MODERN SLAVERY: THE UK RESPONSE

Forthcoming in the (2010) 39(4) Industrial Law Journal

Virginia Mantouvalou∗

It is sometimes suggested that societal change – large-scale improvement of working

conditions, for instance – cannot be triggered or advanced by human rights law and
judicial decisions. Politics are the way to achieve progress. The concern voiced is that
judges are conservative, and hence not open to claims of social justice. Most
importantly, it is said, even if they are receptive to such questions, a judicial decision
only does justice to the individual applicant; it does not affect others found in a
similar position or society as a whole. The new section 71 of the Coroners and Justice
Act 2009 entitled ‘Slavery, Servitude and Forced or Compulsory Labour’ is a useful
reminder that this scepticism might be overstated. Courts and legislatures can work in
tandem to establish and promote human rights principles, and with the support of
groups of civil society, they can take positive steps in addressing gross injustices that
affect the most vulnerable amongst us: abusive working conditions produced by a
market economy. Human rights can ‘ennoble politics’ in the words of Robin West,
serving as moral, legal and political principles towards which government aspires and
against which it is assessed (Robin West, ‘Ennobling Politics’, in Jefferson Powell
and James Boyle White (eds) Law and Democracy in the Empire of Force, University
of Michigan Press, 2009, p 58).

1. MODERN SLAVERY AND THE SILIADIN CASE

Supranational governmental and non-governmental organisations have over recent
years paid attention to a phenomenon that they called ‘modern slavery’. Millions of
people in the world, they suggest, work in appalling conditions, they are commodified
and abused. The International Labour Organisation included the prohibition of forced
and compulsory labour in its 1998 Declaration of Fundamental Principles and Rights
at Work, and further explored the relevant problems in its follow-up Reports
‘Stopping Forced Labour’ of 2001 and ‘A Global Alliance against Forced Labour’ of
2005 (available at http://www.ilo.org/wcmsp5/groups/public/---dgreports/---dcomm/--
-publ/documents/publication/wcms_publ_9221119483_en.pdf and
http://www.ilo.org/public/english/standards/relm/ilc/ilc93/pdf/rep-i-b.pdf). NGOs,
like Anti-Slavery International, campaign against these phenomena and urge that they
be taken seriously and addressed (see
http://www.antislavery.org/english/slavery_today/what_is_modern_slavery.aspx). Yet
until recently, for many in the legal community in Europe, the problem of slavery,
servitude, forced and compulsory labour, appeared to be nothing but a reminder of a
shameful past.


























































∗
Senior Lecturer in Law, University of Leicester. Email: virginia.mantouvalou@leicester.ac.uk. I am
grateful to Bridget Anderson, Hugh Collins and Tonia Novitz for comments on a draft.

Electronic copy available at: http://ssrn.com/abstract=1669222

 The judgment of the European Court of Human Rights (ECtHR) Siliadin v
France that dealt with modern slavery in Europe, attracted great attention by
international organisations, NGOs, and in parliamentary debates worldwide (Siliadin
v France, App No 73316/01, Judgment of 26 July 2005. For analysis of the problem
of domestic slavery and of Siliadin, see Virginia Mantouvalou, ‘Servitude and Forced
Labour in the 21st Century: The Human Rights of Domestic Workers’ (2006) 35 ILJ
395. For detailed discussion of the case in documents of international organisations,
see Forced Labour and Human Trafficking: Casebook of Court Decisions,
International Labour Organisation, 2009. See also Maria Fernanda Perrez Solla,
‘Slavery and Human Trafficking: International Law and the Role of the World Bank’,
Social Protection and Labour Paper No. 0904 of 2009, p 52. For discussion of the
judgment by NGOs, see Human Rights Watch Report ‘As If I Am Not Human’, 7
July 2008, Chapter V. For references to the case in parliamentary documents and
debates, see UK HL Debs, 5 November 2009, Col 400. See also the 2008 Report of
the Victorian Equal Opportunity and Human Rights Commission in Australia, entitled
‘The Victorian Charter of Human Rights and Responsibilities’, p 8).

In this landmark case the Court for the first time in its history ruled that there
was a breach of article 4 of the European Convention on Human Rights (ECHR),
which prohibits slavery, servitude, forced and compulsory labour. The judgment
showed how article 4 can be relevant in present-day Europe. The facts illustrate the
cruelty of the social problem: Ms Siliadin was a young migrant woman who was
brought to France from Togo to work and be educated, but was in reality kept by her
employers in appalling conditions. She worked seven days a week from 7.30am to
10.30pm, looked after three children, cleaned the house and cooked; she had no
privacy; she slept in the children’s room, on the floor; she cleaned her employer’s
office; she was never paid for her work; her passport was withheld. And yet when she
escaped from her employers and eventually reached French courts, she was faced with
the fact that her treatment by them did not constitute a criminal offence in French law.
She was only awarded some compensation for issues such as arrears for salary and
holiday leave.
Before the Strasbourg Court, Ms Siliadin claimed that lack of criminal
legislation banning slavery, servitude, forced and compulsory labour violated article 4
of the Convention. Although the employers were private individuals, the ECtHR
explained that human rights law does not only impose negative obligations on the
state – duties to abstain from violations. Human rights law can impose positive duties
too: it can have a horizontal effect. The state sometimes has an obligation to regulate
private conduct that is in breach of the Convention. The importance of the prohibition
of article 4 is such in a democratic society, that it requires penalisation of behaviour
that contravenes it. The Court recognised that there are modern forms of slavery,
which have attracted the attention of several supranational organisations, such as the
Council of Europe and the International Labour Organisation, to materials of which it
made reference. It mentioned, for instance, the Council of Europe Convention on
Action against Trafficking in Human Beings (CETS No 197), which opened for
signature in 2005, a few months before Siliadin was decided.
The ECtHR examined the extreme vulnerability and abuse suffered by migrant
domestic workers, and held that this can be classified as ‘forced and compulsory
labour’. The key elements that carried weight in this classification of the working
conditions of Ms Siliadin were the fact that she worked against her will, that she was


 2

Electronic copy available at: http://ssrn.com/abstract=1669222

unpaid, and feared that she would be arrested. Her employers nurtured this fear, and
created to her the belief that her status would be regularised. The Court held that her
decision to remain with them in these conditions was not free. It was coerced. This
situation amounted to forced and compulsory labour. Further, her position could be
classified as ‘servitude’, because she had to work in slavery-like conditions (but
which were not ‘slavery’, because her employers did not have a legal title of
ownership of her). The key considerations here were the fact that she worked very
long hours, she had no income, was vulnerable and isolated, had no private space, no
free time, no freedom of movement and no legal documents. She had been misled to
believe that her immigration status would be regularised and that she would be sent to
school. In these circumstances, the Court held that her situation constituted servitude,
and fell within the scope of article 4 of the Convention. The fact that France did not
have effective criminal legislation banning slavery, servitude, forced and compulsory
labour, so as to prosecute the employers of the vulnerable immigrant woman who was
held in such conditions, constituted a violation of the country’s human rights
obligations, according to the unanimous decision of the Court.

2. MODERN SLAVERY IN THE UK AND THE NEW OFFENCE

The problem of the appalling working conditions that migrant workers and other
vulnerable groups face is well-documented, and certainly not a uniquely French
phenomenon. It is impossible to have precise numbers of those that are held in such
conditions in the UK, but scholars and organisations have produced reports and
estimates, which show that examples of people living and working in conditions of
modern-day slavery are not isolated. In an important study, Bridget Anderson and
Ben Rogaly showed that forced labour practices do not only exist in work such as the
sex industry, and identified several key sectors of the UK labour market where
workers are particularly prone to extreme exploitation: construction,
agriculture/horticulture, contract cleaning and residential care (Bridget Anderson, Ben
Rogaly, ‘Forced Labour and Migration to the UK’, Report prepared by the Centre on
Migration, Policy and Society, in collaboration with the Trade Union Congress,
2005). The media also often report cases of extreme abuse, showing how it affects
particularly migrant workers (See, for instance, the BBC report ‘Dirty Work’, 29
March 2006, at http://news.bbc.co.uk/2/hi/uk_news/magazine/4850602.stm. See also
Beth Herzfeld, ‘Everywhere in Chains’, Guardian, 23 August 2004).

Following the decision of the ECtHR in Siliadin, it was pointed that this case
raises awareness on the ongoing existence of extremely cruel labour practices in
Europe, and brings to the forefront the following pressing question: does the UK have
in place effective criminal legislation to comply with ECHR standards - the answer to
which appeared to be negative (Mantouvalou, above at 412). The Asylum and
Immigration Act 2004 criminalises forced labour when it is connected to trafficking.
The Gangmasters Licensing Act 2004 sets up a system whereby individuals that
employ or supply workers in certain industries must be licensed. More recently, in
December 2008, the UK ratified the Council of Europe Convention on Action against
Trafficking in Human Beings. These developments show that modern forms of
slavery have attracted significant attention in the legislative process. Yet these steps
did not necessarily address the Strasbourg judgment requirements, particularly
because they did not cover non-trafficked workers. The lacuna in the legislative


 3
framework was also criticised by Liberty and Anti-Slavery International that faced
hurdles in their efforts to represent abused workers before the authorities. Both Anti-
Slavery International and Liberty campaigned for the legislative framework to be
improved and issued a joint briefing to the House of Lords to this effect (Liberty and
Anti-Slavery International Joint Briefing on the Coroners and Justice Bill for the
Committee Stage of the House of Lords, available at http://www.liberty-human-
rights.org.uk/pdfs/policy-09/joint-cte-stage-briefing-on-forced-labour-lords.pdf). The
joint briefing relied heavily on human rights law and the decision of the ECtHR in
Siliadin, so as to urge the Government to criminalise extremely abusive working
conditions (see particularly paragraphs 1 and 3-7 of the joint briefing).

In light of the above lacuna in the legislative framework, section 71 of the

Coroners and Justice Act 2009 is a welcome development (available at
http://www.justice.gov.uk/publications/docs/circular-07-2010-coroners-justice-act-
section-71.pdf). It criminalises deep injustice that can be the outcome of a deregulated
labour market. It also brings the UK in line with the ECHR requirements. The key
provisions of section 71 read as follows:
(1) A person (D) commits an offence if—
(a) D holds another person in slavery or servitude and the circumstances are
such that D knows or ought to know that the person is so held, or
(b) D requires another person to perform forced or compulsory labour and the
circumstances are such that D knows or ought to know that the person
is being required to perform such labour.
(2) In subsection (1) the references to holding a person in slavery or servitude or
requiring a person to perform forced or compulsory labour are to be construed
in accordance with Article 4 of the Human Rights Convention (which
prohibits a person from being held in slavery or servitude or being required to
perform forced or compulsory labour).

Article 4 of the ECHR contains certain exceptions to forced or compulsory labour,

which are applicable also in the section 71 offence. It states that it does not include:

(a) any work done in the ordinary course of detention imposed according to
Article 5 of this Convention or during conditional release from such
detention;
(b) any service of a military character or, in case of conscientious objectors in
countries where they are recognised, service exacted instead of compulsory
military service;
(c) any service exacted in case of an emergency or calamity threatening the
life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.

According to the introductory note to the legislation, which provides unofficial

guidance, if the victim is subcontracted to work for another company that keeps
employees in such conditions, the principal offender is the subcontractor, but the
contractor might also be held liable. At the same time it is clearly indicated that this is


 4
not an immigration offence, but it is recognised at the same time that immigrants
might be more vulnerable to abuse.

The most significant difficulty in establishing this new offence lies in

demonstrating the existence of coercion. Modern slaves are not held in chains – not
literally. Are they actually free to work in extremely poor conditions if their only
alternative is extreme socio-economic deprivation or deportation? Because of the lack
of explicit physical force, it might be argued that there is nothing coerced in these
situations faced by migrant workers or others kept in abusive conditions, if they are
not locked up in the employer’s home or business premises. What is the appropriate
test to determine that engaging or remaining in an employment relationship is free?
Questions of coercion in the employment relation have divided US courts
when looking at whether a particular situation can be classified as ‘involuntary
servitude’ contrary to the 13th Amendment to the Constitution. This case law can
illustrate the problems in the interpretation. On the one hand, it has been said in the
US context that ‘the most ardent believer in civil rights might not think that cause
would be advanced by permitting the awful machinery of the criminal law to be
brought into play [against employers] whenever an employee asserts that his will to
quit has been subdued by a threat which seriously affects his future welfare but as to
which he still has a choice, however painful’ (United States v Shackney, 333 F.2d
(1964) 475 at 486). On the other hand it has been suggested that the plausibility of the
threat that the employer uses against the worker should form the key test (ibid 487).
Looking at a similar question Justice O’Connor suggested that physical or legal
coercion can lead to involuntary servitude (United States v Kozminski, 487 U.S. 931
(1987), 935). In developing the idea of legal coercion, she said that ‘it is possible that
threatening an incompetent with institutionalization or an immigrant with deportation
could constitute the threat of legal coercion that induces involuntary servitude’ (ibid
948). Justice Brennan suggested that the focus should not be on the threats
themselves but on the working conditions as such. He explained that in looking at
these, ‘[w]hile no one factor is dispositive, complete domination over all aspects of
the victim’s life, oppressive working and living conditions, and lack of pay or
personal freedom are the hallmarks of that slavelike condition of servitude’ (ibid 962-
963).
The definition of coercion will not be uncomplicated in the UK context too,
but courts will need to pay attention to the case law of the ECtHR, according to
section 2 of the Human Rights Act 1998. This point was repeated in Parliamentary
debates that made special reference to the Siliadin case (Lord Tunnicliffe, Hansard, 5
November 2009, Column 400). Moreover, in interpreting article 4 of the ECHR, the
ECtHR often takes note of materials of other organisations including the ILO and the
European Committee of Social Rights (For analysis see Mantouvalou, above, p 404
ff). This interpretive technique has been called an ‘integrated approach’ to
interpretation, because it integrates social and labour rights into civil and political
rights documents (Virginia Mantouvalou, ‘Work and Private Life: Sidabras and
Dziautas v Lithuania’ (2005) 30 European Law Review 575). UK courts have
sometimes been resistant to this interpretive method that takes note of ILO materials
(See discussion in Keith Ewing, John Hendy, ‘The Dramatic Implications of Demir
and Baykara’ (2010) 39 Industrial Law Journal 2 at 20 ff). Yet here, when
interpreting the new offence, they will need to pay attention to the determinations of
these bodies, as the explanatory note of the legislation suggests. Importantly this point


 5
was also highlighted in Parliamentary debates (Lord Tunnicliffe, Hansard, 5
November 2009, Column 400. On the use of legislative history for judicial
interpretation, see Pepper (Inspector of Taxes) v Hart, 1992 UKHL 3).
The introductory note to the legislation specifically suggests that there is no
formal requirement of ownership of the person for a situation of servitude to arise, in
a manner similar to the express ruling of the ECtHR in Siliadin. The Court held that in
order to establish coercion someone needs to show that there has been some physical
or mental constraint, and an ‘overriding of the person’s will’ (Siliadin, above, para
117). This approach to coercion was re-iterated in the recent important Rantsev v
Cyprus and Russia case, which involved human trafficking and explored positive
obligations to investigate alleged breaches of article 4 and other ECHR provisions
(Rantsev v Cyprus and Russia, App No 25965/04, Judgment of 10 January 2010). In a
similar way, the introductory note to the new legislation indicates that it is not to be
read restrictively as involving physical force only. It is significant to highlight that the
note makes reference to ‘coercion or deception’ (see paragraphs 9, 10 and 17 of the
note). According to this, evidence of coercion or deception can include the use or
threat of violence, but also the threat to report the worker to the authorities;
withholding payment; or withholding the passport. Further indication can be the
worker’s isolation, poor living conditions when these are provided by the employer,
very long working hours, dangerous working conditions imposed by the employer,
with no safety equipment provided. The UK test, in other words, combines both
physical and other forms of coercion, and also pays attention to the actual working
conditions. The section 71 offence, finally, provides for a maximum sentence of 14
years’ imprisonment on conviction on indictment, or six months’ imprisonment on
summary conviction.

3. A CAUSE FOR CELEBRATION AND FURTHER ACTION

The introduction of the new offence was rightly celebrated by the organisations that
campaigned for it (See the reaction of Anti-Slavery International at
http://www.antislavery.org/english/campaigns/previous_actions/forced_labour_in_the
_uk_2.aspx and of Liberty at http://www.liberty-human-rights.org.uk/issues/human-
rights-act/forced-labour/index.shtml). It is a significant victory for advocates of
workers’ rights and human rights, both at a symbolic and at a practical level. At a
symbolic level, it represents the most serious condemnation on the part of our legal
civilisation of extremely abusive working conditions, which can be an outcome
produced in a market economy and a world with borders. With human rights law as a
tool, organisations and scholars urged and achieved the regulation of the informal and
exploitative employment relationship. At a practical level, the new legislation opens
up an avenue for redress to those that are victims of such behaviour, those that are
most exposed to abusive behaviour and who are often made particularly vulnerable
because of immigration controls; those who, as described by Joseph Carens, are ‘hard
to locate on the map of democracy’ (Joseph Carens, ‘Live-in Domestics, Seasonal
Workers and Others Hard to Locate on the Map of Democracy’, (2008) 16 Journal of
Political Philosophy 419).
In addition, at a more general level, the new legislation reminds us all that
human rights law sets out important moral, political and legal principles that provide


 6
not only individual remedies in case of violations in an ad hoc and unsystematic
manner, but also principles that guide legislative action. In a more abstract way, it is
also a reminder that judgments in individual cases, like Siliadin, do not only do justice
to the particular applicant. They also raise awareness, inspire action and lead to
systematic reform. For all these reasons, the introduction of the new offence is a
significant development, satisfying the standards set out in the case law of the ECtHR
in a paradigmatic way.
Although the new offence provides cause for celebration, it by no means
signifies that combating such abusive working conditions in the UK will be an easy
task. Positive state duties are not exhausted in the adoption of legislation, as the
Rantsev judgment reminded us. The authorities might also need to take ‘operational
measures’ to protect victims or potential victims when they know or ought to have
known of suspicious circumstances (Rantsev, above, para 286). The problem is that
for present-day slaves, it is not only their labour that is commodified, but their
existence as a whole. Individuals who are kept in these conditions live in deep fear.
Their work is their sole income. They do not want to seek help, because going to the
authorities is likely to lead to their detention and deportation. They believe that
remaining ‘invisible’ is the only option for them. The key concern for the authorities
and the organisations that fight for the rights of these workers, therefore, is how to
best give effect to these important undertakings; how to reach out to these individuals,
so as to rescue them from abuse. Enforcement of the new legislation is the challenge
and should, therefore, be the focus from now on. How this can best be achieved is a
matter for the authorities to consider. The International Labour Organisation, for
instance, recently pointed towards the role that labour inspectors can play in such
situations (See International Labour Organisation, Labour Administration and
Inspection Programme, Study entitled Labour Inspection in Europe: Undeclared
Work, Migration, Trafficking, 2010). Section 71 of the Coroners and Justice Act 2009,
though, shows that there is political will to respect and promote human rights
principles in the field. This is a fact that ought to be welcomed and celebrated.


 7