Tackling Modern Slavery in Government Supply Chains: An Update

Last month the Cabinet Office published a Procurement Policy Note (PPN) which made following existing 2019 guidance ‘Tackling Modern Slavery in Government Supply Chains’ mandatory, and which introduced new rules and guidance with the aim of mitigating the risk of modern slavery in government supply chains.

The PPN applies to all NHS bodies, Central Government Departments, their Executive Agencies and Non-Departmental Public Bodies, collectively referred to as In-Scope Organisations. The PPN is largely applicable to commercial, procurement and contract management positions and will apply to existing contracts and new procurement activity from 1 April 2023.

The publication of the PPN is pertinent to the recent spate of cases within this area of law, such as the ongoing case of workers in a Welsh care home who have been identified as potential victims of slavery and trafficking.

What is Modern Slavery?

 The Modern Slavery Act 2015 (‘MSA 2015’) created three types of criminal offences, namely:

• slavery or servitude
• forced or compulsory labour, and
• human trafficking and committing an offence with intent to commit human trafficking.

The MSA 2015 was introduced to protect people from exploitation and reinforces several of the provisions of the European Convention on Human Rights (‘ECHR’).

The offences of slavery or servitude (s.1 MSA 2015) and forced or compulsory labour (s.2 MSA 2015) are punishable by imprisonment for life if convicted on indictment, and imprisonment for a term not exceeding 12 months (and/or a fine) on summary conviction (s.5(1) MSA 2015).

Except in circumstances involving kidnapping or false imprisonment where the maximum sentence is life imprisonment, the offence of human trafficking is punishable by a maximum of ten years imprisonment on indictment or imprisonment for a term not exceeding 12 months (and/or a fine) on summary conviction (s.5(2) MSA 2015).

What are the Key Changes?

The 2019 Guidance employed language to suggest that complying with it was encouraged, but otherwise entirely optional; however, the PPN has confirmed that for In-Scope Organisations, following the 2019 Guidance slavery in new procurement activity and existing contracts is compulsory. Other public sector authorities are also encouraged to follow these principles as well as the 2019 guidance in the interests of best practice.

Key updates to the 2019 Guidance include:

• the guidelines for assessing the risk of modern slavery has been updated to include key sectors of concern such as cotton, PPE and polysilicon
• organisations will be required to provide supply chain information at the selection stage of new procurements which are highlighted as being a high risk of modern slavery, and
• the guidance on enhanced due diligence and existing exclusion grounds has been updated.

The PPN can largely be considered a positive step towards tackling modern slavery by obliging most public sector authorities to take active measures to assess and manage risks as well as encouraging greater transparency within the industry as a whole. As the guidance will be mandatory for all existing contracts and new procurement activity from 1 April 2023, organisations which are affected by the PPN should take steps to familiarise themselves with the requirements of the updated 2019 Guidance and check they will be compliant.