INTRODUCTION
Over the last two decades, the world has declared its commitment to combating human trafficking and modern slavery. Footnote 1 A relatively new tool in the international anti-trafficking arsenal is corporate transparency legislation: laws that require some corporations to publicly disclose their actions to address human trafficking or, more widely, modern slavery. As such, transparency legislation aims to induce corporations to act against severe forms of labor-market exploitation in their supply chains by enhancing market-based forms of supply chain governance. In this article, using socio-legal methods, we analyze the effects of transparency legislation by unpacking the power relations and dynamics embedded in the process of implementing transparency legislation. We explore the operation of section 54 of the UK Modern Slavery Act 2015 (MSA), one of the leading pieces of legislation in this field, using the UK construction sector as our main case study.Footnote 2 We thereby seek to contribute to the study of the structural barriers and challenges facing the operation and implementation of transparency legislation.
Section 54 of the MSA includes a requirement that businesses operating in the United Kingdom with an annual net turnover of at least thirty-six million British pounds publish a yearly slavery and human-trafficking statement, stating what measures the organization has taken to ensure that modern slavery is not occurring in their business or supply chains. Critical transparency legislation literature in the context of the MSA points to several of its main flaws, notably the minimal requirements for corporations to prove any actual advances; the lack of real incentives for corporations to take effective action (or responsibility) to tackle human trafficking; and the lack of any requirement for the establishment of enforcement mechanisms, which, together with the lack of sanctions, has resulted in low rates of compliance with the Act (Wen Reference Wen2016; Simic and Blitz Reference Simic and Blitz2019; Le Baron Reference LeBaron2020; Sarfaty Reference Sarfaty2020; Hsin et al. Reference Hsin, New, Pietropaoli and Smit2021; Harris and Nolan Reference Harris and Nolan2022; Fudge, Reference Fudgeforthcoming). Within this burgeoning body of research analyzing the MSA’s flaws, the intricacies of the responses to it, and the mechanisms that lead to low compliance rates and to its limited impact, few studies focus on the ways in which it is accepted, implemented, and operated on the ground by different actors (Sarfaty Reference Sarfaty2020; Monciardini, Bernaz and Andhov Reference Monciardini, Bernaz and Andhov2021; Islam and Van Staden Reference Islam and Van Staden2022; Gutierrez-Huerter, Gold and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023). In this article, we seek to contribute to these studies and further theorize the understandings they offer by exploring power relations and institutional dynamics embedded in the process of implementing the MSA in the UK construction sector.
Construction is a major economic sector in the United Kingdom that is infamously exploitative and prone to trafficking (Crates Reference Crates2018; Focus on Labour Exploitation 2018; Guilbert Reference Guilbert2018; Unseen Modern Slavery and Exploitation Helpline 2023). Anti-trafficking efforts to address severely exploitative working conditions and the sector’s response to the MSA have been the focus of relatively few studies (Russell, Jaquetta, and Roland Reference Russell, Jaquetta and Roland2018; Crane et al. Reference Crane, LeBaron, Allain and Behbahani2019; Gaur and Vazquez-Brust Reference Gaur, Vazquez-Brust, Yakaleva, Frei and Murthy2019; Trautrims et al. Reference Trautrims, Stefan Gold, Emberson and Carter2020; Locatelli et al. Reference Locatelli, Konstantinou, Geraldi and Sainati2022; Gutierrez-Huerter, Gold and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023). Most of the research on anti-trafficking in the UK construction sector is grounded in business and management scholarship, while the socio-legal perspective has been somewhat neglected (though see Monciardini, Bernaz, and Andhov Reference Monciardini, Bernaz and Andhov2021). This article seeks to address this gap, through an analysis of “the law in action” that is based on the understanding that laws and regulatory measures are social and political phenomena and, more specifically, that anti-trafficking legislation and its implementation are socially and institutionally embedded. We explore the ways in which corporate actors in the UK construction sector engage with anti-trafficking initiatives and professional services geared toward assisting corporations to comply with the MSA and address human trafficking in their supply chains. In more general terms, by employing a socio-legal perspective, we seek to advance our understanding of the structural and institutional influences affecting the ways in which the legislation operates on the ground (“in action”) and the mechanisms that shape its impact.
The response of the construction sector to the MSA, as a case study, highlights the imbalanced power relations between anti-trafficking initiatives and lead firms. It demonstrates that anti-trafficking initiatives offer anti-trafficking services and solutions to corporate headquarters with a focus on perceived corporate needs to ensure compliance with the Act. Consequently, anti-trafficking initiatives in supply chains may function as tier-one suppliers rather than disruptors or reformers. In recent years, especially following the enactment of the MSA, there has been a proliferation of anti-trafficking activities in supply chains operated by different actors, including non-governmental organizations (NGOs), state agencies, for-profit service providers, and multi-stakeholder and cross-sectoral initiatives. We refer to the web of anti-trafficking actors, activities, and initiatives in supply chains as an “anti-trafficking chain.”
Anti-trafficking chains are typically characterized by the involvement of various types of actors, including private, public, for-profit, and non-profit, resulting in a diverse structural composition. Therefore, assessing the extent to which different actors impact the effectiveness of anti-trafficking chains on corporate behavior poses an empirical challenge. However, the use of chain terminology helps in overcoming aspects of this challenge by guiding a structural examination of how anti-trafficking efforts operate vis-à-vis and within supply chains, underscoring the nature of the flow of power and control within the anti-trafficking chain and, specifically, the degree to which lead firms engage with anti-trafficking efforts. Furthermore, it highlights that the mode of operation of anti-trafficking actors is shaped by the structural power relations and dynamics inherent to supply chains as well as the actors’ specific position within the chain.
This perspective builds upon and extends theorizations of the political role played by external professional, expert, and regulatory intermediary bodies in the implementation processes of corporate responsibility regulations, guidelines, and standards. Accordingly, our analysis stems from understanding anti-trafficking initiatives as service providers within, rather than as external actors to, supply chains. Such an approach sheds light on the structural conditions within which anti-trafficking initiatives function as translators that model the law’s requirements into corporate action via quantifiable measures (Sarfaty Reference Sarfaty2020), shape standards to legitimize corporate behavior (Fransen and LeBaron Reference Fransen and LeBaron2019), or exert discursive power as expert authorities (McVey Reference McVey2022). The analysis presented in this article aims to illustrate that comprehending the limited impact of anti-trafficking chains requires an exploration of the nature of their interactions with supply chains and an examination of the structural conditions within which they operate. Based on this understanding, we suggest that, despite the influence of anti-trafficking activities as translators of the law, their capacity to catalyze meaningful change in corporate behavior is affected by the dynamics and power relations within the anti-trafficking chain and with lead firms. In the context of the case analyzed in this article, the notion of an “anti-trafficking chain” focuses on the MSA’s impact on corporate action and the turn to a new set of suppliers induced by the Act as crucial factors for analyzing the implementation, operation, and compliance of transparency legislation.
The article proceeds as follows: following this introduction, in section 2, we discuss the development of different approaches and tools to combat human trafficking, situating anti-trafficking corporate social responsibility (CSR) initiatives and transparency legislation within these developments, while reviewing their shortcomings in facilitating structural change. In section 3, we present our socio-legal approach and describe how we use it to research power dynamics in the implementation of transparency legislation and the methods we employed. Section 4 introduces the main features of the UK construction industry, charts the reasons workers in the sector are particularly vulnerable to modern slavery, and outlines the supply chain structures that characterize it and describe the anti-trafficking chain created in the sector following the enactment of the MSA. In section 5, we analyze the anti-trafficking chains that have developed in the construction sector, and the structural conditions and dynamics within which anti-trafficking initiatives in UK construction supply chains operate. Specifically, we map the way in which the anti-trafficking industry follows “supply chain logic” and explain how that impacts and limits its effectiveness. Finally, we conclude in section 6 with a discussion of the problems that the institutional positionality and power dynamics of MSA-inspired anti-trafficking efforts create and chart possible strategies to overcome them.
THE EVOLUTION OF THE GLOBAL RESPONSE TO HUMAN TRAFFICKING IN SUPPLY CHAINS
Over the last decade, actors in the human-trafficking policy realm have paid greater attention to the role of businesses in severe forms of labor market exploitation, particularly the role of lead firms in the governance of supply chains (Gutierrez-Huerter, Gold, and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023). The turn toward business led to a convergence of two robust human rights agendas being pursued to transform global markets: international and national attempts to address human trafficking, on the one hand, and private and voluntary CSR initiatives of corporations, on their own or together with other private or public actors, on the other hand.
Human-trafficking Law and Policy
Human trafficking has drawn significant public and academic attention in the past two decades. Since the adoption of the United Nations Palermo Protocol in 2000, and the enactment of the US Trafficking Victims Protection Act (TVPA) that same year, 169 countries around the world have adopted laws to reflect their commitment to end human trafficking (United Nations Office on Drugs and Crime 2020, 61). Footnote 3 In these legal instruments, trafficking was defined for the first time. Today, “human trafficking” refers to a wide range of severe forms of labor exploitation beyond exploitation in the sex industry, of all genders and ages, within the same country or across borders, and resulting not merely from force, fraud, threats, and coercion but also from “abuse of power or of a position of vulnerability“ (Gallagher Reference Gallagher2010).Footnote 4 While the exact interpretation and implementation of this definition in different national legal systems remains contested, there is agreement that a large percentage of human trafficking occurs in domestic and global supply chains (LeBaron Reference LeBaron2020). The global response to human trafficking, following the Palermo Protocol, is known as the “3P’s” approach: prosecution, prevention, and protection. Prosecution emphasizes the criminalization and prosecution of offenders and criminal law enforcement; prevention is mostly translated to strict border controls; and protection is understood as the provision of ex post human rights assistance to identified victims of trafficking (Shamir Reference Shamir2012; Raigrodski Reference Raigrodski2015; Chuang Reference Chuang2017; Simmons, Lloyd, and Stewart Reference Simmons, Lloyd and Stewart2018; Van Dyke Reference Dyke, Craig, Balch, Lewis and Waite2019; Aaronson and Shaffer Reference Aaronson and Shaffer2021).
Significant resources are dedicated to anti-trafficking work globally. A modest estimate is that in the past decade more than US $120 million was spent annually on funding anti-trafficking activities by countries in the Organisation for Economic Co-operation and Development (Dottridge Reference Dottridge2014, 5). Despite the commitment and resources dedicated to the issue, there are no clear signs that human-trafficking numbers have decreased globally (United Nations Office on Drugs and Crime 2020), and recent estimates suggest an increase (International Labour Organization 2022). The International Labour Organization’s (2022) report, Global Estimates of Modern Slavery, found that approximately 49.6 million people were living in modern slavery in 2021. Of the 27.6 million people in forced labor, 17.3 million are exploited in the private sector (International Labour Organization 2022). Yet, in 2021, only 90,354 were identified as victims of trafficking worldwide (US Department of State 2022, 62). Indeed, an understanding is emerging among scholars and policy makers that the traditional tools used to combat human trafficking fall short in contending with the phenomenon (Dottridge Reference Dottridge2014; Nolan Reference Nolan2018; Fudge Reference Fudge, Howard, Quirk and Thibos2021; Mantouvalou Reference Mantouvalou, Howard, Quirk and Thibos2021; International Labour Organization 2022).
Arguably, these shortcomings are due to traditional anti-trafficking tools failing to address structural conditions of contemporary labor markets and supply chains that enable severe forms of labor market exploitation (Skrivankova Reference Skrivankova2010; Niezna Reference Niezna2022; Fudge, Reference Fudgeforthcoming). Rather, global efforts focus on individual victims and individual perpetrators, along with intensified border control and police powers (Shamir Reference Shamir, Halley, Kotiswaran, Rebouché and Shamir2018), and pay insufficient attention to the root causes of human trafficking. Hence, current anti-trafficking efforts assist only a small number of individuals out of the multitudes recognized as victims of trafficking (Chuang Reference Chuang2014). Indeed, there is growing recognition of the need to develop a structural or labor approach to human trafficking that addresses the economic, political, and regulatory structures that enable and sustain human trafficking (Shamir Reference Shamir2012; Costello Reference Costello, Bogg, Costello, Davies and Prassi2015; Mantouvalou Reference Mantouvalou2020; Niezna Reference Niezna2022). Nevertheless, few alternative anti-trafficking tools, such as bilateral labor agreements that include recruitment and labor protections (Livnat and Shamir Reference Livnat and Shamir2022), have been added to the common anti-trafficking policy toolkit. The main addition to this toolkit were CSR self-regulatory frameworks.
The shortcomings associated with traditional anti-trafficking strategies, as well as the call to address the root causes of trafficking, have led to the expansion of anti-trafficking efforts beyond individual traffickers to the role that corporations play in human trafficking in domestic and global supply chains (Raigrodski Reference Raigrodski2016; Banerjee Reference Banerjee2021; LeBaron Reference LeBaron2021; Van Buren III and Schrempf-Stirling Reference Van Buren, Harry and Schrempf-Stirling2022; compare Arora and Stephen Reference Arora and Lillian Stephen2022). Responding to consumer demand and seeking to avoid possible future legal liability, corporations adopted voluntary codes of conduct that include commitments to workers’ rights down their domestic and global supply chains as part of their CSR strategies. CSR thereby emerged as a new anti-trafficking tool, manifested in the proliferation of a wide array of corporate anti-trafficking efforts, including corporate voluntary codes, industrial sector agreements, and local and global multi-stakeholder initiatives.
CSR anti-trafficking strategies attempt to address the claim that a substantial portion of today’s corporate revenues is extracted from severe forms of labor exploitation (Faure Reference Faure2015; International Trade Union Confederation 2016). If exploitation is generated and sustained by the very structural conditions—that is, the governance gaps under which supply chains operate—then it must be tackled by addressing supply chain governance (Bair and Palpacuer Reference Bair and Palpacuer2015; New Reference New2015; Crane et al. Reference Crane, LeBaron, Allain and Behbahani2019). The turn to CSR was further enhanced by the legislation of transparency and human rights due diligence laws. Both types of laws rely on the private sector’s role and involvement in the governance of labor markets and in voluntary commitments to act to eliminate human trafficking from supply chains (Voss et al. Reference Voss, Matthew Davis, Louise Waite, Ras and Jog2019; McGaughey et al. Reference McGaughey, Voss, Cullen and Davis2022). This legislation fed a burgeoning field of policy, research, and activism focusing on anti-trafficking in global and domestic supply chains.
Corporate Social Responsibility
In the early 1990s, under the conditions of a global governance deficit, exploitative working conditions in global supply chains, climate change, and a lack of accountability on the part of multinational corporations (MNCs), a vigorous campaign was launched against MNCs, seeking to expand their responsibility for the impact of their global business activities. MNCs responded by adopting an array of voluntary CSR codes and policies (Locke Reference Locke2013; Gordon Reference Gordon2017; Bartley Reference Bartley2018). Over the years, CSR has developed into a dynamic industry involving a range of private, public, and civil society actors. When anti-trafficking efforts began engaging with supply chain governance a decade ago, they first embraced voluntary and CSR market-based regulatory frameworks, in which human rights violations, including trafficking, were framed as reputational risks. The focus on supply chains and growing public awareness of the issue of trafficking have led hundreds of corporations to adopt anti-trafficking codes and have given rise to a booming industry of professionals and non-profit and for-profit organizations offering corporations anti trafficking-related services (Monciardini, Bernaz, and Andhov Reference Monciardini, Bernaz and Andhov2021). Additionally, numerous conferences, awards, reports, and academic literature on the subject have proliferated (McGrath and Watson Reference McGrath and Watson2018).
While CSR may, in principle, seek to address the market structures that enable exploitation, some of its key characteristics make it better geared toward preserving, rather than transforming, current exploitative mechanisms for the recruitment, hiring, and employment of workers (Koenig-Archibugi Reference Koenig-Archibugi2017; Kenway Reference Kenway2021). In particular, the reliance on “beyond compliance” schemes—that is, the goodwill of corporations to insist on workers’ rights protections—seems less promising. The notion that corporations are well positioned to regulate their own profit-making conduct is problematic for various reasons. First, traditionally, any improvement in workers’ rights and their protection has occurred only following long and fierce struggles led by workers’ organizations and unions (Ibsen and Tapia Reference Ibsen and Tapia2017). Second, corporations tend to avoid taking unilateral active measures to protect and improve workers’ rights and working conditions because these increase labor costs and prices throughout the supply chain. Third, even corporations that are willing to act virtuously face difficulties in receiving reliable information from suppliers in the lower tiers of their supply chains on working conditions and the measures required to improve them and, even more so, in getting input from workers (Locke Reference Locke2013; Bird, Short and Toffel Reference Bird, Short and Toffel2019). Indeed, ample research in the field demonstrates that, despite extensive CSR activity, overall private anti-trafficking initiatives in global supply chains have not yet succeeded in increasing compliance with labor rights, either because they are only partial and superficial or because compliance costs get pushed down supply chains, resulting in increased levels of labor trafficking down the chain (Allain et al. Reference Allain, Crane, LeBaron and Behbahani2013; Anner, Bair, and Blasi Reference Anner, Bair and Blasi2013; New Reference New2015; Phillips Reference Phillips, Waite, Craig, Lewis and Skrivankova2015; MSI Integrity Reference Integrity2020). All of this raises significant questions regarding the potential of anti-trafficking CSR to bring about transformation.
Modern Slavery Transparency Legislation: A Game Changer?
The growing critique of the potential to address human trafficking via CSR has led actors to push governments to act, to go beyond corporate voluntarism, and to enhance the state’s role through legislation in the field (Fudge Reference Fudge2018, Reference Fudge2022; LeBaron and Rühmkorf Reference LeBaron and Rühmkorf2019). Two main legislative strategies have emerged in this field: transparency legislation and due diligence legislation.Footnote 5 This article focuses on the former. Transparency legislation requires firms with a certain annual turnover to publicly disclose their measures to eradicate human trafficking in their supply chains. Leading pieces of such legislation are California’s 2012 Transparency in Supply Chain Act, Australia’s Modern Slavery Act 2018, the United Kingdom’s MSA, and the recently enacted Canadian Fighting against Forced Labour and Child Labour in Supply Chains Act, scheduled to enter into force in January 2024.Footnote 6
Section 54 of the UK MSA requires commercial organizations with a threshold turnover that conduct business in the United Kingdom to publish an annual statement on slavery and human trafficking, signed by a director and approved by the organization’s board of directors. The MSA does not include third party oversight. The only enforcement mechanism that it provides for is an application for an injunction by the secretary of state to compel disclosure by an organization. Although the MSA does not mandate specific actions that corporations are required to take to eradicate labor trafficking, statements should detail the steps that the corporations have taken to ensure the absence of human trafficking in their supply chains or state that no such steps have been taken. Section 54 includes six recommended areas of reporting: the organization’s structure, business, and supply chains; its policies related to slavery and human trafficking; its related due diligence processes; parts of its business and supply chain that are at risk for human trafficking and steps taken to address this risk; its effectiveness in this field as measured by appropriate performance indicators; and the training on these issues available to its staff.Footnote 7
An independent review of the MSA included recommendations that these six areas of reporting be made mandatory, but, so far, this recommendation has not been adopted (Field, Miller, and Butler-Sloss Reference Field, Miller and Elizabeth Butler-Sloss2019). With no reference to state-monitoring mechanisms, the provisions of the MSA reflect the explicit intention of the UK government to shift the responsibility of monitoring compliance with the Act to consumers, investors, and NGOs (UK Home Office 2015; Carrington, Chatzidakis, and Shaw Reference Carrington, Chatzidakis and Shaw2020; Hsin et al. Reference Hsin, New, Pietropaoli and Smit2021). Footnote 8 In this respect, the MSA serves as a prime example of the global trend in transparency legislation—namely, indirect regulation that, much like the CSR standards, is based on the construction of labor trafficking as a reputational risk and relies on market forces and public pressures as monitoring and enforcement mechanisms.
Since the MSA came into force, it has been celebrated by some as a “game changer” (Lake et al. Reference Lake, Jamie MacAlister, Gitsham and Page2016; Walk Free Foundation 2017). Indeed, it has led to numerous “beyond compliance” corporate codes of conduct and broader initiatives carried out by industry groups, NGOs, unions, government agencies, international organizations, or collaborative efforts (Balch Reference Balch, Craig, Balch, Lewis and Waite2019; McGrath and Mieres Reference McGrath and Mieres2022). In tandem, the emphasis on reporting has created a fast-growing industry of legal services and professional guidance on compliance with the MSA. Nevertheless, consistently low compliance rates among eligible organizations and the poor quality of most corporate MSA statements have been noted (Field, Miller, and Butler-Sloss Reference Field, Miller and Elizabeth Butler-Sloss2019; Sarfaty Reference Sarfaty2020; Carrier Reference Carrier2021). The resemblance of these findings to analyses of transparency legislation elsewhere (Chilton and Sarfaty Reference Chilton and Sarfaty2017; Nolan Reference Nolan2018) serves as an indication of the limited effectiveness of this regulatory model in terms of corporate response and in reducing instances of trafficking (Re:Structure Lab 2021). Hence, while transparency legislation appears to have the potential to curb harmful corporate practices by attempting to provide some harder edges to the soft regulatory characteristics of CSR, critics argue that its effectiveness is limited due to its reliance on market-based forms of supply chain governance and a lack of enforcement mechanisms (Sarfaty Reference Sarfaty2015, Reference Sarfaty2020; Mayer and Phillips Reference Mayer and Phillips2017; Nolan Reference Nolan2018; Phillips, LeBaron and Wallin Reference Phillips, LeBaron and Wallin2018; Voss et al. Reference Voss, Matthew Davis, Louise Waite, Ras and Jog2019). This criticism was reinforced by the independent review of the MSA, which stated that, while the “government was clear that it would be for consumers, investors and Non-Governmental Organisations (NGOs) to monitor compliance and apply pressure on businesses … it is time for the Government to take tougher action to ensure companies are taking seriously their responsibilities to eradicate modern slavery from their supply chains” (Field, Miller and Butler-Sloss Reference Field, Miller and Elizabeth Butler-Sloss2019, 39).
In sum, whereas transparency legislation is rightly based on the understanding that the root causes of labor trafficking lie in corporate actions and the structure and operation of supply chains, this approach does not effectively address these root causes. Reliance on market-based monitoring and enforcement mechanisms raises doubts as to whether the regulatory powers granted by transparency legislation suffice to change the “rules of the game” (Harris and Nolan Reference Harris and Nolan2022). While critical transparency legislation literature has revealed the shortcomings of this legislative approach to address both state and market structures of labor exploitation (see, for example, Bright Reference Bright, Delautre, Manrique and Fenwick2021; Hodkinson et al. Reference Hodkinson, Lewis, Waite and Dwyer2021; Kampourakis Reference Kampourakis2021; Crane et al. Reference Crane, Genevieve LeBaron, Behbahani and Allain2022; Fudge Reference Fudge2022; Eller, Reference Fudgeforthcoming), relatively less research has been conducted on the implementation and operation on the ground of transparency legislation and the challenges of synthesizing it into managerial practice (Sarfaty Reference Sarfaty2020; Monciardini, Bernaz, and Andhov Reference Monciardini, Bernaz and Andhov2021; Islam and Van Staden Reference Islam and Van Staden2022; Gutierrez-Huerter, Gold, and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023).
Within the latter line of research, some studies examine business models and levels of compliance with legal reporting requirements (see, for example, Birkey et al. Reference Birkey, Guidry, Azizul Islam and Patten2018; Stevenson and Cole Reference Stevenson and Cole2018; Voss et al. Reference Voss, Matthew Davis, Louise Waite, Ras and Jog2019; Flynn and Walker Reference Flynn and Walker2021; Meehan and Pinnington Reference Meehan and Pinnington2021; Suprun et al. Reference Suprun, Ranoufa AlMeshari, Anthony Stewart and Duran2022). Others contribute to understanding the structural weaknesses of transparency legislation by exploring corporate and civil society actors’ responses and their impact on legislation processes and their results (LeBaron and Rühmkorf Reference LeBaron and Rühmkorf2019; Wray-Bliss and Michelson Reference Wray-Bliss and Michelson2021; Islam and Van Staden Reference Islam and Van Staden2022; Robb and Michailova Reference Robb and Michailova2022). Still, a smaller stream of studies offers analyses of actors’ interpretations, framings, and translations of legal requirements and the ways in which they impact the anti-trafficking field of action (Sarfaty Reference Sarfaty2020; Monciardini, Bernaz, and Andhov Reference Monciardini, Bernaz and Andhov2021; Gutierrez-Huerter, Gold, and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023). This article joins the latter scholarship and shares with it the understanding that actors’ discursive practices and interrelations significantly influence the trajectory of the anti-trafficking policies and their impact. Specifically, we aim to unpack power relations and dynamics embedded in the process of implementing transparency legislation, thereby accounting for how the legislation is shaped “in action.”
RESEARCHING POWER DYNAMICS IN IMPLEMENTATION OF TRANSPARENCY LEGISLATION: A METHODOLOGICAL APPROACH
To explore the structural dynamics that shape the implementation and operation on the ground of transparency legislation in supply chains, we focused on the relations created between anti-trafficking initiatives and lead firms in the UK construction sector following the enactment of the MSA. In our examination of the structural dynamics influencing the implementation and operation of transparency legislation in supply chains, we centered our focus on the relationships formed between anti-trafficking initiatives and lead firms in the UK construction sector after the enactment of the MSA. This examination is grounded in neo-institutionalist socio-legal scholarship, which argues that legal meanings and modes of compliance evolved and are constructed within the regulated social and organizational arenas, gradually becoming endogenous to the laws (Edelman, Uggen, and Erlanger Reference Edelman, Uggen and Erlanger1999; Edelman Reference Edelman2016). Three key factors underscore the relevance of this theorization to the study of the MSA implementation. First, it suggests that laws are subject to processes of endogeneity especially during their implementation and when they are politically contested, vaguely formulated, and offer unclear compliance mechanisms, all of which are typical of transparency legislation (Landau Reference Landau2023). Second, it sheds light on the substantial impact that interactions between legal authorities and business organizations and professionals have on shaping the meanings of compliance. By attempting to align laws to corporate and managerial norms and interests, business organizations and professionals contribute to the managerialization of laws (Gilad Reference Gilad2014). Third, it transcends the conventional dichotomy between compliance and noncompliance, suggesting that, when compliance standards are ill defined, business organizations tend to adopt superficial or symbolic patterns of compliance rather than substantive ones, which ultimately may impact litigation (Landau Reference Landau2023).
In line with the theory of legal endogeneity, we approach the UK construction sector as a specific social and organizational arena that the MSA aimed to regulate. Our research brings to light that the corporate response to the MSA reflects the latter stages of legal endogeneity, including the diffusion of symbolic anti-trafficking structures, the utilization of modern slavery statements as symbolic structures, and the managerialization of the law through the dynamics of anti-trafficking chains (Edelman Reference Edelman2016, 22, 27–41; Monciardini, Bernaz, and Andhov Reference Monciardini, Bernaz and Andhov2021). By identifying the role of anti-trafficking initiatives as symbolic structures within supply chains, exploring their operational methods, and analyzing their relationships with lead firms as well as the managerialization of anti-trafficking, we aim to contribute to the conceptual analysis of the inadequacies of current forms of transparency legislation in addressing severe labor market exploitation.
To this end, we have drawn on data from exploratory research, which was part of a larger research project on labor governance in supply chains, that took place from October 2018 to October 2019. We used a multiple-method qualitative design, consisting of content analysis of modern slavery statements published by ninety-three construction companies between 2016 and 2019, nine semi-structured interviews with key actors in the United Kingdom’s anti-trafficking field, and in the construction sector, in particular, and participant observation in a modern slavery training session. This design allowed us to cover and juxtapose different perspectives of the implementation of the MSA in the UK construction sector within the limits of the time frame and number of participants. Concretely, the analysis of modern slavery statements published by construction companies was used to explore compliance behavior and identify the types of anti-trafficking activities companies have taken. The interviews we conducted with key actors in the field from government agencies, businesses, professional bodies, and anti-trafficking initiatives have shed light on the intricate dynamics between the anti-trafficking chain and anti-trafficking institutional actors and lead firms. Lastly, because the analysis of the statements has shown that most corporations have made modern slavery training available for their employees and first-tier subcontractors, we conducted a participant observation in a training workshop hosted by a major construction company that was directed at mid-management and first-tier labor market intermediaries (LMIs).
As noted earlier, the UK MSA has elicited only low levels of compliance with the reporting requirements that it introduced in section 54 (Independent Anti-Slavery Commissioner 2022). According to reports, 40 percent of the companies in the United Kingdom that are required by the Act to publish transparency statements do not comply (Carrier Reference Carrier2021). In order to get a fuller picture of compliance in the construction sector, we used purposive sampling for the qualitative content analysis of the modern slavery statements. We analyzed statements published by the signatories of the Construction Protocol, Footnote 9 a joint agreement initiated by the Gangmasters and Labor Abuse Authority (GLAA) and leading construction firms that was in operation between 2017 and 2022.Footnote 10 Funded by the UK Home Office, the GLAA—a government body with the aim of investigating worker exploitation and other illegal labor market activities—aimed through the Construction Protocol to create private-public and intersectoral partnerships for standard setting and a knowledge dissemination forum to address severe forms of labor exploitation in the UK construction sector. When we conducted the research, the Construction Protocol was at its peak, and joining it was a meaningful symbol of corporate commitment to address human trafficking. At the time of analysis, there were 147 signatories altogether, of which 129 signatories were construction companies and LMIs, and ninety-three published statements. The analysis of all the accessible annual statements published by these ninety-three construction companies between 2016 and 2019 allowed us to explore their stated efforts to eradicate severe forms of labor exploitation from their supply chains and to trace patterns and trends of compliance with the requirements of the MSA.
The selection of key actors who were actively involved in anti-trafficking efforts in the UK construction sector for interviews was based on desk research and an ongoing consultation with informants. Each interviewee either had expertise in addressing modern slavery in the UK construction sector or had a formal role within one of the following: a construction company, an LMI, a not-for-profit organization, a research platform, an industry association, or a regulatory agency. In all, we conducted nine semi-structured interviews in which twelve interviewees took part—in some interviews, there was more than one interviewee, and some interviewees we met several times (see the list of interviewees in Table 1 at the end of this article). As noted above, the analysis of companies’ modern slavery statements and the interviews were supplemented with observation of an anti-trafficking in construction one-day training session.
List of interviewees
Due to the limitations of this qualitative research design, particularly, its singular focus on one sector, it is important to exercise caution when attempting to generalize the insights drawn from this study to broader contexts. Nevertheless, the utilization of complementary qualitative research methods and juxtaposing data from several sources allowed us to identify common anti-trafficking practices and processes, explore the organizational dynamics generated by the UK MSA, and delineate the trajectory that the MSA has taken within the social arena of the construction sector. It is worth noting that the trajectory we identify is dynamic. However, we believe our findings contribute to a more nuanced understanding of the MSA’s potential and risks by tracing the creation of symbolic legal structures and of formal governance frameworks in which the requirements of the MSA were confronted, negotiated, interpreted, and translated to organizational governance.
CONSTRUCTION SUPPLY CHAINS IN THE UK
We use the UK construction sector to illustrate the power dynamics created between anti-trafficking actors and lead firms in the implementation and operation of transparency legislation for several reasons. First, construction is considered to be one of the sectors most vulnerable to labor exploitation worldwide (International Labour Organization 2018; Russell Jaquetta, and Roland Reference Russell, Jaquetta and Roland2018; Trautrims et al. Reference Trautrims, Stefan Gold, Emberson and Carter2020; Gutierrez-Huerter, Gold, and Trautrims Reference Gutierrez-Huerter, Gold and Trautrims2023). In the United Kingdom, reports show that, in 2017, approximately one in eight of the nearly thirteen hundred UK slavery cases recorded by the anti-slavery hotline involved the construction and building industry, and, in 2021, more than 20 percent of incidents of labor exploitation took place in this industry (Guilbert Reference Guilbert2018; Unseen Modern Slavery and Exploitation Helpline 2023). Second, construction constitutes an important industrial sector due to its contribution to both the UK economy and employment. The sector encompasses the development and construction of domestic and commercial buildings, civil engineering projects, and other specialized activities, such as scaffolding, demolition, plastering, and painting. It employs approximately 2.3 million people, just over 7 percent of national employment, and contributes 6 percent of the total national economic output (Rhodes Reference Rhodes2019; Office for National Statistics 2020). Third, the sector involves the operation of both international product supply chains for materials and complex multi-tiered local labor supply chains. The latter recruit and deliver the workforce, of which 14 percent are non-UK migrant workers (Buckley et al. Reference Buckley, Adam Zendel, Frederiksen and Wells2016). Next, we offer a review of the main characteristics of the construction sector and its supply chains and the sector’s response to the MSA.
Key Elements of Supply Chains in the UK Construction Sector
Supply chains in construction may differ significantly in size and complexity due to the great diversity of construction projects (Crates Reference Crates2018, 5). Indeed, there are 343,000 registered firms in the sector in the United Kingdom, of which the vast majority are small- and medium-sized enterprises as well as a high number of unregistered self-employed contractors. As a result, the sector is characterized by a high level of fragmentation that both stems from, and contributes to, the sector’s extreme market volatility and heavy reliance on subcontracting and flexible work (Green Reference Green2011; Rhodes Reference Rhodes2019). Despite its fragmentation and project diversity, some key actors and processes remain similar in almost every construction project. A construction project often begins when a client embarks on a new endeavor, such as building a new hospital or apartment complex. Usually after a bidding process, the client hires a main contractor, who has overall responsibility for delivering the project on time and managing the costs. Depending on the type of project, the contractor receives several specialist inputs from professional services, including financial institutions, architects, quantity surveyors, structural engineers, and mechanical and electrical engineers (Fellows and Liu Reference Fellows and Liu2012). In the next stage, since contractors do not manufacture or deliver building materials and components themselves (for example assembling raw materials to make doors), they source them from external suppliers, thereby giving rise to the product supply chain. Figure 1 depicts in blue a stylized product supply chain of a construction project with some generic actors (Department for Business, Innovation, and Skills 2013, 27; Crane et al. Reference Crane, LeBaron, Allain and Behbahani2019, 95).
Product and labor supply chains in the UK construction sector.
Note: We recognize that, given the diversity of projects that characterizes this sector, the figures shown in this article are not necessarily “typical” or representative of all construction supply chains. Nevertheless, we use them to illustrate key processes and types of relationships between common actors in UK construction supply chains that will exist, in one form or another, in the vast majority of projects.
The typically short duration of building projects, the late payments, and the narrow profit margins associated with the sector contribute to its high volatility (Ahmed, Pasquire, and Manu Reference Ahmed, Pasquire and Manu2022), which is manifested in the large numbers of companies declaring bankruptcy annually. For example, in 2018, Carillion, which was the United Kingdom’s second-largest construction company, went out of business, putting numerous contracts, payments, and jobs at risk across its supply chains (Kollewe Reference Kollewe2018). Given such financial and business risks, contractors seek to reduce employment costs and maintain a high level of flexibility by subcontracting large portions of the work (Green Reference Green2011; Akintan and Morledge Reference Akintan and Morledge2013; Farmer Reference Farmer2016). Likewise, the reliance on subcontracted labor adds to a labor supply chain, as depicted in purple in Figure 1. The labor supply chain consists of three main types of actors: (1) subcontractors who carry out parts of the building and construction work; (2) LMIs that provide manual workers and employment services to the main contractor and subcontractors as well as to other suppliers in the product supply chain. LMIs include temporary work agencies and recruitment agencies and payroll companies. Their number can extend to several tiers (as illustrated in Figure 1). For example, if a subcontractor asks LMI 1, who can only supply ten workers, for twenty workers, LMI 1 may turn to LMI 2 to provide the other ten and so on); and (3) self-employed manual workers who are directly contracted by either the main contractor or other subcontractors and who constitute 37 percent of the construction workforce (Rhodes Reference Rhodes2019).
The large share of self-employment in the construction sector is likely the outcome of the Construction Industry Scheme (CIS), a governmental taxation policy unique to the sector that makes it significantly cheaper to contract for workers with a self-employed provider than to employ them directly (Seely Reference Seely2019). Some research suggests that, as a result of the CIS, self-employment in the sector is in fact a misclassification of what should be recognized as employment, resulting in myriad violations of workers’ rights and increasing worker vulnerability (Behling and Harvey Reference Behling and Harvey2015; Davies Reference Davies2022). The substandard working conditions in the sector have been further exacerbated by the proliferation of intermediary umbrella companies, used by recruitment agencies to pay temporary workers. Referred to by some as a “con trick” (Elliott Reference Elliot2014), umbrella companies are an example of how the policy framework, perhaps unintentionally, has encouraged further labor abuse and exploitation (Farmer Reference Farmer2016). To further push down labor costs, LMIs often employ migrant workers (mostly European), who make up 14 percent of the workforce in the sector and a large percentage of the workforce that engages in construction (Construction Industry Training Board 2019). Figure 1 presents the generic product and labor supply chains.
In sum, the fragmentation and complexity that characterize UK construction supply chains and the sector’s high volatility result in heavy reliance on subcontracted, flexible, and migrant labor (Farmer Reference Farmer2016; Green Reference Green2019). These structures and dynamics lead to workers’ vulnerability to severe forms of routinized labor exploitation in the sector (Crates Reference Crates2018; Focus on Labour Exploitation 2018).
Anti-Trafficking Chains in the UK Construction Sector
The UK MSA has played a pivotal role in driving the surge of anti-trafficking efforts in supply chains in recent years, including in the construction sector. As a sustainability director at a major construction company explained,
[a]ctually you can have a conversation around this now in a way that you couldn’t do before the Act came into force. You’ve got those companies that would deny that there was a problem, it’s a much more mature language around business and human rights, or modern slavery. … I think we’re verging more towards stopping only talking about modern slavery or talking about human trafficking, you know we’re starting to get to the nuts and bolts of it, so I think it’s incredibly helpful even in that context alone. For me it definitely has been a game changer. (Sustainability director at a construction company [SDCC], personal communication, 2019)
As this quote, and additional information provided by others in the construction sector, suggest, anti-trafficking efforts in the UK construction sector have been fueled to a large extent by the MSA. To be sure, the consistent finding that construction is among the sectors most prone to labor trafficking did prompt anti-trafficking efforts prior to the enactment of the Act. For example, seeking to take on a leading role as a key anti-trafficking actor in the sector, the Chartered Institute of Building (CIOB) launched, already in 2014, a campaign “to tackle bonded labour and slavery in construction.” Footnote 11 Still, all participants referred to the proliferation of anti-trafficking activities in the sector following the MSA. However, as research participants intimated and as our statement review revealed, this activity included putting in place symbolic legal and governance structures that established yet another supply chain layer, this time an anti-trafficking supply chain, that did not create deep change in corporate practices. The anti-trafficking supply chain we identify is depicted in green in Figure 2.
Anti-trafficking, product, and supply chains in the UK construction sector.
The anti-trafficking supply chain consists of anti-trafficking initiatives, either by a single not-for-profit organization or by multiple stakeholders. Such initiatives may originate from professional and industrial associations, state bodies, and civil society organizations; however, most often they consist of alliances with construction companies and cross-industry collaborations. This category includes anti-trafficking service providers such as Stronger Together, Supply Chain Sustainability School, and Hope for Justice.Footnote 12 In addition, human-trafficking professional services, such as accountancy firms, offer companies a range of services to comply with MSA requirements and write transparency statements. Funders and supporters of anti-trafficking initiatives are not only corporate actors but also governmental bodies, industry associations, and professional organizations with vested interests in addressing labor exploitation in the sector. The CIOB, the GLAA’s Construction Protocol, and the Building Research Establishment are prime examples of such actors. In the next section, we elaborate on the operation, logic, and implications of anti-trafficking chains in the UK construction sector.
ANTI-TRAFFICKING DYNAMICS IN THE UK CONSTRUCTION SECTOR
According to our interviews and statement review, the uptake of the MSA in the construction sector was originally rather slow relative to other sectors (Crates Reference Crates2018). Interviewees suggested that this may be changing and that there is an increased awareness of modern slavery issues in the sector. As one of the labor providers we interviewed stated, “[a] few years ago the question was, do you have a modern slavery statement? Now the question is, what are you doing to prevent modern slavery? And in one thousand words, so it’s not just a three-line answer, you’ve got to give a robust answer to those questions, so there’s definitely more detailed questions being asked about how that’s being managed” (Director at LMI 1 [DLM 1], personal communication 2019).
Notwithstanding the positivity associated with the above extract, our analysis of statements published by signatories to the Construction Protocol shows that 28 percent fail to comply with the legal requirements of the Act and that, on average, 45 percent provide no or minimal information regarding the six areas of reporting recommended by the UK Home Office. For example, while 62 percent of the companies did refer in their statements to the six policy areas, 25 percent of them did not provide any information on the relevance of their policies to modern slavery or on actual steps taken to tackle labor exploitation in their supply chains, and 69 percent did not have a code of conduct or standards in place for suppliers and business partners. Poor reporting on policies typically included general statements such as: “We are committed to implementing and enforcing effective systems and controls to eliminate, as far as possible, the risk of modern slavery and human trafficking taking place anywhere in our business or supply chains”;Footnote 13 “The Crown Estate has a zero tolerance policy on slavery and human trafficking within its business and supply chains”;Footnote 14 and “Our anti-slavery policy reflects our commitment to acting ethically and with integrity in all our business relationships and to implementing and enforcing effective systems and controls to ensure slavery and human trafficking is not taking place anywhere in our supply chains.”Footnote 15 In reference to such statements, the instructor of a modern slavery training workshop, run by an anti-trafficking service provider, said that, unlike the mature and proactive approach of the retail sector, statements in the construction sector “are written as a compliance exercise.”
Our findings reveal the way in which organizations devise forms of compliance that seemingly address both the legal requirements and the business practices through “symbolically demonstrat[ing] attention to law while maintaining sufficient flexibility to preserve managerial prerogatives and practices that are seen as advancing business goals” (Edelman Reference Edelman2016, 31). We identify this diffusion of symbolic forms of compliance as a strategy that replicates the supply chain logic within the corporate response to the MSA. Due to their lack of expertise in the field of anti-trafficking, corporations seek assistance from various initiatives and organizations to ensure compliance with the MSA. However, since the MSA imposes minimal and relatively technical requirements on corporations, the assistance they request from anti-trafficking initiatives and professional organizations are similarly limited. Relying on corporate funding, these initiatives and organizations tend to prioritize corporate interest and are therefore institutionally positioned as service providers within the supply chain. Consequently, their ability to act as a transformative force in corporate practices is limited or nonexistent. In such conditions, these initiatives often lack the necessary power resources and influence to bring about change in supply chain labor governance. In the following sections, we will first address the links between the characteristics of the construction sector and its response to the MSA. We will then turn to discuss the role and position of anti-trafficking efforts within the sector and the legal endogeneity processes that result.
What Shapes the UK Construction Sector’s Response to the MSA?
The MSA effectively heightened awareness within the construction sector about the significant role that lead firms can play in addressing human trafficking. However, it had limited success in compelling construction companies to fully internalize their responsibilities as outlined in the Act. Instead, construction companies have commonly taken minimal steps to adopt anti-trafficking measures, failing to progress beyond symbolic compliance and governance structures in relation to first tier and second tier suppliers. Given the abundance of anti-trafficking initiatives and activities within the sector, the compliance patterns that it adopted may appear perplexing. In this section, we explain these patterns, based on our findings, by identifying five factors that have influenced the sector’s response. Each of these factors is linked to the distinctive business environment and behavior that characterizes the UK construction sector and the soft governance and compliance mechanisms of the MSA. Drawing from the understanding that the process of legal endogeneity involves interactions between compliance mechanisms and corporate behavior (Gilad Reference Gilad2014), we suggest that the sector’s response has been influenced by the Act’s relatively low regulatory risk and its reliance on market-based governance mechanisms, on the one hand, and the competitive nature of the sector and its resistance to consumer pressures, on the other.
First, the complex and fragmented nature of the construction sector’s supply chain, resulting from the reliance on outsourcing activities to multiple subcontractors, emerges as a major factor affecting its response to the MSA. The sector is characterized by numerous small businesses, high self-employment rates, multi-tier chains, and short-term contracts. In these conditions, the main contractors often have little control over their supply chains and limited knowledge of suppliers’ activities. This is particularly the case in relation to labor providers, which themselves may be larger than the main contractor. As an executive director at a construction company (EDCC) explained,
[t]he construction supply chain is very transient, very dynamic. So I don’t even know if contractors have a full grasp of their entire supply chain. … I think it’s understood now, in the broader sense, with the big t[ier]-ones, even t[ier]-twos, and all of our big clients. Move down to some of the tier four, tier five, development is ongoing. This would not even be really a topic, there’d be the policies on the website, maybe a very broad-brush statement, and that’s it. (EDCC, personal communication, 2019)
This structural intricacy suggests that the composition of the supply chain is a key element in pursuing effective implementation of the MSA and may necessitate tailored regulatory requirements and standards and specific regulatory guidance suited to different types of supply chains.
Second, as construction projects are often large and costly, their supply chains commonly involve financial service providers, such as banks and insurance companies. Such strong financial institutions have the capacity to exert pressure on construction companies to implement more substantive measures to combat human trafficking throughout their supply chains. However, our findings indicate that banks, insurance companies, as well as large clients, often do not treat the construction projects they are involved in as part of their own supply chain. In light of the growing recognition of the financial industry’s significant role in combatting modern slavery (Kovick and Davis Reference Kovick and Davis2019), their reluctance to enhance anti-trafficking efforts within the construction sector is detrimental to the Act’s overall impact and to the patterns of the sector’s compliance with the Act.
Third, the construction sector’s comparative lack of responsiveness to consumer demands and pressures, unlike sectors like retail and consumer goods, also contributes to its tendency for symbolic compliance rather than substantive compliance with the Act. Unlike the retail and consumer good sectors, the construction sector has not experienced major trafficking litigation or news coverage of modern slavery that would typically elicit a corporate response. Consequently, the reputational risk associated with the exposure of modern slavery has not exerted significant influence on the construction sector. This observation is supported by research that suggests that media coverage of modern slavery issues plays a crucial role in prompting firms to address modern slavery risks in their supply chains (Geng, Lam, and Stevenson Reference Geng, Lam and Stevenson2022). Furthermore, due to the substantial expenses involved in construction projects, both individual and corporate clients are highly cost sensitive. In addition, many clients only engage in construction projects once they prioritize factors other than labor exploitation criteria in their decision-making process. These consumption patterns in the construction sector further diminish the MSA’s impact within the sector. The sector’s relative immunity to customer pressures suggests that addressing modern slavery in construction, as well as in sectors with similar characteristics, may require a different approach than market-based compliance mechanisms as adopted by the MSA.
Fourth, UK construction companies and subcontractors operate within an intensely competitive and unpredictable market, resulting in narrow profit margins (Hartwell Reference Hartwell, Gorse and Christopher2018). As a result, construction companies often refrain from publicizing the measures they take to address modern slavery and prefer not to disclose specific incidents in their modern slavery statements in order to avoid association with the issue. A member of a modern slavery research center explained that construction companies fear that reporting something in the United Kingdom could result in legal repercussions elsewhere (member of a Modern Slavery Research Center [MRC], personal communication, 2019). In our analysis of statements from signatories to the Construction Protocol, we also found that most did not provide specific information about the risk assessments they conducted, with only five reporting incidents of modern slavery they had addressed. Observers in the field argue that a change in the sector’s response to the MSA will only occur if companies voluntarily disclose specific risks and incidents related to modern slavery within their supply chains. This observation suggests that the noncompulsory and “soft” elements of the legislation may in fact hinder anti-trafficking efforts. Furthermore, even when companies do act, they may abstain from disclosing their actions out of fear of the uncertainty associated with potential future hardening of the law.
Fifth, while the construction industry has consistently been identified as a hotbed for human trafficking, there remains uncertainty within the sector regarding the actual extent of modern slavery. Directors from construction companies have suggested that this uncertainty may stem from the hidden nature of severe exploitation in the lower tiers of the supply chain, making it less visible to lead firms. When they are aware of such exploitation, it is perceived to be isolated incidents involving specific problematic actors rather than a widespread sectoral issue for which they bear responsibility. These doubts contribute to the sector’s relatively slow response to the Act. Anti-trafficking scholars suggest that gendered elements may also be relevant in this context. They explain that since modern slavery is often associated with female vulnerability, it is less commonly linked to the male-dominated construction sector (O’Connell Davidson Reference O’Connell Davidson2006; Shankley Reference Shankley2021). Other scholars suggest that the prevailing belief that modern slavery primarily occurs in the global South obscures the exploitation that is happening within domestic supply chains in the United Kingdom (Crane et al. Reference Crane, LeBaron, Allain and Behbahani2019).
In this section, we have pinpointed five key factors that have molded the response of the UK construction sector to the MSA. These factors reflect the interplay between the sector’s distinct business environment and behavior and the Act’s soft and market-based governance mechanisms. In line with the understanding that institutionalized corporate norms and practices significantly influence the meanings of laws (Landau Reference Landau2023), we suggest that the insights gained from studying the compliance patterns of the construction sector with the MSA can offer valuable perspective for assessing the impact of the MSA on other sectors as well as the impact of similar legislation adopted outside the United Kingdom. Against this background, the next section describes the particular modes of operation of anti-trafficking efforts in construction supply chains in the United Kingdom.
The Role and Position of Anti-trafficking Initiatives in Construction Supply Chains
In 2017, two years after the enactment of the MSA, the GLAA launched the Construction Protocol as a joint sectorial agreement aimed at eradicating slavery by sharing intelligence, protecting workers, and raising awareness to human trafficking in construction supply chains. Between 2017 and 2022, many companies and organizations that operate in the sector signed the protocol. In November 2022 the GLAA withdrew from its sectoral protocols, including the Construction Protocol, stating that “GLAA protocols make way for business owned prevention activity.”Footnote 16 At the time of our research, there were 147 signatories to the Construction Protocol: sixty-one construction and engineering companies, forty-one service and materials suppliers, twenty-one labor providers, seven public agencies and bodies, six industry associations and accreditation bodies, six anti-trafficking organizations, and five companies from other sectors.
Interviewees from a construction company and a government agency noted that companies became signatories to the Construction Protocol due to their typically cautious approach toward regulators and regulatory bodies such as the GLAA. While they acknowledged that the latter does not license businesses that provide workers to the construction sector, they believed that the fact that it does have the authority to investigate labor exploitation across all sectors impacted the strong motivation of construction companies to become signatories. Indeed, building on the protocol’s success in attracting signatories, these interviewees expressed hope that it would have an impact on the sector’s response to the Act. For example, a government agency official (GAO) stated: “One thing that has changed through the Protocol is there has been a slight shift in language. So it used to be, well if we find exploitation, what could we do and what should we do? Whereas now they talk about when we find it. So there’s that realization and acceptance that actually, it’s going to be in your supply chains” (GAO, personal communication, 2019).
However, interviewees from construction companies also raised doubts regarding the impact of the Construction Protocol as they thought that “just providing intelligence is limited” (EDCC, personal communication, 2019); that for it to be effective, preventive measures should be discussed and designed; and that to lead a change, the protocol needs to be enforced. One director explained their disappointment: “My expectations [were] that we will share more, we will learn more and we’ll actually start to feel a sense of collective pride that we are identifying, [that] things are being caught on our watch, but [it’s] much more … like low-grade comradery. Some people are still kind of creeping out” (SDCC, personal communication, 2019). Despite the symbolic gesture of joining the Construction Protocol, the modern slavery statements of signatories that we reviewed show low levels of compliance and minimal meaningful action taken by companies that should have been leaders in the field (for similar findings, see Trautrims et al. Reference Trautrims, Stefan Gold, Emberson and Carter2020; Monciardini, Bernaz and Andhov Reference Monciardini, Bernaz and Andhov2021). We found that, of the six reporting areas recommended by the UK Home Office, those most reported were due diligence processes (88 percent) and training (74 percent). In line with other studies (New and Hsin Reference New and Hsin2021), our review identified progress in the quality of companies’ annual statements in these two reporting areas—that is, over the years companies provided more detailed information on their use of supplier questionnaires and training programs. Regarding the former, while most companies reported that they assessed potential suppliers for forced labor or modern slavery risks, only a few reported that they engaged directly with workers or trade unions or that they had grievance mechanisms. The least elaborate of the six reporting areas was key performance indicators to measure the effectiveness of the steps being taken (11 percent). An industry researcher suggested that this pattern was a result of the sector’s supply chain characteristics. While human-trafficking risks are expected to be found in the lower tiers, contractors often do not know the suppliers and subcontractors beyond the first or second tier. Interviewees also noted that, beyond the second tier, suppliers and subcontractors are often unaware of human-trafficking issues.
Under these conditions, complying contractors seem to have found training and some due diligence processes more feasible than measures that require better and detailed knowledge of their supply chains (Trautrims et al. Reference Trautrims, Stefan Gold, Emberson and Carter2020). This is clearly evident in the services offered and provided by the numerous anti-trafficking initiatives, organizations, and consultancies. These anti-trafficking service providers offer companies mostly training programs and due diligence audits to help them comply with the Act. The rise of the anti-trafficking services industry around the sector’s reporting patterns created competition between service providers and uncertainty among service purchasers. A government official commented on this booming anti-trafficking industry: “Some businesses … want to be seen to be doing something, so they’ll think, right, I’ll sign up to this, and I’ll get that, and I’ll pay for this, and I’ll pay for that, without knowing actually what is better, what should I be paying for, what do I get for my money … there is just so much out there” (GAO, personal communication, 2019).
Much like the well-documented capture of certification programs (LeBaron Reference LeBaron2020), anti-trafficking initiatives require support and legitimation from professional bodies such as the CIOB to establish their reputation and reliability in the sector. Furthermore, although these are often non-profit organizations, they too require funding to sustain their activities (Hielscher et al. Reference Hielscher, Winkin, Crack and Pies2017). Consequently, anti-trafficking initiatives assume an active role in anti-trafficking alliances and collaborations to enhance their professional reputation and added value. Simultaneously, to fund their anti-trafficking activities, they seek to engage companies through long-term membership or sponsorship models rather than merely providing them with their services. However, according to interviewees in the anti-trafficking service sector, construction companies tend to avoid publicly sponsoring anti-trafficking initiatives due to concerns that such initiatives may criticize their corporate behavior. Consequently, construction companies prefer to purchase anti-trafficking services instead, leading anti-trafficking initiatives to offer their services in a manner that is similar to for-profit consultancy firms. Under this funding model, anti-trafficking service providers are required to turn to companies and offer their services as suppliers that aim to cater to the interests and needs of the corporations. Interviewees from a professional organization observed that anti-trafficking initiatives are “driven by business needs” or “chasing after money.” Corporations in turn seek to develop compliance strategies that do not challenge their corporate practices or business ideals, often preferring symbolic structures of organizational governance. Moreover, the limited funding available to anti-trafficking initiatives places them in competition with other initiatives and anti-trafficking service providers, possibly obstructing the pursuit of real causes (Ghumra Reference Ghumra2018).
DISCUSSION
An anti-trafficking industry has been developed in the UK construction sector following the enactment of the MSA. However, actors in the field observed that the sector currently exhibits a slow and partial uptake of these anti-trafficking initiatives. What, then, explains the significant gap between the vibrant anti-trafficking activity around construction and the actual impact of the Act on the ground? To account for this conundrum, our research focused on the role that the imbalanced power relations between companies and anti-trafficking initiatives plays in the implementation, operation, and compliance of the MSA and the resulting process of legal endogeneity. Since anti-trafficking initiatives often rely financially on funding from the construction sector, in the form of partnerships, membership fees, and joint programs, this gap has led to their focus on activities that meet companies’ minimal requirements for compliance with the Act. Hence, most often, they provide training and tools for companies, focusing mostly on the needs of corporate headquarters, including main contractors and, potentially, first- or second-tier subcontractors, in both product and labor supply chains. Crucially, the key actors driving these initiatives are unable or unwilling to reach lower tiers. Therefore, anti-trafficking initiatives are dependent on perceived influencers in supply chains, including main contractors, professional service suppliers, and component manufacturers. It is these actors who are sensitive to brand recognition and therefore face reputational risks in line with their legal obligations under section 54 of the MSA to publish transparency statements. Due to the imbalanced power relations between anti-trafficking initiatives and construction companies, the former are constructed as competing suppliers of anti-trafficking solutions and services to the latter, giving rise to an anti-trafficking supply chain, in which anti-trafficking initiatives spiral into a “supply chain logic” that limits their impact.
As suppliers, anti-trafficking initiatives are focused on cutting costs and serving their clients’ needs, and this, in turn, limits the programs they offer as well as their overall vision of reform. Even when the vision of anti-trafficking initiatives extends beyond the requirements of the MSA, the value they offer to corporations is merely compliance with the Act, which structures the limited nature of their interventions and services. Consequently, training sessions and generic toolkits that allow corporations to comply with the minimum commitments they have made to train staff and develop processes in their statements are the most common services provided by anti-trafficking initiatives. Companies rarely fund or purchase consultation services regarding enforcement, inspections, or the development of implementation processes with second- and third-tier suppliers. Thus, the tools offered to corporations do not reach the elements that might systematically address root causes, enforcement, and inspection but, rather, focus on information flow and training in relation to first- and second-tier suppliers.
Accordingly, we find that, despite the goodwill and sincere intentions of anti-trafficking initiatives in the field, the MSA—rather than consumer pressures—is the main motivator of action in the construction sector, and, thus, anti-trafficking activities remain at the level of compliance with the MSA and rarely go beyond compliance. In addition, because the Act’s requirements are more about the symbolic commitments that corporations are required to take under the MSA and less about their actions on the ground, anti-trafficking initiatives adapt themselves accordingly in terms of the services and tools they supply to companies. In this regard, a perhaps unintended consequence of the Act that results from processes of legal endogeneity is that it encourages anti-trafficking initiatives to limit their activities to merely addressing the MSA’s minimum requirements as to do otherwise would expose them to unnecessary risks of liability.
To explain the position of anti-trafficking initiatives vis-à-vis that of lead firms in the sector, we added an anti-trafficking supply chain layer on to the existing supply chain descriptions. This mapping reflects the supply chain relations and dynamics that construct anti-trafficking initiatives as suppliers that have limited leverage to inspire sectoral transformation and bring about significant change but, instead, depend on establishing their own legitimacy. Whether the positioning of anti-trafficking initiatives as suppliers is unique to the construction sector or is more broadly characteristic of the response to the Act is a question that requires further study. Yet this dynamic has already been observed in other contexts such as the private enforcement industry and accreditation companies (LeBaron, Lister, and Dauvergne Reference LeBaron, Lister and Dauvergne2017). Following Lauren Edelman’s (Reference Edelman2016) analysis of processes of legal endogeneity, our analysis shows that the corporate interpretation of the soft and ambiguous requirements of the MSA renders the law closer to business values by ensuring that anti-trafficking initiatives do not acquire the capacity to exert pressure on construction companies to tackle labor trafficking. Our findings raise the question of what other pressure points could drive a change in the sector’s response to the MSA. We suggest that, for anti-trafficking initiatives to have the required power resources to enable them to effectively transform corporate practices, governmental policy needs to be less market reliant.
While our research draws a somewhat pessimistic picture, we find that this may be a preliminary stage in the introduction of anti-trafficking initiatives to the sector. This is a process that is still “under construction.” In 2019, the UK Home Office launched a consultation that invited stakeholders to respond to proposed changes regarding the function and content of modern slavery statements, including civil penalties and extension to the public sector. Subsequently, in 2021, the UK government introduced the Modern Slavery (Amendments) Bill to the House of Lords, which is intended to strengthen the provisions of section 54, such as making false information in statements a criminal offense and requiring companies to conduct a wider range of external audits and supply chain verification. Hence, the stronger requirements of an amended Act may lead to an evolution in anti-trafficking initiatives’ position from suppliers to stakeholders.
Despite its flaws, the MSA does have one significant upside: it expands the anti-trafficking toolkit beyond criminalization of individual perpetrators and strict border controls—the main national and international responses to human trafficking—to address structural and economic elements that drive the phenomenon. Corporations are the main market actors that benefit—even if indirectly—from severe labor market exploitation, and the MSA directly asks them to take action to combat it. To make corporations responsible, however, it is increasingly clear that stronger implementation and enforcement mechanisms are required for corporations to take significant action against human trafficking in their supply chains. Effective implementation should engage additional actors that have diverse resources of power. As observed by interviewees, the main contractor is not always the focal point for exerting pressure to facilitate change. Key influencers may lie outside the construction sector, such as large corporate clients who are sensitive to branding and consumer pressures, or financial sector actors, who may be better positioned to assess risks, to receive information about subcontractors, and to apply incentives (or sanctions) to main contractors. Yet this may be a convenient position to hold for sector insiders, seeking to pass on the responsibility for human trafficking in construction supply chains to other actors.
Another key and underutilized supply chain actor are the workers themselves. Various interviewees suggested that labor exploitation tends to happen in the lower tiers of the supply chain, yet lower-tier subcontractors currently remain out of reach of anti-trafficking efforts since they lack incentives and resources to take on any anti-trafficking commitments. This is where the role of workers’ organizations and labor unions appears to be crucial. While labor intermediaries and providers may be more difficult to access from the corporate standpoint, unions and other alternative labor organizations can, in theory, reach the workers who can then, in turn, pressure employers or other key supply chain actors. Even if unionization is a tall order for some exploited workers, research suggests that other worker organizing models, such as worker-driven social responsibility, that make workers active actors in demanding and leading change need to be considered (Asbed and Hitov Reference Asbed and Hitov2017; Reinecke and Donaghey Reference Reinecke and Donaghey2021).
Effective corporate action can occur only when there is detailed and reliable information about the causes of workers’ vulnerability to exploitation, available strategies to address the root causes, and tools to implement these strategies and monitor their implementation. As our case study of the construction sector suggests, models for effective corporate action to address human trafficking will vary by context and need to be sensitive to the specific structure and characteristics of the supply chain. Nevertheless, any response to human trafficking that does not consider these elements will remain incomplete and lead to mere symbolic forms of compliance. Based on our analysis, we believe that, once anti-trafficking chains challenge the contradictory logic of the legal interventions and the organizational corporate goals of profit maximization and limited liability, they will be able to act as an effective labor governance mechanism and to address human trafficking throughout supply chains.
ACKNOWLEDGEMENTS
We would like to thank Debbie Siton for her invaluable help in all stages of bringing this paper to print, and our dedicated team of research assistants Mais Abdallah, Yasmeen Abu-Ras, Hadar Afterman, Lila Atar, Mayar Darawshe, Yael Efraim, Shira Nagar, Mor Panini, Adi Shahar, and Daniel Shavetsov for their contribution to the research. We would also like to thank the participants in the Tel Aviv University Law School Faculty seminar, the Temple University School of Law Faculty seminar, the “Critical Perspectives on ‘Modern Slavery’: Law, Policy and Society” conference at the University of Hull, the conference “On Justice and Labor Rights in the Global Era,” which was held in Zichron Yaakov, and the TraffLab (ERC) research group for their valuable comments on earlier drafts of this paper. This research received the support of the TraffLab research project (www.trafflab.org) that was funded by the European Research Council (ERC) under the European Union’s Horizon 2020 research and innovation programme (grant agreement No 756672), and of the Israel Science Foundation (ISF) (grant No. 1866/200).
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