On 6 August 2012, Cat Reilly lost her challenge to the Work Academy Scheme, an initiative by the Department for Work and Pensions in the UK, which required those claiming Job Seekers Allowance (an unemployment benefit) to work, unpaid, for participating companies – in this case, a discount store. The judge found that mistakes had been made in notifying Reilly about the requirements of the Work Academy Scheme in such a way that she did not appreciate the scheme (and working for Poundland) was optional. While the case was emblematic of the debate in the UK about the breadth of state support for the unemployed, what made this case interesting for our purposes was the appellant’s claim that the scheme violated her rights under the European Convention on Human Rights (ECHR), namely Article 4, the prohibition of slavery and forced labour.
The judge in Reilly stated that:
The Convention is, of course, a living instrument, capable of development to meet modern conditions, and views may reasonably differ about the merits of a scheme that requires individuals to “work for their benefits” as a means of assisting them back into the workplace. However, characterising such a scheme as involving or being analogous to “slavery” or “forced labour” seems to me to be a long way from contemporary thinking.
A principle reflected in the Secretary of State for Work and Pensions’ subsequent comments on the case: “We are delighted, although not surprised, that the Judge agrees our schemes are not forced labour. Comparing our initiatives to slave labour is not only ridiculous but insulting to people around the world facing real oppression.”
However, preceding the judge’s comment above was the following interpretation of Article 4: “…it does have to be said that the SBWA scheme [Work Academy Scheme] …. (is) a very long way removed from the kind of colonial exploitation of labour that led to the formulation of Article 4.” [Emphasis added.]
This case highlights the imperfect and awkward nature of Article 4 as well as the difficulties faced by both the European and domestic courts on the articulation of trafficking and forced labour within the ECHR framework. There have been two key cases which form the basis of the jurisprudence that are worth highlighting.
Siliadin v. France, a 2005 case at the European Court concerned a young Togolese girl who travelled to France to study but was forced to become a domestic worker. She worked without pay for 15 hours a day, without a day off. While the Court found that Siliadin had been held in servitude, the judgment was more concerned with the failure of the criminal law to provide her with sufficient protection. It also failed to examine the positive obligations on the state.
Indicative of the Court’s rigid thinking can be found at para 122:
…according to the 1927 Slavery Convention, “slavery is the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised”. It notes that this definition corresponds to the “classic” meaning of slavery as it was practised for centuries. Although the applicant was, in the instant case, clearly deprived of her personal autonomy, the evidence does not suggest that she was held in slavery in the proper sense, in other words that Mr and Mrs B. exercised a genuine right of legal ownership over her, thus reducing her to the status of an “object”.
As Stoyanova comments:
If slavery is interpreted as exercise of ‘powers attaching to the right of ownership’ as it is actually stipulated in the 1926 Slavery Convention, then the following questions arise: When are powers attaching to the right of ownership exercised, is it enough for a case to be qualified as slavery’, when an individual has become an object of purchase, exchange or transfer without involvement of physical abuses, and does the exercise of ‘powers attaching to the right of ownership’ always imply more severe abuses in contrast to forced labour?
The second case is Rantsev v Cyprus and Russia, decided in 2010. This case was brought by the father of a Russian woman Oxana Rantseva, who was trafficked to Cyprus for sexual exploitation and found dead after escaping her captors and then being handed back to them by the police. The applicant’s Cyprus complaint focused on Articles 2, 3, 4, 5 and 8 of the Convention – the lack of sufficient investigation Ms Rantsev’s death; the lack of protection afforded to her by the police prior to her death and the failure of the Cypriot authorities to punish those responsible for Ms Rantsev’s death as well as the lack of access to the judicial process in Cyprus. The complaint relating to Russia centred on Articles 2 and 4 and concerned the failure to protect Ms Rantsev from the risk of trafficking and to investigate her trafficking case itself.
The approach taken by the Court was problematic in that it had not defined forced labour as it functions in the 21st Century and instead relied on the definition in ILO Convention No. 29 from 1930; equally, the definition of slavery was based on that of the 1926 Slavery Convention.
The Rantsev judgment is extensive but the key highlight was an emphasis on the flexibility of the Convention:
275. Finally, the Court emphasises that the object and purpose of the Convention, as an instrument for the protection of individual human beings, requires that its provisions be interpreted and applied so as to make its safeguards practical and …
277. The absence of an express reference to trafficking in the Convention is unsurprising. The Convention was inspired by the Universal Declaration of Human Rights, proclaimed by the General Assembly of the United Nations in 1948, which itself made no express mention of trafficking. In its Article 4, the Declaration prohibited “slavery and the slave trade in all their forms”. However, in assessing the scope of Article 4 of the Convention, sight should not be lost of the Convention’s special features or of the fact that it is a living instrument which must be interpreted in the light of present-day conditions. The increasingly high standards required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably require greater firmness in assessing breaches of the fundamental values of democratic societies …
The Court noted the increase in trafficking in Europe (para 277), made reference to the jurisprudence of the International Criminal Tribune for the former Yugoslavia, which emphasised the fact trafficking fell within Article 4 (para 280-282) and, most significantly, emphasised the positive obligations on a state with regard to the treatment of victims (paras 284-289).
While there are cases pending (Kawogo v UK, App No 56921/09 and C.N. v UK, App No 4239/08) before the Court, it is interesting to note that Article 4 has only relatively recently been invoked considering its non-derogable nature, which means that this right cannot be limited. Similarly, its jus cogens nature, meaning it is considered a fundamental norm of international law that applies to all states and the establishment of the 2005 Council of Europe Convention on Action against Trafficking in Human Beings meant to address exploitation of the type manifest in slavery and servitude.
As for the case of Cat Reilly and the judge’s interpretation of Article 4, while we would agree that the Convention is flexible, the reference to the “kind of colonial exploitation of labour that led to the formulation of Article 4” shows how restrictive its application can be. As noted above, Article 4 finds its roots in the Slavery Convention, but the jurisprudence of the Court has moved beyond this interpretation. There is the recognition that modern slavery, while exhibiting some shared characteristics with “historic” slavery, is different. In this respect, a consideration of the roots of Article 4 is not really relevant. Our concern here is that the reiteration of the traditional and historic understanding of slavery undermines the applicability of the Convention to contemporary trafficking cases. Rather, there may have been merit in emphasising the hallmarks of trafficking and forced labour in the UK, which would fall within the parameters of Article 4, and then compare this with the experiences of Cat Reilly. Perhaps, and we are unfamiliar with the judge, he has not previously encountered either this kind of case or been trained in anti-trafficking and associated issues. While he may have been correct to find that her experience was not a violation of Article 4, there would equally be merit in showing how this is the top end of the slippery slope.
In this respect, there is merit recognising the impact of the Coroners and Justice Act 2009, which, following work by the NGOs Liberty and Anti-Slavery International, now includes Section 71 which allows for the recognition of a range of experiences of exploitation.
However, another issue for consideration in this context is the professionalization of exploited labour. As the recent FoxConn case in China showed, when the manufacturer was accused of exploiting vocational students in the construction of iPhones, the line between work experience and exploitation can be a thin one. Is the bright middle class intern at the advertising agency, working a 40 hour week for travel expenses, a victim of exploited labour and therefore covered by Article 4? We leave this open for debate in another post.
Should Cat Reilly have used Article 4? By doing so, for a situation which is relatively far from both contemporary and historic understandings of slavery/forced labour, has she undermined this provision? While two weeks experience of shelf stacking in Poundland may well have been irrelevant to Cat Reilly’s career plans, and may have had an element of duplicity contained with it (she was told the experience would lead to an interview that never materialised), it is very different from the bulk of the experiences of victims of forced labour and trafficking in the UK. Section 71 of the Coroners and Justice Act is a recognition of this principle. The European Convention is a fluid instrument but an absence of training and awareness raising of its applicability and use is a weak spot. Article 4 needs to increase its flexibility – but this increase can only come through the Court and its jurisprudence.