Chapter 10 Guidance on answering the exam questions

1. How have the Commission and ECtHR defined ‘slavery’, ‘servitude’, and ‘forced or compulsory labour’? Are these concepts sufficient to be the legal basis for dealing with the exploitation of men, women, and children associated with ‘people trafficking’ in the twenty-first century?

• This question explores the definition of these terms and relates them to modern conditions of “modern slavery”. The main point is to consider the conventional definition of slavery in terms of ownership by one person of another is relevant.
• Start by considering the ECtHR’s definition of “slavery” and not that this is in terms that reflect the idea of ownership (e.g. Siliadin v France). This is obviously missing the point of modern exploitation.
• However Article 4 also relates to “servitude” and “forced or compulsory Labour”. These are defined in ways which get much closer to the idea of working for another under onerous conditions, being subject to their will and being exploited.
• Consider the definitions given in Van der Musselle v Belgium, for example. UK courts have made it clear that it is the element of exploitation that distinguishes forced labour (in Reilly v SSWP).
• One way of getting at the point of non-exploitative labour is to consider the types of work that are excluded from being forced or compulsory labour – such as normal prison work or work expressing normal civic obligations. These indicate the need for factors going beyond the simple fact of compulsion that point to abuse and exploitation.
• It would be a reasonable argument to say that the terms of forced or compulsory labour capture the idea of exploitation and abuse and therefore are adequate to the task of dealing with “modern slavery”.
• On the other hand it is also the case that people trafficking has its own specific aspects and is a much larger and complex problem that anything imagined when the Convention was drafted and, though the Convention is a “living instrument”, it is appropriate for there to be specific and focused legislation.

2. Prepare a briefing note for civil servants, police, and social workers on the way in which the Modern Slavery Act 2015 helps to fulfil the UK’s obligations under Article 4 (you are not required to explore all the provisions of the Act).

• This question involves knowledge of the duties imposed on states under Article 4 and how in general terms the Modern Slavery Act may satisfy them.
• In Siliadin v France the ECtHR applied the doctrine of positive duties in the context of Article. The idea of positive duties should be explored. These duties have been further expanded and given the authority of the Grand Chamber in S.M. v Croatia.
• In particular the Court requires states to have adequate judicial processes and remedies, including criminal penalties, to make the prohibitions in Article 4 effective. A state must be able to undertake an effective investigation of alleged trafficking. Furthermore there may be an ‘operational duty’ to protect identifiable individuals who are known to be at risk of trafficking.
• The Modern Slavery Act is a major and complex Act but its provisions include the creation of a range of criminal offences that include those which specifically criminalise the behaviour banned by Article, i.e. slavery, servitude, and forced or compulsory labour. The Act also gives courts a range of powers to make various prevention orders in this context.
• In conclusion it can be said that the Act helps to provide legal enforcement in respect of the prohibitions in Article 4 and in the context of people trafficking. It should also be said that it goes further than anything expressly or by implication required by the “positive duties” inherent in the Act – it creates the office of Independent Anti-Slavery Commissioner and also (importantly) provides for the protection of victims in various ways.