Beyond Trafficking and Slavery

The problem with the British government's approach to exploitation

The NGO Focus on Labour Exploitation (FLEX) engaged strongly with the British parliament during the drafting of the Modern Slavery Act 2015, but found the government resistant to many of its ideas.

Caroline Robinson
25 September 2016
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Aaron Santos for the ILO/Flickr. (CC 2.0 by-nc-nd)

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Caroline Robinson is policy director at Focus on Labour Exploitation (FLEX), which promotes effective responses to human trafficking for labour exploitation that prioritise the needs and voice of trafficked persons and their human rights. She has ten years experience in the field of human trafficking, including conducting research, leading policy development, and designing policy engagement and advocacy strategies globally. Prior to working at FLEX Caroline worked at the Global Alliance Against Traffic in Women, facilitating the engagement of grassroots organisations in international advocacy on trafficking. Caroline has also worked as senior political adviser in the UK parliament and for the United Nations, coordinating efforts to engage women in the political process in Afghanistan. Caroline is a founder and editorial board member of the Anti-Trafficking Review journal. Follow Caroline on Twitter @CaroRobins0n.

Scene 1 Exploitation is a key concept for understanding the phenomenon of trafficking. After all, Article 3 of the Palermo Protocol requires recruitment, movement or harbouring through coercive means for the purpose of exploitation. In the absence of a definition of exploitation however, it is extremely difficult to demarcate the scope of the offence of trafficking. Hence I asked Caroline Robinson of the Focus on Labor Exploitation (FLEX) about how and her organisation understood the phenomenon of exploitation. Robinson explains that FLEX is interested in abuses that extend beyond extreme forms of exploitation and that for this prevention of labour abuses is key.


Scene 2 Here Robinson identifies the numerous opportunities for FLEX and other civil society actors to engage with on the drafting of the MSA.
Scene 3 Robinson reflects on FLEX’s efforts to obtain a broader definition of trafficking in line with the Palermo Protocol.
Scene 4 Although criminalising a harmful activity such as trafficking has significant symbolic value, it often does little for victims of trafficking who tend to be migrants who have incurred debt to travel abroad to make a livelihood. Hence the call for civil remedies that permit victims of trafficking to obtain compensation and back wages. Robinson speaks to FLEX’s campaign for such civil remedies and access to justice provisions in the MSA.
Scene 5 Robinson tells the story of the successful enactment of Section 54 of the MSA on transparency in supply chains, and asks why stronger versions exist in the North Irish and Scottish anti-trafficking laws.
Scene 6 The UK Gangmasters’ Licensing Authority (GLA) is the cornerstone of a labour approach to trafficking on the basis that robust labour inspection mechanisms are key to preventing the extreme exploitation of workers and therefore slavery-like conditions in various sectors. Yet the GLA has faced severe funding cuts and its remit was sought to be expanded by groups like FLEX in the lead-up to the MSA.
Scene 7 Robinson highlights the various fronts on which the labour protections available to workers under UK law and policy are being undermined even as the state’s interest in modern slavery has risen. Robinson suggests that we cautiously use the modern slavery frame to push back against deregulation of labour markets and accompanying funding cuts rather then fetishise extreme forms of exploitation under the label of modern slavery.
Scene 8 Exploitation is not simply a legal concept but also guides moral and political discourse around what is acceptable work for us as a society. Robinson identifies the public perception of narratives of exploitation as a key lever for governmental action on modern slavery.

Partial transcript

PK: I suppose the biggest question is: what is exploitation? It’s a concept that is not often defined. It not even finds mention in much domestic law, let alone international law, so I’m curious about your political understanding of exploitation.

CR: We talk about the accumulation or the combination of abuses. The government turns a blind eye to the non-payment of national minimum wage alongside the retention of identity documents or the excessive working hours on the non-permission of holiday to combine to create a situation of exploitation. I think it’s difficult without a definition, and I think using indicators help to say that there are combinations that make a situation exploitation.

At the same time, FLEX seeks to address abuses that are not thought to constitute severe exploitation, and we do that within the framework of prevention. There is a strong need for governments to address labour abuses, on their own, in order to prevent that accumulated combination of abuses that we think equates to indicators of forced labour or trafficking for labour exploitation.

We’ve tried – and this we did through the modern slavery bill’s negotiations – to talk about the need to address broad and pervasive labour abuses. This needs to happen in order to prevent gaps emerging in labour protections and the labour regulation framework that would permit severe abuses or severe exploitation, where those abuses build up and employers get away with more and more because they can.

PK: What kinds of opportunities are available to NGOs and civil society actors in general when legislations are proposed by politicians who are carried by the rhetoric of ending slavery and everything that goes with it? Can you tell us also a bit about the involvement of FLEX in the various steps leading up to the law.

CR: The modern slavery bill process had a pre-legislative inquiry chaired by Frank Field (MP), had a select committee established to debate the draft bill, and then it had the committee stages in the House of Commons and in the House of Lords, which meant the was opportunity for FLEX and other anti-trafficking organisations, many of which did take advantage of that to engage quite heavily throughout the process. So I would say that there were much better formal channels of engagement than they are, for example, with this immigration bill (note: this bill has now been enacted, as of 12 May 2016) which hasn’t had any pre-legislative prescription at all.

The Frank Field pre-legislative inquiry was a strange process because it was unclear how it tied to the government’s bill development process. I think that came out quite clearly when Frank Field published his report and the minister published her draft bill on the same day, I think, or a day later. I’m trying to remember now how it worked, but I remember he was quite frustrated. He seemed to be under the understanding that his report would feed into the development of the bill, and actually it was kind of welcomed and fed into the then pre-legislative scrutiny of the bill – which was fine, I suppose.

There were opportunities because there was quite a long lead in, allowing us to engage with members of parliament from an early stage, which we did; opportunities to publish and share responses to the various consultations, which we did. There is also still the opportunity that has been there – there’s a Home Office ‘modern slavery stakeholder forum’ and various associated groups where the Home Office kind of takes information.

PK: Given the elaborate process of consultation, are you happy with the result?

CR: The areas we worked most strongly on relate to the definition of offences, civil remedies for victims of trafficking, on the strengthening and the extra-resourcing of the labour inspection authorities, and on transparency in corporate operations and accountability for labour exploitation in supply chains.

Offences

CR: One area that we worked with the Home Office, I would say most closely on, is the offences and the ways they were set out. We had tried to set out the scenarios in which cases of trafficking would not fall within the trafficking definition, yet we felt within international law would fall within trafficking.

We felt that the narrowing of trafficking to travel was problematic in terms of holding the government to its international obligations towards victims of trafficking. We argued at the time, and felt that it was important that trafficking reflect the broader acts that could take place within the UN Human Trafficking Protocol definition, including harbouring. With harbouring, travel, recruitment, or the movement of people is not required.

The government was keen to limit the definition of trafficking to the movement of people. We also felt that it would be confusing, implementation-wise, to tell people that the difference between those two offences is the travel of someone, because that’s not actually the case in terms of the international legal framework. So that was the one thing that we worked with the Home Office on in terms of sharing scenarios and trying to argue for the broadening of that definition. We weren’t successful.

Civil remedies

So, an amendment was tabled at the report stage in the House of Commons by one of our trustees, Paul Blomfield (MP). It was drawing on a discussion that we’ve had on the development of a legal guide for victims of trafficking, where various remedies where evaluated through focus groups that we conducted on the ground. It was felt that in terms of civil remedies, it’s very hard to take a case without having a clear civil remedy relating to trafficking.

The amendment was to try and establish a remedy route that would link to trafficking. We then had a meeting the Lords on access to justice. Specifically, legal aid is not available until you consent to enter the national referral mechanism, at which point you have not been given legal advice about entering. So we talked about bringing those issues into the Modern Slavery Act: insuring that people had a clear civil remedy, and that there was legal aid from the point of contact with a service provider, so that there was an ability to give advice on entry into the national referral mechanism.

The take up of the legal aid was just prior to the general election, and questions on money in general were very difficult. Legal aid was seen as a kind of no-go area in that regard. And with civil remedies, following our meeting in the House of Lords, Baroness Young of Hornsey (Lola Young) tabled an amendment that related to civil remedies, and kind of broadened the amendment from what it had in the House of Commons. The Ministry of Justice responded with a letter to Peers, saying that we have this existing remedy framework, there are adequate remedies, and that there is no need for further remedies to be included in Modern Slavery Act.

The problem that we’ve had with any questions relating to any remedies and compensation, particularly for victims of trafficking, is that this government doesn’t collect any data on that. So, when the government says the remedies are adequate we had no idea whether that means one person received a remedy last year or a hundred. Anecdotally, we know how difficult it is for people to receive compensation and to access the various remedies, and particularly victims of labour exploitation to access the government’s official remedy channel, the Criminal Injuries Compensation Authority. So we wanted to broaden the routes for people to access them, and I would say that was unsuccessful.

Supply chains

CR: The transparency in supply chains work that we did was in coalition with the number of organisations – there was a huge interest in that area. And I think there was a commitment made early on that the Home Affairs was interested in this, but they felt there was a resistance from other sections of the government to do so, and so if there was pressure from civil society then they might have the case to bring these laws forward.

The amendment to the modern day slavery bill that brought in the Section 54 clause was brought I think at the House of Commons report stage, partially amended in the Lords based on the cases made by Lord Alton (David Alton) largely, who is working very closely with our kind of broad coalition of organisations that are working to get a strong amendment on transparency.

Initially the amendment that we had suggested for the modern slavery bill was much more prescriptive on the activities that government would have to undertake, and the obligations upon companies within that act. And interestingly – and we’ve only just noticed this – there are clauses in the Scottish human trafficking act and in the Northern Irish trafficking act that are actually much stronger regarding corporate liability for activities overseas in relation to trafficking offences.

We talked to our NGO colleagues in Scotland and we talked to the Scottish government about why that clause was put into the act, which came just after Modern Slavery Act (enacted in September 2015), and there doesn’t seem to have been that much of a drive. So it’s almost as if it happened by chance, but it’s much more powerful in terms of the potential to hold companies criminally liable for activities overseas. Whereas with this amendment to the Modern Slavery Act, you can fulfil the terms of the amendment by publishing a statement annually to say you’ve done nothing to address exploitation.

Labour inspectorates

CR: One of the main areas that FLEX worked on during the passage on the modern slavery bill was to resource and extend the Gangmasters Licensing Authority. We felt there was an opportunity in the Modern Slavery Act to broaden its scope to sectors where people where telling us that they wanted oversight.

In the House of Lords, the debate turned to labour inspection agencies in general, and their role, and how they are resourced, and the massive cut that they face to their resources. I think one of the biggest wins we had, which was not a very big win, was the reversal of the cuts to the Employment Agency Standards Inspectorate, for example. It had been raised that the Employment Agency Standards Inspectorate had been reduced to a staff of three. They wouldn’t disclose the budget at the time, but we imagined with a staff of three not very much.

In a letter in from the minister during the House of Lords debate, it was promised to redouble staffing, to redouble the resources, and we know from this year’s statements from Employment Agency Standards Inspectorate that at least they have returned to their pre-2013 cut. So they have gone back to staffing of nine and they have a budget of £500,000.

It’s not a very big win, but it was a recognition of this link which we wanted to see the government make, and about which we need to remind them quite regularly. There is a link between labour inspection and regulations – which they don’t like very much – and modern slavery, which they suggested they a had a big focus on and a drive to address.

PK: What is your sense of this paradigm of modern slavery, or trafficking, or forced labour? Some observers argue that the modern slavery paradigm is very seductive, but at the end of the day does very little and actually does more harm than good. Clearly as an activist on the ground, you might have a different view of this paradigm.

CR: I think we’re definitely operating in a context of a decreased focus on labour abuse, regardless of modern slavery interest. Things like the employment tribunal fees; the axing of the ‘pay and work rights helpline’ in the UK; the cases that we are seeing, where people just don’t have any way to get redress for abuses; and a context in which there are very few safety nets for people if anything happens in the labour market.

So I think this is something that does not really relate to the modern slavery crusade – if you like – because it’s a definite drive of the government. In 2011, they launched the red tape-cutting agenda which was all about getting rid of regulations and freeing up the labour market to promote growth.

We’ve found by working with unions more and more that it’s hard to push back on those terms because those are the new paradigm and newly accepted debate. And so whilst I take and I have heard many many years of criticism towards the modern slavery framework – and I agree with many of them – I think that it provides an opportunity to question those terms in way that I’m not finding elsewhere.

I am looking for other ways of questioning those terms in other forums, but I think that with the strong commitments that governments tend to make – and like to make – to address slavery, and the drive to save people from being victims of this centuries old crime, the seduction of this discourse is a useful tool. We need to use it very cautiously. We need to be aware of the possible negative repercussions and to address those as well. Yet we still need to engage in that debate. We cannot blindly advocate things like expansion of the Gangmasters Licensing Authority and then not to deal with consequences of now having a suggestion to expand it but with no extra resources.

Understand that when states pursue that kind of ideology then that will be pursued through whatever means. We have to kind of weave and work around that as advocates. But I do think that it is right for people to care about exploitation, but as we said before, it is not right for them not to care about anything else. They shouldn’t only care when it reaches a miraculous point where people can be categorised as victims and criminals can be prosecuted. And so if there is a way that we can draw people into a focus on what this deregulation agenda is doing to workers, in terms of protections, then I think is very important. 

PK: Could one simply say, let’s reject the modern slavery paradigm because it’s based on hyper-criminalisation, and then that seeps onto the immigration agenda?

CR: Another area that FLEX is keen to look at but hasn’t done enough yet is to understand what narratives the public has, and how they perceive acceptable and non-acceptable levels of exploitation and abuses. I think that feeds into it a lot – the idea that some forms of abuse and exploitation are justified towards certain nationals of certain countries because they face abuses in their own countries. These are better abuses than those abuses – this is a better low wage than that low wage.

We would to like to understand more of the social understanding of exploitation, and how that feeds into what governments are prepared to address. Governments are very dominated by these discourses. Particularly on immigration, governments are so responsive to a fear of public opinion –there is often quite a limited link between the actual response and what’s needed in practice.

I think governments are aware of that. Many of the measures in the immigration bill are trying to reduce net migration figures, which is what public pressure is saying needs to be done, won’t really do that. Things like the offence of illegal working will push people further underground, so it will ensure that people are undocumented and remain in vulnerable situations. This drive is related to what looks good with the public, and we therefore need to understand what that public opinion is saying in relation to exploitation and why this distinction is considered ok.

Full interview


Duration: 01:11:07

For more on the meaning and spectrum of exploitation, a discussion of Sections 1-4 of the MSA, the Gangmasters Licensing Authority, some unexpected quarters of support during the MSA negotiation, the need to delink labour exploitation from immigration reform and the usefulness of the modern slavery paradigm listen to Robinson’s full interview.

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