Badges of modern slavery Article (Accepted Version) Paz-Fuchs, Amir (2016) Badges of modern slavery. Modern Law Review, 79 (5). pp. 757-785. ISSN 0026-7961 This version is available from Sussex Research Online: http://sro.sussex.ac.uk/id/eprint/61205/ This document is made available in accordance with publisher policies and may differ from the published version or from the version of record. If you wish to cite this item you are advised to consult the publisher’s version. Please see the URL above for details on accessing the published version. Copyright and reuse: Sussex Research Online is a digital repository of the research output of the University. Copyright and all moral rights to the version of the paper presented here belong to the individual author(s) and/or other copyright owners. To the extent reasonable and practicable, the material made available in SRO has been checked for eligibility before being made available. Copies of full text items generally can be reproduced, displayed or performed and given to third parties in any format or medium for personal research or study, educational, or not-for-profit purposes without prior permission or charge, provided that the authors, title and full bibliographic details are credited, a hyperlink and/or URL is given for the original metadata page and the content is not changed in any way. http://sro.sussex.ac.uk Badges of Modern Slavery Amir Paz-Fuchs It is hard for us to appreciate that in spite of great efforts made by the emancipators and their successors, in spite of the revolution in public opinion as regards all forms of slavery, in spite of the plethora of international agreements for the suppression of slavery (some 300 of them), the problem of slavery in the twentieth century is as great, indeed greater than it was in the 1830s.1 Abstract Notwithstanding the 19th century formal abolition of slavery as legal ownership of people, modern slavery and forced labour have not been consigned to the past. In fact, their existence is more widespread, and made more difficult to tackle due to the lack of formal, legal criteria. This article suggests that reference to the past, historical institutions reveals seven ‘badges of slavery’ that are helpful in identifying occurrences of modern slavery and forced labour. These are: humiliation, ownership of people, exploitation of the vulnerable, lack of consent, terms and conditions of employment, limits on the power to end the employment relationship, and denial of rights outside the work relationship. These aspects constitute modern slavery as such, and thus distinguishes it from other instances of exploitative employment relations, however problematic. In addition, even where the label of modern slavery is misplaced, the identification of particular badges of slavery in contemporary employment relations may assist in highlighting their troubling facets. Keywords: Slavery, forced labour, employment, exploitation, migrant workers, free choice. 1. Introduction: Badges of Slavery and the Long Shadow of the Institution In Mohsin Hamid’s novel, the Reluctant Fundamentalist, the narrator muses: ‘once admitted I hired a charioteer who belonged to a serf class lacking the requisite permissions to abide legally and forced therefore to accept work at lower pay; I myself was a form of indentured servant whose right to remain was dependent upon the continued benevolence of my employer’.2 This ‘indentured servant’, it should be immediately noted, was not a member of an excluded caste working in a sweat shop in a developing country, but rather a Princeton graduate working in New York city for a major investment firm. So could he seriously be considered an ‘indentured servant’? Senior Lecturer, School of Law, University of Sussex; Research Associate Fellow, Centre for Socio-Legal Studies, University of Sussex. Jo Bridgeman, Tom Frost, Judy Fudge, Virginia Mantouvalou and Linsday Stirton have offered very helpful comments to this paper, for which I am thoroughly grateful. 1 Lord Wilberforce, ‘Introduction’ in R. Sawyer, Slavery in the Twentieth Century (London: Routledge, 1986), vii. 2 M. Hamid, The Reluctant Fundamentalist 178 (London: Penguin, 2008) 1 The reason this question is not complete hyperbole is because, while trade in slaves was made illegal in the UK in 1807, and across the British Empire in 1834,3 it is only one particular instance of slavery, namely the legal, formal ownership of people, which has been eradicated. In fact, it is abundantly clear that ‘slavery is not a horror safely consigned to the past’.4 A few indicators to that effect may be mentioned. In 2004, the European Parliamentary Assembly stated that it ‘is dismayed that slavery continues to exist in Europe in the twenty-first century. Although, officially, slavery was abolished over 150 years ago, thousands of people are still held as slaves in Europe, treated as objects, humiliated and abused’.5 In Britain, the Modern Slavery Act6 (MSA) received Royal Assent on 26th March, 2015, and the first prosecution under the MSA was launched in August 2015.7 In 2016, the Associated Press won the Pulitzer Prize for its year-long investigative report on slavery in the seafood industry in Asia.8 Slaves were forced to work 20-22 hours a day, were locked up, drank filthy water and ate few spoons of rice, and were not permitted to contact their families. The report led to the rescue of over 2000 slaves.9 So how we are to reconcile the existence of slavery with its formal abolition? It has become clear that the very abolition of formal, legal slavery, exemplified in the ownership of an individual by another, has obscured the situation significantly, particularly in the employment context.10 In fact, the term modern slavery has been attached to discussions ranging ‘from prostitution to child labour to illegal immigration to female circumcision to 3 British Emancipation Act 1834. 4 K. Bales, Disposable People (Revised Edition, Berkeley: University of California Press, 2004) 3. 5 Parliamentary Assembly Report (Recommendation 1663, Doc. 10144) Domestic Slavery: Servitude, Au-Pairs and Mail-Order Brides (2004), para 1. 6 Modern Slavery Act 2015 c 30. 7 F. Lawrence, ‘Lithuanian migrants trafficked to UK egg farms sue “worst gangmaster ever”’ The Guardian (10 August 2015). 8 R. McDowell, M. Manson and M. Medoza, “Slaves may have caught the fish you bought” The Associated Press (25 March 2015) http://www.ap.org/explore/seafood-from-slaves/ap-investigation-slaves-may-have-caught-the-fish-you- bought.html 9 E. Htusan and M. Mason, ‘More than 2,000 enslaved fisherman rescued in 6 months’ Associated Press (17 September 2015). http://www.ap.org/explore/seafood-from-slaves/more-than-2,000-enslaved-fishermen-rescued-in-6-months.html 10 In Britain, the denial of the existence of chattel slavery is associated with Lord Mansfield’s speech in Somerset v Stewart (1772) Lofft 1, 98 ER 499. And yet, Lord Manfield’s decision in The Zong – Gregrson v Gilbert (1783) 3 Dougl 232, 99 ER 629 points to the limits of the Somerset ruling. As TT Arvind explains, “the entire transatlantic slave trade was based around treating slaves as if they were chattel”, and Lord Mansfield was not willing to rule in a manner that would have severe implications for the British economy – ‘“Though it Shocks One Very Much”: Formalism and Pragmatism in the Zong and Bancoult’ (2011) Oxford Journal of Legal Studies 1, 29. 2 begging to organ trading’.11 But it holds an even more uncomfortable place for those concerned with employment rights and employment relations. The lack of a clear definition as to what forms of exploitative labour relations may be regarded as slavery has allowed critics of agency work,12 workfare schemes,13 privatisation,14 the regulation of migrant workers15 and even the treatment of professional athletes,16 to align these practices with forced labour, or even slavery. In some cases, these comparisons are no more than rhetorical tools, designed to attract attention to a particular claim.17 In other cases, however, the comparison between the historical institution of slavery and contemporary employment practices may be instructive. The growing appreciation for the need to find a more open-ended term that addresses the problems with voluntariness in contemporary labour markets, without the need to refer to every such instance as slavery, servitude or forced labour, has led to the term ‘unfree labour’ to appear more prominently in the literature in recent years.18 Unlike forced labour or slavery, ‘“unfree labour” is not a legal concept, nor should it aspire to be’.19 To an extent, it offers an additional, less intimidating, and yet still conceptually problematic, way of criticising the regulation of migrant work20 and temporary work 11 J. O’Connell Davidson, Modern Slavery – The Margins of Freedom 3 (Basingstoke: Palgrave Macmillan, 2015) 12 J. Denys, ‘Challenges for Temporary Agency Work in the Information Society’, in R. Blanpain and R. Graham (eds), Temporary Agency Work and the Information Society (London: Kluwer Law, 2004) 9, 11, noting that ‘Some still consider the industry as a modern form of slave labour’. 13 B. Anderson, Us and Them? The Dangerous Politics of Immigration Control (Oxford: OUP, 2013) 150; The argument that workfare is forced labour was raised before the British Supreme Court, the European Court of Human Rights, and American Courts – respectively: R (Reilly and Wilson) v Secretary of State for Work and Pensions [2013] UKSC 68; Talmon v the Netherlands (1997) EHRLR 448 and Schuitemaker v the Netherlands (2010) ECHR 820; Brogan v San Mateo County, 901 F.2d 762 (9th Cir. 1990). See also: S. Duffy, ‘Workfare is Modernised Slavery’, Huffington Post (27 February 2013) http://www.huffingtonpost.co.uk/dr-simon-duffy/workfare-is-modernised-slavery_b_2773051.html (all URLs were last accessed on 15 May 2016).