Words and actions: why you cannot draft the Modern Slavery Statement alone

Thomson Reuters’ video with Anna Triponel is available here.

Overview

This video outlines the scale and context of modern slavery, and the intention of international modern slavery legislation. It also offers advice for in-house lawyers on how you could approach tackling the issue for your organisation.

Video chapters:

  • How modern slavery occurs.
  • The scale of the problem.
  • How vigilant companies are tackling it.
  • The UK government’s strategy.
  • The in-house lawyer’s role.

TRANSCRIPT

Introduction

Hello. And welcome to this video, why you cannot draft the Modern Slavery Statement alone. Guidance for in house lawyers on how to approach the development of the Modern Slavery Statement. My name is Anna Triponel and I’m a business and human rights advisor. I work with companies on creating human rights risk management processes and practice. And of particular note for this video, I work with leading companies, law firms and investors that are seeking to tackle modern slavery meaningfully in their value chain.

As you can imagine I get asked a lot of questions on business and human rights. But there’s one question that I get asked the most frequently and it comes from in-house lawyers. It runs along the following lines: “Help! I’ve just been asked to draft our company’s Modern Slavery Statement. What should I say?” This video will help you see the kinds of things to consider when developing your company’s Modern Slavery Statement.

We will first explore a hypothetical to demonstrate how modern slavery manifests in practice and typical responses to it. We will then delve into defining modern slavery and discussing what leading companies are doing to address it. We will then discuss how the complexity of modern slavery explains the approach taken by the legislators in the UK Modern Slavery Act of 2015. And finally we will conclude with an exploration of the role of the in-house lawyer when it comes to meeting the Modern Slavery Act.

I hope that through this video you will see that: number one, although this is a legal requirement the approach to take to meet the law is neither a legal nor a compliance driven one; and number two, that the burden is not only on you as an in-house lawyer. Rather everyone in the business has a role to play, including those sitting in procurement and those setting the strategy for your business. This video focuses on the UK Modern Slavery Act of 2015, but of course there will be considerations relevant as you’re seeking to comply with the Australian Modern Slavery Act and other related legislation as well. I am no longer a practicing lawyer so this does not constitute legal advice.

How modern slavery occurs

Let’s assume you are the in-house lawyer for a company that buys a number of goods. It could be any sector. Just for now, place yourself in the shoes of one of your suppliers located in the UK. Your supplier is approached by a gentleman who identifies himself as a labour broker. This labour broker says “I am going to get you 20 workers that commit to working for you for the next two years. They’re coming here from Eastern Europe but don’t you worry because I will take care of their transport and accommodation. They’ve agreed to work for you for a discounted rate. So you can pay me £10 a day for their work and I’ll pass this on to them. What do you say?” What might the supplier be thinking? “Hmmm. There’s a squeeze on the high street at the moment. A number of my buyers are asking me to reduce the price of my items. This could be actually a really good way to reduce my overheads. So yes I’m in. When do they start?” Let’s build on this hypothetical a little. Scenario number one: Let’s imagine that before this conversation between the supplier and labour worker took place, you as the buyer’s in-house lawyer inserted a robust provision in your contracts with your suppliers. This provision requests that your suppliers meet your company’s code of conduct. It commits your suppliers to not having modern slavery. And it enables you as the buyer to audit your suppliers and terminate the business relationship if a supplier is found to have it. Do you think this contractual provision would change the supplier’s response to the labour broker? Do you think the supplier would know that the labour broker’s proposal shows clear red flags of modern slavery? Do you think that if the supplier does know that this may be modern slavery the supplier is incentivised to turn down the labour broker? Or is the supplier incentivised to hide it from you as a buyer?

Let’s go to scenario number two: Let’s imagine that you as a buyer have decided to make the most of your contractual provision and you audit some suppliers for modern slavery. Do you think you would decide to audit suppliers based in the UK? What about if they’re not your strategic suppliers? What about if they’re not your high spend suppliers, would you still select them then? Do you think that an auditor would be in a position to identify modern slavery by asking whether modern slavery is present? If workers are interviewed do you think workers would reveal information to a stranger when they are here illegally and fear being sent home, put in prison or retaliation against their family back home?

Let’s consider scenario number three: In addition to the above steps you have put together a half hour training for all of the company’s employees on what human rights and modern slavery mean. Do you think this training would have stopped this instance of modern slavery from occurring in your supply chain? Is it general in nature? Or does it provide sufficient practical information to those who need to know it to stop it from happening in the first place or to pick it up if it does? Example buyers, quality team members on the ground. Through this simple hypothetical, which is based on a real situation, we can start to understand the complexity of modern slavery and how traditional approaches fail to address it.

The scale of the problem

First let’s define it. The International Labour Organisation Forced Labour Convention of 1930 defines forced labour as ‘all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily’. So here you can see that there is a combination of two indicators for forced labour. One: penalty, has the worker been the subject of a threat or menace of penalty? Number two: involuntariness, did the worker provide his or her consent to work freely? And is he or she free to leave?

You may be wondering ‘why is everyone talking about modern slavery at the moment? Why do I have to prepare this statement in the first place?’ We are witnessing today the highest levels of displacement on record. We are living in the times of a refugee crisis that outnumbers the World War Two and the post war years. According to the UN Refugee Agency one person becomes displaced every two seconds. That’s 30 people who will be displaced in the next minute of this video. We have close to 70 million displaced people worldwide. This is compared to 40 to 60 million displaced people after World War Two. People are fleeing armed conflict, violence, insecurity, criminality, persecution and human rights violations. So how does this connect to you and your business? Well there’s now a large supply of vulnerable, exploitable people that can be tapped into for business. 16 million people are estimated to be in a situation of forced labour in the supply chains of companies. And there is a lot of money to be made from these people. The ILO, the International Labour Organisation, has estimated that forced economic exploitation generates US$51bn in illegal profits per year. If you add in commercial sexual exploitation it’s US$150bn per year. Profits on a per slave basis can range from a few thousand dollars to a few hundred thousand dollars a year. Concrete examples of how this can play out include migrant workers paying excessive recruitment fees for their work; labour brokers deceiving workers about the nature of their work; wages being withheld or passports being retained.

So the question is not whether modern slavery is happening in your company’s supply chain, it’s where is it happening? I have yet to come across a large company that has not found practices, akin to modern slavery, when looking properly. Examples in the public domain range from Lithuanian chicken catchers in the UK; to North Korean workers in shipyards in Poland; to Indian workers in the US helping with rebuilding in the wake of Hurricane Katrina. All those examples by the way have resulted in lawsuits that have been hugely damaging to the companies involved.

How vigilant companies are tackling it

Lessons learned from leading companies seeking to tackle modern slavery include recognising the limitations of the traditional approach we just discussed. Leading companies are going beyond policy, contract terms, simple trainings and whistleblower hotlines. They are recognising the broader ecosystem within which they operate. They are identifying the drivers that increase the risks of modern slavery in certain segments of their supply chain. They are prioritising where migrant workers are working in their supply chains, coupled with where legislation is that increases the chances of modern slavery. They are seeking to work with labour brokers to improve their practices. And some are even committing to direct hiring where possible to minimise the risks. Finally, leading companies are seeing modern slavery as one extreme on a spectrum of exploitation. And they are committed to conducting human rights due diligence more broadly within which modern slavery sits.

The UK government’s strategy

As we have seen, modern slavery is happening. And it’s hugely complex. It’s not possible to say for sure that you don’t have it. And it’s not easy to eradicate it if you do. The UK government has recognised this complexity in its Modern Slavery Act which is a piece of legislation focused on disclosure. It is not asking companies to certify that they do not have modern slavery. Rather the UK government has decided for you that Modern Slavery is one of your salient human rights risks. Of particular severity to people and highly likely to be occurring particularly in your extended supply chain. So the UK government is asking you to tell the world you have acknowledged this risk and you are conducting human rights due diligence. Tell us how you are seeking to know where exploitation may be happening in your business, in your value chain. Tell us how you address it when you find it. Tell us how you know that your efforts are working.

The actual legal requirements of the law are minimal. The statement needs to be signed by a Director, approved by the Board and available on the company’s home page. That’s it. At present you can comply without actually doing anything. The premise of the Modern Slavery Act is that the market will drive compliance. That investors will prioritise companies that disclose robust human rights due diligence processes and divest from those who don’t. That consumers won’t want to buy from companies that can’t demonstrate serious action as exposed by civil society reporting. And that people won’t want to work for companies that don’t take their human rights responsibility seriously.

The in-house lawyer’s role

What then is the role of the in-house lawyer in all of this? You could advise your company on compliance with the legal requirements we’ve just discussed. But then, this wouldn’t prepare your business to meet the legal requirements as they evolve over time. And they will evolve over time. A recent independent review of the Modern Slavery Act suggested a number of changes including compelling companies to report certain information. And providing for sanctions and fines. Neither would this approach prepare your business to meet the legal requirements in other countries. Your company may already be caught by similar legislation. The Australian Modern Slavery Act, or the French duty of vigilance law. These laws will only increase over time. A compliance approach doesn’t meet the objective of the law, which enshrines soft law expectations and expects human rights due diligence to be conducted on a company’s value chain. And it doesn’t make business sense either. In-house lawyers often say to me ‘isn’t it better to take a compliance approach because what happens if I do find something? Doesn’t our responsibility increase in this case?’ To which I respond ‘but hang on would you prefer to find out about modern slavery through your own due diligence, enabling you to put measures in place in your own time to mitigate the risks? Or would you prefer finding out about it on the front page of the newspapers? Or being served notice for law suit? Leaving you to scramble for a response’. You can help your company navigate this intersection between soft law and hard law. This starts by asking your company to consider its approach to procurement and how it seeks to strengthen labour conditions in its supply chain. Including by creating honest conversations with its suppliers and enabling them to treat their workers well. You can draft the statement, you can write it, so long as other functions are involved in developing the content as well.

Finally, this is an area where you can be honest. If you’re just starting out, say so. If you have assumptions along the way, that later turn out to be inaccurate, say so. If you feel you can’t address the issues without coordinating with other stakeholders, say so. The candid statements of leading companies have paved the way for you in an ever changing and complex world of business, you play a critical role in enabling your company to create an opportunity from applicable law, to increase the resilience of its value chain and be equipped to look to the future.

 

 

 

 

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