This week we welcome a guest post by Mike Dottridge. The author was the director of Anti-Slavery International between 1996 and 2002. For the past decade he has worked independently as a consultant on human rights and child rights issues. In 2002 Mike was one of the experts invited by the UN High Commissioner for Human Rights to help prepare a set of Recommended Principles and Guidelines on Human Rights and Human Trafficking(issued by the High Commissioner in May 2002). He is the author of numerous publications on issues linked to exploitation and trafficking, including a UNICEF reference guide on child trafficking.
It was in August 2013, when UK Home Secretary Theresa May announced that she intended to present a Bill on ‘modern slavery’, that Britain once again began invoking the memory of William Wilberforce and the 200-year old campaign against slavery in its efforts to combat human trafficking. Caroline Parkes has already pointed out weaknesses in the provisions of the draft Bill published last December.
So what are the reasons for and against using the term ‘modern slavery’ to describe the patterns of exploitation occurring in the UK today that many British MPs and other people think should be illegal?
For several decades, just a minority of the activists who were working against the various forms of exploitation occurring in today’s world argued that the term ‘slavery’ was the most appropriate term to describe them. The trend towards this usage has been strongest in the United States. Prominent among these activists is Professor Kevin Bales, author of reports claiming that almost 30 million people are being subjected to slavery today. Nevertheless, when the United Nations General Assembly adopted new international law on the issue in 2000, it decided to refer to ‘trafficking in persons’ (i.e., human trafficking), with slavery as only one of the types of exploitation regarded as the purposes for which people were trafficked (the other purposes are: practices similar to slavery, servitude, forced labour or services, the exploitation of the prostitution of others or other forms of sexual exploitation, and the removal of organs). Following the UN’s lead, the European Union adopted several instruments on the topic of trafficking in human beings (a Framework Decision in 2002 and a Directive in 2011).
The UN had gone through a set of discussions about terminology in the 1980s when one of the least important parts of the UN’s human rights machinery (which did not consider ongoing patterns of exploitation to deserve much attention), the Working Group on Slavery (of the Sub-Commission on Prevention of Discrimination and Protection of Minorities), was renamed the Working Group on Contemporary Forms of Slavery, on the grounds that its previous title gave the impression that the working group was concerned with cases of historical slavery rather than violations of human rights occurring in the modern world. In the UN and elsewhere, there were plenty of complaints that the term ‘contemporary forms of slavery’ created almost as much confusion as before, especially when the UN human rights specialists involved started hearing evidence about problems as diverse as apartheid and incest.
While the term ‘human trafficking’ was regarded by many, both before and after the year 2000, as being concerned principally about women and girls who were forced into prostitution, other activists who were trying to get more attention for different sorts of unacceptable exploitation occurring in Europe started referring to it as ‘modern slavery’. For example, at the time of the 150th anniversary of France’s abolition of slavery (1848-1998), a Committee against Modern Slavery (Comité contre l’esclavage moderne) was set up in France to work for the release of domestic workers being held in captivity in Paris and other cities.
However, the patterns of exploitation being detected in the UK and elsewhere in the industrialised world rarely involve the slavery or the slave trade that were the targets of abolitionist efforts in the 19th Century. These involved State-approved systems that allowed human beings to be sold as commodities and permitted the ill treatment of slaves on the grounds that they had no rights (or far fewer) than citizens of the society concerned. Indeed, most cases reported today would not even constitute ‘involuntary servitude’ as it is interpreted by U.S. law (for the use of this term in the U.S. was at the origin of the ban on ‘servitude’ introduced in the Universal Declaration of Human Rights in 1948), though it has come to be used in France, the UK and other countries to refer to cases in which migrant domestic workers are subjected to forced labour.
Cases in Europe today do sometimes involve holding people against their will and threatening them with severe penalties if they quit their work. However, the abusive constraints placed on people are routinely less tangible than in cases of slavery or servitude. For instance, holding on to a person’s passport or identity papers, requiring them to work off a debt, or exploiting children whose young age or unfamiliarity with their environment means they are entirely dependent on the adults who control them and are bound to do as they are told. Cases such as these are not generally regarded as ‘slavery’. Courts in Belgium, France and other European countries have recognised that sub-human working or living conditions also constitute an element of criminal exploitation. For example, some labour contractors who provide cheap labour to farmers or other employers reportedly house migrant workers in horrendous conditions or provide unsafe transport to work sites. British law has not yet recognised that these elements are part and parcel of the contemporary crime of exploiting people.
Invoking the power of the word ‘slavery’, conjuring up the horrors of the past, is well and good for campaigners, but is it the right course for governments and the statute book? After all, slavery is something to be abolished or eradicated, using the hard edge of the law (law enforcement and the courts), not a problem that would require a wide range of preventive measures, including regulation and worker empowerment.
France finally adopted a new law last August in response to domestic campaigns and several critical judgments by the European Court of Human Rights concerning the State’s failure to punish the employers of domestic servants held in captivity (Siliadin versus France, 2006; and C.N. et V. versus France, 2012). Noticeably, the criminal code, revised by Law No. 2013-711 dated 5 August 2013, stuck to conventional terminology, introducing an offence of ‘reducing a person to slavery and treating them as property’ (La réduction en esclavage est le fait d’exercer à l’encontre d’une personne l’un des attributs du droit de propriété), punishable by 20 years’ imprisonment. Meanwhile, subjecting a person to servitude became punishable by a prison term of 10 years; subjecting them to forced labour to a term of seven years. French law also defines offences involving the exploitation of the prostitution of others (pimping and the exploitation of begging by others). The exploitation of begging by others, by a beggar master or controller who takes some or all of the donations to a child or adult beggar, is not adequately addressed by UK laws, though it is the subject of an explicit comment in the European Union’s 2011 Directive, which specifies that ‘forced begging should be understood as a form of forced labour or services as defined in the 1930 ILO Convention No 29 concerning Forced or Compulsory Labour’.
Apart from questions of legal terminology, however, the use of the term ‘modern slavery’ has potentially damaging consequences for the very people whom a new law is supposed to protect. The prime problem is that the term implies a degree of exploitation that is so extreme as to fall outside the ordinary world of work. It also implies that such exploitation cannot be solved by any of the techniques that have been traditionally used to combat work place abuse, such as regulation, work place inspections and the formation by workers of associations to defend themselves against abuse (and trade unions). While some cases of exploitation recorded in recent years have involved extreme forms of abuse, the criminal law needs to address other forms of exploitation more adequately. Punitive law also requires a range of complementary prevention measures to stop exploitation from growing, such as those that make domestic workers, care workers, agricultural workers, sex workers and a host of others eminently exploitable in the UK today (usually migrants who either do not speak English or do not know how to assert their rights). Appropriate measures include regulation by statutory agencies (such as the Gangmasters Licencing Agency) of all sectors of activity where abuse has been reported, the provision of adequate information to migrant workers about their rights, and the encouragement of migrant workers to form organisations to defend their rights and to seek public support if labour contractors or employers (or criminals) oppose them.
Evidently, for governments that are committed ideologically to reducing the level of regulation of business, which dislike trade unions, and whose rhetoric is routinely hostile to migrant workers, using the term ‘slavery’ has a certain attraction. The term enables politicians to invoke the saintly memory of 19th Century abolitionists while doing little to enable the workers who are most in danger of extreme forms of exploitation to exercise their human rights.
Whatever the terms used for describing the types of exploitation that we want to ban, let us be aware that cases of slavery, human trafficking, servitude or forced labour that occur in the UK mostly represent the extreme end of a spectrum of abuses of workers’ rights. Consequently, criminal justice reforms to punish these offences must be balanced by preventive measures to uphold the rights of workers at risk of becoming victims of such crimes, along with statutory protection for the victims.
Of course, there is an alternative approach that involves formally reinterpreting international law on slavery so that it applies more directly to cases the occur today, in which criminals wield absolute power over people without buying or selling them. This has been argued forcibly by a law professor at Queen’s University in Northern Ireland, Dr Jean Allain, who launched in 2010 what are now known as the Bellagio-Harvard Guidelines on the Legal Parameters of Slavery. Such initiatives certainly deserve support. However, reforms of international law take a long time to bring about. In the meantime, the UK needs laws that are fit for purpose and which will make it more likely that crimes involving exploitation diminish and that the people who are exploited get better access to protection and assistance.