Oral evidence: Draft Modern Slavery Bill, HC [1019], Thursday 30 January 2014
Oral evidence, 30 January 2014.
Witness
Professor Jean Allain, School of Law, Queen’s University, Belfast, examined.
Chairman
Welcome to the Joint Committee. Would you identify yourself for the record?
Professor Allain
My name is Jean Allain. I am a Professor of Public International Law at Queen’s University, Belfast.
Chairman
Thank you for coming.
Lord McColl of Dulwich
Why do you recommend that the definition of slavery found in the 1926 slavery convention should be included in the Bill?
Professor Allain
First and foremost, I would say that the reason it should be included is that there are international obligations that flow from not only the 1926 convention but also the 1956 convention and the 1998 Rome statute for the International Criminal Court. In the first two instances, the UK took the lead in drafting those conventions and in seeing those conventions through. The 1926 definition itself was drafted by Robert Cecil—Lord Cecil of Chelwood—and in many ways it is a living legacy of his that this definition persists. The UK took the lead. Secondly, states agree that this is the international definition. It is included in a number of countries. Most recently, last July, France incorporated the definition into its legislation. There is legal certainty in the 1926 definition. There is a lot of rhetorical inflation around the notion of slavery—that slavery is here and there—yet in legal terms we have to ensure that there is legal certainty in a court of law and that we have brackets around the notion of slavery; that it is a crime which is exceptional and should be treated as such. As a result, we should have brackets around it, so that not only prosecutors know with some certainty going in that they will get a prosecution on the way out, but that it also allows for the rights of the accused to be respected and for them to know the charges against them. It also allows judges to apply the law properly. Finally, it allows the general public to know what is and what is not slavery. It also provides an opportunity in a context where the European Court of Human Rights has not been very strong in giving forward guidance as to what slavery means. In that context, we have an opportunity to include in this Bill the 1926 definition, which has contemporary resonance, and which has proven itself to be very robust in the sense of, in the Australian context, finding a lot of prosecutions where this exceptional crime transpires. From those reasons flow my recommendation for the definition itself. That definition is somewhat opaque, but I will help to unpack it. The definition is “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” It sounds at first instance as if you need to own somebody. The brilliance of Viscount Cecil’s definition is in the legal elements of it: status or condition. Status is a legal status. It deals with the issues of chattel slavery—slavery of old—which no longer exists today in all jurisdictions, so how do we deal with it in a context where you no longer can legally own another person? How can there be a crime? If you think about it in the sense of drugs—heroin—you cannot legally own a kilo of heroin, and yet we have prosecutions all the time for what is de facto ownership. The definition talks about status, but it also talks about condition: the condition of finding somebody. This is the context of contemporary slavery. You find yourself in the condition of being enslaved. The other part of the definition talks not about a right of ownership but about exercising the powers attaching to the right of ownership. What does this mean? I had the opportunity to undertake a two-year long survey, with about 20 other individuals and experts, on property law in contemporary slavery and in historical slavery. We took our lead from Anthony Honoré, who at 92 years old remains Regius Professor Emeritus at Oxford. More than 50 years ago, he set out what the powers attaching to the right of ownership are. That article has become part of the canon of common law.
Chairman
Might we just pause for a moment? We have looked at your submission. I am slightly worried that we are going to lose valuable time. We have some specific questions. Ian, would you like to follow up on this?
Lord McColl of Dulwich
Do you think the definition is sufficiently clear and simple for modern use? Does it cover things like forced labour?
Professor Allain
I think it is sufficiently clear. The Australian experience tells us that you can get prosecutions. Does it cover forced labour? My approach is to say that slavery is exceptional. It may in some instances cover forced labour where someone controls another person and then uses them. It can cover a number of different types of what we might call modern forms of slavery, but in a court of law what I am more interested in seeing is not what you may call something—what the form is—but what the substance is.
Chairman
I don’t think you’ve actually answered the question. Does it cover it?
Professor Allain
Yes. What I am saying is that in certain instances it might cover forced labour, but it would cover it in a situation, as we heard earlier, of a sweatshop where people are locked in and where they do not have any control over what they can or cannot do. The awkward thing about forced labour is that it has a very long arc. Forced labour, as it is defined by the ILO, can be as little as a manager saying to somebody, “If you don’t accept less than the minimum wage, you’re fired.” That meets the definition of forced labour. If you go to the other extreme of the arc, it is someone putting a gun to somebody’s head and saying, “If you don’t work then I will kill you.” To me there is a long arc. The definition of slavery will catch it when it is severe enough that it meets what is in essence the definition of slavery, so in other words—
Lord McColl of Dulwich
What about exploitation for blood transfusion, sham marriages and things like that?
Professor Allain
Again, if you want to give clarity in the legislation and some forward guidance, enumeration of the forms gets you into this dangerous trap of having to add all these things. Part of the beauty of sticking with the notion of slavery is that, for instance, with sham marriages you are not trying to deal with them as sham marriages; you are asking, “In this specific situation, does this sham marriage equate to, or raise to the level of, having somebody enslaved?” It may well be in that case.
Baroness Butler-Sloss
We are now in the year 2014. We are looking at the wording of 1926 with a concept of the right of ownership, which it seems to me does import elements of property law. There are three points I wanted to make to you for your help. First, what about the police, the prosecutors and the jury? How are they going to understand, in a domestic servitude case, a prostitution case or a begging case, as examples, the wording of rights of ownership as appropriately covering those sorts of questions? You said that the definition is relevant and acceptable internationally. In this country, we are bound both by the European convention of the Council of Europe and also by the European directive. We know that the Commission does not recognise the word “slavery;” they look to “human trafficking.” We have to bring into this Bill that which is recognised within Europe, even though it may be something that will not be the same as that in Australia. How do you see this? It seems to me that this is perhaps a trifle arcane, if I may say so Professor, for 2014.
Professor Allain
The question was, in the case of domestic servitude or begging or prostitution, how would you understand slavery in a court of law? How would you explain it?
Chairman
Within your terms of reference.
Baroness Butler-Sloss
Within the right of ownership. How would the police see it? I am looking at the various groups, from the police who are picking somebody up as a trafficker, to the prosecutor, the judge and the jury, in this sort of wording.
Professor Allain
The approach is: how do you explain it in the sense of the definition? In essence, in property, when we try to understand what it means to own something, it is about control. In the context of contemporary enslavement, it is about control. It is not about buying or selling. The very substructure of property law is about control. You cannot buy or sell something unless you control it. In that context, the judge has to inform the jury that what you are looking for in a case of contemporary slavery is control tantamount to possession. Did you treat this person as if they were a piece of property? What does this mean? Once you control that person, you can buy or sell them. You can use them; you can manage them.
Baroness Butler-Sloss
Could I interrupt you on that? I read with great interest your slavery definition written by you and Kevin Bales. Going to guideline 2—“The Exercise of the Powers Attaching to the Right of Ownership”—you say, “In cases of slavery, the exercise of ‘the powers attaching to the right of ownership’ should be understood as constituting control over a person in such a way as to significantly deprive that person of…individual liberty, with the intent of exploitation” and various other things. Why don’t you go directly to that? People would understand control and deprivation of liberty, but the right of ownership seems to me too arcane. Why don’t you go to control?
Professor Allain
What we sought to do in the Bellagio-Harvard guidelines was to unpack that understanding. My thought in the first instance is that we are not trying to reinvent the definition of slavery. What we are trying to do is to demonstrate it by unpacking it and using what is internally consistent in the law. If you were to approach that as a judge or a lawyer, you would say it is about ownership. You want to be internally consistent with the law, but at the same time—
Baroness Butler-Sloss
Professor, I need to tell you that I used to be a judge. Although I did not try very many criminal cases, I did try some with juries. I would find it enormously difficult to explain to a jury the rights of ownership, whereas I would not find it difficult to explain to them that control is deprivation of liberty, and so on. It may be that in 1926 that was okay, but I really do press you on whether it is appropriate in 2014.
Professor Allain
Ultimately, what we are trying to get at is about control: what does it mean when you have control over somebody? We tried in the Bellagio-Harvard guidelines to stay as close to being internally consistent with the definition in its property paradigm. From that perspective, if you are looking at domestic servitude, begging or prostitution, you are looking for control. Did one person control that other person to the extent that the person had no choice, that they lost their liberty and were forced to do things as a result of having lost this control? That is the first of your questions. If I can turn to the second, with regard to international obligations, primarily with regard to the directive and the definition of trafficking, you will know that the definition of trafficking has three elements. The last element is about exploitation. It includes slavery in that as one of the types of exploitation. From that perspective, the way I see trafficking is, in a sense, an ancillary crime like conspiracy for instance, because you are getting at the exploitation. The crime is the movement of a person so as to commit slavery, forced labour and so on. I do not think there is a conflict between the two. I think there is a reason why, as is set out in the Bill, you have these crimes that have been brought into the Bill—slavery, servitude and forced labour—but then they also attach to this notion of those types of crimes transpiring in the context of a situation of trafficking, but not only in a situation of trafficking. They can happen independently of it.
Chairman
Professor, might we now try and take your argument from another angle?
Fiona Bruce
Do you think there should be a freestanding offence of “exploitation”? I note, for example, that you say control would be with the intent of exploitation. I am a little bit concerned that you might have a whole series of individuals through whom this person passes. Not all of them would have the intent to exploit in the way that might be necessary to prove this. Could you expand on that?
Professor Allain
I have had the opportunity to look into all jurisdictions of international countries and the way in which they have implemented the notion of exploitation within their domestic system. There are very many different elements or examples of the type of exploitation that states have used. I have come around to the notion of exploitation because, to some extent, it is definitional. States have gone out and said, “This is exploitation, this is and this isn’t.” The directive goes another way. It says that, if you move anybody against their will and so on—the second element—to commit any crime, then that would constitute trafficking. If you are transported against your will and forced to beg or forced to commit any type of crime, this is what the directive allows for. From that perspective, it seems to me that there may be movement beyond the 28 states of the European Union. You have another 10 states that have this wide ambit, to say that any movement against one’s will for a criminal activity will constitute trafficking. Exploitation is left open to the law.
Fiona Bruce
Just to press you on that, do you think there is a benefit in having a freestanding offence, so that you can capture the very wide and possibly even as yet unanticipated type of activities that could occur?
Professor Allain
I think so. I have had the opportunity to think about exploitation quite a bit, and what it means, because I have often been asked what it is. There are numerous examples. I have gone back to a philosopher’s writing on it. In essence, the philosopher says that exploitation is simply when A takes advantage of B. The way I would measure that advantage is to allow the law to determine what it means to take advantage of something. If it is illegal, it is exploitation; if you are forcing somebody to do something illegal, you are taking advantage of that person. That person would not normally do it.
Fiona Bruce
I think you have answered the question, but to press you for a very short answer, you have indicated that you think there would be benefit in having a freestanding offence of exploitation.
Professor Allain
I think so. We often see that criminality is very innovative. We do not know what will transpire, but in that context a wide open notion of exploitation would allow us to capture things in the future.
Baroness Doocey
Still on exploitation, do you think there ought to be a separate clause, or separate clauses, to deal with child exploitation?
Professor Allain
It is clear that with regard to trafficking, consent is vitiated when it comes to children. I must say that I have not thought too much through the process of whether children should be treated specially beyond this. From my perspective, if you are capturing the essence of forced labour, servitude and slavery, it seems to me that, if you then remove the consent element of it when it comes to children, you are capturing the exceptional nature of these crimes while also ensuring that, in a context where children are involved, there is that added element of protection. I do not want to venture beyond that, because I have not thought through it enough to feel confident in being able to give an answer.
Sir John Randall
When we are looking to see what we can do with the definition, do you think there is legislation in any other countries that we should be looking at for inspiration?
Professor Allain
As far as slavery is concerned, Australia has had since 2008 its equivalent of the UK Supreme Court. Its highest court made a determination in Tang, and from that you have had more than 20 appeals on prosecutions. It is clear that prosecutions are taking place at ground level. If you want to consider trafficking, Moldova has the widest ambit of possible types of exploitation in its legislation, but at the same time it leaves the possibility that something may be left out. I will very quickly mention a number of types of exploitation which I have seen repeatedly in looking at the legislation from various states: begging—but we have it in the EU directive. Illegal adoption comes up quite often. There is servile and forced marriage. Servitude would catch servile marriage. Those definitions are very precise, but there might be place for legislation around forced marriage.
Sir John Randall
Which countries have those things?
Professor Allain
I could send that to you, to outline what those states have.
Sir John Randall
Thank you.
Chairman
Can I take you back to the Australian example? Are you saying that because the Supreme Court made a particular ruling it has triggered 20 appeals?
Professor Allain
At least 20 appeals, yes. In the lead-up to this decision, Australia had incorporated the 1926 definition into its legislation. There was uncertainty, but the court gave a finding—a decision, a judgment—in which the lead opinion set out the nuts and bolts of the application. The second opinion was more of a philosophical approach, thinking about slavery as being the antithesis of liberty, of freedom. That decision sets a good tone as to the manner in which to think about and approach the issue of slavery. In the context of Australia, that has resulted in a number of prosecutions. I have not gone beyond the appellant level, but it is clear that the issue is being tried successfully. From that perspective, there is no problem with the 1926 definition in the Australian context. I would say that, with France introducing that very definition into its legislation recently, there is the sense that, for a very long time, the definition was not utilised but it was caught up in an unwillingness—let’s say—of states to deal with it in the ways we are seeing at the moment. There is a push beyond the UK to consider issues in a criminal context and not necessarily a human rights context. We are seeing a movement of states introducing into their legislation the definition itself and also provisions regarding slavery more generally.
Chairman
That is very helpful.
Mrs Spelman
Taking the example of Australia, it is interesting that Australia looks quite rigorously at child marriages and the problem that people who come from a society in which that is acceptable do not realise their lack of liberty until they come to a society where that is not the norm, and then find no way of attaining the liberty that other people in the host nation enjoy. What you have just described as that philosophical divide between liberty and a lack of liberty is something that underpins that Australian view, isn’t it?
Professor Allain
Yes, I think you are correct. For me one of the beauties of the definition is that you avoid issues of culture, religion and inset prejudices and so on. You have a definition that does not say “forced marriage,” so you may be able to avoid this as being forced marriage because there are religious connotations around it. But then you look at the substance of the situation. In this case, was this person too young to consent? Is this person currently in a situation where they cannot leave? Are they in a situation in which somebody controls them to the extent that they have no say in it? Again, let me emphasise that slavery should be considered as quite exceptional. Part of the reason why we find ourselves discussing the definition of slavery is that for a very long time slavery was used because it is visceral. It was used to attach itself to different things. As a result, if you attach it to more and more instances, it does not mean anything. What we are trying to do, it seems to me, is to recapture the essence of it in a way that in a court of law you can hold somebody responsible for enslavement.
Fiona Mactaggart
You have focused consistently on the issue of consent, and you said that slavery is a very special status. It strikes me that what we are seeking to do in this Bill is something more than what you are talking about. We are seeking to find a way of effectively prosecuting trafficking, which is the means rather than the mode. If you look at the Palermo protocol, it says quite clearly that the consent of a victim of trafficking in persons to the intended exploitation as set forth should be irrelevant because the means is so exploitative. I think you are arguing something slightly different. We would be anxious about going down the road that you are, and thus narrowing the circumstances in which we can effectively prosecute gross exploitation. Can you address that issue?
Professor Allain
In a sense, the emphasis has been on slavery. For me there is a clear distinction in slavery versus trafficking. Slavery is part of the types of exploitation that are meant to be dealt with in the context of trafficking, but they are also stand-alone crimes. It is very difficult to deal with trafficking if you don’t unpack the actual crimes at the end of that process—the types of exploitation. Consent is irrelevant when it comes to prosecuting—to the person who commits the crime—but the question can be asked, in the sense of trying to establish to what extent this person had control when you ask about consent of the victim. From that perspective, I do not necessarily see it as being contradictory. In trying to deal with trafficking, you open up the possibility for different types of crimes at the end of it. You have certain crimes that have been legislated in 2008, in the Coroners and Justice Act, which have never been part of the make-up of the UK, but we are starting not only to see it but maybe to recognise it as having existed. For me, what has to be emphasised is that trafficking is a process in which someone finds themselves exploited. We should then establish in concrete terms what type of exploitation that is, in legal terms, and also allow for the possibility that it is separated from trafficking. It is true that the Bill itself is focused around trafficking, but at the same time it seeks to focus on and to bring into the fold of the Bill clear, precise and stand-alone provisions dealing with slavery, servitude and forced labour.
Chairman
Professor, thank you very much indeed. You made an offer when John was questioning you and we would be very grateful for that. Thank you very much for coming.
Professor Allain
Thank you very much for your time. Oral evidence: [Draft Modern Slavery Bill] 2