The House of Lords must amend the Modern Slavery Bill

Seven key changes are needed to the Modern Slavery Bill to ensure that it properly protects vulnerable children at risk of exploitation, trafficking and modern slavery.

The Modern Slavery Bill will undergo a second reading in the House of Lords on 17 November 2014, followed by the Committee and Report stages, and it is crucial that Members of the House ensure that the changes necessary to better protect vulnerable children are made before the Bill leaves the House.

The Bill, rather than being focused around law enforcement should, instead, be focused around the victims and potential victims so that the emphasis within the Bill is about the identification and protection of those victims and potential future victims, with the consequent secondary law enforcement aspects, rather than vice-versa.

At the time of writing this post, the current version of the Bill before the House of Lords can be found here:

http://www.publications.parliament.uk/pa/bills/lbill/2014-2015/0051/15051.pdf

There are seven key changes that are needed to better protect children at risk of, or suffering from, trafficking, exploitation and slavery:

1. Inserting a clear definition within the Modern Slavery Bill about what constitutes a child: this must be in accordance with the UN Convention on the Rights of the Child and clearly state that anyone below the age of 18 years, regardless of circumstances, is classified as a child. This change is necessary to better protect all children but, particularly, those aged 16 or 17 where confusion can occur.

2. Inserting a more clear definition about what constitutes slavery: at present the definition comes from Article 4 of the Human Rights Convention (HRC) but, in order for the Legislation to be clearly understood by the general public, many of whom will not know what the HRC says in Article 4 (nor that there have been legal cases looking at the potential definition of slavery), there needs to be an unambiguous definition that is widely accepted.

3. Better protection for children and adults with disabilities: a very simple change to the Bill would better protect people with disabilities.

4. Ensuring the Independent Anti-slavery Commissioner is mandated to provide information, education or training: at the present time this power is discretionary and non-specific.

5. Ensuring that the Secretary of State must issue guidance on the sort of things that indicate a person may be the victim of slavery, human trafficking or exploitation: not simply slavery or human trafficking as at present.

6. Providing better protection of victims of exploitation: rather than just providing a potential defence for slavery or trafficking victims compelled to commit an offence and rather than, at present, focusing almost entirely in the Bill on slavery and trafficking and, on the face of it, considering that exploitation occurs purely in relation to trafficking. It doesn’t. Children and adults can be exploited without being trafficked.

7. Refocusing the Bill on the identification and protection of victims and potential victims: rather than, at present, focusing primarily on law enforcement.

The specifics of the changes to the Bill required to achieve 1-6 of the above (with change 7 being an over-arching change that will require much more detailed work and potential re-wording of the main substance of the Bill), are as follows:

Part 1, 1(2): definition of slavery or servitude

This is particularly problematic for a number of reasons. Section 1 currently defines slavery in accordance with Article 4 of the Human Rights Convention (HRC) however Article 4 doesn’t actually define slavery in sufficient detail for the ordinary reader to be able to understand. Therefore it is not possible to properly construe section 1 in accordance with Article 4 of the HRC in any meaningful way, leaving this Modern Slavery Bill without a clear definition of slavery.

Article 4 reads as follows:

“Prohibition of slavery and forced labour

1. No one shall be held in slavery or servitude.

2. No one shall be required to perform forced or compulsory labour.

3. For the purpose of this Article the term “forced or compulsory labour” shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.”

Given the inadequate definition of slavery and servitude it is, in my view, likely that the cases which will be recognised or dealt with will be the headline-grabbing ones, well publicised in the media, rather than the majority of cases where the evidence may be somewhat weaker or the cases themselves may not be as headline-grabbing. It is therefore likely to be the case that professionals may still not recognise cases they are dealing with as ‘slavery’ or other offences dealt with under this proposed legislation. Although this Bill is clearly intended to be a criminal Bill it is important that there is consistency with civil protection rights for children, such as under the Children Act 1989, such that the cases where evidence is weaker, but children are still at risk, are properly dealt with.

At present the Bill is far too vague and needs a clear definition of slavery or servitude to be included within it. Various examples have been stated previously although it would be entirely possible to come up with satisfactory alternatives whilst still referring to Article 4 of the HRC. Example definitions are:

“the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised” (Siliadin v. France, § 122).

“a particularly serious form of denial of freedom” including “in addition to the obligation to perform certain services for others … the obligation for the [person] to live on another person’s property and the impossibility of altering his condition” (Siliadin v. France, § 123).

Part 1, 1(4): consideration of people with disabilities

This section of the Bill concerns factors related to an individual’s personal circumstances which may make that person more vulnerable than other persons. The Bill currently reads as follows:

For example, regard may be had to any of the person’s personal circumstances (such as their age, family relationships, and any mental or physical illness) which may make the person more vulnerable than other persons.

This should be changed to the following, also replacing the final “and” with “or”, or another such clause reflecting that people with disabilities may be more vulnerable than other persons – as has been shown to be the case, for example, concerning children with disabilities and their increased risk of suffering from child abuse when considered on a population basis:

For example, regard may be had to any of the person’s personal circumstances (such as their age, disability, family relationships, or any mental or physical illness) which may make the person more vulnerable than other persons.

Part 1, 3(6): definition of a child

This section needs to be explicit, or a further over-arching clause needs to be inserted, applying to the whole Bill, to make clear that a child is someone who has not reached his or her 18th birthday, in accordance with the UN Convention on the Rights of the Child.

Part 4, 41(3)(d): things that the Independent Anti-slavery Commissioner may do

At present, under this section, the provision of “information, education or training” is non-obligatory and this must be changed to ensure that it is mandatory for the Independent Anti-slavery Commissioner to provide “information, education and training on the identification and protection of victims, and potential victims, of slavery, servitude, exploitation and trafficking“.

Part 5, 45: protection of victims

At present the defence for slavery or trafficking victims compelled to commit an offence does not explicitly apply to victims of exploitation. It should. Revision of this section should be made so that it is explicit that protection also extends to victims of exploitation and not just slavery or trafficking.

Part 5, 47(1): definition of a child

This section needs to be explicit, or a further over-arching clause needs to be inserted, applying to the whole Bill, to make clear that a child is someone who has not reached his or her 18th birthday, in accordance with the UN Convention on the Rights of the Child.

Part 5, 48(1)(a): provision of guidance by the Secretary of State

At present, under this section, the provision of guidance that the Secretary of State is mandated to issue only covers “the sorts of things which indicate that a person may be a victim of slavery or human trafficking“. This must be changed to ensure that victims of exploitation, in order to capture, amongst other things, victims of child sexual exploitation, are properly protected. This section should be changed to “the sorts of things which indicate that a person may be a victim of slavery, human trafficking or all forms of exploitation, including sexual exploitation” or other suitable wording to include exploitation in the mandatory guidance.

The substance of the Modern Slavery Bill must be comprehensive enough, and detailed enough, to really make a difference to the people it is designed to protect whether through punishment of offenders or prevention of offences. In its current form the Modern Slavery Bill lacks that detail and, being a Bill almost exclusively aimed at law enforcement rather than identification and protection of victims and potential victims, unless changes are made to it vulnerable children will not be properly identified or protected.

The Bill must be modified to better identify and support victims of slavery, trafficking and exploitation and it is beholden upon everyone involved in our Parliamentary processes to make the changes that are necessary to improve this Bill into powerful primary legislation that will better protect children from exploitation, slavery and trafficking, identify victims and potential victims, and appropriately punish those people responsible for these heinous crimes against society.

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