Each of us in this room is probably wearing at least one garment tainted by being manufactured, at least in part, using slavery. Whether as a result of the use of forced child labour in the cotton harvests of Uzbekistan, or as a result of the enslavement of Dalit girls and young women in the spinning mills of Tamil Nadu in India, or some other aspect of forced labour, including child slavery, in the weaving, cutting, stitching or finishing of the garments that end up on our high streets.
Just to give one illustration of what that means in human terms: in the course of a piece of research into trafficking in garment manufacture in India Anti-Slavery spoke to the mother of one young 20 year old woman who worked in a cotton spinning mill there. She described visiting her daughter:
“I spoke to her in a room provided for visitors”, she said, “because visitors are not allowed to go inside the mill or hostel. My daughter told me that she was suffering with fever and vomiting often. …I met with the manager and requested him to give leave to my daughter because she was unwell. I told him that I would send my daughter back once she was better. But the manager refused saying that there was a shortage of workers therefore they cannot grant leave. He also assured me that they would take care of my daughter and asked me not to worry.”
A week later she received a call to say now she could collect her daughter. She was dead.
Now when we present evidence of forced labour in their supply chains to businesses their defence tends to be “But we audit our supply chains!” Such ethical auditing has been going on for years now. Its reasonable to come to some assessment of its effectiveness. And one of the things that is completely clear is that it has been wholly ineffectual in identification and protection of vulnerable workers, and wholly inadequate in bringing about any reform in the systems of production where forced labour and trafficking are so rife.
That should not be news to anyone because the purpose of “ethical auditing” is to find nothing. And should some diligent journalist or non-governmental organisation ever expose the sort of exploitation that is routine for the supply of cheap garments to our high streets, there is no consequence for those businesses or the business executives who have made the decisions to source from slavery. Their goods are not excluded from European markets. The executives are not held criminally liable.
When I was doing my PhD one question I was struggling with for a long time was that of how to ensure democratic accountability of trans-national businesses just as a significant number of major, generally trans-national, businesses begin to dwarf economically nation-states. After a while I realised I was asking the wrong question. The more fundamental question is how to ensure legal accountability of trans-national business. It was reassuring when I read Tom Bingham’s book Rule of Law, to discover, that, brilliant as that book is and its author was, he had not thought of that question either.
John Ruggie’s who drew up the UN guiding principles on business and human rights argued that this should be achieved by extending extra-territorial law. Of course this is easier said than done as we can see from the UK government’s current reluctance to put in place any sort of robust measures sufficient to ensure that international businesses manage their supply chains ethically.
That there is anything at all in this bill is a result of the Ethical Trading Initiative in London, pulling together a coalition of trades unions, NGOs, and particularly, businesses to put pressure on the government to introduce some measure to level the playing field of international trade between those who wish to trade more ethically and those who are not bothered.
In truth had businesses not added their voice to this demand there would still be nothing in the bill. In spite of what you are told about this being a democracy the voice of business carries vastly more weight than the voice of conscience.
And that is problematic. The more I have considered Bingham’s principles of rule of law the more I’m inclined to view the one of equality before the law is most fundamental. We live in a world where there is little equality before the law and this is a key driver for human rights abuses in general and for forced labour in particular.
Those who have money generally have access to better lawyers, an ability to fast track or slow down their cases as best suits them, and sometimes to wholly purchase of the police and judiciary to better serve their interests. The reason why South Asia is so rife with forced labour including in many businesses that supply Northern hemisphere high streets, is those who are most likely to be enslaved, because of their poverty and social status, have no such access. In contrast those who profit from from the forced labour and enslavement of others are privileged by their wealth and social status to act with impunity.
In a recent study we conducted of child labourers enslaved in the garment workshops of Delhi they told us how, despite plenty of good Indian law against slavery and child labour, when the workshop owners fail to pay bribes to the police, the police come, arrest the children and hold them hostage, stopping work, until the bribes are paid. In other parts of India Dalits enslaved in brick kilns or agricultural labour find it next to impossible to obtain legal remedy for the situations in which they find themselves.
Many of you will be aware of the current situation in Qatar where tens of thousands of South Asia workers are in forced labour to construct the venues and infrastructure for the 2022 World Cup. Here the forced labour is underpinned by what is known as the “kafalah” system. This is a so-called sponsorship system, used across the Gulf, that ties workers to their employers to such an extent that even in the most abusive employment relationships, up to and including forced labour, the workers cannot change jobs or even go home.
It is a cynical system to use the law to facilitate medieval levels of exploitation up to and including slavery. Incidentally it is also essentially the same system that the United Kingdom government has in place for migrant domestic workers, which de facto legalises trafficking for forced domestic servitude.
As citizens we tolerate these sorts of abuses because they happen out of sight, often a long way away, to people who the wider mass of society disdains or is indifferent to, to such an extent that when governments and their officials privilege their prejudices it does not overly trouble us to action.
Action is possible: more rigorous investigations of supply chains can be undertaken by companies, who can begin to put their house in order by funding remediation measures to remove the causes of the human rights abuses they find. Where the causes of slavery or other human rights abuses lie beyond the control of businesses they can highlight to governments where their failures to protect human rights are most glaring and how these should be addressed. Many of you will be aware of the recent expose in the Guardian of forced labour in Thai fisheries. This is a case in point. Anti-Slavery is currently working with a range of retailers to address the risks of forced labour in their supply chains. But this work highlights the lack of government action in terms of sufficiency of maritime inspections either in coastal waters or on the high seas. This is not just an issue for the Thai government.There are credible reports of forced labour in fishing boats off Ascension Island, St Helena and the Falklands. I am also struck that there is an anti-piracy task-force off the coast of Somalia but no mandate for anti-slavery inspections on the high seas. Another example of wealth not conscience determining political and legal action.
One final point: I was in conversation a short while ago with an American colleague who noted a relatively new phenomenon there were “ambulance chasing lawyers” in her phrase, are using any public efforts by companies to remediate their supply chains as an evidence with which to sue the companies for knowledge of the problems they are trying to remediate.
Lawyers don’t just interpret the law you also make it, through the professional standards you encourage, the pressure you can apply, the advice you give, the decisions you make and the precedents you set.
My PhD was on ethical choice making in professional practice. One thing I found is that even within the proper constraints of professional responsibility there is often significant scope for independent moral thought and decision making. So it matters what your principles are and what your philosophy of law is: whether, in common with those workshop owners in India, you are merely interested in making money irrespective of who gets destroyed in the process. Or whether it is a means to advance justice when the opportunity presents itself.
As the questions of legal accountability for international business are explored over the coming years how those questions will be resolved will in significant part fall to lawyers. Will lawyers help sustain the status quo? Or will you strive to grasp what opportunities present themselves to reform and emancipate and change a moment of history for vulnerable people across the world.