The UK Modern Slavery Act Two Years After: Where do we stand? - By Sara Martinetto

Editor's note: Sara Martinetto is a research intern at the T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

In my previous blog, I explained how the negotiations on a prospective Treaty on Business and Human Rights are going hand-in-hand with the implementation of the United Nations Guiding Principles on Business and Human Rights (UNGPs). The Principles – developed by Professor John Ruggie, and approved by the UN Human Rights Council in 2011 – have attracted widespread consensus among both States and corporations.[1]  Nowadays, the UNGPs are regarded as crucial to hold corporations accountable for human rights abuses connected to their activities. However, the UNGPs are not binding, and they need to be operationalized in national law, as reaffirmed in Human Right Council Resolution 26/22. To date, National Action Plans[2] appear as the preferred tool to transpose the Principles into national law. Nevertheless, their provisions are often of a descriptive nature, resembling more a declaration of intent rather than an effective implementation of the UNGPs.[3] Only recently, some States have actually adopted hard law instruments on Business and Human Rights, and the UK Modern Slavery Act (2015) is one of them. The Act, aimed at tackling modern slavery and human trafficking, was sponsored by Theresa May and Lord Bates in 2014 and came into force on 29 October 2015.

Almost two years from the entry into force of the Act, this post aims at giving a brief account of what the Modern Slavery Act is and how it has been applied so far. The main focus will be on Section 54 of the Act (‘Transparency in the supply chain’), which prescribes a reporting obligation for corporations.


The Modern Slavery Act is considered as part of a broader set of hard law instruments adopted in the face of the inability of soft law to prevent and punish corporate abuses.[4] This array of laws ranges from the California Transparency in the Supply Chain Act of 2010 (which has deeply influenced the UK Act),[5] to the EU Non-Financial Reporting Directive of 2014, and the French ‘due diligence’ law of 2016.

However, there is a fundamental difference between the Modern Slavery Act and its American and French counterparts: it aims at tackling modern slavery and human trafficking in a broad sense, even when these crimes have been committed without any connection with corporations. For example, the Act covers offences against domestic workers, who work in the employer’s household and not in a company.[6] In fact, the Act has been adopted in the aftermath of the European Court of Human Rights ruling in C.N. v United Kingdom, where the Court found the UK lacking of an adequate legal framework to tackle violations of Art. 4 ECHR (prohibition on slavery). Thus, the Act implements relevant international and European instruments regarding modern slavery and human trafficking.[7] 

Therefore, the primary aim of the Act is to establish criminal liability for natural persons committing such crimes. Indeed, the first version of the Bill did not contain any reference to modern slavery in the supply chain. It was only due to the strong criticism the draft attracted, especially in the light of the recent scandals some British corporations were involved in, that the British Parliament decided to introduce a provision addressing exploitative practices perpetrated by businesses (Section 54).[8] 

Therefore, one fundamental point is to be stressed: natural persons can be criminally liable under the Modern Slavery Act. Members of any entity, be it a criminal organisation or a company, may be found guilty of human trafficking and modern slavery.[9] What Section 54 prescribe is a separate obligation, binding on corporations, to report whether the offences covered by the Act occur in any part of their business. Thus, only Section 54 has been regarded as an implementation of UNGPs.[10]


The offences covered by the Act

Before diving into the analysis of the obligations set out in Section 54, it might be useful to look at what offences are covered by the provision. This analysis serves two purposes: it allows drawing some general considerations on the Act and it defines which criminal conducts have to be reported by corporations.[11]

Paragraph 12 of Section 54 recalls the offences defined in the first two sections of the Act (specified in Section 3 and 4), together with some similar provisions, contained in other pieces of legislations enacted in Scotland and Northern Ireland.[12] All in all, four crimes are listed: slavery, servitude, forced or compulsory labour, and human trafficking.

Notwithstanding the reference made by the Modern Slavery Act to Art. 4 ECHR, the constitutive elements of such crimes are the object of much debate in international legal scholarship, which lead to a proliferation of different definitions.[13] Therefore, ‘modern slavery’ is used as an all-encompassing concept, which includes ‘all activities involving someone obtaining or holding another person in compelled service’.[14] As a result, the judiciary enjoys a great margin of discretion in defining the scope of application of the Act.

Furthermore, it is worth noting that the narrative surrounding modern slavery often revolves around human trafficking and sexual exploitation, and the UK Modern Slavery Act is no exception to it. This appears clearly both from the focus maintained during the negotiations of the Act and from the Modern Slavery Strategy adopted by the British Government in November 2014.[15] As a result, modern slavery is considered more an immigration and border control problem, rather than a question of labour standards and corporate conduct.[16] However, according to the International Labour Organisation, only 29% of people implicated in modern slavery actually crossed borders.

Thus, the broad scope of application of the Act, and the political orientation underlying it, pose the risk of narrowing down the focus of investigations on natural persons, disregarding enslavement practices which did not entail trafficking. This emphasis placed on migration-related exploitation could ultimately have a negative impact on the understanding businesses have of what constitutes modern slavery under the Act. Therefore, it is up to companies covered by Section 54 to report each and every exploitative practice occurring in their supply chain, regardless of their link with migration issues.


Section 54

Section 54 obliges any company with a minimum global turnover of £36m, which supplies goods or services in the United Kingdom, to produce a slavery and human trafficking statement for each financial year. The statement has to be approved by the board, signed by the director and published on the company’s website. Each element of this provision is in need of further clarification.

First of all, a slavery and human trafficking statement requires an analysis of the steps the corporation has adopted to prevent these crimes from occurring in its supply chain or in any part of its business. This would compel corporations to come clean about the possible presence of such exploitative practices in their supply chain. However, Section 54(4)(b) explicitly provides for the possibility to state that no such steps have been taken: there is no legal obligations for corporations covered by the Act to assure that their products and services are “slavery and trafficking – free”.

Moreover, there is no indication on how this Statement should be drafted. Ideally, it would include the elements listed in Paragraph 5 of the Section: the structure of a company and of its supply chain; slavery and human trafficking internal policies; due diligence processes adopted with regard to these crimes; risk assessment and risk management of exploitative practice along the supply chain; effectiveness of the measures taken; the training about slavery and human trafficking available to its staff. However, these components are introduced in the provision by the word “may”, leaving it totally up to corporations to decide whether to include such items in their own statement. In particular, there is no indication of what “supply chain” means: according to the guidelines issued by the Home Office, this expression has to be read in its “everyday meaning”.

Two considerations might be drawn from these first two points. Firstly, one can only notice the discrepancies between the obligation set out in Section 54, and the due diligence obligation enshrined in Principle 17 UNGPs. According to this provision, due diligence consists in “assessing actual and potential human rights impacts, integrating and acting upon the findings, tracking responses, and communicating how impacts are addressed”. Section 54 focuses only on the last element, leaving outside its scope measures related with modern slavery risk assessment and management, which are recalled in Paragraph 5 as a mere suggestion. In so doing, this norm falls very short of the previous attempt by the judiciary to establish a duty of care for parent companies vis-à-vis operations of their suppliers and subsidiaries.[17] Secondly, companies are left with a great margin of appreciation on what constitutes their supply chain, and whether they should disclose data regarding the far ends of their businesses (e.g. indirect suppliers, suppliers of minimal components of the finished good etc.).[18]

Regarding the personal scope of application, Section 54 applies to all enterprises which carry out their business or part of their business in the United Kingdom (54.12), whatever their State of incorporation. Overall, the Government estimates the provision applies to around 12000 entities. The underlying idea is to render the British market free from modern slavery. Even if many have welcomed this sort of extraterritorial reach of the provision, others have criticised its mildness.[19] In fact, the provision does not apply to foreign subsidiaries which, albeit fully-owned by British companies, do not do any business in the UK. In such way, a large segment of some companies’ operations might fall outside the scope of the provision. Moreover, the expression “to carry on a business” has been defined neither by the Act itself, nor by the Government, which stated that the wording is to be interpreted following a “common sense approach”: the extent to which companies operate in the UK market is irrelevant, as long as their corporate presence is “demonstrable”.[20]

Undoubtedly, the approval of the statement by the board and its signature by the director has the positive effect of placing the modern slavery issue at a prominent place in companies’ agendas. Moreover, the statement has to be published on a visible part of the company’s website, or be disclosed if requested, in case no website is available (54.7-8). The possibility to access the statements is of the utmost importance, especially if one considers the sanction regime prescribed by Section 54: the only possible remedy against a failure to comply with the reporting obligation is to start a civil proceeding aimed at obtaining an injunction to comply and a non-specified fine. Thus, the Act heavily relies on the scrutiny that consumers, partners, and investors could exercise on the statements. In order words, the rationale of the provision is that enterprises will not only comply, but also adopt a proactive stand against modern slavery, in order to avoid the reputational risk of being associated with such offences. Perhaps, failure to comply or publishing cursory statements could be an incentive for authorities to investigate the company. However, this would only be an indirect consequence of the Act.


How Section 54 is being applied in practice

The assessment of the statements published pursuant to Section 54 is hindered by the lack of a central public database collecting all of them. Thus, monitoring of publications has been left to civil society. The Business & Human Rights Resource Centre, in collaboration with other organisations, has created the UK Modern Slavery Act Registry. The Registry performs an essential function, namely it creates a level playing field for all corporations, since they are all exposed to the same public scrutiny. 

Two major reports have examined the statements released in 2016 (here and here). From their findings it is possible to appraise some positive trends. No company has declared that no steps have been taken; conversely, there is an increasing engagement in the issue, resulting in greater allocation of resources in tackling exploitative practices. However, numerous shortcomings have also been reported: many statements fail to meet minimum requirements set out in the provision (e.g. they are not signed or they are not visibly published on websites), and do not include the optional elements listed in Paragraph 5. Specifically, businesses omitted a complete account of the structure of their supply chain, making it impossible for the public to grasp how businesses are organised beyond the first tier of suppliers. Additionally, if the Act provides for very limited sanctions in case of non-compliance, no actual sanctions are prescribed in case of poor-quality disclosure. [21]

It is true that many companies had never performed this type of investigation before 2016. Thus, it is possible that the quality of statements will improve over time. To date, it is hard to assess the evolution between 2016 and 2017, since those organisations whose financial year ends between 29 October 2015 and 30 March 2016 were exonerated from publishing the 2015/2016 statement. In a 2017 report, Ergon found marginal progress in reporting techniques, although in most cases it remains unclear how investigations, risk assessment and management have been performed.

Concluding remarks

The UK Modern Slavery Act has been described as an “example of meta-regulation”,[22] or even of “reflexive law”,[23] a sort of hybridization between public and private governance. It establishes a minimal hard-law framework (i.e. the reporting obligation), and then leaves private entities free to decide how to implement it. Supposedly, an advantage of this approach is the higher knowledge corporations possess about their own supply chain, which could result in better strategies to tackle modern slavery.[24] At the same time, public intervention helps to create a level playing field among corporations, where everyone is subject to the same level of inspection. In this way, companies would be invited to be transparent, without the fear that disclosure would leave them alone into the public eye. Therefore, the idea is to create a virtuous cycle, were corporations would start a sort of race to the top to eradicate modern slavery.  

Unfortunately, not all that glitters is gold. In practice, the UK Modern Slavery Act seems to be a weak form of regulation, which is “fully dependent on private governance tools, standards, and enforcement mechanisms”, without any reference to international standards and no proper sanctions in case of non-compliance.[25] It has been described as “little more than an endorsement of existing voluntary CSR reporting”.[26] The freedom of enterprises in carrying out their reporting obligation is accompanied by the fear they will fulfil it in the way it suits them best, using the statement to promote  their virtuous practices and to hide the less-virtuous ones. The use of independent experts who would perform unannounced inspections remains a mere recommendation.[27] Even more voluntary appears to be the performance of a full-blown due diligence appraisal as prescribed by Principle 17 of the UNGPs, which the Acts lists among the voluntary features of an already very weak reporting obligation.

In the awareness of the Act’s weaknesses, a new bill amending Section 54 was presented to the British House of Lords. This amendment would make the reporting requirements more stringent, and would also attach further consequences to non-compliance. However, the discussion is stalling, and, for now, victims of modern slavery practices seem to be left with an Act that glitters, but it is certainly not gold.

[1] M. Neglia, The UNGPs – Five Years On, in Netherlands Quarterly of Human Rights, Vol. 34/4, 2016, 294

[2] A general overview is available here

[3] M. Neglia, op. cit., 303

[4] R. E. Cîrlig, Business and Human Rights: from soft law to hard law?, in Juridical Tribune, Vol. 6, 2016, 229

[5] S. Wen, The Cogs and Wheels of Reflexive Law – Business Disclosure under the Modern Slavery Act, in Journal of Law and Society, vol. 43, 2016, 345

[6] J. Haynes, The Modern Slavery Act (2015): a Legislative Commentary, in Statute Law Review, vol. 37, 2016, 36

[7] Among others, it draws upon the Protocol to Prevent, Suppress and Punishing Trafficking (2000), ratified by the UK in 2006, the Council of Europe Anti-Trafficking Convention (2005), ratified by the UK in 2008, and the EU Anti-trafficking Directive 2011/36/EU, to which the UK has opted in. See J. Haynes, op. cit., 34 - 37

[8] S. Wen, op. cit., 341

[9] Some of these cases have already attracted much attention from the media. Among others, one should mention R v Mohammed Rafiq [2016] EWCA Crim 1368, Court of Appeal, and the Galdikas & Ors v DJ Houghton Catching Services Ltd & Ors [2016] EWHC 1376 (QB). In particular, the latter generated much clamour, since the products under scrutinywere then supplied to big companies, such as Tesco and McDonalds.

[10] J. Planitzer, Trafficking in Human Beings for the purpose of Labour Exploitation, in Netherlands Quarterly of Human Rights, vol. 34/4, 2016, 322

[11] S. Wen, op. cit., 332

[12] Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2 (N.I.)), Criminal Justice (Scotland) Act 2003 (asp 7), Criminal Justice and Licensing (Scotland) Act 2010

[13] See footnote 7. S. Gold et al., Modern Slavery challenges to supply chain management, in Supply Chain Management: an International Journal, 2015, 485; J. Haynes, op. cit., 39. For a comprehensive analysis see H. van der Wilt, Trafficking in Human Beings, Enslavement, Crimes against Humanity: Unravelling the concepts, in Chinese Journal of International Law, 2014, 297-334

[14] J. Haynes, op. cit., 35; S. Wen, op. cit., 331

[15] G. Craig, The UK’s Modern Slavery Legislation: An Early Assessment in Progress,  in Social Inclusion, vol. 5, 2017, 19-20; H. Lewis et al, Hyper-precarious lives: migrants, work and forced labour in the Global North, in Progress in Human Geography, vol. 39(5), 2015, 590

[16] J. Fudge, The dangerous appeal of the modern slavery paradigm, Open Democracy, 25 March 2015

[17] Chandler v Cape Plc [2012] EWCA Civ 525 (England, Court of Appeal, 25 April 2012). The effects of this judgement have been limited afterwards, in Thompson v The Renwick Group Plc [2014] EWCA Civ 635 (13 May 2014)

[18] S. Wen, op. cit., 353

[19] S. Wen, op. cit., 351

[20] Home Office, Transparency in the Supply Chain: a Practical Guide, 29 Oct 2015, 8

[21] S. Wen, op. cit., 355

[22] M. Neglia, The UNGPs – Five Years On, in Netherlands Quarterly of Human Rights, Vol. 34/4, 2016, 314

[23] See W. E. Scheuermann, Reflexive Law and the Challenges of Globalization, in The Journal of Political Philosophy, Vol. 9, 2011, 81-102

[24] S. Wen, op. cit., 346

[25] G. LeBaron, A. Ruehmkorf, Steering CSR Through Home State Regulation: A Comparison of the Impact of the UK Bribery Act and Modern Slavery Act on Global Supply Chain Governance, in Global Policy, 2017, 17

[26] G. LeBaron, A. Ruehmkorf, op. Cit., 20

[27] Home Office, Transparency in the Supply Chain: a Practical Guide, 29 Oct 2015, 33

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