This blogpost was inspired by a discussion in the UNGPs Professionals Network, hosted by GLOBAL CSR.
In 2015, the UK integrated the Modern Slavery Act (MSA) to combat slavery, servitude, forced or compulsory labour and trafficking in the UK. The MSA defines modern slavery through reference to article four of the International Covenant on Civil and Political Rights that is part of the International Bill of Human Rights (IBHR).
When covered by the MSA, businesses shall publish a public statement and report on their due diligence on this human right. Such a statement, MSA proposes, may involve information on the training about slavery and human trafficking a company makes available to its staff. (Section 6, pt. 5 of MSA). This rather tiny subsection of the MSA has recently had many businesses look far and wide for training on slavery and human trafficking. As the MSA is UK law, companies affected are carefully seeking to comply.
But how exactly should the MSA be interpreted by business?
This is a pertinent question for many companies with subsidiaries in the UK. As part of the UK National Action Plan to implement the UN Guiding Principles on business and human rights from 2011 (UNGPs), the MSA follows the logic of UNGPs. The UNGPs establish the first globally agreed minimum standard for responsible business conduct. Similar to the expectations from the UNGPs, the MSA states that business should:
- Have a policy commitment in place mentioning its determination to respect the right to be free from forced or compulsory labour (modern slavery).
- Have a due diligence process in order to both identify and manage potential and actual adverse impacts on this right, and communicate about the results of the actions taken to prevent or mitigate adverse impacts on this right.
- Ensure remediation to stakeholders affected by adverse impacts on this right.
While MSA concerns one human right, the UNGPs state that companies should address – at minimum – all internationally recognized human rights (UNGPs Foundational Principle 12, confer the IBHR), when performing their due diligence, including the right not to be subjected to slavery, forced or bonded labour (modern slavery). Developing capacity for human rights due diligence includes developing internal capacity to properly identify and manage potential adverse impacts; also, on this human right. Hence the capacity development (training – guidance – information etc.) expected under the UNGPs for continuous human rights due diligence should suffice to constitute proper training as expected on the single rights scope of the UK law.
Whereas a company that meets the process requirements of the UNGPs, should automatically comply with the MSA, the reverse statement does not apply. If a company complies with MSA only, the company will not meet Foundational Principle 12 of the UNGPs. It will merely manage impacts on one human right. In the future, companies will continue to meet requests to document that they respect all human rights, why the MSA may become misleading, should businesses get the impression that a single rights scope is sufficient.
Our recommendation to companies within the remit of the MSA is always to develop capacity to implement the global minimum standard, i.e. the UNGPs, while ensuring that the UK subsidiary communicate that slavery, forced or bonded labour (modern slavery) is part of this work. Companies that are at risk of either causing or contributing to adverse impacts on this right should, also in accordance with the UNGPs, enhance efforts to prevent or mitigate as part of their own due diligence.
Risks, i.e. potential adverse impacts, in relation to the right not to be subjected to slavery, forced or bonded labour shall always be considered severe, due to their gravity. In order to address, whether the company is at risk of becoming linked to adverse impacts on this human right through its business relationships, i.e. its value chain, the company should pose the following question: Is the company selling to or sourcing from industries or contexts where such risks are high?
The answer should be revealed from the assessments of your business relationships, provided that you have asked them to respect human rights. Civil society, UN and other authoritative reports may also indicate that such challenges may be a particular problem in certain industries and geographic locations. Stay informed and if affirmative ask that part of your value chain to demonstrate how they address such specific challenge; what they do to prevent or mitigate potential impacts on the right not to be subjected to slavery, forced or bonded labour (modern slavery). Since adverse impacts on this right should be considered ‘severe impacts’, potential adverse impacts on this right must be expected to always be communicated immediately to business relationships, when they ask for documentation on due diligence.
You are always welcome to reach out to GLOBAL CSR for advice on responsible business conduct, also on this concrete human right.
Sune Skadegaard Thorsen, CEO of GLOBAL CSR
Tara Skadegaard Thorsen, consultant at GLOBAL CSR