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Vicky Brotherton is the Coordinator of the Anti-Trafficking Monitoring Group, a UK-wide NGO coalition established in 2009 to monitor the UK’s response to human trafficking. She previously worked for Anti-Slavery International's ‘RACE in Europe’ project, focusing on human trafficking for forced criminal exploitation, and has experience in victim support and campaigning in anti-trafficking organisations in the UK and Northern Thailand. She holds a MA in Human Rights from the University of London.
Scene 1 I asked Vicky how organisations like the Anti-Trafficking Monitoring Group (where Vicky was at before the ASI) had adapted their focus with the introduction of the new term ‘modern slavery’ by the government in the Modern Slavery Act, 2015 and what this meant for their fight against slavery and trafficking. Brotherton reflects on strategic choices that NGOs made when the MSA was proposed.
Scene 2 Brotherton here speaks to the crucial role that NGOs played in the lead-up to the passage of the MSA by both drafting an alternative bill – a ‘gold standard’ – to which they though the government should aspire but also by shaping more discrete aspects of the MSA such as the section on offences and the working of the national referral mechanism.
Scene 3 Brotherton speaks of the combined efforts of civil society groups and lawyers in prioritising key areas for intervention in the MSA Bill. She unpacks techniques of advocacy, thereby demystifying the law-making process.
Scene 4 Brotherton reflects on the power of ‘spin’ – namely the use of rhetoric to forward a progressive position when the government is in fact proposing its exact opposite. How do NGOs uncover and counter spin? And who are their allies in uncovering the smokescreen?
Scene 5 Even small victories in the MSA were hard-won. Brotherton talks about these victories, their immense potential impact and the points of leverage they offered for further advocacy after the act was passed.
Scene 6 I asked Brotherton about notable wins in the MSA and how civil society groups could make them effective on the ground once the law was passed.
Scene 7 I asked Brotherton about missed opportunities in the MSA. There were several, she explained. And some of them only required policy changes rather than statutory amendments that are more resource-intensive.
Scene 8 Brotherton here speaks to the narrowly drawn definition of trafficking which necessitates travel for purposes of exploitation; she also discusses offences relating to exploitation in the alternate bill.
Scene 9 Brotherton comments on the path ahead – the need to continue to fill gaps in the statutory framework, train public authorities and enhance their resources for enforcement.
Scene 10 Is the MSA really a world-leading piece of legislation on modern slavery? Brotherton talks about the efforts of civil society organisations to draw on the best provisions in laws around the world to influence Parliament. She also expresses worry about the potential of other laws (namely the Immigration Bill at the time of the interview, but which is now law) to undermine the MSA.
Scene 11 Brotherton speaks on allies both from civil society organisations (such as UNICEF) and Parliament (like Lord Hylton) who collaborated in the law-making process.
Scene 12 Brotherton shares her concerns on reduced resources for targeting modern slavery and victim protection even in the face of the expanded mandate of the MSA.
PK: There’s a lot of outrage in the media about modern slavery and trafficking, and this outrage is matched by the sheer elasticity of the concepts. What is your understanding of any of these terms, and what is the Anti-Trafficking Monitoring Group’s (ATMG’s) of these terms? In other words, what drives your efforts to counter these phenomena?
VB: The Anti-Trafficking Monitoring Group (ATMG) was set up to be the monitoring body for the Council of Europe Trafficking Convention (Council of Europe Convention on Action against Trafficking in Human Beings), so our focus is on human trafficking. When the Modern Slavery Act was announced, we really had to sit down and think, ‘what do we understand by this?’ The term ‘modern slavery’ was not one that is in international law, for instance. So we did bring together society and lawyers and said, ‘let’s have a discussion about what this encapsulates’.
We needed, to some degree, to accept what the government was saying modern slavery was. But there was some people at this discussion group saying human trafficking can be for the purposes of forced labour, servitude, slavery, so maybe human trafficking should encapsulate all other forms of slavery, whereas other people were saying that modern slavery could be the catch-all term, but within that we would have human trafficking, forced labour, and servitude.
What we ended up doing in terms of our alternative bill was we adhering to international law and the definition between them so human trafficking stand alone forced labour stand alone and servitude. What we ended up doing, in terms of our alternative bill, was really adhering to international law and the definitions within it, so human trafficking (stand alone), forced labour (stand alone), slavery, servitude, etc. We kept them distinct, but then the umbrella term, which was done by the government, was then used to encapsulate all those separate aspects.
PK: Can you please tell us a little bit about the ATMG’s involvement in the processes leading up to the Modern Slavery Act?
VB: One of the reports we did in 2012 and published in 2013 was looking at prosecutions. One of the recommendation we made was to have a consolidated act which would bring together all of the disparate pieces of the legislation into one umbrella piece, and within that have also the protection and prevention measures. We were pleased when we heard that this Modern Slavery Act was going to be introduced.
When it was announced in the summer of 2013, the home secretary tasked Frank Field to undertake the review. We were engaged with that. We gave oral and written evidence to the review, and we were very pleased by the report that he published in terms of its breadth. It was comprehensive. We were worried when we first engaged with the review. We got very negative feedback from those who were undertaking about what this bill could include and how wide it could be. But actually, it came out and it was quite strong in terms of what it asked for.
We were in a strong position already, being a coalition, to bring together civil society and lawyers. So we had what we called the day of deliberation in January 2014, where we sat we the draft bill and said: ‘okay, what is wrong with it? What is wrong with the drafting? How can we improve it? What is missing?’
Once we heard that the modern slavery bill was going to be introduced, we worked with Freshfields' solicitors to create an alternative bill. The premise behind that was that we knew we weren’t going to get everything in this draft modern slavery bill, but we could use those provisions we drafted to say, ‘this is the gold standard: if you are going to adhere to your international laws and be this world leading country then this will be what we think it should look like’.
That was January 2014, and the joint committee on the draft modern slavery bill was tasked to do further scrutiny. They asked us to do a specific report on national referral mechanism. We did that for them, we did a five-year review, to feed into their scrutiny process. Again, we engaged as much as we could with this joint committee and the scrutiny that was being undertaken. That was all before the modern slavery bill was introduced into parliament in June 2014.
PK: And after its introduction?
VB: The government did listen to what the joint committee said, to some degree, because the modern slavery bill that was introduced had a victim protection section that the draft bill did not. It had a raft of different provisions which were victim focused, although they weren’t as strong as we would have liked to see, but they must have – to some degree – listened.
We again sat down with lawyers, and went through the different provisions that were in the modern slavery bill. We discussed what we could come back at the government with in terms of briefings and amendments. We knew that we couldn’t get everything changed, but what were the key things? The key things were like the definition of human trafficking, the presumption of age clause, victim protection – having minimum standards – the framework of the national referral mechanism, overseas domestic workers. We have about six to eight different strategy points.
Then, within the ATMG, we can split into sub-groups. It was the responsibility of those different groups to lead the work. Each of those groups, at every single scrutiny phase in the House of Lords and Commons, where it was felt to be needed, worked with MPs and Peers to draft amendments, write briefing papers, write speaking notes, meet with them – really undertake their own lobbying path.
PK: I was struck, when looking at the parliamentary debates, by how involved civil society actors were, and by how pro-active members of parliament and the House of Lords were in forwarding some of their proposals. What is your sense of that involvement, vis-a-vis the government actors and the eventual passage of the act?
VB: It should not be a contentious issue, in terms of hard to sell to the public or the government. The pushback we got sometimes was – to me – surprising. The things we were asking for, which, if we were to meet the government’s rhetoric of being this world-leading government and also of introducing this comprehensive, victim-focused legislation, should have been included.
They were not. Perhaps, and maybe I’m speaking out of turn here, the government were a little arrogant in the drafting of certain provisions. We know we have international standards, which are recognised. Yet they still felt they had to deviate and create their own drafting that, from the evidence we got from the lawyers and people working on the front line who have to implement these things, said ‘that’s not going to work, this is actually going to be more problematic’.
I get the feeling some times that it was a rushed job. For me it was a learning curve in terms of the actual skill of the government to speak to their own provisions, and to spin a lot of what they were doing. If you didn’t really understand the issue, or have the support of a legal professional to ask ‘is that good or is that bad?’ or ‘I don’t think that is good, but why? Tell me why,’ – you would say, ‘that’s great! They’ve done a great job!’ The government was so prepared to rush things, and could argue so well about these provisions that were not necessarily in the best interest of the victims or even, for prosecuting traffickers.
There was a constant call for case studies. I can’t tell you how many times we had to try and reword the same thing at different stages of the scrutiny process to say, ‘this is needed because of x, y, and z’ or ‘here’s three case studies to show a, b, or c.’ Then the government would go away and draft something, and then you’d say ‘but still, this isn’t working because of x, y, and z – here’s three more case studies’. By the end of the process it was somewhat tedious.
Some of the greatest gains were made within the House of Lords. They understood the issues more, you didn’t have to provide them with 20 case studies. They could argue with long debates and really push the government to change. But if the government had their way, and it just gone through the House of Commons without being scrutinised by the Lords, it would be a much weaker act than what is currently in place.
PK: Fascinating. You spoke about spin, and how rushed the entire process was. But during that process, did you also sense that there were political opportunities, where one could simply slip in something that the government – obviously you can’t technically slip in words that the government wouldn’t agree to – but where their places where you said ‘maybe we could get this through’?
VB: In terms of opportunities, there were some really good debates that were had. For instance, one of the things we were really pushing for was strong victim protection measures; having the minimum standard of protection included in the actual primary legislation. There was huge pushback on that. But by getting Peers to really push the government to argue why they couldn’t, and why they could do so in Scotland and Northern Island in their respective legislation but not in England and Wales.
The government did come out with certain small sentences, you know, ‘anything we do put in place will adhere to international obligations’, which is such a small thing but you can now hold them account to that. I think one of the key things that the bill did and the bill’s scrutiny did was to introduce reviews. So the child trafficking advocate trial, the national referral mechanism review, even the overseas domestic worker visa review. It was so disappointing that they would not put the provision for overseas domestic workers in the legislation, but it gives us an opportunity to carry on working on these issues and campaigning.
As much as we don’t agree with some of the arguments that government came up with about putting these in legislation, with things like the overseas domestic worker visa all we need is a policy change – it does not necessarily need to be in the Modern Slavery Act. Hopefully the independent review will come out with some strong recommendations for greater protection, and we can use that and use those mechanisms that have been put in place.
Likewise with the anti-slavery commissioner, we worked really hard to extend his remit to victim protection – it was purely focussed on law enforcement. We campaigned for so long and so hard to just get those small words – victim protection – included in what he must monitor in terms of good practice. We did, and it was great, and we’re really pleased. I think it’s reflected in his recently published strategy, which gives first priority to victim protection. I don’t think that would have taken place if we had not campaigned hard, because the government didn’t want that to be included.
PK: What were some of the key wins for the ATMG during the negotiating process?
VB: The key wins, for instance, were the independent child trafficking advocates. I think in terms of the children’s sector they came together as a huge coalition and said, ‘right – what are our three priorities?’ They had the independent child guardian; the statutory defence to make it more child friendly by reducing the test of compulsion; and the introduction of the non-punishment aspect of it. They also had the separate child exploitation offence. They were told, towards the end of the scrutiny process, ‘look, you’ve only got one thing. What do you want it to be?’ I think child trafficking advocates won.
It was a campaign win, for instance ECPAT UK has been campaigning for 10 years to get independent child guardians introduced, and in their eyes it is a very strong provision. In terms of other wins, I guess since the ATMG was set up to be the monitoring body, the fact that we do have this commissioner in place is very positive. I think we need to engage with him, help him, and support him in his role in order to really direct him to the key issues that need to be focused on. Hopefully, with time, he can grow and be fully independent from the government – to have that expertise to know who he should work with.
PK: What would you say were some of the missed opportunities while the act was being negotiated?
VB: Some of the key things were, maybe getting non-prosecution, a non-punishment provision into the act. Article 26 of the Council of Europe trafficking convention, Article 8 of the EU trafficking directive, provides for this non-punishment provision – that states should consider not prosecuting or punishing victims of trafficking for offences that they have been forced to commit as a result of their trafficking. If we could have the non-punishment provision included within the primary legislation, then it would be a duty on police and prosecutors to – at the very first stage – look for trafficking and be more aware of trafficking indicators.
We did a media search of cases of Vietnamese nationals who had been prosecuted for cannabis offences. In one case, they acknowledge that the person had been exploited, that they were at the bottom of the ladder, that that weren’t getting paid yet they still couldn’t leave, and yet they still gave him a two-year sentence.
I think we could have more stronger victim protection measures in the act, so that anything that’s introduced subsequently – any policy changes – must adhere to these minimum standards within the Modern Slavery Act.
And I think domestic workers as well. For me, that was such a disappointment. All that is required to reinstate pre-2012 protections is a policy change. It’s not necessarily through legislation, but this Modern Slavery Act was such an opportunity to raise this issue and make sure it was recognised as really fundamental. There was this strength of feeling from all of the scrutiny committees, the MPs and Peers tasked with scrutinising the bill, that the bill really had to strengthen the hand of the slave master.
If we are going be this world leading body on modern slavery then we need to really consider these domestic workers. There was so much support generated. Lord Hylton was incredible. He put forward this amendment with the support of Justice for Domestic Workers and Kalayaan. It won. It was fantastic. We thought this is great, and then it was overturned.
To me that’s somewhat indicative of the somewhat tokenistic response by the government to this issue of wanting to be victim-focused, yet at the same time being so concerned with image in terms of immigration that they didn’t want to put in place protection measures because they might be seen as soft on immigration. I struggle to find the reasoning aside from that, why they would be so adamant that this shouldn’t be included. And the arguments they came back with time and time again – we came back with further evidence and yet they still rejected it. It’s a huge disappointment, but like I said, the overseas domestic workers visa review is a product of these debates. So there’s still opportunities. But yeah, disappointing all the same.
PK: The core part of the act is comprised of sections one through four, which deal the core offences of modern slavery, forced labour and trafficking. What is your view on the definition of these core offences? You’ve already said that they are convoluted, but could you say a bit more about these offences and how they were defined?
VB: The focus is on travel, it’s on the movement. Underneath that, they have said that travel can mean several things, and then they list the different acts within that, which include recruitment, harbouring, and receiving. But the unnecessary focus on travel is one of the key issues where prosecutors found it difficult to convict traffickers because they couldn’t prove the chain of movement and the exploitation. So focusing on that travel, I think, may cause difficulties with regard to prosecuting more traffickers.
On the slavery, servitude, and forced or compulsory labour, I think the one positive that was managed to be included, which took again a lot of work by Baroness Lola Young, I think, was to talk about including the consent of a person to the acts which constitute forced labour, slavery, and servitude should not be considered. So if they do consent to these acts it does not prevent a conviction under these offenses because consent shouldn’t be a factor which is considered.
We had about six offences in our alternative bill. We differentiated between children and adults in terms of human trafficking for adults and child trafficking, a general exploitation offence and a child exploitation offence. The child exploitation offence was one of the key things we were trying to get included because we know the thresholds for forced labour, slavery, and servitude are quite high. With trafficking they can often be hard to prove, due to the focus on movement within particular aspects of the trafficking definition.
So we just wanted to have a simple offence where by someone who had exploited a child in a general way could be prosecuted, but the government didn’t see that that was necessary and said that existing children’s legislation was sufficient. However we know that there has been none or very few convictions under this specific child legislation, so we were trying to get something included which we would take into account a child’s particular vulnerabilities. Something that would make it easier to convict those people that do exploit children, because there would be a lower threshold and there wouldn’t be a necessity to prove all the different aspects of the chain – the movement, the transfer, the recruitment – just the fact that they exploited a child would be sufficient.
PK: What is your sense of the likely consequences of the enforcement of this act? You know, criminal law is often passed by all sorts of political parties in power to signal symbolically that they care about a certain issue. So looking forward, and having previously monitored the way that provisions – which have now become the foundations of the Modern Slavery Act – have been implemented in the past, what is your sense looking forward of the likely consequences?
VB: I think there is a very real danger that this Modern Slavery Act will be used as a tool by the government to say they have everything covered; that now the legislation is in place we are fine, we have got all these different aspects under control. I think that’s where civil society comes in to say, ‘well, actually no, our experience on the front line is that this is still an issue and this has not been covered’.
I’d also say that a lot of things that are included in the Modern Slavery Act require a lot of training from the public authorities and others to implement. The national referral mechanism, for example. The whole structure of that is bringing it down to the more local level, which is fantastic. Multi-agency decision making, great. If you can train all these public authorities, which is one of those things we have been calling for – because of the lack of knowledge about the indicators of trafficking, where to refer victims – unless you invest the money and time to train public authorities to implement this act then you are in danger of have to make further changes which just confuse people. Authorities for instance are totally over-stretched and under-resourced and just asking them to do one more thing is unfair, they will fall for more negative criticism when actually they need support in being able to implement the provision.
PK: So you’re trying to infuse the domestic legal scene with inputs from international law, or model legislation that has been passed around the world. How does one do that? What are the beneficial models from other countries and contexts that you think could be used in the UK?
VB: In terms of other countries, yes. That was one of the key sticking points when the government first introduced the draft bill, saying this is a world leading piece of legislation. I think even at that stage we could draw on other countries. Even the US for instance has comprehensive visa legislation that has victim protection included, and so we could say ‘this is not as high a standard as what they have in the US’. I think it’s about taking particular examples. Using the Dutch national rapporteur as the gold standard, for example, also the Finnish rapporteur. Being able to say, ‘this is what they are using, this has been shown to be successful, could we adhere more closely to what they’re doing?’
We also need to hold the UK government to account to their rhetoric. Take the immigration bill, which has been recently announced (note: this bill has now been enacted, as of 12 May 2016). They talk about the rights of victims and protection for victims while at the same time introduce a piece of legislation which may negatively impact victims and increase exploitation. In situations like this I think we can use all the rhetoric around the modern slavery bill to try and challenge the legislation, which may impact on human trafficking.
PK: For an activist, clearly you need to have a whole range of skills in order to engage with policy-makers about different sources of primary legislation, guidance, secondary legislation, etc. Where have you been able to find the resources and the expertise needed to satisfy this wide-ranging set of roles? What does an activist in this milieu need in order to achieve substantial change?
VB: For an activist, strength in numbers. You know: organisation, collaboration, every different organisation will have a different strength and understanding to bring to the table. Yes, it can be difficult, when you are trying to coordinate and be quite focused on what your advocacy targets are. When you try to narrow down what your focus is, clearly there will be people within that group that want to focus on something else. Finding allies within the sector, and also allies within parliament – there are some experts in their own right within parliament who are willing to support you and take the time out to meet you and to discuss the issue and raise it elsewhere.
I think that was reflected in the Modern Slavery Act. There were some amazing people, Lord Hylton for instance – I know he’s talked about a lot – he was an expert in his own right. He drafted all these briefing papers, and he spoke so passionately that he infused others around him. That’s what you need. You need an ally within the parliament. UNICEF-UK, for instance, because of their large staff they do have people who specifically focused on working with MPs. That for the ATMG was really helpful just to be able to get contacts.
In terms of activism – I mean, this is the basics of strategy – but what are your key asks? Be very clear about them, and take time to think about what the comeback will be. Look at the political field and say, ‘what is the mood of the moment? Are they anti- this or anti- that? What have they been working on? How can we develop and build on what they have already done?’ But also consider that they will say ‘no, because of x y and z’, then ask how to sell it to them. So be clear, collaborate, organise and share resources.
PK: So here is your crystal ball moment. Where do you think this field of modern slavery and trafficking is going? How do you think it might end up over the next 10 years?
VB: We are seeing increasing numbers of trafficking victims recognised through the national referral mechanism (NRM). Now that the NRM will include all forms of modern slavery I think we will continue to see an increasing number. I don’t think this number will go down, despite having a Modern Slavery Act.
My concern is that there will be increasing demands on those on the front lines to identify victims and provide support, while at the same time the government will restrict the funds available to enable them to do this adequately. This squeezing of budgets is causing the close of organisation such as Eaves for women.
Eaves closed down at the end of August 2015. They were a very victim-focused organisation, and had very high standards for victim care. But, the money that was been provided to them was sometimes being given to other organisations that could see more victims in a short space of time. So my concern is that there will be a streamlining, which will not be in the benefit of victims and actually will just exacerbate exploitation and re-trafficking.
Hear many more frontline observations from Vicky Brotherton on the behind-the-scenes negotiations that shaped the UK's Modern Slavery Act, 2015.