Inadequacy of Remedies in Cases of Human Trafficking and Modern Slavery

• Author: Brenda Hale
• Position: President, Supreme Court of the United Kingdom
• Pages: 34-40

IRISH JUDICIAL STUDIES JOURNAL

[2019] Irish Judicial Studies Journal Vol 3(2)

33

INADEQUACY OF REMEDIES IN CASES OF HUMAN

TRAFFICKING AND MODERN SLAVERY

Author: Brenda Hale, President, Supreme Court of the United Kingdom

1

In the last five years, the UK Supreme Court has heard appeals in several claims brought by

migrant domestic workers, a form of employment notorious for exploitation by

unscrupulous employers.

2

The law in this country recognises the problem in several ways:

depending on the form mistreatment takes, it may amount to a breach of an employment

contract or statutory employment rights, a tort, an offence under the Modern Slavery Act

2015 or under the general criminal law, and it may entitle the victim to a slavery and

trafficking reparation order under section 8 of that Act. However, in Taiwo v Olaigbe we held

that mistreatment stemming from the worker’s vulnerable immigration status did not

amount to race discrimination. This led to the closing remarks in our judgment on the

inadequacies of the present remedies for modern slavery:

It follows that these appeals must fail. This is not because these appellants

do not deserve a remedy for all the grievous harms they have suffered. It is

because the present law, although it can redress some of those harms,

cannot redress them all. Parliament may well wish to address its mind to

whether the remedy provided by section 8 of the Modern Slavery Act 2015

is too restrictive in its scope and whether an employment tribunal should

have jurisdiction to grant some recompense for the ill-treatment meted out

to workers such as these, along with the other remedies which it does have

power to grant.

3

Among the problems which some of these workers have faced is that their immigration

status means that they have no right to work and therefore any contract of employment

might be invalid. However, the Supreme Court has established that any illegality entailed in

the migrant’s working in the UK is no more than the context for the alleged misconduct

and these employment claims should not be barred by public policy.

4

We have also held

that diplomatic immunity would cease to protect an employer from such claims when the

diplomatic posting ended.

5

We left open whether an employer’s participation in trafficking

might fall within the scope of ‘commercial activities’, which are excepted from immunity

under article 31 of the Vienna Convention on Diplomatic Relations.

6

So there are some

respects in which claims by victims of trafficking have become easier. But are they enough?

The UK is obliged by the Council of Europe Convention on Action against Trafficking in

Human Beings

7

to ensure that victims have access to compensation and legal redress.

Article 15.3 states that ‘Each party shall provide, in its internal law, for the right of victims

to compensation from the perpetrators’. Article 15.4 provides that ‘Each Party shall adopt

1

I am deeply indebted to my Judicial Assistant, Penelope Gorman, for her help with this paper.

2

Hounga v Allen and another [2014] UKSC 47, [2014] 1 WLR 2889; Taiwo v Olaigbe and another [2016] UKSC 31, [2016] 1

WLR 2653; Reyes v Al-Malki [2017] UKSC 61, [2017] 3 WLR 923.

3

Taiwo v Olaigbe and another [2016] UKSC 31, [2016] 1 WLR 2653 at paragraph 34.

4

Hounga (n 2), confirmed in Patel v Mirza [2016] UKSC 42, [2017] AC 467.

5

Reyes (n 2).

6

Vienna Convention on Diplomatic Relations (adopted 18 April 1961, entered into force 24 Apri 1964) 500 UNTS 95.

7

Council of Europe Convention on Action against Trafficking in Human Beings (adopted 16 May 2005, entered into

force 01 February 2008) CETS 197.