Oral evidence: Draft Modern Slavery Bill, HC [1019], Tuesday 4 February 2014
Oral evidence, 4 February 2014.
Witness
Caroline Robinson, Policy Director, Focus on Labour Exploitation (FLEX), examined.
Chairman
Welcome to the Joint Committee. Would you identify yourself please for the record?
Caroline Robinson
I am Caroline Robinson, the policy director of Focus on Labour Exploitation, which is an organisation that supports Government and civil society to take effective responses to trafficking for labour exploitation.
Mrs Spelman
Thank you very much for coming to give evidence this afternoon. We are looking at the role that the Gangmasters Licensing Authority plays. We would be very interested to hear your view about what powers it lacks. It has publicly said that it could do with some more powers, but it would be interesting to know what you think it lacks.
Caroline Robinson
There are a number of powers. One of the most important things in terms of victims of trafficking that relates very much to our concerns about compensation for victims of trafficking is a power on repayment orders. That was mentioned in a written ministerial statement in May 2012 in relation to the expansion of the GLA into other areas, or the address of powers for the GLA, and yet was not addressed at all in the DEFRA consultation on the GLA over the summer. We would like to see these repayment orders considered again, and the idea that if a large sum of unpaid wages is recovered—as Paul Broadbent mentioned, an amount has been recovered to the tune of £4 million since 2010—there should be some link between those recovered unpaid wages and the repayment of victims. What we are seeing at the moment is that there is not any way of tracing those wages back to the victims. That is a core power that we would like to see in terms of the civil powers of the GLA.
Mrs Spelman
What about powers of investigation and enforcement? When you think of what other agencies rather like them have in the toolkit, do you have some views on those?
Caroline Robinson
Yes. We know that part of the success of the GLA is based around its intelligence-led approach, and the way in which it engages with workers on the ground, and also the way in which it is able to distinguish itself from law enforcement agents or the Home Office and build up relationships of trust across the board. We know that that is how it started out—building up that intelligence database from the outset. By conducting its licence inspections it was able to gather intelligence from workers in an informal and trust-building setting, which was then able to be translated into targeted operations that meant they could get wins in terms of proper enforcement. In terms of the intelligence and the expansion of its intelligence powers, we would caution against a too great confusion with the National Crime Agency or law enforcement in terms of its criminal powers, but would look very much to that intelligence-led approach and the way in which it uses the licence inspections and has feelers on the ground. In 2010, the Communities and Local Government Minister gave some money to the Gangmasters Licensing Authority to try to do localised intelligence-gathering operations. Speaking to people there, I think they were very successful in the way that they were able to have people based in high-risk areas at certain points of the year. They know that the movement of labour is very seasonal, so you might have someone in Boston at a certain point in the year who could then engage with workers on the ground and be a presence to really play that preventative role. That is something I would emphasise all the way through. As an organisation concerned with trafficking for labour exploitation, we are first and foremost very much concerned with the prevention of trafficking for labour exploitation rather than finding people once they have been trafficked. We would rather that people did not end up in a trafficking situation at all.
Mrs Spelman
Would you agree, though, that those greater powers to deal with repayments, beyond intelligence-gathering, are enforcement powers that would take the Gangmasters Licensing Authority beyond being a licensing authority?
Caroline Robinson
I would say that the repayment orders would be related to the penalties. They already have some power to leverage and to recover the unpaid wages. A link between unpaid wage recovery and the repayment—some of which has been discussed in relation to criminal cases as well—would not necessarily have to go beyond the licensing function. The terms of the licence relate to the terms of the contract and the payment of wages to individuals. It is about upholding that licence in its monetary terms for the individual as well.
Mrs Spelman
Coming back to the excellent point you made about the fact that they had built up trust with the companies that they were licensing, and that relationship of trust had helped the authority become more effective, do you have a view about the role that the GLA could play in strengthening corporate responsibility for work practices in the supply chains in British companies?
Caroline Robinson
The way that they have used awareness-raising and the media to draw attention to exploitative labour practices has worked well. There is an acknowledgement within supply chains that in the majority of areas in which the GLA works a lot of subcontractors are very dependent upon these large and very well-known organisations in the UK, so the supermarkets protocol was developed to have the knock-on effect of the threat of the public outing of unlicensed gangmasters, or those who are not meeting their licence terms. The impact that will have on the prime contractor or retailer at the top has been used very effectively by the GLA. To have those relationships with those who have a strong brand image that is serving to gain from those that the Gangmasters Licensing Authority is working with has been a good way of enforcing supply chain transparency and ethical supply chains. It was interesting to hear Paul Broadbent’s response about how they were doing a piece of work for those organisations in terms of policing their supply chains. There does need to be that twin approach, where you have the mandatory measures and the enforcement of licensing, but also have organisations on board who want to police their own supply chains and are able to observe their supply chain and the possible loose links within it in terms of exploitation and exploitative practices. I would say that those two approaches need to be taken together: the voluntary supply chain protocols, similar to the Transparency in Supply Chains Act in California, and the mandatory enforcement measures that would be overseen by a labour inspectorate or by the GLA in certain sectors in the UK.
Mrs Spelman
You think that would be sufficient, and we do not need to legislate for supply chain transparency in this Bill.
Caroline Robinson
Supply chain transparency legislation is a difficult one, because we only have the Californian model to look at. We are conducting a comparative project that takes in the US at the moment. We work a lot with organisations in California, and many would say it is too soon to say whether or not that has been a useful tool in policing supply chains. It is quite difficult to see who should be compliant. It is quite difficult to make them comply, and it is not transparent in itself as to which companies need to report, because of the way that it is measured in terms of the assets of the company. The size of the company may take it over the bar in terms of reporting in relation to the Transparency in Supply Chains Act, so people have to know about the accounts of organisations before they can know which ones they should be monitoring and engaging in. We are speaking to organisations that have an estimate of organisations that should report. They do not know exactly what penalties could be exacted if they do not report. At the moment it seems there are a few confusions about the way that Act is being implemented. It is quite soon to tell whether or not that would be an effective model to replicate. If we were to take any position, I would say that it probably would not do any harm but it does not seem to be an end in itself.
Lord McColl of Dulwich
In your opinion, what is the tipping point between a case that is deemed to be an infringement of workers’ rights and those in which the offence of forced labour has been committed?
Caroline Robinson
The tipping point would be similar to our tipping point with trafficking in terms of consent, the way in which that labour is exacted from the worker and the way in which punishments are leveraged to override that consent. In the forced labour definition the menace of penalty is the move between free and forced labour. The fact that a worker is working without consenting to it but is under the threat of penalty is our tipping point. To pin that down and understand what that would mean, we would use the ILO indicators of forced labour.
Lord McColl of Dulwich
What lessons can be drawn from the Rana Plaza tragedy in terms of the need for voluntary and mandatory measures? How should these lessons be reflected in legislation?
Caroline Robinson
I was thinking about this last night. I wrote about it in response to Frank Field’s inquiry.
Lord McColl of Dulwich
Which inquiry?
Caroline Robinson
The modern slavery evidence review. On the Rana Plaza tragedy, one of the main lessons that the Clean Clothes Campaign, which campaigned for the Bangladesh fire and safety accords, drew from that was that it was a very individualised approach; they had been working for many years, from what I understood, with those who had business interests in Bangladesh to try and develop some kind of safety accord and safety agreement. At the same time there was a strong engagement with unions and workers on the ground to try and understand what they would need as protection to avoid any exploitative circumstances occurring. The key lesson from that approach was that it was very focused on the country, the context and the way in which businesses were operating in that environment. The real strength of it from our perspective, in terms of workers’ rights, was that it was also very much rooted in the unions and the way in which people could use collective bargaining structures to ensure that their rights were upheld. One of the dangers of supply chain models and supply chain monitoring is that you have these auditing processes, but you do not have a clear way of checking with workers that what is said to happen on the ground on working hours and pay is what is actually happening on the ground in each of the factories and each of the links of the supply chain. Part of the way to guarantee that is by having strong unions and collective structures that you can check data with, and to have a mediation mechanism to understand what disputes are arising so you are able to address them at the point at which they arise.
Lord McColl of Dulwich
What about putting the lessons you have learned into legislation?
Caroline Robinson
One of the ways the Bangladesh Government put it into legislation was by strengthening the labour laws, but, similarly to how we have approached it in this country, you would then need strong enforcement of those labour laws. You need to find a way of effectively monitoring the links in the supply chain so that you can ensure that what is on paper is happening in practice.
Baroness Butler-Sloss
There are various ways in which people are locked into labour exploitation, some of which would mean that they were actually consenting, in effect, to being exploited. One example is that they would be worse off back in their own country; another of course is debt bondage. How can one draft legislation that would meet those sorts of situations? Do you think it can be done?
Caroline Robinson
The answer that we proposed is to have it based on international legal definitions. I know that there are some problems with those. There is some overlap between forced labour and trafficking, but there is a body of work being done to expand the definitions of exploitation—for example, within the trafficking protocol. I know that Anne Gallagher is working on that with the UNODC at the moment, to look at exploitation and the definitions of exploitation. That has caused a particular problem in the trafficking definition, and from our perspective as well, because it is the end purpose; the core element of human trafficking is this third part—the means and purpose of exploitation—yet exploitation was never defined in law and there is no international legal definition of exploitation. To have that UNODC theme paper produced on exploitation will be useful in that regard, to flesh out the international definition. We find the international legal definition of trafficking to be the most useful in terms of determining the situation that people face when they enter.
Baroness Butler-Sloss
Do you think that, regardless of the word “consent,” one of the ways would be to have the fact of what was happening to them seen as them being exploited because they are found in a situation of slavery, and the issue of consent should not arise?
Caroline Robinson
I find that quite dangerous as it then overrides the choice of the individual. For example, my background is in international responses to trafficking. I worked in India for a long time and saw women who were working in the sex industry, and said that they wanted to work in the sex industry, being forcibly removed and placed in Government shelters for a number of years. I saw that consent taken away simply because other people could not imagine themselves working in that profession. It made it very difficult to understand that you could remove someone’s consent from them when they were saying that they consented. How do you decide where the point lies in a discussion with an adult who enters a job of their own free will? There are many jobs that we might not do ourselves, but other people consent to do them. That is why the issue of consent is so key.
Baroness Butler-Sloss
That gets to the tipping-over point that you have already been dealing with.
Caroline Robinson
Yes; it is critical. I work for an organisation that produced a publication called “Collateral Damage”. I would say again that that is a key element of the trafficking response. No trafficking response should do harm to the individual itself. If you look at some trafficking responses in some countries worldwide, taking away that choice from the individual is where the point of harm occurs. If you decide for someone that your response to their situation is better than their own response to the situation, and in many countries that involves placing someone in a trafficking shelter as opposed to the independent working environment that they have chosen to be in, no matter how exploitative the state sees it, I do not think that can be tolerated within individual universal human rights.
Lord McColl of Dulwich
In this country, 95% of prostitutes hate the job and don’t want to be in it. What is the percentage in India, because that is quite crucial?
Caroline Robinson
I have no idea. I used that as an example. A similar example would be in the UAE where you see people working in construction. The conditions in which they are working are intolerable; they are working at 50º, and yet they come to work in those jobs because they want to send money home and create a better life. To remove them from that job, because you see that job as difficult due to the temperature, working circumstances and the conditions in which they are living, removes choice from that individual. You enter into so many difficult arguments about how someone could choose certain professions and not others.
Lord McColl of Dulwich
But one profession is lethal and the other isn’t.
Chairman
Fortunately, we are not going to do this in the Bill.
Baroness Hanham
When does consent become coercion? What you described as going on in the middle east involves people who have come there voluntarily on an expectation. Once there, that expectation is completely overridden. They do not get paid and they are in unacceptable conditions of housing. They then cannot leave because they do not have the documents. They cannot go back. Is that not coercion or exploitation? I think there is a tipping point here between those two. Whether that is anything to do with legislation, I do not know, but I do think this movement from consenting to do something into then being exploited as a result of that consent is quite important.
Caroline Robinson
Yes. We were talking to someone about the definition of forced labour in the US and how, within that definition, there is the threat and abuse of legal process and how that can then be applied to withdrawal of identification documents, or the threat of reporting someone for not having immigration status. In the UAE example, people need an exit permit from their employer to leave the UAE. The fact that you are entirely dependent upon your employer, in terms not only of your legality in the country but also your departure from the country, means that it is very difficult to exercise many of your labour rights in that country. That gets back to the role of the GLA, and also how we avoid everyone being trafficked or everyone having no rights. You have to have an ability or a structure that can enforce labour rights rather than simply having a structure, which they have in the UAE, that looks at trafficking and extremely exploitative situations where there is no consent. Before that, you look at the continuum of exploitation—all the different elements of exploitation that people are facing—and enforce those abuses of labour rights along the way, so that people do not get to the point where they have to say that they are a victim of trafficking because they have no other choice and there is no other recourse to justice.
Chairman
That is a really important point that we will raise in our discussion afterwards. Thank you.
Baroness Doocey
Are there any particular international examples of licensing regimes that you think it might be helpful for the Committee to examine?
Caroline Robinson
I mentioned the comparative legal project that we are doing. We are looking at the Netherlands, the USA, Brazil, Thailand, Kenya and the UK within that. So far, two that stand out would be the Netherlands and Brazil. The Dutch response is similar in a way to the UK; they have a labour investigation-led approach underpinned by a criminal approach. There is co-operation between the labour inspectorate and the police. That happens in a number of cases. Also supervision of compliance of licences is linked to looking for trafficking and exploitative and forced labour situations. Something that struck me about the Netherlands labour inspectorate that I think is important is that they have also recently signed a bilateral agreement with the Polish labour inspectorate. The Polish and the Dutch labour inspectorates are able to discuss certain instances of exploitation and abuse that are taking place amongst Polish workers in the Netherlands. I mentioned trust building and co-operation between different migrant communities and the way people talk about exploitative labour providers. That is a really good way of trying to get further information about what is going on within certain migrant communities in a country. The Brazilian example is quite well known. They have strong civil and criminal powers, and a lot of civil cases are taken because of the Brazilian labour inspectorate operating widespread and proactive labour inspections. There is also quite an interesting link to the dirty list, which links to investments in companies. When a company is found by the Brazilian labour inspectorate to be an offending company, and if a case is taken, at a certain point the company will be put on the dirty list as being a non-compliant company. That then has implications for investment in that company by banks in the country. It is almost like a transparency in supply chain effect; there is a carrot for people to police their supply chains much more carefully because they might be linked to this dirty list and will therefore have disinvestment or find it very difficult to get assets from investment banks.
Baroness Doocey
You wrote an article in The Guardian in December about the draft Bill. You said, “top of the list of oversights is its failure to provide for the protection of victims.” Are there any specific measures to support victims that you would like to see included in the Bill, and would they require legislation?
Caroline Robinson
Like many NGOs, we would like to see a statutory basis for the national referral mechanism. One of the main things I have been working on for many years is accountability in anti-trafficking responses. Without having a statutory basis for how the national referral mechanism operates, and without being able to understand its workings and its proceedings, as an NGO on the ground it is very hard to hold them accountable for the way in which they respond to trafficking situations. Minimum standards for assistance for trafficked persons would be included in that. We have talked a lot about legal assistance and access to compensation, particularly in cases of trafficking for labour exploitation. It is fantastic that people were removed in Operation Endeavour and went straight into jobs, but it should be understood that male victims of trafficking and victims of trafficking for labour exploitation also suffer deep trauma, in the same way as victims of trafficking for sexual exploitation do. The assistance, counselling and real trauma care that is provided to victims should be provided as a standard to all victims, no matter what they choose to do or how they proceed. If not for anything else, it should be to prevent re-trafficking and the vulnerability that is at the core of a trafficking situation.
Chairman
Should this be in the Bill or should it be in regulations?
Caroline Robinson
We believe that minimum standards for victims of trafficking should be in the Bill. The Human Trafficking (Scotland) Bill that has been developed by Jenny Marra has quite interesting minimum standards in that regard. Those are proposed for the face of the Bill and could be used as interesting guidance.
Sir Andrew Stunell
I want to pick up the point about the statutory basis for the NRM. We have received very strong representations from some NGOs that it would be counterproductive and probably not very effective. Could you sketch that out for us?
Caroline Robinson
I should make a distinction between the statutory basis for referral to the NRM and the statutory basis for the NRM. We think it is important to have a structure for the NRM and to have established in law what the NRM looks like, rather than just in policy. We would find a statutory obligation on agencies and first responders to refer to the NRM problematic. One of the reasons why it is problematic in the draft Bill is that the anonymity of victims is not provided for on the face of the Bill. It is simply in the White Paper, so it is not guaranteed that that anonymity will be upheld, simply because confusion might arise from this referral to the NRM. We would also find it problematic to police the referral to the NRM of all victims that any first responder comes into contact with. It would be very difficult to monitor and observe. As discussed in the previous session, so many victims do not want to be referred to the national referral mechanism. The fact that they do not want to be referred should be a core principle, and that choice should be listened to. The danger in referral is that overriding the choice of not being referred to the national referral mechanism is quite strong.
Sir Andrew Stunell
Is it not a bit paradoxical to go to all the trouble of making it statutorily based and then not to have any requirement for people to be referred to it? What do we gain by the statutory basis of it if it is not going to have a much more all-encompassing reach as far as the information is concerned?
Chairman
Would your objection hold if anonymity was written into the face of the record? If it was in the Act, would this make a difference?
Caroline Robinson
I think it would still be very difficult to support as a victim-centred organisation. If someone says they do not want to be referred to the national referral mechanism and yet they are still referred, whether anonymously or not, it is a difficult principle to support. We conduct a lot of training with police and local authorities around the country, and there is already quite a lot of confusion about people’s role as first responders, especially amongst local authorities. I would suggest that any additional confusion, particularly in relation to anonymity and victim protection and the respect of the consent to be referred to the national referral mechanism, is a real danger. One of the collateral damage points of this Bill could be people being referred without the desire to be referred.
Sir Andrew Stunell
I understand that point, but I am struggling to understand what the added value is of making the NRM statutory, if it does not have that sort of reach.
Caroline Robinson
The value to those engaging with the NRM and those who believe that it has a role to play in offering a support and assistance function is to know that there is a clear process for decision making, and that there are minimum standards for assistance and support. At the moment it is quite difficult to know what kind of support someone might get in any individual circumstance—it would be different across the board—and to know how a decision is going to be made, and on the basis of what grounds. Often decision making is done in different ways by different agencies. To have clear guidance and a clear accountability mechanism to the NRM is very important to those who might be wondering whether or not to advise referral to the national referral mechanism.
Chairman
Can we leave it there? We have a vote coming up and we still have two areas of questions.
Fiona Mactaggart
Can I finish up on Andrew’s point? Are you saying that if there was clarity about what being a victim meant and it got to a victim, there might be better use of the NRM?
Caroline Robinson
If the NRM was a much more clearly defined body, it would be easier for those with informed consent to make the decision to go into the NRM.
Fiona Mactaggart
Thank you. In the article that Baroness Doocey referred to, you suggested that the proposed commissioner could end up being worse than no commissioner at all. Why?
Caroline Robinson
Because it is entirely resourced by, has its remit led by and can be overridden by the Secretary of State. We see the commissioner as having a very important UK oversight accountability function, but also an international function working within the EU and internationally with other points of contact.
Fiona Mactaggart
What are the minimum requirements for a commissioner who would be worth it?
Caroline Robinson
For a commissioner to be independent; to report to Government and have that report discussed by Parliament; and to be able to make investigations as they wished. Based on the Dutch model, the National Rapporteur in the Netherlands has really had a transformative impact on the anti-trafficking response in the Netherlands by being able to take proactive steps to conduct investigations and then to report on that and have discussions at civil society level, in Parliament and with Government.
Michael Connarty
I have been reading all the submissions you made on the supply chains issue. You seem to take quite a hard line. As I read your submission, you are saying that basically there must be “voluntary and mandatory” adherence to some sort of supply chain analysis, and the “threat of penalties upon failure to do so”. That might be an aspiration for the perfect world. Hopefully, we would not need to implement those threats if people signed up to it. What would you say is the basic minimum required in this Bill to move forward? There is nothing on supply chains in the Bill at all. There is the idea of looking further down the supply chain than just within the UK.
Chairman
Caroline, I thought you said that, despite the evidence that Michael cites, we are not to really worry about this. We do not know anything about California. How could we possibly draw any conclusions? You seem to be saying that we should be doing nothing, whereas Michael cites your evidence and, as we read it, you are going to be quite tough on this.
Michael Connarty
Caroline did actually say, based on Fiona’s question, that they are demanding that they report and take action. California does not ask anybody to take action, and that is the problem.
Caroline Robinson
As I said, having worked in different international contexts on the issue of trafficking—
Chairman
Can you relate it to here? We have a Bill and we are taking evidence on the Bill. What do you advise on supply chains?
Caroline Robinson
The first thing I would advise is the expansion of the GLA and effective investigations in the UK. I find it difficult to talk about policing supply chains overseas if we do not police our supply chains in the UK. First and foremost in the Bill, I would include prevention in respect to labour inspection and the GLA in the UK. I mentioned on Rana Plaza that we need to take each situation in its context. I can see a role to be played in that situation by having a strong labour inspection regime in the UK that we then use as an example in other countries. I said voluntary and mandatory measures. I meant that if you have voluntary measures—[Interruption.]
Chairman
Sorry. We have eight minutes to get down for the vote. Can we hear the end of this answer?
Caroline Robinson
You can have those voluntary measures in the monitoring of the supply chain, which as I said isn’t a bad principle, but alongside them you need effective labour inspection regimes in each country in which there is that supply chain. We have had many multinationals for many years saying that they will adhere to local labour laws and that is how they will ensure that their supply chains are ethical, but where there are no labour laws and where there is no enforcement of labour laws, it is very easy for them to continue to say that. That is where we have a really strong role in having a strong labour inspection regime and strong enforcement of labour laws in sectors outside and beyond the GLA sectors. I agree with your recommendation of construction, cleaning and care, and I would suggest hospitality, as first points.
Chairman
We have got that point, but I chair a major company. Are you going to put any duties on me, given that most of my produce comes from overseas sources where there may be slave labour used? Do I get off scot-free or do you have some recommendation for this Bill?
Caroline Robinson
Like I said, I do not oppose a transparency in the supply chain clause in the Bill. I just think it is very important that we get our own house in order first, and that I see the GLA working very well with certain industries in terms of developing voluntary protocols. Where there are very limited things within the Bill, it seems odd to me to suggest putting transparency in supply chains as a first thing before we look at the labour inspection regime in the UK. But if we can have everything, yes, I would have transparency in the supply chain as well as a labour inspection regime in the UK.
Chairman
We hope to do the first recommendation but we are also interested in the second as well. Let us assume that we are going to do something about the powers here in this country and try to put our own house in order. If you have ideas about what duties we should then put on great trading companies in this country, who may be drawing on slave labour for their products, we would be very grateful to have them.
Caroline Robinson
Yes.
Chairman
Thank you very much.
Caroline Robinson
Thank you. Oral evidence: [Draft Modern Slavery Bill] 2