This post originally appeared as a guest column in the Immigrant Council of Ireland’s daily epaper, Immigrant News.
Heralded by the UK Home Secretary, Theresa May, as “an historic milestone” which brings the UK “closer to consigning slavery to the history books”, the UK Parliament adopted the Modern Slavery Act on 26 March.
The Act brings together and simplifies the existing UK law on slavery and trafficking and also contains a number of important innovations, including potential life imprisonment for traffickers, asset confiscation rules and a new Anti-Slavery Commissioner. Victims of trafficking are provided with a statutory defence in order to ensure that they are not inappropriately criminalised, and provision is made for “Reparation Orders” to be awarded by way of compensation. Also introduced is a requirement for large companies to annually report on efforts to identify and address modern slavery in their supply chains.
The Act has been broadly welcomed, including by campaigning groups such as Anti-Slavery International. The legislation also reflects developments in the case law of the European Court of Human Rights in Strasbourg, which requires States to put in place an effective regime for deterring, investigating and punishing slavery, servitude and forced labour.
The most contentious aspect of the legislative process was the failure of the Act to reform the migration status of overseas domestic workers in the UK to better protect this group. The terms of the “overseas domestic workers visa” ties these workers to their employer, with specialist NGOs such as Kalayaan arguing that this in itself creates conditions ripe for slavery and severe exploitation.
Slavery in Ireland
While the scale of the issue in the UK may be larger, it is beyond doubt that a significant problem of slavery and trafficking exists in Ireland. The Immigrant Council of Ireland has long advocated for and represented victims of sex-trafficking, in particular, while the Migrant Rights Centre of Ireland has produced reports on the trafficking and labour exploitation of those in the domestic work sector and cannabis production.
In 2012, the High Court case of Hussein v Labour Court and Younis vividly demonstrated the gaps in individual rights protection created by the intersection of Irish employment and immigration rules. Mr Younis had been required to work for seven days a week for a number of years and was paid “what amounted to pocket money”, but was told by the High Court that he could not pursue the employer for breaches of labour law as he was an undocumented migrant.
In the wake of the Hussein decision, a number of changes were made to the Irish system to deal with the injustices which had been highlighted. Forced labour is now a crime, under the Criminal Law (Human Trafficking) Act 2013. In addition, the Employment Permits (Amendment) Act 2014 means that undocumented migrants who are undocumented through no fault of their own may pursue their employer for outstanding remuneration. However, these piecemeal amendments do not constitute an anti-slavery code along the lines of the Modern Slavery Act 2015.
Should Ireland seek to emulate the Modern Slavery Act?
As academic Judy Fudge has noted, it is difficult to criticise the Modern Slavery Act, as “no one is ‘for’ slavery”. However, there are a number of reasons why the Irish government would be best to concentrate reforming energies elsewhere, rather than seek to simply emulate the approach taken in the UK Act.
First, the Act’s main focus is on the criminalisation and prosecution of slavery and trafficking offences rather than redress for victims, although the protection of victims was strengthened somewhat during the process due to pressure from campaigners. It also fails to address the obstacles faced by migrant workers, in particular, to seeking redress through the ordinary employment law system – a ready-made system designed to protect employment rights so that exploitation does not reach the severity of slavery, servitude or forced labour. These obstacles are practical (including cuts to legal aid) and legal (illegality of the contract of employment of most undocumented migrant workers).
Second, there must be question marks over the effectiveness of legislation seeking to address labour exploitation and trafficking, in the broader context of ever-tightening immigration rules and the devaluing of migrants’ contribution to the labour market and the economy. The Modern Slavery Bill stands in counterpoint to the increasingly hostile environment for migrants being created in the UK, including through restrictive changes to family reunification rules, imposing reporting requirements for landlords where they believe that a tenant may be undocumented, and the continued government refusal to acknowledge the vulnerabilities created by tying domestic workers to their employer.
Overall, the Modern Slavery Act contains some significant changes which may assist those who suffer the worst forms of labour and sexual exploitation. However, it does not address the root causes of such treatment and certainly will not make a difference to most migrant workers enduring the everyday indignity of low wages, poor working conditions and limited access to employment redress mechanisms.
So what should Ireland do?
From this perspective, rather than trying to ape the UK modern slavery package, Ireland would be better to undergo two, more fundamental, reforms (quite aside from a fundamental review of our trafficking framework, which was argued for in this newspaper by Nusha Yonkovo last week).
The first would be to further change the Employment Permits regime to fully legalise the employment contracts of all undocumented workers and thereby provide equal access to labour rights. Although this may seem radical in the Irish context, most European countries (the UK being a notable exception) provide a certain minimum level of employment protection for all workers, notwithstanding their undocumented status.
The second is to pursue the long-awaited comprehensive reform of the immigration system, providing on a statutory footing for secure and durable statuses, family reunification, and access to public services. The legal recognition of migrants’ contribution to the Irish economy and society is a vital, if intangible, element of tackling ‘modern slavery’.