The Society echoes the Committee’s concerns about :

· the absence of a temporal link which could enable an Order to be made based on a previous conviction (such as a caution or some behaviour which happened a long time ago );

· the absence of any compliance with Section 6 of the Human Rights Act 1998 ;

· the absence of a minimum age a child could be subject to such an Order.

9. The Society supports the Committee’s recommendation that Slavery Trafficking and Risk Order's ( STRO ) should be removed from the Bill for the reasons they give . Additionally the Society believes that the infringement of the liberty of an individual cannot be justified in the absence of a conviction for an offence of modern slavery.

C: Anti-Slavery Commissioner 

 

10. The Society is concerned that the Government has chosen to disregard the experience of EU Anti-Trafficking Rapporteurs who were able to justify the need for demonstrable independence and the harmful effect of a narrow remit for the Anti-slavery Commissioner as drafted. The Society support s the need for the post to be statutorily protected and we recognise and support how that independence will enhance the trust necessary for the role to be effective. No such position should be reliant on the goodwill of the incumbent of the office of Home Secretary or the personal qualities of the incumbent Commissioner.

11. The Society believes that the Anti-slavery Commissioner should be properly funded. As Luis C de Baca told the Committee , there was something inherently problematic in the Commissioner having to negotiate with the Home Secretary annually over the terms of their mandate. The problem posed by Modern Slavery, its many forms and its constant changes and metamorphoses , the issues it raises for the UK at home and abroad , and the need to work with many different persons and bodies , is too important to be undermined by such a structure . The rejection of the Committee’s proposals for the independence of the post of Anti-Slavery Commissioner suggests that there are concern s with controlling the remit of the role and concerns about spiralling cost s . There were also concerns about redaction despite evidence that EU Anti-Trafficking Rapporteurs do not have such controls . Additionally, other countries such as Australia trust the Commissioner to omit from reports information that might endanger national security or endanger some one ’s safety.

12. The Society supports the Committee’s endeavours to ensure that the Commissioner’s remit goes beyond its present role as defined in the Bill which is limited to encouraging the prosecution of specific offences to :

· representing and advocating for the victims of modern slavery ;

· national co-ordination;

· promotion of best practice;

· promoting trust, co-operation and partnerships;

· working with all manner of people and bodies working in this field wherever they may be;

· working in partnership with the Government;

· the collection of data and information allowing informed assessment of the changing nature of modern slavery;

· co-ordinating and improving the fight against modern slavery ; and

· establishing an international role as so much of modern slavery and the causes of modern slavery lie beyond our shores and tackling it requires international co-operation, bi-lateral enforcement agreements and effective international prevention measures .

D: Child Advocates 

 

13. The Committee recommended that the Bill should provide for the introduction of advocates for all trafficked children arguing that their extreme vulnerability justifies bespoke support. Such a scheme would also further support the Bill's primary objectives by protecting children from those who would exploit them and by giving those who have been victims the support and confidence required to give evidence against their abusers in court. The Society believes that the introduction of advocates should not prevent local authorities taking trafficked children into care where appropriate.

14. The Committee supported the creation of a statutory advocacy scheme for children, This provision was supported by the majority of the children charities that gave evidence to the Committee as legislation would grant advocates legally enforceable powers to take any action that is in the best interests of the child.

15. The Government response was to indicate that they would give the Home Secretary power to make arrangements for Child Advocates. The Society shares the Committee’s concerns that Home Office appointed personal advocates would "not address the most significant issues these children face". The Society does not believe that this is a substitute for a statutory advocate scheme. As the Committee said: "The nature of the exploitation suffered by children, together with their youth and isolation, means they are frequently unable to make decisions in their own best interests. Co-ordinated and timely action on the part of public agencies is more likely to occur if those agencies know they will be held to account and that the advocate has a right to access information and appropriate documents. Both of these functions require an advocacy scheme underpinned by statute providing a legal basis for the advocate to represent the child." For these reasons the Society believes that the Statutory scheme is the right way forward.

E. Supply Chains 

 

16. The Committee highlighted the global nature of modern slavery and proposed that proportionate legislation would assist large companies to tackle modern slavery in their supply chains. The Committee proposed that companies should be required to address modern slavery in their annual strategic plan by amending the Companies Act 2006. Additionally, an individual at board level should be required to take responsibility for this aspect of the company’s business.

17. The Society recalls that the UN Guiding Principles on Business and Human Rights (2011) follow three pillars - "Protect, Respect and Remedy". The State Duty to Protect against human rights abuses by third parties, including business enterprises, through appropriate policies, regulation and adjudication; the Corporate Responsibility to Respect human rights, meaning corporations should act with due diligence to avoid violating the rights of others and to address adverse effects with which they are involved; and the need for greater Access to Remedy for victims of business-related abuse, both judicial and non-judicial.

18. "Good Business: Implementing the UN Guiding Principles on Business and Human Rights", which was launched in 2013 by the Government who claimed the UK was the first country to launch an action plan on business and human rights. This makes clear the Government’s commitment to protect human rights in this area and sets out the clear expectations for UK companies following the adoption of the Ruggie Principles. The Committee’s suggested amendment to the Companies Act 2006 is modest but a first step on the road to tackling the issue of modern slavery in supply chains. It is consistent with the commitment of the Government described above and puts the work and the cost of compliance into the hands of the companies who use and benefit from the supply chains. The Society therefore believes that there would therefore appear to be no good reason for not adopting the Committee’s recommendation.

F. Overseas Domestic Workers 

 

19. The Society is concerned that the research highlighted by Kalayaan demonstrates that 60% of enslaved overseas domestic workers in the UK were not paid any salary. This is compared with 14% when the visa arrangements permitted them to transfer to another employer. This increase is directly attributable to the change in visa conditions. The steps taken by the Government to prevent abuse do not prevent enslavement or abusive relationships nor do they ensure that they are paid even at the minimum wage. The justification offered by the Government for not acceding to the Committee’s recommendation that the changes to the Overseas Domestic Worker visa be reversed are not supported by any change in the status of these workers or respect for their human rights. The Society therefore supports the Committee’s recommendation.

11 August 2014