Beyond Trafficking and Slavery

Shaping the Modern Slavery Act: a look back

Companies may be more willing to tackle exploitation in supply chains than we think, but they need government regulation to ensure they don’t lose their competitive advantage by doing so.

Cindy Berman
25 September 2016

Hernán Piñera/Flickr. (CC 2.0 by-nc-nd)


Cindy Berman is the head of ‘knowledge & learning’ at the Ethical Trading Initiative. She leads ETI’s training, monitoring, research and evaluation department, as well as its work on modern slavery and labour exploitation. Prior to joining ETI in 2014, she spent 10 years at the UK Department for International Development as a senior social development advisor, working in Asia and Africa on global and regional policy and programmes. In this role she led a £10m, five-year programme on prevention of human trafficking of women and girls from South Asia and the Middle East in domestic work and the garment sector. Cindy has worked on human rights, gender equality and social justice issues throughout her career in different organisations and countries. She has held positions at the United Nations, the ILO, the UK National Health Service, the Commonwealth Secretariat, and a number of civil society organisations. She is from South Africa, and after completing university there she worked in national and community-based organisations in the struggle against apartheid before coming to the UK.

Scene 1 On Rana Plaza being a game changer for members of the Ethical Trading Initiative (ETI).

Scene 2 In the highly polarised field of anti-trafficking advocacy, it is easy to assume that certain legislative outcomes are preordained. Cindy Berman here speaks of how groups like ETI were able to redirect the attention of parliamentarians to focus on supply chains and labour exploitation; issues that initially found no mention in the MSA.
Scene 3 Cindy acknowledges the limitations of the transparency clause in the MSA but highlights how it got companies to engage in a different kind of conversation –an “important starting point” in her view.
Scene 4 Brazil has long been a beacon for activists who are critical of the crime-fighting model of the Palermo Protocol. Berman here explains Brazil’s labour-based approach towards trafficking and its innovative programme to name and shame corporations using slave labour by publishing what is calls the ‘dirty list’.
Scene 5 Berman speaks of what it means to be meaningfully ‘transparent’; how can corporations be held liable for the abuse of workers far down the supply chain?
Scene 6 Berman speaks of her hope that corporations will challenge their internal business operations fundamentally, but she admits that she has yet to find ‘good’ practice amongst ETI members.
Scene 7 Berman now considers the role of consumers; what goes on behind the £2 t-shirt? She says simplistic solutions like boycott/naming and shaming will not work, but instead urges us to stay in the game and back improvements.
Scene 8 Cindy Berman explains her vision for reforms; the government must play its part alongside companies rather than passing the buck.

Partial transcript

PK: What was the thinking within ETI as it started to engage with the modern slavery bill?

CB: Forced labour and child labour is one of the key elements of the Ethical Trading Initiative (ETI) base code. When companies sign up to the ETI, they sign up to what we call the base code, which is based on ILO Convention. So it’s been on the table. But I think that it was assumed that was something that most companies had signed up didn’t really need to think about or worry about too much, because the debates were much around whether you paying living wages and how many hours, and health and safety issues and so on.

Rana Plaza was a game changer for many companies. Although we are not talking overtly about a trafficking situation, we are looking at issues of choice for workers to leave work in an environment that they felt was unsafe yet desperate to earn wages almost at any cost. There is extreme vulnerability of those workers, and I think it got many of our members and the business community writ large, especially in the retail sector, to take note.

Companies come to the ETI space not only to have a more honest and safe space to talk with other companies that face similar problems, and to collaborate with each other in a pre-competitive space, but also because they recognise that trade unions and NGOs have to be part of determining the solutions as well. They have to be in partnership in addressing some of these crises, so ETI was also well placed to hold those kinds of conversations.

PK: How did ETI’s role as a tripartite organisation move towards one of advocacy? What kinds of opportunities did ETI see in the processes leading up to the adoption of the Modern Slavery Act?

CB: The first draft of the bill had nothing about supply chains, and almost nothing about labour exploitation. So that was kind of a no brainer – a gob smacking scenario, in which we had a number of meetings with the Home Office and highlighted the weight of importance that they needed to give to labour issues.

They just weren’t getting it. They were saying, well, you know, ‘companies need to held to account and we think all of you guys’ – being the ETI and some of the other companies round the table – ‘you need just show what good practice looks like’. And we were certainly around that table saying, ‘actually there is no good practice’. Good practice can only happen when there is a level playing field, and when there is decent government regulation and legislation underpins their (companies’) own practice, otherwise they are competing in an unfair market.

We had a number of meetings with the Home Office – they wanted to hear from industry. Their assumption was that industry did not want to be burdened with regulation, and that simply voluntary standards and civil society challenge of companies would be more than enough – the government should be not interfering in that process.

I think the most significant game changer was when we put together a letter, and I have to say, it took a huge amount of effort to get companies to agree to put their logos on that letter. The letter went to David Cameron, and it was overwhelming support for legislation and a transparency and supply chains clause. I think that really did shift the needle, despite the fact that MPs and NGOs had been haranguing and engaging for a long time. They really needed to get that message from industry.

That letter was signed not only by industry members, but we worked very closely with the British retail consortium. We compromised where necessary on some language, but that carried a lot of weight too, the fact that it was an industry body who was bringing it, and it had obviously the signatures of our trade union and NGO members as well. From then we engaged with not only government officials and ministers, but indeed sent letters, several policy statements, as well as directly engaged with MPs and the Lords on these issues. That certainly seemed to make a difference in what eventually happened.

PK: I wondered if you could walk us through Section 54 of the Modern Slavery Act, and the requirement for commercial organisations to provide slavery and human trafficking statements. How does this compare with what you proposed, and what do you see as the strengths and the drawbacks of this form of disclosure?

CB: It’s an entry point. It’s certainly not it. We know that there are some very serious legal loopholes, which some companies will be more than willing to exploit. However, it has got a different kind of conversation going within companies. There is absolutely no doubt, because it’s in law and because those companies signed off at board level have to produce a statement. That, for us, is the most significant thing: it’s a driving a different conversation.

The statement has to be underpinned by a reflection on what companies are actually doing. Not what they saying, it’s what they doing. That involves thinking through their due diligence in a very different way. Thinking through remediation and grievance mechanisms in a different way. Thinking through their governance and business practices in a different way, and realising that the problem is not simply out there in the nether regions of India somewhere, but it’s actually on their door step in the form of cleaning contracts and their catering and a whole range of other services.

It’s an important starting point. I think there is a big conversation under way about transparency, about what you reveal from what you find in your supply chain and in your own operations. Companies are saying, ‘well, how honest should we be?’ Are we setting ourselves up for attack and exposes by NGO and the media if we say ‘yes, we found slavery in our supply chain?’ Or do we be open and honest, and who is going to reward us for doing that? How sophisticated, if you like, is the public understanding of how complicated this stuff is?

PK: In terms of regulatory models, there are clearly many examples around the world. Many were proposed during the debates leading up to the act, including simply incorporating disclosure requirements under the companies act, or having disclosure requirements as in the US – a supply chain transparency clause. There were others who recommended that there should be criminal liability for CEOs of corporations, and this was clearly quite controversial. And then of course there are other kinds of mechanisms, such as in Brazil, where there are reputational costs of companies engaging in slave labour. So there was clearly a range of models for ETI to pick from, and how did you make a decision about which of these would promote the goals of the organisation the best?

CB: The Brazil model works as effectively as it does, not just because there is a dirty list, but because there is a whole army of labour inspectors; because the government is deeply committed, because there is strong legislation, and because there are excellent investigative journalists and civil society NGOs. It’s a sort of a perfect mix of actors and stakeholders – so that context is ripe for that dirty list to take root. There is no doubt that companies are unlikely to act as effectively as we would like them to act unless there are driven by some scandal.

I have to say that on the transparency and disclosure issue, the concern that we have is that transparency for some, when it’s taken in a crude way, and as an end in itself – you stop thinking about what’s the quality of evidence around which people are being transparent. The minute you have something certified, you have to question the credibility of that and you have to question the assumptions around which data is collected.

What we do know, absolutely, from our experience is that the most vulnerable workers are never going to get captured in an audit. They are far too desperate and far too vulnerable to raise their heads, and they are way down the supply chain – seven, eight, nine tiers deep. Information from trusted migrant worker organisations, NGOs, and service providers don’t often have the ear of employers either. So you have got this weird situation where trade unions are quite often not present, either because they are not allowed, or because they simply don’t have the reach.

PK: What is your sense of how corporations are gearing up for these reporting requirements? Is there a role that ETI can play, using its leverage to widen the circles of corporations that would go beyond merely reporting as an obligation?

CB: We have an ambition to see a percentage of our members modelling good practice. I have to say that I haven’t seen a lot of that so far. I have seen some projects, and those projects I think are useful but they are just a starting point.

What we want to see is the internal business operations being challenged and worked through in a fundamental way, not only individual businesses but in partnership with others. They have to work together to get the leverage the need in a particular supply chain and in a particular country.

I would like to be able to point to ‘good’ and I haven’t seen ‘good’ yet. So when I do I will let you know whether we have succeeded.

PK: Given the complexity of transnational corporations, aiming for fundamental change seems to be very difficult – I would say a bit optimistic. If you were to think about the strategic goals of ETI in the short-term and the long-term, what would those be? How can one actually achieve this kind of change, when supply chains are going 30, 40, 50 layers deep and into different parts of the world, and into both the formal and informal economies?

CB: We need to have a hard conversation about how it is you can buy a t-shirt for two pounds and imagine that there is no exploitation underneath that. Now, we are not saying price is everything, because you can get efficiencies in a business, and you can streamline your industry model, and you can do it responsible ways, but we have to stop this downward pressure on prices for products.

Consumers not only expect companies to not have slavery in their supply chain, but they also expect to get a good bargain. I am not of the view that we should make it the fault of consumers, because a lot companies will say ‘well, we are determined by our consumers’ and I don’t buy that. But equally for one company to act and stand outside of the norm takes huge courage and leverage.

It’s a long haul, but I think we need a more sophisticated, more nuanced conversation about this. Not simply naming, blaming, shaming companies, as while that definitely has its place it drives a sort of very crude reaction. It means that companies pull out, workers suffer and lose their jobs, and somebody else will buy those products. Somebody who is asking fewer questions.

The boycott, name, shame thing has its place but only so far. I think workers’ representative organisations and trade unions would never argue that the ideal choice is to pull out. Investors are also showing that when they place very serious conditions, and say we are going to walk unless things change, companies might lose those investors but they are finding others. Then you have lost your leverage. We’re not saying stay in no matter what. We definitely don’t agree with that. But we have to do what we can to stay in the game and see improvements.

PK: In many ways, it has traditionally been the role of the state to push for these kinds of conversations. Clearly in the case of the Modern Slavery Act, the state was missing – the initiative came from corporations. If one were to now go back to the state, what would you like to see in the law that would produce this kind of fundamental change, while at the same time be sensitive to some of the unintended consequences which you just pointed out.

CB: I would like to see a really comprehensive labour inspection system. The law and the government need to create a red line that is absolutely clear for all actors, over which nobody should be allowed to step.

The culture of deregulated industry and labour market deregulation creates an environment for labour exploitation, there is no doubt. Companies that can get away with it, will get away with it. There is a long way to go to Europe and in the US, and then there is a very long way obviously for that conversation to take root is some of the other countries.

The government has to play its part in protecting workers as much as companies have to play their part in respect. It’s very hard for one to happen without the other. I think government would like to pass the buck to corporates, and corporates would like to say ‘it’s not our fault, in fact it’s not even our supply chain, in fact we don’t even employ these workers’. And then you get conglomerates, and you get different models of ownership and responsibility and the use of agents. When that happens the legal framework and the prosecution become that much more tenuous.

So I think the law plays a really important role in terms of criminal prosecution and civil cases, but we shouldn’t overestimate or underestimate the extent to which those can stick. I really do believe that it’s got to happen from all sides, and I don’t think there is one answer.

Full interview

Duration: 46:59

Listen to Cindy Berman’s full interview, where she discusses how she came to the issue of trafficking; an evidence-based intervention programme on forced labour and labour exploitation she set up at DFID; convincing the Home Office to include a supply chain clause in the MSA; and the challenges of the tripartite Ethical Trading Initiative model and its long-term strategy against forced labour.

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