On 22 May 2019, the UK Government presented to Parliament its final Report following the conclusion of the Independent Review of the Modern Slavery Act 2015 (the “Act”). The Independent Review was launched in July 2018 by Frank Field MP, Maria Miller MP and Baroness Butler-Sloss. The Review focused on the following four areas relevant to the Act:
- the role of the Independent Anti-Slavery Commissioner (the “Commissioner”);
- transparency in supply chains (see our previous blogpost);
- child victims of modern slavery; and
- the legal application of the Act.
The final Report provides 80 recommendations for the Government in relation to the above listed areas and comments on other issues such as victim support provisions and the law on prostitution.
The Independent Anti-Slavery Commissioner (sections 40 to 44)
Following concerns that the role of the Commissioner is currently too constrained by Government’s influence, the Report recommends increasing the independence of the Commissioner, including through a more transparent recruitment process. The Report also notes that the Commissioner should primarily be focused on domestic issues relating to modern slavery, and that international issues should be taken on by an envoy or ambassador.
Transparency in supply chains (section 54)
The Report calls for a change in the Act to preclude companies from stating in their slavery and human trafficking statements that they have taken no steps to address modern slavery in their supply chains, and to make the six discretionary areas of reporting set out at sections 54(5)(a) to (f) of the Act mandatory. This follows a study which concluded that a number of companies approach their obligations towards the Act as a “tick-box exercise” and that around 40% of eligible companies are not complying with the legislation at all.
The Report also recommends the establishment of an enforcement body to impose sanctions against non-compliant companies. Although the Act currently allows the Secretary of State to seek an injunction against non-compliant organisations, this has never been done and no penalties have been issued to date.
In addition, the Report calls for more stringent requirements for slavery and human trafficking statements. For example, the Report recommends that the Companies Act 2006 be amended to include an obligation for companies to refer to their slavery and human trafficking statement in their annual reports. The Report suggests that failure to fulfil such reporting requirements should be made an offence under the Company Directors Disqualification Act.
Interestingly, many of the recommendations on section 54 of the Act build on key provisions of the Australian Modern Slavery Act (the “Australian Act”). For example:
- The Report recommends making the six discretionary areas of reporting set out at sections 54(5)(a) to (f) of the Act mandatory.
- The Report advocates for a central repository where all slavery and human trafficking statements would be collated to make it easier for civil society organisations to benchmark the quality of disclosure.
- The Report also recommends extending the scope of modern slavery reporting to public procurement activities and promotes more detailed guidance on reporting requirements.
These recommendations highlight the extent to which various jurisdictions are learning from each other in this area and reinforce the importance for UK-based companies of being aware of foreign modern slavery legislation.
Independent child trafficking advocates (section 48)
Section 48 of the Act, which is yet to be commenced, requires the Home Secretary to establish an Independent Child Trafficking Advocate (“ICTA”) to represent child victims of modern slavery and ensure their best interests are taken into account.
The Report calls on the Government to start the ICTA programme under section 48 as soon as possible and to roll out a revised model of support for trafficked children. The Report also calls on the Government to establish a National Protocol detailing how public authorities should collaborate with ICTAs, to ensure best practice and information sharing.
The Report also provides an analysis of the legal application of the Act in relation to the following points:
- Definition of the offences:
- The Report concludes that the definition of “exploitation” is sufficiently flexible and that there has been no evidence of any prosecution challenges related to new and emerging forms of modern slavery. In this regard, the Report recommends more policy guidance on the interpretation of the Act, rather than an amendment to the legislation.
- As regards the definition of “human trafficking”, the Act defines it as arranging or facilitating the “travel” of another person, while international definitions of trafficking (namely the Palermo Protocol and the EU Directive on Human Trafficking) do not mention “travel” per se. The Report states that the current definition does not raise any issues in terms of securing prosecutions. The Report calls on the Commissioner to monitor the outcomes of prosecutions and appeals to ensure that courts are not construing the term “human trafficking” too narrowly.
- Reparation Orders. The Report recommends that Reparation Orders be prioritised and be included in the forthcoming Sentencing Council Modern Slavery Act sentencing guidelines as a reminder to judges, where appropriate.
- Statutory defence. Some stakeholders argued that the statutory defence can be used as a “loophole” for defendants, and that disproving a claim of slavery and trafficking beyond reasonable doubt can be challenging. The Report concludes that the current legislation “achieves the right balance” and that law enforcement and prosecutors should conduct thorough investigations to determine whether an individual using the statutory defence is a victim. In the case of children, the statutory defence should, in all cases, be considered by judges and magistrates at a pre-trial hearing, and proper training and guidance should be given to judges and magistrates in this regard.
Post-NRM support for victims
The Report notes that while government support is provided to victims during their time in the National Referral Mechanism (“NRM”) programme, there is inconsistent post-NRM support. The Report states that this issue will be revisited in more detail once the current reforms have been implemented.
The law relating to prostitution
The Report also expresses a commitment to work with the All-Party Parliamentary Group on Prostitution and the Global Sex Trade to consider a reform in the law relating to prostitution. A report on this will be published in the summer.
See the full text of the Report here.