The Home Office has this week published statutory guidance under section 49(1) of the Modern Slavery Act 2015. The guidance covers indicators of trafficking, support, and the decision making process. The statutory guidance will replace a number of existing documents, namely:
Guidance: Duty to Notify the Home Office of potential victim of modern slavery
Victims of modern slavery: frontline staff guidance
Victims of modern slavery: competent authority guidance
Multi-Agency Assurance Panels Guidance
The guidance also provides clear and practical explanations on the fundamental definitions of human trafficking and modern slavery under the Modern Slavery Act 2015, providing examples of actions, means employed by offenders, and different forms of exploitation victims may be subjected to, whilst also including a section dispelling commonly held myths about human trafficking and modern slavery; for example, for human trafficking to occur an international border must be crossed. The guidance also provides important information on the distinction between human trafficking and human smuggling (also termed ‘people smuggling), listing a range of factors that might be used to identify the distinctions. More complex cases, surrounding issues such as forced marriages, potential ‘sham’ marriages, and illegal adoption are discussed in the guidance, which indicates how these issues may relate to human trafficking and modern slavery, but also how they may operate as distinct and independent offences.
The content of modern slavery statements: This section addressed inconsistencies in reporting approaches taken by different companies and the possibility of making certain criteria mandatory. This section also sought to address the fact that global movements in modern slavery legislation may make it desirable to ‘harmonise our approach’. The questions posed focused on reporting practices and the implications of making certain areas mandatory.
Transparency, Compliance, and enforcement: The second section of the consultation sought to propose the introduction of a central government registry, one designed to improve transparency. It also addressed reporting deadlines, proposing a single annual reporting deadline so as to reduce the confusion of multiple separate deadlines throughout the year. It finally sought to gain views into how section 54 of the Modern Slavery Act might be enforced. Questions were posed on each of these areas.
Public sector supply chains: The final area addressed in the consultation examined public sector supply chains. In essence, the consultation proposed that reporting requirements would be extended to public sector organisations with a turnover of more than £36 million per year. Reporting requirements would be for each individual government body to maintain responsibility, whether given individually or as part of a group statement. The questions posed by this section of the consultation focused on the apparent benefits and challenges of imposing modern slavery reporting requirements on large public sector bodies.
Earlier this year our founder and director Philippa Southwell was called to give oral evidence as a legal expert in the Home Affairs Select Committee Modern Slavery Inquiry. As well as giving oral evidence our director Philippa also gave written evidence. Issues that were raised during the inquiry concern the Modern Slavery Act 2015, in particular the section 45 modern slavery defence and excluded schedule 4 offences, and section 54 corporate modern slavery compliance. Also of note were concerns regarding the exploitation of British national minors involved in child criminal exploitation in the forms of forced drug possession, robbery, burglaries, and weapons running. Philippa gave legal analysis on all of these topics. Further areas of focus by the inquiry were:
The detention of Modern Slavery victims in immigration removal centres, and the adequacy of policy in relation to victims of modern slavery and human trafficking being held in immigration detention centres.
The role of the independent anti-slavery commissioner and the relationship between the different law enforcement agencies, e.g. the police, NCA, GLAA, etc, with the national referral mechanism was a major focus of the evidence given by law enforcement professionals and the former Independent UK Anti-Slavery Commissioner.
and, Victim, and victim support services’, perspectives on policy and support available to victims of modern slavery and human trafficking.
The evidence for the inquiry was presented as a combination of oral and written evidence and is drawn from a wide variety of professionals and organisations representing a broad spectrum of sectors. At present those who have given evidence include legal practitioners from a wide range of specialisms; the NGO sector; law enforcement professionals and organisations, including the Home Office, NCA, Local Authorities and multiple police forces; Academic institutions and the research sector; various corporate bodies; and multiple individual experts and specialist organisations.
The Home Affairs Select Committee Modern Slavery Inquiry is ongoing, with oral evidence continuing to be heard. The final findings have yet to be announced. Both the written and oral evidence that have been heard as part of the inquiry, including those submitted by Philippa Southwell, can be found here.
In July 2019 the UK Government released it’s response to the Independent Review of the Modern Slavery Act 2015, which was published earlier in the year. The Review appointed experts to advise on the following four sections of the act, making a total of 80 recommendations:
The Independent Anti-Slavery Commissioner (s 40-44)
Transparency in Supply Chains (s 54)
Independent Child Trafficking Advocates (s 48)
Legal Application (specifically s 3 on the meaning of exploitation, s 8-10
on Slavery and Trafficking Reparation Orders and s 45 on the statutory defence).
The response to the Independent Review sets out several actions the UK Government will be taking to address some of the recommendations, including the launching of a public consultation about transparency in supply chains and the announcement of £10 million for the development of a new modern slavery policy and evidence centre. The policy and evidence research centre will involve academics, charities and firms. However, whilst the new centre has been described as having great potential to improve knowledge on human trafficking and modern slavery there are some concerns that the new initiative is being developed while policy is failing in other areas.
The full UK Government response can be found here.
The Independent Review of the Modern Slavery Act 2015 has was published this week on the 22nd May 2019. The review has identified eighty recommendations for improvements to the operation of the act and wider policies to tackle modern slavery and human trafficking in the United Kingdom. The review makes significant recommendations for how legislation should be amended to increase compliance by businesses and improve supply chain transparency, including:
Recommendation 25: Failure to fulfil modern slavery statement reporting requirements or to act when instances of slavery are found should be an offence under the Company Directors Disqualification Act 1986.
Recommendation 22: The legislation should be amended to require companies to consider the entirety of their supply chains [in respect of modern slavery]. If a company has not done so, it should be required to explain why it has not and what steps it is going to take in the future.
Recommendation 18: In section 54(5) ‘may’ should be changed to ‘must’ or ‘shall’, with the effect that the six areas set out as areas that an organisation’s statement may cover will become mandatory. If a company determines that one of the headings is not applicable to their business, it should be required to explain why.
Recommendation 32: Section 54 should be extended to the public sector. Government departments should publish a [modern slavery] statement at the end of the financial year, approved by the Department’s board and signed by the Permanent Secretary as Accounting Officer. Local government, agencies and other public authorities should publish a statement if their annual budget exceeds £36 million.
The recommendations would significantly increase the responsibility on businesses to address anti-slavery in their supply chains, and afford the government greater power to punish companies that do not comply.
New Modern Slavery Act 2018 in Australia introduces strict reporting requirements for businesses among other key objectives.
There has been significant interest recently over the introduction of the Modern Slavery Act 2018 (MSA) in Australia, and its likely coming into force in early 2019. The act will carry with it significant thresholds for businesses to meet in terms of reporting requirements. But what is the new act?
On Monday a list was released by KnowTheChain ranking the top 40 global technology companies according to their methods to the address the risk of forced labour within their supply chains. The ranking considered factors including ‘purchasing practices, monitoring and auditing processes’. Within the production of tech goods there are many small components that are often sourced from places aimed at cheap production, in which the workers are vulnerable to exploitative and forced labour conditions. Despite this seeming removed from the end glossy product, supply chain regulation accounts for the network of all actors involved from the production, manufacture and distribution of the product, from which the company will profit.
According to this list, Intel, Hewlett Packard and Apple were the three consecutively highest-ranking companies. The assessment indicated that there is an evident correlation between large company size (and likely CSR budget) and the capacity to address the risks of forced labour within supply chains.
Since the list was initially complied in 2016, there has been progress made by most of the 40 companies. This is likely due to the growing pressure applied by modern slavery compliance legislation, which forces business practices to put their mind to the issue of forced labour. The UK’s Modern Slavery Act was considered the global benchmark solution to ensuring corporate supply chain transparency, and the USA & Australia have followed suit with similar supply chain provisions. Generically, this obliges commercial organisations submit a slavery and trafficking statement.
On top of this greater regulatory pressure, the rise in social media and accountability has led to higher consumer pressure on major technology companies to address the issues of forced labour.
There has been significant movement in Australia this week around the introduction to the Modern Slavery Act for Australia in 2018. This is being viewed as “historic legislation” as it pushes for nuanced supply chain based solutions involving individuals, business and public sector commitment, rather than the previous criminal justice perspective.
The major issues businesses have faced are in allocating resources and having limited education on addressing modern slavery in their supply chains. The new regulations are designed to avoid profit loss, but businesses will be accountable and at the forefront of addressing this issue. To comply with the new legislation, they will have to report on their efforts to eliminate modern slavery. Slavery will become an issue discussed by top management or Board Members of businesses rather than simply CSR efforts.
Technology is being developed to assist in these processes, including the block-chain systems, which document every valid contract in a supply chain. However, active commitment from the top-tier stakeholders is ultimately essential to address modern slavery through on going enforcement.
Modern slavery is a severe national issue with 4,300 living in this condition according to the Global Slavery Index, and a widespread issue amongst Asia-Pacific. Experts including Luis C deBaca, are viewing this as the opportunity for the Australian government to be a regional policy leader in addressing the on going problem.