Modern Slavery Bill

Written evidence submitted by the Anti-Trafficking Monitoring Group (MS 17)

1. The Anti-Trafficking Monitoring Group (ATMG) monitors the UK’s compliance with, and implementation of, the 2005 Council of Europe Convention on Action against Trafficking in Human Beings, as well as the EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. The ten organisations belonging to the ATMG are:

AFRUCA (Africans Unite Against Child Abuse)

Amnesty International UK

Anti-Slavery International

Bawso

ECPAT UK

Helen Bamber Foundation

Kalayaan

POPPY Project (of Eaves Housing for Women)

TARA project (Trafficking Awareness Raising Alliance, of Community Safety Glasgow (CSG))

UNICEF UK

2. The ATMG has recently published [1] an ‘Alternative’ Bill (entitled the ‘Modern Slavery, Human Trafficking and Human Exploitation’ Bill) to assist in the scrutiny and strengthening of the Modern Slavery Bill currently before the Parliament. The Alternative Bill builds on the report published by Frank Field MP in December 2013 [2] and the report of the Joint Committee on the Draft Modern Slavery Bill [3] in April 2014. The provisions contained within this Alternative Bill are those which the ATMG feel are imperative for inclusion in UK anti-slavery legislation to ensure it is robust, comprehensive and world-leading. Annex 1 lists the Alternative Bill’s provisions, which are referred to throughout this submission.

3. EXECUTIVE SUMMARY: The Anti-Traf ficking Monitoring Group (ATMG) again congratulates the government for introducing legislation to tackle modern s lavery and punish its perpetrators. To ensure the Modern Slavery Bill is successful in this aim, we argue that the wording of the offences should be brought into line with internationally recognised definitions; the meaning of exploitation should be expanded and improved , and a separate child exploitation offence should be introduced . The role of the Anti-Slavery Commissioner should be strengthened by increasing its independence from the government and broadening its powers. The introduction of a victim protection clause (42) is a positive step but could be strengthened by ensuring public authorities have a duty to identify and protect victims, as well as including in statute the minimum protection and support measures victims are entitled to. The ATMG is concerned that the statutory defence (Clause 39) as currently drafted is unnecessarily complicated; derogating from the simpler language of Article 8 of the EU Trafficking Directive [4] , and thus providing victims, particularly children, with inadequate protection from punishment. In addition, the ATMG is concerned that the drafting of Clause 41 provides no guarantee that child victims will be provided with independent legal advocates w ho have the necessary legal powers to protect and promote their best interests. Finally, we are disappointed that the government has not used this opportunity to address the protection gaps caused by the changes made to the Overseas Domestic Worker visa in 2012, and strongly advocate that the rights and protections under the original visa be reinstated.

4. Part 1: Offences: The ATMG welcomes that this Bill brings together all Modern Slavery offences, and that the language of Section 71 of the Justice & Coroners Act, including the reference to Article 4 of the Human Rights Convention, has been retained. However, the ATMG believes that the offences could be strengthened and would like to see a number of concerns addressed.

5. Offence 1 (Slavery, servitude and forced or compulsory labour) should be strengthened and brought into line with international standards on human trafficking [5] by including a sub-clause on the ‘irrelevance of consent’ to the exploitation. In addition, the drafting of Offence 2 (Human Trafficking) is unnecessarily complicated and differs considerably to the internationally recognised and agreed definition [6] . The ‘means’, one of the three key components of the trafficking definition, is not present, and the word ‘travel’ in 2 (2) is erroneously used to include all of the other ‘acts’. The use of a word synonymous with movement is misleading; trafficking is a process and can occur where no movement has taken place. In addition, although the inclusion of the ‘irrelevance of consent’ is welcomed, it should be connected to the ‘exploitation’ not to the ‘travel’ (which is used to refer to the ‘acts’) [7] . Importantly, the offence does not specifically address children; 2(2) brings the issue of consent into play for everyone, including children, which is contrary to international law.

6. The ATMG would also advocate for the inclusion of a separate child exploitation offence. The ATMG does not agree with the arguments made by the government against the inclusion of a separate child exploitation offence; for instance, that it would be too broad in scope and would capture cases of children asked to carry out household chores. This would not be the case if the definition of exploitation accurately depicted the types of activities which amount to exploitation, such as benefit fraud and prostitution. (See Article 5(4) in the ATMG’s Alternative Bill in the annex for a definition of exploitation). There remains a need for a separate child exploitation offence to ensure successful prosecutions for those who exploit children in cases where the threshold of slavery, servitude or forced labour are not met and where human trafficking is difficult to prove.

7. In addition, the ATMG proposes the Modern Slavery Bill contains the ‘Offence of the use of trafficked, enslaved or exploited person or child’ (where ‘person’ has its ordinary meaning and shall include bodies corporate and incorporated), and an ‘Identity and Immigration documents’ offence. (Please see Clause 11 and 12 of the ATMG’s Alternative Bill). The former offence captures those perpetrators who may not have been directly involved in the trafficking or exploitation (or their involvement is hard to prove) but gain financially from it, and know, or ought to know, that the individual has been subject to such abuse, use their services regardless. This offence will also cover businesses that profit from the use of forced labour in their supply chains. The latter will enable the prosecution of those who withhold, destroy or otherwise misuse the identity or immigration documents of another; a tactic commonly used by traffickers to control their victims. In cases where trafficking or other exploitation is difficult to prove, this offence will ensure this criminal behaviour is punished.

8. Clause 3 provides a definition of ‘Exploitation’ and states that a ‘person is exploited only if one or more of the following subsections apply’ before listing the types of exploitation, rather than stating ‘shall include’ or ‘at a minimum’, as in other international instruments. This may prove restrictive as traffickers find new ways in which to exploit their victims. Clause 3 (6), which lists the grounds on which a child or vulnerable person may be targeted for exploitation, is particularly limited and should also include, at the very least, an ‘abuse of a position of vulnerability’ [8] to reflect the definition of trafficking contained within international legislation. It also necessitates that it must be proven that the person was ‘chosen’ on these grounds, something which may be difficult to show, making it harder to bring traffickers to justice [9] . In addition, Clause 3 (6) is entitled ‘Securing services from children and vulnerable persons’ yet there is no definition of ‘children’ within the Bill and the subsequent terminology used within the body of the clause is instead ‘youth’ and ‘young’. The term ‘children’ should be retained and used consistently and defined as ‘anyone under the age of 18’.

9. Part 3: Anti-Slavery Commissioner: The introduction of an Anti-Slavery Commissioner has the potential to significantly improve the UK’s ability to monitor and tackle Modern Slavery. However, to do so the Commissioner should, in addition to what is provided in the Bill, be mandated to: collect data from a wide range of statutory and non-statutory bodies; monitor the effectiveness of relevant law and policy, and hold inquiries.

10. The ATMG welcomes the inclusion of Clause 38(2) which permits the Commissioner to consider and draw conclusions on individual cases for the purpose of considering a general issue. This power should allow the Commissioner to investigate and hold inquiries in an individual’s case where the case raises issues of public policy relevance and has wider significance for other victims of modern slavery. Such power would be similar to the authority conferred on the Office of the Children’s Commissioner for England, a power highlighted for its significance in the 2010 review of the office.

11. At present the Commissioner lacks the necessary independence from the government to thoroughly scrutinise the UK’s efforts to tackle Modern Slavery. The role is constricted by the fact that the Home Secretary will appoint them, control their resources, have to give consent to any activities undertaken; and have the power to remove material from the Commissioner’s reports before publication. (Please see the ATMG’s briefing on the role of the Anti-Slavery Commissioner [10] for further details, and Clause 21 of the ATMG’s Alternative Bill).

12. Part 4: Protection of Victims. The introduction of a statutory defence for those who have been compelled to commit a crime is vital for inclusion in robust anti-slavery legislation given that significant numbers of victims in the UK are being punished and prosecuted [11] , despite the existence of international obligations to prevent this [12] . The ATMG is, however, concerned that the language contained in Clause 39 of the Bill offers less protection than is currently provided by the EU Trafficking Directive and through UK caselaw [13] , and is not appropriate for children [14] . To fully comply with Article 8 of the EU Directive, the provision should include both a non-prosecution element to prevent individuals from being prosecuted for their involvement in criminal activities which they have been compelled to commit as a direct consequence of being subjected to trafficking/slavery, as well as a statutory defence should this first line of protection fail. At present, the Bill only contains the latter, which itself is problematic in its drafting.

13. In particular, the defence adds an extra layer of complexity through 39(1)(c) in the form of a ‘reasonable person’ test i.e. that a reasonable person in the same situation (having the same, limited set of relevant characteristics) would have no realistic opportunity but to do the criminal act. Such a test adds an unnecessary additional burden on the defence in order to prevent secondary victimisation of trafficking victims, and should be removed. In addition, Clause 39(7) also refers to Schedule 3 which lists offences not covered by the defence. A number of these offences are ones which trafficking victims are commonly known to be compelled to commit as a direct consequence of their trafficking, including offences under the Theft Act 1968 and the Immigration Act 1971. To include such a list would result in a failure of the UK to prevent the prosecution and further rights violations of victims. Schedule 3 should be removed. (Please see Clause 15 in the ATMG’s Alternative Bill for suggested language for the non-punishment provision).

14. Clause 41 of the Bill states that the Secretary of State ‘may’ make arrangements for the provision of Child Trafficking Advocates. This provides little guarantee that vulnerable unaccompanied children will be provided legal guardians, as required by Article 10 of the Trafficking Convention. The word ‘may’ should, at the very least, be replaced by ‘shall’. The case for the introduction of such guardians has been strongly argued [15] . To enable them to promote and protect the best interests of the child, as well as to safeguard and promote their welfare, they must be independent from public authorities, have the appropriate legal powers to work with other statutory bodies, to instruct solicitors on the child’s behalf and to hold public agencies to account [16] . (Please see Clause 17 in the ATMG Alternative Bill on Independent Legal Guardians).

15. Guidance about identifying and supporting victims: Clause 42 of the Bill provides that the Secretary of State must issue guidance to certain public authorities on indicators of slavery and trafficking and arrangements for assistance and support provision. The ATMG is pleased that a clause has been included on victim support but believes it should go further to include that public authorities have a duty to identify and support victims of modern slavery, and should include, in statute, the key, minimum support measures (such as accommodation, psychological and material assistance) that victims are entitled to.

16. In addition, the National Referral Mechanism (NRM), including the right of appeal, should be included in statute to codify protection and assistance to victims. At present the NRM is a creature of policy which is at the whim of governmental changes. Including the NRM in statute will serve to increase awareness of modern slavery and ensure the UK is meeting its international obligations to protect and assist victims. See Clause 16 in the ATMG’s Alternative Bill.

17. Presumption of Age clause: The ATMG is pleased to see that a Presumption of Age clause (Clause 43), similar to that found in Article 13(2) of the EU Trafficking Directive and Article 10(3) of the Council of Europe, has been included in Bill. This prevents children whose age is uncertain or has been disputed from being placed in unsuitable adult accommodation, and ensures they are provided access to the services and support they are entitled to as children, which should serve to increase the speed of their recovery and protect them from further harm and exploitation. However, the ATMG would like to see this protection extended to apply to victims of all forms of modern slavery, not just trafficking victims. In addition, Clause 43(1)(a), which states ‘a public authority with functions under relevant arrangements’, should be amended to read ‘all bodies exercising public functions’. In Clause 43(3) it should also be the case that if there is a dispute, the presumption of age provision applies until the final resolution of that dispute, not just until an assessment by the local authority. (Please see Clause 1(5), ‘Definitions’, in the ATMG’s Alternative Bill).

18. Migrant Domestic Workers- The report of the Joint Committee on the Draft Modern Slavery Bill describes the current tied Overseas Domestic Worker (ODW) visa as having ‘unintentionally strengthened the hand of the slave master against the victim of slavery’ [17] . It called for an urgent reversal of the 2012 visa changes; these changes removed the rights of domestic workers to change employer or extend their visa and undermines their right to redress for abuse and exploitation. The ATMG is disappointed by the Government’s failure to include provisions in the Modern Slavery Bill to reinstate the rights and protections included within the original Overseas Domestic Worker visa and believes that the Bill fails to comply with the UK’s commitments under the Trafficking Convention to prevent trafficking of migrant domestic workers and to protect victims. (See Clause 19 of the ATMG Alternative Bill for suggested language for this additional clause).

Annex 1: Modern Slavery, Human Trafficking and Human Exploitation Bill

1. GENERAL PRINCIPLES 

 

(1) The purposes of this Bill are:

(a) to prevent and combat trafficking in persons, modern forms of slavery and exploitation in the United Kingdom;

(b) to protect and assist the victims of such trafficking, slavery and exploitation while ensuring respect for their human rights;

(c) to ensure the just and effective investigation, prosecution and punishment of traffickers, and slavery and exploitation offenders;

(d) to make special provision for the protection and care of child victims of trafficking, slavery and exploitation; and

(e) to promote and facilitate national co-operation in order to meet these objectives.

2. NON-DISCRIMINATION 

 

(1) The measures set forth in this Bill, in particular the identification of victims and the measures to protect and promote the rights of victims, shall be interpreted and applied in a way that is not discriminatory on any ground, such as race, colour, religion, belief, age, family status, culture, language, ethnicity, national or social origin, citizenship, gender, sexual orientation, political or other opinion, disability, property, birth, immigration or other status.

3. SCOPE 

 

(1) This Bill shall apply to all forms of trafficking in, enslaving or exploitation of human beings, whether national or transnational, and whether or not connected with organised crime.

4. DEFINITION OF MODERN SLAVERY 

 

(1) "Modern Slavery" means conduct prohibited by:

(a) sections 6, 7, 8, 9, 10 and 11 of this Bill;

(b) the 1926 Slavery Convention;

(c) the Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery 1956;

(d) the European Convention on Human Rights 1950;

(e) the International Labour Organisation Forced Labour Convention 1930 (No. 29);

(f) the International Labour Organisation Forced Labour Convention 1957 (No. 105);

(g) the Protocol to the 1930 Forced Labour Convention 2014;

(h) the International Labour Organisation Convention No. 182 (Elimination of the Worst Forms of Child Labour);

(i) the Council of Europe Convention on Action against Trafficking in Human Beings 2005;

(j) the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) 1979;

(k) the United Nations Convention on the Rights of the Child (UNCRC) 1989;

(l) the Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography 2002; and

(m) the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (2000), supplementing the United Nations Convention against Transnational Organised Crime.

5. OTHER DEFINITIONS 

 

(1) "child" means any person below 18 years of age and the "presumption of age" shall apply. The "presumption of age" means that where the age of a victim is uncertain and there are reasons to believe that the person is a child, the person must be presumed to be a child by all bodies exercising public functions in relation to that person. If a dispute arises as to a person’s age, the presumption of age will continue to apply until the final resolution of that dispute.

(2) An "employer" is a person who employs an overseas domestic worker and sponsors them to first obtain, or to remain in the United Kingdom on, an overseas domestic worker’s visa.

(3) An "enslaved person" means a person who is, or has been, subjected to the conduct referred to in section 6(1) of this Bill or conduct comprising slavery, servitude or forced or compulsory labour prohibited by the Conventions listed in section 4(1).

(4) "exploitation" includes but is not limited to the exploitation of the prostitution of others or other forms of sexual exploitation; the exploitation of labour or services including begging or practices similar to slavery, servitude or forced or compulsory labour; the exploitation of or for criminal activities or the removal of organs; enforced marriage; enforced surrogacy; unlawful adoption; and enforced drugs smuggling, manufacture, production or distribution.

(5) An "exploited child" means a child who is, or has been, subjected to the conduct referred to in section 10 of this Bill or conduct comprising exploitation prohibited by the Conventions listed in section 4(1).

(6) An "exploited person" means a person who is, or has been, subjected to the conduct referred to in section 9 of this Bill or conduct comprising exploitation prohibited by the Conventions listed in section 4(1).

(7) "investigatory body" means those bodies as shall be set out in regulations issued by the Secretary of State from time to time.

(8) An "overseas domestic worker" is a person who has migrated to the United Kingdom to work as a domestic worker on an overseas domestic worker visa or who has migrated to the United Kingdom to work in the domestic service of a member of a diplomatic mission (a "diplomatic domestic worker").

(9) "parental responsibility" has the same meaning as section 3 of the Children Act 1989.

(10) "person" shall have its ordinary meaning and shall include bodies corporate or unincorporated and, unless stated otherwise, shall include a child.

(11) A "position of vulnerability", includes but is not limited to, an individual’s personal, situational or circumstantial vulnerabilities such as poverty, social isolation, pregnancy, gender or any physical or mental illness, impairment or disability, including addiction to the use of any substance, or reduced capacity to form judgments by virtue of being a child or being otherwise vulnerable, or arising from the person having entered the country illegally or without proper documentation and the "abuse of a position of vulnerability" shall refer to any situation where the person involved believes he or she has no real and acceptable alternative but to submit to the abuse involved due to a position of vulnerability.

(12) "public authority" includes any person certain of whose functions are functions of a public nature (other than a court or tribunal) that exercises functions in the United Kingdom and which persons are to be set out in regulations to be periodically issued by the Secretary of State.

(13) "separated child" means a child who has been separated from both parents, or from their previous legal or customary primary caregiver, but not necessarily from other relatives. This may include children who have been trafficked, enslaved or exploited but are accompanied by other adults including community members, friends, or members of their extended family.

(14) "slavery", "servitude", "forced labour" and "compulsory labour" are to be construed in accordance with Article 4 of the Human Rights Convention.

(15) "The Human Rights Convention" means the Convention for the Protection of Human Rights and Fundamental Freedoms agreed by the Council of Europe at Rome on 4 November 1950.

(16) "The Trafficking Convention" means the Council of Europe Convention on Action against Trafficking in Human Beings agreed by the Council of Europe at Warsaw on 16 May 2005.

(17) "The Trafficking Directive" means EU Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims.

(18) A "trafficked person" means a person who is or has been subjected to the conduct referred to in sections 7 or 8 of this Bill or conduct comprising trafficking prohibited by the Conventions listed in section 4(1).

(19) A "victim" is a natural person who has been subjected to–

(a) conduct that constitutes an offence under sections 6, 7, 8, 9, 10, 11 or 12;

(b) conduct prohibited by the Conventions listed at subsections 4(1)(b)-(m); or

(c) conduct that would have constituted an offence under sections 6, 7, 8, 9, 10, 11 or 12 had they been in force when the conduct occurred.

6. OFFENCE OF SLAVERY, SERVITUDE OR FORCED OR COMPULSORY LABOUR 

 

(1) Any person ("P") who–

(a) holds another person in slavery or servitude and the circumstances are such that P knows or ought to know that the person is held in slavery or servitude; or

(b) requires another person to perform forced or compulsory labour and the circumstances are such that P knows or ought to know that the person is being required to perform forced or compulsory labour;

commits an offence of slavery, servitude or forced or compulsory labour.

(2) The consent or apparent consent of a person to the acts referred to in subsections 6(1)(a) or 6(1)(b) shall be irrelevant.

7. OFFENCE OF HUMAN TRAFFICKING 

 

(1) Any person who–

(a) recruits, transports, transfers, harbours or receives a person including by exchange or transfer of control over that or those persons;

(b) by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or abuse of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person; and

(c) knows or ought to know that the purpose of the acts in subsections 7(1)(a) and 7(1)(b) above is the exploitation of that person;

commits an offence of human trafficking.

(2) The consent or apparent consent of a person to the acts referred to in subsection 7(1)(a) or to the exploitation shall be irrelevant where any of the means set forth in subsection 7(1)(b) have been used.

8. OFFENCE OF CHILD TRAFFICKING 

 

(1) Any person who–

(a) recruits, transports, transfers, harbours or receives a child including by exchange or transfer of control over the child; and

(b) knows or ought to know that the purpose of the acts in subsection 8(1)(a) is the exploitation of that child;

commits an offence of child trafficking.

(2) The consent or apparent consent of the child to the acts referenced in subsection 8(1)(a) or to the exploitation is irrelevant.

9. OFFENCE OF EXPLOITATION: GENERAL 

 

(1) A person commits an offence if they exploit a person by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or abuse of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

(2) A person may be in a situation of exploitation whether or not–

(a) escape from the situation is practically possible for the person; or

(b) the person has attempted to escape from the situation.

(3) The consent or apparent consent of the person to the exploitation is irrelevant where any of the means set forth in section 9(1) has been used.

10. OFFENCE OF CHILD EXPLOITATION 

 

(1) A person commits an offence if they exploit a child.

(2) It shall be such an offence even if there was no threat or use of violence, other forms of coercion, deception or any abuse of a position of vulnerability.

(3) A child may be in a situation of exploitation whether or not–

(a) escape from the situation is practically possible for the child; or

(b) the child has attempted to escape from the situation.

(4) The consent or apparent consent of the child to the exploitation is irrelevant.

11. OFFENCE OF THE USE OF A TRAFFICKED, ENSLAVED OR EXPLOITED PERSON OR CHILD 

 

(1) Any person who–

(a) uses the services of a trafficked, enslaved or exploited person (including an exploited child) in circumstances where they knew or ought to have known that they were using such services; or

(b) knows or ought to know they are obtaining a financial or other material benefit from conduct that comprises the commission of an offence under sections 6, 7, 8, 9, 10, 11 or 12;

commits an offence under this section.

12. IDENTITY AND IMMIGRATION DOCUMENTS OFFENCES 

 

(1) Any person who–

(a) uses, conceals, removes, withholds or destroys any identity or travel document, whether or not the document is of British origin or authentic, including but not limited to, a passport, driving licence, national insurance number, or ID card that belongs to another person, or any document that establishes or purports to establish another person’s immigration status without that person’s consent;

(b) by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or abuse of a position of vulnerability, or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person;

commits an offence under this section.

(2) The consent or apparent consent of a victim to any of the acts set forth in subsection 12(1)(a) shall be irrelevant where any of the means set forth in subsection 12(1)(b) have been used.

(3) The consent or apparent consent of a child to any of the acts set forth in subsection 12(1)(a) shall be irrelevant, whether or not any of the means set forth in subsection 12(1)(b) have been used.

13. COMMISSION OF OFFENCES WITHIN OR OUTSIDE THE UNITED KINGDOM 

 

(1) A person who is a United Kingdom national, resident or who carries on business in the United Kingdom commits an offence under sections 6, 7, 8, 9, 10, 11 or 12 regardless of–

(a) where the offence took place; or

(b) the country or territory which is the place of recruitment, transportation, transfer, harbouring or receipt of any person in relation to whom the offence is committed.

(2) A person who is not a United Kingdom national or resident commits an offence under this part if–

(a) any part of the offence takes place in the United Kingdom; or

(b) the United Kingdom is the country of recruitment, transportation, transfer, harbouring or receipt of any person in relation to whom the offence is committed.

14. PENALTIES 

 

(1) A person guilty of an offence under sections 6, 7, 8, 9, 10, or 11 is liable–

(a) on conviction on indictment, to be sentenced to imprisonment for a term of up to life imprisonment; and

(b) on summary conviction, to be sentenced to imprisonment for a term not exceeding 12 months, or a fine, or both.

(2) A person guilty of an offence under section 12 is liable–

(a) on conviction on indictment, to be sentenced to imprisonment for a term not exceeding five years; and

(b) on summary conviction, to be sentenced to imprisonment for a term not exceeding 12 months, or a fine, or both.

15. NON-PROSECUTION OF VICTIMS AND NON-APPLICATION OF PENALTIES TO VICTIMS 

 

(1) Where a trafficked, enslaved or exploited person ("A") has committed an illegal act as a direct consequence of being trafficked, enslaved or exploited, no prosecution, conviction or imposition of penalties shall occur if–

(a) A was an adult at the date of the illegal act and was compelled to commit the illegal act; or

(b) A was a child at the date of the illegal act.

(2) For the purposes of subsection 15(1)(a), a person will have been compelled to commit an illegal act if they were subjected to one of the following: threats, the use of force or other forms of coercion; abduction; fraud; deception; the abuse of power or abuse of a position of vulnerability; the giving or receiving of payments or benefits to achieve the consent of a person having control over another person.

(3) For the purposes of section 15(1), A is to be treated as being a trafficked, enslaved or exploited person if–

(a) a decision has been made under the National Referral Mechanism that A is a trafficked, enslaved or exploited person; or

(b) no such decision has been made under the National Referral Mechanism but the court determines, based on the evidence before it, that A is a trafficked, enslaved or exploited person; or

(c) a decision was made under the NRM that A is not a trafficked, enslaved or exploited person, but the court is satisfied that the evidence adduced by the defence establishes that A was a trafficked, enslaved or exploited person.

(4) Section 15(1) provides a statutory defence to a criminal charge. Once A raises as a defence to a charge that they committed the illegal act as a direct consequence of their trafficking, enslavement or exploitation, or the court of its own volition, or on hearing submissions from any party, decides that such a defence should be considered by the court, the burden of proving that the illegal act was not committed as a direct consequence of being or having been a trafficked, enslaved or exploited person shall lie upon the prosecution.

16. DUTY ON PUBLIC AUTHORITIES AND THE NATIONAL REFERRAL MECHANISM ("NRM") 

 

General duty to identify, assist, support and promote the welfare of victims

(1) Public authorities have a general duty:

(a) to take all reasonable steps to identify persons who are, may be, or may have been, trafficked, enslaved or exploited persons;

(b) to take all reasonable steps to provide assistance and support (including to refer persons to other agencies for assistance and support) on a consensual and informed basis, and to promote the welfare of persons who are, may be, or may have been, trafficked, enslaved or exploited persons, including, as a minimum the provision of:

(i) standards of living capable of ensuring their subsistence, through such measures as the provision of appropriate and secure accommodation, psychological and material assistance;
(ii) access to necessary medical treatment;
(iii) translation and interpretation services;
(iv) counselling and information, in particular regarding their legal rights and the services available to them, in a language that they can understand;
(v) assistance to enable their rights and interests to be presented and considered at appropriate stages of criminal proceedings against offenders; and
(vi) access to education for children;

(c) to make arrangements for ensuring that any services provided by another person for the purpose of discharging the public authority’s function are provided in accordance with the general duty in section 16(1) above; and

(d) to have due regard to the fact that an individual is, or may have been a trafficked, enslaved or exploited person when making decisions affecting that individual.

(2) The Secretary of State must, in guidance to be issued pursuant to section 22 specify the steps that public authorities must take in order to discharge their obligations in this section, including training which public authorities must carry out.

Duty to investigate and the protection of witnesses

(3) There shall be a duty on the Police and other investigatory bodies to undertake a prompt and thorough investigation of offences set out in this Bill where circumstances, or a complaint which they receive, gives rise to a reasonable suspicion that an offence under this Bill may have been committed.

(4) The duty to investigate offences under this Bill includes a duty to investigate the application of the proceeds of the offence and to promptly take all reasonable steps to seek to seize those assets.

(5) The Secretary of State shall, in guidance to be issued under section 22, introduce special measures to assist vulnerable trafficked, enslaved or exploited persons who are to give evidence in criminal proceedings as witnesses of the alleged commission of an offence prescribed by this Bill. The provision of such special measures shall be provided on the basis of vulnerability without discrimination of any kind.

Establishment and function of the National Referral Mechanism ("NRM")

(6) The Secretary of State must establish an NRM to:

(a) identify trafficked, enslaved or exploited persons within the United Kingdom;

(b) provide assistance and support to a person who may have been trafficked, enslaved or exploited from the time at which that person is first referred into the NRM until such time as a final and conclusive determination is made that they are not such a person; and

(c) ensure that the rights of such persons are protected and promoted in a manner which discharges the Government’s obligations under the Trafficking Convention and the Trafficking Directive regarding the identification and protection of victims, including measures for assistance and support including, at a minimum, the measures referred to in section 16(1).

(7) The Secretary of State must, in regulations, specify the procedures to be followed to implement the NRM and the procedures to be applied by the NRM including to give effect to the right to a renewable residence permit provided for in sections 16(11) and (12) below.

(8) No authority that is responsible for deciding on an individual’s immigration or asylum status may also be responsible for deciding whether that person is a trafficked, enslaved or exploited person.

(9) The regulations must provide for a right of appeal by an individual in respect of a decision in the NRM process that they are not a trafficked, enslaved or exploited person.

(10) A person (including a child) must give their free and informed consent to being referred into the NRM before a referral is made on their behalf.

Additional protections – renewable residence permits   

 

(11) A person who is determined in the NRM process to be a trafficked, enslaved or exploited person shall be entitled to a one year renewable residence permit permitting them to remain in the United Kingdom where one or other, or both, of the following situations apply:

(a) a competent authority in the NRM considers that their stay is necessary owing to their personal situation; or

(b) a competent authority in the NRM considers that their stay is necessary for the purpose of the person’s co-operation with the authorities in connection with their investigations or criminal proceedings.

(12) A residence permit for child victims shall be issued where it is in accordance with the best interests of the child and, where appropriate, renewed under the same conditions.

Duties in relation to children

(13) The protection, assistance and support provided to trafficked, enslaved or exploited children (including those to whom the presumption of age applies) in accordance with the provisions in this Bill shall be at least equivalent to the protection, assistance and support provided to adults, save that where other legislation provides for greater protection for children that legislation shall, to the extent of any inconsistency with this Bill, prevail.

17. INDEPENDENT LEGAL GUARDIANS 

 

(1) An independent legal child guardian shall be appointed to represent the best interests of each child who is a separated child and/or may be a trafficked, enslaved or exploited person pursuant to this Bill if the person who has parental responsibility for the child fulfils any of the conditions set out in section 17(4).

(2) The Secretary of State shall establish an independent body to be known as ‘the Child Guardianship Service’ which shall–

(a) by order set out the arrangements for the recruitment, vetting and appointment of a suitably qualified independent child guardian with the requisite professional qualifications immediately after a child is identified as a separated child and/or a potential victim of trafficking, enslaving or exploitation;

(b) by order set out requirements for the training courses to be completed before a person may discharge duties as an independent child guardian;

(c) by order set out the arrangements for the supervision of persons discharging duties as an independent child guardian;

(d) monitor the activities of the independent child guardians and by order provide an accessible individual complaint mechanism for all children under the Child Guardianship Service;

(e) by order set out the arrangements for the provision of support services for persons discharging duties as an independent child guardian.

(3) Under the supervision of the Child Guardianship Service, the appointed independent legal child guardian shall be responsible at a minimum for–

(a) ensuring that all decisions relating to the child are made in the child’s best interests and, where reasonably practicable, are consistent with the child’s welfare after ascertaining the child’s wishes and feelings in relation to those decisions;

(b) advocating for the child, if a potential trafficked, enslaved or exploited person, to receive identification as such, appropriate care, safe accommodation, medical treatment, including psychological assistance, education, translation and interpretation services;

(c) assisting the child to access legal and other representation where necessary, including, where appropriate, appointing and instructing the solicitor representing the child on all matters relevant to the interests of the child;

(d) consulting, advising and informing the child victim of the child’s legal rights;

(e) keeping the child informed of all relevant legal and administrative proceedings;

(f) contributing to the identification of a plan to safeguard and promote the long-term welfare of the child based on an individual assessment of that child’s best interests;

(g) providing a link between the child and various organisations who may provide services to the child;

(h) assisting in establishing contact with the child’s family, where the child so wishes and it is in the child’s best interests;

(i) where appropriate, liaising with an immigration officer handling the child’s case in conjunction with the child’s legal representative;

(j) accompanying the child to all relevant interviews, including those relating to police, welfare, immigration and compensation; and

(k) accompanying the child whenever the child moves to new accommodation.

(4) Section 17(1) shall apply if the person who has parental responsibility for the child–

(a) is suspected of taking part in the trafficking of human beings;

(b) has another conflict of interest with the child;

(c) is not in contact with the child;

(d) is a local authority; or

(e) is in a country outside the United Kingdom.

(5) In section 17(1), an independent child guardian may be an employee of–

(a) an independent statutory body; or

(b) a recognised charitable organisation.

(6) A person discharging duties as an independent child guardian shall not discharge any other statutory duties in relation to a child for whom they are providing assistance under this section.

(7) Where an independent child guardian is appointed under section 17(1), the authority of the independent child guardian in relation to the child shall be recognised by any relevant body.

(8) In section 17(7), a "relevant body" means a person or organisation–

(a) which provides services to the child;

(b) to which a child makes an application for services; or

(c) to which the child needs access in relation to being a potential victim of trafficking, enslaving or exploitation.

18. applications for COMPENSATION and other remedies 

 

(1) A trafficked, enslaved or exploited person shall have the right to apply to the Government for compensation for any harm they have suffered as a result of being trafficked, enslaved or exploited and to seek any other private or public law remedies which may be available in respect of their trafficking, enslavement or exploitation.

(2) A trafficked, enslaved or exploited person shall be entitled to apply for legal aid in respect of any such claims.

(3) A trafficked, enslaved or exploited person who applies for compensation, or any other legal remedy in respect of their trafficking, enslavement or exploitation, shall have leave to remain in the United Kingdom for the purposes of pursuing their claim, up to and including a reasonable period following the final and conclusive determination of their claim and shall continue to receive support and assistance in accordance with section 16 during this time.

(4)  The Secretary of State shall, by guidance, set out the process–

(a) for enabling a trafficked, enslaved or exploited person to apply for compensation from the Government; and

(b) for the provision of assistance and support to a trafficked, enslaved or exploited person to:

(i) apply for Government compensation; and/or
(ii) to seek leave to remain under section 18(3) above.

19. OVERSEAS DOMESTIC WORKERS 

 

Rights of overseas domestic workers

(1) Overseas domestic workers including diplomatic domestic workers shall be entitled to:

(a) change their employer (but not work sector) while in the United Kingdom, without any adverse consequences for their immigration status;

(b) renew their domestic worker visa or diplomatic domestic worker visa for as long as the worker is in employment;

(c) be joined in the United Kingdom by their spouse or civil partner and any of their children who are under the age of 18;

(d) apply for indefinite leave to remain after five continuous years of residence in the United Kingdom and where they continue to be required for employment as a domestic worker.

Obligations of an employer

(2) An employer must pay an overseas domestic worker the National Minimum Wage.  A failure to do so shall be an offence under section 31 of the National Minimum Wage Act 1998. The Family Worker exemption provided for under Regulation 2(2) of the National Minimum Wage Regulations 1999 shall not apply to any dispute relating to the wages of an overseas domestic worker.

(3) An employer must inform HMRC in writing of the overseas domestic workers’ tax and national insurance contributions (including where any exemption for the worker may apply) within three months of the commencement of an overseas domestic worker’s first visa, or when their visa is renewed for the first time, whichever is the earlier.

(4) An employer who fails to comply with section (19)(3) commits an offence and shall be liable on summary conviction to a fine.

Additional protections - temporary visa for overseas domestic workers

(5) An overseas domestic worker shall be entitled to a three month temporary visa permitting them to live in the United Kingdom for the purposes of seeking new employment as an overseas domestic worker where–

(a) there is evidence that the overseas domestic worker has been trafficked, enslaved or exploited by their employer, irrespective of whether or not the employer has been criminally charged or convicted in respect of such conduct;

(b) the employer informs the Home Office that the overseas domestic worker has ceased to work for the employer and as a consequence the overseas domestic worker’s visa is, or will be, revoked;

(c) the employer dismisses the overseas domestic worker within three months of the date of expiry of their overseas domestic worker visa; or

(d) the overseas domestic worker’s visa is revoked as a result of the sponsoring employer’s misconduct including, without limitation, the non-payment of National Minimum Wage, tax or national insurance,

and where the overseas domestic worker would otherwise be unable to remain in the United Kingdom.

For the purposes of this section, and without limiting the general definition of exploitation in section 5 above, "exploitation" in section 19(5) expressly includes a failure by an employer to pay the overseas domestic worker the National Minimum Wage and non-minor breaches by the employer of applicable employment law.

(6) If a temporary visa is not granted to an overseas domestic worker under section 19(5), the overseas domestic worker shall have a right of review of that decision by the High Court and the right to apply for legal aid in relation to any such review.

(7) An overseas domestic worker shall have the right to remain in the United Kingdom on the same terms as their overseas domestic worker visa for a reasonable period for the purposes of preparing and lodging an application for a temporary visa under section 19(5) and for any period while they await any decision from the Home Office regarding their immigration status.

Applications for diplomatic domestic worker visas

(8) The Home Office shall only grant a diplomatic domestic worker visa where there is evidence that the diplomatic domestic worker is or will be employed in the United Kingdom pursuant to a direct contractual relationship with the relevant diplomatic mission.

20. TRANSPARENCY IN SUPPLY CHAINS 

 

General duty

(1) Every company operating in the United Kingdom and having annual worldwide gross receipts exceeding £60,000,000 shall disclose, as set forth in section (20)(2), its efforts to eradicate modern slavery, human trafficking, forced labour (as set out in ILO Convention 29 (1930) and subsequent protocol (2014)), child slavery (as set out in the 1956 Supplementary Convention on Slavery), child labour (as set out in ILO Convention 138) and the worst forms of child slavery (as set out in ILO Convention 182), from its own operations and direct supply chains for tangible goods and services offered for sale.

(2) The disclosure described in section 20(1) shall be–

(a) set out in the company’s annual report, and

(b) posted prominently on the company’s internet website, and a conspicuous and easily understood link to the required information shall be placed on the business homepage.

(c) If the company does not have an internet website, consumers shall be provided with the written disclosure within 30 days of the company receiving a written request for the disclosure from a consumer.

Requirements of disclosure

(3) The disclosure described in section 20(1) shall disclose to what extent, if any, the company does each of the following–

(a) Engages in verification of product supply chains to evaluate and address risks of human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms. The disclosure shall specify if the verification was not conducted by a person independent of the organisation being verified.

(b) Conducts unannounced and verified audits and independent inspections of suppliers to evaluate supplier compliance with company standards for human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms in supply chains. The disclosure shall specify if the verification was not an independent, unannounced audit and shall publish the terms of reference of any audits or inspections carried out.

(c) Requires direct suppliers to certify that materials incorporated into the product comply with the United Kingdom laws regarding human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms, of the country or countries in which they are doing business.

(d) Maintains internal accountability standards, supply chain management and procurement systems, and procedures for employees or contractors failing to meet company’s standards regarding human trafficking, modern slavery, forced labour, child slavery and child labour, in particular its worst forms, and requires direct suppliers to publish how they have verified that their certification is valid. The disclosure shall describe such standards and systems.

(e) Provides company employees and management who have direct responsibility for supply chain management with training on human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms, with particular respect to mitigating risks within the supply chains of products and services.

(f) Ensures that recruitment practices at all suppliers comply with the company‘s standards for eliminating exploitative labour practices that contribute to human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms.

(g) Companies which uncover human trafficking, modern slavery, forced labour, child slavery, and child labour, in particular its worst forms in their supply chains shall take action necessary and appropriate to assist people who have been victims, report to the authorities and shall report on that action in their annual reports.

21. ANTI-SLAVERY COMMISSIONER 

 

Establishment

(1) There is to be an office of Anti-slavery Commissioner (in this section "the Commissioner").

(2) The Commissioner shall be appointed by the Secretary of State, following a pre-appointment review by Parliament of the candidate proposed by the Secretary of State.

(3) The Commissioner may appoint their own staff.

General function and powers

(4) The Commissioner shall–

(a) monitor trafficking, slavery, exploitation, servitude, and forced or compulsory labour, the fulfilment of international obligations and the effectiveness of national legislation and policy;

(b) issue proposals, recommendations, statements, opinions and advice relevant to the fight against trafficking, slavery, exploitation, servitude, forced or compulsory labour and to the realisation of the rights of victims;

(c) engage with international organisations on trafficking, slavery, exploitation, servitude, forced or compulsory labour, child protection, and other relevant issues;

(d) report annually to Parliament on trafficking, slavery, exploitation, servitude, forced or compulsory labour, and related issues;

(e) periodically review the offences and related policy of trafficking and slavery to ensure that they reflect the UK’s obligations under the Trafficking Convention and Trafficking Directive and other international instruments are consistently applied to all trafficked, enslaved or exploited persons; and

(f) periodically review public authorities’ compliance with their duty under section 16 above.

(5) The Commissioner is responsible for reviewing the practical implementation of the non-prosecution and non-punishment of trafficked, enslaved and/or exploited persons, and in doing so must have particular regard to women and children.

(6) The Commissioner shall, specifically in respect of victims–

(a) encourage persons exercising functions or engaged in activities affecting trafficked, enslaved or exploited persons to take account of the views and interests of victims;

(b) consult with and advise the government on the views and interests of trafficked, enslaved or exploited persons;

(c) consider the operation of complaints procedures relating to trafficked, enslaved or exploited persons;

(d) consider any other matters relating to the services for, and interests and outcomes of trafficked, enslaved or exploited persons;

(e) be responsible for reviewing the practical implementation of the provision in this Bill for the non-prosecution of and non-application of penalties to trafficked, enslaved or exploited persons and victims of forced or compulsory labour, and in doing so must have particular regard to women and children; and

(f) publish a report on any matter in connection with trafficking, slavery, exploitation, servitude, and forced or compulsory labour considered by the Commissioner, which may include recommendations.

(7) The Commissioner must take reasonable steps to involve trafficked, enslaved and/or exploited persons in the discharge of his/her function under this section, and in particular to-

(a) ensure that trafficked, enslaved or exploited persons are made aware of the Commissioner’s function and how they may communicate with the Commissioner; and

(b) consult trafficked, enslaved or exploited persons, and organisations working with them, on the matters the Commission proposes to consider.

(8) The Commissioner is not obliged under this section to conduct an investigation of the case of an individual trafficked, enslaved or exploited person. The Commissioner may, however–

(a) investigate a particular case and/or intervene as a third party in a particular case where the case raises issues of public policy of relevance to other trafficked enslaved or exploited persons; or

(b) investigate any decision or recommendation made, or any act done or omitted, in respect of any trafficked, enslaved or exploited person.

(9) All public authorities must supply the Commissioner with such information in that person’s possession or control relating to those functions as the Commissioner may reasonably request for the purposes of his function under this section (provided that the information is information which that person may, apart from this section 21(9), lawfully disclose to the Commissioner).

(10) Where the Commissioner has published a report under this section containing recommendations in respect of any person exercising functions under any enactment, he may require that person to state in writing, within such period as the Commissioner may reasonably require, what action the person has taken or proposes to take in response to the recommendations.

(11) The Secretary of State must not take steps or impose measures that may impair, or may appear to impair, the Commissioner’s independence and shall ensure that the Commissioner is, to the extent the Commissioner is able, to determine, without limitation (other than as prescribed in this Bill):

(a) The Commissioner’s activities;

(b) The Commissioner’s timetables;

(c) The Commissioner’s priorities; and

(d) The Commissioner’s resources and funding.

22. Other Matters 

 

Guidance and Regulations to be issued by the Secretary of State

The Secretary of State shall from time to time issue regulations and guidance in respect of the interpretation and application of this Bill and in particular in respect of the following matters:

(a) regulations setting out the investigatory bodies subject to section 16(3);

(b) regulations setting out the public authorities subject to section 16(1);

(c) regulations specifying the procedures to be following to implement the NRM and the procedures to be applied by the NRM, including a right of appeal (sections 16(7) and (9));

(d) guidance for Courts and Tribunals regulating the taking of evidence in any court or tribunal proceedings from vulnerable trafficked, enslaved or exploited persons;

(e) guidance regarding the duty to identify, support and promote the welfare of victims (section 16(2)); and

(f) guidance on the procedures for a trafficked, enslaved or exploited person to apply for compensation (section 18).

The Proceeds of Crime Act 2002

(2) Schedule 2, section 4 of The Proceeds of Crime Act 2002 is hereby amended to include the offences in sections 6, 7, 8, 9, 10, 11 or 12 of this Bill as ‘lifestyle offences’.

September 2014


[1] http://www.antislavery.org/includes/documents/cm_docs/2014/a/atmg_modern_slavery_human_trafficking_and_human_exploitation_bill.pdf

[2] http://www.frankfield.com/upload/docs/Modern%20Slavery%20Bill%20Evidence%20Review.pdf

[3] http://www.publications.parliament.uk/pa/jt201314/jtselect/jtslavery/166/16602.htm

[4] http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2011:101:0001:0011:EN:PDF

[5] See Article 4b of the 2005 Council of Europe Convention against Trafficking http://conventions.coe.int/Treaty/en/Treaties/Html/197.htm

[6] Contained in Article 4a of the 2005 Council of Europe Convention against Trafficking

[7] See Article 4b of the 2005 Council of Europe Convention against Trafficking

[8] See the UNODC 2012, Issue Paper on Abuse of a position of vulnerability and other "means" within the definition of trafficking in persons. Available at: http://www.unodc.org/documents/human-trafficking/2012/UNODC_2012_Issue_Paper_-_Abuse_of_a_Position_of_Vulnerability.pdf

[9] Please see the Helen Bamber Foundation’s submission for the Joint Committee on the Modern Slavery Bill for further analysis of this issue: http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/draft-modern-slavery-bill-committee/draft-modern-slavery-bill/written/5967.html

[10] http://www.antislavery.org/atmg

[11] See http://www.raceineurope.org/wp-content/uploads/2014/01/UK-Chapter-FINAL-3.pdf and L and Others [2013] EWCA Crim 991 http://www.bailii.org/ew/cases/EWCA/Crim/2013/991.html

[12] Under Article 26 of the Trafficking Convention and Article 8 of the Trafficking Directive.

[13] See R v L and others [2013] EWCA Crim 991, judgment of 21 June 2013

[14] The defence is not compliant with the Council of Europe Trafficking Convention or EU Trafficking Directive (REF)’s child trafficking definition as it includes a compulsion test. A child cannot consent to being trafficked so is therefore always ‘compelled’ in this context.

[15] See, for instance, UN Committee on the Rights of the Child (2014), Concluding observations (OPSC): United Kingdom of Great Britain and Northern Ireland, paragraph 39c, and GRETA (2012), Report concerning the implementation of the Council of Europe Convention on Action against Trafficking in Human Beings in the United Kingdom.

[16] See ‘Guardianship for children deprived of parental care: A handbook to reinforce guardianship systems to cater for the specific needs of child victims of trafficking’, EU Fundamental Rights Agency (2014).

[17] See http://www.publications.parliament.uk/pa/jt201314/jtselect/jtslavery/166/16610.htm

Prepared 2nd September 2014