Oral evidence: Draft Modern Slavery Bill, HC [1019], Tuesday 28 January 2014

Oral evidence, 28 January 2014.

Witnesses

Bridget Anderson, Professor of Migration and Citizenship and Deputy Director at COMPAS, Dr Virginia Mantouvalou, Reader in Human Rights and Labour Law & Co-Director of the Institute for Human Rights, University College London, Kate Roberts, Community Advocate, Kalayaan, and Marissa Begonia, J4DW, examined.

Chairman

I gather we have three of our next speakers here, which is splendid. So we think we will start with the three of you, and there is one more to come in just a moment. May I welcome the three of you? Just for the record, would each of you in turn be kind enough to give your name and whom you represent?

Kate Roberts

My name is Kate Roberts and I work for Kalayaan, a charity which works to support migrant domestic workers in the UK.

Dr Virginia Mantouvalou

I am Virginia Mantouvalou, a Reader in Human Rights and Labour Law at University College London.

Bridget Anderson

I am Bridget Anderson from the Central on Migration, Policy and Society, University of Oxford.

Chairman

I thank all three of you very much for coming. We are extremely grateful. There are questions, obviously, we want to ask, but I wondered whether any one or all three of you had any point you particularly would like to make as a result of having politely sat in on the first part of our session.

Bridget Anderson

Yes, if I could start. I suppose I would like to reiterate Chris Randall’s point about the importance of the Bill as a safety net. Really, what is unusual about domestic labour as compared with many other forms of work where people are vulnerable to exploitation and abuse is that domestic work, generally, is, at best, an ambivalent position when it comes to employment law, so that, basically, the system which can generally be held, one would hope, to protect most workers in the United Kingdom often does not apply in the case of domestic work. For that reason, it is important to think about the specifics of domestic labour as it falls within the scope of this Bill.

Dr Virginia Mantouvalou

I am not sure if similar questions will be asked. I did want to make a broader point in relation to the obligations of the UK with respect to international law on domestic workers.

Chairman

We are actually going to ask something about the international situation. If that is what you wanted to deal with, I think you will get a specific question. Kate, was there anything you particularly wanted—

Kate Roberts

Just one thing, please. I wanted to pick up on the point about what is necessary to protect migrant domestic workers and just to be very clear that, in the view of Kalayaan, it does need to be the reinstatement of the full overseas domestic worker visa as was, prior to 2012, and that changing within six months would be—

Chairman

Could you keep your voice up a bit?

Kate Roberts

Sorry. For domestic workers to be kept on a six-month limited visa, but to be able to change employer, would be of no practical help. Beyond that, we believe it is very important, because of the particularities of the sector and how under-regulated it is, that domestic workers, after five years or whatever the rules in place are at the time, should be allowed to apply for settlement, because if you don’t have this you are postponing the problem. After five years, or whatever time that they are no longer allowed to stay in the UK, you will have employers negotiating with them to stay on informally; people, again, will be put into a weak bargaining position and again you drive the problem underground. I do think the sector has to be recognised as particularly vulnerable, as has been recognised by multiple Committees as well as internationally.

Chairman

I am going to ask Alastair to start and then Andrew and Fiona. Would those who would like to ask questions please wait and bring those in in a moment? I think we will go down the list of our questions. [Interruption as Marissa Begonia joined the session] Splendid, how nice to see you. When you have taken your coat off, would you just mind telling us who you are so we have it for our record? We do know who you are but it has to be recorded.

Marissa Begonia

I am Marissa Begonia. I came here last 1994. I had a domestic worker visa and I have been here for 10 years now. I am working in—part of my work is the—

Chairman

You run an organisation, don’t you?

Marissa Begonia

Yes—Justice for Domestic Workers.

Chairman

Thank you very much.

The Lord Bishop of Derby

You raised the issue that the UK is a signatory to various international treaties and agreements in this area. You have seen the draft Bill. How do you think the draft Bill measures up, and are there things that we are signed up to that are lacking and we should strengthen?

Dr Virginia Mantouvalou

First of all, the most relevant treaty on domestic workers that I would like to mention and the UK has not signed up to is the ILO—the International Labour Organisation—Convention on Domestic Workers. This is a wide‑ranging international instrument that contains a full list of labour rights for domestic workers. It was adopted in 2011. The UK was one of the very few countries that abstained from the vote, so the UK decided not to sign up to this convention, which was probably quite disappointing for advocates of labour rights because of the idea in this Bill that the UK is at the forefront in the protection of the rights of domestic workers. So there is this convention that the UK has not signed up to and does not comply with as well.

The Lord Bishop of Derby

What difference would that make to the Bill as it is written?

Dr Virginia Mantouvalou

Thank you for the question. The Bill now focuses on the most grave cases of labour exploitation, and this is important to have as a safeguard—slavery, servitude and forced labour—but the International Labour Organisation convention contains a much broader list of rights. It says, for example, that labour inspectors should have the right to access private households and inspect the working conditions of domestic workers, a right to a minimum wage and so on. UK law generally does not comply with the convention. There is a situation which can also be described as the legislative precariousness of domestic workers. They are excluded in UK law from many legal protections for many areas of labour- protected legislation. This Bill, although it is a positive step, of course, which captures certain grave cases of exploitation, does not capture what is required for the decent treatment, let’s say, of domestic workers.

Kate Roberts

If I could just add to that, my understanding is that the UK’s reason for abstaining from supporting the Bill was because the UK cited the protections that were in place for domestic workers at the time. So it seems rather ironic that they have now removed those protections.

The Lord Bishop of Derby

Just finally and for clarity, in terms of international treaties and conventions we have signed up for, it does fulfil those as far as you are aware.

Dr Virginia Mantouvalou

I want to make a point on this. There may be an issue under the European Convention on Human Rights, I think, because of the overseas domestic workers visa. I read with great interest the memorandum that accompanied the Bill and that involved the European Convention on Human Rights, but there is a case that is not mentioned in the memorandum which has to do with sex trafficking. It is not about domestic workers, but the European Court of Human Rights ruled in that case that a very restrictive visa regime which was in place in Cyprus at the time, in the case Rantsev v Russia and Cyprus, violates article 4 of the convention. It was not the same type of visa; it was an “artiste” visa. This is a different situation, but part of what happened in that case was that a very restrictive visa regime like the overseas domestic worker visa was ruled to be incompatible with article 4 of the European Convention on Human Rights. So there may be an issue under the convention.

The Lord Bishop of Derby

It is very helpful to know that. Thank you.

Chairman

I just wonder whether the Professor would like to add anything to it.

Bridget Anderson

It is not specifically to the question but perhaps thinking about the legal framework. It is worth saying that, when we are talking about slavery and the history of slavery, one of the challenges with anti‑slavery and with the practice of anti‑slavery was not simply bad employers; it was also the laws that returned slaves to their masters, which meant that slaves were afraid of leaving their masters, and so it is useful, too, to think in those kinds of terms when we are considering the broader questions.

Marissa Begonia

Can I add something because it is relevant to the ILO Convention No. 189? I was at the domestic workers’ group delegation of the United Kingdom during the two years’ discussion. I witnessed the UK Government opposing every article of the convention and the fact they said that they couldn’t vote for it because domestic workers in the UK are already best protected. Well, they simply just swallowed what they said, because at the end of it they removed the rights of domestic workers. I think that must be put on the record. Thank you.

Andrew Stunell

We have heard some evidence already, but could you comment on whether migrant workers in this sector are aware of their rights, and, if they are not aware, what is the best and most effective way of improving that situation?

Marissa Begonia

In my own experience, as well as my fellow domestic workers because we are always together, I did not know actually what my rights in the UK were before coming here. Basically, it is our employers who face the British Embassy and we are not given any statement about what our situation will be in the UK. Coming to the UK as well, at the airport, we can only hold our passport when we face the immigration officer, but, after we pass through, our employers will take our passport. That is the most common practice of most employers. Only when we manage to come here, we manage to speak to our fellow domestic workers and we find out that we can actually change employer and we have rights in the UK. That was the good thing about the old overseas domestic worker visa. Even me, I had sexual harassment abuse; there are different forms of abuse as domestic workers. I was able to escape that abusive employment because of the overseas domestic worker visa. We used to have the right to change employer, the right to renew a visa, and eventually to have ILR—indefinite leave to remain—or settlement and become British. But it is also our choice. Not everyone applies for that, for British application, depending on their nationality as well. That is the best practice that the UK could be proud of in the world and always be proud of. They were right to say that in the ILO convention, but to do the opposite at the end of it is very shameful.

Kate Roberts

If I could just add to that, as Marissa says, many are not aware. What the Government needs to do is follow its own practice—its stated practice, sorry—which is that domestic workers should be interviewed separately from their employers when they are applying for the visa and they should be given an information leaflet saying that. That is now worth a lot less than previously because the current information leaflet states quite clearly that domestic workers are not allowed to change employers and it could be a tool for an exploitative employer. To show them UKBA headed paper saying you are not allowed to change employers would be quite a good way to persuade someone that they need to do what you say. The leaflet does say that they have access; for example, the pay and work rights helpline has the Kalayaan address on it as well. First, as Chris mentioned, when we have supported workers to phone the pay and work rights helpline, they have been told that the national minimum wage exemption applies because they are living and working as a member of the household. In answer to your question, yes, they would be informed of their rights separately from their employers, because we do hear instances even of employers being used to interpret for workers in the overseas embassies. A back-up check could be a point of entry to the UK. We see workers at Kalayaan who do not even hold their own passport when passing through passport control. That should certainly be picked up by a border officer, who could take that opportunity to rebalance the power slightly and say that that passport belongs to the worker, and make sure it is returned to the worker, to show a little bit what the laws are in this country. So I think there are opportunities to inform domestic workers.

Fiona Bruce

As I understand it, you are saying that possibly better checks when a domestic worker enters the country could protect them to a degree, but, ultimately, really the root of the problem is the inability to change employer. Do you agree with some of the previous evidence that this is really the cause of a lot of oppression?

Kate Roberts

Yes, I agree. Quite frankly, if there are no rights to enforce, then informing people doesn’t really help if they are rights they don’t have. So, yes, ultimately, domestic workers need the rights they had under the original domestic worker visa, but, once that is in place, there are very practical measures that can be taken to inform and protect domestic workers and help them to access those rights and practices.

Fiona Bruce

Do you think that would be sufficient to protect them from being charged with immigration offences?

Kate Roberts

When the original domestic worker visa was in place there were instances, occasionally, of domestic workers being wrongly charged with immigration offences. For example, we would come across cases where the domestic worker would escape abuse and the employer would phone UKBA, which would curtail their visa. This should not have happened because they had the right to change employer. Of course things went wrong, but, when things went wrong, the law was in place for us to work towards putting things right. At the moment that structure is not in place to protect domestic workers.

Fiona Bruce

Thank you. Possibly the Professor might know this. Do you have any statistics on the numbers of domestic workers charged with immigration offences under the present legislation?

Bridget Anderson

No, I am afraid I do not, but could I just quickly respond to one of the points that you make? First, there is a problem not only with domestic workers not knowing their rights but also with employers not knowing their duties and obligations. To some extent this is understandable because, in fact, the domestic law is incredibly complicated. You have the basic, “Can you or can’t you change employer?”, but the whole legal framework around the employment of somebody in the private household is very fraught, so it is very difficult to negotiate. As we heard from earlier witnesses, if the national minimum wage enforcement line sometimes is not giving correct information, that is a problem. Secondly, there is this question of checks on entry. It is worth considering, if an immigration officer is to discover an abusive employer on entry, what then happens to that employer and the domestic worker, because, quite frankly, if you have a wealthy employer with an impoverished domestic worker and the employer is not allowed entry on the basis of that relationship and both are returned, that is not good news for the domestic worker. It is important to think through the consequences of those entry checks and what the responses would be.

Fiona Bruce

Just going back to the point, perhaps I could ask the rest of the panel if you have any idea of the numbers of domestic workers charged with immigration offences under the present regime.

Kate Roberts

We do not have any statistics on that because we do not have the reach. We are a very small organisation. We do know that domestic workers have been charged with immigration offences, having left their employer. I have also spoken with colleagues at the POPPY Project, who do outreach into detention centres and have come across domestic workers in detention.

Fiona Bruce

Compared with that small number that you are aware of then, are you saying there is a much larger number of domestic workers now who are basically working in oppressed situations which could certainly be called servitude?

Kate Roberts

The problem is that we do not really know what is happening to the people we don’t see, but what we do know is that in the year since the current visa was introduced, tying domestic workers to their employer, the numbers of visas issued remained pretty constant over the last five years, but numbers coming into Kalayaan dropped by about a third. Of those, the numbers on the new tied visa were very proportionately low, so people are not coming forward. Of those who did come forward, they reported far worse treatment. So it does imply that people are either enduring abuse or they are being driven underground. Marissa might be able to talk more on this.

Marissa Begonia

My phone is on 24 hours. I often receive calls at midnight from people seeking help. I can hear on my phone the employer throwing things at them and I can hear shouting. Basically, they have not been fed; maybe they would eat a sandwich in a day. There is no salary as well. Then to be beaten is the worst thing. We have to take a taxi at midnight to go and rescue them, but, knowing they are already undocumented, what shall we do? I wouldn’t even refer it to the police. I know what is going to happen. Where is the protection? It has all gone. I myself don’t know what to say and don’t know what to do. We can just support them to survive temporarily for food. Most of them we come across with no money at all, no shoes, beaten. This is happening today. I don’t know how you all could take this—that we have this in this country. Why can’t they have what I have? Here I am. I can face everybody. I can face and represent this country around the world and make proud of this country what happened to me and what changes of how I managed my life. I don’t really understand why this has to happen, and I hope you can do something to improve and to reinstate what has been removed, and look at some other ways to improve it.

Chairman

Thank you, Marissa.

Lord Warner

Having heard that, no one could deny that there are some problems in this particular system that need to be addressed, but can I just explore a bit more this issue of reverting from the 2012 change to the immigration laws back to what went there before? I suspect what I am going to ask is not going to be universally popular with the panel and the audience, but, nevertheless, I will persist. If you try to look at why those rules were changed, I suspect it was the right to settlement which was the biggest problem. Let’s go back to why migrant workers are coming here in the first place. I can see the case for not restricting a migrant worker to a single employer. I can see the case why you need to be able to change that employer in order to protect the migrant worker, but, if most of the migrant workers are coming here in order to earn money to repatriate to their country, I cannot quite see where the right to settlement comes in because, if people are here earning money to repatriate, there is a presumption that they will want to go back to their country at some point. I think we need to try to untangle this issue a bit more, unpopular though it may be, because, if one wants to do something to safeguard the right of an abused migrant worker to change their employer, one also has to look at the other consequences if you continue to give a right to settlement with their employer. It is possible to address the mischief, which is an abusive employer that you are trapped with, without giving a right to settlement. Are we not getting tangled up with two sets of issues here?

Marissa Begonia

I am a mother of three children, and for 17 years of my life I never had them. I have been longing like any other mother to be a normal mother and I never had that, like anyone else maybe in this room, mothers or fathers. I have worked so hard to be able to feed them, to be able to provide a living for them. Whatever work I do, I am very sure that contributes to the economy; that contributes as well to my employer, allowing me to be able to be here, to be able to travel, because she recognises that she is able to do her work perfectly. She is a banker, and in that position as a woman it is never easy to leave a child in the hands of a stranger. That will give her peace of mind to be able to travel around the world. She also looks at herself as an immigrant in another country. As me as an immigrant here, she looks at me and her as the same. She leaves her child with me. I leave my child back home to be able to survive, provide for a living. It is the same. I think that one has to recognise the connection of work sectors. There is a group of workers working round the clock in the household that allows everybody to work; that is the oil of the economy and that should not be forgotten. Also, another thing, in terms of settling here, it is our choice. Like me, it took me 17 years to have my children here. Am I a burden to this country? Through my job as a domestic worker I could provide a living for them. I am hoping some day they could be anyone else in any other sector. Are they a burden? They study, they work and provide for their own pocket. What are we stealing in this country? We work hard for what we have. We contribute.

Lord Warner

Could I just interrupt you? I am not making an argument for a burden. I am not taking a position on what the Government’s immigration rules are or should be. I am trying to address the issue of the problem of those 2012 rule changes trapping a large number of people in the dangerous position of an abusing employer. That is the issue I am trying to address. I am not arguing that migrant workers are spongers or anything else. I am just trying to address that simple issue because we are where we are, whether we want to be there or not. Is there a middle way of trying to address that issue?

Kate Roberts

When the April 2012 changes were made, to our knowledge there was no evidence that domestic workers were really contributing to net migration in the UK. Many are not necessarily applying for settlement anyway. It has been very hard to get accurate figures, but the closest we got was less than 0.5% impact on net migration to the UK from this route. So the impact appears to have been disproportionate in terms of repercussions for this sector of workers who are particularly vulnerable because of the unregulated and hidden nature of domestic work in private households. Even Andrew Wallis of the CSJ has said on this—I think he has quoted an Andrew Boff report—that it would be naive to think that the 2012 change had any impact on migration. The impact has been disproportionate and it has not been shown that it made a difference on net migration anyway. Even if it did, this sector is so unregulated it does appear that to remove the right to settlement would, as I said earlier, just postpone the problem of these particularly vulnerable workers being exploited.

Marissa Begonia

Also, in our experience, with the renewal of the visa every year, there is also the tendency that we become undocumented because there are so many strict rules. We have to have an employer and continuous work to be able to renew the visa. So the road to settlement actually is the final that we could release ourselves to be independent, without employer support all the time, because the employer could also use that to abuse us, knowing that we need their support to be able to renew the visa so we won’t be undocumented. We have to put up with that. That was actually the problem still with the old domestic worker visa. In our experience even now, we still have some domestic workers who have not been and they are still renewing every year under the old system. They are in a very difficult situation. Every time they renew their visa they have to put up with the situation. Some are even being raped just because they are so afraid to be undocumented. We have members in that situation. We need to look at the special vulnerability of domestic workers. Yes, there is the existing, but it also needs to be improved. So to remove all those rights is really a big problem and more crime.

Bridget Anderson

To be purely pragmatic about it, in my observation, quite often when it comes to visa renewal, there is always this anxiety about irritating the employer or making any perceived demands on the employer because of dependence on the visa. I do think there is an argument that, if you don’t want to create a two-tier work force, and, importantly, a tier of worker whom employers find more desirable because they have this additional means of control, then a route to settlement is absolutely critical. Perhaps to add to Marissa’s point, even though I understand your question, one of the particular things about domestic workers is that not only are they contributing to the economy but they are also building families. They are ensuring that families can function as families. That is something which you might not be able to put an economic value on but is really very important.

Dr Virginia Mantouvalou

May I add just one final point since we have focused on the visa? There was a similar visa regime in Israel. The Israeli High Court found it incompatible, contrary to the Israeli constitution, because it violates human dignity, it said. So there may be some lessons for us to learn from the Israeli example.

Baroness Doocey

You make a powerful case for why we need to revert back to the previous version of the previous visa, as have our previous witnesses. What I am not clear about is, if for whatever reason that is not possible to achieve, what could be done to make the current situation better: i.e. is there a halfway house on this?

Bridget Anderson

I am not sure if it is a halfway house, but perhaps, in the spirit of disentangling matters, also there is a question with the regulation of domestic labour completely separately from the questions of immigration. What happens with immigration is that this deregulation of the sector is then compounded because of the immigration regulations. The family worker exemption when it comes to minimum wage, the problems with the application of the working time directive and health and safety legislation, are all things which are completely separate from immigration and which need to be looked at.

Dr Virginia Mantouvalou

Another way in which the situation of domestic workers could improve is that the current Health and Safety at Work etc. Act 1974 explicitly excludes domestic work from its scope. So labour inspectors cannot visit private households. On the one hand, you have decent work for domestic workers—the working conditions—and, on the other hand, you have issues of privacy, obviously. They work in private homes. Here, for instance, the legislation excludes them completely from protection, but in other jurisdictions there are probably better solutions. In France, for instance, as far as I know, you can get a court order. A labour inspector can get a court order, and in this way the labour inspector can visit a private household or, if one of the two parties—the employer or the worker—requests a labour inspector, then they can visit. Domestic workers are excluded from labour inspections, but labour inspections could provide a guarantee, for instance.

Kate Roberts

Unfortunately, in the experience I have had working at Kalayaan since the visa was changed, I find it hard to see how another system would work. We are first responders. We do work with the NRM, but it is proving very, very difficult to support domestic workers, even those whom we identify as trafficked, who enter the NRM and who have come on this tied visa.

Mr Randall

How big a problem is the abuse within the diplomatic community?

Kate Roberts

Again, at Kalayaan, because we are so small we do not have a picture of the overall problem, but certainly, prior to the changes, prior to 2012, the figures we have are that approximately 3.8% of domestic workers coming with diplomats were found to be trafficked, compared with 0.2% of those on the original visa. So it was greater. We do not have the figures since the visa became tied, but it is true to say that diplomatic domestic workers are potentially additionally vulnerable because of their employer’s immunity to prosecution.

Mr Randall

Is there any monitoring that is done of particular states, or whatever, who are worst offenders?

Kate Roberts

Not that we know of.

Mr Randall

Do you think that would help? Do you think that would shame, effectively, certain states? Do you think that is an avenue we should be looking at, because, obviously, it is incredibly difficult with diplomatic immunity?

Bridget Anderson

Could I make a suggestion, which is not so much about monitoring but about an initiative that is being developed by the OSCE, which is basically to train all ambassadors and diplomatic personnel in best treatment when it comes to the employment of their domestic staff? The OSCE organise these international training sessions and it is actually a very useful and helpful initiative.

Chairman

Do we know if any of the middle eastern ambassadors are involved in this?

Bridget Anderson

I think they are under pressure to attend.

Mr Randall

If, in the past with Kalayaan, when you have had somebody who has been involved—obviously you can’t prosecute the perpetrator—do you know whether the perpetrator goes back, or are they there still left, basically, to offend again?

Kate Roberts

We know of both happening, but, I suspect, in more cases the perpetrator is left to offend again. Again, because we see such small numbers it is hard to say.

Mr Randall

I do appreciate that. So there would not be cases of them spiriting them away.

Kate Roberts

We have seen instances at Kalayaan of diplomatic domestic workers coming and then another domestic worker having been brought in by the same diplomatic employer.

Mr Randall

You would say that one of the most serious things about this—as for anybody else, but with a diplomat it is probably even more so—is that because they can’t get another employer they are stuck; they are absolutely stuck.

Kate Roberts

Yes.

Chairman

One of the police, Kevin Hyland, sent some written evidence to us in which he suggested that, where the Director of Public Prosecutions considered that, but for diplomatic immunity, charges might be brought, the DPP should refer it to the Anti‑Slavery Commissioner so that the Anti‑Slavery Commissioner could report it to Government. Do you think anything like that would be of the slightest use?

Kate Roberts

It would depend partly on the reach and the capacity of the Anti‑Slavery Commissioner and what the impact of such a report would be for the perpetrator.

Chairman

The idea would be that somebody would have been prosecuted but, because of diplomatic immunity, they couldn’t be prosecuted. This would be some sort of pressure on, I suppose, the Government of that particular diplomat.

Kate Roberts

I assume that additional pressure would obviously be helpful, but, ideally, diplomatic domestic workers do need to have the same recourse to justice as others.

Chairman

We know, don’t we, as a matter of reality, that you can’t interfere with diplomats?

Dr Virginia Mantouvalou

I am looking at my notes somewhere. The recent domestic case law, but also abroad in the United States, finds that there may be exemptions to diplomatic immunities for cases of grave abuse of domestic workers.

Chairman

What about the United States case—the one where there was a great row with the Indian Government about an Indian woman?

Kate Roberts

There are some test cases at the moment looking at diplomatic immunity with regard to diplomatic domestic workers, because it could be argued or it is being argued that the employment of a domestic worker in the diplomat’s private household is not perhaps a function of the diplomatic mission. I am not a lawyer, but there are test cases.

Dr Virginia Mantouvalou

I have a High Court case here of 2012 that involved a domestic worker who had not had her salary paid in full. The court said that the former diplomat—“a former diplomat”—

Chairman

That was the problem about that case.

Kate Roberts

The point remains that, once a domestic worker who has been employed by a diplomat escapes abuse, I don’t see why they then can’t be afforded at least protection within the UK, even if they can’t take a prosecution against their former employer, because they are no longer part of the diplomatic mission. Surely they should then be entitled to protections.

Chairman

That is a point we shall certainly take up. Alastair, did you want to ask something else?

The Lord Bishop of Derby

That is it. If we want to focus on victims, then that is a very important point you have just made.

Fiona Mactaggart

Dr Mantouvalou, I am interested in section 71 of the Coroners and Justice Act, which is our present, if you like, slavery protection. Do you think it has worked to deal with compulsory labour?

Dr Virginia Mantouvalou

I understand that there has been only one prosecution from Kalayaan, so it does not seem to me that it has worked in this way. There is a big problem about accessing domestic workers. Many of them are migrants. Sometimes, as was said earlier, they are undocumented so they would not go to the authorities. They are excluded from labour inspections. Unfortunately, although the enactment of section 71 of the Coroners and Justice Act was an important development, it does not seem to me that it has worked because of the difficulties in reaching the domestic workers.

Kate Roberts

Under the current rules, with the tied visa, it would be very easy or it would be possible for a defence to argue that the domestic worker has an incentive to make these allegations because she is now prevented from changing employer. There is a risk that the defence would try to use that as an argument, whereas, previously, when domestic workers had the right to change employer, there would be no incentive I could see to allege that they had been trafficked or otherwise abused by their former employer, because, surely, if they wanted to have an easy life they would take another job, earn a living and remit money home.

Fiona Mactaggart

I am kind of worried about definitions in this Bill. I am just worried generally about whether we have a clear enough definition, looking at some of the bits of case law that I have been able to see, of the offences of modern slavery, as it is termed. Slavery, servitude, false or compulsory labour are, it says, to be construed in accordance with article 4 of the Human Rights Convention. Are we confident that that definition really does give the courts enough clarity about servitude, what it is, what the difference between it and enslavement is, and what the difference between labour exploitation is, because one of the things that I have been hearing is us wandering along those margins?

Chairman

I think we are going to spend quite a lot of time on Thursday really going through that.

Fiona Mactaggart

I am just interested in trying to get this from this group.

Chairman

Oh, certainly, but I am just going to say that we are going to spend a lot of time on this. I am very unhappy about the definitions. We have already had a QC say, “Scrap the first three clauses.” So it is a good start.

Fiona Mactaggart

I am quite interested in people who are looking at this academically internationally, giving us their feedback, as well as people who are doing it within case law.

Bridget Anderson

There is a very fundamental problem with what constitutes slavery, given that we are not talking about chattel slavery, given that it is not about a slave system, and, given that the more constrained one’s options, the more enthusiastically one will consent to abysmal conditions. You are not going to find me working for tuppence ha’penny in a potato farm. However, somebody who is very impoverished might be working next to me actually having chosen to do that. Part of the problem with that haziness of definition is that in the end, ultimately, one always gets reduced to physical force. There is a danger that any other form becomes not as bad: so, “Oh, you didn’t get paid the minimum wage. Well, you were lucky you weren’t raped.” There is a danger of initiating that kind of response. There is also a danger of looking at what might be seen to be systematic problems and turning them into problems of single bad employers. The domestic worker, in fact, is a case in point, where we have to look at the system and what it is in the system that allows one person to abuse another with impunity or to feel they have impunity. This isn’t just about a bad person—it is also about a bad system. So I take your point.

Dr Virginia Mantouvalou

I probably agree that the case law of the European Court of Human Rights is not always sufficiently clear because the case law on article 4 of the European Convention only started to develop after 2005. So the court is looking at what is sex trafficking, what is forced labour and domestic labour. It has been unclear whether it is about a right to own a person and so on, but it is the best that we have thus far. It looks at International Labour Organisation Conventions as well, so it gives a good starting point as a set of principles. On the issue of coercion, and what Bridget just said, it is important that it is made clear in the Bill, explicitly perhaps, that we are not only talking about physical coercion but here there are many cases of psychological coercion of people whose alternatives are extremely poor because they are impoverished or because they will be deported for reasons like that.

Fiona Mactaggart

Kate, would you be opposed to a statutory duty to refer to the NRM?

Kate Roberts

A statutory duty for all first responders?

Fiona Mactaggart

Yes.

Kate Roberts

Yes. We would have real concerns with that. We would see that as a fairly anti‑victims’ rights approach. Kalayaan has historically had a lot of trust from domestic workers, from community members. Domestic workers hear of us and come to us because they have been told that they can trust us and we will give them impartial advice. I have no doubt that, if word got out that people would be referred, even anonymously, into the NRM, there would be confusion around that, and numbers coming to us would drop and people would stop trusting us.

Fiona Mactaggart

If there was a Commissioner or some independent body whose job was to collect data, what would you feel about having a responsibility to pass information to that in an appropriate form, which did not identify individuals and did not actually have any bearing on what happens to them next?

Kate Roberts

Data collection is quite different from an NRM referral. We would have fewer concerns around sharing information for data collection purposes, but I wouldn’t see why that had to be statutory. That is something we are happy to do anyway. To make it statutory, how would that even be enforced anyway? I don’t see why that couldn’t be voluntary.

Chairman

Could I just ask: do you actually do it?

Kate Roberts

We do. We do share data. Q 146Chairman: Who do you let know the numbers of people you have at Kalayaan and so on?

Kate Roberts

We publish data in our annual report every year.

Chairman

Yes, you do; that is true.

Q147Fiona Mactaggart

My final question is about defined victims. If there was a definition of what constitutes a victim in the Bill, or something like that, which made something like the National Referral Mechanism a creature more of law than of process, what do you think the disadvantage for some of the people who seek your help would be for that happening? Do you think that they will not want to be defined as victims, and, if so, why?

Kate Roberts

When people come to Kalayaan they are unfamiliar with a lot of these systems anyway. The issue is if misunderstandings spread about the role of the organisation and our confidentiality. That is the risk, really—if people start to believe that for whatever reason they can’t trust that Kalayaan will deliver a safe and confidential service. Terms such as “victim” and “trafficking” are unfamiliar to most domestic workers when they come to us, but I would be worried that people would start to think that we were part of the Government, and if they came to us they would be referred automatically to the Government and this would be unsafe for them.

Fiona Mactaggart

If they acquired rights through that mechanism, you would encourage them to refer themselves.

Kate Roberts

Yes, but that must be a choice they need to take when they have been properly informed. There is also a capacity issue if we start to have statutory responsibilities.

Marissa Begonia

Basically, in our experience we have tried to explain the choices, but there is not an option for them. It is important for us to let them understand that because they know there is no hope for them; they become undocumented. We find it hard as well to bring them with us. Normally they change their number and we can’t find them any more. Sometimes they would call us and then we will go and rescue them in the private household where they are working. Of course the employer knows that they can abuse them and the system allows that, so what do you think will happen to them?

Chairman

Does anybody else have any questions? We are more or less running out of time. May I thank all four of you very, very much for your extraordinarily valuable contributions to us today. We are really extremely grateful to you all—perhaps I might say particularly to you, Marissa, because you give it to us from what really happens, and that is something which is particularly valuable for us. I thank all four of you very much indeed. Oral evidence: [Draft Modern Slavery Bill] 11