Critical Analysis provisions Modern Slavery

Introduction

‘Modern slavery’ becoming increasingly recognized by the international community to be having a great potential of circumventing the rule of the law, based on the virtue of various impunities with which various exploiters are operating. It is evident that the threat that the exploiters pose is not however restricted to the nation. However, the horror stories that the victims share, regarding the grave nature of the exploitation that they undergo and have to endure presents a suggestion that the victims, as well as the wider community should be obligated towards confronting the phenomenon of the modern slavery in a concerted, and also a robust fashion. Owing to the fact that the modern slavery is quickly evolving and is also dynamic, and based on the corresponding threats that had been posed to citizens and also the state, the Westminster Parliament purposed to pass the modern Act recently. This was precisely two and a half month, subsequent to when the Northern Irish Assembly passed a similar act, the Human Trafficking and Exploitation Act. Significantly, the Modern Slavery Act has not been examined comprehensively, based on the provisions of the literature review and as such, this paper purposes to bring into analytical scrutiny, the provisions of the Modern Slavery Act 2015. In this regard, it will critically evaluate whether or not, the provisions aim at preventing slavery, forced labor, human trafficking, and domestic servitude, and as such, offers adequate protection to the victims of these practices.

Background to legislation

‘Modern slavery’ poses as a broad concept, seeking to capture disparate, yet related offenses that relate to slavery, forced/compulsory labor, human trafficking, as well as servitude. Though the term ‘modern slavery’ is used in describing the aforementioned offenses, it is evident that it is highly contentious, based on the provisions of the existing literature, as it is acknowledged by the international community that it involved some outrageous forms of exploitations that are known to humankind. It is significant to note that not only are the victims denied their dignity by their exploiters, but their physical, as well as mental well-being is also compromised, especially when the form of exploitation is related to a sexual nature. Based on this reason, some of the victims manage to escape, yet they still live in fear, not only from those who exploited them, but also from the entire state through its various agents who may decide to treat them as criminals and not victims. Evidently, most of these victims have to endure sexual exploitation, and also a large proportion is also subjected to harsh labor exploitation. It is then apparent that ‘modern slaver’ is not just a third world problem, owing to the fact that it indeed exists in the UK, with most of the victims, from the British origin.

Against this backdrop, it should be noted that the Westminster Parliament saw it necessary to come up with a legal framework. This legal framework was to be protected under the Modern Slavery Act that was meant to sever as a significant basis for enhancing effective prevention of the modern time slavery, aid in the prosecution of the offenders, and also to aid in protecting the individuals that have fallen victims to slavery. Notwithstanding having labelled the act to be a monumental development towards regulating modern slavery in the UK, however, it is borne in the mind that the success test is much dependent on the manner in which significant provision is implemented in practice in an effective way. In order to gain the full appreciation of the strengths of the Act, its weaknesses, as well as impacts, the following sections will purpose to critically analyze the instruments in question, based on highly contentious debates, which can result into royal assessment. Ultimately, this paper eventually determine whether or not, the provisions of the act aim at preventing slavery, forced labor, human trafficking, and domestic servitude, and as such, offers adequate protection to the victims of these practices.

Detailed legislative analytical scrutiny

The Modern Slavery Act 2015 is a bit lengthy instrument that spans some 7 parts, 62 sections, as well as 5 schedules. In this regard, Part 1 purposes to outline various modalities that relate to the offenses of slavery and human trafficking, as well as the associated issues related to sentencing and penalties. Part 2 provides the orders that can be enforced, in respect to the prevention of the modern slavery. Part 3 outlines the powers of enforcement that relates to ships. Part 4 provides the powers of the independent Anti-slavery Commissioner. Part 5 provides the assistance, as well as support for victims involved in slavery and trafficking. Part 6 provides the controversial issues that relate to transparency in various supply chain. Finally, part 7 provides miscellaneous details on the gang masters licensing authority, financial provisions, commencements, interpretations, amongst other.

Offences of slavery and human trafficking

As aforementioned, part 1 of the modern slavery act outlines various offenses that concerns that act, and the conditions that relate to the suitable penalties, as well as sentencing of the perpetrators. To a given extent to which this is not examined in the already existing literature, the following section will purpose to address various nuances, which are associated therewith.

The European Court of Human Rights (ECHR) provided a significant judgement in the case of C.N. v.UK, which made it evident that the UK had breaching the positive obligation under Article 4 of the EHCR, having failed to criminalize various offences that fell under the said provision. The court in turn, held that offences that relate to slavery, servitude, forced/compulsory labor, as well as human trafficking are separate, although they are somehow related. Thus, implying that they should be criminalized separately. The UK had failed to protect victims of the offences of servitude, as such; the state breached the Article 4 of the ECHR. In an instance where the court considered sufficient evidence that can establish the fact that a person has been held in slavery/forced/compulsory labor or servitude, then the court should impose life imprisonment on the basis of conviction on indictment. Notably, the offences bestowed in the article 4 of the ECHR could be committed, regardless of whether the consent of the victim has been provided. Arguably, on the issue of human trafficking, it is evident that whilst an offence can be made simpler, owing to the prosecution of the act, uncertainties often remain, based on the scope of the offence, and its constituent elements. Then then makes it clear that ‘acts’ and ‘purpose’ elements in Article 4(a) of the CoE Anti-Trafficking Conventions, as well as in the Article 2 (1) and 3 of the EU Anti-Trafficking Directive are directly transposed to the act, but only to an extent that it limited. In simpler term, ‘acts’ of recruitment, transferring, harboring, exchanging, or transportation of victims have been expressly criminalized in this act.

Whilst this act is clear on the instances, in which perpetrators should face life imprisonment, it is unclear on the question regarding whether the ‘means’ element which implies to force, deception and even threats should be present in order for the human trafficking offence to be distinguishable under the domestic law. This was brought forth by the ECHR in the case of Rantsev v. Cyprus, which made clear the provisions of the article 4 of the ECHR, even in the absence of the instrument of human trafficking that encompasses ‘acts’, ‘means’, as well as ‘purpose’. It is also arguable that the approach that the act takes is similar to those obtained in other European countries like Bulgaria, and Hungary and as such, may result into it being made much easier for various prosecutors to bring forth the establishment of the human trafficking. However, it may run the risk of adversely impacting on inter alia requests that are related to mutual legal assistance that GRETA pointed out recently. Notwithstanding this, it should be noted that the modern slavery act purposes to go beyond other previous legislative commitments

Whilst the inclusion of the separate offences that relate to slavery, forced/compulsory labor, human trafficking as well as servitude are provided in the Criminal Justice Act (2003) (CJA), as violent offences, they demonstrate how the UK considers the modern slavery. This is in addition to the intent of the legislators, who send unambiguous messages to exploiters that their practices are not tolerated. It is evident that there are some potentialities of issues that arise under the ECHR, as individuals found guilty in these offences would qualify for a ‘2 strikes’ sentence as provided in the CJA, section 224 (a), thus implying that they may receive a life sentencing, based on a ‘whole life order’. This presents interesting questions on whether the approach would be consistent with the provision of the article 3 of the ECHR that prohibits torture or inhumanity, degrading or punishment, in relation to the judgment provided by the ECHR in the case of Vinter and others v. United Kingdom, which took into consideration, article 3 on whole life orders.

Prevention and Enforcement

As initially noted at the beginning of this paper, prevention poses as the primary objective of the operations under the modern slavery act. This objective is derivable, based on various provisions that range from slavery to risks related to trafficking, as well as prevention order to the enforcement of maritime

The Act empowers the court to provide a slavery, as well as trafficking prevention order against perpetrators, either based on the magistrate’s court will or when the chief officer, immigration officer, or the policy applies for it. Whilst considering the adverse implications of human rights as arguably provided in the Article 8 of the ECHR, it should be noted that when such an order is imposed in a disproportionate manner, the act would mandate that the court to issue and order. This is especially when there is a risk that a defendant may commit the relevant offence, and as such, the order would then be necessary in protecting persons generally, or even particular individuals from any form of physical or psychological harm, in an instance where the defendant committed the crime. Suffix to this, in an instance where there are such circumstances, prior to the application of the slavery, as well as trafficking prevention, the order is bound to be determined. As such, an urgent application should be made to the court in the form of an interim slavery and trafficking prevention order that should be intended for the application of a fixed period that has effect on determining the main application. In order to enhance full compliance, this Act purposes to make it clear that failure to comply with no form or reasonable excuse may result in an offence that is committed by the defendant.

Beside the prevention order on slavery and trafficking, it is evident that the Act also introduced the risk orders on slavery and trafficking. Although it is a bit similar to the prevention order, they differ in various ways. For instance, first, whilst the magistrate court can, based on its own accord provide the prevention order, the risk order be issued only upon the application of the policy, or the immigration officer. Secondly, it should be noted that unlike the prevention order that apply based on the respect of the offenders that have committed an offence relating to slavery and trafficking, the risk orders only apply in connection to offended that pose a significant risk that can lead to them committing such a crime. Finally, whereas the requirements, as well as prohibitions that are contained in the prevention orders are only envisaged to the application of a period of five fixed years, it is evident that risk orders can only be applied for a period, not more than 2 years. Overall, it should be noted that a careful review of the nature of the prevention order and risk order makes it evident that it is apparent that such orders pose as significant inclusions in the modern slavery act. This is owing to the fact that they aid in effectively quipping courts with the significant powers to respond flexibly to the evolving and dynamic nature of slavery and trafficking. In addition, they ensure that requirements, as well as prohibitions can be tailored, to be able to address certain specific risks that individuals pose.

There have been increasing reports in the recent years that provide the suggestion that the commission of incidents, based on the modern slavery at sea is increasingly becoming a critical problem that the UK has to be prepared to address robustly. In a bid to respond to these threats that are posed by the exploiters that operate in the UK, and the adjacent waters, it is evident that the Modern Slavery Act purposes to empower the English, and the Welsh constables, to stop, divert, and also detain ships, search and also obtain relevant information, and as well arrest and seize individuals and items, especially whenever it has been noted to be appropriate to do so. In short, the inclusion of certain provisions, based on the issue of maritime enforcement, as regarding the Modern Slavery Act acts as a step of enforcing the courts to follow the right direction, owing to the fact that it does not only purpose to confront various incidences of the modern slavery that are committed on board ships, in the UK waters.

Independent Anti-Slavery Commissioner

Coherence, transparency, accountability, as well as consistency are the primary principles that the international community recognizes to be inextricably linked to the operation of the domestic anti-modern slavery framework, which is victim-centred. However, there is evidence suggesting that before coming to effect of the Act, the UK’s domestic anti-trafficking framework had various difficulties relating to coordination, as there was no specific body that aimed at coordinating and encouraging best practice. Based on these difficulties, it is evident that the Westminster Parliament was compelled towards establishing an office of the Independent Anti-Slavery Commissioner. This is similar to the National rapporteurs who have for a very long time, existed in other European nations such as Netherlands, and Finland. Notably, the Commissioner is accountable to the state secretary and as such, cannot perform any function relating to individual case, based on the modern slavery that any other person may exercise various functions that relate to slavery and human trafficking in the UK. The functions include encouraging good practice, investigation, prosecution of slavery, as well as trafficking offences, inter alia, as well as detection.

Most specifically it should be noted that the commissioner has the power to make reports on these issues and present them to the state secretary and also make significant recommendations to the public authority regarding the exercise of various functions, undertaking or supporting the conducting of research, based on modern slavery, education, training or provision of requisite information, as well as consultation and cooperation with the public authorities and other voluntary organizations in various appropriate situations. It is also important to note that a duty placed on public authorities, however much it is practically reasonable, it complies with various requests made by the commissioner on the performance of this duty. However, a breach of the confidence obligation that is owed to the public authorities that related to the information does not apply, relating to the patient information. Though the process resulting to the establishment of the Independent Anti-Slavery Commissioner’s office is characterized by relative unease, regarding the supposed “independence’ as well as the remit of the office and the role of the parliament in scrutinizing the activities of the commissioners, it is submitted, based on the designation of particular individuals for purposes of highlighting them in an important step on the right direction that brings the UK in line with other similar developments in other European countries.

In an instance where the myriad duties of the Anti-Slavery Commissioner are executed in a proper way in practice, it is then hoped that knowledge, as well as understanding of the issue regarding modern slavery would be enhanced tangible, thus giving a voice to the victims. This will be owing to the fact that the commissioner would act as a bridge to which it links the civil society and the state, thus contribution to a focused and coordinated response to the modern slavery. This is primarily due to the fact that the commissioner provides independent scrutiny of various state policies, as well as laws and even the activities that require statutory as well as non-statutory agencies, thus enhancing a tangible impact on the transparency, as well as coherence of the UK’s anti-modern slavery framework.

Protection and support of Victims (of slavery and trafficking)

Before the Modern slavery Act, there were various concerns regarding glaring inadequacies, which characterized the protection, as well as support for victims that were caught to have conducted the modern slavery in the UK. These included punishment, secondary victimization, inadequacy in the provision of accommodation, psychological, as well as medical assistance, and difficulty in the reintegration of the victims. Based on these criticisms, the Westminster Parliament decided to ensure that NRM was significantly assessed and also enhanced and that there was sufficient statutory provision that was made in order to protect and also support the victims that were subject to slavery, and also human trafficking.

In the recent years, various human rights actors have condemned the UK for the way it punishes trafficked victims that have committed illegal activities, having been trafficked. More specifically, before the modern slavery act was brought to effect, various courts were highly criticized for construing the guidance, which was provided on the question of non-punishment of these victims and this resulted in adverse human rights externalities. Courts have purposed to address this question, for instance in the case involving R v.HTB, where the prosecution convicted against a Vietnemese girl who had been trafficked to the UK and was exploited for cultivating Cannabis. Notably, against the backdrop, it is arguable that section 45, Modern Slavery Act provides a welcoming improvement on what was initially obtained as it outlines the principles with which courts are required to follow when addressing the non-punishment of trafficked victims. Evidently, notwithstanding this there are a few limitations when relying on the section 45 of the same act as it does not provide full immunity to victims that have fallen victims of trafficking and who purpose to engage in unlawful offences, but in appropriate circumstances, if accords a significant defence to victims who would commit the unlawful offences, as a result of a consequence that they have been trafficked or have fallen victims to slavery or even trafficking.

It is axiomatic to consider the fact that modern slavery victims are specifically vulnerable individuals that can be re-victimized in criminal proceedings, in an instance where insufficient safety is not provided. The modern slavery act expresses its provision to protect and also support its victims in various ways. Firstly, this act purposes to amend the the Youth Justice and Criminal Evidence Act (1999), in order to provide security to various eligible victims and also benefit from significant assistance when there is criminal proceedings that include camera hearings, on the basis of fear or even distress regarding testifying. It is evident that such kind of assistance varies in practice, and is also very much dependent on the nature, as well as alleged circumstances of the offence to which the said proceedings purpose to relate, the victim’s age, and the victim’s social, as well as cultural background amongst other factors. Secondly, it is evident that the modern slaver act also purposes to amend the legal aid, sentencing, as well as punishment of various offenders, in order to ensure that the victims of servitudes, forced/compulsory labour, as well as slavery are in a position to apply for significant advice, as well as presentation that related to certain immigration, employment claims, as well as damages claims.

The approach that the modern slavery takes to victim identification, as well as referrals to problematic situation is based on various reasons. Firstly, unlike the provisions of the Trafficking and Exploitation Act that replaces certain rights, as well as arrangements to which victims purpose to be entitled to a give statutory footing, which is the modern slavery act that merely provides a guidance. For instance, in the case of Ors v. R, the court held that though valuable, constitutions should be given authority. Moreover, the non-binding guidance nature should not be an issue that is problematic but it should be submitted to a mere guidance on the significant question that relate to victim identification, as well as protection of running the risks of being disproportionately brief, thus, creating uncertainty for the victim.

In April 2012, it is evident that the UK government purposed to implement certain important, and controversial changes on the conditions under which the visas required for domestic workers in diplomatic houses operate. These rules purposed to tighten the immigration regime through making it clear that when visiting the UK for a short time, domestic workers in private households would not be allowed to change their employers for up to six months. Moreover, they would be allowed to stay for a long period but would ultimately lose their eligibility permanently in the UK. In responding to these changes, various civil society organizations made arguments that domestic workers that are able to escape abuse would lose their right of residence in the UK immediately, thus reducing their likelihood to sought help from authorities in an instance where they are exploited or for the fear of being deported.

Other Considerations

On 13th of January 2013, the UK (Northern Ireland) parliamentary Assembly purposes to pass the Human Trafficking and Exploitation Act.199, which is a significant instrument, aiming to achieve three-prolonged objectives of the prevention of modern slavery, prosecution for exploiters, as well as protection of victims. Though the act mirrors the modern slavery act, in some respect, it goes beyond. Owing to the fact that the human trafficking and exploration act modalities are beyond the scope of the modern slavery act, it makes reference to various differences between the two significant acts. Firstly, it is evident that unlike the modern slavery act, the Northern Irish instrument purposes to impose a minimum sentence, going for two years for those who have been convicted of a given modern slavery, unless in certain exceptional instances which justify the impositions of the lower sentence. Based on this context, it could be arguable that this instrument has a strong level of deterrent effect, especially on various potential exploiters as compared to the modern slavery act, as it does not contemplate the introduction of such minimum sentence.

On a second note, it is evident that the instrument placed aggravating circumstances, especially on a statutory footing that has a potential of creating a strong incentive that aids judges in considering situations that may warrant the lengthening of a given exploiter’s sentence to reflect the significant gravity of the offences in question. Notably, this contrasts the modern slavery act as it does not address such issues. In addition, as it has been intimate above, it is evident that Human Trafficking and Exploitation Act.199 purposes to go beyond the modern act as it placed the protection, as well as support measures to which various victims of slavery, and human trafficking are significantly entitled, based on a statutory footing, thus ensuring that such given measures are provided with primacy by the aid of competent national authorities.

Conclusion

This paper sought to explain the provisions of the Modern Slavery Act 2015. As such, it has critically evaluated whether or not, the provisions aim at preventing slavery, forced labor, human trafficking, and domestic servitude, thereby, offering adequate protection to the victims of these practices. Notably, this paper has provided significant insights, based on key debates that result to its official enactment. The provisions discussed are historic in nature and thus, they provide a nuance approach in the regulation of the modern slavery that contradicts the hitherto. The paper argues that in the creation of new offences, increase of sentence to that should be imposed on convicted exploiters of the modern slavery to forfeiture and reparation orders; making confiscation provisions; life imprisonment; the provision of protection to victims that are facing criminal proceedings; expressly establishing the Anti-Slavery Commissioner office. The latter is in order to provide the right steps that have the potentiality of making England, as well as Wales to be leaders in the field of anti-slavery. Moreover, the modern slavery act is however, a panacea. Notably, the uncertainty that is created by human trafficking is defined, the failure from utilizing the opportunity of extending the responsibility of the Gang masters Licensing Authority in various areas of construction. Catering and also hospitality, as well as the failure to place modalities of victim identification, as well as support on a significant statutory footing are some of the issues that are outstanding even in an instance of royal assent. It should be noted that notwithstanding this, this paper provides detailed explanation of the modern slavery act, in light of human trafficking, as well as exploitation act and as such, present a development in the field of the international antislavery that has a potentiality of curtailing the challenge of modern slavery. Overall, it should be noted that a deep look into the provision of the Modern Slavery Act 2015 makes it clear that the provisions aim at preventing slavery, forced labor, human trafficking, and domestic servitude, thereby, offering adequate protection to the victims of these practices

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Legislation

• Californian Transparency in Supply Chains Act, section 188
• The European Court of Human Rights (ECHR)
• Article 4 of the EHCR
• Article 4(a) of the CoE Anti-Trafficking
• Article 2 (1) and 3 of the EU Anti-Trafficking Directive
• CJA, section 224 (a)
• Article 3 of the ECHR
• The Youth Justice and Criminal Evidence Act (1999)

Cases

• Vinter and others v. United Kingdom
• Rantsev v. Cyprus