Identifying forced labour

by | Dec 10, 2012

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Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast|Colin Harvey is Professor of Human Rights Law at the School of Law, Queen’s University Belfast

Following her recent post on the OxHRH Blog,  Gwendolen Morgan returns with a post highlighting the issue of modern day slavery, and the need for the rights of those subject to forced labour, slavery and servitude to be vindicated through law.

By Gwendolen Morgan

Regrettably, the Council of Europe’s Parliamentary Assembly Recommendation remains as relevant now as it did in 2004:

“1. The Parliamentary Assembly is dismayed that slavery continues to exist in Europe in the twenty-first century. Although, officially, slavery was abolished over 150 years ago, thousands of people are still held as slaves in Europe, treated as objects, humiliated and abused. Modern slaves, like their counterparts of old, are forced to work (through mental or physical threat) with no or little financial reward. They are physically constrained or have other limits placed on their freedom of movement and are treated in a degrading and inhumane manner.

2. Today’s slaves are predominantly female and usually work in private households, starting out as migrant domestic workers, au pairs or ‘mail-order brides’. Most have come voluntarily, seeking to improve their situation or escaping poverty and hardship, but some have been deceived by their employers, agencies or other intermediaries, have been debt-bonded and even trafficked. Once working, (or married to a ‘consumer husband’) however, they are vulnerable and isolated. This creates ample opportunity for abusive employers or husbands to force them into domestic slavery.”

Anti-Slavery International estimates that there are thousands of victims of forced labour and servitude in the UK and at least 360,000 in western industrialised countries. There is exploitation across a range of sectors but it is particularly common in domestic work, the care sector, contract cleaning, agriculture, cannabis cultivation and food processing.

The ways in which modern slavery is obscured within the UK are summarised by Adel Abadeer (2004: cited in Craig et al. 2007):

“Modern-day slavery victims are typically very poor, vulnerable and marginalised …they are unaware of the imperfect nature of contract or of transaction terms, the process of enslavement, and they lack viable secondary sources. The perpetrators, in contrast, exploit the incompleteness of contracts or transactions in terms of the significant information gap between them and the victims … and the desperate state of the enslaveables that results from their ignorance, vulnerability and the absence of viable alternatives.”

The 2011 Joseph Rowntree report on forced labour explored the conceptual and practical difficulties in clearly defining forced labour so as to criminalise and prevent its occurrence: ‘It is important to understand forced labour as a process that may start with deception and move into more direct forms of coercion (Anderson and Rogaly). This idea is developed by Skrivankova, who suggests that ‘the reality of forced labour is not a static one, but a continuum of experiences ranging from decent work through minor and major labour law violations, to extreme exploitation in the form of forced labour’.

In CN v. UK, discussed in detail in a previous post, the court helpfully analysed CN’s situation through the prism of the International Labour Organisation’s forced labour indicators, which were all present in her case at various points, although the police had failed to recognise that pattern given the lacuna in the criminal law at that time:

“1. Threats or actual physical harm to the worker.

2. Restriction of movement and confinement to the work place or to a limited area.

3. Debt bondage: where the worker works to pay off a debt or loan, and is not paid for his or her services. The employer may provide food and accommodation at such inflated prices that the worker cannot escape the debt.

4. Withholding of wages or excessive wage reductions, that violate previously made agreements.

5. Retention of passports and identity documents, so that the worker cannot leave, or prove his/her identity and status.

6. Threat of denunciation to the authorities, where the worker is in an irregular immigration status.”

This approach echoes the statement of Lord Tunnicliffe, the Government spokesman who moved the amendment which was to become section 71 Coroners and Justice  Act 2009. He emphasised that the new offence of forced labour, slavery or servitude should not be interpreted restrictively. He explained the Government’s approach as follows:

“The behaviour that the new offence prohibits is holding another person in slavery or servitude or requiring another person to perform forced or compulsory labour where the offender either knew or ought to have known that the person was being held or required to perform labour in such circumstances. Broadly speaking, the offence will require proof of a relationship of coercion between the defendant and the worker, and the circumstances will need to be such that the defendant knew that the arrangement was oppressive and not truly voluntary or had deliberately turned a blind eye to that fact. Precisely what constitutes slavery, servitude and forced or compulsory labour will be determined by the courts using existing case law on Article 4 of the European Convention on Human Rights and Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as it develops. In the vast majority of cases, we do not anticipate any difficulty for the courts in deciding whether the behaviour that they are asked to consider amounts to prohibitive behaviour under the new offence. In addition, we anticipate that sentencing guidelines will include a range of factors which will provide an indication of the relative seriousness of the prohibited behaviour. We would expect these to draw on the types of indicators in the International Labour Organisation’s conventions.”  [Hansard 5 Nov 2009 : Column 400]

Following section 2 Human Rights Act 1998, the police, CPS and courts here will have to take into account Strasbourg jurisprudence which often interprets civil and political rights through a progressive social and labour rights lense, as seen in CN v. UK. One hopes that despite severe funding cuts to specialist NGOs, police taskforces and legal aid representatives, the new section 71 offence will lead to convictions and send a message that modern-day serfs have enforceable rights.

Gwendolen Morgan is an Associate at Bindmans LLP.  She was CN’s solicitor, instructing Helen Law and Helen Mountfield QC from Matrix Chambers.

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