In December last year, the UK government published the Modern Slavery Bill – a ‘flagship Bill’, which nonetheless focuses almost exclusively on pursuing and prosecuting perpetrators. Today, the Joint Committee on the Draft Modern Slavery Bill has published its analysis of the draft Bill, and has forcefully demonstrated the Bill’s deficiencies in key areas. The Committee’s report provides a strong basis for amendment of the Bill, to pull its focus back to the victims it seeks to protect and to the exploitation it seeks to prevent.
Under existing UK policy, potential victims of human trafficking are identified and supported through the National Referral Mechanism (‘the NRM’). As many of the witnesses to the Committee, including FLEX, testified, this non-statutory system operates without clarity or consistency, and in a way that discriminates between victims on the basis of their nationality while providing no right of appeal. The Committee determined that this results in victims facing a “support and assistance lottery dependent on their nationality and the region where support is offered”.
The Government has promised to review the NRM system, but despite repeated requestshas so far refused to say when or how the review will be carried out. To overcome the problems of inconsistency and unfairness, the Committee has recommended that the NRM be placed on a statutory basis, and crucially, that immigration officials be excluded from the decision-making to ensure victims’ nationality no longer results in differential treatment. While the Committee’s recommendations and draft provisions fall disappointingly short of specifying the assistance to which victims are entitled, this strengthening of the assistance system is nonetheless an important first step towards ensuring that victim protection is given due weight in the Modern Slavery Bill.
The Committee also does well to encourage the protection of victims’ rights, including their right not to be identified, through key recommendations on notification, child advocates and legal assistance. The Modern Slavery Bill in its current form places a duty on specified public authorities to notify the National Crime Agency if they have grounds to suspect a person is a victim of trafficking. This measure, intended to assist in data collection, risks overriding the victim’s right to give informed consent to identification and assistance, with the result that victims are once again controlled and disempowered. The Committee has rightly recommended that this measure be removed from the Bill, and suggested that responsibility for data collection more properly rests with the proposed Anti-Slavery Commissioner. The Committee has also recommended setting up a fund for provision of legal assistance to victims, to overcome the current complexities of the legal aid system and ensure victims’ access to timely legal advice.
However one of the primary reasons for needing legal assistance – compensation – is one of a small number of areas in which the Committee’s report holds back. The Committee notes that there are a range of avenues for compensation in the UK, yet fails to mention the avenue through which victims of trafficking for labour exploitation are most successful – employment tribunals. The report also highlights several of the barriers faced by victims in seeking compensation, but does not mention the fundamental issue of undocumented workers’ inability to access compensation in employment tribunals due to their ‘illegal’ work status. This is to be distinguished from the situation in the US, to which the Committee frequently looks, where workers are entitled to be paid for work done, no matter their immigration status. Instead the Committee vaguely suggests that “[v]ictims should be compensated not for a loss of earnings for what is illegal employment, but for the loss of opportunity to earn money freely”, and merely recommends that modern slavery be included in the Criminal Injuries Compensation Scheme – a notoriously complex and low-paying source of compensation. The Committee unfortunately makes no recommendation for a specific compensation provision in the Modern Slavery Bill itself.
Prevention measures are similarly restrained in the Committee’s recommendations. The success of the Gangmaster’s Licensing Authority (GLA) in preventing and detecting labour exploitation is recognised by the Committee, as it has been recognised by agencies all over the world, yet there is reluctance to take decisive steps to extend its remit and powers.
As FLEX has previously argued, the prevention of labour exploitation requires effective regulation and enforcement of basic labour standards in high risk sectors, which include industries such as construction and care, where the GLA currently does not operate. The GLA is also currently restricted in its ability to impose penalties on exploitative employers, including requiring employers to pay unpaid wages, which leaves exploited workers without easy access to compensation and vulnerable to further exploitation.
As the Committee stated in its opening paragraph, the Modern Slavery Bill must “recognise and reflect that the fight against modern slavery is not simply a matter of prosecution, nor only victim protection, but in fact an indivisible combination of the four Ps: Prevention, protection, prosecution and effective partnerships”. Indeed, if the UK Government were to adopt the Committee’s recommendations, with some additional emphasis on prevention and compensation, its ‘flagship’ Bill would be significantly closer to being the effective, world-leading legislation it seeks to be.