We are behind our EU counterparts in protecting against slavery
Two sisters, aged 16 and 11, left Burundi following the 1993 civil war (in the course of which their parents were killed) to live with their aunt and uncle in Paris.
For more than four years, the sisters, referred to in legal proceedings before the European Court of Human Rights (ECHR)as “CN” and “V”, were obliged to carry out all the work of the household for the couple and their seven children, with no remuneration and no days off.
They were accommodated in unhygienic conditions in the basement of the house, subjected to daily physical and verbal abuse and constantly threatened with being sent back to Burundi. V was allowed to attend school.
The sisters finally escaped in 1999 with the help of a French NGO and, in October 2012, the ECHR found that CN, the older sister, had been kept in servitude and subjected to forced labour, in violation of Article 4 of the European Convention on Human Rights.
The court’s ruling in this case was the second of two recent judgments (in October and November of this year, relating to France and the UK, respectively) in which the court has confirmed that, in failing to put in place adequate and effective criminal deterrents for slavery, servitude and forced labour, states are in breach of their positive obligations of protection under Article 4 of the ECHR.
In these judgments, the Strasbourg court has emphasised the fundamental and universal nature of the right to be free from such serious forms of exploitation, placing these rights in the same category as freedoms from torture, inhuman and degrading treatment.
All of the cases which had been decided by the court involving servitude and forced labour have been taken by female migrant domestic workers, underlining the fact that those who are at most risk of this type of “modern day slavery” are among the most vulnerable in contemporary European societies – including those working in precarious employment sectors such as domestic care work, often with a temporary or irregular migration status.
This is not “just” a human rights issue but a social justice, falling at the intersection of multiple and historicised forms of discrimination and oppression based on race, class, poverty and gender.
The recent judgments of the Strasbourg court have a particular resonance in the Irish context, where, until now, there has been a lack of an adequate legal provision criminalising slavery, servitude and forced labour. While trafficking for the purposes of labour exploitation, including forced labour, is prohibited under the Criminal Law (Human Trafficking) Act 2008, the relevant provisions are not sufficiently clear for prosecutions to be taken for forced labour under that Act.
We have fallen behind our European counterparts on this front, with much publicity surrounding the sentencing in December in the UK of four members of a family following the first successful prosecutions under Section 71 of the Coroners and Justice Act 2009, which specifically criminalises forced labour.
While many might find it hard to contemplate that such extreme forms of labour exploitation could take place in modern Ireland, Migrant Rights Centre Ireland indicates that it has dealt with 179 cases of forced labour in the last seven years. In the absence of a clear legal prohibition on such behaviour, it is impossible to know the extent of the problem.
The Department of Justice has been actively working on this area and has conducted an assessment of the sufficiency of Irish legislation, which it is to be hoped will soon lead to an amendment of the 2008 Act to facilitate prosecutions for forced labour.
Assuming that the amended legislation meets the high standards of protection set down in the ECHR cases, the challenge will be to ensure that these crimes are effectively investigated and prosecuted.
In addition, if it is really sought systematically to address the problem of labour exploitation, it is vital to recognise its wider nexus to access to ordinary employment protections, such as working time and minimum wage legislation.
Quite aside from the failure to criminalise slavery, servitude and forced labour, the effectiveness of Irish employment legislation to deter forms of labour exploitation is in question following the recent judgment of the High Court in Hussein v the Labour Court. Here, Hogan J found that migrants in an irregular situation cannot rely on basic employment legislation, as the contract of employment is tainted by the illegality of their employment (in the absence of an employment permit).
At least 40 cases pending before the Labour Court stand in a “legal limbo”, while the Government decides how best to address this anomaly created by the operation of the Employment Permits Act 2003, which criminalises the employee for working without a permit, no matter what the circumstances.
The Department of Jobs, Enterprise and Innovation has committed to amend employment permits legislation so as to ensure that an employer may not benefit from the illegality of the contract of employment where they are found culpable in not ensuring a valid employment permit was in place for the employee concerned. It is to be hoped that this will be done, as soon as possible, within the revamped Employment Permits Bill, currently being drafted.
The two pieces of legislative reform currently underway will, somewhat belatedly, start to address some of the gaps in Irish law in relation to serious forms of labour exploitation. Given the fundamental nature of the rights at stake, these processes of reform should be expedited and built upon.
Cliodhna Murphy is a lecturer in law in the School of Law and Government at DCU