Modern Slavery Act 2015
An overview of the Modern Slavery Act and what the new legislation means for victims and perpetrators of trafficking and exploitation
Acknowledging that slavery is still an issue within the UK, the new Modern Slavery Act which came into place last week sets out measures for a more effective response to the issue; including stronger law enforcement, harsher punishments for perpetrators, measures to protect and support victims and with the overall aim to reduce incidents of modern slavery and human trafficking. The passing of the Act certainly marks an important step in tackling the issues of exploitation in the UK.
The traditional definition of slavery has been updated in the new Act to the term ‘Modern Slavery’ which is defined by the Crown Prosecution Service (CPS) as ‘slavery, servitude, forced or compulsory labour, human trafficking and exploitation; including sexual exploitation of both adults and children’. However, cases are often considerably more complex and varied.
What is the Modern Slavery Act?
Whilst the Act consolidates and simplifies existing human trafficking and slavery offences, there are new additions that go beyond this, such as:
- Appointment of an Independent Anti-Slavery Commissioner with an international remit to advocate good practice and coordinate law enforcement response
- Section 62 of the Sexual Offences Act 2003 has been replaced from ‘committing an offence with intent to commit a sexual offence’ (grooming) and will now include any offence of exploitation, not only sexual exploitation offences. Also sections 57-59 which involve trafficking into, around and out of the UK for sexual exploitation and section 60, the interpretation and jurisdiction of ‘relevant offences’ have been omitted from the Sexual Offences Act and these are now covered in the Modern Slavery Act (Part 1, Section 3).
- An increase in the maximum sentence for slavery and human trafficking from 14 years to life imprisonment
- The introduction of slavery and trafficking prevention orders (STPO) and slavery and trafficking risk orders (STRO) to restrict movement or impose restrictions on convicted or suspected traffickers, including criminalising preparatory conduct such as applying for a Visa to bring someone to the UK on a trafficked basis
- New legal requirements to report all suspected cases of human trafficking to the national referral mechanism (NRM) for victim identification and support and to build a national picture
- Businesses above £36 million turnover to produce annual reports on the steps they have taken to avoid and eradicate slavery in their supply chains
- Confiscation orders using the Proceeds of Crime Act (POCA) and slavery trafficking reparation orders to compensate victims where assets are confiscated from perpetrators
- A statutory defence for victims who have been compelled to commit an offence as a direct result of their trafficking or slavery situation
- Claims under employment law and claims for damages by victims of slavery, servitude or forced or compulsory labour
- Provisions for independent child trafficking advocates to legally represent child victims
- Closing gaps in the law to enable police and Border Force to stop boats on which slavery victims are suspected of being trafficked
What new offences are included in the Act?
1) Offence of slavery, servitude or forced and compulsory labour
This outlines that domestic servitude is distinct from trafficking and exploitation and involves a complex set of dynamics, involving both overt and more subtle forms of coercion to force compliance.
2) Human trafficking – covering both sexual and non-sexual exploitation
Penalty increased to life imprisonment
3) Committing an offence with the intention of committing human trafficking
How will the Act impact on trafficking and sexual exploitation?
The Act has updated consent so as not to ‘preclude a determination that the person is being held in slavery or servitude, or required to perform forced or compulsory labour’, evidence will still be required to prove that adult victims were controlled or forced into compulsory labour, slavery or servitude (Clause 1). Not all those who are trafficked and exploited will be aware that they are being exploited, and therefore the definition of consent in the new Act can only go so far to protect them from this. Rather, it should be the responsibility of those governing the new Act to spot the signs and refer any suspected cases via the national referral mechanism (NRM).
The Human Trafficking offence (Clause 2) requires evidence of intention to exploit when moving a child between locations. The Report of the Modern Slavery Bill Evidence Review claims that if ‘movement’ is hard to prove, due potentially to children being unable to disclose this information because of age or language etc., children could be discriminated against because the police must settle for charging those caught trafficking children for non-sexual exploitation with lesser offences than they would had the victim been an adult.
The word ‘intention’ is also problematic here, in that the Crown Prosecution Service will have to prove beyond reasonable doubt that the perpetrator not only moved individuals, but also intended to move them with the aim of exploiting them. This means that perpetrators (especially with domestic internal trafficking) could admit the movement but deny the intent. As intent is subjective, it is possible that trials could fall down on this point.
Escaping slavery and exploitation
The existing Visa system creates problems for overseas domestic workers in changing employers and escaping exploitation. This amendment was passed in the House of Lords in February but overturned in the House of Commons, with an agreement that victims can change employers when they have been referred to authorities and determined ‘victims’. This lack of change could perpetuate the exploitation of many individuals, unable to escape the control of their employers.
The other potential hole in the Act is the access to civil compensation. As the Home Office Impact Assessment accompanying the new Act reports, victims are not always ‘forced’ to come to the UK in the traditional sense of the word. Some may pay a smuggler to be transported into a country willingly, only to be deceived or forced into an exploitative situation when they arrive. The Human Rights Watch describes the three main differences between smuggling and trafficking as consent, exploitation and transnationality. However, once authorities are made aware of cases such as this, it’s likely that the individual would be deemed an illegal immigrant and may have committed illegal acts which could stop them from receiving the support they may otherwise receive.
Whilst the criminal prosecution side of the Act is a big step forward, it is also important that the reform of the NRM aims to ensure victims receive the appropriate protection and support.
Whilst the introduction of the Act represents a more consolidated approach to slavery, trafficking and exploitation in the UK, it is yet to be seen whether the measures include the appropriate preventative measures to ensure individuals are protected from becoming victims in the first place.
Safe and Sound’s training arm JustWhistle is running a series of one-day courses on Human Trafficking in Birmingham, Liverpool, Derby and London. The course is particularly useful for professionals working with vulnerable young people and will include more information about the new legislation and the NRM.