Modern Slavery and Human Rights Policy and Evidence Centre- Written evidence (MSA0055)

Executive Summary

The Modern Slavery Act 2015 (hereafter ‘MSA’) has so far provided a solid legal basis for the UK to discharge its international legal obligation to identify and protect victims or potential victims of modern slavery, and has identified, protected and supported thousands of victims since its inception. (Paragraph 4)

However, modern slavery measures in recent immigration legislation risk undermining the MSA’s effectiveness and having significant negative impacts on modern slavery survivors. Several of these measures are also incompatible with the requirements of human rights law and the UK’s international legal obligations. (Paragraphs 7-17).

The MSA has not kept up-to-date with legislative developments in other countries, particularly on supply chains, nor does it adequately respond to or prevent new types of exploitation catalysed by changes to the UK’s immigration system, where evidence shows certain visa conditions are linked to increased risk of exploitation and are exacerbated under certain employment conditions. (Paragraphs 18-25).

The transparency in supply chains provisions in Section 54 of the MSA need to be strengthened and expanded in order to be more effective at preventing and addressing modern slavery. (Paragraphs 26-31).

In terms of the criminal justice provisions, prosecutions and convictions under the MSA remain notably low and recent immigration legislation is likely to reduce survivors’ willingness to support criminal prosecutions. More data is needed to understand the effectiveness of the statutory defence for victims in Section 45 of the MSA. (Paragraphs 33-42).

Part 4 of the MSA could be strengthened to provide greater institutional guarantees around the independence of the Independent Anti-Slavery Commissioner role and to provide greater clarity on the appointment process. Lessons could be learned from similar legislation currently before the Australian Parliament. (Paragraphs 43-47).

Our submission contains 19 recommendations to increase the effectiveness of the MSA. Priority recommendations are that the Committee should encourage the UK Government to:

ensure that primary legislation and statutory guidance are in line with the requirements of human rights law and international legal obligations on modern slavery and human trafficking.

proactively involve people with lived experience of modern slavery in a meaningful way during consultations, and when designing and implementing laws and policies that seek to address modern slavery, directly or through representative groups or networks.

collect, analyse and publish further quantitative data to enable a better understanding of the effectiveness of the Modern Slavery Act 2015 (see detailed data suggestions in Table 1).

Introduction

The Modern Slavery and Human Rights Policy and Evidence Centre (Modern Slavery PEC) was created by the investment of public funding to enhance understanding of modern slavery and transform the effectiveness of law and policies designed to address it.[1] The Modern Slavery PEC is an impartial organisation that funds research to provide policymakers and law-makers with independent and authoritative insight and analysis on modern slavery. Our approach is rooted in human rights.

This submission draws on evidence from existing research and data and has been prepared by the Modern Slavery PEC core team, with expert input from Dr Marija Jovanovic, University of Essex.

Terminology: evidence suggests the terms ‘survivor of modern slavery’ and ‘people with lived experience of modern slavery’ are generally preferable when talking about the people most directly affected by this form of exploitation.[2] This submission uses the terms ‘potential victim’ and ‘victim’ in places, given they are used in the Modern Slavery Act 2015, the Council of Europe Convention on Action against Trafficking in Human Beings (ECAT) [3] and many other official documents and statistics.

Question 1: The extent to which the Modern Slavery Act 2015 has been impacted by recent legislation (for example the Nationality and Borders Act 2022 and the Illegal Migration Act 2023)

Modern Slavery provisions in the Nationality and Borders Act (NABA) 2022 and the Illegal Migration Act (IMA) 2023 represent significant changes to how modern slavery victims are identified and supported in the UK. The Modern Slavery Act 2015 (hereafter “MSA”) has so far provided a solid legal basis for the UK to discharge its international legal obligation to identify and protect victims or potential victims of modern slavery, and has identified, protected and supported thousands of victims since its inception. In its latest evaluation report from 2021 (which preceded the legal developments discussed here), GRETA (the body responsible for monitoring states’ implementation of ECAT) has found that ‘[t]hrough its strong measures to identify victims, the UK is setting an important model for Europe’.[4] However there is a long history of concerns raised about how the National Referral Mechanism (NRM) operates and a portfolio of Modern Slavery PEC funded research highlights key factors and barriers to what can be considered success in providing support to people with lived experience of modern slavery.[5] Since July 2022, some of the modern slavery provisions in NABA have been introduced in stages through updates to the modern slavery Statutory Guidance (under s49 of the Modern Slavery Act 2015)[6]. The New Plan for Immigration also introduced non-legislative measures affecting support provided to victims of modern slavery through Statutory Guidance[7]. The IMA modern slavery provisions are yet to be commenced.

Nationality and Borders Act 2022

NABA placed certain European Convention Against Trafficking (ECAT) entitlements in primary legislation for the first time. This included putting some of the key principles of Statutory Guidance into primary legislation, including:

bringing a “recovery and reflection period” of at least 30 days onto a statutory footing in line with ECAT (s60).

provisions relating to assistance and support during this recovery period, which introduced the requirement that support be “necessary” for the purpose of assisting the person receiving it in their recovery from any physical, psychological or social harm arising from exploitation (s64).

the circumstances in which confirmed victims of modern slavery are eligible for temporary permission to stay in the UK (s65).

In written evidence to the JCHR, we questioned the merits of the focus on harm ‘arising from’ exploitation as opposed to ‘linked to’ exploitation, as evidence indicates that traffickers often deliberately target vulnerable individuals. This makes it challenging to assess and separate out the support needed to recover from exploitation harm from the support that may be required to address underlying vulnerabilities.[8]

NABA also introduced in primary legislation the disqualifications to providing a recovery period to a potential victim of modern slavery, based on grounds that the individual is a threat to public order or has claimed to be a victim in bad faith. In 2023, there were no disqualification requests made on the grounds of bad faith, while 443 disqualification requests were made on public order grounds, with 331 confirmed disqualifications.[9]

Forthcoming independent legal analysis commissioned by the Modern Slavery PEC explores the compatibility of the public order disqualification (POD) provisions in NABA and their operationalisation in the Statutory Guidance with the UK’s obligations under the European Convention on Human Rights (ECHR) and ECAT. We will make this analysis available to the Committee. The analysis will highlight several issues. For example, that Section 63 (3) NABA and relevant provisions in the Statutory Guidance exceed the scope of permissible restrictions to protective obligations contained in Article 13 (3) ECAT. As a result, these provisions, in their current form, appear to breach the obligation to identify and protect every victim of modern slavery without discrimination and without exception (Articles 4 and 14 ECHR and Articles 3 and 10 ECAT) by creating a legal presumption that every potential victim who falls within their scope is a threat to public order. The analysis will also highlight how these provisions contradict Article 26 ECAT, which requires States not to punish victims of modern slavery compelled to commit criminal offences, by excluding a vast number of offences from its domain (see paragraphs 37-42 below). In addition, the application of these provisions in practice is likely to lead to breaches of the duty to investigate and prosecute the perpetrators of modern slavery (Article 4 ECHR and 27 ECAT).

NABA led to changes from early 2023 to the modern slavery Statutory Guidance on Reasonable Grounds National Referral Mechanism (NRM) decisions, linked to a drop in the proportion of positive Reasonable Grounds decisions from 88% in 2022 to 55% in 2023. In December 2022 the Prime Minister stated that the UK Government intended to ‘significantly raise the threshold someone has to meet to be considered a modern slave’. Shortly thereafter, the January 2023 Statutory Guidance instructed decision makers to consider whether ‘there are reasonable grounds to believe, based on objective factors but falling short of conclusive proof, that a person is a victim’, intended to operationalise NABA section 60. This conflated the standard of proof (reasonable grounds to believe) with the type of evidence that gives rise to such reasonable grounds to believe that a person is a victim. Following a legal challenge, the guidance was withdrawn and replaced in July 2023, removing this evidentiary requirement.[10] Of people for whom NRM decisions were made in 2023, 55% received a positive Reasonable Grounds decision, compared to 88% in 2022. Although the Statutory Guidance was revised and re-issued several times throughout 2023, the rate of positive Reasonable Grounds decisions remained fairly consistent each quarter (60% in Q1, 50% in Q2, 53% in Q3 and 55% in Q4).[11] This raises interesting questions about the longer-term impacts of legislative changes and their interaction with policy and practice.

Evidence indicates the NABA has had significant negative impacts on NRM decisions, survivors and organisations supporting them. Forthcoming PEC- funded research undertaken by the British Institute for International and Comparative Law in collaboration with the Human Trafficking Foundation and the Anti-Trafficking Monitoring Group reveals that:

One of the most significant impacts of the operationalised NABA provisions has been a significant drop in the rate of positive Reasonable Grounds decisions within the NRM, particularly in the case of non-British nationals and especially for Albanians. These observations are reflected in official data collected by the Home Office.

Participants suggested that the changes to the Reasonable Grounds evidentiary threshold in January 2023, despite being amended in the July 2023 Statutory Guidance, continue to have a legacy impact on outcomes within the NRM, with decision-makers often still requiring additional evidence akin to ‘objective factors’. There were also concerns about ongoing delays in receiving Reasonable Grounds decisions and the ability of people with lived experience of modern slavery to access appropriate support during this period.

Participants raised concerns over the quality of public order disqualification decision-making, the disproportionate impact on those with lived experience of forced criminality and reduced opportunities for detained individuals to challenge these decisions. Challenges were also reported in securing limited leave on the basis of needing to access recovery support under NABA and for confirmed victims with an ongoing asylum application.

The research did not identify any positive impacts of these measures on people with lived experience of modern slavery. Rather, people who professionals felt showed indicators of modern slavery were unable to access support, thereby increasing vulnerability and risks of (re)trafficking or other harms. In addition, the emphasis on producing evidence as well as NRM procedural delays has caused distress and has been damaging to the mental health of survivors, with negative decisions having a lasting impact, even if they were subsequently overturned upon reconsideration.

The mental health impacts of the changes introduced by NABA and political rhetoric around ‘abuse’ have extended to survivors not in the NRM. This has caused fear, while the feeling of being unwelcome in the UK has impacted recovery including for those already having been through the NRM, affected First Responder decisions over whether to refer to the NRM, and resulted in greater reluctance for people with lived experience of modern slavery to enter the NRM or otherwise engage with the authorities.

The NABA changes were also reported to have created a high degree of uncertainty and confusion amongst stakeholders (and clients), particularly due to a failure to communicate the changes ahead of time. This has had significant detrimental impacts on the organisations’ capacity, the wellbeing of staff, and the quality of services provided to people with lived experience of modern slavery.[12]

Illegal Migration Act 2023

The modern slavery measures in the IMA are incompatible with the UK’s obligations under Article 4 of ECHR, which are part of UK law under the Human Rights Act (HRA), and its obligations in international law under ECAT. The automatic exclusion from protection of any potential victim of modern slavery who has arrived in the UK irregularly under IMA, before the victim identification process has been completed, is incompatible with the three core obligations in Article 4 ECHR. It violates the express obligation to identify every victim of modern slavery, before their return to the country of origin could be considered. Removal of potential victims will also likely lead to breaches of the obligation to investigate and prosecute the perpetrators of this offence because without the victim’s cooperation it will be difficult to gather relevant evidence to prove the offence of modern slavery. The IMA permits a very narrow exemption from the automatic disqualification from the victim identification process and access to assistance and support for people cooperating with law enforcement authorities and there is a presumption that they do not need to remain in the UK. Still, potential victims will need to make a decision on such cooperation without benefiting from a 30-day recovery and reflection period guaranteed by Article 13 ECAT, making such cooperation implausible if not impossible.[13] Assistant Chief Constable Jim Pearce recently gave evidence to this Committee which described the challenges of engaging victims in criminal proceedings if they are outside of the UK.[14] Section 29 IMA furthermore amends Section 63 NABA to mandate disqualification from protection of all non-British nationals liable to deportation or who have been sentenced to a period of imprisonment of any length, which contradicts the express obligation to identify every victim regardless of whether they have been convicted of a criminal offence and irrespective of the place of exploitation (J and Others v Austria, paras 110 - 111).

Evidence indicates the IMA modern slavery provisions are likely to have significant negative impacts on survivors when they are brought into force. The Illegal Migration Act provides for the denial of support, and for the detention and deportation or removal of people who are recognised to be potential victims of modern slavery. It is challenging to put a precise figure on the numbers of people affected, but this is likely to be thousands of potential victims of modern slavery, including people for whom their entry to the UK is an integral element of the criminal offence of trafficking committed against them. The modern slavery provisions are likely to reduce survivors’ willingness and ability to cooperate with authorities in criminal proceedings, which often plays a central role in successful prosecutions. The Government has committed to set out in Statutory Guidance further exceptions for people exploited in the UK, but more detail is needed on how this will operate and interact with Section 22(5) of the Act.[15]

The IMA measures that are not specific to modern slavery may directly harm people who seek asylum or humanitarian protection by increasing their susceptibility to exploitation and trafficking, and by exposing them to long-term psychological harm through, for example, detention. The need for these provisions is predicated on the UK Government’s assumption that people are ‘abusing’ the modern slavery system, and that the system is an incentive for illegal migration to the UK. The available evidence questions both of these assumptions[16] and there have been no requests made for disqualification on bad faith grounds.[17]

Forthcoming independent legal analysis commissioned by the Modern Slavery PEC indicates that Modern Slavery Statutory Guidance on public order disqualification goes beyond what Section 63 NABA (and its amendment by Section 29 IMA) expressly permits and is also incompatible with ECHR obligations. The Guidance adds a significant consequence of deeming a person a threat to public order by denying them a final NRM decision on their status as a victim of modern slavery (Conclusive Grounds decision), which has no legal basis in NABA. Furthermore, the starting point in the POD assessment is a presumption that a person fulfilling conditions from Section 62 (3) (b) and (f) NABA is a threat to public order. This presumption could be set aside by demonstrating that their modern slavery-specific recovery needs outweigh the presumed risk to public order. The Guidance however expressly notes that ‘There is a high bar for the need for modern slavery protections or support to outweigh the threat to public order, with more weight given to the public interest in disqualification’ and creates ‘no expectation for decision makers to undertake extensive investigation to support their decision (paras. 14.266-14.267). This effectively removes the burden of justifying the need for POD from the authorities. The onus is therefore on a victim, or potential victim, to demonstrate their protection needs, and not on the Government to justify the exclusion from protection. This is contrary to the clear obligation of States under Article 4 ECHR and 10 (2) ECAT to identify every victim of modern slavery or human trafficking on their own initiative, as well as Article 13 ECAT, which requires public authorities to justify denying a potential victim the recovery and reflection period. In addition, the modern slavery Statutory Guidance also contains provisions on the process of disqualifying British nationals from protections available under domestic law when they are under license or have presented with challenging behaviours in modern slavery support. This is despite neither NABA nor IMA providing a basis in primary legislation for excluding British nationals from protection.

Safety of Rwanda Bill and UK-Rwanda Treaty

Independent legal analysis commissioned by the Modern Slavery PEC indicates that removing individuals with a positive Reasonable Grounds decision to Rwanda, will automatically and in all cases put the UK in breach of Article 4 ECHR as well as Article 10 ECAT. Article 13 of the Rwanda Treaty expressly envisages the UK not completing the victim identification process in relation to individuals who are deemed to have arrived in the UK illegally. This is a breach of the explicit obligation to identify and assist every victim of modern slavery or human trafficking including those who entered or are present illegally, contained in Article 4 ECHR and contravenes the express international obligation in Article 10(2) ECAT not to remove such individuals (including to third countries) until the identification process is complete. In addition, removing identified victims of modern slavery or human trafficking without conducting an individualised assessment of the risk of re-trafficking would breach the operational duty under Article 4 ECHR. Lastly, removing suspected or confirmed victims of modern slavery or human trafficking risks interfering with the obligation to investigate and prosecute the perpetrators of modern slavery or human trafficking contained in Article 4 ECHR and Article 27 ECAT. Victims are often the only witnesses of this crime and without their assistance, investigating the perpetrators is challenging. Importantly, the incompatibility of the Rwanda Treaty and Bill with the UK’s obligations under Article 4 ECHR and ECAT are not restricted to Rwanda alone, but would apply to removing individuals to third countries without specific safeguards prescribed by these international instruments.[18]

Recommendation: The Committee should encourage the UK Government to ensure that primary legislation and statutory guidance are in line with the requirements of human rights law and international legal obligations on modern slavery and human trafficking.

Recommendation: The Committee should encourage the collection, analysis and publication of data, information and insights on how the modern slavery provisions in the Nationality and Borders Act and Illegal Migration Act are impacting on survivors and on wider systems to support survivors and prevent modern slavery (see Table 1). The monitoring and evaluation of the IMA should inform the Home Secretary's decisions about suspending the modern slavery provisions (sections 22-25 of the IMA) if their continuance is no longer justified, as set out in section 26 of the IMA.

Recommendation: The Committee should encourage the UK Government to ensure that relevant changes to law, policy and processes on victim identification follow a proper consultation process, are communicated to First Responder Organisations prior to coming into effect and that the views and experiences of individuals with lived experience of modern slavery and of those involved in frontline work inform all legislative, policy, and practical developments.

Question 2: Whether the Act has kept up-to-date with developments in modern slavery and human trafficking, both within the UK and internationally

Internationally

Supply chains legislation in other countries is increasingly overtaking the provisions related to transparency in supply chains in the MSA. Globally, there is increasing adoption of mandatory human rights and environmental due diligence (mHREDD) legislation. This includes EU-wide legislation currently passing through the European Parliament, which, if passed, will affect EU businesses with a UK footprint as well as UK businesses conducting business in the EU.[19] This also includes laws in France, Germany, the Netherlands, Norway, and Switzerland. mHREDD goes beyond the weak reporting requirements in section 54 of the MSA by creating a legal duty requiring businesses to identify, prevent, mitigate, and account for human rights and environmental harms in their operations and supply chains. A Modern Slavery PEC Policy Brief [20] found that the mHREDD laws currently in place may play a role in increasing awareness of due diligence processes, improving corporate disclosure of human rights risks, encouraging business to implement due diligence processes, increasing human rights risk management, and increasing corporate human rights practices. However, there remains little empirical evidence on the overall effectiveness of these laws due to their recent implementation.[21] Further, mHREDD laws should be seen as part of a smart mix of different tools used in a wider and coherent policy approach to modern slavery in supply chains.

Forced labour import bans have also been adopted in other countries since the MSA’s introduction. A Modern Slavery PEC Policy Brief [22] on the effectiveness of forced labour import bans found that there is limited evidence on their effectiveness and potential wider consequences, again due to their recent implementation. The principal example of forced labour import bans is in the United States, which has largely been enforced since 2016. The evidence does suggest that any singular regulatory intervention, such as an import ban, is unlikely on its own to be sustainably effective, and such bans should be considered alongside other regulatory and non-regulatory laws.

Recommendation: The Committee should encourage the UK Government to monitor closely these legislative developments in other jurisdictions and consider whether stronger regulation to address modern slavery in supply chains is needed.

In the UK

The MSA has not been effective in preventing new harms or types of exploitation arising from changes to the immigration system. The post-Brexit immigration system created a number of visas allowing foreign nationals to be sponsored for short-term, low-paid employment. Modern Slavery PEC-funded research examining the Seasonal Worker Visa and the Skilled Worker Visa (Health & Care) indicates that visas that tie migrants to their employer may increase their vulnerability to exploitation when that work is precarious, particularly when work is carried out in private homes or remote locations that are not evaluated by labour inspectorates, or when workers are recruited from abroad (rather than when switching to these visas from a different visa within the UK), among other things.[23] Visa conditions that pre-date Brexit – such as the No Recourse to Public Funds policy – further exacerbate these vulnerabilities by limiting the safety net available to migrant workers on these visas, in a way that is distinct from those on other Skilled Worker Visas (which mandate higher pay) or on Family Visas (which do not tie migrants to an employer).[24]

Research conducted with people subject to immigration control working in social care found that a combination of visa conditions, immigration policies, and working conditions in the social care sector increase vulnerabilities to exploitation.[25] The researchers – a partnership of five academics and four civil society organisations – report that of those who participated in the research (15 migrant care workers) nearly half were paid below the National Minimum Wage. Deductions to their pay likely related to recruitment fees, and their travel time and night shifts were often unpaid. Other factors included excessive working hours, a lack of a written employment contract and discrepancy between promised and actual terms of employment, discrimination, unsuitable and unsafe accommodation (including employer surveillance of workers), verbal and physical abuse, and a lack of information about rights. Significantly, while the Skilled Worker Visa (Health & Social Care) conditions allow workers to change employers, research participants found that this was difficult or impossible in practice due to issues related to sponsorship, costs, and repayment clauses. Despite previous statements made by the UK Government that this visa has been designed to enable labour mobility,[26] the research found that, in reality, participants’ ability to leave situations of exploitation or seek to improve their working conditions was limited. Other research suggests the policies related to the sponsorship system for work visas, in particular in health and social care work, are creating conditions for exploitation with inadequate enforcement or compliance investigations to ensure licence holders are meeting their responsibilities.[27]

Recommendation: The Committee should encourage amendments to the MSA to require the Home Secretary to lay a report in Parliament 12 months after the introduction of a new work visa, setting out an assessment of the impact of that visa on exploitation risks.

Expertise stemming from lived experiences of modern slavery did not inform the design and implementation of the MSA at its inception, and has not been used to develop an effective strategy to prevent modern slavery. However, since the MSA was passed, awareness of the importance of engaging with people with lived experience of modern slavery has significantly increased, and robust evidence has been developed both on how to conduct such engagement and on its positive impacts. Modern Slavery PEC-funded research found that meaningful engagement of people with lived experience of modern slavery improves the policies and programmes designed to address human trafficking and its root causes.[28] The MSA may be rendered more effective through non-tokenistic and trauma-informed engagement with those directly affected by the legislation, including survivor-led organisations.[29] The Modern Slavery PEC has observed challenges in meaningfully engaging people with lived experience in research focused on modern slavery in supply chains due to the difficulty of accessing affected individuals (often due to geographical distance but also due to cultural and language barriers). In addition, it can be challenging to make links between the direct experiences of those individuals and a set of policies that may be many layers removed from those experiences. One way to surmount these challenges can be to engage through representative groups or networks, local grassroots support organisations or trade unions.

Recommendation: The Committee should encourage the UK Government to proactively involve people with lived experience of modern slavery in a meaningful way during consultations, and when designing and implementing laws and policies that seek to address modern slavery, directly or through representative groups or networks.

Question 3: The efficacy of the provisions of the Act relating to supply chains

Research evaluating Section 54 (transparency in supply chains) indicates that its effectiveness at preventing, addressing, or remediating modern slavery is considerably limited. Modern Slavery PEC-funded research found that, while it has increased awareness of modern slavery risks among large businesses, there are limited levels of compliance with the minimum requirements of Section 54, which requires large businesses to publish annual modern slavery statements on how they are addressing modern slavery in their supply chains.[30] In 2019, the independent review of the MSA found a consensus among businesses and civil society organisations that “a lack of enforcement and penalties, as well as confusion surrounding reporting obligations” are key reasons for poor compliance and low-quality modern slavery statements.[31] This lack of meaningful Government enforcement of Section 54 means that its effectiveness relies on pressure from civil society organisations, decision-making by investors, and on consumer behaviour.[32] However, evidence indicates that civil society organisations are constrained in their ability to do this effectively,[33] and Modern Slavery PEC-funded research has found that consumers are unlikely to change their buying behaviour despite increased awareness of modern slavery risks.[34] While the UK Government had set out its intention to strengthen Section 54 in the 2022-23 Parliamentary session via a new Modern Slavery Bill, including in particular its monitoring and enforcement, it has yet to do so.[35]

Recommendation: The Committee should encourage the UK Government to identify and commit to a suitable legislative vehicle through which to make the amendments to Section 54 to which it is already committed, and set out a clear timetable for its introduction.

Section 54’s scope does not effectively include key actors with a high potential to address modern slavery:

Public procurement is a significant and promising lever to address modern slavery in supply chains, but public sector bodies are not in scope of Section 54 (the new Modern Slavery Bill referenced in the paragraph above intended to bring them into scope).[36]

Investors and other finance actors are not obligated to report on their investee companies or companies to which they lend (although some are in scope of the legislation in regards to their own operations and supply chains including e.g., catering and cleaning services). Financial services are estimated as comprising 20 to 25% of the global economy [37] and as such possess leverage that remains underutilised, despite research indicating its promise as a potentially effective tool in addressing modern slavery.[38] Research examining finance actors and public sector buyers found that the lack of a legal mandate to address modern slavery often results in inadequate internal resourcing for due diligence, and in ineffective responses when cases of modern slavery are identified within an organisation’s supply or value chain.[39]

Recommendation: In addition to the recommendations included in response to Question 2, the Committee should encourage the UK Government to consider expanding the scope of actors and obligations covered by current and future legislation mandating action on addressing modern slavery in supply and value chains to bring public bodies in scope, and to expand obligations for finance actors.

Modern Slavery PEC-funded research has identified a number of ways in which the Statutory Guidance related to transparency in supply chains could be improved to increase the effectiveness of Section 54 by supporting compliant businesses.

Recommendation: Pending new primary legislation on modern slavery in supply chains, the Committee should encourage the UK Government to immediately update the transparency in supply chains Statutory Guidance to:

Expand on the importance of mapping lower-tier suppliers and engaging with them in a collaborative manner that encourages open disclosure of potential risks.[40]

Expand on how purchasing practices relate to collaborative buyer-supplier relationships and what their role is in mitigating risks of modern slavery in supply chains.[41]

Add reference to the importance of harmonised data collection and disclosure by businesses, to support sector-wide progress monitoring and to inform investor decision-making.[42]

Add reference to the importance of grievance mechanisms that are either worker-led or overseen by independent third parties.[43]

Add reference to the importance of cross-team alignment within businesses and the empowerment of those with most direct knowledge of potential modern slavery risks, e.g., ethical trade staff or procurement staff, to feed that knowledge into senior-level decision-making.[44]

Add reference to the linked issues of recruitment fees and debt bondage as they affect migrant workers.[45]

Question 4: The efficacy of the other key provisions of the Act, including definitions, sanctions, reporting, enforcement, and the statutory defence for victims

Our response to this question is limited to a discussion of legal enforcement of the criminal offences in the Act, and the statutory defence for victims. The Centre has not funded any research that has specifically examined definitions or sanctions. Effectiveness of reporting by business is discussed under Question 3.

Enforcement

The volume of charges, prosecutions and convictions for criminal offences in the Modern Slavery Act remains notably low. In the year ending March 2023, only 1.18% (120) of modern slavery crimes recorded by the police in England and Wales (10,148) resulted in a charge/summons.[46] In the year ending September 2023, the CPS recorded 395 prosecutions for modern slavery-flagged crimes in England and Wales, of which 301 (76%) resulted in a conviction.[47]

Co-operation and engagement from victims is often critical for securing prosecutions and convictions. CPS guidance recognises that victims often take significant risks when giving evidence[48] and the police recognise it can take many months to obtain evidence from victims.[49]  

The disqualification from MSA protections and the prospect of removal from the UK envisaged by the Nationality and Borders Act 2022, Illegal Migration Act 2023 and the Safety of Rwanda Bill is likely to reduce survivors’ willingness to support criminal prosecutions (see paragraphs 10-11). The Illegal Migration Act provides an exemption from automatic disqualification from NRM support for those supporting criminal prosecutions if it is deemed necessary that presence in the UK is necessary for that cooperation. However, it is not clear how this will operate in practice.[50]

Recommendation: the Committee should encourage the UK Government and partner agencies to set out how it plans to encourage victim engagement in criminal justice proceedings, especially in light of the potential harmful effects of recent immigration legislation on victim engagement with the criminal justice system.

Statutory defence

The statutory defence in section 45 of the MSA gives effect to the non-punishment principle in Article 26 of ECAT. A Modern Slavery PEC- commissioned evidence review of the statutory defence, undertaken by Dr Alicia Heyes, found that there has been very limited research on how the defence is working in practice, and no quantitative data is collected on the use of the defence.[51] The review highlighted the need for adequate training for the police, lawyers and the judiciary if the statutory defence is to be used as it was intended i.e. to protect victims of modern slavery.

Recommendation: The Committee should encourage the UK Government and its partner agencies to collect and publish data on the use of section 45 (see Table 1).

GRETA (the body responsible for monitoring states’ implementation of ECAT) has raised concerns that section 45 of the Modern Slavery Act 2015 (the statutory defence) is too narrow an interpretation of the non-punishment principle in Article 26 of ECAT.[52] Schedule 4 of the Modern Slavery Act 2015 lists offences where the statutory defence cannot be used. This includes modern slavery offences, and evidence and operational experience show that victims of modern slavery may be compelled to commit modern slavery offences themselves.[53] GRETA has urged the UK to ensure the non-punishment provision is capable of being applied to all offences that victims of trafficking were compelled to commit.[54]

Recommendation: the Committee should encourage the UK Government to review the Schedule 4 offences in light of evidence and practice about the types of offences that victims of modern slavery are compelled to commit.

In July 2021, the European Court of Human Rights (ECtHR) considered the prosecution of victims of modern slavery and ruled the UK had breached its obligations under Articles 4 and 6 of the ECHR (VCL and AN (77587/12 and 74603/12)). The judgment remains under the supervision of the Committee of Ministers.[55] The judgment highlights complex issues around how states find a balance between competing interests of victim protection, law enforcement and immigration control. A Council of Europe-commissioned study examining the operationalisation of the non-punishment principle in the UK[56], undertaken by Dr Marija Jovanovic and Dr Maayan Niezna, made a series of recommendations to strengthen the application of the non-punishment obligation contained in Article 26 ECAT including the need to: clarify a required nexus between the status of a victim and an offence committed by a victim; specify institutional competence and division of roles between the law enforcement authorities and those in charge of victim identification and support; establish rules that govern the burden of proof that the relevant nexus is established; and determine the effect of the non-punishment principle and remedies available to those victims whose status has been established only after conviction, and possibly after serving the sentence.

Recent immigration legislation risks breaching the non-punishment principle and undermining the spirit of the statutory defence. The Public Order Disqualification enshrined in Section 63 NABA and operationalised in the Statutory Guidance terminates the victim identification process, which is a precondition for the application of the principle of non-punishment (VCL and AN v United Kingdom, paras 160-161).  Similarly, the detention and removal of a person with a positive Reasonable Grounds decision from the United Kingdom on the basis of IMA would effectively amount to punishment for the breach of immigration rules even in cases where victims were trafficked to the UK against their will.

Question 5: The role of the Independent Anti-Slavery Commissioner, including whether the post is sufficiently resourced, and the process of appointment

The Joint Committee on Human Rights (JCHR)[57] and the Independent Review of the MSA[58] have both highlighted concerns about the adequacy of institutional guarantees of the independence of the Commissioner role. Concerns have focused on the lack of provisions in the Act around the duration of the appointment, whether the term is renewable, or the grounds or process for removal – which are instead to be determined by the Home Secretary. The current IASC’s appointment term is three years, and capable of renewal at the Home Secretary’s discretion, but the JCHR has consistently recommended that independent commissioners should be appointed for a single term of 5-7 years in order to be perceived as independent. In addition, concerns have been raised around the IASC’s reporting arrangements with the Home Office.

Legislation currently before the Australian Parliament to create a similar independent anti-slavery commissioner role in Australia appears to go further than the MSA in guaranteeing the role’s independence from government and providing clarity about the process of appointment.[59] The Modern Slavery Amendment (Australian Anti-Slavery Commissioner) Bill[60] contains the following measures:

Independence is written into the primary legislation by providing that the Commissioner has “complete discretion in performing or exercising the Commissioner’s functions or powers” and that the role “is not subject to direction from anyone when doing so” (clause 20J).

Ministers do not have any powers to approve or modify the contents of the Commissioner’s annual report, though Section 4 defines ‘sensitive information’ and envisages that such ‘sensitive information’ would not be included in the version of the annual report that is tabled in Parliament or published on the Commissioner’s website (clause 20Y).

While Clause 20X requires the Commissioner to consult with Ministers in preparing a strategic plan, it does not give Ministers the powers to approve or modify the contents of the strategic plan.

Clause 20L sets out the process for appointing a Commissioner; Clause 20N clarifies the period of appointment and the renewability of the appointment and clause 20U sets out the grounds and process for removal of the Commissioner from their role.

An obligation on Ministers to appoint a Commissioner “as soon as practicable after the office of the Commissioner becomes vacant” (clause 20M)

Recommendation: The Committee should encourage the UK Government to monitor reports about the implementation of the Australian Anti-Slavery Commissioner legislation and its effectiveness at guaranteeing the role’s independence, and consider amending Part 4 of the MSA to strengthen the institutional guarantees of the UK IASC’s independence from Government.

Section 40 of the MSA requires the Home Secretary to appoint a person to the IASC role. The UK role recently remained vacant for 20 months, during a period when the Illegal Migration Bill, expected to have significant implications for people affected by modern slavery and human trafficking, was before Parliament (see paragraph 11). 

Recommendation: The Committee should encourage the UK Government to amend Section 40 of the Modern Slavery Act to specify a time period within which a new Commissioner should be appointed when the role is vacant, and to require Ministers to provide written updates to Parliament if the role remains vacant beyond that timescale.

We understand that the IASC’s budget from the Home Office during the financial year 2024/25 is £597,000.[61] The IASC has stated that this budget covers staff salary and office costs.[62]

Section 41 (3) of the Modern Slavery Act 2015 sets out the types of things the Commissioner may do in pursuance of their statutory functions, which includes “undertaking or supporting (financially or otherwise) the carrying out of research”. Based on the Modern Slavery PEC’s own experience of funding new UK research into modern slavery, we do not think it is feasible within the IASC’s current budget for the Commissioner to directly fund any substantial pieces of new research. This limits the IASC’s role in relation to research as supporting in a non-financial way, for example by co-designing research questions, or to carrying out relatively modest ‘in-house’ research by any research staff working in the office. This also demonstrates the importance of the IASC developing strategic partnerships with research funders and evidence producers.

Question 6: Suggestions for improvements that could be made to the Act to help it to better achieve its aims

Our response to questions 1-5 contains several recommendations to improve the effectiveness of the MSA. In addition, based on research and evidence generated by the Centre, we recommend the following:

Survivor identification and support

Recommendation: the UK government should improve the clarity of adults’ support entitlements in primary legislation and statutory guidance, particularly with respect to psychological assistance, wellbeing support and access to legal advice.[63]

Recommendation: the UK Government should extend the Independent Child Trafficking Guardianship (ICTG) service to the whole of England and Wales, based on the evidence on how it supports the attainment of positive outcomes for children and young people affected by modern slavery[64]. The Home Office should commence Section 48 of the MSA and draft and adopt the regulations that sit beneath this.

Recommendation: Subject to the evaluation of the pilots in place to devolve NRM decision-making for child cases to local levels, the Home Office should consider amending the provisions in section 50 of the MSA around victim identification.

Modern Slavery Strategy

There is currently no statutory requirement for the UK Government to prepare and publish a modern slavery strategy. The most recent Modern Slavery Strategy is nearly ten years old, having been published in 2014,[65] and this Strategy is now out-dated given global developments such as the escalation of climate change and conflicts such as the invasion of Ukraine,[66] and the significant changes in the scale and nature of National Referral Mechanism (NRM) referrals over the last ten years. In March 2021, the Government committed to reviewing the 2014 Strategy[67] and Home Office Ministers committed to develop a revised strategic approach by spring 2022.[68] However, a revised Strategy has not been published. In February 2024, the Government stated that it will “consider delivering a new modern slavery strategy”, in response to the Home Affairs Committee’s inquiry.[69]

Modern slavery and human trafficking legislation in Scotland and Northern Ireland requires the government to publish and regularly review strategies:

Part 5 of the Human Trafficking and Exploitation (Scotland) Act 2015[70] requires Scottish Ministers to prepare a trafficking and exploitation strategy which must be reviewed at least every three years.

Section 12 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015[71] requires the Justice Department to publish a strategy at least once every three years on modern slavery and human trafficking.

While a statutory requirement to publish a strategy does not necessarily guarantee the effectiveness of any strategy at addressing modern slavery, such a requirement would enable Parliament to understand and scrutinise the Government’s priorities and objectives. Recommendation: the Committee should encourage amendments to the Modern Slavery Act 2015 to require the UK Government to publish a modern slavery strategy, and require the UK Government to regularly report against the strategy, review the strategy and update accordingly.

Improving modern slavery data

The Committee should encourage the UK Government and its partner agencies to collect, analyse and publish further quantitative data to enable a better understanding of the effectiveness of the Modern Slavery Act 2015, and newer legislation which has amended the Modern Slavery Act. Table 1 sets out the Modern Slavery PEC’s recommendations for further quantitative data collection, based on findings from the research we have funded to date:

Table 1: Modern Slavery PEC recommendations for quantitative data the government should collect and publish

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