Slavery and the law

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IMG_0896The current story of three women apparently held in captivity in South London for 30 years has aroused enormous public interest. It is natural to see this as an example of modern slavery though clearly very different from slavery as it featured in the notorious “triangular trade” which disfigured the world of commerce in the 18th century and earlier.

Another recent case labelled as slavery was tried at Luton Crown Court in July 2012. Two members of a traveller family were jailed for 11 and 4 years respectively after being found guilty of brutally manipulating and exploiting destitute men for financial gain at a caravan site near Leighton Buzzard. Judge Michael Kay QC said:”In 1834, slavery was abolished in the British Empire. So it is nearly 200 years after that these defendants have been convicted of holding their victims in servitude and exacting from them forced labour.”

Judge Kay is referring to the Slavery Abolition Act 1833, famously promoted by William Wilberforce, whom every schoolchild credits with the ending of slavery in Britain. However, the Act was a response to the very specific phenomenon of the highly lucrative trade in black people of African origin, who were transported in British ships which arrived on the coast of West Africa from Liverpool or Bristol. They carried cargoes of trinkets and other manufactured goods which were exchanged for human cargoes. The captives were carried across the Atlantic to the West Indies or North America to live and work in harsh conditions in the booming sugar plantations.

The 1833 Act challenged and denied the possibility that a human being could be the subject of ownership. As Dr. Johnson remarked:”no man is by nature the property of another.” The Act abolished slavery in the British Empire while at the same time recognising that it was depriving the slave owners of valuable property. The Act provided for slave owners to be handsomely compensated. The Government of the day set aside the then huge sum of £20 million for this purpose.

Ownership of one human being by another had been accepted by the Greeks and the Romans. In Roman law,which once formed a substantial part of many law degree courses, the legal management of slavery was an important topic. As a student at Oxford I became familiar with the nine distinct methods by which a slave could be freed (“manumitted” was the technical term). I can hardly recall any of them.

Of course this information has been of no practical use in subsequent legal career and licensed slavery, in the sense of ownership, is obsolete in Western countries, though it is believed to continue in some other parts of the world.

Thus slavery features in a series of modern international treaties and human rights instruments. A Slavery Commission appointed by the League of Nations in 1924 led to the Slavery Convention of 1926 which specifically aimed at ending the traffic in African slaves but applied generally to “slavery and the slave trade”. It defined slavery as “the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.” The powers are not themselves identified but at least the historic link between slavery and ownership is maintained.

Of course the practical purpose of slavery is to extract labour from the enslaved. Yet the concept of “forced labour” has developed separately, probably because it has been taken up by organisations concerned with employment. The International Convention concerning Forced labour was adopted in 1930 on the initiative of the International Labour Office. It does not seek to prohibit forced labour absolutely since it allows military conscription and the imposition of limited duties to carry out public works. And of course forced labour may not imply the claim to ownership which slavery traditionally carried.

Man’s inhumanity to man may take many forms which developments in human rights law have attempted to encapsulate in justiciable form. Trafficking for the purpose of prostitution became the subject of a United Nations convention in 1949, amplifying an international agreement for “Suppression of the White Slave Traffic” of 1904.

Article 4 of the Universal Declaration of Human Rights in 1948 declared that “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” It does not define these terms. And of course the Universal Declaration also prohibits arbitrary arrest and detention, the infliction of torture and and other cruel inhuman or degrading treatment, and the restriction of other freedoms. These provisions are echoed in the European Convention on Human Rights and part of our domestic law by virtue of the Human Rights Act 1998.

The recent case referred to at the beginning of this article led the Home Secretary to announce plans to strengthen anti-slavery laws. She is right to point out that the law relating to what we may perceive as slavery needs re-examination and perhaps rationalisation. To regard slavery as the assertion of property rights is no longer helpful. The main practical problem is the trafficking of the young and vulnerable for prostitution or forced labour. There is already a large body of legislation prohibiting trafficking for the purpose of sexual exploitation and where violation of immigration restrictions is claimed. Where these factors are absent and where there is a lack of evidence of violence or coercion prosecution is more difficult. Clearly there are cases where psychological pressure may create a dangerously unhealthy form of dependency where the criminal law may have a role.

The government should not rush into new legislation merely because there is a feeling that “something must be done”.

Source: Open Democracy

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