In March the Modern Slavery Act 2015 received Royal Assent, as one of the last pieces of legislation to be passed by the current government.  Its entry into law marked the end of an intense period of parliamentary activity and impassioned debate, and the start of a period of reflection on what has been achieved and what was left behind.

The government has emphasised the number of concessions it made in securing the passage of the Bill, and indeed important amendments were made.  These include the insertion of a “Transparency in supply chains” provision, which requires companies with turnover above a certain (undefined) threshold to report on what they are doing to address slavery in their supply chains, and aims to encourage corporate responsibility. Also, a commitment to review the role of the Gangmaster’s Licensing Authority (GLA), opened up the possibility of extending its restricted remit. Finally amendments to the definition of forced labour, slavery and servitude mean this offence may fill some of the gaps left by the government’s narrow definition of trafficking.

But what difference does the law really make for actual and potential victims of severe exploitation? Of course this largely remains to be seen, but there are some areas in which the new law has potential to improve the situation of exploited workers.

Changes to the definition of forced labour, slavery and servitude have the potential to broaden understandings of criminal labour exploitation, and encourage the investigation and prosecution of a larger number of cases. The definition now makes clear that the appearance of, or actual consent of a worker to exploitative work is irrelevant where the worker is being held in forced labour, slavery or servitude. This is important given the number of cases we see in which migrant workers agree to work in sub-standard conditions that further deteriorate into forced labour through controls on movement and withholding wages. This definition also turns attention towards personal circumstances that may lead someone to be particularly vulnerable to exploitation.  Such circumstances expressly include the victims’ family relationships and mental or physical illness, but also have the potential to include the victims’ immigration status – a common source of vulnerability to forced labour.

A further important step made by the Act is to protect some people who are victims of modern slavery from prosecution for crimes they are forced to commit while under the control of their exploiters. This includes migration-related crimes such as identity document fraud, and crimes commonly involving trafficked labour, such as cannabis production. Smaller steps forward were also made in the area of victims’ legal rights – Section 8 of the Act requires a court to at least consider ordering compensation for a victim following a slavery or trafficking conviction. The Act also extends legal aid to victims of forced labour, slavery and servitude, where it was previously only available to trafficking victims.

Yet it is also on victims’ legal rights and protections that major gaps remain, and the Modern Slavery Act falls short of meeting key international obligations. Firstly, contrary to the European Trafficking Convention, the Act does not guarantee victims’ access to compensation, either directly from perpetrators through criminal or civil proceedings, or through the Criminal Injuries Compensation Authority. Victims trying to obtain compensation through these avenues currently face numerous hurdles, and very few exploited workers ever recover the unpaid wages they are owed.

Secondly, while the EU Trafficking Directive, requires legal assistance to be provided “without delay”, potential victims of trafficking and slavery still face significant difficulties in accessing legal aid. In particular they cannot access legal advice until a) they have agreed to be referred to the authorities, and b) it has been determined that there are “reasonable grounds” to believe they are a victim. In the case of third-country nationals and undocumented migrants in particular, referral to the authorities is a daunting and potentially dangerous prospect that often requires expert legal advice on options and consequences. Without early legal aid it is very difficult for someone who has been exploited to make an informed decision about their case.

Thirdly, contrary to the UN Human Trafficking Protocol, the Modern Slavery Act definition of human trafficking requires that the victim has travelled into exploitation, and for that travel to have been arranged or facilitated by the perpetrator. This is not a requirement of the international definition of human trafficking, and makes it very difficult to prosecute those involved in exploitation. It reflects the Government’s ongoing preoccupation with immigration, and continued prioritisation of immigration concerns over the prevention of exploitation.

Finally, and most damningly, the Modern Slavery Act failed to abolish the highly damaging tied visa for overseas domestic workers. The tied visa, which prevents overseas domestic workers from changing employers and so binds exploited workers to their exploiters, has been the subject of a sustained campaign by Kalayaan since it was introduced in 2012, and was an ongoing issue in the Modern Slavery Bill debates. In February an amendment was passed in the House of Lords to reinstate the right of overseas domestic workers to change employers. This was swiftly overturned by the Government when the Bill returned to the Commons. Pressed for a solution, the Government extended the right to change employers to victims who agree to be referred to the authorities and who are determined as “victims”.  For the majority of overseas domestic workers therefore, the tied visa remains, and perpetuates such an imbalance of power between employer and employee as to itself create a situation ripe for exploitation.

For these reasons and more the Modern Slavery Act is not exactly the triumph that the government suggests.  Whilst the Act shows progress in the UK’s approach to forced labour, slavery and human trafficking, it is far too heavily weighted towards prosecution, rather than prevention and protection, and effective responses have been thwarted by immigration concerns. For the large majority of migrant workers exploited across the UK this Act will have limited impact. It does, however, start the journey towards a stronger, more comprehensive approach to labour exploitation in the UK.

Claire Falconer is the Legal Director of Focus on Labour Exploitation (FLEX).  FLEX is a UK-based organisation that promotes effective responses to trafficking for labour exploitation worldwide, through research, advocacy, awareness raising and training.  This blog was originally posted on the Migrant Rights Network (MRN) website.  

Focus on Labour Exploitation (FLEX) will be co-sponsoring a briefing session in the House of Lords this Wednesday, 16 July, from 5-7 pm.  The session is being chaired by Baroness Young of Hornsey, with speakers including Diana Johnson MP, Kathryn Cronin (Garden Court Chambers), Klara Skrivankova (Anti-Slavery International) and Caroline Robinson (FLEX). 

In this blog Caroline Robinson, co-director and founder of Focus on Labour Exploitation (FLEX) makes the case for a more effective response to human trafficking for labour exploitation.

As the public’s response to recent strike action on the part of public sector workers shows, it is not always easy to convince people of the need to protect the rights of all workers, British or migrant.  It is particularly hard in the face of high unemployment and a struggling economy, when the argument is put that migrant workers are filling roles British workers could take.

Yet, when it comes to debates about modern slavery, there is widespread sympathy and support for the victims, the majority of whom are migrant workers exploited for their labour. This paradox arises, simply put, because victims are viewed as deserving protections whereas potential victims are not. Our job is to make the argument that protections are most useful before someone becomes a victim and therefore should be applied to all workers regardless of migrant status.

In debate on this question, people often suggest that greater labour protections would act as a pull factor towards the UK. Yet, the recent Migration Advisory Committee report on low skilled migration suggests that in fact the opposite is true – that the absence of labour protections creates the demand for migrant workers, ergo labour protections reduce that demand.

But it is not just public opinion that is contradictory: migrant workers also face a confusing policy landscape. On the one hand there are increasing checks on immigration status at work and home provided for in the new Immigration Act and reduced labour protections as a result of the Government’s ‘red tape challenge’; then on the other hand there is Theresa May’s high-profile campaign against  ‘modern day slavery’.

Only last month the UK government, in adopting a new Protocol to the international Forced Labour Convention, recognised that greater labour protections serve to prevent acts of modern slavery from taking place. This supports the case made by Focus on Labour Exploitation (FLEX) in our working paper on Preventing Trafficking for Labour Exploitation, that the UK needs a much stronger labour inspection system to prevent people from being exploited for their labour. We know that where gaps in the enforcement of labour protections exist, unscrupulous employers will take advantage of such gaps and exploitation will snowball from minor infringements of employment law to severe exploitation that constitutes modern slavery.

The Modern Slavery Bill offers an opportunity to improve labour protections for vulnerable workers as a means of preventing acts of severe exploitation. The debate around the Bill should focus on why, in modern Britain, workers are still being exploited for their labour in the restaurants we visit, hotels we stay in and on the construction sites all around us.

Yet, so far the Home Secretary has resisted calls for an expanded Gangmasters Licensing Authority (GLA) in this Bill that could serve as an effective labour inspectorate, particularly in high-risk sectors where exploitation is rife. Instead the GLA has been moved into the Home Office, placing in great jeopardy its role to protect all workers regardless of status.

As politicians of all parties declare their support for ending slavery in the UK, there is a unique opportunity to put in place measures that would ensure no worker ends up in exploitation. But this opportunity will be missed if our leaders continue to talk tough on modern slavery without recognising that labour protections for all workers is the first line of defence in this fight.

Caroline Robinson is co-Director and founder of Focus on Labour Exploitation (FLEX). FLEX promotes effective responses to human trafficking for labour exploitation that prioritise the needs and voice of the victims and their human rights. Caroline is also a founder and Editorial Board Member of the Anti-Trafficking Review, an international open access journal that offers an outlet for dialogue between academics, practitioners, trafficked persons and advocates on anti-trafficking issues.