Future Directions in Anti Trafficking Law
On 6 May 2014, The Dickson Poon School of Law hosted a Thought Leadership Forum on Future Directions in Anti-Trafficking Law. Leaders from government, UN agencies, non-governmental organisations, the legal profession and academia came together for a discussion on anti-trafficking law and policy. The discussion was framed by the upcoming 15th anniversary of the Palermo Protocol (or Trafficking Protocol) in 2015 and took stock of the protocol’s implementation over the past 15 years, engaging in a much-needed conversation on the future of anti-trafficking law and policy.
Speakers included Michael Dottridge, former Director of Anti-Slavery International, Parosha Chandran, Barrister at Pump Court Chambers, Pam Bowen of the Crown Prosecution Service, Aidan McQuade Director of Anti-Slavery International, Anne Gallagher, International Lawyer and Trafficking Expert, Cindy Berman from the Ethical Trading Initiative, Beate Andrees from the International Labour Organisation and Janie Chuang, a law professor from American University.
The speakers made brief presentations about their involvement in the development of anti-trafficking policy and where they visualised its future evolution. Some speakers like Parosha Chandran and Pam Bowen have been deeply engaged with the development of anti-trafficking policy at the domestic UK level whereas others like Beate Andrees have engaged most with the international law of trafficking. Chandran was the first speaker for the evening. She outlined her involvement in arguing cases that established the rights of trafficked persons to be part of a particular social group (and thereby entitled to the benefits of the Refugee Convention) if they were at risk of being re-trafficked should they be repatriated. Chandran also outlined her pioneering role in the non-punishment cases wherein prosecutions had been launched against trafficked victims for engaging in illegal activities in the UK. Commenting that the proposed Modern Slavery Bill had no non-punishment clause, she expressed disappointment with the Joint Select Committee’s recommendation regarding non-prosecution as it introduces a test of reasonableness for a victim of trafficking who but for their trafficking would never have committed an offence.
Pam Bowen of the Crown Prosecution Service spoke of the relatively recent history of anti-trafficking law in the UK and how the first prosecution and a considerable sentence for the trafficker was actually secured under immigration law. The early anti-trafficking cases were on sexual exploitation until 2008 when the CPS launched its first prosecution for forced labour, which involved a young child who was forced by her Roma relatives to go out and sell the magazine the Big Issue and do domestic work. Since 2005, there have five further legislative changes to respond to. Bowen noted the challenges of developing UK anti-trafficking law in response to the Council of Europe Convention and EU directives. She concluded by reminding the audience of the ability of prosecutors to use a variety of tools to respond to traffickers, and that ultimately the legislation used must not be over-emphasized. The main impediment to convictions was the victims themselves, as they were often very chaotic and vulnerable and getting them to give evidence was extremely difficult.She endorsed the utility of the definition of trafficking under Article 3 of the Trafficking Protocol and suggested that the definition of trafficking in UK law should aim to be simple, straight-forward and clear with as few constraints as possible so that it could be suitably applied on a case-by-case basis.
Aidan McQuade of Anti-Slavery International spoke of how anti-trafficking law needs to address the role of international business in relying on forced labor through elaborate supply chains. He called for a UK equivalent to the California Transparency in Supply Chains Act. Anne Gallagher commenting on the previous three speakers’ interventions, suggested that they provided a timely reminder that a criminal justice response to trafficking was not in the hands of cowboys and for that reason, a criminal justice response to trafficking should not be viewed as inevitably bad. She endorsed Chandran’s view on non-punishment claiming that non-criminalisation was not within the spirit in the Trafficking Protocol and that it has taken many years for states to accept that they do not have the right to prosecuted trafficked victims. She saw the UK as a good example of how legislative reform is driven by knowledge of trafficking. Laws may not be perfect but from a global perspective, there is a trend toward the incremental refinement of anti-trafficking laws. However, in many countries, protections and support provisions for victims of trafficking are tied to testifying against traffickers.
Cindy Berman of the Ethical Trading Initiative (previously of Department for International Development) offered a donor agency’s perspective on anti-trafficking. She specifically spoke of her role in devising the DFID-ILO Programme Work in Freedom to prevent the trafficking of women from South Asia into domestic work and garment work. At a time when considerable donor funding was going into sex trafficking and criminal justice efforts, DFID looked into the larger issue of the prevention of forced labour trafficking. The Work in Freedom Programme emerged as a result. Berman reiterated that funding was not always the main constraint in developing anti- trafficking initiatives but that there needed to be a robust evidence base for their effectiveness. Ultimately the future of anti-trafficking policy lies not in distinguishing good guys from the bad guys but managing massive risks driven by poverty, discrimination, gender and vulnerability.
Beate Andrees, who is the Head of Special Action Program Against Forced Labour at the International Labour Organisation spoke about the ILO’s involvement in formulating anti-trafficking policy at the international level. She detailed the role of the ILO in the Palermo process from the start and the link between the Trafficking Protocol and the Forced Labour conventions. Andrees emphasized the complimentary role that the criminal justice and labor approaches must play in combatting trafficking. Andrees then spoke about the (then in draft form) instrument to supplement Convention No. 29, which seeks to reinforce measures on forced labour to close gaps in the Trafficking Protcol. The instrument was on the agenda of the 2014 International Labour Conference. Andrees made it very clear that although there was no consensus amongst governments on the definition of forced labor in relation to trafficking, the goal was not to redefine forced labor as this would undermine Convention No. 29 against Forced Labor, already one of the most ratified ILO conventions. Moreover, the Protocol and Recommendation under discussion were aimed at the increased protection of victims of forced labor and were viewed by the ILO as entirely complementary to the Trafficking Protocol.
Janie Chuang commented on the presentations by Berman and Andrees by noting the routine conflation of the concepts of trafficking with slavery and forced labor thus leading to what she terms as “exploitation creep”. She expressed her concern that the conflation of trafficking with slavery was proving to be a setback to serious efforts to address trafficking. However it has also brought certain constituencies together such as anti-trafficking NGOs and workers’ organisations.
Speakers’ interventions and responses were followed by a lively discussion amongst invitees. The Thought Leadership Forum concluded with the release by Professor Sally Merry of Professor Denise Brennan’s new and exciting book, Life Interrupted: Trafficking into Forced Labor in the United States. A book at the intersection of anthropology and law, Professor Merry commented that Life Interrupted was “really a wonderful example of what a detailed ethnography can do for these (trafficking) debates. The book is beautifully written and a good way to get a more nuanced and sophisticated understanding.”
The forum was organised by Dr Prabha Kotiswaran and generously funded by the Dickson Poon gift.
This event was part of a Thought Leadership Forum series at The Dickson Poon School of Law.
Seeforthcoming events from The Dickson Poon School of Law.