The Independent Review of the Modern Slavery Act: two and a half cheers for the review panel, one and a half for the government

In 2015, the Modern Slavery Act was passed shortly before Parliament rose to prepare for a General Election. The pressure to get something – however incomplete – on the statute book, partially explains why in the past four years, what has consistently been advocated by its main sponsor, Theresa May (who introduced it whilst Home Secretary), as ‘world-leading’ has in fact turned out to be far from that. It may have been one of the first Acts of Parliament world-wide to address the phenomenon of modern day slavery, but it has become clear that it was deficient in many respects. It is extraordinarily unusual for a major piece of legislation to result in not one but two revising investigations being introduced barely three years after the Act was passed and, with the benefit of hindsight, other legislatures such as that in Australia have already taken the opportunity to improve on it in their own laws. Earlier this month, the government published its response to the first of these investigations, the Independent Review of the Modern Slavery Act, carried out by a panel of three (Frank Field MP, Maria Miller MP, and Baroness Butler Sloss). The membership of the panel was chosen by the government which does lead one to question the freedom of the panel in principle to go where the trail led them.

This is not to impugn the thoroughness of the panel’s work within the limitations imposed on it, their integrity in reproducing the thrust of the mass of evidence laid before them, or their desire to see change – in some cases fairly dramatic change – in the Act’s provisions. But their work was hedged around by the framework established by government in creating the Review. Four areas were stipulated as needing scrutiny by the panel and this meant that some highly contentious other areas – not least the continuing scandal of the ambiguous and vulnerable position of domestic workers, and the contradictions between the moral tone of the Act and the provisions elsewhere in Immigration legislation which will lead – particularly after Brexit (if it happens) – to heightening the vulnerability of many migrant workers, were excluded from scrutiny. We will have to wait to see what the other review – by the Home Affairs Select Committee of the House of Commons, which is not limited by what the government wants them to look at – comes up with when it reports (and this is rumoured to be no sooner than Christmas and perhaps later if the current parliamentary turmoil takes its toll.)

The four areas stipulated by the government were the role what is still termed the Independent Anti-Slavery Commissioner; the provisions for transparency in supply chains; the question of Independent Child Trafficking Advocates; and the legal application of the Act (in reality, looking at a number of legal issues).

First the good news: there were about 80 recommendations made by the Independent Review and many of these were accepted by the government, albeit some only in part. Many of these recommendations were at the less controversial end of the spectrum. Particularly welcome were the recommendations to extend the transparency in supply chains provision to the public sector (an issue which has been raised in Parliament a number of times already by Baroness Lola Young), but subject to a further consultation; requiring government departments to publish their own Modern Slavery Statements; clarification and some consequent strengthening of the existing provisions for Modern Slavery Statements; establishing an accessible central registry of companies which have complied with the legislation (and perhaps those which haven’t), something which NGOs in particular have been arguing for for the last four years; a further statement that the Home Office will respect the independence of the role of the Ant-Slavery Commissioner ( a statement that will be particularly closely monitored given that the last Commissioner resigned in part because of interference in his work by the Home Office); agreement that definitions of forms of slavery should be flexible enough to incorporate new forms (such as county lines) which have emerged recently and may emerge in the future; and a number of tidying up provisions relating to issues such as compensation, the statutory defence for victims of trafficking (many of whom continue to be brought wrongly before the courts and even imprisoned), securing assets of criminal traffickers and so on – although many would argue that the recommendations and their acceptance by the government do not go far enough.

The deficit side is a rather longer list and there isn’t space to cover them all here: and there are many issues, as noted earlier, which were ruled off-limits by the government’s framework for the Review. The independence of the commissioner remains questionable given that reporting will not be to parliament , as is the case in other national legislatures, but to the responsible Minister. This Minister remains in the Home Office and not, as many have argued for, away from the highly criminal justice-oriented perspective of the Home Office which impacted on the tone and emphasis of the Act and will continue to do so. Many NGOs in particular have argued strongly that the Act should be more victim-centred and thus placed within a more neutral position in government such as the Cabinet Office. The government ploughed on with the appointment of the present Commissioner despite many requests for it to pause and take stock of comments which were coming in arguing for this position; although the government claimed that the process for appointment was too far advanced, this was not actually the case.  Unsurprisingly, the new Commissioner, former chair of the National Police Chiefs Council, is deeply embedded in a criminal justice culture. And equally unsurprisingly, the new Commissioner has created an advisory group selected effectively by her without putting its membership out to a wider consultative process as was argued for by many; again she argued that time was pressing: the question is again, do it quick, or do it right?

The government response argues that the most important thing about the supply chain clause (54) was to improve the quality of modern slavery statements. This is certainly important as many statements are vague aspirations rather than statements of clear actions and actual outcomes; but it leaves unspoken the issue of why many companies have failed to produce a statement at all (some 17,000 by the government’s calculation). The answer to this probably lies in the fact that there have been no prosecutions at all of these thousands of companies which have effectively been breaking the law for the past five years. Government would retort that the slow process of persuasion is more effective but that claim simply does not stand up to scrutiny. Indeed, the claim to be world-leading might suggest a vigorous and energetic process of law-making and enforcement whereas the government’s response overall, encapsulated in many of its responses to the Review, is one of slow, almost snail-like (‘gradual’ in the government’s terms) progress towards what is sometimes a rather vague goal: see for example the continuing debate about the nature of Independent Child Trafficking Advocates (now to be called Guardians) where we are still examining the outcomes of a second round of pilot projects, or the continuing debate about what is wrong with the NRM and how to fix it. Whilst Theresa May has been happy to parade the Act’s achievements in a triumphalist manner at the ILO, the UN and the G20, in some areas the pace of change has been glacially slow.

Overall then, the government’s position has been one of managing change to a lower and slower level than many stakeholders would wish; wholeheartedly accepting the Review’s thrust would have gone some way to addressing the Act’s deficiencies; but that would have exposed the structural flaws at the heart of the legislation; and it would have meant spending money, even where, as with the recent cost-benefit analysis of the Bill introduced by Lord McColl to extend the provisions for supporting victims of slavery, we learn that it would cost the government nothing, Theresa May’s legacy is to say that she will oppose it not for financial reasons but because presumably it sends out the wrong political message – of being soft on immigrants.

The UK Government’s response to the Independent Review of the Modern Slavery Act, is available on gov.uk at: https://www.gov.uk/government/publications/government-response-to-the-independent-review-of-the-modern-slavery-act

The Home Office has also launched a public consultation on transparency in supply chains which is available online at: www.gov.uk/government/consultations/transparency-in-supply-chains. Responses are welcome from organisations, including businesses, charities and public sector organisations, as well as from consumers, investors, NGOs, worker groups and other interested parties. The consultation closes on 17 September 2019.