Today marks the sixth anniversary that the UK Modern Slavery Act (MSA) was enacted into law. The UK Government has recently announced proposed changes to the transparency in supply chains (TISC) provision of the MSA, which requires companies to detail their efforts to address modern slavery risks in their operations and supply chains. The government also recently launched a registry of statements. These developments attempt to address persistent issues around weak reporting and low levels of compliance, and while they will improve some aspects of the law, such as monitoring of compliance, they won’t advance what the government set out to achieve six years ago. The TISC provision remains a light touch reporting requirement, and ample evidence shows that while transparency is necessary, relying on voluntary disclosure is insufficient to prevent even the worst forms of labour abuse.

In a recent report, Business & Human Rights Resource Centre (BHRRC) concludes that most companies publish vague statements leaving readers none the wiser about key issues such as companies’ supply chains, vulnerable workers or the risks faced by those workers. More importantly, modern slavery disclosure does not require companies to identify, prevent and mitigate labour rights abuses in operations and supply chains in line with the UN Guiding Principles on Human Rights, or demonstrate that companies are doing so. We must accept that disclosure requirements alone will not incentivise companies change their ways, especially if it means losing profits to less scrupulous competitors.

That the MSA has failed to result in a significant change in corporate behaviour, beyond a proliferation of policies, commitments and audits, is not a surprise to anyone. Extensive research shows that business models, including creating complex supply chains, are “hard wired” to produce labour exploitation. A BHRRC report on the apparel sector clearly sets out how the COVID-19 pandemic exacerbates exploitative business practices, but also how they were a normal part of doing business before the pandemic. Simply put, companies profit from labour exploitation. A new legal framework that places legally binding and enforceable standards of corporate human rights due diligence is needed to compel companies to make sure their business activities are not linked to labour abuse in supply chains, including modern slavery.

A failure to prevent human rights and environmental harms law has been proposed by stakeholders in the UK. The proposed law would impose a duty to prevent harm, rather than simply expect a level of human rights due diligence. Where a company fails to prevent harmful human rights (or environmental) impact, it could be held to account and potentially face civil and criminal liability. Similar to the UK Bribery Act, a strict liability offence would be paired with a due diligence defence against liability for damage or loss. Strict liability would create a deterrence to taking part in unscrupulous and exploitative behaviour while incentivising human rights due diligence.

In carrying out the necessary due diligence to prevent human and labour rights harms, companies should consider the full spectrum of labour exploitation. For example, abuses prevalent in supply chains like low wages, poor working conditions or union suppression might not amount to modern slavery yet they contribute to the vulnerability of workers and leave them exposed to further exploitation. Addressing the spectrum of labour abuse with a view to preventing human rights and labour rights harms from occurring in the first place, differs significantly from the MSA framework, where companies take a reactive approach and address modern slavery risks when they are identified (if identified at all).  

Another difference between the MSA and a failure to prevent legal framework is that the latter would move away from the top-down approach of the MSA where companies at the top of supply chains overwhelmingly focus on policies and commitments rather than outcomes for workers. To effectively prevent a labour rights abuse, companies should use their leverage to advance the empowerment of workers at the bottom of supply chains. Ensuring workers are able to exercise enabling rights like freedom of association and collective bargaining is vital for them to improve their working conditions and try to secure decent work for themselves. The most vulnerable workers, who often do not enjoy these rights, are most at risk of being pushed into precarious work situations and suffering further exploitation, including modern slavery.

There will always be unforeseen challenges to developing and implementing new laws, and it is important to learn from other jurisdictions. Recent analysis of companies undertaking their human rights due diligence obligations under the French Duty of Vigilance Law shows similar findings to those of the BHRRC analysis of modern slavery reporting, “less advanced companies have compiled under their vigilance plans existing policies and processes, not fully engaging or understanding the objectives (and spirit) of either the vigilance plan or the Law. Overall, a number of companies still approach the vigilance plan as a tick-box exercise and are wary of transparency and stakeholder engagement…The adapted actions and evaluation measures to be included in vigilance plans are often described in little detail.” Therefore, to counter an apathetic response to a new law, enforcement and implementation of any legislation must be properly resourced and prioritized to ensure companies meet both the letter and spirit of the law.

 It is important that we not rely on any single legal framework as a solution to tackling this very complex issue.  Instead, we must take a multifaceted approach that considers immigration, criminal, corporate and employment laws among others. Governments must properly resource labour inspectorates – in the UK, businesses can expect an inspection only once every 500 years. Trade unions have called for joint and several liability, which would give subcontracted workers the right to bring claims against any contractor above them, broadening who has a duty of care to the workers and increasing access to remedy for workers.

The MSA has helped raise awareness among corporate leadership and has encouraged a few exceptional companies to demonstrate leadership. Yet perhaps it better to expect companies to provide for decent work for all rather than focus exclusively on modern slavery. Not only would this better prevent labour exploitation, including modern slavery, it would help eliminate precarious working conditions and potentially lift millions out of poverty.

Patricia Carrier is a business and human rights expert who focuses on corporation reporting under the UK Modern Slavery Act. She was Project Manager for the Modern Slavery Registry, operated by the Business & Human Rights Resource Centre, from 2016-2021.

For more on this and related topics from the Business and Human Rights Journal (BHRJ) see BHRJ articles ‘Wages: An Overlooked Dimension of Business and Human Rights in Global Supply Chains’, ‘Human Rights Due Diligence in Law and Practice: Good Practices and Challenges for Business Enterprises’ and ‘Modern Slavery Laws in Australia: Steps in the Right Direction?’