Slavery and access to justice

Shanta Martin

Today marks the International Day for the Abolition of Slavery. On this day in 1949 the United Nations adopted the first legally binding international instrument on human trafficking - the Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others. Yet, 67 years later, there are an estimated 21 million women, men and children struggling in debt bondage, toiling against their will as forced labourers, or enduring the horror of sex trafficking.

The UK is seeing a year on year increase in the number of victims of trafficking being reported to official channels.

It is all too easy in the United Kingdom to think that modern slavery occurs somewhere else, in other countries, but surely not here in England, Scotland, Wales and Northern Ireland. The reality is very different. The UK is seeing a year on year increase in the number of victims of trafficking being reported to official channels. In 2015, the number of potential victims referred to in the National Referral Mechanism was 3,266 – a 40% increase on 2014. But as modern slavery is a “hidden crime”, there are likely many thousands more victims who cannot access the help needed to escape exploitation. Quite simply, far too many slip through the net.

Just six months ago in the first case of its kind, the High Court struck down large parts of the defence of a British company against whom six Lithuanian victims of human trafficking were claiming compensation. These men had made the brave move to escape their exploitation, and ultimately seek the compensation they deserve.

DJ Houghton Catching Services Ltd and the husband and wife team from Kent that ran the business claimed they had never exploited their workers. However, the High Court found there was “no real prospect of successfully defending” most of the claims, and ordered the defendants to immediately pay £100,000 in part payment of what will no doubt be an extremely large compensation bill.

The British company’s defence included the statement that it “did not know” what was meant by the claim that the men were victims of trafficking and “that the assertion that they have been ‘trafficked’, adds nothing to the facts in this case”. Disappointingly, the Gangmasters Licensing Authority, the public body tasked with licensing the Houghton defendants and approving them as “fit and proper” on multiple occasions and which the Lithuanian men accuse of failing in their duties, has pleaded that “the relevance and meaning of the term ‘trafficked’” in the context of this civil claim “is not understood”.

For my clients, such statements are insulting, as they are likely to be to anyone who is familiar with the vulnerability experienced by trafficked women, men and children, and the impact of the constant uncertainty and fear generated by their exploiters. Unfortunately, however, the defendants’ statements are rooted in the failure of the British justice system to provide victims of modern slavery with a specific civil remedy.

One of the persistent demands of front line supporters to victims of modern slavery is that more needs to be done to help survivors to access remedies that would help them get back on their feet. Those who are recognised as victims of trafficking receive a very short 45 day period of state support, after which they are often on their own. Most criminal prosecutions produce no compensation for victims who desperately need the money to rebuild their lives.

Pursuing civil remedies should therefore be an option. However, neither human trafficking nor forced labour are, per se, actionable torts. Victims of modern slavery are unable to bring a civil action based on the crimes detailed in the Modern Slavery Act unless they are able to “fit” the crimes to torts such as negligence or trespass to the person. As the Supreme Court recently found in the case of Taiwo v Olaigbe and another [2016] UKSC 31, which assessed the claims of exploited migrant domestic workers, “remedies under the law of contract or tort do not provide compensation for the humiliation, fear and severe distress which such mistreatment can cause”.

The International Labour Organisation (ILO) estimates that modern slavery generates illegal profits of over £120 billion each year. There can be no doubt that some of those profits are made right here in England. 

In reluctantly finding against the victims, the Supreme Court called on Parliament “to address its mind” to providing greater scope to tribunals to “grant some recompense for the ill-treatment meted out to workers such as these”. The UK missed an important opportunity to do just that when the Modern Slavery Bill was debated and ultimately passed in 2015. Some of Parliament’s key proponents for combatting modern slavery failed to recognise the lacuna that exists in law when it comes to effective remedy.

Clearly, the potential for victims of modern slavery to seek remedy through the UK civil courts is currently unnecessarily restrictive. However, the situation is even worse for victims exploited throughout the supply chains of UK companies. The International Labour Organisation (ILO) estimates that modern slavery generates illegal profits of over £120 billion each year. There can be no doubt that some of those profits are made right here in England. But whereas exploited workers in the supply chains of US businesses are able to pursue civil claims against those companies under American statutes, no equivalent law exists in the UK. 

Seven Cambodian labourers are currently suing four companies that supply American supermarkets, claiming they were trafficked to work under slave-like conditions in a Thai seafood factory that exports to the US. The claims are brought under the US statute known as the Trafficking Victims Protection Act. The Act allows victims to bring a civil action against anyone who knowingly profits from participation in a venture that they knew or should have known involved forced labour or human trafficking.

There is no law in the UK to facilitate victims of slavery to claim against companies that profit from modern slavery.  

There is no law in the UK to facilitate victims of slavery to claim against companies that profit from modern slavery. The only relevant UK legislative provision that directly addresses British business is section 54 of the Modern Slavery Act. That provision requires companies over a certain size to publish a statement of the steps they are taking to eliminate modern slavery from their supply chains. Alternatively they can comply with the legislation by simply publishing a statement that they have taken no steps at all.

To date, the Business and Human Rights Resource Centre has collated 1,063 slavery and human trafficking statements published by British businesses. Appallingly, only 11% of those statements meet the basic legislative requirements of being signed by a director, approved by the company’s board, and published on the company website with a link on the homepage.

It is hoped that the glaring omissions in respect of the availability of civil remedies to victims of modern slavery may soon be addressed in the UK. Earlier this year the United Kingdom ratified the International Labour Organisation 2014 Protocol to the Forced Labour Convention, 1930. The Protocol is important for a number of reasons, not least being that it requires governments to take steps to provide victims with access to effective remedies. The Protocol, which comes into effect for the UK on 22 January 2017, should provide the impetus needed for the Government to legislate in favour of civil remedies for victims of human trafficking and other forms of modern slavery, including in the supply chains of UK businesses.

As governments everywhere commemorate this International Day for the Abolition of Slavery, ensuring the rights of victims to access justice in the UK is surely the least the British government can do. Such a step will not eradicate slavery in one fell swoop. But, it will undoubtedly make the business of abuse far less profitable, and give much needed assistance to the survivors of exploitation to regain the upper hand over their exploiters and ultimately move on with their lives./OD