Modern Slavery Bill
Written evidence submitted by Unseen (MS 07)
Unseen work at both the micro and the macro level in regards to the issues of trafficking and modern slavery. Considered leading experts in the field we work directly with survivors, via our safe housing and resettlement services, as well as with law enforcement and Government agencies (local, regional and national and EU) to develop and implement effective policies and practices in regards to this issue. We welcome the Home Secretary’s move to strengthen the legislation around this issue and make a stand that modern slavery will not be tolerated in our society. Our CEO chaired the Centre for Social Justice, ‘It Happens Here’ Report acknowledged by the Home Secretary as the primary reason for her to bring forth the Modern Slavery Bill. Unseen’s Managing Director gave oral and written evidence to Frank Field’s committee as well as our CEO being a member of the Review Panel. As the Modern Slavery Bill moves into Committee Stage we write in addition: to our CEO’s oral evidence already given to the committee; our previous written evidence to both the review panel; and pre-legislative committee, to highlight four main points we would like to see thoroughly considered during the committee stage as well as some further subsidiary points:
· The inclusion of Transparency and Supply Chains Legislation in The Modern Slavery Bill and not within the Companies Act (2006)
· The Independence of the Anti-Slavery Commissioner and the powers the position holds
· An improved, defined and agreed focus on victims; their identification, the support they receive and their entitlements whether reintegrating in the UK or returning to their country of origin
· Potential for effective civil remedies
The Bill gives us the opportunity to send clear signals both here and abroad that slavery will not be tolerated and we would like to expand further on the points above to assist and offer our expertise and opinions on these areas.
2. Transparency in Supply Chains
The call for an amendment to the Companies Act (2006) in which to enshrine the issue of supply chains we believe will be ineffectual and will inadvertently penalise UK companies. We advocate strongly that the legislation be included in the Modern Slavery Bill, as it will create a broad and level playing field , as opposed to the narrowness of the Companies Act proposal. The Companies Act only applies to UK public/quoted/listed and private companies. Disparity arises when under The Companies Act public, quoted and listed companies  all have additional reporting requirements including providing a narrative review of their activities
In terms of the narrative reporting private companies, must produce a business review – but they are not covered by Section 417(5) pertaining to non-financial aspects of performance and have longer to file their accounts each year. The same is not true of quoted companies who are expected to incorporate non-financial elements of their business in such a review but with the caveat that they need only report ‘to the extent necessary’ If a voluntary ‘to the extent necessary’ provision under s(417) was included it would add bureaucracy to the existing efforts of companies whilst catching no-one different. Incorporating such changes into The Companies Act (2006) will not have the desired effect, nor will it apply to all businesses and companies working within the UK.
Inclusion of Transparency in Supply Chains legislation within the Modern Slavery Bill will mean that any company doing business here in the UK would have to comply, both UK and non-UK, public and private companies and if at the same financial threshold for compliance as California (approximately £60 million worldwide turnover ) this would create more ease with companies not having to dual report on issues. There is precedent for issues – specific bills to make clear reporting requirements under company law. This is the case with GHJG reporting https://www.gov.uk/government/publications/environmental-reporting-guidelines-including-mandatory-greenhouse-gas-emissions-reporting-guidance although in this case, the Climate Change A ct 2008 made it a requirement, which was then effected in the Companies A c t regulations. This only applied to quoted companies – but the strategic risk is different. All the big emitters are publicly listed – with retail and supply chains it’s different.
Transparency in Supply Chains needs to be underpinned by statute. In essence the amendment is a disclosure amendment that is disclosed prominently on a company’s website and crucially in its annual report with six areas of disclosure: verification, audit & inspection, certification, internal accountability, training, recruitment practices .
There is no evidence that voluntary codes work. A voluntary code is disadvantageous to those companies who care, who don’t want their business to be tarnished and tainted with slavery and they are calling for this to be incorporated into the Modern Slavery Bill. If the goal is to protect UK businesses as well as create a level playing field for all and for this to have global reach then moving the legislation into the Modern Slavery Bill will have the desired effect as well as turning the Bill into a world-class piece of progressive legislation.
3. Independence of the Anti-Slavery Commissioner
We welcome the amendment to the Bill that extends to role of the Commissioner so that they can work internationally and encourage co-operation between nations on the issue of modern slavery. We do however wish to turn your attention to other responsibilities and powers the Commissioner needs to have in order to be truly independent and a focal point for this issue both here in the UK and further afield.
The Commissioner must have the ability to work across Government and all its agencies, to quality assess the non-governmental sector, especially those working directly to support survivors, to challenge and task the NCA and other law enforcement and statutory agencies to proactively look for and tackle this issue and most importantly to have the powers necessary to ensure each agency is held to account on delivering and responding to this issue appropriately. They should be accountable to parliament.
The Commissioner role needs to have the power to hold agencies to account, assist them to improve their practice and as a last resort impose sanctions where change does not occur.
The Commissioner should also be involved in reviewing of the NRM process. If the NRM is to be put onto a statutory footing, of which we are in favour, the Office of the Commissioner should be given the responsibility of holding agencies to account in regards to the number and quality of the submissions received by each agency.
We would suggest their office provides an independent reviewing capability of cases of trafficking – looking at the practices enacted by all agencies involved in the case presented as a means of establishing best practice and identifying areas to work on.
The Commissioner must become the voice for victims – if this Bill is to truly protect and help victims they need to be represented impartially and the services they access. To truly protect we must first fully understand all the issues victims face. The issue of resettlement and reintegration both here in the UK or in a country of origin is an area that needs to be thoroughly reviewed and a co-ordinated, effective and sustainable approach needs to be established.
4. An improved, defined and agreed focus on victims
It is stated that it will be the duty of Secretary of State to provide victim care. No guidance is given as to what will practically be offered as part of this, nor with the proposed legislation is it clear if those considered to be victims of trafficking will be receiving the same support and care as those deemed to be victims of slavery. There needs to be clarity on this issue.
Will victims of slavery be referred to the NRM or will it only be human trafficking victims? If we have new legislation how does this filter into identification and then victim services offered, as the offences are now distinctly different. This can especially be seen in the case of forced labour, a crime that may be both trafficking and/or slavery – will the offence dictate the support received? Clarity on who will be eligible and for what services needs to be addressed.
As the Bill currently reads it does not offer the victims any prospect for self-help. Whilst the victims of exploitation may be the object of pity they are nevertheless humans and will have the usual human attributes of pride, dignity and intelligence. There is absolutely no reason why, once released from the oppressors by the police or other means, they cannot take steps to enforce their rights themselves. They should at least have the opportunity of doing so. They would thereby participate in civil society as normal people, using the usual means of redress resorted to be civil society at large.
It is noticeable that the Bill itself does not expressly confer a right not to be held in slavery or exploited within the meaning of the Bill. It may be, as the Parliamentary Pre-Legislative Committee assumed, that such a right is implicit or is conferred by other branches of law. Nevertheless assembling a victim’s legal rights from the patchwork quilt of existing civil rights and obligations not designed for this problem creates uncertainty and provides the possibility of evasion by defendants.
We would therefore suggest that a specific civil right not to be enslaved or exploited should be enshrined in law and be actionable by the victims themselves.
We are all very aware that without victims of this crime successful prosecutions, which are presented as a pillar of this Bill, are unlikely. We think it is fair to say that gone are the days whereby we can hide behind the argument that the lack of prosecutions is indicative of the fact we don’t have an issue but without the correct support for victims prosecutions will not be forthcoming. As far as public resources are concerned, there are already established concerns about the ineffectiveness of prosecution in the United Kingdom for matters such as rape, female genital mutilation and other intimate crimes. It is all too easy for a public official to say "too difficult" or "too expensive" and move on to the next, easier case. This tendency to inertia of the public official is likely to hamper the effectiveness of the Bill as drafted.
As we stated in our initial submission to the pre-scrutiny committee whilst the Home Secretary clearly states victims are at the heart of this Bill, we would argue the initial draft Bill and now the Bill does not reference safeguarding for survivors at all. Whether this is to be part of legislation or part of the non-legislative action that runs alongside this Bill the absence of mention of survivor identification, care, safeguarding and assistance into, throughout and post the NRM process is concerning.
Whether victim care is legislated for or sits subsequently within policy we have to work a way around the current post-code lottery that those escaping slavery face.
We need increased identification, increased training for those who may come across it, increased expectations of reporting, an improved response to victim care that focuses on empowerment, promoting independence and long term resilience. We would not agree with some in the recent second reading debate who referred to returning victims with £3,000 to restart their lives in their home country. This displays a fundamental lack of understanding as to what victim’s face, the trauma they have experienced and the support they need. This is not to say we advocate for never-ending handholding of victims but realistically appreciate the support they will need to re-start and re-launch their lives – sending them home is a crass way of removing the problem into someone else’s jurisdiction whilst giving ourselves a pat on the back for what we have achieved. Returning someone in a vulnerable state is likely to result in re-exploitation and the potential cost to the state being far more than £3,000.
5. Effective Civil Remedies
For civil remedies to be effective, they must bite on the defendant, probably via their assets; and be affordable. In the case of slavery and exploitation we are likely to have defendants who are transient, violent and who conceal their assets. There is however one asset which is difficult to conceal and impossible to move and that is land. Slaves must be held somewhere and exploitation must take place somewhere. In this section we explore the possibility of civil proceedings involving landowners.
Such a concept is not new. In the field of negligence for example the Occupiers’ Liability Act, 1957 imposes a duty to take care, i.e. not to be negligent on persons who occupy property. An occupier has been judicially defined as anyone who has sufficient degree of control of the premises so as to be able to ensure the safety of the occupants or visitors.
With specific reference to sexual offences, the Sexual Offences Act, 1956 sections 34 to 35A create offences involving the occupiers and lessors of property who allow property to be used as brothels. In combination with the Proceeds of Crime Act, 2002 in theory such tenants or lessors of property can have assets confiscated if their property is used as a brothel. The Proceeds of Crime Act, 2002 is not an easy statute to use. Notwithstanding this recognised difficulty, the same model is proposed in clause clauses 7 to 9 of the Modern Slavery Bill.
It would do no undue violence to the existing jurisprudence that the occupiers, tenants or landlords who know what property is being used for should be made to pay the victims of exploitation for what takes place there.
As to success, the civil process makes no demand of public servants beyond court staff and the judges. Success requires only a finding of probability by the judge, a much lower threshold than a jury being required to make a finding beyond reasonable doubt. Once that finding is made, the judge has very limited discretion to relieve the defendants of penalties.
The Parliamentary Committee correctly identifies that the Legal Aid, Sentencing and Punishing of Offenders Act, 2012 ("LASPO") provides for legal aid for certain closely related matters, for example trafficking (See Schedule 1 paragraph 32). It would require only a very modest alteration of the law to ensure victims of modern slavery or exploitation had a similar right to legal aid. Legal aid might not be necessary as solicitors and claims management companies may offer commercial funding arrangements.
Reworking the Bill to create a right not to be enslaved or exploited, and to confer on victims effective civil remedies against their exploiters and those who knowingly allow property to be used for exploitation could provide an important improvement to this legislation.
6. Subsidiary Points
The statutory defence suggested in the Bill has 151 offences that can be excluded from it. It is our understanding that most statutory defences have short lists of offences for which the defence is available which are then far more workable for criminal practitioners. It feels that if we start with a defence which requires consulting multiple pages to establish which offences it is not available for is impractical to say the least.
There is also some suggestion that with the existence of such a wide-ranging defence the capacity of prosecutors to prosecute those involved at the most serious levels of criminality is at risk. At present those who act in lesser roles (but who still commit offences, often impacting on others) do give evidence against those higher in the chain, under agreement. The existence of this defence may nullify that, and instead these individuals may be more likely to blame those higher up as a means of advancing a defence than as a means of mitigating their own position. It may make it more difficult to prosecute those who have also victimised others.
Under the proposed Bill the burden on the victim is higher - whilst we are aware that coercion is more generally the means by which victim commit offences, the threshold for the defence is compulsion only. It will be for the victim to raise and evidence.
Slavery and Trafficking Risk Orders (STRO’s) – whilst in principle sound like a valuable addition to legislation it is currently unclear if an individual has to be in the process of being prosecuted for a slavery offence for an order to be applied for. As the STRO’s currently stand they would require proactive policing and police being able to identify and recognise the signs of potential perpetrator behaviours - this is an area that is currently under-researched so we are unsure of the effectiveness of these orders. What will be the level of evidence or behavioural indicators used to identify ‘risk of trafficking’ and then how can these be used to apply for and enforce a STRO? Officers will surely require further training to know the orders are available for them to use as well as information about how to identify such indicators that suggest an individual may be about to commit a slavery offence. All other registers, sexual offences, require the act/offence to have actually occurred first.
We feel that STRO’s are in fact unlikely to prevent slavery offences from occurring initially.
Overall we would criticise the Bill for its approach in that it promises "top down" enforcement by the State through the Commissioner and creation of offences. Profiting from slavery and exploitation is dealt with by compensation and confiscation orders within the framework of a criminal process. But this depends on a successful prosecution on the criminal burden of proof (beyond reasonable doubt) and then on the exercise of the judge’s sentencing discretion.
 A quoted company is defined in section 385(2) of the Companies Act 2006 as a compan y that is UK incorporated and whose equity share capital is listed on the Main Market of the London Stock Exchange UK or in an EEA State, or admitted to trading on the New York Stock Exchange or Nasdaq.