Amazon UK Fulfilment Centre - Peterborough. Chris Radburn/Flickr. (CC 2.0 by-nc-nd)
Peter Ramsay is an Associate Professor of Law at the London School of Economics and Political Science. He reads, thinks and writes about the relation of criminal law to civil liberties, to democracy and to security. He is working on a theory of the penal law that explains its historical development as an aspect of the democratisation and subsequent ‘post-democratisation’ of modern states. He is the author of The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law (Oxford, 2012). He is Associate Editor, New Criminal Law Review.
Scene 1 The inordinate attention on trafficking as a social problem is often explained away in terms of a moral panic that invites knee-jerk policy responses. Ramsay explains why the idea of the moral panic can be applied to trafficking but why it also runs out in the face of a permanent condition of demoralised institutional panic and a pervasive discourse around harm leading to an increased role for the criminal law.
Scene 2 Criminal law scholars have long criticised what they perceive as the overcriminalisation of social behaviour in England and Wales. I asked Ramsay for his thoughts on the main offences under Sections 1-4 of the MSA, not because he is an expert on trafficking, he is not, but because he has deep knowledge of the criminal laws of England and Wales and trends in criminal law-making.
Section 1 criminalises anyone who holds another person in slavery or servitude or requires them to engage in forced labour or compulsory labour knowing (or where they ought to know) that it amounts to slavery, servitude, forced labour or compulsory labour. In determining whether the person is so held, courts are allowed to take into consideration all relevant circumstances. These circumstances include the person’s age and mental ability but also the characteristics of both the work and the working conditions. This introduces, according to Ramsay, vagueness into Section 1(4). He also notes that acts preparatory to the offence of trafficking are criminalised under Section 4, even if they are only tenuously linked to the eventual act of trafficking.
Scene 3 The definition of trafficking under the Palermo Protocol requires that a person be recruited, harboured or transported under coercive circumstances for purposes of exploitation. Exploitation in turn includes: the exploitation of the prostitution of others, slavery, practices similar to slavery, forced labour, servitude and removal of organs. Article 3(b) further notes that where coercive means are used then the consent of the person to exploitation is irrelevant.
Now turning to the MSA, Section 1(5) departs from the Article 3 definition of trafficking in that it stipulates that a person’s consent to slavery, servitude, forced labour or compulsory labour is irrelevant. In other words, a person’s self-exploitation does not preclude a finding that they were victims of modern slavery. This differs significantly from Article 3, wherein the victim of trafficking has to be subject to some means of force for their consent is rendered meaningless.
Ramsay is struck by the fact that a finding of exploitation renders one’s consent meaningless. He compares this to another area of English criminal law, namely sexual offences. Offences like rape, assault by penetration and sexual touching are committed when a person is subject to sexual activity without his or her consent. Section 74 of the Sexual Offences Act, 2003 defines consent as agreement by a person who exercises his or her choice having the capacity and freedom to do so. Courts have since 2003 interpreted the Sexual Offences Act to uphold the sexual autonomy of a person. Hence it is perplexing, Ramsay notes, that in the case of Section 1 of the MSA, consent is not valued even in the absence of force; thus exploitation itself is construed as negating consent.
Scene 4 Section 3 of the MSA defines exploitation. This is particularly relevant for Section 2 of the MSA, as it criminalises trafficking namely facilitating or arranging the travel of a person with a view to their exploitation. Exploitation according to Section 3 includes slavery, servitude and forced or compulsory labour; sexual exploitation; removal of organs; securing services by force, threats or deception or securing services from children and vulnerable persons.
Ramsay observes that this definition of exploitation is confined to the worst forms of labour, rather than ordinary wage labour which can also be quite exploitative. The socialist critique of capitalist wage relations pointed precisely to the exploitation inherent in ordinary wage labour. Keeping ordinary wage labour outside the ambit of anti-trafficking law legitimates the exploitation that goes with it. Ramsay concludes that this legitimation is a neo-liberal move.
However Ramsay also notes that Section 1(4) requires the judge to take into consideration all circumstances of a person subject to slavery, servitude, forced or compulsory labour. Although the circumstances listed in Section 1(4) relate to personal circumstances such as age and disability, Ramsay claims that there is no reason to believe that we cannot include circumstances such as poverty or vulnerability on account of migrant status. The definition of exploitation is thus a double-edged sword.
Scene 5 One of the more controversial issues in the debates over the MSA in parliament had to do with the non-criminalisation of trafficked victims. In place of a non-criminalisation clause, Section 45 of the MSA offers a defence to victims of slavery and trafficking who go on to commit an offence. This defence is however not a general defence. It is not available for instance where a victim of slavery or trafficking commits any offence under Schedule 4 to the MSA, which is itself very long. The defence offered to victims of slavery and trafficking is therefore narrow. Ramsay however finds the very premise of the defence problematic.
Scene 6 Ramsay reflects here on the use of criminal law to address complex socio-economic problems such as trafficking. Is criminal law the last resort of weak states? He concludes that criminal law allows the tail of moral wrongdoing by ‘bad’ actors such as traffickers to wag the dog (of social deprivation).
PK: So in the years after the Palermo Protocol was adopted in 2000, trafficking was viewed by many experts as manifesting a moral panic. Initially it was with sex trafficking, then it crept onto sex work. Today it’s much more a conversation about modern slavery. There are reportedly 35.8 million slaves around the world in various sectors, like shrimp farming, the cocoa industry, cotton fields, brick kilns, etc. All of this is supposed to arouse our indignation, and so if you were to look back at the history of the criminal law in the UK, how has the criminal law responded to these sorts of moral panics?
PR: It doesn’t look like an immigration panic, to start with. It’s part of the general anxiety of our immigration, which leads to strengthening immigration control, then leads to organised crime involvement in labour migration, and that then leads to crime panic. Then that produces a panic about organised crime being involved.
I see that that has some of the structure of a moral panic. But my own view is that ‘moral panic’ doesn’t quite capture more generally what has been happening in the last 20 years or so. In the past, the moral panics that Stanley Cohen had talked about – the mods and rockers, and the street mugging of the early 80s – were driven by a re-assertion. What they invoked was the re-assertion of a traditionally idea of a substantive moral community. They invoked the values of patriotism, race, nation, family – if it was abortion or something like single mothers, it would be religious and morality. They invoked those old substantive traditions, morals, you might say.
They tended to come and go. We called them ‘panics’ because they burst out. Sometimes they produced weird and wacky legislation, but that is legislation that quickly became effectively – I mean, maybe it’s occasionally used – entirely symbolic legislation. But also the general reaction was one of distain, ‘ooooh, they’ve got the knickers and they twist it again’.
Now panic is the permanent condition of state actors. The result is legislation which is much more pervasive and long-lasting. It doesn’t produce the same reaction amongst liberal thinking. Liberal thinking is much more open to it, and the reason for that is that it’s not driven by the old, substantive morals. You will look long and hard for patriotism or family values or religious morality in any contemporary drive to greater use of the criminal law to respond to a social problem. Instead, what you will find all the time is harm prevention.
So I can see why people see moral panic because this is a pattern of panic which formally maps onto the moral panics of the past. But now it’s institutionalised, it’s permanent, and it’s not driven by the old moral values. It’s driven by anxiety about harm and fear of harms.
In a way I suspect that’s why it’s permanent. The possibility of harm is in all human conduct, all human conduct risks harm. So once you adapt you moral order to the prevention of harm, you’re going to find risks of it everywhere. So then when anybody comes up with one – ‘oh look, there is a risk down there’, then, ‘what are we gonna do?’, then the cry goes up, ‘something must be to be done!’ And that something that’s normally done is legislation.
PK: So what is your view of the way in which the core offences have been defined in Sections 1-4?
PR: I was particularly struck by sub-section 4 of section 1: when the court is required to determine “whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be had to all the circumstances”. And the circumstances, for example “any of the person’s personal circumstances … which may make the person vulnerable than other persons, (or) any work or services provided by the person” within the circumstances which constitute exploitation. And when we look at the definition of exploitation it’s all fairly vague, so that sets up a certain vague character which I will come back to, because I think that the political content of this is really interesting.
Section 4 then adds a whole set of preparatory offences in effect. So they are offences of doing something with an ulterior intent to commit a criminal offence. That’s very common. What’s more unusual here is that they are themselves criminal offences. So if you commit any criminal offence with the intent to commit a slavery or trafficking offence – that’s just narrowed it down a little bit.
Presumably some of the offences that can be committed preparatory to the slavery offence would themselves have preparatory offences, conduct that is extremely remote from any eventual trafficking offence. I assume that the intention there is to increase the penalties.
Being a theorist and very interested in the content of the definitions of substantive law, there’s no other word for it: the ideological content of this offence definition is fascinating. So, we have an offence that’s forced labour, but “the consent of the person (whether an adult or a child) to any of the acts alleged to constitute holding the person in slavery or servitude, or requiring the person to perform forced or compulsory labour, does not preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour” (MSA, 1.1.5).
So, you can consent to being forced.
Now, in relation to sexual offences law, there’s a question mark over when a person to consent has to agree by choice and has to have the freedom and capacity to make that choice. So it’s possible that a person chooses and yet doesn’t consent. But this takes a further step, and says it’s possible that a person is forced even though they consent. The Sexual Offences Act, although it takes a little step down that road, it still requires proof of lack of consent before we have a sexual offence. Here, what’s ‘forced’ now no longer requires proof of lack of consent.
For myself, that’s an ideological claim, and the content of the ideology is this: now force has been equated with exploitation of vulnerability. It’s very clear in that section that the circumstances which we are to regard in deciding whether this is forced labour are those circumstances which may make the person more vulnerable than other persons. Thus, even when such a person consents, we don’t have to worry about their consent because they were more vulnerable.
Now to exploit someone as vulnerable is to coerce them – coercion and exploitation elided. That, I think, has some really fascinating and probably unintended implications.
PK: During the negotiations of the Modern Slavery Act, advocates had to fight hard for any sort of provisions for the protection of victims of trafficking. But who knows, as the act is operationalised, prosecutions may in fact pursue this expansive definition of exploitation.
PR: Section 1 re-defines ‘force’ to include exploitation, and then section 3 defines exploitation as forced labour or slavery. So what we now know is that forced labour or slavery includes taking advantage of the vulnerable.
It appears that exploitation has been re-defined to exclude ordinary wage labour. I think that’s the critical ideological move. That exploitation is what’s done to people who are particularly vulnerable, so that mere low pay, or mere pay, as it happens, the old socialist critique of the labour market is erased by the legislation and by the surrounding discourse. So there you have the classical – I mean I don’t like the term much – but there’s the neoliberal move. We got rid of all of that tedious, socialist critique of capitalism, and exploitation is just this terrible moral, extra thing that some bad employers and criminals do.
I think that’s a double-edged sword. Sub-section 3 says, “in determining whether a person is being held in slavery or servitude or required to perform forced or compulsory labour, regard may be held to all the circumstances”. Now, and here we come back to all these words: “regard maybe to any of the person’s personal circumstances”, and then we get a list, “such as the person being a child, the person’s family relationships, and any mental or physical illness”.
That’s a “such as”, and then “which may make the person more vulnerable than other persons”. These seem to me the crucial words. Now, on one hand, they seemed to be intended to exclude normal business transactions. If it’s a normal employment contract, then somehow no one’s vulnerability is being exploited.
But, you could say in a labour market, in any wage negotiation or in any contract, some people are more vulnerable than others. A person who has property, so that they don’t have to work, is a good deal less vulnerable than a person who doesn’t have any and does have to work. So the language of vulnerability draws in a consideration. When you think about the personal circumstances – such as family relationships, mental or physical illness, possession of property, which is not included in the list but it’s not presented as an exhaustive list – I wonder if perhaps a response would be to challenge a ‘normal’ minimum wage employer on the grounds that he was exploiting people whose circumstances made them more vulnerable than other persons. But which other persons?
PK: One of the really controversial issues in the Modern Slavery Act had to do with the non-criminalisation of trafficking victims. Traditionally the victims of trafficking have not had much protection, and section 45 is a highly watered-down version of what advocates wanted in the act in terms of non-criminalisation. I’m curious, as a criminal lawyer, what do you make of the defence and how does it compare to other defences in English criminal law, such as the defence of duress?
PR: The practical aspect of this is that people who themselves meet the definitions of victims of forced labour will nevertheless be involved in hierarchical labour organisations. Therefore, they themselves will have been involved in recruiting and organising people who meet these very broad definitions of forced labour. And so, what the reasonableness requirement there in sub-section ‘d’ is doing is just giving the discretion to say, ‘no you were an innocent victim – you were just doing the job because you were told to’, or ‘you yourself were too involved - you were making money out of this’.
So it’s to distinguish practically between exploiter and exploited. Logically what’s happening here is that being a victim is being constructed as an ‘excuse’, as we theorists would call it. So in some circumstances a victim of the offence has an excuse, and their excuse is being a victim.
Now there is something that’s just logically or normatively very unsatisfying about that: your excuse for liability of the offence is that you are the victim of the offence. You are saying, ‘the fact that somebody else victimised me is an excuse for me victimising somebody else’. My intuition tells me there is a profound wrong doing there, but I can’t explain it.
PK: This is exactly where there is a discordance between the doctrinal requirements of criminal law and actually trying to deal with a question that is far more fundamentally socio-economic. Do you think the fallout of this is that we need to re-conceptualise criminal law, or do we need to re-envisage the division between criminal law and other types of law, such as immigration law and labour law, in dealing with problems such as trafficking. What’s your sense, as a criminal lawyer?
PR: We have far too much of it – law, just generally – and this is an example. You wouldn’t have to go to questions of migration or exploited labour to find that, but this is another example of how weak states throw criminal laws at problems. I was recently speaking to a colleague who lectures in Colombia. We were talking about the fact that, under new labour, they produced three thousand new offences. He said, ‘oh yeah, that’s what the Colombian parliament does all the time – it’s because they can’t do anything about anything! They’re completely powerless to actually do anything about Colombian society. So what they do, being legislators, is that they churn out laws!’
Likewise, the British state constantly throws laws at problems, and criminal laws best of all, because criminal laws have that symbolic ‘this is terrible, it’s wrong, we’re against it! – you get imprisonment for life, because we really think it’s wrong!’. And then it will have, as am sure people closer to the ground will confirm, these arbitrary effects. They licence police intervention into the informal economy or parts of the formal economy, but that’s bound to be discretionary. It’s just like drugs enforcement. The state resources next to the scale of the markets that it is trying to deal with are puny, so we’ll have wholly arbitrary effects in practice.
We have well developed employment law and labour regulation law that should be used, but of course to do that requires a different approach to immigration. What the use of criminal law allows the state to do is to have the tail of moral wrong-doing by certain bad people wag the dog of social deprivation. This is yet another example. Like drugs regulation, the reason the government is unwilling to give up on drugs legislation is because it can say ‘oh drugs! Look, yes we have these terrible problems of unemployment and family break down and wasted lives – it’s drugs which are to blame!’ Naturally they don’t want to give that up, and they would like to have more ways of doing that.
For Peter Ramsay’s reflections on criminal law theory, the relationship between exploitation and vulnerability, English cases on freedom, coercion and vulnerability, sentencing under the MSA and the use of risk and preventive orders in the MSA, see Ramsay’s full interview.