Modern Slavery Act Review
Independent Review of the Modern Slavery Act 2015
Justice & Legal
Independent review of the Modern Slavery Act 2015 examining the effectiveness of the legislation, the role of the Independent Anti-Slavery Commissioner, and the transparency in supply chains provision.
80recommendations
80Accepted
Government Response
Government response published July 2019. Majority of recommendations accepted or partially accepted. Led to strengthened section 54 transparency requirements and enhanced role of Independent Anti-Slavery Commissioner.
9 July 2019
Recommendations
Recommendation 1
Current recruitment: The present recruitment process for a new Commissioner should be scrapped and a new job description drafted once the recommendations of this report have been considered in full by the Home Secretary.
Recommendation 10
There should be an agreed mechanism to assist the Commissioner to meet unexpected or additional financial requirements which may arise in the course of the year.
Recommendation 11
All [the Commissioner’s] reports should be made public and the Government should be required to give a public response. If the Government fails to accept or to implement [the Commissioner’s] recommendations, the Commissioner should be able to seek the opportunity from relevant select committees to attend and give evidence.
Recommendation 12
A statutory board should be introduced [to advise the Commissioner], chaired by a person of stature, to be drawn from outside the Government or Civil Service. The Board and its chair should be independently appointed in consultation with the Commissioner and drawn from many sections of society.
Recommendation 13
There should be a formal complaints procedure in place [to ensure the Commissioner’s accountability and protect him/her from unjustified allegations]. The procedure should be clearly set out on the Commissioner’s website and should be a tiered procedure with the final stage of escalation independent of the sponsoring Department.
Recommendation 14
An international role should be created in the form of an Envoy or Ambassador, who would represent the UK Government[‘s modern slavery agenda] overseas and ensure close co-operation and dialogue with other nations, for instance against organised crime.
Recommendation 15
Government should establish an internal list of companies in scope of section 54 [which requires them to publish a slavery and human trafficking statement] and check with companies whether they are covered by the legislation.
Recommendation 16
Individual companies should remain responsible for determining if they need to produce a slavery and human trafficking statement. Non-inclusion in the list should not be an excuse for non-compliance.
Recommendation 17
Section 54(4)(b), which allows companies to report they have taken no steps to address modern slavery in their supply chains, should be removed.
Recommendation 18
In section 54(5) ‘may’ should be changed to ‘must’ or ‘shall’, with the effect that the six areas set out as areas that an organisation’s statement may cover will become mandatory. If a company determines that one of the headings is not applicable to their business, it should be required to explain why.
Recommendation 19
The statutory guidance [on transparency in supply chains] should be strengthened to include a template of the information organisations are expected to provide on each of the six areas [that a statement may cover].
Recommendation 2
The Government must respect the Commissioner’s statutory independence.
Recommendation 20
Guidance should make clear that reporting should include not only how businesses have carried out due diligence [to prevent modern slavery in their supply chains] but also the steps that they intend to take in the future.
Recommendation 21
The Independent Anti-Slavery Commissioner should oversee the guidance [on transparency in supply chains] available to companies.
Recommendation 22
The legislation should be amended to require companies to consider the entirety of their supply chains [in respect of modern slavery]. If a company has not done so, it should be required to explain why it has not and what steps it is going to take in the future.
Recommendation 23
The Companies Act 2006 should be amended to include a requirement for companies to refer in their annual reports to their modern slavery statement. Section 54 should be amended to impose a similar duty on non-listed companies that meet the £36 million threshold but would not be captured by the Companies Act 2006 reporting requirements.
Recommendation 24
Businesses should be required to have a named, designated board member who is personally accountable for the production of the [modern slavery] statement.
Recommendation 25
Failure to fulfil modern slavery statement reporting requirements or to act when instances of slavery are found should be an offence under the Company Directors Disqualification Act 1986.
Recommendation 26
There should be a central government-run repository to which companies are required to upload their [modern slavery] statements and which should be easily accessible to the public, free of charge.
Recommendation 27
[Modern slavery] Statements should be dated and clearly state over which 12-month period they apply.
Recommendation 28
The website hosting the [modern slavery statements] repository should also clearly outline the minimum statutory reporting requirements.
Recommendation 29
The Independent Anti-Slavery Commissioner should monitor compliance [of businesses under section 54 of the Act].
Recommendation 3
The Commissioner’s primary roles in carrying out the role set out in section 41(1) of the Act should be to advise the Government on measures to tackle modern slavery; to scrutinise and hold the Government and its agencies to account on their performance; and to raise awareness and promote cooperation between sectors and interest groups.
Recommendation 30
Government should make the necessary legislative provisions to strengthen its approach to tackling non-compliance [with section 54 of the Act], adopting a gradual approach: initial warnings, fines (as a percentage of turnover), court summons and directors’ disqualification. Sanctions should be introduced gradually over the next few years so as to give companies time to adapt to changes in the legislative requirements.
Recommendation 31
Government should bring forward proposals to set up or assign an enforcement body to impose sanctions on non-compliant companies [that have not published a modern slavery statement]. Fines levied for non-compliance could be used to fund the enforcement body.
Recommendation 32
Section 54 should be extended to the public sector. Government departments should publish a [modern slavery] statement at the end of the financial year, approved by the Department’s board and signed by the Permanent Secretary as Accounting Officer. Local government, agencies and other public authorities should publish a statement if their annual budget exceeds £36 million.
Recommendation 33
Government should strengthen its public procurement processes to make sure that non- compliant companies in scope of section 54 are not eligible for public contracts.
Recommendation 34
The Crown Commercial Service should keep a database of public contractors and details of compliance checks and due diligence carried out by public authorities. The database should be easily accessible to public authorities for use during the procurement purposes.
Recommendation 35
The Independent Anti-Slavery Commissioner should commission research into how consumer attitudes to modern slavery can be influenced. The aim of this should be for business, in partnership with civil society, to leverage purchasing power to eradicate modern slavery in supply chains. The research should feed into the Commissioner’s annual report, with recommendations for Government action as appropriate.
Recommendation 36
The Government should continue to roll out the revised model of support that provides a one-to-one ICTA service to [trafficked] children without effective parental responsibility [in the UK] and a consultative service through a regional coordinator for those with effective parental responsibility.
Recommendation 37
The allocation of a one-to-one ICTA should be tailored to assess the risk, vulnerability and need for each individual child in consultation with other public authorities. There should not be a presumption that a child with effective parental responsibility does not require a one-to-one service. A child’s needs should be considered on a case-by-case basis where there is evidence a greater level of support is required.
Recommendation 38
The Government should extend the ICTA service to young people who need the service over the age of 18 and up to 21 or 25, subject to their circumstances.
Recommendation 39
The Government should remove the 18-month time limit for ICTA provision for those children that require a longer duration of support.
Recommendation 4
The Commissioner should have sufficient access to Government data to be able to carry out the duty of scrutiny.
Recommendation 40
The Government should provide more effective support and guidance for trafficked young people transitioning from children’s to adult services.
Recommendation 41
Cases of children that go missing [during their time in the ICTA service] should be kept open and continue to be discussed until the child is found.
Recommendation 42
Comprehensive “return home” interviews should be offered and conducted with the child’s consent when they are found so that their case with an ICTA can be reopened with stronger evidence behind their disappearance and an understanding of their needs.
Recommendation 43
Caseloads for each ICTA should be capped at a modest number to ensure regular contact and quality provision.
Recommendation 44
The Government should conduct further research into the optimum contact time between ICTA and child, and the optimum caseload per ICTA, to deliver a service that meets every child’s best interests. Caseload levels should be monitored by the Independent Anti-Slavery Commissioner and the Children’s Commissioners for England and Wales.
Recommendation 45
The Government needs to establish a National Protocol for the ICTA service detailing how public authorities should collaborate with ICTAs to ensure a consistent quality of service based on best practice examples. The protocol should specify the ways in which public authorities will required to pay due regard to ICTAs and share information with them, when sections 48 (6)(e)(i) and (ii) of the Act are brought into effect. This collaboration should be monitored by the Independent Anti-Slavery Commissioner in conjunction with the Children’s Commissioners for England and Wales and the findings reported in the Independent Anti-Slavery Commissioner’s annual report.
Recommendation 46
The National Protocol should stipulate that each region undertakes a preliminary audit of existing child trafficking services available and construct a bespoke ICTA service that complements the work of other public authorities.
Recommendation 47
The ICTA service should work with regional providers to train public authorities in a consistent application of best practices in relation to age assessment. This framework should be included in the National Protocol.
Recommendation 48
The phrase “reasonable grounds” should be removed from section 51 of the Act [regarding the presumption of age]. The Government should issue further guidance on the way public authorities should interpret grounds for “belief” that a child is under 18 and “presumption of age” consistently for the protection of all trafficked children.
Recommendation 49
Close monitoring of the ICTA service needs to continue in order to ensure ICTA practitioners are acting in the child’s best interests and resource is being allocated appropriately.
Recommendation 5
The Commissioner’s focus should be primarily on tackling modern slavery domestically, but there will need to be some continued international angle. The Commissioner’s international role should be focussed on countries of direct strategic importance to the UK on modern slavery. This work should be analytical and advisory, as opposed to project delivery or representation of the UK Government’s interests.
Recommendation 50
Monitoring needs to be supported by much more comprehensive data gathering on what happens to children during and after the ICTA service to assess value for money and set direction for the service.
Recommendation 51
The [ICTA service] monitoring and evaluation role should be undertaken by the Independent Anti-Slavery Commissioner in conjunction with the Children’s Commissioners for England and Wales.
Recommendation 52
ICTAs should not be required to have formal social work qualifications on appointment but should have other relevant experience or qualifications relevant to child trafficking and criminal justice, social care, asylum and immigration.
Recommendation 53
As the service establishes itself nationwide, ICTAs should have access to a high quality standardised training offer devised and delivered by one or a number of independent providers. A key part of the training must be the ability to develop the ability to gain access to legal support quickly for children facing immigration issues.
Recommendation 54
The Government should rename ICTAs to be commonly known as “Independent Guardians”. It is not necessary to change the statutory title in section 48 in the immediate future.
Recommendation 55
The wording of section 48 [of the Act] should be amended to ensure all children and young people who are believed to have been victims of human trafficking and all other forms of modern slavery are eligible for the ICTA service. The Act should be amended in the same way at section 51 where references to “victims of human trafficking” are made.
Recommendation 56
All references to “reasonable grounds” should be removed from section 48 of the Act.
Recommendation 57
Section 48 [of the Act] should be commenced and the full roll out of the ICTA service across England and Wales should take place as soon as possible, with the service operating in accordance with the methods and principles we have recommended in this report.
Recommendation 58
Section 3 [of the Act] on the meaning of exploitation should not be amended as it is sufficiently flexible to meet a range of circumstances, including new and emerging forms of modern slavery.
Recommendation 59
While we are in no doubt about the seriousness of new types of exploitation that have come to light since the passing of the Act, such as county lines and orphanage trafficking, it is not practical to amend legislation every time a new form of exploitation is identified. Government instead should produce policy guidance to assist in the interpretation of the Act, building on the Home Office Typology of Modern Slavery research. This should be regularly updated to respond to new and emerging trends and should give examples of the types of exploitation that can potentially be prosecuted under the Act, including orphanage trafficking and county lines.
Recommendation 6
The Commissioner should be appointed by a sponsoring Secretary of State other than the Home Secretary. Our preference would be for a Sponsoring Minister in the Cabinet Office, acting on behalf of the Prime Minister.
Recommendation 60
The Independent Anti-Slavery Commissioner should monitor and review the outcomes of prosecutions and appeals to ensure the Courts are not taking an overly narrow interpretation of what constitutes trafficking under section 2. The Commissioner should report her findings in her annual report, and Government should be prepared to bring forward amendments to the legislation if the Commissioner identifies an issue with the interpretation of section 2.
Recommendation 61
Section 1(5) and section 2(2) [of the Act] should be amended to reflect more clearly that a child is not able to consent to any element of their trafficking.
Recommendation 62
Compensation for victims [of modern slavery] ought to be at the forefront of the Court’s mind. The Sentencing Council should include in their forthcoming Modern Slavery Act sentencing guidelines a reminder for judges of their responsibility to consider Reparation Orders in every case where it is appropriate to do so.
Recommendation 63
Compensation for victims [of modern slavery] ought to be made more easily available to all known victims of a convicted perpetrator, regardless of whether they give evidence in Court. The police need sensitively to maintain contact with victims [of modern slavery] throughout the course of an investigation and trial, ensuring victims understand there is a possibility they could receive compensation in future and therefore the importance of providing the police with up-to-date means of contact.
Recommendation 64
It is essential there is a swift and thorough financial investigation in every modern slavery investigation. Government needs to ensure the appropriate priority is placed on resourcing financial investigations.
Recommendation 65
Law enforcement needs to make better use of the powers provided to it, in freezing suspects’ assets early on in modern slavery investigations, including before arrest where that is appropriate. This will help to prevent perpetrators dissipating assets and ensure that there could be funds available post-conviction to make Reparation and Compensation Orders to victims. Freezing assets will also disrupt modern slavery and human trafficking networks, ensuring they are unable to operate while investigations and criminal proceedings are underway.
Recommendation 66
We recommend extending the provision of Section 23 [of the Act] to allow Crown Court Judges to make Slavery and Trafficking Risk Orders.
Recommendation 67
The Government should keep under review the effect of the new Legal Aid contracts and how they are operating in practice [in respect of modern slavery]. The Independent Anti- Slavery Commissioner should monitor the experience of victims of modern slavery in accessing legal aid and raise concerns or challenges with Government, as well as reporting them in her annual report.
Recommendation 68
The burden of proof [to disprove the applicability of the statutory defence for victims of modern slavery] should remain with the Crown.
Recommendation 69
There is a natural tension which exists in any defence, between the potential for misuse and the need to protect victims. We believe a balance needs to be maintained, and the current legislation, case-law and the system of trial by jury achieves the right balance [in respect of the statutory defence for victims of modern slavery]. Protecting vulnerable individuals is the purpose of the Act, and the recent Court of Appeal judgement ensures this protection.
Recommendation 7
The Commissioner should be recruited and appointed in accordance with the Cabinet Office’s Governance Code for Public Appointments. The appointment should be subject to a pre-appointment Hearing with a Parliamentary Select Committee. If the Committee approves the selection, the final appointment should be by order of the Prime Minister. Any extension to the length of appointment of the Commissioner should be in consultation with the Parliamentary Committee.
Recommendation 70
Law enforcement bodies and prosecutors should make provision to conduct thorough investigations and gather sufficient evidence to demonstrate whether an individual is a victim [of modern slavery] or not [in cases where the statutory defence has been raised].
Recommendation 71
We do not recommend any changes to Schedule 4 [of the Act]. A balance needs to be achieved between preventing the perpetrators of serious criminal acts from evading justice and protecting genuine victims [of modern slavery] from prosecution. An absolute defence for all offences is not appropriate. The current safeguards of CPS discretion and consideration of the public interest test before bringing charges act as an appropriate safety net even if an offence falls within Schedule 4.
Recommendation 72
For all potential victims of modern slavery, it is essential that defence lawyers are aware of the statutory defence and advise their clients to disclose at the earliest possible stage if they are a victim of trafficking or modern slavery. This is even more important in the cases of children. Where it has not already been raised by the defence and there are indicators that modern slavery might be a factor, training and guidance from the Judicial College ought to prompt Judges and Magistrates to question at the pre-trial hearing whether the statutory defence is applicable. The statutory defence should be considered by Judges and Magistrates at the pre-trial hearing in all cases relating to children.
Recommendation 73
The relationship between the NRM process and criminal justice process needs to be clarified. A common set of guidance ought to be developed to ensure that all participants in the criminal justice system – the CPS, law enforcement, judiciary, defence and prosecution lawyers – understand the NRM decision-making process and the weight it should be given in criminal proceedings.
Recommendation 74
The recommendations made in Caroline Haughey’s 2016 Review of the Modern Slavery Act relating to training and the need for specialist advocates in modern slavery cases should now be implemented.
Recommendation 75
Government should work closely with relevant organisations (including the CPS, College of Policing, Criminal Bar Association, professional bodies representing solicitors and the Judicial College) to ensure there is mandatory training on recognising modern slavery for all participants in the criminal justice system. This is a priority for frontline officers and defence lawyers who may be among the first participants in the criminal justice system a victim encounters.
Recommendation 76
Government should work closely with relevant organisations (including the CPS, College of Policing, Criminal Bar Association, professional bodies representing solicitors and the Judicial College) to review the available training and guidance to ensure it includes clear and consistent information on the statutory defence [for victims of modern slavery]. This should highlight the Court of Appeal ruling and where the burden of proof lies. Progress should be regularly monitored by a cross-government forum, such as the Prime Minister’s [modern slavery] Task Force.
Recommendation 77
Finally, professional bodies need to reflect in their guidance to members that where there is evidence that someone might be a victim of trafficking, it is likely to be in their client’s best interests to disclose this immediately, and the Crown must be given adequate time to conduct their enquiry.
Recommendation 78
The accurate collection of data on the use of the statutory defence [for victims of modern slavery] is vital. As a priority, we recommend that the police, the CPS and HM Courts and Tribunals Service record data on how the statutory defence is being used by adults and children. The overall use of the defence needs to be captured; as well as cases where the defence has been appropriately deployed, where it has been claimed and subsequently disproved, and instances where it, arguably, ought to have been deployed earlier on.
Recommendation 79
The Crown Prosecution Service and HM Courts and Tribunals Service should collect data on compensation awards made to victims of modern slavery – whether through Reparation Orders or Compensation Orders. This data should be reviewed regularly in conjunction with the Home Office, to monitor progress in making compensation awards to victims. The findings should be reported annually in the UK annual report on modern slavery.
Recommendation 8
The process for agreeing the Commissioner’s budget should be set out in a memorandum of understanding with the sponsoring department and it must be adhered to.
Recommendation 80
The Ministry of Justice, Crown Prosecution Service and HM Courts and Tribunals Service should collect data on the type of exploitation involved in modern slavery prosecutions, and the age of the alleged victim(s).
Recommendation 9
The Commissioner’s budget should be agreed on a multi-year basis for the duration of each Spending Review period, providing certainty for the Commissioner to determine a strategic multi-year work plan. The budget should be sufficient to ensure the Commissioner has adequate funds to fulfil his/her functions effectively.