Written evidence submitted by the Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull

1) This written submission to the Parliamentary Joint Committee on the draft Modern Slavery Bill will concentrate on three particular issues – The Anti-Slavery Commissioner, matters of devolved government and statutory obligations upon businesses regarding responsibility for acting against slavery and human trafficking.

2) The Wilberforce Institute for the Study of Slavery and Emancipation, University of Hull welcomes this opportunity to contribute to the Government’s work on the drafting of a Modern Slavery Act for the United Kingdom. We recognise the current efforts as part of the long struggle for the eradication of slavery and the slave trade and hope the current plans are able to make a positive contribution.  We further recognise our contribution as part of the prominent role the City of Hull has played in supporting the end of the slave trade and the eradication of slavery, as demonstrated by the early efforts of David Hartley, MP to the legacy of William Wilberforce, MP.  The draft Modern Slavery Bill was a welcomed development.  At the same time the overall thrust of the approach taken does not appear to be the most effective way for dealing with slavery and human trafficking.  The draft Bill concentrates primarily on the criminal justice matters and does not adequately engage with statutory protection for victims or the necessity of setting out statutory obligations for the variety of public services who will be on the front line of identifying instances of slavery and trafficking and supporting victims.  In the White Paper accompanying the draft Bill it is indicated that the Government wishes to have a short piece of legislation first that sets out the necessary foundations, and then develop the overall framework through further legislation and policy.  This is a sensible approach, but it also means the foundational legislation has to provide an appropriate foundation for ensuring effective action after its passage.  The Government needs to seriously consider the report from the first round of evidence gathering, Establishing Britain as a World Leader in the Fight against Slavery: Report of the Modern Slavery Bill Evidence Review (hereinafter the Evidence Review).[1]

3) Central to ensuring the legislation is built upon a strong foundation is the role of the Anti-Slavery Commissioner.  It is commendable this has been included in legislation but the proposed legislative framework does not give suitable independence to the Commissioner and therefore limits the role’s activities.  In the proposed legislation the general function of the Commissioner is to ‘encourage good practice in the prevention, detection, investigation and prosecution’ of the Part I offences (section 31 (1)).   This is a suitable indication of the general function but there are concerns about the wide range of limitations that then follow in the Bill.  Due to the jurisdictional limits of the Bill the Commissioner can only make recommendations to public authorities in England and Wales (section 31 (2) b).  We will discuss the impact of devolution below further, but regardless of the current state devolved matters, the Commissioner should be a Commissioner for the whole UK, not just England and Wales.  There is substantial evidence that shows the similar situation whereby the four Children’s’ Commissioners that came about from the Children Act 2004 have led to different levels of action and impact.  One the one hand this can be welcome as the various nations can create and develop their own institution for their own needs.  At the same time for issues such as slavery and human trafficking a true national approach is needed to ensure all victims receive protection, that levels of protection are commensurate, that all police and public authorities act in a similar way and that all front line services have access to same levels of training and information.  It may be possible that each nation of the UK can appoint its own commissioner for dealing with slavery and human trafficking, but a single Anti-Slavery Commissioner for the UK is crucial.

4) In the draft Bill there are too many circumstances where the Commissioner is obliged to act only on the permission of the Home Secretary.  The Evidence Review called for a Commissioner that is independent and ‘equipped with the appropriate powers of inquiry, of entry, and of information-gathering’ in order to make ‘a tangible impact on the UK’s knowledge and understanding of this crime and its impact on victims.’  The Evidence Review suggests the Commissioner can be accountable but also be able to act as a ‘bridge between civil society and Government.’ P. 20  This has not been taken into account in the Draft Bill as the Commissioner is limited to reporting on ‘permitted matter(s)’, matters which the Home Secretary has approved (section 31 (3)).  Further any plans or reports by the Commissioner are going to be vetted and approved by the Home Secretary which includes information being removed if the Home Secretary believes it:

(a) is undesirable for reasons of national security,

(b) might jeopardise an individual’s safety, or

(c) might prejudice the investigation or prosecution of an offence. (section 31 (5) and section 32 (7)).

Furthermore section 34 sets out further restrictions on the exercise of the Commissioner’s functions preventing the office from acting in relation to

(a) a particular offence;

(b) the initiation or conduct of a particular investigation or particular proceedings;

(c) anything done or omitted to be done by a person acting in a judicial capacity or on the instructions of or on behalf of such a person.

Essentially the proposed Commissioner will only be a part of the Home Secretary’s political office, and is wholly lacking any element of independence which is necessary for a role of this nature. 

5) The White Paper’s discussion of the Commissioner highlights the Bill’s emphasis on criminal justice matters.  The Commissioner is described as ‘a senior figure dedicated to the UK’s fight against modern slavery’, one that can galvanise law enforcement’s efforts to tackle modern slavery, and that the role will ‘focus on strengthening law enforcement efforts in the UK’.[2]   This differs dramatically from the Evidence Review led by Frank Field where there is the call for an independent Commissioner that is able to give voice to the concerns and best interests of victims and be able ‘to provide independent scrutiny of Government policies and laws and the activities by statutory and non-statutory agencies that directly or indirectly impact on efforts to eradicate modern slavery.’[3] The Evidence Review further provides the Commissioner should have a range of responsibilities including:[4]

• The power to make recommendations to regulatory bodies to bring about improvements policy and practice;
• The statutory power to request data and information from all relevant government bodies and NGOs;
• The power to hold all relevant agencies to account in cases of non-compliance with policies and laws;
• The power to launch inquiries, enter premises and to investigate the actions of agencies tasked with combating modern slavery;
• The power to conduct regular audits of shelters and support services dealing with victims, including the development of minimum standards for shelters;
• The power to look at all aspects of domestic law and policy connected to the global fight against modern slavery, including aid, trade and diplomacy;
• The ability to work with other national institutions dealing with slavery and modern trafficking;
• The authority to work with the National Crime Agency and international partners on bi-lateral law enforcement and prevention measures;
• The power to undertake independent research and inquiries to monitor and identify trends in modern slavery, including the gathering of data;
• The ability to engage with NGOs to allow for the development of more effective information and intelligence sharing;
• The authority to review a statutory code of practice on businesses for combating slavery;
• The ability to oversee and standardise training materials used to train frontline professionals.

The role envisaged by the Evidence Review for the Anti-Slavery Commissioner differs dramatically from the role set out in the Draft Bill.  The Government needs to give much greater attention to the various powers and responsibilities set out above if the Commissioner is going to make an effective contribution to the UK’s efforts to eradicate slavery and human trafficking.  Perhaps more importantly the Evidence Review provides statements from victims who believed a Commissioner could give voice to and significantly support victims.  The Commissioner needs to be independent of any Government office, being able to support the wide range of government and non-governmental agencies involved while also being able to provide scrutiny and accountability of the Government.  It needs to be multi-faceted role that not just scrutinises and reports on what the Home Secretary wishes, but also supports and spreads good practice across all levels of government and society.

6) The particular importance for an empowered Anti-Slavery Commissioner is having the ability to engage with issue of modern slavery and human trafficking across the UK.  It is recognised that criminal justice matters are devolved areas of responsibility for Northern Ireland and Scotland.  However, this should not stop the government from legislating for the whole state on elements beyond the criminal justice issues.  However, the Draft Bill White Paper only says that the Government will work with the devolved administrations.  This is a particular concern for the efforts in Scotland are being pursued through a private members bill which may take a considerable amount of time to be passed and the current proposals only appear to focus on human trafficking. It is stated above that there are concerns with the Bill’s overall focus on criminal justice issues.  This has had a knock on impact with the devolved governments having responsibility for criminal justice.  If the current Bill passes without the devolved administrations bringing about similar legislation, matters such as the prevention and risk orders will be useless as individuals subject to these orders can merely move to a jurisdiction not covered by the Bill.  By at least creating the Anti-Slavery Commissioner to have authority to engage with all parts of the UK, some of these shortcomings can be avoided.  Also the Government needs to remember that its international obligations regarding slavery and human trafficking apply to the UK as a whole and no state can use its internal constitutional structures as a reason for not complying with relevant obligations.  Combating slavery and human trafficking is recognised as a global issue, which means the UK as a whole needs to have an organised response applicable across the UK.

7) The Evidence Review provided a substantial discussion on the role and responsibility of businesses for acting to eradicate slavery and human trafficking.  The responsibility of businesses for human rights matters is an area of growing recognition and continued controversy.  The United Nations Global Compact and the United Nation Guiding Principles on Business and Human Rights make clear that due to their particular place in society, businesses do share in the responsibility for ensuring the effective promotion and protection of human rights.  The responsibilities upon business are different from those upon governments, but in the context of modern slavery it is clear that there is considerable amount of action that can be taken by businesses in supporting the eradication of slavery.  In particular businesses can take action to ensure their activities do not have an adverse impact on human rights and to address the matter when such impacts occur. The idea of having businesses report on the efforts they are undertaking to ensure their activities and supply chains are not contributing or supporting the continuation of slavery is a key area for an effective contribution to the eradication of slavery.  There already exists a model in California (California Transparency in Supply Chains Act of 2010) and a proposed Bill has previously been introduced to Parliament (Transparency in UK Company Supply Chains (Eradication of Slavery) Bill 2012-13).  These provide the essential elements for moving forward in this area.  What is needed is to ensure that businesses not only report on what they are doing to eliminate slavery from their activities and supply chains, but also to report on what efforts are being taken to ensure slavery does not occur and when it is identified, what is being done about it.  In this regard much can be taken from the OECD’s Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas,[5] which contains a wide range of general points of principle and practice that can be applied to supply chains and slavery. Such measures may appear to be over regulatory but they need not be.  If the reporting measures were one of the responsibilities for the Anti-Slavery Commissioner this would work to create constructive engagement between government, business and concerned NGOs.  This constructive engagement would support the efforts of businesses and help to inform consumers about the products they purchase. While there has been significant attention on the role of businesses in the protection of human rights, a statutory obligation for reporting and engagement would help to move the matter on to the next stages with businesses becoming an active part of the efforts for eradication.

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