28/10/2024
The Modern Slavery Act 2015 (‘MSA 2015’) was enacted to combat modern slavery and, at the time, was described as world leading in its approach. It covered human trafficking and slavery, servitude, and forced or compulsory labour, all of which involve exploitation of others for personal gain. There are estimated to be around 130,000 victims in the UK.
Since the MSA 2015 came into force, there have been several events, including Brexit and the COVID-19 pandemic, which meant that the world has changed and best practice has moved on.
On 16 October 2024, the MSA 2015 House of Lords Select Committee (‘the Committee’) published a report named ‘The Modern Slavery act 2015: becoming world-leading again’ (‘the Report’) summarising ways for the new Labour Government to take action and make the UK world-leading in the battle against modern slavery once again.
The Report identifies three key issues as follows
- The impact of recent immigration legislation;
- Rising exploitation in the care sector; and
- The Act’s provisions on supply chains.
Below we explore the key issues that have been identified by the Report and the recommendations this makes for the Government to improve current policies set out under the MSA 2015. We also provide a brief comparison between international due diligence laws in relation to Modern Slavery in comparison to those that currently stand in the UK.
The impact of recent immigration legislation
The MSA 2015 introduced requirements for guidance to be issued about how to identify and support victims of modern slavery and for specified public authorities to notify the Home Office about suspected victims of modern slavery. Recent immigration legislation has limited the access which victims have to this support, particularly through the Nationality and Borders Act 2022 (‘NABA’), the Illegal Migration Act 2023 (‘IMA’) and the Safety of Rwanda (Asylum and Immigration) Act 2024 (‘the Rwanda Act’).
The Report acknowledges that it should be recognised that there is a very real difference between migrants who come to the UK willingly, and those who come because they are being trafficked as victims of modern slavery. This should lie at the heart of government policy and of any future legislation surrounding illegal immigration. The adverse impact that immigration legislation may have on the identification and protection of victims needs to be carefully assessed and monitored.
Recent immigration legislation poses the risk that immigration law enforcement will be prioritised at the expense of ensuring the welfare of survivors and listening to their perspective on policy development. The Government should prioritise the safeguarding of victims over their immigration status and communicate the change in good time to victims and frontline organisations. The Government should also provide rights to modern slavery victims, including temporary immigration status, recourse to public funds, and access to work, providing a route to permanent settlement in the UK.
Rising exploitation in the care sector
Victims in the care sector face issues such as owing money to their employer for expensive recruitment costs and having their visa threatened. Many victims lack information surrounding their rights under their visa, which can make them more vulnerable.
Regulation enforcement is conducted by the Gangmasters and Labour Abuse Authority (‘GLAA’), which has modern slavery investigation powers in England and Wales and to which the Care Quality Commission (‘CQC’) makes referrals. In order for regulatory and enforcement bodies, such as the GLAA, to tackle the changing picture of modern slavery, the Report identifies that adequate resourcing is required. While it is important for taxpayer money to be used efficiently, decreasing the budget makes it difficult for the GLAA to meet the minimum International Labour Organisation Standards.
It also identified how there are insufficient safeguards on companies seeking to sponsor overseas workers in the care sector. Registration with the CQC is insufficient, as it does not mean that companies are being actively inspected for issues such as labour exploitation.
The current fragmentation of the UK’s labour market enforcement system makes it difficult for the continuum of exploitation to be addressed before cases of modern slavery develop. The lack of an even approach across sectors makes it difficult to address the patterns of modern slavery when they arise, as shown by the recent increase in exploitation in the care sector. Moreover, the exploitation in the care sector is made easier by the lack of Transparency in Supply Chains (‘TISC’) requirements on the majority of care providers, which leaves a large regulatory gap.
The Act’s provisions on supply chains
The MSA 2015 section 54 introduced a requirement for large companies (£36m turnover and above) to prepare a slavery and human trafficking statement each financial year. However, the Report identifies how these statements by companies are inconsistent and the lack of mandated requirements for content makes it difficult for companies to be held accountable for their transparency. It was a breach of the legislation to publish a statement, but there were not requirements for what a statement actually had to say.
In 2019, a government consultation resulted in commitments to improve transparency in supply chains by extending requirements to public bodies and requiring statements to be published on a register.
The current approach of no enforcement in relation to the supply chain requirements of the Modern Slavery Act is not an option. The Report states that the most important aspect to consider when deciding an enforcement approach is proportionality when considering sanctions for non-compliance.
Comparisons with international due diligence laws in relation to Modern Slavery
The developments internationally on due diligence indicate that the UK has fallen behind in respect of their modern slavery laws. There have been developments in multiple countries where mandatory human rights due diligence has either been introduced or is being considered. These include countries such as Germany, France, Norway, US and Canada as well as the due diligence proposals in the European Union.
The Report identifies how, compared to other legislation internationally, the UK Modern Slavery Act is “low stringency or medium stringency”. In contrast, “higher stringency” laws have been adopted by countries, such as France and Norway, which means their legislation comes from “models that have some due diligence provisions”.
The Government should make UK due diligence law compatible with the standards of the international landscape to make compliance easier for companies. One aspect of this would be to alter the threshold for companies that are obligated to follow section 54 of the MSA. While there are a wide number of options for what thresholds should be applied to supply chain legislation, the Report suggests that the thresholds should be consistent across sectors, including the public sector.
Recommendations within the Report
In summary, the Report provides the following key recommendations in relation to the MSA 2015:
- Migrants who have been trafficked as victims of modern slavery should lie at the heart of government policy and of any future legislation about illegal migration;
- The Government should establish an arms-length Single Enforcement Body to ensure stronger compliance with relevant labour rights and standards;
- As a minimum, the Single Enforcement Body should act as a single point of contact for labour exploitation across all sectors;
- The Government should introduce legislation requiring companies meeting the threshold to undertake modern slavery due diligence in their supply chains and to take reasonable steps to address problems; and
- It is recommended that the Government consult businesses on potential changes, looking closely at the issues raised in the Report and giving due consideration to small and medium sized companies’ ability to meet any new requirements.
Summary
When taking account the findings of the Report prepared by the MSA 2015 Committee, we would recommend that all organisations need to make sure they have evaluated their risks and implemented measures to prevent modern slavery, especially those within the care sector in which a rise in exploitation has been recorded. It is important to note that where organisations are sponsoring overseas workers there is an ongoing duty to ensure that migrant workers are not being exploited and to ensure employees are being safeguarded against these risks.
Organisations who meet the current threshold should ensure they undertake modern slavery due diligence in their supply chains and take reasonable steps to address any problems, as the importance of this has been raised within the Report recommendations. It is also important for smaller and medium sized companies’ to consider their approach to due diligence surrounding modern slavery, as the Reports call for the Government to look closely at these types of companies’ ability to meet any new requirements.