On August 17, the United Kingdom Home Office published terms of reference for an Independent Review of the Modern Slavery Act 2015, the first national legislation to address modern slavery by providing a legal framework to do so. The Act, in pertinent part, established a series of criminal offenses pertaining to slavery, servitude, forced labor, and human trafficking, provided law enforcement with various powers, and established a requirement that commercial organizations that supply goods or services and have a total turnover of not less than an amount prescribed by the Secretary of State disclose annually what action they have taken to ensure there is no modern slavery in their business or supply chains.
According to the terms of reference, the aim of the review is to report on the operation and effectiveness of, and potential improvements to, provisions in the Act. The review is to be conducted by a team of three independent reviewers (including two Members of Parliament), who will gather evidence and seek views from relevant stakeholders. The Home Office noted that this process “could include a call for written submissions, evidence sessions on particular aspects of the legislation, and interviews with representatives from civil society, business, law enforcement and other interested bodies.”
The following provisions of the Act will be considered in the review:
- Section 3 – The Meaning of Exploitation: This section, which sets out the meaning of exploitation for the purposes of the section 2 offense (arranging or facilitating travel with a view to the victim’s exploitation), defines “exploitation” broadly to include slavery, servitude, forced or compulsory labor, sexual exploitation by reference to conduct specifically covered in certain other laws, exploitation in the context of trafficking for organ removal or for the sale of human tissue by references to offences in the Human Tissue Act 2004, and all other types of exploitation where a person is subject to force, threats or deception which is designed to induce him into providing a service of any kind, providing a person with benefits or enabling another to acquire benefits.
- Sections 8 to 10 – Reparation Orders: These sections involve the making and issuance of slavery and trafficking reparation orders, which direct persons convicted of a slavery or trafficking offence to make reparation to victims.
- Sections 40 to 44 – The Independent Anti-Slavery Commissioner: These sections provide for the establishment and powers of the Independent Anti-Slavery Commissioner.
- Section 45 – The Statutory Defense: This section provides for a defense for slavery or trafficking victims who commit an offence that they were compelled to do so.
- Section 48 – Independent Child Trafficking Advocates: This section establishes a duty on the part of the Secretary of State “to make such arrangements as the Secretary of State considers reasonable so that specialist independent child trafficking advocates are available to support and represent children who there are reasonable grounds to believe may be victims of trafficking.”
- Section 54 – Transparency in Supply Chains: This section requires a commercial organization over a certain size “to publish a slavery and human trafficking statement each year which sets out the steps it has taken to ensure there is no slavery or trafficking in its supply chains or its own business, or states that it has taken no such steps.”
The Home Office also stated that the reviewers “will report on the evidence they gather and submit recommendations to the Home Secretary in March 2019.” The Home Secretary is then to lay the report before Parliament.
The Home Office announcement followed closely on the heels of two reports about the extent and effects of modern slavery. First, in July the Home Office issued a research report, The economic and social costs of modern slavery. That report set forth numerous findings, such as:
- The estimated total costs of modern slavery in the United Kingdom – comprising anticipation, physical and emotional harm, lost output and time, health services, victim services, law enforcement costs, and suspected victims — are between £3.3 billion and £4.3 billion.
- The estimated unit costs (cost per victim of exploitation in the UK) for each type of modern slavery are (1) labor exploitation, £318,810; (2) sexual exploitation, £319,500; and (3) domestic servitude, £390,080.
- “The fact that the unit cost of crimes of modern slavery is second only to homicide justifies treating this crime type as a priority due to this high level of harm to society.”
- Incidence and Prevalence of Modern Slavery: The Foundation reported that “[t]he number of people falling victim to modern slavery in developed countries is far higher than previously thought.” The United States reportedly has 403,000 people living in modern slavery in the US — 1 out of 800 Americans – seven times higher than previous estimates, and the United Kingdom has 136,000 people in modern slavery — nearly 12 times higher than previous figures. (It should be noted that the Home Office’s 2018 report summarized above estimated the total number of modern slavery victims to be only 10,000 to 13,000 (pp. 6 and 8).)
- Total Enslaved People: 40.3 million people worldwide were in modern slavery: 24.9 million in forced labor, and 15.4 million in forced marriages. 71 percent of enslaved people are women, a large proportion of whom are in forced marriages.
- Total Amount and Largest Importers of “At Risk” Products: The Foundation reported that developed countries “are heavily exposed to the risk of slavery within their supply chains,” with. G20 countries annually importing more than $US354 billion in “at risk” products. The United States is by far the largest importer of at-risk products ($US144 billion), followed by Japan ($US47 billion), Germany ($US30 billion), the United Kingdom ($US 18 billion), and France ($US16 billion).
- National Responses to Modern Slavery: Eight G20 nations — Australia, Brazil, China, France, Germany, Italy, the United Kingdom, and the United States – “have all introduced or are taking steps to introduce laws that would tackle modern slavery,” but the other 12 nations have not yet formally enacted laws or policies to stop businesses sourcing goods from forced labor.
Note: Law firms and companies that focus on Modern Slavery Act compliance issues should track developments with the Independent Review, including potential opportunities for written submissions to the reviewers and evidence sessions on the issues that the Review identified.