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Theresa May’s love affair with legislation

Theresa May, the UK Home Secretary, took the quiet summer Parliamentary recess to launch her attack on “modern day slavery”; a tiresome, over-emotive phrase which functions as political speak for human trafficking.  While the contents of her Bill have yet to be released, the press briefings on this proposed legislation promise a number of significant anti-trafficking mechanisms, though information about the actual substance of the proposals is thin.  Firstly, the introduction of trafficking prevention orders, which would function like sexual offence prevention orders, so that an individual convicted of trafficking offences “cannot simply go back to being a gangmaster”.  Secondly, the creation of a Modern Slavery Commissioner, an interesting U-turn as the Government appeared hostile to the idea of a Commissioner, previously arguing that the Inter-Departmental Ministerial Group covered the tasks proposed under such a post and that there were no plans to create this a distinct role.  Such a post would, however, increase UK compliance with the EU Directive on Human Trafficking, a positive step forward.  Thirdly, the harmonisation of existing trafficking offences, which are currently scattered across a number of Acts, into a single piece of legislation. Finally, the Bill has the noble aim to “seek a commitment from companies not to use slave labour”.

Perhaps this Bill is a response to statistics which have shown a rise in the number of victims identified through the National Referral Mechanism since 2010; though caution should be sounded as to whether these figures represent an actual increase in trafficking in the UK or an improvement in identification processes.  Or perhaps, she was responding in anticipation of the Inter-Departmental Ministerial Group on Human Trafficking’s Annual Report about the state of trafficking in the UK.  Either way, proposed legislation seems to contradict the Government’s relatively recent statement, in March 2013, which set out their belief in their “clear strategy, robust legislation, good-quality support for victims, and strong enforcement against offenders, both in country and at the border.” The impetus, just a few months later, for this new legislation is unclear.

These proposals are nothing new, really.  The commitment to challenge companies which use slave labour echoes the Transparency in UK Company Supply Chains (Eradication of Slavery) Bill 2012-13 put forward by Michael Connarty MP in 2012.  Furthermore, the July 2013 Slavery Bill proposed by Peter Bone MP, currently a joint Chair of the All Party Parliamentary Group on Human Trafficking, appears remarkably similar.  While the text of Peter Bone’s Bill is not yet available, the transcript from the launch of the Bill in the House states that the Bill would focus on a nearly identical list of endeavours, for example, the consolidation and simplification of existing legislation and the creation of an Anti-Slavery Commissioner.  The Bill’s next reading is in November.

It appears that the Home Secretary has now decided to launch a consultation process on the Bill.  But rather than put forward a series of proposals and enable NGOs, government agencies, and the public to comment, the process will be run by an MP, Frank Field, of the Human Trafficking Foundation and a member of the Advisory Council to the Centre for Social Justice. The latter organisation will host the evidence sessions. The format of these evidence sessions remains unclear as does the selection process of organisations and individuals giving evidence – if, indeed, NGOs and individuals are able to nominate themselves to give evidence.  It is also unclear whether Mr Field will be bound by either the Code of Practice on Consultations or the Government’s more recent Consultation Principles, which have already been the subject of criticism, for example, by dropping the 12 week minimum consultation period.  The latter set of principles requires that Government:

ensure the consultation captures the full range of stakeholders affected. Information should be disseminated and presented in a way likely to be accessible and useful to the stakeholders with a substantial interest in the subject matter. The choice of the form of consultation will largely depend on the issues under consideration, who needs to be consulted, and the available time and resources.

For those seeking more information on these evidence sessions, a press release on the Centre for Social Justice’s website provides an email address.  Frank Field’s website talks of him “lead(ing) an urgent public debate about practical and effective ways of ending modern slavery in the UK” but with no information on how to get involved.  The Home Office’s own page on the Bill similarly neglects to provide any information on these evidence sessions.  This is woefully bad practice and doesn’t bode well for the substance of the Bill itself.  There is no mention of any equality considerations to ensure fair access to the development of the legislation nor how, or if, NGOs representing children or minority groups will be engaged.

While the Centre has previously authored a report on trafficking, It Happens Here: Equipping the United Kingdom to fight modern slavery, which advocated many of the principles that we now see proposed by Theresa May, there are concerns that this may unduly influence the approach taken by the Centre to the evidence sessions, and particularly, how receptive the Government will be to views that differ from those set out in the report, and in the current proposals.

It is also unclear how this Bill will transfer on a devolved basis (i.e. to address the fact that criminal justice in Scotland and Northern Ireland are matters for their respective Assemblies rather than Westminster).  While primarily this Bill is applicable to England and Wales, there will be some provisions relevant to the UK as a whole.  This has the potential to undermine the uniformity of the approach to this issue.  But, potentially more positively, it may leave Northern Ireland, the only part of the UK with a shared border with another State, with the ability to tailor measures to the specific manifestation of trafficking in that jurisdiction.

As part of the political narrative, the Home Secretary has made much of the need for increasingly harsh sentences for traffickers.  But, as highlighted by Anti-Slavery International, this focus is a red herring.  Its position is that the UK should improve its response to victims, primarily by taking a more robust approach against victim criminalisation, and placing the protection of victims on a statutory footing.  The focus on the criminal justice system within this Bill is potentially a double-edged sword.

For every success, as shown by the recent Operation Imperial, an anti-trafficking police operation on a farm in Wales where it was alleged that men had been the victims of labour exploitation, there is a policy failure.  For example, despite the disproportionately high numbers of trafficked Vietnamese children into the UK, as noted by the Inter-Departmental Ministerial Group’s 2012 report, the Government’s response to the lack of prosecutions for offences against this group falls somewhat short.  The Government claims to “actively support and participate in international efforts to disrupt human trafficking networks that can lead to investigations and prosecutions overseas. The UK will continue to monitor Vietnam [emphasis added]”.  Nothing says robust approach like “monitoring”.

The focus should be targeted interventions in the UK to identify and inhibit the trafficking of Vietnamese children, including appropriate aftercare and in tandem with broader work with the Vietnamese authorities.  This is particularly significant when one considers the fact that these victims are often subsequently criminalised on discovery.

This is not an experience limited to Vietnamese victims.  A report by the Refugee Council and the Children’s Society published in September found that child victims of trafficking in the UK continue to be criminalised and subjected to prison or adult immigration detention, rather than more age and victim appropriate care mechanisms.  There was an identified need to improve the UK’s response to address trafficked children who go missing from state custody, following discovery, and to support trafficked children “with an emphasis on child protection”.  Though this was a short-term, small scale study, it made a number of recommendations including the necessity for increased training across public agencies at both local and national levels.  Importantly, and in conjunction with other organisations working on trafficking in the UK, the report called for implementing existing guidance at a local level and, at a national level, improving “how government departments ensure their policies do not undermine each other” as well as multi-agency working.

These are the points which seem to be sorely lacking from the Home Secretary’s proposed Bill – consideration of the implementation of current policies, guidance and legislation on the ground and the impact this is having on trafficking in the UK.  Churning out yet more legislation is redundant, apart from perhaps political gain. As long as problems with the identification and protection of victims continue, longer prison sentences for traffickers will have little impact.  In the same way, the harmonisation of existing legislation means nothing if there is no consideration of how current laws are being used.  Finally, a good consultation process, which embodies the principles of openness, transparency, accessibility, among others, is vital.

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5 Comments

  1. Kaitlyn P. says:

    Caroline – Thanks for this brilliant article! You have brought up a lot of points I feel no other organisations are voicing at the moment.

  2. […] Theresa May, the UK Home Secretary…[has launched] her attack on “modern day slavery”…a tiresome, over-emotive phrase which functions as political speak for human trafficking…[she] has made much of the need for increasingly harsh sentences for traffickers.  But, as highlighted by Anti-Slavery International, this focus is a red herring.  Its position is that the UK should improve its response to victims, primarily by taking a more robust approach against victim criminalization… […]

  3. […] noted in our post in October, the consultation process for the Bill’s development follows an odd trajectory. Frank […]

  4. […] Theresa May’s love affair with legislation […]

  5. […] dangers of criminalising sex workers and the problems with the much lauded Swedish model.  We also critiqued the consultation process for the UK’s draft Modern Slavery Bill.  In Singapore, we highlighted our concerns about the […]

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