Summary

The legislative frameworks that have been developed to address forced labour at national, regional and international level are fragmented and ineffective. For example, the Modern Slavery Act 2015 has proven ineffective in tackling exploitation including forced labour within supply chains. This position is reflected globally where extensive research demonstrates the chronic ineffectiveness of laws adopted to tackle modern slavery and human trafficking.

In relation to enforcement and corporate activity it is crucial that any public bodies tasked with addressing forced labour within supply chains maintains independence from the Government and the Home Office. This includes management of the National Referral Mechanism (NRM), which should be returned to the mandate National Crime Agency (NCA) adequately resourced, and human rights law centralised.

At the international level, the UNGP and international investment agreements set voluntary principles rather than legally binding obligations on corporations, limiting remedies to potential reputational damage if there is strong media coverage of non-observance. To address the ineffectiveness of the international legal framework (i) businesses need to understand them better, (ii) resources could be made available for implementation and (iii) legal enforcement mechanisms should be implemented for non-compliance.

Forced labour import bans are increasingly being implemented via national, regional and international legislative frameworks globally. The establishment of international labour standards linked to market access will have an impact on international trade. This measure could (i) hamper the ability of developing countries to trade, and, therefore, deteriorate their economic standards, causing more poverty and lower wages, and (ii) be subject to complaints being filed in the WTO Dispute Settlement Body due to non-compliance with WTO rules, particularly the principle of non-discrimination.

To address forced labour within global supply chains, different legislative approaches has been adopted globally such as supply chain transparency legislation, human rights due diligence legislation or forced labour import bans. Yet, labour law within the UK has not been utilised as a framework to protect workers from exploitation and abuse, and is subsequently excluded from the ‘package of responses deemed appropriate’ to address modern slavery, including forced labour in supply chains. The Modern Slavery Act 2015 adopts a specific criminal justice approach to a range of exploitative practices deemed under the flexible definition of “modern slavery”. The issue of language is important, as is the choice to adopt a specific criminal law. States adopt criminal laws to address issues when they either cannot or will not tackle the root causes of issues of forced labour, such as structural inequalities and poverty. What is currently omitted from the debate is the recognition that the Act is a central component of both anti-worker and anti-immigrant policies.

The international legal framework for forced labour in supply chains which the UK has adopted is fragmented. It covers non-legally binding instruments (‘soft law’) as well as instruments with legally binding force, drawing upon aspects of international human rights law and international trade law respectively. Although soft law does not create legal obligations, its non-observance can cause moral and/or reputational damage to the UK. For legally binding instruments, particularly under free trade agreements, the UK can be subject to legal disputes if it fails to enforce its labour laws and can have its goods banned if produced in whole or in part by forced labour. This can be seen, for example, in the CARIFORUM-UK Economic Partnership Agreement, UK-Australia Free Trade Agreement, Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP). Corporations are considered ‘non-state actors’, therefore direct obligations under international law cannot apply to them but the emerging consensus is that both existing International Human Rights Law and International Criminal Law impose some obligations on corporations. The international legal framework for corporations and forced labour in supply chains is dispersed and characterised by soft law, therefore facing enforcement issues. The framework covers mainly voluntary principles and guidelines under both International Human Rights Law and International Investment Law. Both the OECD Guidelines for Multinational Enterprises, and the United Nations Guiding Principles on Business and Human Rights cover forced labour. Yet, due to the voluntary nature and lack of legal enforcement they remain ineffective, limited to potential reputational damage if there is strong media coverage of non-observance. Finally, there are new Bilateral Investment Agreement models currently in force with corporate social responsibility, labour standards and/or human rights clauses that have not been signed by the UK, for example, Morocco-Nigeria BIT 2016, and Brazil - United Arab Emirates BIT (2019). The clauses set voluntary principles rather than legally binding obligations on corporations and it remains unclear what the consequences of the provisions are, but if they lack enforcement, they will remain ineffective. So far, forced labour has not been raised in a decided investor-state dispute settlement (ISDS) case.

Independence from the Government and the Home Office is of integral importance in relation to enforcement and corporate activity, including the Independent Anti-Slavery Commissioner. The legal and policy measures adopted will have limited impact given the wider labour market context which is simultaneously facilitating exploitation in numerous ways. This was exemplified by consecutive Conservative governments that have presented modern slavery as an immigration issue and aggravated by the poor level of resources available to the public bodies which may have responsibility in addressing goods linked to forced labour. The National Crime Agency (NCA) previously had oversight of the National Referral Mechanism (NRM), however on 29 April 2019 the Home Office assumed responsibility for all areas of the NRM, including referrals, decision making and data collection. This is part of a wider shift in anti-immigration rhetoric operationalised via approaches to modern slavery and forced labour by the previous Government. This decision must be reversed, with the NCA assuming responsibility for the NRM and its subsequent improvement to address the documented issues including racialised bias within its operation.

The UN Guiding Principles (UNGP) apply to all businesses. Yet, research has demonstrated that small and medium businesses are not aware of the UNGP or their principles are poorly observed, particularly due to lack of resources. This is also applicable to high-tech industries. The UNGP could be more effective if businesses understood them better, if resources were made available for its implementation and if there was legal enforcement for non-compliance.

Forced labour import bans are increasingly being implemented, for example the European Union Forced Labour Regulation adopted in 2024 and will enter into force from 2027. With other examples emerging from Canada added forced labour import bans into existing legislative frameworks in 2022 whilst Mexico introduced a forced labour import ban in 2023. As identified via the Call for Evidence the U.S. was the first to develop legislation that explicitly prohibited the importation of goods made by forced labour into a market. The chronic ineffectiveness of anti-trafficking legislation has been extensively documented, with provisional evidence indicating that forced labour import bans have had positive short-term impacts but the long-term impacts upon both trade and workers remain undetermined and under-researched areas. Although one of the reasons of the enactment of the Uyghur Forced Labor Prevention Act (UFLPA) 2021 was to strengthen the effective enforcement of section 307 of the Tariff Act of 1930 in the US, it exclusively targets a specific region in a specific country, namely the Xinjiang Uyghur Autonomous Region of the People's Republic of China. This Act breaches the WTO most-favoured-nation principle under GATT Article I (1) which prohibits discrimination between trading partners. China can, therefore, file a complaint in the WTO Dispute Settlement Body. The effectiveness of the IFPLA is yet to be determined, as a conclusive answer based upon publicly available evidence on the bans is limited and of low quality. The ‘Prohibiting products made with forced labour on the Union market’ has established international labour standards linked to market access and will, therefore, have an impact on international trade. The measure of banning products made with forced labour from the European Union market could be perceived as an excuse for trade protectionism and a disguised restriction on international trade. This would amount to breach of the WTO non-discrimination principles, and complaints being filed in the WTO Dispute Settlement Body due to non-compliance with WTO rules. This measure could also hamper the ability of developing countries to trade, and, therefore, deteriorate their economic standards, causing more poverty and lower wages.

(Feb 2025)