New enforced labour measures could make things worse
Proposals from the Home Office and the Business Department to tackle job market illegality have ostensible appeal but may backfire – making forced labour harder to detect.
The Immigration Bill 2015-16 is set to make a swathe of structural changes in how breaches, both by unscrupulous employers and those working illegally, are tackled.
Amongst other plans announced in last month’s consultation response regarding the Bill, Westminster wants to establish a Director of Labour Market Enforcement, create new offences of aggravated breach of labour market legislation and of illegal working, increased intelligence and data sharing between relevant agencies, and expand powers of the Gangmasters Licensing Authority.
The new Directorship has been criticised for a lack of clarity around what the role entails and what it oversees – but the main concern among those battling against modern slavery is that this scourge will be driven further underground.
The consultation itself notes: “We do not intend that preventing illegal working should be a focus of the Director or the labour market enforcement strategy. Where illegal workers are the victims of exploitation, we will still take action against the rogue businesses that are committing these crimes, and will continue to increase our efforts to support victims of modern slavery. However, the Government has concluded that it is still appropriate for labour market enforcement agencies to work with Immigration Enforcement (as they do now) to share information about illegal working.”
Critics say this will ultimately make victims of modern slavery, who themselves are working illegally or believe themselves to be working illegally, more reluctant to come forward and therefore play right into the hands of exploitative employers.
The Law Centre NI was involved in a seminar on labour exploitation last week, run by DEL with support from DoJ and designed to raise awareness of the indicators of forced labour aamongst employers and agencies.
Liz Griffith, policy officer at LCNI, said: “The recent push on enforced labour is ringing lots of alarm bells. It’s going in the wrong direction.
“The Law Centre and others have spent years saying that tackling abuse in the labour market is a mess and needs to be improved. But the Home Office’s way of trying to improve things is not something that we are confident will work.”
There are also technical concerns about legislation; no single body or person oversees labour exploitation (or illegal working) – suggesting a Directorship, done correctly, could make systems much more efficient – and victims could variously have to deal with multiple agencies including the police, Gangmasters Licensing Authority, Health and Safety Executive, HMRC and employment tribunals.
But here devolution presents a problem – the Director is supposed to be UK wide but this would effectively mean that Stormont would have to hand back certain devolved powers.
Both DEL and DoJ are unlikely to be entirely supportive of the plans and possibly reluctant to provide the necessary legislative consent that would allow the Director full scope over Northern Ireland.
Groups such as Focus on Labour Exploitation (FLEX) have been critical of a twin-pronged approach to tackling labour market breaches.
A recent policy paper on how best to deal with modern slavery said: “Only with victim-centred labour inspection and enforcement will the UK stand a chance of meeting its international commitments to prevent modern slavery.”
Recommendation number one in the paper is to “Maintain a frewall between immigration control and labour inspection” – in opposition to the government’s suggested approach - with the report saying:
“Confusion between immigration control and labour inspection is one of the biggest barriers to the identifcation of traffcking for labour exploitation. Not only are potential victims fearful of coming forward but inspectors fail to spot indicators of modern slavery. In order to ensure the UK meets its international obligations to identify traffcking there must be a strict frewall between immigration control and labour inspection.”
Both Home Secretary Theresa May and the Minister for Business, Innovation and Skills Sajid Javid, in their opening comments to the January consultation response, identified tackling modern slavery as their key priority.
Ms May said: “In 2015 the House of Commons passed historic legislation in the Modern Slavery Act, sending out a powerful signal about our determination to be at the forefront of eradicating the horrors of this terrible crime. Among the measures in the Government’s new Act are steps to ensure we can tackle the organised criminals and opportunistic individuals behind the modern day slave trade, and increased support and protection for victims.
“But now we need to build on that good work. We must deal with those who commit all forms of labour exploitation, and so profit from the misery of others and undermine responsible businesses.”
Mr Javid said: “The worst type of exploitation – repeated breaches of the law by unscrupulous employers with no regard for the rights of workers – will be tackled with a new undertaking and enforcement order regime, with an associated criminal offence. The new Gangmasters and Labour Abuse Authority will be able to use its expertise to tackle these criminals, wherever they are operating.”
As well as plugging the Director into immigration control, the plans also risk the independence of the GLA by compelling it to share information and communicate with the director to “coordinate data which will be used to develop the annual strategy plan for labour market enforcement”.
Altogether the government plans might look good in bullet points or headlines but fall apart in execution.
The argument goes: if a victim-centred approach maximises the chances of those being exploited coming forward, it likely also provides the best pathway to tackle modern slavers; by doing that, legitimate businesses are helped because immoral competitors who can undercut those paying a fair wage are put under the greatest pressure; this in turn benefits the legal workers who are employed under good conditions by these fair employers, limiting the negative on the UK jobs market of illegal working.
Instead, by forcing victims underground, current plans might make each of these problems worse.
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