Dr Daniel Ogunniyi & Dr Zahra Shirgholami
Lecturers in Modern Slavery
Wilberforce Institute and the Law School
Following yesterday’s anniversary of the introduction of the Modern Slavery Act in 2015, Drs Daniel Ogunniyi and Zahra Shirgholami reflect on its impact and effectiveness eight years on.
Yesterday marked the eighth anniversary of the Modern Slavery Act (the Act), which gained Royal Assent on 26 March 2015. Adopting the legislation was arguably a watershed moment and a re-enactment of the anti-slavery spirit of the early 1800s, when the UK Parliament adopted the Abolition of the Slave Trade Act (1807), outlawing the British Atlantic slave trade. The abolition of the transatlantic slave trade, however, did not mark the end of slavery. Slavery has since mutated and taken on different complex forms. An estimated 50 million people are trapped in modern slavery today. The Act was, therefore, adopted in response to the growing exploitations in the UK, which were not clearly captured in a comprehensive legislation.
The Act consolidated the existing offences of slavery, servitude, forced or compulsory labour, and trafficking in one piece of legislation. Following its adoption, the National Referral Mechanism (NRM), the national framework through which cases of modern slavery are identified and referred to the support service, was extended to all victims of modern slavery in England and Wales.
Referencing the Act in 2015, Theresa May, then Home Secretary, declared that ‘this landmark legislation sends the strongest possible signal to criminals that if you are involved in this vile trade you will be arrested, you will be prosecuted, and you will be locked up. And it says to victims, you are not alone – we are here to help you’. However, to what extent has the legislation fulfilled its promise? How has it fared in terms of criminal prosecutions and convictions? Have victims obtained justice compared to the pre-Act era?
To implement the Act effectively, the office of the Independent Anti-Slavery Commissioner (IASC) was established, whose mandate is to encourage good practices in the prevention, detection, investigation and prosecution of the offences under the Act, along with the identification of victims. However, there is currently no Independent Anti-Slavery Commissioner in the UK – no appointment has been made since April 2022, when the previous Commissioner, Dame Sara Thornton, completed her term. By failing to appoint a Commissioner, Ministers have been accused of undermining modern slavery protections.
In terms of the victim support mechanism, NRM data from the third quarter of 2022 alone suggest that some 4,586 potential victims of modern slavery were referred to the Home Office, amounting to a ten percent increase compared to the preceding quarter in 2021. The figures from the third quarter of 2022 represent the highest number of referrals recorded since the NRM began in 2009. This may be evidence of better awareness of modern slavery among first-responder organisations or illustrate that the number of cases has risen within the UK. Considering the broader issue with the dysfunctionality of the NRM system, as noted by Dame Sara Thornton, the latter is likely to be the case.
Some successes have, nonetheless, been recorded, particularly in the criminal justice domain. For instance, in August 2021, some 3,335 trafficking investigations were conducted compared with 1,845 in June 2020. Also, 332 traffickers were convicted in 2021 compared to 197 in 2020. These relate to trafficking offences alone. Again, these may not necessarily suggest the efficacy of the Act in tackling crime, as the NRM data has shown an increase in the number of victims over time.
Since 2015, multiple reviews of the law have also been done, which focused on two overlapping issues of victim protection and enforcement. In 2016, the then Home Secretary commissioned Caroline Haughey’s independent review of the Act, which found pockets of good practices but raised significant concerns regarding the policing and broader enforcement response. For instance, the training of police officers, investigators and prosecutors was patchy and sometimes non-existent. The quality and quantity of intelligence about the nature and scale of modern slavery were inadequate, hindering the operational response. Such shortcomings triggered the government to set up the task force on modern slavery in September 2016 to coordinate policy and operational responses. Nonetheless, the police service inspection conducted by HMICFRS in 2017 concluded that while legislation against modern slavery has been strengthened, no concerted overall response from the police service has been provoked.
Further, Section 54 of the Act, the transparency clause, requires businesses with over £36 million turnover per year to produce an annual statement for each financial year on what steps (if any) they have taken to address modern slavery within their operation, including their supply chains. The transparency clause, intended to eliminate exploitative work within supply chains, is based on the idea of naming and shaming. It highlights the role of the consumer in pressuring companies to address modern slavery risks in their supply chains. However, the value of this approach is contentious. For example, a recent study has shown that consumers could either be largely apathetic and indifferent to others’ work conditions, unaware of the Act, or do not know how they could play a part in it.
The transparency clause in the Act did move the policy response from being entirely criminal justice-based to one shared between criminal justice and corporate responsibility. Still, a robust compliance mechanism, as noted by Broad and Turnbull (2019), rather than maintaining a light-touch business approach, is needed.
The government’s action to outlaw modern slavery is further questionable, considering the creation of what could be deemed a hostile environment towards migrants in mechanisms such as the Immigration Act 2014 and 2016. Migrant workers are continually marginalised and excluded from support in government strategies. The great concern is whether the government will shift its focus from creating a hostile environment for (undocumented) migrant workers to implementing strategies that can address all forms of labour exploitation. Until this happens, modern slavery will be used as a mask to reinforce an anti-immigration agenda, overlooking broader issues of modern slavery beyond cross-border trafficking and the growth of a hyper-flexible labour market.
Ineffective regulation and minimal political will to enforce the existing laws limit the extent to which labour exploitation and modern slavery can be addressed. As the National Audit Office commented, unless the government establishes effective oversight of modern slavery, it could not tackle modern slavery or demonstrate it is achieving value for the resources being used. It is worth noting that, in May 2022, the government announced plans for a new modern slavery bill to strengthen ‘the protection and support for victims of human trafficking and modern slavery and to increase accountability of companies and other organisations to drive out modern slavery from their supply chains.’ It remains to be seen whether the new bill would consider the numerous academic and non-academic critiques to fit its purpose and accomplish its goal.