Memorandum submitted by Anti-Slavery International
Synopsis
Forced labour and human trafficking for labour
exploitation will remain a high-profit, low-risk crime and the
UK will continue to be supporting modern day slavery unless robust
penal measures are firmly in place and enforced. Also regulation,
particularly of labour agencies and providers, must be extended
and businesses need to be made aware of legislative measures and
have access to guidance. Finally, workers at risk of slavery,
exploited or in forced labour need adequate support and protection.
Anti-Slavery International was set up in 1839 and
is the oldest international human rights organisation in the world.
Today Anti-Slavery International works to eradicate all contemporary
forms of slavery, including bonded labour, forced labour, trafficking
in human beings, descent based slavery and the unconditional worst
forms of child labour.
It is estimated by the International Labour
Organization (ILO) that contemporary slavery, as defined in international
law, affects a minimum of 12.3 million people in the world
today, many of them in emerging economies.
Globally, profits generated from all forms of
forced labour amount to US$ 44.3 billion per year, with the
majority of the profits generated in industrialised countries.
The estimated annual profits of traffickers from forced economic
exploitation are $3.8 billion, with profits highest in industrialised
countries (US$ 2.2 billion).[224]
About 80% of forced labour today is privately imposed[225]
and a common feature is that some form of debt bondage[226]
or debt slavery is involved.
Anti-Slavery's supply chain programme, which
is funded by the Department of International Development, is dedicated
to eradicating forced labour from the production of goods sold
in the UK. By working together with businesses (for example Anti-Slavery
sits on the International Board of Cadbury's Cocoa Partnership,
and is a member of the Ethical Trading Initiative) as well as
undertaking research and eradication programmes in countries and
communities affected by slavery; we are developing an in-depth
understanding of how business practices relate to slavery.
This response focuses on Anti-Slavery's experience
of the specific human right—prohibition of slavery and forced
labour—as set out in Article 4 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms.
THE DUTY
OF THE
STATE TO
PROTECT HUMAN
RIGHTS
How UK businesses affect slavery
Slavery emerges at the conjunction of government
inaction, prejudice against minorities, and poverty. The causes
of slavery are rooted in social norms that often extend far beyond
any factory or purely business environment. However thoughtless
or malicious business practices can reinforce the social norms
that enable slavery to thrive.
Companies' purchasing practices can encourage
the use of forced labour, child labour or debt bondage. In manufacturing,
downward pressures on costs and large demands given to suppliers
with short lead times increase the likelihood of unregulated subcontracting.
For example, in June 2008 BBC's Panorama exposed Primark's
subcontractors in India who used child labour to embroider items
of clothing.
In November 2008, over 60 workers picking
leeks in Lincolnshire destined for our supermarket shelves were
rescued from debt bondage; it is alleged that they were trafficked
to the UK. The existence of illegal labour providers, who are
able to provide legitimate businesses with workers at a reduced
price, may be a reflection of the demand created by pressures
that supermarkets put on suppliers to reduce costs in their price
wars.
Industries supplied by forced labour are wide
ranging and include agriculture, food packaging, construction,
domestic work, care, and the restaurant and hospitality industry.
Ascertaining a business's involvement in trafficking and slavery
is important when considering an appropriate response. Involvement
can lie between actively aiding and abetting to complete ignorance
of the condition of its subcontracted workers (which itself is
not an excuse). The reality is that labour exploitation and trafficking
for forced labour often go undetected because they are largely
hidden crimes.
The forms of coercion in recruiting forced labour
are relatively subtle. Actual physical violence is rare. The person
may be deceived into a situation of exploitation by accepting
an initial promise of work and finding on arrival, that the work
or working conditions do not meet that promise but the person
has little or no choice but to accept it. Manipulation, psychological
pressure and threats or simply the retention of their identification
documents, are tactics used to coerce the person to accept inferior
(and often exploitative) working conditions than what they had
previously agreed. This is often combined with debt bondage, which
is exacerbated by the obligation that the worker accepts further
services at inflated prices such as accommodation and transport.
The Daily Telegraph reported in March 2008 that some workers
in a Tesco store in Malaysia had paid up to £1,500 in
arrangement fees in Bangladesh but on arrival, found that they
were earning only between £20 and £50 a month
after deductions.
Exploitation and forced labour mostly occur
in industries that depend on casual and temporary labour, offer
low wages, are non-unionised, labour intensive, predominantly
subcontract, and where it is often hard to track supply chains.[227]
Although there are companies that may not have actively participated
in this exploitation, as beneficiaries, they should be held responsible
for ending, remediating and preventing such abuses where they
occur in their supply chains.
Anti-Slavery International believes that UK
businesses have a specific and unique competence to contribute
to the eradication of slavery both within the UK and around the
world through the way in which they do business. Through their
supply chain, companies can influence their suppliers to reduce
the risk that goods sold in the UK are produced using forced labour.
For example, Next Plc., a British clothing retailer, has worked
with its supplier in Mauritius to improve its recruitment practices,
which has greatly reduced the likelihood that its migrant workers
are in debt bondage.
Gaps in the existing legal and regulatory framework
that need to be addressed
Anti-Slavery's membership of the Ethical Trading
Initiative, a tri-partite learning initiative, has shown that
whilst voluntary mechanisms can make some headway in improving
labour rights, meeting minimum labour standards (such as not using
forced labour) remains an aspiration rather than a reality for
many businesses. Although legislation and regulation is not a
panacea, they act as stimuli for action and have a deterrent effect.
Currently in the UK prosecutions for forced
labour are limited to cases where trafficking is involved. A significant
gap is the lack of criminal legislation setting out penalties
for the use of forced labour, a requirement set out in Article
25 of the ILO Convention 29[228]
to which the UK is a party. The penalties, which should be heavier
than those set out in employment law, would have a deterrent effect
on employers and would offer protection to those who had not been
trafficked.
Legislation and better regulation also levels
the playing field between those investing in preventative measures
and those free-riding on the benefits. The call for better regulation
of labour agencies comes from within the industry itself. The
largest labour agency, Manpower, has repeatedly called for more
regulation at public forums and is leading a business initiative
to address trafficking and forced labour.
The existing Gangmaster Licensing Act (GLA),
which regulates the supply of labour by gangmasters in the agriculture
and food processing industries, has proven effective at tackling
exploitation in the areas it regulates. However to ensure that
other industries are not offering "safe havens" for
rogue labour providers, the remit of the GLA should be extended
to include a broader range of sectors, particularly those which
employ large numbers of migrant and low-skilled workers who may
be particularly vulnerable to exploitation. These sectors include
restaurant work and hospitality, care and nursing, domestic workers,
contract cleaning and construction.
A particular challenge is balancing the need
to introduce robust regulation to improve business transparency
which enables NGOs, trade unions, investors and the public to
hold companies to account, whilst ensuring that violations that
emerge are addressed responsibly and not pushed underground.
UK government guidance for businesses
Although there is widespread support amongst
companies against the use of forced labour the lack of guidance
in law and regulation means that many are ignorant as to why or
what actions they should be taking to prevent forced labour. The
government should work with employers' organisations to raise
awareness amongst employers of legislation—the stick, as
well as provide support and guidance setting out the practical
steps employers should undertake in order to meet their obligations
and commitments to ensure no presence of forced labour—the
carrot.
Governmental efforts directed at businesses
should complement measures directed at providing assistance to
workers. The government needs to ensure systematic protection
and assistance to people who are in forced labour. For example,
current measures directed at migrant workers do not extend to
the level required by trafficked people. Comprehensive rehabilitation
programmes can prevent people from being re-trafficked,[229]
as well as increasing prosecutions.
Role of individual government departments
All businesses that receive substantial public
support from government departments in their operations either
in the UK or abroad, should have that support withdrawn where
they are found not to have effective measures in place to identify
and responsibly eradicate forced labour.
THE RESPONSIBILITY
OF BUSINESSES
TO RESPECT
HUMAN RIGHTS
How UK businesses should take into account their
impact on human rights
The establishment of the Cadbury's Cocoa Partnership
seems to represent a sincere and sustained attempt by a UK company
to address, in a critical part of its supply chain, a range of
complex stakeholder issues including child labour, and environmental
sustainability as well as broader questions of democratic development.
This represents an example of good practice of business partnership
with civil society, which Anti-Slavery believes is essential if
businesses' policies and practices to address forced labour are
effective and sustainable. Such partnerships should be encouraged
by government.
The responsibilities of UK businesses to respect
human rights should not vary depending on whether or not they
are performing public functions or providing public services.
Although it appears morally dubious to set varying degrees of
responsibility for businesses according to the size, type or nature
of the business in question, a reasonable starting point would
be to focus efforts on businesses either performing public functions
or benefiting from substantial governmental backing or support,
as set out above.
Inevitably business decisions will be made in
the current economic climate to reduce costs, such as to subcontract
work, switch suppliers or put downward pressures on suppliers
to reduce prices, which provide an opportunity for exploitative
employment practices. However, slavery is not acceptable under
any circumstances.
EFFECTIVE ACCESS
TO REMEDY
Existing opportunities to access remedies
UK legislation sets forth several legal remedies
for victims of criminal acts or violations of labour laws. Nevertheless,
these remedies remain an illusory option for those trafficked
or in forced labour in the UK.
Although there has been an increase in the number
of convictions for human trafficking in the UK, legal remedies
and compensation for trafficked persons have remained inaccessible.
Undocumented workers, who may constitute a significant number
of trafficked persons, are excluded from employment tribunals
purely on the basis of their immigration status. Although their
work will have generated profit for their employer, undocumented
workers have no right to claim unpaid wages, as a consequence
of their irregular status. This, together with the low level of
penalties, creates an incentive for unscrupulous employers to
exploit migrant workers. Furthermore, the lack of available legal
aid for pursuit of civil claims or employment claims hinders trafficked
or exploited persons from obtaining effective legal representation.[230]
Consequently, although UK law provides routes
for victims of trafficking to seek compensation through criminal,
civil and labour law, only a minority of trafficked persons actually
have the opportunity to pursue this right, much less receive compensation,
as demonstrated in Anti-Slavery's research.[231]
In addition, a report prepared by COMPAS in
collaboration with the Trades Union Congress noted that in the
UK enforcement of criminal law for offences committed in the context
of forced labour has been weak. The report goes on to say that
"although many serious abuses committed by employers—theft
of documents, assault and blackmail—are offences under UK
criminal law, competing police priorities and limited resources,
combined with evidentiary problems, have meant that few cases
are prosecuted."[232]
Changes to improve access to remedies
Effective judicial remedies are missing from
the current mix of available remedies. Existing initiatives have
demonstrated a number of limitations. For example, following the
OECD UK National Contact Point's statement in August 2008 that
the UK company Afrimex had failed to respect human rights by buying
minerals in the Democratic Republic of Congo produced using forced
labour, the lack of follow-up by the UK government to ensure its
recommendations are implemented, limits the effect of this remedy.
Whilst complaints mechanisms, business initiatives
and multi-stakeholder initiatives perform a worthwhile function,
the gravity of forced labour and the reality of the scale of the
problem of forced labour, require a judicial remedy that allows
a person, wherever they are, to hold a company to account and
prevent future violations of their right to freedom from slavery.
Employment law protections should be extended
to enable all workers to enforce core statutory employment rights,
regardless of their immigration status. In addition, the protection
currently given to victims of trafficking should be extended to
victims of forced labour to encourage victims to come forward
and prosecute the perpetrators.
Anti-Slavery International
May 2009
224 Belser, P., Forced Labour and Human Trafficking:
Estimating the Profits, ILO, March 2005, p.11. Back
225
ILO, A global alliance against forced labour: Global Report
under the Follow-up to the ILO Declaration on Fundamental Principles
and Rights at Work, Geneva, 2005. Back
226
Debt bondage is defined by the ILO as a distinct form of forced
labour. Back
227
Skrivankova, K., Trafficking for Forced Labour: UK Country
Report, Anti-Slavery International 2006 page 15 Back
228
Article 25 reads: "The illegal exaction of forced or
compulsory labour shall be punished as a penal offence, and it
shall be an obligation on any Member ratifying this Convention
to ensure that the penalties imposed by law are really adequate
and are strictly enforced." Back
229
Skrivankova (2004) op cit Back
230
Skrivankova, K. and Lam, J., Opportunities and Obstacles: Ensuring
access to compensation for trafficked persons in the UK, Anti-Slavery
International 2009 Back
231
Ibid, page 35 Back
232
Anderson, B., and Rogaly, B., Forced Labour and Migration to
the UK, 2005 available at http://www.tuc.org.uk/international/tuc-9317-f0.pdf
accessed on 1 May 2009. Back
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