01/10/2014
A cluster of news stories today, taking in the
BBC, the
Mail and the
Telegraph, attests to the re-emergence of slavery in the UK, the detail based on a
report from the National Crime Agency (NCA) on: "The Nature and Scale of Human Trafficking in 2013".
Key points from the report are that Romania is the most prevalent country of origin for potential victims of trafficking in the UK. This is for the third consecutive year, and more than half are exploited for sex.
Poland is the most common country of origin for potential victims of labour trafficking. Some 91 percent of potential victims from Poland had experienced labour exploitation.
Of UK minors identified as potential victims, 88 percent had been sexually exploited, an increase of 250 percent on those reported in 2012. Of the 55 children exploited for benefit claims, 91 percent originated from Slovakia.
Primarily, as the figures would indicate, slavery is a crime affecting migrants, and in the UK, 78 percent of potential victims exploited for labour were EEA nationals who were legally working in the UK.
People are brought into the UK with the specific intention of their being exploited, either for the sex trade or for forced labour. Hand car washes were one type of business where slaves were used, but they were also exploited in drug factories and on bogus doorstep charity collections.
From the Flexcit perspective, therefore, there is a policy interest at two levels. Firstly, it involves a substantial numbers of incomers â 2,744 in 2013, including 602 children, up 22 per cent on 2012. That they are coming into the country for no good purpose is an integral part of our immigration policy.
Secondly, while some slavery is a home-grown crime, this is primarily a cross-border crime which requires a multi-national (and multi-agency) approach to resolve it.
The multi-national dimension is, to say the very least, complex, and serves as another good illustration of the difficulties we will have in unravelling and redefining our arrangements once we leave the EU.
The key driver of international cooperation here is not, as one might suspect, the EU, bit the
Council of Europe, with its 2005 Council of Europe Convention Against Trafficking in Human Beings (THB). But, as we can see from
this report, the convention is only the start.
In addition, the UK is Party to the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children ("Palermo Protocol"), supplementing the United Nations Convention against Transnational Organised Crime, which it ratified on 9 February 2006.
The UK is also Party to the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the UN Convention on the Rights of the Child and its Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography.
To this one can add International Labour Organisation (ILO) Conventions No. 29 and 105 on Forced Labour and Convention No. 182 on Eliminating the Worst Forms of Child Labour. Further, the UK has acceded to a number of Council of Europe conventions in the criminal field which are relevant to action against THB.
On the EU front, most readers will be aware that the UK was not initially bound by
Directive 2011/36/EU on preventing and combating trafficking in human beings and protecting its victims. This was the directive, it will be recalled, that replaced Council Framework Decision 2002/629/JHA on combating trafficking in human beings.
The reason for the non-application was due to the fact that pursuant to the rules agreed in the 2007 Lisbon Treaty, the UK had a number of "opt-outs" secured since the 1992 Maastricht Treaty, including measures in the area of justice and home affairs, while allowing for the possibility to "opt in" on a case-by-case basis.
In July 2011, the UK authorities notified to the European Commission (EC) of
their intention to be bound by 2011/36/EU and on 14 October 2011, the EC issued a decision according to which this Directive will apply in the UK.
Nevertheless, EU Directive 2004/81/EC of 29 April 2004 on the residence permit issued to third-country nationals who are victims of trafficking in human beings or who have been the subject of an action to facilitate illegal immigration, and who co-operate with the competent authorities, is not applicable in the UK, in light of our "opt-outs".
The UK is also bound by EU Directive 2004/80/EC relating to compensation to crime victims, as well as by EU Council Framework Decision 2001/220/JHA of 15 March 2001 on the standing of victims in criminal proceedings.
As one might expect, the UK legal system requires legislative measures to give effect to international treaties which have been signed and ratified in order to make them enforceable. The entry into force of the Council of Europe Anti-Trafficking Convention was accompanied by the formalisation of the identification procedures through the setting up of a National Referral Mechanism on 1 April 2009.
Without a hint of irony, we are then told that the legal and institutional framework in the field of action against THB in the UK is "complex", but primarily due to the process of devolution through which the constituent countries of the UK have been granted varying powers to make legislation and administer certain areas.
Devolved matters, whereas border and immigration control, including the identification of trafficking victims, are reserved matters dealt with by the central UK government. Education and health, which are linked to the prevention of THB and the protection of and assistance to victims of trafficking, are also devolved matters.
While Northern Ireland only received policing and justice powers in 2010, Scotland has traditionally had its own law enforcement, civil and criminal law, and justice system. England and Wales have the same legal system and apply the same legal instruments.
As has the international system, legislation on trafficking in human beings in the UK has developed piecemeal over the years and is attached to other legislation according to the form of exploitation.
The provisions relating to trafficking of people for exploitation, including by way of forced labour, slavery and organ harvesting, are contained in Sections 4 and 5 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004.
The Sexual Offences Act 2003 and the Sexual Offences (Northern Ireland) Order 2008 apply in case of trafficking for the purpose of sexual exploitation. Further, there is a separate offence, "slavery, servitude and forced or compulsory labour", under the Coroners and Justice Act 2009.
Trafficking for the purpose of the removal of organs is criminalised by the Asylum and Immigration (Treatment of Claimants) Act 2004, the Human Organ Transplants Act 1989, and the Human Organ Transplants (Northern Ireland) Order 1989.
In addition, Section 4 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 was amended by the Borders, Citizenship and Immigration Act 2009 to combat trafficking of children and vulnerable adults where they are brought into the UK for the purpose of obtaining benefits.
The payment of sexual services provided by a prostitute subjected to force, deception, threats or other form of coercion, is criminalised by the Policing and Crime Act 2009 in England, Wales and Northern Ireland.
This brings us to page 15 of a 117-page report, describing the situation in the UK from the Council of Europe perspective. From there, we take in the Protection of Freedoms Act 2012 (applicable in England and Wales), which was passed in May 2012, but has not yet come into force.
We are reliably informed that the Act introduces a number of amendments to the Sexual Offences Act 2003 and the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, including to criminalise internal trafficking and expand the offences of THB for the purpose of sexual, labour or other exploitation to cover those committed by UK nationals abroad.
This Act has replaced the THB-related offences in the Sexual Offences Act (Sections 57 to 59) with a single provision on trafficking people for sexual exploitation (Section 59A). Further, the Legal Aid, Sentencing and Punishment of Offenders Act 2012, which entered into force in May 2012, includes provisions on legal aid for victims of trafficking.
There is no specific legislation in the UK concerning child trafficking. Assistance to child victims of trafficking is governed by general legislation on childrenâs welfare. The Children Act 1989 (applicable to England and Wales), the Children (Northern Ireland) Order 1995 and the Children (Scotland) Act 1995 place a statutory duty on local authorities to safeguard and promote the welfare of children in need.
Thus local authorities must investigate if they have a reasonable cause to believe that a child who lives or is found in their area is suffering from harm. Further, local authorities are authorised to inspect the premises used for private fostering, and may prohibit private fostering under certain circumstances.
There is more, except that the list is more than enough to be going on with. It does illustrate the point: multiple agencies and multiple laws all combine to create a cat's cradle of officialdom which, in the final analysis, doesn't achieve anything very much. The problem is clearly not under control and is growing in extent.
However, the UK is currently processing the Modern Slavery Bill, the first of its kind in Europe. This, we are told, will make it easier to prosecute the organised criminals behind the majority of modern slavery, ensure slave drivers receive tougher sentences and improve the protection of victims.
If we leave the EU, it won't make any immediate difference to UK law. But we'll also have to decide whether the UK stays in the Council of Europe, and whether we continue with the Conventions, although the law which brings them into force is already in place.
Where we would possibly lose out is that we would no longer be tapping into the Group of Experts on Action against Trafficking in Human Beings (GRETA), which serves to co-ordinate and inform action. We would also unhook ourselves from the
EU strategy towards the Eradication of Trafficking in Human Beings 2012â2016, and we would also lose our
Europol links, and the rest of the
alphabet soup: FRA, EASO, CEPOL, Frontex and Eurojust.
The point here is that I can't see anyone arguing that tackling modern slavery should stop, and that we should not be co-ordinating our activities with European and global agencies.
So, in any Article 50 negotiations, this is just one of the thousands of issues that have to be addressed. We may or may not think it worthwhile to have a special agreement on this, but it will certainly have to be considered â yet another unwitting complication to add to the many others.
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