Though slavery is often seen as a now-conquered phenomenon of the past, it is alive and well today. The UK Government estimates there are between 10,000 and 13,000 victims of modern slavery per year within its borders, while the use of inhumane working conditions is business as usual for companies such as Apple. The Modern Slavery Act 2015, lauded as a ‘historic milestone’, has done much to combat this grave injustice: its criminalisation of individuals engaging in labour exploitation, for instance, is to be welcomed. However, the Act has not gone far enough.
In order to ensure modern slavery is tackled more effectively, the Act must be improved in two areas. First, the provision of a general civil remedy for victims of modern slavery. Second, the introduction of requirements for companies operating in Xinjiang to prove they are not in breach of the Act.
To be sure, good progress has been made since the enactment of the Act. Government commitments to improve standards of transparency in supply chains through requiring organisations to publish modern slavery statements on a Government-run reporting service and mandating the topics that must be covered in the statements, are a step in the right direction. The extension of the requirements regarding transparency in supply chains in section 54 of the Act to certain public bodies is similarly essential.
Likewise, the Private Members’ Bill to amend the Modern Slavery Act introduced by Lord Alton is admirable. It proposes new legally binding ‘hard law’ criminal offences that would make it illegal to supply false modern slavery statements, or to continue to use supply chains which fail to demonstrate minimum standards of transparency. Given the abundance of empirical evidence as to the insufficiency of ‘soft law’ self-regulation provisions in the Act as it stands, this would go a long way in making it harder for companies to continue to refuse to carry out due diligence in their supply chains.
However, other concerns remain, especially over the suitability of the current civil remedies available to victims. Criminal offences relate to prosecutions brought by the state (e.g. murder or burglary), while civil law relates to disputes between individuals (e.g. breaches of contract or unfair dismissal in the workplace). In other words, it makes little sense that the Act recognises the symbolic importance of stigmatising modern slavery through the introduction of a new crime, but does not follow through with a mechanism by which victims can sue their former abusers themselves. Existing civil remedies in tort, such as assault, false imprisonment, and harassment, are insufficient to tackle modern slavery for two reasons.
Firstly, they do not sufficiently recognise the gravity of the moral wrong of modern slavery. Given that the Government has recognised the immorality of modern slavery by creating a new crime under the Act, it is strange that this has not been followed by a general civil remedy mirroring the gravity of this crime in the field of compensation for victims. Considering the inclusion of provisions on protecting victims in sections 45 to 48 of the Act, this lack of a general civil remedy for victims is puzzling. Current civil remedies in tort such as intimidation, harassment, and assault are grounds for compensation, but these remedies do not reflect the need to provide victims, many of whom are highly vulnerable to being re-trafficked, with a sense of justice befitting the circumstances they have been subjected to.
Secondly, existing remedies do not provide compensation for the humiliation and severe distress such mistreatment causes. The two Supreme Court cases of Taiwo v Olaigbe and Onu v Akwiwu demonstrate this. Lady Hale, delivering the leading judgment, pointed out that the workers, victims of serious exploitation, had no remedy for their fear and distress under the law of contract or tort. Lady Hale further pointed out the inadequacy of reparation orders under section 8 of the Act; such orders can only be made after a conviction and confiscation order, severely restricting their ability to help victims of modern slavery.
There is no dearth of evidence as to the use of forced labour in Xinjiang. We know companies such as Adidas, Apple, Nike, Uniqlo, and Zara directly or indirectly benefit from the exploitation of Uyghur workers in Xinjiang. We know forced labour is commonplace, with at least 80,000 people transferred from Xinjiang to work in factories across China from 2017 to 2019. The Foreign Secretary acknowledges the gravity of this human rights crisis, affirming in a statement in January 2021 that there is a “moral duty” to respond, and outlining the launching of a review into export controls as they pertain to the region.
It is in the face of such undeniable evidence that the United States Senate has passed legislation banning imports from Xinjiang, under the justified assumption that such imports are made with forced labour, unless it can be proven otherwise. The United Kingdom must follow suit by requiring companies operating in Xinjiang to prove they are not in breach of the Act. This focus on Xinjiang is not misplaced; the House of Commons’ Business, Energy, and Industrial Strategy Committee’s report on forced labour in Xinjiang and UK value chains makes it clear that the measures announced by the Foreign Secretary “fall significantly short” of requiring companies to guarantee they are not complicit in modern slavery.
The UK could start by bringing the Act in line with France’s Corporate Duty of Vigilance Law. As the Arise Foundation has pointed out, the French law includes enforcement mechanisms, including providing for any interested party to petition a judge to ask for the issuing of a compliance order. The Government could at the very least bring its laws in line with French measures, if not going further and placing the burden of proving compliance upon the company, as the American legislation does. Similarly, temporary embargoes on products if companies do not comply with the Act, as proposed by the then-Director of Labour Market Enforcement, would go further in ensuring companies do not profit from forced labour in Xinjiang. The Government’s response, that it would “consider” such rules, is inadequate.
The Modern Slavery Act was ground-breaking when it was first introduced, but it must keep pace with changes in business supply chains and the world at large. The Modern Slavery Act has provided the framework for combatting what may be the defining human rights issue of our time – the Government has a moral obligation to ensure that this framework is not left toothless.
Ming is currently undertaking work experience at Bright Blue. Views expressed in this article are those of the author, not necessarily those of Bright Blue.
