Modern Slavery Bill

Written evidence submitted by Dr Julinda Beqiraj (MS 36)

Introduction

1. I have pleasure in submitting the following written views on the Modern Slavery Bill to the House of Commons Public Bill Committee in my personal capacity. The submission was prepared with research assistance provided by Mr. Alistair Henwood, intern at the Bingham Centre for the Rule of Law.

2. The Bill highlights the need to have regard for the circumstances that might make persons particularly vulnerable to modern slavery offences. Such considerations shape the determination of whether an offence has been committed under the Bill, and the scope of the possible defence for victims forced to commit offences themselves. However, the strength of protection is limited by omitting references to an important and substantial category of victims of these offences, i.e. immigrants. This not only undermines the very purpose of the Bill, but also creates an express inequality between different groups of victims of the same offences.

3. An effective rule of law entails that laws are capable to effectively protect all individuals (citizens and non-citizens) from abuses of their human rights, including from being enslaved. In this submission, we focus on only one aspect of the proposed Modern Slavery Bill: the lack of adequate protection for immigrants – particularly immigrants employed as domestic workers. Immigrants represent one of the principal vulnerable groups of victims targeted by slavery offences and this fact cannot go unnoticed in the Bill.

4. We want to see a Bill that ensures that the victims of modern slavery benefit from the rule of law. To that end we suggest amendments to Sections 1 and 39 of the Bill, as well as the need to amend the immigration rules concerning visa for domestic workers. The submission is aimed at supporting the core purpose of the Modern Slavery Bill, whilst also ensuring that it achieves an effective human rights protection in practice.

Relevant circumstances for determining whether a person is a victim of one of the modern slavery offences

5. Section 1 of the Bill outlines the offences of holding a person in slavery or servitude, or requiring the performance of forced or compulsory labour. These are to be construed in accordance with Article 4 of the European Convention on Human Rights (ECHR). In determining whether a person has been a victim of these offences, the Bill directs that "regard may be had to all the circumstances." In particular, as an example, reference is made to "any […] personal circumstances" which may make the person more vulnerable than others - "such as their age, family relationships, and any mental or physical illness".

6. Whilst this is guidance only - not being constructed so as to create a limitation upon the categories to be considered - the absence of "nationality" and/or "immigration status" as express circumstances requiring scrutiny under the Bill is a troubling omission. In exemplifying the relevant circumstances for determining whether a person is a victim of one of the modern slavery offences the Bill should go beyond "personal circumstances".

7. The need for a modern statutory regime governing slavery and trafficking has in no small way been highlighted by jurisprudence of the European Court of Human Rights (ECtHR). The core of the cases concerning violations of Article 4 in which the ECtHR details the meaning and scope of application of the concepts of "slavery, servitude, and forced or compulsory labour" involve immigrants. [1] The vulnerability of this group is therefore intrinsically linked to the offences the Bill seeks to address.

8. Also, at the international level the ILO alerts that migrant workers are particularly vulnerable to forced labour and other similar exploitative practices. The recently adopted Protocol to the 1930 Forced Labour Convention notes that certain groups of workers have a higher risk of becoming victims of forced or compulsory labour, especially immigrants. [2]

9. Migrant workers, especially those working in low-skilled sectors of the economy are considered "vulnerable" groups in need for "empowerment" for the realization of their rights. The UN Special Rapporteur on the human rights of migrants has clarified that the concept of vulnerability usefully emphasizes the lack of protection of migrants; however, it is not an indicator of weakness. [3] Rather than being an intrinsic characteristic of the individual, vulnerability is a condition imposed on the immigrant, whether regular or irregular, by the power structure within the country of destination exposing him/her to situations of exploitation. It is reflected in the lack of legal, social or political mechanisms guaranteeing full compliance with the human rights of migrants, including through the establishment of effective sanctions in case of violations of their rights. [4]

10. Furthermore, the Bill should also consider that certain employment sectors provide a more fertile environment for modern slavery offences. [5] For instance, domestic workers, mainly those brought in from outside the UK, are particularly vulnerable to exploitation. These workers will be disproportionately dependent upon their employers, relative to labourers with greater access to outside influences and communications. Such dependency is further exacerbated by other elements typically related to this category, such as: low access to information due to linguistic barriers; fewer opportunities to be subject to labour inspections by government officials; and limited recourse to justice institutions to make effective claims against the employer. [6]

11. As drafted, Section 1 of the proposed Bill can be seen to limit the scope of vulnerabilities acknowledged under the Bill. The circumstances which put a person at greater risk of exploitation are not simply those of a personal nature, nor are they adequately detailed – although in a non-exhaustive manner – in subsection 1(4).

12. We suggest the following changes so as to better protect all groups at risk of becoming more easily victims of modern slavery offences.

· Subsection 1(4) should read: "For example [For the purpose of subsection 1(3)] regard may be had to any person’s personal [relevant] circumstances (such as their age, [sex,] family relationships, and any mental or physical illness, [nationality, immigration status, employment sector and other]) which may make the person more vulnerable than other persons."

Defence for slavery or trafficking victims compelled to commit an offence

13. Section 39 of the proposed Bill provides a defence for victims under the Modern Slavery Bill who have been compelled to commit an offence. These persons will not be guilty of the offence where compulsion is attributable to slavery or exploitation as set out in the Bill. The purpose of the provision is to encourage victims of slavery and trafficking to come forward and give evidence of the offences under the Bill without fear of being convicted themselves. Under subsection 39 (1c) of the Bill, such a defence will only be available if "a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act." The "relevant characteristics" are defined in subsection 39 (2).

14. Unlike the relevant circumstances for identifying the victims of modern slavery offences in section 1, the characteristics listed in subsection 39(2) that will eventually determine who will benefit from the defence in concrete cases are contained within a finite list: "age, sex and any physical or mental illness or disability." This restrictive approach is problematic under several perspectives.

15. First, by confining the relevant characteristics to age, sex and disability, subsection 39 (2) severely restricts an effective and accurate evaluation of the actual circumstances under which the commission of an offence may be compelled. Secondly, as drafted, the criteria for the reasonable person test eventually limit the scope of application of the defence provision in an unjustified manner. Thirdly, the fictio that persons of the same age, sex and health status are compelled in the same way to commit an offence in the context of trafficking or modern slavery offences is particularly disadvantageous for immigrants; by failing to capture their special vulnerability the provision accords fewer probabilities to immigrants to benefit from the defence exception. Fourthly, the provision creates an unreasonable inconsistency within the Bill between Section 1 and Section 39 and risks to undermine substantially its effet utile.

16. At an additional level, the effectiveness of section 39 is weakened by the lack of clarity as to the concrete way in which the defence will operate. In other terms, the current wording of section 39 "does not specify if the defence only excludes "conviction" of slavery victims for offences they might have committed or if it also captures prosecution. These options have very different outcomes, especially for immigrants and other categories less able to access free legal advice. Clear legal provisions are an important element of the rule of law and may compensate for inequalities and inefficiencies related to access to justice, in particular as regards limited access to legal advice, and guarantees of a fair process.

17. We therefore suggest the following amendments to section 39 of the Bill:

· Subsection 39 (1) should read: "A person will not be prosecuted is not guilty of an offence if"

· Subsection 39 (2) should read: "Relevant characteristics means [may include] age, sex, and any physical or mental illness or disability, [nationality, immigration status, and level and type of vulnerability]."

Changes to the Immigration Rules 2012

18. The Government response to the Modern Slavery Bill Joint Committee report rejected proposals to amend the Immigration Rules introduced in 2012. The changes introduced in 2012, which exclude the possibility for overseas domestic workers to change employer, eventually end up by "tying migrant domestic workers to their employer" and therefore "institutionalize their abuse". Despite this, the Government restated its position that current safeguards are adequate to protect individuals from exploitation within the UK. It was further argued that to alter the rules in such a way would undermine the nature of the visas as short-term permits for low skilled workers.

19. In our view this position raises an important access to justice issue. It has the effect of creating a specified group of people without an effective remedy to exploitation. Under current rules, fear of losing employment and subsequent deportation prevents overseas domestic workers that become victims of modern slavery offences from reporting an offence. In the absence of practical alternatives to reporting abuses, many offences go un-notified. This affects those most in need of protection and increases inequality between groups of victims, rendering the statute incapable of providing effective remedies to those requiring assistance.

20. Analogous considerations were made in the Report of the Special Rapporteur (SR) on the human rights of migrants, Jorge Bustamante, released after his mission to the UK in June 2009. [7] In that occasion the SR noted with appreciation that:

"the right to change employer has been instrumental in facilitating the escape of migrant domestic workers from exploitative and abusive situations. This is because they know they can receive support and assistance and still seek work with another employer without facing the risk of being removed from the United Kingdom.

The Special Rapporteur welcomes the decision of the Government to continue this visa scheme for migrant domestic workers for at least two years (…)" [8]

21. Similar concerns must be raised with regard to diplomatic domestic workers. The Government response, and the Joint Committee report both highlighted the difficulty to convict employers with diplomatic immunity under UK laws. This protection gap leaves diplomatic domestic workers without recourse to offences committed against them by those acting with immunity. The ultimate effect is a limited access to justice and to effective remedies that weakens the rule of law.

22. In our opinion the Government should also reconsider its position in view of the communication submitted by the Trades Union Congress (TUC) to the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR). [9] The TUC commented in particular on the situation of migrant domestic workers in the United Kingdom and raised specific concerns on the changes to the Overseas Domestic Work visa system in 2012. It claimed that these changes removed important safeguards for visa holders, including the right to change employers and the right to renew the visa, and that these changes have been a damage for the protection of migrant domestic workers against forced labour. The Government is expected to respond to the comments of the TUC in its next report due in 2016.

23. We suggest the following measures:

· We reiterate the recommendation for the Home Office to reverse the changes to the Overseas Domestic Worker Visa and therefore allow such workers to change employer during their stay in the UK.

· In order to address (although indirectly) the problem of diplomatic domestic workers being left without a remedy, we suggest that diplomatic personnel identified as having exploited workers, as defined by the Bill, be declared undesirable persons in the UK.

· We also suggest that a specific fund be created from the resources confiscated in relation to slavery and trafficking to supply victims of these offences with resources to cover legal and reintegration costs.

October 2014


[1] See Siliadin v. France, case No. 73316/01, judgment of 26 July 2005; C.N. et V. c. France, No. 67724/09, judgment of 11 October 2012; C.N. v. The United Kingdom, No. 4239/08, judgment of 13 November 2012; Rantsev v. Cyprus and Russia, No. 25965/04, judgment of 7 November 2010; Elisabeth Kawogo v. The United Kingdom, No. 56921/09, struck out of the list 3 September 2013.

[2] Protocol of 2014 to the Forced Labour Convention (no 29), 1930, adopted in Geneva, 103rd ILC session, 11 June 2014. The UK ratified the Convention on 03 June 1931.

[3] PIZARRO G. R., Human rights of migrants, Report of the Special Rapporteur submitted pursuant to Commission on Human Rights resolution 1999/44, E/CN.4/2000/82, 6 January 2000.

[4] The concept of "empowerment", intended as "full compliance with human rights", is taken from a speech of the High Commissioner Mary Robinson, delivered at Oxford in 1997, and represents the basic conceptual frame for the UN/ECOSOC/Commission on Human Rights. BUSTAMANTE J. A. (Chairman/Rapporteur of the working group of intergovernmental experts on the human rights of migrants), Working Paper on the Vulnerability of Migrants as Subjects of Human Rights, E/CN.4/AC.46/1998/5, 8 October 1998, para. 45-46.

[5] ILO, Domestic workers across the world: Global and regional statistics and the extent of legal protection, 2013, p. 22.

[6] BLACKETT A., The Decent Work for Domestic Workers Convention and Recommendation, 2011, The American Journal of International Law, Vol. 106, No. 4, 2012, p. 779; Domestic Work policy Brief No. 4, Global and regional estimates on domestic workers, 2011.

[7] R eport of the Special Rapporteur, A/HRC/14/30/Add.3 , 2010.

[8] Ibid. para. 60-61.

[9] Direct Request (CEACR), 29 August 2013, Forced Labour Convention, 1930 (No. 29), published 103rd ILC session (2014).

Prepared 15th October 2014