The Modern Slavery Act of 2015, lauded by the UK government as a "landmark" piece of legislation, significantly disconnects the accessibility of effective civil remedies in favour of criminalising human traffickers. Section 8 of the Act, which severely restricts access to compensation and impedes victims' recovery, reflects this problem clearly.
INADEQUATE ACCESS TO COMPENSATION
Virginia Mantouvalou, a professor of human rights and labour law, notes that access to compensation for trafficked victims is crucial as it functions to “empower them economically, support their societal reintegration, minimise their vulnerability to being re-trafficked and provide them with a sense of justice”.
Moreover, the UK has a positive obligation to provide victims of trafficking access to compensation under article 15(4) of the Council of Europe Convention on Action Against Human Trafficking (ECAT).
Despite its significance, the Act does not offer a significant armoury of civil remedies intended especially to compensate victims of trafficking. Poignantly, the considerable restrictions on the court’s power to make slavery and trafficking reparation orders under Section 8 of the Act serve to evidence the latter. Only in cases where the trafficker has been found guilty and a confiscation order has been issued against them, the victims of trafficking are eligible for compensation.
By limiting the circumstances under which the court may award compensation, it becomes virtually irrelevant for the majority of victims outside of this class. To crystalise this issue, 219 prosecutions for modern slavery-related offences resulted in convictions in 2019. In the same year, the National Referral Mechanism received referrals for 10,627 potential victims of modern slavery.
This restriction of access to compensation is ultimately a policy-driven decision that is both: damaging for victim recovery and flawed in its reasoning. The government at the time considered that existing tortious and contractual remedies to be sufficient. For instance, Lord Bates, Lord Bates (HL Deb, vol. 759, col. 1464, 23 February 2015) pointed to the torts of assault, false imprisonment, and harassment as a way for victims of trafficking to pursue restitution. However, given that other legal provisions might address human trafficking and modern slavery, this premise could be used to argue that the Modern Slavery Act is also superfluous, exposing the government's logic as flawed. It also reveals how this Act is primarily for criminal and immigration enforcement, not victim protection and support.
ALTERNATIVES TO RENDER REPARATION ACCESSIBLE
Detaching reparation orders from prosecution and confiscation orders would see more positively identified victims of human trafficking accessing compensation. The Supreme Court in Taiwo v Olaigbe and Onu v Akwiwu took a similar view, recognising that tortious and contractual remedies do not deal with the gravity of victimisation suffered by those trafficked. Baroness Hale, going further, added that this included “the humiliation, fear, and severe suffering” of trafficked victims, while concluding that the current compensatory framework does not address all of the wrongs inflicted against victims.
The inadequate access to compensation under Section 8 denies victims the ability to recover from the harm suffered and robs them of the ability to reintegrate into society successfully. In April 2022, the Anti-Slavery Commissioner’s Annual Report emphasised the importance of victim compensation and noted the growing concerns “that this is happening far too infrequently”. We may very easily come to conclude that the UK is in violation of its international obligations under the Council of Europe Convention on Action Against Human Trafficking (ECAT), given the context of the noted inadequate access to compensation.
THE ACTUAL EFFECT OF SECTION 8
It is clear that Section 8 of the Modern Slavery Act 2015 is too restrictive in its scope and renders access to compensation virtually impossible for the majority of trafficking victims. It has the potential of exacerbating victims’ state of vulnerability and perpetuating their likelihood of further severe exploitation.
Despite calls for a greater judicial scope to “grant some recompense for the ill-treatment meted out” to victims, the government has moved unjustifiably slow in doing so. Unless the UK changes its criminal enforcement-focused strategy to ending modern slavery and gives victim compensation equal emphasis, victims will continue to be failed.
Ahmed is an LLB Law finalist at the University of Exeter and the president of the Students of Colour Association. Challenges related to self-determination and human rights are among Ahmed's research interests.