Instances of forced labour and human trafficking for the purpose of labour exploitation have been found in a wide range of economic sectors in the UK, including agriculture, food processing, construction, block paving, fishing, manufacturing, car washes, and domestic work.
According to the National Crime Agency, 2,340 potential victims of human trafficking were encountered by the National Referral Mechanism in the UK in 2014, one third of whom had been referred as potential victims of labour exploitation. The majority of the victims of trafficking identified in the UK in recent years have been foreign nationals. Prominent countries of origin of victims of trafficking include Albania, Nigeria, Vietnam, Romania, Slovakia, China and Poland. Cases involving highly vulnerable British men, who were subjected to forced labour within the UK or trafficked to other European countries, have also been reported.
The legal concept of ‘modern slavery’ in the UK
On July 31, 2015, the Modern Slavery Act (MSA 2015) entered into force in England and Wales. The Act introduced the legal concept of ‘modern slavery’, an umbrella term encompassing:
a) Slavery, servitude and forced or compulsory labour: defined by reference to Article 4 of the European Convention on Human Rights.
b) Human trafficking: defined as arranging or facilitating the travel of another person with a view to that person being exploited.
- Arranging or facilitating the travel: a person may in particular arrange or facilitate the travel of another person by recruiting, transporting, transferring, harbouring or receiving a person, or transferring or exchanging control over a person.
- With a view to that person being exploited: with the intention to exploit that person, or in the knowledge —or if the defendant should have known—that a third party is likely to exploit that person.
- Exploitation is defined as encompassing slavery, servitude and forced or compulsory labour; sexual exploitation, the removal of organs, securing services by force, threats or deception, and securing services from children and vulnerable persons.
Importantly, the definition of human trafficking under the MSA 2015 requires that the victim has travelled in to exploitation, and for that travel to have been arranged or facilitated by the perpetrator. This is not a requirement of the international definition of human trafficking, and means that the offence of human trafficking in the UK is narrower than in many other countries.
While the new anti-trafficking law in Northern Ireland follows a similar definition, the recently adopted Scottish Human Trafficking and Exploitation Act contains a significantly broader definition of human trafficking: the Scottish law does not require an element of movement or travel, nor does it require the presence of specific ‘means’. The acts of recruiting, transporting, harbouring or transferring control over another person, as well as the facilitation of these acts, constitute a human trafficking offence in Scotland, when committed with the purpose of exploitation.
The Modern Slavery Act criminalises holding another person in slavery or servitude and requiring another person to perform forced or compulsory labour, and clarifies that the appearance of, or actual, consent of a worker to exploitative work is irrelevant where the worker is being held in forced labour, slavery or servitude. The Act also introduces a single offence of human trafficking covering both sexual and non-sexual exploitation.
Both offences may be penalized with up to life imprisonment. Committing an offence with the intent to commit a human trafficking offence —including an offence committed by aiding, abetting, counselling or procuring a human trafficking offence— is punishable with up to 10 years of imprisonment. The Act also contains provisions empowering the courts to issue slavery and trafficking prevention orders placing prohibitions or limitations on individuals who have been convicted of, or are alleged to have been involved in, a slavery or trafficking offence. It also requires the court to consider making slavery and trafficking reparation orders that require the offender to pay compensation to the victim.
The Act has some extraterritorial application for human trafficking offences, providing that UK nationals will be liable under the Act irrespective of where the act takes place, while non-UK citizens will be liable if any part of the arranging or facilitating takes place in the UK, or the travel consists of arrival in or entry into, departure from, or travel within, the UK.
There is no explicit indication in the Act as to whether it creates criminal liability for corporate entities. However the Government has suggested that the offences under the Act can be committed by companies, applying the “usual principles of corporate criminal liability”. This requires proving the necessary intention on the part of one or more senior natural person(s) who is/are the “controlling mind” of the corporate entity. Corporate bodies may also suffer the confiscation of the proceeds of these crimes.
The Northern Irish and Scottish laws are more robust on this point: both legal instruments provide that UK nationals, but also companies incorporated under UK law, will be liable under the Act regardless of where the relevant action took place. This aspect is key, as it provides the basis for the accountability of corporations registered in any part of the UK for human trafficking offences committed abroad.
Encorcement of labour standards
Labour legislation in the UK provides numerous rights and protections for workers, such as: health and safety requirements, a national minimum wage, maximum working hours, the right to a written statement of working conditions, the right not to have unauthorised deductions of their wages, and to bring claims in the Employment Tribunal. However, access to employment tribunals is restricted to workers with the right to work in the UK, and is further limited by the imposition of fees. Undocumented workers are limited in their ability to enforce labour rights, and able to only make claims based on discrimination or health and safety, leaving them few options for recourse when their pay is withheld or unfairly deducted.
Moreover, the partial and uneven enforcement of these laws and regulations leaves many workers vulnerable to abuse. This is in part due to the fact that the UK does not have a comprehensive labour inspection system across the labour market. In the UK, the key role of the labour inspectorate is divided between four different entities: the Health and Safety Executive, the Employment Agencies Standards Inspectorate, Her Majesty’s Revenue and Customs (HMRC) National Minimum Wage inspection teams, and the Gangmaster’s Licensing Authority.
The Gangmasters Licensing Authority (GLA) regulates the supply of workers to the agricultural, forestry, horticultural, shellfish gathering, food processing and packaging industries by setting up and operating a licensing scheme for labour providers across the UK. The GLA has the power to issue licenses, monitor compliance with the Gangmasters Licensing Conditions, and revoke licences for non-compliance. Moreover, under the Gangmasters (Licensing) Act 2004, being or using an unlicensed gangmaster is a criminal offence. The GLA has successfully uncovered cases of forced labour in the UK, however it is restricted by its small remit and resources.
Transparency in supply chains
The Companies Act 2006 requires the directors of a company —except those falling within the small companies exemption— to prepare a strategic report for each financial year. Quoted companies must include, amongst other things, information about the company’s employees and social, community and human rights issues in their strategic report. This includes information about the company’s policies in relation to these issues. The purpose of the regulation is to enhance corporate governance and provide shareholders of listed companies with a greater range of information about the company. The directors of the company are liable for the approval of a report that fails to comply with the content requirements under the Act. Moreover, the company and/or the directors of the company may incur in liability for the publication of a strategic report which contains untrue or misleading statements or omits material facts.
Under the Modern Slavery Act 2015, companies conducting business in the UK, with an annual global net turnover —including the turnover of its subsidiaries— of £36m per year are required to prepare a slavery and human trafficking statement for each financial year of the organization. This statement must disclose the steps, if any, taken by the organisation during the financial year to ensure that slavery and human trafficking is not taking place in any part of its supply chains or in any part of its own business. Statements must be approved by the board of directors or equivalent management body, and must be published on the business’ website with a link to the statement on the website’s homepage. If the business does not have a website it must make a copy of the statement available upon request. This requirement, however, can only be enforced by the Secretary of State bringing civil proceedings requiring performance of the obligation to report.Back to top