Forced Labour Defined
Assessing the Irish Policy Framework and its Implications for
Practice
Samantha Jane Turner
MsocSci (Social Policy); Bsc (Hons); DipSP&C; CertSocSci
Table of Contents
Chapter One: Introduction...............................................................................10
1.1: Background to the Research...................................................................10
1.2: Research Aims and Research Questions...............................................12
1.3: Research Rationale.................................................................................13
1.4: Chapter Overview....................................................................................15
Chapter Two: Definitions and Statistics........................................................17
2.1: Definitions of ‘Trafficking’, ‘Smuggling’, ‘Forced Labour’ and 'Slavery'...17
2.1.1: Trafficking.........................................................................................18
2.1.2: Smuggling........................................................................................18
2.1.3: Forced Labour..................................................................................19
2.1.4: Slavery.............................................................................................20
2.2: International Statistics.............................................................................21
2.3: Ireland's Issue Quantified?......................................................................23
Chapter Three: An Exploration of the Literature Surrounding the Issue of
Forced Labour and Responses to it...............................................................24
3.0: Introduction..............................................................................................24
3.1: Methodological Approach........................................................................24
3.2: Studies of Forced Labour in the Irish Context.........................................25
3.3: Causes of Forced Labour........................................................................26
3.4: Discourses of Forced Labour..................................................................28
3.5: Discussion of International Responses...................................................29
3.6: Alternative Perspectives in Responding to Forced Labour.....................32
3.7: Conclusion...............................................................................................35
Chapter Four: Researching Forced Labour in the Irish Context.................37
4.1: Research Approach and Methodology....................................................37
2
4.2: Policy Analysis.........................................................................................37
4.3: Interview Data Collection.........................................................................38
4.4: Data Analysis...........................................................................................39
4.5: Research Limitations...............................................................................40
4.6: Ethical Considerations.............................................................................42
4.7: Reflexivity................................................................................................43
Chapter Five: An Examination of Policy and Current Irish Practice..........45
5.0: Introduction..............................................................................................45
5.1: International Standard Setting and the Role of the International Labour
Organisation...................................................................................................45
5.2: International and European Legislation...................................................48
5.2.1: Key International Instruments..........................................................48
5.2.2: EU Instruments.................................................................................50
5.3: Irish Legislation and Policy......................................................................51
5.3.1: Background to the Current Irish Legislation.....................................52
5.4: Critical Analysis of The Criminal Justice (Human Trafficking) Act 2008
and (Amendment) Act 2013............................................................................53
5.5: Analysis of other European Initiatives – The UK Modern Slavery Bill.....54
Chapter Six: An Analysis of Forced labour in the Irish Context.................56
6.1: Introduction..............................................................................................56
6.2: Identified Cases of Forced Labour in Ireland..........................................56
6.3: Manifestations of Forced Labour in Ireland.............................................58
6.4: Who are the Victims?..............................................................................60
6.5: Identifying Forced Labour in Ireland........................................................61
6.6: Conclusion...............................................................................................64
3
Chapter Seven: Discussing the Irish Policy Framework.............................66
7.1: Introduction..............................................................................................66
7.2: The Effectiveness of Irish Policy..............................................................66
7.2.1: Prevention of Forced Labour............................................................67
7.2.2: Protections for Victims......................................................................72
7.2.3: Prosecution of Offences...................................................................74
7.3: The Role of NERA...................................................................................77
7.4: The Inclusion of Forced Labour in Trafficking Legislation.......................79
7.5: The Impact of the ILO Forced Labour Definition.....................................81
7.6: A Separate Act?......................................................................................83
7.7: Conclusion...............................................................................................84
Chapter Eight: Additional and Alternative Responses................................87
8.1: Introduction..............................................................................................87
8.2: Changing the Perception of Forced Labour............................................87
8.3: Co-operation and Communication...........................................................88
8.4: Suggested Legislative Measures............................................................89
8.5: Ratification of the ILO Forced Labour Supplementary Protocol 2014....90
8.6: Additional Measures to Tackle Forced Labour........................................92
8.7: Conclusion...............................................................................................93
Chapter Nine: Concluding Remarks..............................................................95
9.1: Introduction..............................................................................................95
9.2: Review of the Findings............................................................................95
9.3: Recommendations and Possible Avenues for Further Research...........98
9.4: Conclusions...........................................................................................101
Bibliography....................................................................................................103
4
List of Appendices
Appendix A: Participant Information Sheet
Appendix B: Research Consent Form
Appendix C: Sample Interview Guide
Appendix D: The Criminal Law (Human Trafficking) Act 2008
Appendix E: The Criminal Law (Human Trafficking) (Amendment) Act 2013
Appendix F: European Commission Proposal to Ratify the Protocol of 2014 to
the Forced Labour Convention, 1930
5
Acknowledgements
I wish to thank all those who have assisted me in the completion of
this thesis in their different ways.
Firstly I wish to thank my colleagues, friends and family for their
guidance, patience and support; I would like to express my
deepest gratitude to my supervisor, Dr Caitriona NiLaoire, for her
excellent counsel and reassurance during a constantly changing
research background, as well as providing feedback and thoughts
on numerous drafts of the study. I also owe a huge gratitude to the
individuals across a myriad of backgrounds who agreed to speak
to me regarding the legislation and the potential impacts they
encountered and envisaged as a result; their opinions and
contributions were invaluable and much appreciated.
6
List of Abbreviations and Acronyms
DJEI:
Department for Jobs, Enterprise and Innovation
DJELR:
Department of Justice, Equality and Law Reform
DWAG:
Domestic Workers Action Group
ECHR:
European Court of Human Rights
EU:
European Union
HSE:
Health and Safety Executive
ICTU:
Irish Congress of Trade Unions
ILO:
International Labour Organisation
IRP:
Immigration, Residency and Protection Bill
MRCI:
Migrant Rights Centre Ireland
NERA:
National Employment Rights Authority
NGO:
Non-Governmental Organisation
NRM:
National Referral Mechanism
OSCE:
Organisation for Security and Cooperation in Europe
SAP-FL:
Special Action Programme to Combat Forced Labour
THB:
Trafficking of Human Beings
UN:
United Nations
7
List of Tables, Charts and Graphs
Table 1: Identifying forced labour in practice
21
Table 2: Forced labour cases detected in Ireland by An Garda Siochana 24
Figure 1: Global estimate by form of forced labour
23
Figure 2: Profits from forced labour
23
8
Abstract
In response to the European Directive 2011/36/EU (2011), pressure from
national and international non-governmental organisations (NGOs) and
coinciding with the recommendations of the US State Departments 2012 Antitrafficking report, in 2013 Ireland's Criminal Law (Human Trafficking) Bill 2008
was amended to include provision to criminalise instances of forced labour and
exploitation, by defining the phenomenon in Irish government statute. This
dissertation examines the Irish policy framework to interrogate to what extent
the inclusion of the ILO definition within current national policy could potentially
aid or hinder the efforts of those dealing with the issue of forced labour, those
individuals subjected to it and those who inflict it upon others. By doing so, it
simultaneously works to assess the implications of the current legislative policy
as a whole for addressing the issue of forced labour in Ireland more generally.
Using interview data from key actors in the area, the research highlights that not
only does the Irish law have to ensure a comprehensive framework allowing
successful prosecution of those responsible for forced labour, but it also needs
to address the very real needs of the victims to it: needs such as protection
measures, immigration status, restitution, protection from further victimisation
and persecution, as well as the basic human rights afforded to every individual.
Maybe more importantly, and certainly as a first step proceeding any treatment
of victims or perpetrators of forced labour, is the issue of identification. Until this
is realised as a major obstacle in the development of the eradication of forced
labour, those who are trapped within instances of forced labour and severe
exploitation occurring in the Irish State will continue to be so.
9
Chapter One
Introduction
This dissertation examines the Irish policy framework and the potential impact
of the inclusion of the International Labour Offices' definition of forced labour
within legislation. This research seeks to interrogate to what extent the inclusion
of the ILO definition within current national policy can potentially aid or hinder
the efforts of those dealing with the issue of forced labour, those individuals
subjected to it and those who inflict it upon others. By doing so, it
simultaneously works to assess the implications for addressing the issue of
forced labour in Ireland more generally. This dissertation utilises an analysis of
the Irish policy framework and an examination of current literature, alongside
semi-structured interviews with key actors working within the area of forced
labour, to assess the strengths and limitations of the current legislative
framework. It will also endeavour to help identify what other factors need to be
considered when implementing future policy with regards to forced labour in
Ireland.
1.1
Background to the Research
The issue of forced labour is one that has a long and complex history, both
worldwide and within the island of Ireland. From state coercion of forced labour
in the Magdalene institutions until as recently as 1996 and the current
predicament befallen the government around the use of modern day slavery in
foreign diplomatic households, forced labour in Ireland is apparent in many
forms. It involves power over another and runs counter to the underlying
10
principles of democracy, those of freedom and equality. Regardless of who is
enacting the exploitation through forced labour, it is usually the most vulnerable
in society who are affected, such as immigrants, asylum seekers and the
socially or financially destitute (Doyle, 2006; Dwyer, et.al., 2011; ILO, 2014;
Sanghera, 2005; van denAnker, 2004), and from a human rights perspective it
is clear that the issue needs to be dealt with.
The globalization of the world's economy can be seen as a defining moment of
the late twentieth century and alongside this advancement, an associated
increase of labour mobility has occurred in all parts of the world. Whilst there
are many positive aspects to economic globalization, there has also been a
growing recognition of ‘the dark side of globalization and in particular the
exploitation of vulnerable people’ (Allemby. et.al. 2011:51). Issues such as
trafficking and the internationalisation of the sex trade have highlighted these
negatives of a globalised world and received a myriad of media, public and
governmental publicity; however, a wider recognition of the issue of forced
labour has been significantly slower to develop (see Bakirci, 2009). In recent
years there has been a concerted effort by European states to tackle the issue
of trafficking of human beings (THB) and the exploitation of same whilst
implementing legislation and ratifying conventions to commit to their legal
obligations. It is through this increased awareness of the issue of THB and the
subsequent actions to attempt combat it, that the phenomenon of forced labour
and its prevalence within countries such as Ireland has been brought to the
forefront.
In response to the European Directive 2011/36/EU (2011), pressure from
national and international non-governmental organisations (NGOs) and
11
coinciding with the recommendations of the US State Department's 2012 Antitrafficking report, in 2013 Ireland's Criminal Law (Human Trafficking) Bill 2008
was amended to include provision to criminalise instances of forced labour and
exploitation, by defining the phenomenon in Irish government statute. The
revised legislation closely adopted the International Labour Organisations' (ILO)
1930 wording of forced labour, which defines the act as ‘work or service which
is exacted from a person under the menace of any penalty and for which the
person has not offered himself or herself voluntarily’ (S.I.2013/24, Section 1c).
This revision brings Irish legislation into full compliance with EU regulation, and
it is hoped by supporters of the revision that the inclusion of a definition of
forced labour will improve Ireland’s record in prosecuting those involved whilst
improving identification of this mainly hidden crime.
1.2
Research Aims and Research Questions
The overarching aim of this research is to examine the impact and effectiveness
of the current policy framework upon the issue of forced labour in Ireland. In
order to achieve this research aim, the following research questions will be
addressed:
I) What types of cases of forced labour are currently identified within
Ireland, and why these?
2) How effective is the current Irish policy framework for dealing with the
issue of forced labour?
3) What is the potential impact of the insertion of a clear definition of
forced labour in terms of dealing with the issue in Ireland, in respect of:
a) Awareness of the issue of forced labour?
12
b) Identification and prosecution of offences?
c) Victim identification and treatment?
d) Assistance and usefulness for support organisations?
e) Any other issues or outcomes?
4) By legislating for the offence within the Human Trafficking Act, how
does the Irish legislative framework assist or hinder dealing with the
issue of forced labour?
5) In what other ways can forced labour be dealt with in the Irish context,
to better improve the situation with regard to:
a) Forced labour prevention
b) Victim identification and protection
c) Treatment of offenders
1.3
Research Rationale
The assessment of the current policy framework and the potential impact of the
inclusion of forced labour in the Irish legislation can be seen as an endeavour
which is capable of making important contributions both to the existing literature
and to the ongoing policy debates, in a currently under researched area. This
research will attempt to assess the potential usefulness of the current ILO
definition of forced labour and the potential impact of its insertion into Irish
legislation. The research also questions how forced labour is legislated for more
broadly in the Irish policy framework, and assesses the usefulness of legislating
for it within the current Human Trafficking Act. In doing so, it will also contribute
to the development of existing knowledge and theory around the phenomenon,
13
whilst primarily addressing the imbalance which has characterised much of the
research on the issue of forced labour in Ireland, both in current literature and
policy, with regards to both the victims who are almost always portrayed as
female or child migrants forced into sex work, and the responses to this
portrayal.
It is also important that research is undertaken within the Irish context as the
industries which contribute significantly to the Irish economy, those of
'agriculture, construction, or the service industry where there is a high demand
for cheap and exploitable labour', are also those which are proven to be most
susceptible to instances of forced labour globally (Andrees, 2009:89), and
following on from previous annual reports, Ireland has again been identified as
'a destination, source, and transit country for women, men, and children
subjected to sex trafficking and forced labour' in the 2014 US State
Departments Trafficking in Persons (TIP) Report (p.213).
The research is timely as it coincides with the ILO's recent proposals for
improving the actions used to tackle the issue of forced labour whilst also
addressing current and topical societal concerns surrounding exploitation and
trafficking that have been increasing with 'the disappearance of border controls
within the EU, [which is seen to provide] opportunities for less sophisticated,
smaller or mid-level crime groups that would otherwise not so easily operate
across borders' (Smit, 2011:192). It is hoped that this work will lead to an
increased discussion of the topic and stimulate further research in an area,
which until recently, has been largely hidden and ignored in current discourse
and policy. In order to eradicate the issue, we must first fully understand and
have a clear picture of the other aspects of forced labour to those which we are
already commonly aware of. This research aims to assist in this task.
14
1.4
Chapter Overview
The research begins with a short chapter focusing on the terminology used
throughout the rest of the thesis; This has the dual aims of explaining the
differences between the concepts of 'trafficking', 'smuggling', 'slavery' and
'forced labour' as well as providing some key statistics on the numbers and
varieties of forced labour both globally and within the State of Ireland. Whilst
this research focuses predominantly upon the Irish situation, in an ever
increasingly globalised world it is imperative that in order to understand the
phenomenon fully, that international, national and regional factors are all taken
into account. Therefore, chapter three follows on from the global findings and
takes an international approach in exploring the limited literature around the
subject of forced labour whilst analysing perceived differences in definitions,
causes and solutions. The chapter highlights the lack of consensus around the
rhetoric of 'trafficking', 'slavery' and 'exploitation' and how each is applied to the
phenomenon of 'forced labour' and the responses to it. It also illustrates and
discusses the number of different agendas and priorities affecting eradication of
the issue worldwide. Chapter four describes the research methodology adopted
for the study and explains the justification for decisions taken in completing this
research, whilst also highlighting any ethical concerns and problems
encountered. Chapter five follows on from the discussion introduced in the
literature review, illustrating the issue of forced labour within the Irish context
and provides an overview of current and emerging legal provisions, alongside
services and supports currently available. The chapter discusses alternative
ways the issue has been dealt with Internationally and then moves on to
introduce and discuss the potential implementation of a new UN protocol which
has been identified as a means to strengthening current national policies in the
15
fight against forced labour in countries such as Ireland.
Chapter six, offers an analysis of the problem of forced labour in Ireland using
qualitative data obtained from a number of interviews with key stakeholders, by
asking who the victims are, why they come to be in situations of forced labour
and which industries and areas are they found. Using further interview data,
chapter seven examines how the key stakeholders feel about the legislation and
policy framework currently in place, what effect it has on the issue of forced
labour, its victims and the perpetrators and any problems or benefits it offers for
practitioners. The discussion is then expanded upon in chapter eight, by asking
what could be changed or improved upon to deal with the issue of forced labour
more efficiently in the Irish context. The concluding chapter summarises the
data collected to answer the research aim and questions posed in chapter one.
It also offers suggestions and recommendations for policy and further research
in the area of forced labour both in the Irish context and further afield.
16
Chapter Two
Definitions and Statistics
2.1
Definitions of ‘Trafficking’, ‘Smuggling’, ‘Forced Labour’ and
'Slavery'
Definitions are important. They help guide action, assist in obtaining reliable
data on an issue, and ensure people can be held accountable for their actions
(in the case of perpetrators), and their inaction (in the case of States and
governments). As highlighted in the following chapters, the definitions and
distinctions between the concepts of ‘trafficking’, ‘smuggling’ and ‘forced labour’
are often blurred, inconsistent and overlapping. Outlined in chapter five, the
Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially
Women and Children, supplementing the United Nations Convention against
Transnational Organized Crime (2000), which is often referred to as the
Palermo Protocol, is the only international attempt to comprehensively define
trafficking, yet there is still confusion when it comes to practice and policy. The
Protocol can often be open to interpretation as it contains a number of
undefined concepts within it, such as those of ‘coercion’, ‘deception’ and ‘forced
labour’. On the other hand, the Conventions established by the International
Labour Organisation (ILO) do attempt to define the phenomenon of ‘forced
labour’; however establishing if individuals have consented to their situation,
especially in the case of cross-border trafficking and smuggling, can be
problematic.
For the purpose of this research, the Palermo Protocol definitions of both
‘trafficking’ and ‘smuggling’ as adopted by the Council of Europe Convention
with the ILO definition of 'forced labour' will be those used by the author when
referring to each term. Each definition is shown below, alongside a definition of
'slavery', as the term, along with 'Modern (or Contemporary) Slavery', is often
referred to when discussing the phenomenon of forced labour in western
rhetoric.
2.1.1 Trafficking
'(a) ''Trafficking in persons” shall mean the recruitment, transportation,
transfer, harbouring or receipt of persons, by means of the threat or use
of force or other forms of coercion, of abduction, of fraud, of deception, of
the abuse of power or of a position of vulnerability or of the giving or
receiving of payments or benefits to achieve the consent of a person
having control over another person, for the purpose of exploitation.
Exploitation shall include, at a minimum, the exploitation of the
prostitution of others or other forms of sexual exploitation, forced labour
or services, slavery or practices similar to slavery, servitude or the
removal of organs;
(b) The consent of a victim of trafficking in persons to the intended
exploitation set forth in sub-paragraph (a) of this article shall be irrelevant
where any of the means set forth in sub-paragraph (a) have been used'
(UNODC, 2004:42-43).
2.1.2 Smuggling
'“Smuggling of migrants” shall mean the procurement, in order to obtain,
directly or indirectly, a financial or other material benefit, of the illegal
entry of a person into a State Party of which the person is not a national
or a permanent resident' (UNODC, 2004:54-55).
18
By defining 'smuggling' as set out above, it alludes to the voluntary nature of the
consent provided by the person who is being moved (usually across borders).
This differs from 'trafficking' in a number of ways. The voluntary nature of
smuggling is significantly different to submission under threat or coercion as
employed when an instance is identified as trafficking. The relationship between
migrant/refugee and smuggler is deemed to end once their destination is
reached, whereas trafficking continues in a form of relationship based on
coercion, and importantly, in a legal context, while smuggling occurs only across
borders, trafficking can occur both across and within borders.
2.1.3 Forced Labour
According to the 1930 ILO Forced labour Convention (No.29) and adopted by
the European Court of Human Rights (ECHR), forced labour is defined as:
''All work or service which is exacted from any person under the menace
of any penalty and for which the said person has not offered himself
voluntarily'' (Article 2, ILO. C29).
The ILO definition is useful in that it highlights how a range of coercive methods
can be employed over an individual, whether physical, psychological or
emotional, and whilst the term ‘slavery’ is not used within this definition, the
coercive nature of forced labour comes through in this phrasing with ‘the
menace of any penalty’ hinting at the use of force. Whilst many victims are
forced into labour with threat of violence, many more enter voluntarily, only to
discover later that they are unable to leave due to threats surrounding legality of
employees or by psychological and/or physical coercive actions against them
(see Allemby, 2011; Anti-Slavery International, 2006; Balch, 2012; Clarke, 2013;
ILO, 2005a). Modern forms of forced labour are often characterised by
19
'restrictions on freedom of movement, removal of identity documents, and
threats of denouncing to immigration authorities' (ILO, 2005a:9), though it can
take many forms. In order to assist in identification of forced labour the ILO
provides six indicators that point to a situation occurring, as shown in table one.
Table 1: Indicators of Forced Labour
INDICATORS OF FORCED LABOUR
Physical or sexual violence or the threat of such violence.
Restriction of movement of the worker e.g. through confinement or
through preventing contact with the host community.
Debt bondage or bonded labour e.g. rising from the process of
recruitment and transportation.
Withholding wages or refusing to pay the worker at all.
Retention of passports and identity documents.
Threat of denunciation to the authorities.
Source: ILO 2005c: 20–21
It is also important to remember that forced labour involves complex processes
of power relations which can make it difficult to draw a clear line between
exploitation and forced labour, and that working conditions can deteriorate into
situations of forced labour over time (Lewis et.al, 2014:9).
2.1.4 Slavery
Whilst there are many interpretations of what constitutes slavery today, the legal
definition of slavery is found at Article 1(1) of the 1926 Slavery Convention,
which reads:
‘Slavery is the status or condition of a person over whom any or all of the
powers attaching to the right of ownership are exercised’ (Centre for
Human Rights, Geneva 1994).
20
Whilst the 'powers' described could relate back to coercion and violence found
in the definition of forced labour, the main difference for the purpose of this
research, is the 'right of ownership' which implies that an individual in slavery
can be bought and sold by those who use and exploit them.
The above definitions are useful both from a legal stance as well as a
necessary tool in identifying and understanding the subtle differences between
them. However it is also important to understand that trafficking, smuggling and
forced labour are often overlapping and interrelated; as the ILO remind us
'forced labour can sometimes be an indirect outcome of the smuggling process,
rather than as a direct result of abusive or deceptive recruitment in the origin
country' as is usually the case in trafficking (ILO, 2005:47).
2.2
International Statistics
Due to its illegal nature, forced labour is a mainly hidden phenomenon and as
such true and accurate figures are difficult to ascertain (Kangaspunta, 2007;
Laczko, 2007), with international estimates of the extent of forced labour
ranging from 19.5 million to 31.3 million people at any one time (Global Slavery
Index, 2013). Forced labour produces profits of over $150 billion every year
and the vast majority of those caught within forced labour worldwide, 18.7
million (90 per cent), are exploited in the private economy by individuals or
criminal enterprises, with 4.5 million people estimated to be victims of forced
sexual exploitation and 14.2 million victims of forced labour, primarily in
agriculture, construction, domestic work, manufacturing, mining and utilities as
shown below (ILO, 2014).
21
Figure 1: Global estimate by form of forced labour
Source: ILO, 2014:7
Whilst the number of victims of forced labour is highest within the Asia-Pacific
region, the amount of profit per victim is highest in the EU and other developed
economies as shown in Figure 2 below. This clearly highlights 'the demand for
services and the low capital investments and operating costs involved' (ILO,
2014:15), and further illustrates the necessity for research and action in regards
to forced labour within Ireland.
Figure 2 Source: The Economist, May 2014
22
2.3
Ireland's Issue Quantified?
Whilst the ILO estimate the number of forced labour victims in Europe to be
around 880,000 each year, there is no reliable national study to confirm the
actual number of forced labour victims within Ireland. Despite this, the fact that
associated organisations have reported an increase in forced labour practices
towards migrant workers and sex workers indicates possible increased
occurrences within the State. (See Clarke, 2013). However, whilst figures from
NGOs and other bodies highlight a growing concern around the issue of forced
labour, Ireland's record for prosecutions is surprisingly low, with the latest
detection figures provided by the Department of Justice, highlighting a
continuation in this trend. Explanations for this are explored further in later
chapters.
Table 2: Forced labour cases detected in Ireland by An Garda Siochana
*As the Criminal Law (Human Trafficking) Act 2008 came into effect on 7 June 2008, there are no recorded figures of
human trafficking prior to that date. Between 7 June and 31 December 2008, 36 alleged victims of human trafficking
were encountered by An Garda Síochána. No further breakdown of the 2008 figures is available.
Source: Minister for Justice (2014)
23
Chapter Three
An Exploration of the Literature Surrounding the Issue of
Forced Labour and Responses to it
3.0
Introduction
The following literature review seeks to review both the international and Irish
academic and mainstream literature surrounding the issue of forced labour and
the responses to it. In doing so it aims to identify key issues raised as being
either a cause or consequence of the phenomenon whilst also considering how
the issue was understood and acted upon by different audiences and key
actors. As well as current international responses to the issue of forced labour,
the literature is also interrogated to locate alternative perspectives and
responses offered to deal with the increasing instances of this problem.
3.1
Methodological Approach
A systematic review of the literature was undertaken following Slavin's (1986)
'best-evidence synthesis' approach, which includes systematic search
techniques, consistent, clear and well justified criteria, synthesis of both
quantitative and qualitative evidence and attention to substantive and
methodological issues. The search of literature was initially conducted using the
electronic databases Academic Search Complete – EBSCO, SocINDEX™ EBSCO, and JSTOR for electronic journal entries and LexisNexis for
newspaper and media articles. The search terms employed were 'forced
labour', 'forced labor', 'modern slavery', 'contemporary slavery', 'trafficking for
24
forced labour', 'bonded labour' and 'compulsory labour'. The university library
database was also searched under these terms and subsequent publications
were found on shelves near by the identified sources which did not arise
through the database searches. Internet searches were also carried out using
the same terms with further sources identified by following up citations in the
identified literature. The majority of the literature reviewed originated in Europe
and the USA, and the limited amount of work done in the area of forced labour
in Ireland was included.
3.2
Studies of Forced Labour in the Irish Context
Whilst numerous studies have been undertaken around the issue of forced
labour and trafficking for forced labour internationally (usually stemming from
ILO research), studies involving the issue in Ireland are limited. The majority of
published work on the Irish context centres around migrant workers and the
exploitation which they have experienced or to which they are vulnerable (see
Coghlan, 2010; Conroy, 2003; ICTU & MRCI, 2011; Joyce & Quinn, 2014;
MRCI, 2006 and 2014 for example). The fact that the literature focusses upon
the vulnerabilities of this set of individuals is understandable as almost all the
empirical research undertaken in Ireland has been either through or in
collaboration with the Migrants Rights Centre of Ireland (MRCI), or other
organisations whose focus is on the rights of migrants living and working here.
The only other works which were located and explored were in the context of
sex trafficking as a form of exploitation and forced labour, (Pillinger, 2007; Ward
and Wylie, 2012 and 2014), and the context included here also follows an
immigration/migrant exploitation theme.
Further studies have been undertaken in the North of Ireland (Allemby et al.,
25
2011; Jarman, 2014; Northern Ireland Human Rights Commission, 2009) which
highlight the extent of the issue of forced labour there whilst also identifying
cases of forced labour which have used the border between the Republic and
Northern Ireland as a method of evading authorities. These studies showed the
involvement of indigenous Irish nationals in both carrying out the exploitation
and more recently as constituting a large number of those falling into situations
of forced labour due to individual vulnerabilities. As this is not widely recognised
in the Republic of Ireland in either the literature or policy, this was explored
further during interviews with key actors in this study.
3.3
Causes of Forced Labour
A number of personal and structural reasons are provided by authors as an
explanation for the existence of forced labour. However as Lewis and Waite
(2013) remind us, it is important to understand that 'forced labour is not a simple
matter' and that it 'results from a complex set of overlapping factors', all of which
affect a persons vulnerability to fall victim to the phenomenon. While there is a
general agreement in the literature on vulnerability being a key factor in the
supply of workers into forced labour, opinions as to what contributed to their
vulnerability differed across the authors. Poverty and related issues such as
homelessness were the key drivers for some (Bales and Choi-Fitzpatrick, 2012;
Dowling, 2004; Lewis and Waite, 2013; Obakata, 2006; Sanghera, 2005), whilst
for other authors alternative personal explanations emerged such as a lack of
opportunities, education and knowledge of rights (Doyle, 2006; Manokha, 2004;
Ould, 2004), alcohol and/or drug dependencies (LeBaron and Crane, 2013) or a
lack of familial and/or social networks and support (Mantouvalou, 2010).
Sanghera (2005) argues that 'these factors are not in themselves the
26
causes...they merely exacerbate the vulnerability of marginalized and
disadvantaged groups and render them increasingly more susceptible' (p.7). It
is these personal vulnerabilities which can then be exploited due to structural
issues either in the country of origin or destination.
The explanations of forced labour that illustrate structural inadequacies are
numerous and point to issues such as weak and unstable economies (Gulati,
2012; King, 2004), political instability, war and conflict (Gulati, 2012; Sanghera,
2005), structural inequalities within society and gender discrimination
(Sanghera, 2005), a lack of jobs (LeBaron and Crane, 2013) and the increased
need for cheap labour to maximise profits (Dower, 2004). Others blame
globalisation with the increasing movement of people and commodities and the
reduction of governmental control as a result (Bales, Trodd and KentWilliamson, 2011; Batestone, 2007). Whilst the causes are often deemed
central to our understanding of the issue of forced labour, they are rarely
considered in political responses to the issue internationally. This is discussed
further in the chapter in both sections 3.5 and 3.6.
It is evident from the studies that have been carried out that 'Forced labour is
often hidden in unregulated work environments where cheap labour is the norm'
(Batestone, 2007:7) relating to poorly designed or implicated legislative
frameworks and poorly regulated labour sectors. As Anti Slavery International
point out, forced labour is a:
'low-risk – high-profit enterprise' and 'those who commit the crime....
often go unpunished and enjoy their financial gains. Their victims, on the
other hand, very vulnerable people, are frequently abandoned by legal
and social systems into a realm of exploitation and abuse' (2006:3).
27
This claim that 'Governments [are] reluctant or incapable to protect [individuals]
within and across their own borders' (van denAnker, 2012:157), and plays a
significant role in occurrences of forced labour, is a common theme in the
literature and is discussed further in section 3.5.
It is also worth noting a further common argument in the literature, which is that
forced labour is not a modern form of slavery but is simply 'an extension and or
reconfiguration of enduring historical themes' (Quirke, 2012:41) and should be
viewed as such (Brysk, 2012; Choi-Fitzpatrick, 2012). If a continuation of the
slave trade is present, then it would illustrate either a failure on the part of
international governments to have eradicated the issue as was believed, or
points to an ignorance that it has been occurring all along and that we are now
just beginning to see what is happening around us again. Ould believes to an
extent that this is the case and that forced labour should be seen as 'a serious
pattern of both traditional and modern forms of abuse, which the world's richest
societies have tended to ignore, assuming that it cannot still exist either at home
or abroad' (2012:74).
3.4
Discourses of Forced Labour
O'Connell Davidson (2010) highlights the problems with dominant discourses
surrounding forced labour and believes that deconstruction of them 'is an urgent
political task' (p.258). However, in continuation from the national literature, the
majority of the works located from outside of Ireland also place the
phenomenon within the spheres of immigration (Herbert, 2012; van denAnker,
2004), sexual exploitation (Batestone, 2007; Sanghera, 2005) and cross-border
trafficking of mainly women and children into forced labour (King, 2004; Rogers
28
and Swinnerton, 2008). Quirke (2009) is critical of the common discourses and
themes apparent throughout the literature when he states:
'too many researchers have remained content to structure their work
around now well-trodden themes. New lines of enquiry need to be
developed' (p.262)
Brysk is also aware of these common discourses and warns of a:
'disproportionate emphasis on trafficking within migration policy' whilst,
'the individual emphasis and sexual focus.... fails to address the wider
issue.. of all forms of trafficking, labour abuse and exploitative smuggling'
(2012:75).
Brysk however, along with others (Bales and Cornell, 2013; Batestone, 2007;
Scarpa, 2008) consistently uses the terms 'trafficking', 'slavery' and forced
labour' interchangeably throughout without separating or delineating between
the scope of each of the concepts. Despite having internationally agreed
definitions of human trafficking, slavery and forced labour as outlined in chapter
two, the reviewed literature suggests that there are still many overlapping uses
of the terms and numerous interpretations as to what forced labour actually is.
This confusion of definitions was also explored in a review of the literature
available within the UK in a Home Office report, which reflects findings from the
international works reviewed here (Dowling et.al, 2007).
3.5
Discussion of International Responses
Forced labour is seen as a crime and the majority of ILO member states have
ratified either one or both of the forced labour conventions, which are outlined in
the following chapter. Although it is recognised and legislated for globally as a
crime, it is hardly ever prosecuted effectively partly due to difficulties in
29
articulating the various offences, as well as the hidden and often subtle forms of
coercion that constitute forced labour in national laws and regulations (ILO,
2005:8). Laubeova argues:
'The law often wrongly links forced labour as a consequence of human
trafficking but many enter voluntarily and then become victims because
of their illegal status. Also forced labour is not only [an] outcome of
trafficking but also smuggling and this must be constituted in the law'
(2012:49).
The literature suggests that the current understanding of forced labour is
synonymous with trafficking and trafficking discourses often centre around
borders and State control over them (see Herbert, 2012 for example). Karyotis
(2007) argues that this discourse and its related policies are likely to remain
dominant
'not only because of the lack of clarity and willingness of policy makers to
unveil the myths related to migration but also, and perhaps primarily,
because the discourse has been fully integrated and institutionalized in
the European Union and the emerging internal security regime' (2007:13)
Whilst it cannot be argued that this is an important area in dealing with the issue
of forced labour in Ireland, we also need to understand trafficking as an internal
activity as well as one which crosses borders. This is especially evident when
the research conducted by Allemby et. al. (2011) in the North of Ireland found
that the exploitation through forced labour which was identified was not
particularly associated with human trafficking, and Jarman's research (2014)
found that it was affecting indigenous citizens who had not been displaced or
relocated. Some groups have discussed the view that shifting the focus from
trafficking to forced labour would be beneficial in this area whilst also leading to
30
an improvement of victim protection and prosecution of offenders. The
European Expert Group on Trafficking of Human Beings for example reported:
'States should criminalise any exploitation of human beings under forced
labour, slavery or slavery-like conditions, in line with the major human
rights treaties that prohibit the use of forced labour, slavery, servitude etc.
If such policies were followed, then many of the current confusions of the
trafficking definition – whether a case was smuggling or trafficking,
whether a case was trafficking or forced labour, whether the victim had
seemed to consent to elements of the forced labour or slavery like
outcome and whether a victim was perceived as ''innocent'' or ''guilty''
would become redundant' (2004:53).
The report then goes on to clarify the benefits of such an approach being
adopted:
'By policy makers concentrating primarily on the forced labour or slavery
outcome, the Trafficking Protocol can overcome its current definitional
and practical operational difficulties and has the potential of a tool to
more effectively tackle the human rights violation of trafficking in human
beings' (p.53).
Further issues with legislation are that it only tackles the issue after the problem
has occurred and many of the authors (Heinrich, 2010; Hernandez & Rudolph,
2011; Karakus, 2008; UNDOC, 2009) highlight the necessity for a '3P' approach
as put forward by the Economics of Human Trafficking Research Group to
effectively deal with the problem.
'The 3P Anti-trafficking Policy Index evaluates governmental antitrafficking efforts in the three main policy dimensions (3Ps), based on the
31
requirements prescribed by the United Nations Protocol to Prevent,
Suppress and Punish Trafficking in Persons, especially Women and
Children (2000). The three main policy dimensions (3Ps) are:
Prosecution of perpetrators of human trafficking, Prevention of human
trafficking and Protection of the victims of human trafficking' (Cho, 2014).
Whilst legislation and prosecution plays a significant role in dealing with the
issue, until the root causes are resolved, a number of authors believe that the
problem will continue. An overview of some of these suggestions for a multifaceted approach is outlined in the following section.
3.6
Alternative Perspectives in Responding to Forced Labour
There is evidence of strong support for improved victim assistance and
protection throughout the literature. Whilst critical of current methods of dealing
with the issue of forced labour, a number of authors suggest a shift from
prosecution of perpetrators to protection of victims by advocating for a human
rights approach (see Brysk & Choi-Fitzpatrick, 2012; Obakata, 2006; van
denAnker, 2004 for example). It is suggested by the authors that adopting a
human rights framework 'not only allows different actors to pay close attention
to the plight of victims but also promotes a holistic approach...in which due
consideration is given to wider issues such as the causes and consequences'
(Obakata, 2006: 6). Others argue that a human rights approach will go further
and move the issue from 'protection to empowerment' of victims (Brysk & ChoiFitzpatrick, 2012: 9), placing the individual at the centre of any efforts to
address a condition of exploitation. For Choi-Fitzpatrick the effect would be twofold as it would not only 'encourage policies and interventions that empower
oppressed individuals' (2012:22) but would, 'additionally clarify the challenging
32
relationship between an individual's rights as a ''victim'' versus a ''worker'' [as
the] role of the worker is complicated if an individual has chosen the work but
not the conditions' (2012:23).
For Ould, it is not only of benefit to the victims to look at a multi-faceted
approach but also for the State:
'If policy-makers limit themselves to strengthening repressive laws
without embarking on a corresponding set of preventative and protective
measures, then they will be liable to be accused of condoning slavery
and forced labour' (2004:73)
The reviewed literature suggests promotion of a multi-agency approach to deal
with the issue of forced labour. One proposed way to do this is concerned with
the idea of 'Cosmopolitanism' as the preferred method by adopting equality for
all and responsibility by all:
'Cosmopolitanism means states as well as individuals have duties across
borders to assist in making human rights accessible to all at home and
abroad' (van denAnker, 2012:170).
This idea complements the thinking behind many authors' suggestions that the
consumer plays a major part in the continuation of forced labour globally by
purchasing goods and services that have forced labour practices at work in their
supply chains (see Bales & Cornell, 2013 and Manokha, 2004 for full
discussion). Batestone (2007) offers an idealistic (if somewhat impossible)
insight into the relevance of such an approach:
'Grass roots activists track the supply chain of every consumer product
we buy to determine how it is produced. Armed with that data, we could
shape a policy to hold companies accountable that use slave labour in
33
any way' (p.248)
It is understood that the use of coercion and/or deception are often seen as an
indication of whether an exploitative employment practice can be viewed as
forced labour (Craig et.al., 2007:17). However coercion can be subtle and
difficult to identify, often involving 'manipulation, psychological pressure and
threats' to the victim (Skrivankova, 2006:16), which has caused a number of
authors to question how to view and assess the practice effectively. One area
which is often cited as an explanation for the difficulties in identification is the
'continuum of exploitation'. As O'Connell Davidson (2010) explains:
'people's experience of exploitation, abuse, powerlessness and
restriction ranges on a continuum. That means that those seeking to
operationalize the concept.... have to make a judgement about the point
on the spectrum at which 'appropriate' exploitation/force ends and
'inappropriate exploitation/force begins' (p.250).
For Bales et.al. (2011) 'there is a continuum of exploitation around the world and
slavery exists at its extreme end' (p.31).
Throughout the literature, the recurring theme of improved and increased
communication is also seen to be a requirement from all parties who come into
contact with the phenomenon in order to both raise awareness and to support a
more co-ordinated approach to its eradication (Bales et.al., 2011; Brysk & ChoiFitzpatrick, 2012; Obakata, 2006). This was highlighted alongside appropriate
and increased training of those in authority, employment inspectorates and
service providers which was also deemed necessary by many of the sources
explored, as a method for increasing awareness and actively dealing with the
34
problem of forced labour (Bales. et.al., 2011; Bales & Cornell, 2013; Batestone,
2007; Dower, 2004; van denAnker, 2012).
3.7
Conclusion
This literature review has shown that there are very few sources concerning the
issue of forced labour in Ireland. Some areas such as that of issues relating to
migrant workers, are addressed more than others, but there are considerable
gaps in knowledge which hinders both policy and practice in Ireland. A larger
body of work can be found internationally, though further research should be
carried out to see if the findings from these works are relevant to the Irish
situation. The outcomes from the review of the literature need to be treated with
caution, fore-mostly due to the fact that existing literature presents an
incomplete picture of the problem as there is no proven methodology which
identifies all cases of forced labour and no substantial quantitative evidence of
the issue within the state of Ireland, as outlined in the previous chapter. The few
studies that were identified as containing qualitative evidence centred around
small and unrepresentative samples of migrant workers and people working
within the area, and whilst they all contribute to knowledge of the phenomenon,
many gaps are present as they tend to focus upon specific victim profiles and
selective employment areas such as domestic work, agriculture and the sex
industry. As well as the gaps in victim profile and employment sectors, the
studies also concentrate on a narrow perspective of the human rights of victims
which also leads to a lack of investigation on the perpetrators.
Across the literature, there is also some confusion and cross over between the
terms 'trafficking' and 'smuggling' and it can be difficult to distinguish between
trafficking for forced labour and other forms of trafficking as many of the sources
35
do not identify a difference. This is a major issue as a clear consensus in
relation to these definitions impacts not only upon our understanding of the
issue of forced labour, but is also likely to affect how the problem is identified,
measured and the policies adopted to address it. Although the literature sources
examined all relied on small samples, they did tend to result in similar findings
and issues around the phenomenon, indicating the importance of research in
this area. This review has highlighted that a wide range of types of investigation
is necessary to provide a fuller picture of the issue of forced labour in Ireland.
36
Chapter Four
Researching Forced Labour in the Irish Context
4.1
Research Approach and Methodology
The exploratory research was undertaken using a pragmatist paradigm and a
mixed methods approach to answer the research questions.
The mixed method approach was used as a way of integrating both qualitative
and quantitative methods in order to obtain a clearer picture of the issue of
forced labour in Ireland, the responses to it, and the impact these responses
have had on key individuals in the field. Whilst there have been a number of
different approaches to combining qualitative and quantitative data (see
Bryman, 2012), this research adopts the mixed methods approach to ‘confirm
and discover’ (ibid: 647) the answer to the research questions posed. The
research methods employed, included a policy analysis of both the Irish and
other comparative frameworks alongside a number of semi-structured key
stakeholder interviews.
4.2
Policy Analysis
The purpose of the analysis was to access, compile and assess current policy
relevant to dealing with the issue of forced labour in Ireland.
A systemic approach was undertaken to locate and identify current policies from
within Ireland and from international organisations. Legislation was selected and
included in the research based upon the authors own opinion of its applicability
to dealing with the issue, its victims and offenders. Relating the chosen policies
37
back to the international literature and the authors own knowledge in the area,
the policies were then analysed and assessed for usefulness and potential
gaps. The author then reviewed recent developments in UK policy to compare
and contrast against the current Irish policy framework. The findings from the
analysis are reported in chapter five.
4.3
Interview Data Collection
Face to face interviewing was chosen as the primary data collection method as
it provided the opportunity to generate rich data (Bryman, 2012: 470) and also
because the language used by the participants was considered important in
gaining additional insight as to how the problem of forced labour is seen and
framed by different actors. Semi-structured interviews were carried out during
June, July, and August 2014 with representatives from NGOs (MRCI and Nasc),
Trade Unions (ICTU), Employment Rights bodies (NERA) and the Irish
Government (Department of Justice /Anti Human Trafficking Unit (AHTU)).
Interviews took place at a time and location specified by the participant and
details about the research were provided to all interviewees. An interview
schedule was designed with key questions (a copy of which is included in the
Appendix), which were used for reference and as prompts if and when needed
whilst also allowing the interviewer to 'be prepared and appear competent
during the interviews' (Cohen & Crabtree, 2006). Other than the participants
from AHTU and NERA, the interviewees were not provided with the questions
prior to the meeting to prevent answers being too scripted or prepared in
advance. As both AHTU and NERA are State bodies, questions had to be
supplied for approval by them, prior to agreeing to speak about the issue.
Despite this, as policy advancements were occurring in the field of forced labour
38
between the questions being approved and the actual meeting, additional
questions were posed during the interview to which neither interviewee was
provided with details of prior to the discussions. Consent to participate in the
study was obtained prior to the commencement of the interview in all cases
along with permission to audio record the participants' responses. The
interviews were informal and offered a chance for those involved to give their
views and perspectives around a number of different issues relating to forced
labour and how it is dealt with through the Irish policy framework. Each
interview began with a basic introduction about the research, which was then
followed with one or two opening questions, which served to establish a
conducive research environment by evoking an atmosphere of reciprocal trust.
By doing so, information was provided by the participants freely and openly, and
it is hoped that as a result, participants provided full, rich and relevant data in
response to the questions posed throughout the discussions (see Denscombe
2010: 49). The interview data was complemented by desk-based research in
the form of an international literature review and an analysis of the current
legislative and policy frameworks, both within Ireland and further afield.
The research methods were selected as they were most suitable ways to obtain
the responses to the research aim and questions. The empirical research
attempted to ensure depth of coverage with regards to opinions of the
effectiveness of the amendment to the legislation, taking in to account a number
of different perspectives. The time constraints upon the research also favoured
this methodology.
4.4
Data Analysis
Prior to any analysis, all original audio recordings and interview notes from the
39
semi-structured interviews were protected, catalogued and appropriately
indexed with unique serial numbers to ensure easy reference. The researcher
then fully transcribed all participant interviews in order to begin to review the
data collected. Once the interview transcripts were complete a version was
forwarded to any participants that had expressed a wish to review them, prior to
a detailed analysis. Two of the participants checked through the transcripts and
authorised the use of them without any changes being made. Interview
transcripts were then manually coded in order 'to label, separate, compile and
organize' the data (Charmaz,1983: 186). The method of 'open coding' was
deemed most appropriate in analysing the interview transcripts as this allowed
the researcher to continually engage with the data in 'the process of breaking
down, examining, comparing, conceptualizing and categorizing' it until thematic
links back to the original research areas were identified (Strauss and Corbin,
1990). The transcripts were then electronically segmented and organised into
the identified thematic categories, ensuring a copy of the original data remained
intact throughout. These categories were then iteratively analysed and reported
on, in relation to the original research questions set.
4.5
Research Limitations
As anticipated, some methodological difficulties were encountered throughout
the research. The main limitations which were encountered were due in part to
the hidden nature of the issue of forced labour and the fact that both forced
labour and its associated practices such as trafficking are illegal within Ireland,
the lack of knowledge and understanding of the phenomenon within the State,
and also the lack of any reliable or historical quantitative statistical data to assist
in locating the qualitative data obtained in a wider context. Although there is a
40
growing consensus that forced labour is on the increase (Bales, 2000; ILO,
2003; ILO, 2005; ILO, 2012), difficulties arising from categorisations of forced
labour and its associated concepts, such as ‘trafficking’ and 'slavery', as
highlighted throughout the research, proved to limit the identification of some of
the vast amount of manifestations of forced labour which are known to occur
worldwide. As media attention and popular discourse has frequently centred
around sex workers for example, other lesser known forms such as debt
bondage may not have been as easily identified by those who were interviewed,
nor be apparent in statistics obtained. The sensitivity and complexity of the
research topic as well as the constant social and policy change which occurred
throughout the time the research was being undertaken also may have
impacted upon the data obtained.
Difficulties were also encountered when attempting to arrange suitable
interviews within the state as there is only one not-for-profit organisation that
works with victims of forced labour in Ireland. A number of potential interviewees
when contacted for inclusion within the study, instead directed me to speak to
this particular NGO about the topic. The Migrants Rights Centre Ireland (MRCI)
is based in Dublin and is where identified victims in Ireland, (either by other
NGOs or key stakeholders) are referred to. As the organisation's interests
centre around the rights of migrants, it is suggested here that many other
sufferers of forced labour may go untreated. The study attempted to explore this
by interviewing a number of organisations dealing with the rights of EU citizen
migrant workers, primarily of eastern European and Polish citizens as these
have been identified as commonly found in instances of forced labour both in
the North of Ireland and throughout the rest of the UK (see Gang masters
Licensing Authority, 2014 and Jarman, 2014). However the two groups based in
41
Cork who deal with the integration of EU citizen migrant workers who were
approached to discuss the research, were both unwilling to participate in the
study and the area should be developed further at a later date. A further
consideration was that the Irish legislative framework is relatively modern and is
currently undergoing a process of advancement, and as such may require
further time to impact on the issue in the manner that it is hoped. As a direct
result of this, there is also little supporting evidence in the form of official crime
figures, and for this reason it is suggested that a similar study in the future
would be beneficial in assessing any usefulness of the legislation when the
impact on crime figures would be evident. A further and fuller analysis of how
the issue of forced labour could otherwise be legislated for within the Irish policy
framework would also be of interest, but is beyond the scope of this research
due to current accessibility of information and time constraints.
4.6
Ethical Considerations
Consent forms (refer to Appendix B) were provided to all participants, explained
to them and signed by them prior to any involvement in the research. All
participants were advised about the research and also informed how the data
was to be used. Participants were also made aware that they had the right to
refuse to participate or that they could withdraw at any time during or after the
interview.
The rights and interests of all participants and any others directly or indirectly
affected by any aspect of the research were taken into consideration. All
participants were offered a guarantee of anonymity and confidentiality as far as
possible, without affecting the integrity of the research. However all participants
to the study were happy to provide information 'on the record' and were not
42
concerned with the recognition of their input to the study. All participants signed
consent to this effect.
The University College Cork’s codes of ethics relating to social research was
taken into account and considered prior to, and throughout all stages of the
following research and all reasonable precautions were taken throughout, in
order to safeguard myself and anyone involved in the research, either directly or
indirectly, from any potential risks that may occur as part of the research project,
including the potential of physical and psychological dangers as outlined by
Craig et al. (2000:1). I was also aware of the potential emotional involvement
due to the topic of the issue and the exploitation of vulnerable individuals.
This research and all associated activities was conducted in an open, honest
and transparent manner as far as is possible. The research was completed
independently and objectively, and all discoveries have been reported as
faithfully and honestly as can be achieved.
4.7
Reflexivity
The research is undertaken as part of the Masters in Social Policy at University
College Cork and as far as can be ensured, there is no bias or vested interests
affecting the outcome of the research. Other than the interview participants
involved, this research has no links to any groups or individuals involved in the
area of trafficking, employment legislation or any other such affiliations, which
may influence the outcome of the study. My own interest in the area stems
partly from my employment within the agricultural industry and my first hand
knowledge that forced labour can affect vulnerable individuals of any nationality
and not only migrant workers, as is often depicted in current Irish discourses
around the area. As attempting to illustrate this fact with individual cases which I
43
have personally become aware of through my connections in agriculture would
have caused a number of personal issues, I decided to approach researching
the phenomenon from a distance and focused on national legislation and
policies which affect all workers and individuals who may fall subject to
instances of forced labour within the State. Whilst it is accepted that it is
impossible to approach things from a position of complete detachment
(Denscombe, 2010:92), and despite the above factors, this research was
designed, completed and reported in an objective a way as is possible, with
neutrality, impartiality and fairness aspired to in all aspects of the research.
44
Chapter Five
An Examination of Policy and Current Irish Practice
5.0
Introduction
In recent times, the acknowledgement of the growing issue of human trafficking
by the international community has led to the development of a number of
legislative instruments and measures to help tackle the crime as well as
attempting to offer protection and assistance to its victims. However, as the
debate and policies around trafficking have mainly centred around the issue of
trafficking for sexual exploitation, other forms of trafficking such as that of
trafficking for forced labour, have largely been ignored and unrecognised, and
have 'only recently started to be addressed by international and national bodies
and by related policies' (Accem, 2012:13). Whilst improvements in the area of
forced labour have been made, both on an international level and within Irish
policy, there still remain significant gaps. Whilst it is beyond the scope of this
research to provide extensive analysis of all the legal instruments involved in
the trafficking of human beings and its associated practices, this chapter briefly
outlines the main instruments and policies which are used to deal with both the
issue and the victims of forced labour whilst briefly discussing these shortfalls.
5.1
International Standard Setting and the Role of the International
Labour Organisation
The International Labour Organisation (ILO) was established in 1919 in the
aftermath of World War One and as a direct response to and acknowledgement
of the excesses of colonialism and the use of forced labour for economic
45
advancement, drafted the first international convention against the practice. The
Forced Labour Convention (No.39) has been used as the main guiding
framework in international legislation since its adoption in 1930. During the
inter-war period, in 1957 the Abolition of Forced Labour Convention (No.105)
was established to respond to the use of forced labour on political prisoners and
others consigned to labour camps. Whilst these two conventions were
established to directly target abuse by governments and state exploitation of
individuals, more recent manifestations of the issue are often carried out by
private individuals and agents linked to crime organisations (Andrees, 2009;
Bales, 2000; Shelly, 2003).
With a change of focus from state exploitation to abuses within the private
economy, in 1998, the Declaration on Fundamental Principles and Rights at
Work was adopted by the ILO and called on member states to respect and
promote core labour standards alongside the elimination of discrimination in
employment and the eradication of all forms of forced and child labour
(Convention 182:1999). This emphasis on improving employment standards
has been promoted as an effective mechanism in the battle against forced
labour by a number of researchers and professionals as discussed in chapter
three. However harmonisation of standards is deemed difficult and may prevent
cross-border and even inter-EU co-operation in any criminal proceedings being
successful, whilst opening further gaps for the crime to take place without
ramifications (see Coster van Voorhout, 2007 for full legal discussion). Whilst
the ILO Conventions themselves do not specifically criminalise the trafficking
element of forced labour, both ILO Convention no. 97, concerning Migration for
Employment, and Convention no. 143, concerning Migrants in Abusive
Conditions and the Promotion of Equality of Opportunity and Treatment of
46
Migrant Workers, can be applied to deal with issues of exploitation of migrant
workers. Neither of these later conventions have been ratified by Ireland to
date.
In 2001, the ILO's first global report on forced labour, Stopping Forced Labour,
was published highlighting the multitude of different forms the phenomenon
takes today and also the lack of interest in the issue, both from policy makers
and the international community. This led to the establishment of a Special
Action Programme to Combat Forced Labour (SAP-FL) in early 2002 which
focused on increasing knowledge of forced labour in practice, both in
developing and industrialized countries. As a result of research carried out by
the SAP-FL, in 2005 the ILO published its second report which contained
estimates of the numbers of incidents of forced labour on both international and
regional scales and by 2012, when the ILO published further findings, the global
estimate had increased from 12.3 million to 20.9 million people held in forced
labour at any one time. This, alongside its 2014 report into the monetary value
of the issue, Profits and Poverty: The economics of forced labour, estimating
worldwide profits at US$150.2 billion, highlighted the extent of the problem and
has resulted in people taking notice of the phenomenon and calling for action
(ILO, 2014).
In June 2014, members of the ILO voted to adopt the Protocol of 2014 to the
Forced Labour Convention,1930 which updates the 1930 treaty to better
address contemporary forms of forced labour including those against migrant
workers and within the private sector. The prevention measures include creation
of national action plans, expansion of labour laws to protect those sectors most
at risk of exploitation as well as an increase in labour inspection services and
47
protection from exploitative recruitment practices. Governments are also
required to ensure businesses prevent and respond to forced labour within their
operations. Article 4 of the new Protocol also assists victims of forced labour by
obligating governments to provide them with justice and remedies regardless of
their nationality or legal status, and ensuring governments have discretion not to
prosecute an individual for illegal activities that have been undertaken as a
direct result of forced labour. Representatives from the Irish government and
Trade Union bodies were present at the Conference and opted into the protocol.
However at the time of the study, it is yet to be agreed if Ireland will ratify the
Protocol and if so, how it will fit into the current policy framework. A number of
delegates were interviewed as part of this research to ascertain if and how the
Protocol would potentially effect the current situation of forced labour in Ireland.
5.2
International and European Legislation
Whilst the ILO conventions outlined above have been useful in setting an
international standard on how to deal with the issue of forced labour, each
convention needs to be ratified by individual states before coming into effect,
and even then, there are few powers to enforce the convention alone unless it
has been inserted into national legislation. The above conventions however,
have been influential in setting standards and definitions in other international
legislation such as those established by the United Nations (UN), the European
Court of Human Rights (ECHR) and the European Union (EU), all of which are
enforceable by law and are detailed below.
5.2.1 Key International Instruments
The Protocol to Prevent, Suppress and Punish Trafficking in Persons,
48
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organised Crime (Palermo Protocol)
(2003) Established as a response to the threat posed by international organised
crime the protocol criminalised all trafficking in human beings whilst also
providing the first international definition of the activity (see chapter two). In line
with the definition outlined, trafficking in persons consists of three elements: the
act, the means and the purpose. Whilst the protocol places an emphasis on
exploitation to include all those exploited through ‘forced labour or services,
slavery or practices similar to slavery’ (Art. 3a), and states that all countries
have an obligation to respect, promote and realise the principle of the
elimination of forced or compulsory labour in all forms (Art. 9), it does not
provide a definition of forced labour. The protocol is beneficial to victims of
forced labour and trafficking as it obliges parties to 'assist and protect victims'
(Art. 6) whilst also stating that repatriation of victims may not be used if
individuals are at risk if returned to country of origin. States are also obliged to
promote co-operation and exchange information (Art. 10) to help combat forced
labour and international trafficking of human beings.
The Universal Declaration of Human Rights (1948) Art. 4 states that ‘No-one
shall be held in slavery or servitude’ and is often used as the main legal
framework in cases of forced labour and severe exploitation.
Supplementary Convention on the Abolition of Slavery, the Slave trade
and the Institutions and practices similar to Slavery (1956) supplemented
the 1926 Convention and was implemented to intensify national and
international efforts.
Convention of the Protection of the Rights of all Migrant Workers and
49
their Families (1990) was developed to prevent forced labour and servitude of
migrant workers; however Ireland has not ratified this convention.
5.2.2 EU Instruments
Whilst the EU can be seen to face many unique and complex difficulties due to
its allowance of the free movement of workers and citizens, and its lack of
harmonisation surrounding the criminalisation of forced labour such as the
variety of both penalties and sentences for perpetrators, it is also in a unique
position to deal with the issue as it 'possesses unparalleled tools for the
effective combat of human trafficking for labour exploitation, when harmonised'
(Coster van Voorhout, 2207:47). Some of these are outlined below.
European Convention on Human Rights (1950) – As per the UN 1948
Convention, Article 4 prohibits slavery, servitude and the requirements to
perform forced or compulsory labour and is often seen as the basis of European
arguments against forced labour.
Charter of Fundamental Rights (2000) Art. 5 – Prohibits forced labour and
slavery whilst separating servitude and slavery from the action of forced labour,
and both from trafficking. This could be used in Ireland as a basis to change the
dominant discourses from that of trafficking migrants for sexual exploitation to
one solely based upon labour exploitation.
Council of European Convention on Action against Trafficking in Human
Beings (2006) – Whilst primarily based on combating the issue of THB, the
convention gives provision for compensation of victims by requiring States to
provide a range of services such as accommodation, psychological and material
assistance, emergency medical treatment, translation and interpretation
services, legal rights and representation, to any person recruited or transported
50
by means of coercion or deception for the purpose of exploitation. Whilst this
has been welcomed by many stakeholders, Coghlan and Wylie (2011) question
the wording of the Act and state that ‘it is likely that many vulnerable and
exploited workers will be excluded from state protection and liable for
deportation on the grounds that they were not exploited, deceived or coerced
enough’ (p:1521).
EU Directive 2009/52/EC (2009) deals primarily with penalising employers of
undocumented workers and Art. 6 gives ‘illegally employed’ third country
nationals the right to claim for outstanding wages and back pay. However,
Ireland has opted out of this directive and as such needs to ensure an
alternative legislative provision to provide all workers with a way to redress
employers for back pay owed.
EU Directive 2011/36/EU (2011) Ireland has opted in to this council directive
which sets out minimum penalties for those who conduct exploitation and
provides protection for victims which is not conditional on assisting in the
prosecution of their abusers. However this directive offers no protection for
employment exploitation issues such as excessive working hours and wage
issues and as such some EU countries have opted out.
5.3
Irish Legislation and Policy
Ireland has created a number of action plans and committees to help remove
the issue of forced labour from the State. In 2008 in response to the Palermo
Protocol and its research in Europe, Ireland established an Anti-Trafficking Unit,
with a separate department which deals with the issue of labour exploitation and
provides training to a range of organisations and government bodies such as
51
NERA and the HSE (Health and Safety Executive). In addition, several pieces of
domestic legislation have been implemented to deal with aspects of forced
labour in Ireland.
5.3.1 Background to the Current Irish Legislation
Certain elements of a forced labour situation such as retention of a worker's
passport, identity documents or qualification papers by an employer are
criminalised under The Employment Permits Act 2006 (Section 23). The Act
also contains provisions to prevent employers from deducting money from an
employee's wages for recruitment or travelling expenses or any other monies
relating to obtaining a job in Ireland.
After significant lobbying and pressure from NGOs such as MRCI and the IOM,
The Criminal Law (Human Trafficking) Act (2008) was enshrined in Irish law
and identifies the issue of forced labour as a crime within the state and
therefore enables identified victims of forced labour to be treated as victims of
crime and for perpetrators to be prosecuted. In 2013, The Criminal Law
(Human Trafficking) (Amendment) Act 2013 was introduced to implement the
European Union Directive 2011/36/EU on the issue of preventing and
combating trafficking in human beings (THB), which adopts an integrated,
human rights approach to the issue alongside a commitment by states to enact
a more rigorous prevention, prosecution and protection of the rights of victims.
The Act replaced and expanded upon the definition of exploitation in the 2008
Act, by incorporating the International Labour Organisations definition of forced
labour, that 'work or service which is exacted from a person under the menace
of any penalty and for which the person has not offered himself or herself
voluntarily'. Whilst the amendment was welcomed as an improvement on the
existing Irish legislation, as outlined in the following section, many argue that it
52
did not go far enough.
5.4
Critical Analysis of The Criminal Justice (Human Trafficking) Act
2008 and (Amendment) Act 2013
The 2013 Amendment Act has been criticised for not addressing other aspects
of the European Directive, in particular to identify trafficking victims at an early
stage and to provide them with other types of assistance, support and
protection (Council of Europe, 2013; Joyce & Quinn, 2014; MRCI, 2006).
However, there is a commitment by the Irish government to introduce protection
measures for victims of trafficking in the forthcoming Immigration, Residence
and Protection Bill (IRP), though no time-frame for its introduction has been
provided. This would further frame the issue of forced labour and trafficking as
an immigration problem. The lack of trafficking prosecutions within the State has
also been highlighted (Council of Europe, 2013; U.S State Department, 2013
and 2014), and as such the legislation remains untested. Among the assistance
and support measures which must be provided under the Directive are
appropriate and safe accommodation, material assistance, medical treatment
and psychological assistance, legal counselling and information (in a language
the victim understands). Serious concerns have also been voiced over whether
the system of accommodating victims of trafficking in hostels (under the Irish
asylum system of 'Direct Provision'), meets the requirements of 'appropriate and
safe accommodation' or the gender specific perspective required under the
Directive (Barnardos, 2007; Coghlan, 2010; IOM, 2010).
The continued criminalisation of victims of forced labour is also a major issue for
individuals working in the area, especially with regards to undocumented
workers or those forced to be involved in criminal activities. However it is
53
necessary to note that the Anti-Human Trafficking Unit (AHTU) contained within
the Department of Justice have committed to the creation of a second National
Action Plan to deal with the issue of human trafficking in which the expanded
definition of forced labour will be incorporated to encompass new and emerging
manifestations of the phenomenon, which would also deal with the victims of
forced labour for criminal gain.
5.5
Analysis of other European Initiatives – The UK Modern Slavery Bill
In contrast to Ireland, the UK did not implement any criminal law specific to
forced labour following the EU Directive discussed above and currently
investigates and prosecutes cases under a combination of migration and
employment laws. However, on 10th June, 2014 the UK published its Modern
Slavery Bill, which has provision to create an anti-slavery commissioner to
oversee the issue of modern slavery in all its forms in the UK and provides law
enforcement with stronger tools to deal with the issue, closing gaps in policy
and ensuring perpetrators receive suitable and severe punishments for the
crime. The bill also introduces a new reparation order to encourage the courts
to compensate victims and introduces a defence for victims who are compelled
to commit a criminal offence through forced labour and trafficking. At the time of
this study the Bill is still undergoing scrutiny in the British Parliament after a joint
select committee criticised it for failing to do enough to protect victims of forced
labour and other forms of modern slavery. The Bill coincides with a national
campaign to 'acknowledge and confront' the existence of modern slavery and
forced labour in the UK. As well as a television, internet and newspaper
advertising campaign with the tag line 'Slavery is closer than you think', a
website also enables whistle-blowers, members of the public who suspect
54
cases of forced labour, and victims themselves, to report the crime and obtain
further help and information. A free-phone national helpline has also been
established to offer advice and assistance in an attempt to 'bring this hidden
crime out into the open' and challenge the public 'to report it wherever we
suspect it' (Anderson, 2014).
5.6
Conclusion
This chapter briefly outlines both existing and potential legal and policy tools
that can assist in dealing with the issue of forced labour in Ireland whilst
providing an overview of some issues that are apparent in current legislation.
The chapter provides a synopsis of current developments in the UK which could
be reviewed prior to the publication of the Department of Justice's second
National Action Plan to deal with all aspects of the crime in Ireland.
55
Chapter Six
An Analysis of Forced labour in the Irish Context
6.1
Introduction
This chapter draws together the findings from the semi-structured interviews
and the exploration of the literature to illustrate how forced labour is manifesting
itself in Ireland today, identifying possible causes and exploring the perception
and understanding of it, in order to provide a fuller picture of the phenomenon.
In doing so, this chapter will provide an answer to the first research question
'What types of forced labour are currently identified within Ireland, and why
these?' whilst also providing some context for the overall research aim and
remaining research questions set in chapter one.
6.2
Identified Cases of Forced Labour in Ireland
Supporting the findings from the literature regarding the issue of forced labour in
other countries, instances in Ireland that were identified by the key stakeholders
interviewed were primarily in employment sectors that were either poorly
regulated, or relied heavily upon transient, seasonal or casual labour. The
restaurant trade, catering and other ethnic food businesses, were key areas
identified by NGOs in Cork. MRCI in Dublin had encountered no recent cases
referred to them in these areas, though it was acknowledged during the
interview that:
'when I say we haven’t had people referred to us in the hotel and
restaurant and catering industry in the situation of forced labour recently,
56
it doesn’t mean that they're not there. Particularly knowing that it's an
industry that is pretty problematic where labour exploitation is quite high'
(MRCI interviewee).
Forced labour within the agriculture and livestock areas, which both play a
significant part in the Irish economy, was also highlighted by the participants of
the study. Agriculture is well known throughout the world as a sector with a high
volume of forced labour instances (see Andrees & Belser, 2009; Bales, 2000;
ILO, 2003) and Ireland is not an exception to this. Whilst the mushroom industry
has been researched previously (Allemby et.al., 2011; Kearns et.al., 2008;
MRCI, 2006), and subsequent measures were put in place to manage the
exploitation that was occurring in the sector, NGOs are aware of a 'deterioration
of conditions' and have heard of a number of instances where people are once
again being exploited in this area (MRCI interviewee). Whilst acknowledging
that the issue again 'merits more work', the interviewee from MRCI stated that
as an NGO, they do not have the capacity to travel or do the outreach work
necessary to deal with the potential instances of forced labour which the
industry may return to. Individuals involved in the horse breeding industry were
also identified as being severely exploited, with 'their love of horses and limited
education' being provided as an explanation as to how they are 'so easily
manipulated and exploited' (ICTU interviewee). All the interviewees relayed that
construction work was another area where employees in Ireland are likely to be
susceptible, following from the exploitation the industry is known to inflict
worldwide (Bales & Cornell, 2013; ILO, 2003). This sector will need to be
monitored and reviewed if the government does invest in up-coming national
building projects as promised.
A 'continuing trend in domestic servitude' supports MRCI's claim that their
57
largest number of cases have 'always been in domestic work', though recently
they have been involved in a number of instances of forced labour for cannabis
cultivation, highlighting new manifestations of trafficking for forced labour which
are being identified. Further cases of forced labour in and around criminal
activities were also reported by a number of the interviewees, such as forced
begging and in areas of sexual exploitation other than prostitution, such as door
men and brothel regulators which all pose new issues for the Irish policy
framework and its enforcers. This conflict between defining the labourer as a
victim or an offender is discussed further in the following chapter.
A number of interviewees initiated discussions around another area which
requires a unique handling of the problem of forced labour; that which centres
around the amount of forced labour occurring either within diplomatic
households in Dublin, or involving those on diplomatic missions. As diplomats
are covered by the Geneva Convention, employment inspectorates and other
enforcement bodies are unable to act on any forced labour crime that may be
committed. However, when discussing the issue with representatives from both
the Department of Justice and the National Employments Rights Authority of
Ireland (NERA), it was relayed that the Department of Foreign Affairs are in the
process of implementing a voluntary compliance system which will then be
monitored by NERA, to improve compliance with Irish law and help to protect
workers in this area. However, this sector is one which will need to continue to
be monitored as the voluntary nature of these proposed measures, still poses
questions as to how effective a system such as this is likely to be.
6.3
Manifestations of Forced Labour in Ireland
Cases of forced labour which have been identified in the Irish context are often
58
discovered secondary to another issue such as a problem with a migrant's
immigration status. According to the research participants, it is at the point when
an individual approaches an organisation for help in securing their legal status
that other issues begin to come to light, which define their circumstances of that
of forced labour. Of the six indicators which the ILO provide in order to assist in
the identification of forced labour (see chapter two), all were described during
the interviews with the key stakeholders, although the individuals that were
identified by the organisations interviewed did not identify themselves as
suffering from forced labour. NGO employees interviewed highlighted issues
uniquely linked to the situation of immigrants and undocumented workers, such
as debt bondage due to either being smuggled or trafficked into Ireland, failure
to pay the amount disclosed on an employment permit, threats of deportation
and/or removal of immigration status and documentation being retained by
employers at a place of work. Interviewees also reported that restricting the
integration of victims with other members of the community was also apparent,
often to ensure that the workers remained in a vulnerable position. Other
indicators of forced labour were also identified by the NGOs as well as the
representative from the Irish Congress of Trade Unions in cases which they had
been made aware of, or had worked with directly. These included a failure to
pay the minimum wage or not being paid for the hours worked, threats towards
an individual's family or to authorities such as the Department of Social
Protection when an individual is also claiming welfare payments. Not all
interviewees automatically recognised that these methods could be used
against both native and migrant workers within the State highlighting a lack of
conscious awareness of the potential of forced labour indicators being used
effectively against the native work force. Drawing from evidence of identified
59
cases in both the UK and Northern Ireland (Allemby et.al., 2011; Anti-Slavery
International, 2006; Clark, 2013; Jarman, 2014), it can be hypothesised that
there is a possibility of forced labour occurrences within the State and that these
methods are being inflicted upon Irish workers within Ireland.
It was believed by the research participants that all the above identified features
of forced labour were inflicted purposely in order to retain individuals in an
exploitative position. However a lack of awareness by employers of what would
or would not constitute forced labour was reported during one of the interviews.
The interviewee from ICTU strongly believes that employers are not given
enough information and may be unaware that what they see as an
entrepreneurial and 'go-getting' attitude could easily and often unintentionally
cross over 'into practices which fall under forced or compulsory labour'. This is
an important angle, which is often excluded in contemporary discussions
surrounding forced labour, and as Allemby et.al. point out 'for there to be
workplace exploitation there needs to be an employer who is willing to take
advantage of another person's vulnerability' (p17).
6.4
Who are the Victims?
As a number of the interviewees deal primarily with migrant workers and their
rights, the majority of the vulnerabilities of the individuals that were identified in
situations of forced labour in Ireland were specific to this group of people.
Most of the victims that had been referred or had come into the scope of the
NGOs through another means were vulnerable due to an irregular or precarious
migration status, often due to the individuals overstaying a legal employment or
visitor's permit; in these cases workers would often tolerate their conditions until
their immigration status was updated (Nasc interview). Until then workers are
60
often unable to access rights and would only feel comfortable talking to
authorities and pursuing a case against their employer once their residency
status is secure. According to previous research, individuals who are legally in
the country on an employment permit are also often vulnerable due to the
conditions attached (see Anderson & Rogaly, 2009; Andrees, 2009; Cohen,
2006 and MRCI, 2012 for full discussion).
Vulnerabilities that apply to all workers were also identified during the interviews
and mirror some of the findings from earlier chapters. Individuals who were
reliant upon their employer for more than just a job, such as accommodation are
seen as particularly susceptible to forced labour in Ireland, due to a lack of
regulation and inspections of domestic settings and the isolation of the worker
within this setting. Other personal reasons for potentially arriving in a situation of
severe exploitation or forced labour that were given by the interviewees include,
homelessness, desperation for a job, little or no education, a lack of
opportunities, little or no familial or community networks, and a lack of a
language of rights being afforded to them. A combination of any of the above
reasons for someone falling victim to forced labour, usually leaves them feeling
dis-empowered to exit the situation and feeling that they have no other choice
than to 'put up with things', often in an attempt to not become a 'burden on their
families and loved ones' (ICTU interviewee).
6.5
Identifying Forced Labour in Ireland
Instances of forced labour are rarely identified by the individual subjected to it,
and a lack of funding and resources to enable outreach work is seen as one of
the main factors in prevention of further cases being identified by NGOs.
Another reason for lack of self-identification is that often, individuals caught up
61
in instances of forced labour are unaware of their own circumstance and may
'never of even heard of forced labour or trafficking' (MRCI interviewee), nor
understands what it entails. Often individuals identify merely as being hard done
by, exploited or threatened and not as caught in a situation of forced labour.
This is confirmed by Scanlon's research that found:
'many possible victims of trafficking of both sexual and labour exploitation
do not see themselves as victims and are unwilling to be identified as
such' (2007:9).
The interviewee from MRCI echoed these findings by reiterating several times
during the interview that identification is a hard process which needs to be
carried out by individuals who have expertise in the area.
'The reason why MRCI and law enforcement agencies are experts is for
them to identify the victims rather than having the victims do the job for
them' (MRCI interviewee).
According to the US State Department, 'The best approaches to victim
identification are those that involve government partnerships with communities,
non-governmental organizations (NGOs), and international organizations'
(2014:7), and all the other participants in the study welcomed a wider public
awareness and the ability for individuals to identify a victim of forced labour.
Other than victim complaints, the interviewee from AHTU believes that
becoming aware of a victim of forced labour within a private household is
currently 'down to chance', and discussed a case in the UK where a neighbour
had noticed the signs of forced labour and alerted authorities.
This further highlights the necessity for public to be aware and able to recognise
the signs of forced labour and to be vigilant. On the other hand, public
62
perception may be a further obstacle in the identification of victims of forced
labour. When asked about how they believe the general public understand
forced labour, all interviewees stated that there was not enough awareness on
behalf of the general public as to either the extent of the problem, nor how it
manifests in Ireland. interviewees believed that the Irish public remain detached
from the situation and view it as something that 'happens in Pakistan or China'
(ICTU interviewee) and are ignorant to the likelihood that it could potentially be
happening around them or to people who they could come into contact with. It
was believed that the general population were unaware of the subtle forms
forced labour can take and 'don't see how withholding of wages or bad working
conditions could be seen down the line as coming under the definition of forced
labour' (ICTU interviewee). It was stated that any understanding of the issue
revolved around ideas of immigration and 'automatic assumptions around
prostitution' with less awareness or sympathy for other forms of forced labour,
possibly because 'people do not understand the dynamics behind it, or how
victims can remain vulnerable' for a significant amount of time after (MRCI
interview). It was also argued that framing it within immigration discourse makes
'it easier for the public to comprehend' (ICTU interviewee). Competing views of
what constitutes trafficking were also put forward as explanations for the
public's lack of awareness and how 'a lot of people tend not to see internal
trafficking as trafficking, as there's no crossing of borders'. This in itself could
help to explain why we do not 'view what happens to Irish nationals as forced
labour' but instead choose to see it 'as poor working conditions, not fair,
employer non-compliance, black market economic activities' (Nasc interviewee).
As the interviewee from the ICTU states 'we should be more open to the idea of
it happening [to Irish nationals] than we are' and that 'as a nation we need to be
63
more aware of the potential of it happening to anyone and in other ways' than
those which we are currently made aware of.
A further obstacle in the identification of forced labour is its link with
transnational organised crime. Whilst there is a common public misconception
that all forced labour is inflicted upon individuals by large organised gangs, the
representative from the Irish Congress of Trade Unions acknowledged that
'given the right circumstances, that any firm could end up doing this, or
any other individual could do it' (ICTU interviewee).
All interviewees acknowledged that there were many more cases of forced
labour which are left unidentified and untreated, and that the issue of forced
labour remains a 'hidden crime' in Ireland.
6.6
Conclusion
The above findings highlight similarities between employment sectors
susceptible to forced labour internationally and within the island of Ireland.
Whilst evidence has been found that forced labour exists within these areas
within the State, it is necessary to consider that this may in part be due to the
fact that at present, resources are concentrated upon these areas alone.
With regard to explanations surrounding the causes of forced labour in Ireland,
in parallel to the international literature reviewed in chapter three, there are
many suggestions offered by the study participants. Whilst a multitude of
personal vulnerabilities were discussed, the research also illustrates a number
of structural reasons that can be attributed to assisting in the creation and the
retention of conditions tolerant to such exploitative practices such as a lack of
64
employment inspections and the current links between immigration status and
the work permit system. The chapter has also highlighted the necessity of public
awareness of the issue and the importance of accurate portrayals of both
victims and perpetrators, which needs to be remedied in order to effectively
tackle the issue in Ireland.
65
Chapter Seven
Discussing the Irish Policy Framework
7.1
Introduction
Using the data from the interviews conducted with the practitioners in the field of
forced labour, the following chapter reports their thoughts and feelings on how
the current legislative and policy framework has an effect upon their work in the
area. The chapter discusses the impact of the legislation which is currently in
place (The Human Trafficking (Amendment) Act 2013), and the effect his has on
dealing with forced labour in a number of different areas. As trafficking policy is
usually assessed on the effectiveness of the '3 P's', Prevention, Protection and
Prosecution (Cho, 2014), it is these three areas that are explicitly analysed in
relation to the legislation in dealing with the issue of forced labour within the
State. In doing so, the discussion below highlights findings relevant to the
original research areas highlighted in chapter one, with regard to the
effectiveness of the policy and the issues that have arisen as a result of its
current application.
7.2
The Effectiveness of Irish Policy
With regard to the Irish legislative framework, Mick Quinn, Head of the AntiHuman Trafficking Unit (AHTU) in the Department for Justice, Equality and Law
Reform (DJELR) defended the current legislation by highlighting its main
strength, in that ‘it criminalises trafficking for labour exploitation and sexual
exploitation equally, in that they both have the same penalties’. Further to that
66
the current legislation, in theory, does not require movement, whether crossborder or within borders, which makes the legalities, on paper equally
applicable to Irish, EU and third country nationals. However, he also recognised
that there is a wide variation on treatment of victims, the services they are
entitled to and their access to them under the current legislative framework
(AHTU interview). The data from all the interviews conducted in relation to these
points is discussed in the sections below.
7.2.1 Prevention of Forced Labour
In order to prevent and remedy the issue of forced labour, it must first be
understood. As discussed in the previous chapters the perception of what
constitutes a forced labour offence is varied and not often acknowledged.
Common discourses surrounding victims, employment sectors and offenders
are evident in both the literature, media and policies dealing with the issue
(Gulati, 2012), which inevitably affects the public and professional perception of
the issue and was evident even between the key actors in the area, in a number
of the interviews conducted for the study. During the interview with AHTU and
NERA for example, they offered the opinion that that public perception of forced
labour as a crime that can and does affect anyone is not there.
‘There’s that level of completely unknowing, and there's the majority that
would think that prostitution and trafficking are the two things…the
trafficking for forced labour is not generally understood….Even within
professionals, do people know what they are seeing?’ (AHTU
interviewee).
The interviewee from NERA also highlighted how from an employment
inspection point of view, whilst inspectorates are very aware of forced labour in
67
migrant workers, he was not convinced that the issue of forced labour ‘would
have seeped into their consciousness in terms of Irish workers or European
workers…I'm not sure if they would make the mental leap’ (NERA interviewee).
As identification of victims often relies on workplace inspections, solely
conducted within the Irish State by this department, this fact is an area of
significant concern.
During the interviews, it was not just the public and professional identification of
victims that raised questions. Identification by authorities and law enforcement
agents was seen as a major issue by NGOs which in turn can have a huge
bearing on the protection and services offered to victims, as is discussed below.
The NGO personnel interviewed all held a belief that the government and its
agents not only had a lack of understanding surrounding the issue, but also a
lack of belief that the issue was occurring in Ireland. There was a belief that
there was not an 'appetite for prevention' (ICTU interviewee) and a lack of will
on behalf of the State to view forced labour in the same way as the NGOs
dealing with the issue on the ground (MRCI interviewee) especially surrounding
'acknowledging the subtleties of coercion' that can be present (ICTU
interviewee). Nasc also believed that the State were 'not willing to take a wide
interpretation of the definition' of forced labour, which further hindered efforts to
deal with the issue at government level. MRCI viewed the narrow perspective
taken by the State as 'an easy way out'.
An area which needs to be analysed and researched further, is in light of the
current phenomenon of forced labour manifesting itself in the form of new
criminal activities such as those discussed in chapter six. Criminalisation of
victims was seen as a significant issue at present and both ICTU and the NGOs
68
interviewed commented on the risk of criminalisation to migrants coming
forward to authorities to report exploitation and forced labour occurring with the
fear that they would be viewed as 'undocumented migrant, illegal migrant,
rather than a victim' (Nasc interviewee). This means that as well as feeling
unable to report forced labour, migrants are effectively unable to access rights
afforded to victims unless they are seen as such.
Both Government and non-state actors who were spoken to during the study
identified a training issue with the Gardai as a barrier to dealing with cases in
Ireland and acknowledged that more had to be done in improving this area as
'identification by the authorities is key to the eradication of forced labour' in
Ireland (Nasc interviewee). The interview with the NGOs highlighted a number
of difficulties encountered by migrant victims of forced labour whom, they have
convinced to go forward to the Gardai and report cases. These included a lack
of empathy of their situation, a lack of understanding by authorities surrounding
the notion of consent and coercion and individuals being criminalised for their
situation. Whilst it is acknowledged that identification is problematic, it is
essential that victims do get identified properly as being subjected to forced
labour as it is only then that supports are triggered. Whilst all parties concurred
that identification of victims is problematic, MRCI argued that whilst historically
law enforcement agencies have argued that the difficulty around identification
for them was a lack of physical force, they believe that:
'Lack of identification doesn't, it never did, come from a lack of clarity. It
came from a lack of will. Willingness to identify victims. That hasn't
changed' (MRCI Interviewee).
It was put to the Department of Justice that the findings from interviews
conducted during this study showed a significant distrust in the Gardai's
69
responsibility with regards to identifying victims of forced labour. AHTU
acknowledged that more has to be done in this regard and that they were
hoping to conduct a training day focusing on recognising trafficking for forced
labour and forced labour for criminal activities. The training day would be
specifically aimed at all the Superintendents within the country as they were
identified as ‘a key driver’ in how an allegation of forced labour is dealt with.
Whilst the Justice Department recognised that the subtleties of coercion may
not be recognised or accepted as threats by the Gardai at referral stage, they
believe that the main reason why allegations of forced labour are not currently
being prosecuted is the high threshold with regards to proof of a crime taking
place and that this is not always understood by the NGOs. They also
acknowledged the difficulties of recognising cases of forced labour by stating
that cases ‘are harder to see', and offer an explanation as to why this may be
the case:
'There is less of a natural acceptance that this could be trafficking than if
you’re in a brothel and find somebody chained to the bed’ or ‘if you go
into a factory or a restaurant and most people are running away from
you, how do you know if they are running because they are illegal or
irregular or because they are under threat?’ (AHTU Interviewee).
As discussed by Bales & Cornell:
'One of the most important areas needing resources is the training of
police....Governments need to make sure their police forces understand
slavery and trafficking and are equipped to handle such cases'
(2013:103).
This is all the more important in countries such as Ireland as the Gardai are the
70
only people who are authorised to bring a criminal prosecution through forced
labour, due to the seriousness of the crime and the maximum penalty attached
to it. However one participant noted that the 'guards do not see themselves as
the champion of the victim....they see themselves as being a police force
against everybody' (ICTU interviewee) and if the Gardai are failing to identify
the issue or are unable to build a case strong enough to prosecute then the
issue is never going to be dealt with effectively in Ireland.
MRCI believe that the main cause of forced labour in Ireland results from the
'lack of enforcement of employment laws' coupled with 'little or no recognition of
certain types of employment as work', which provides a lack of regulation and/or
legalisation in these types of work. This is particularly relevant to areas such as
domestic work in which MRCI have done a significant amount of campaigning in
order to try to establish a legal challenge for migrants caught up in this
employment sector. Further to these the isolation of workers was also noted by
all participants as playing a major factor in cases of forced labour within the
State, which mirrors findings internationally as an area where forced labour
thrives (Andrees and Belser, 2009; Balch, 2012; Clarke, 2012; King, 2004, SAPFL, 2012).
Discussing the issue of the current policy framework being used as a deterrent
to prevent offences of forced labour from occurring in the State, all the
interviewees from the NGOs and ICTU agreed that in their opinions, current
legislation and policies were definitely not sufficient as a deterrent to prevent
individuals or organised groups from inflicting forced labour upon another. The
interviewee from ICTU believes that as a nation, 'we have created the
71
conditions that help forced labour grow when deterrents and consequences are
minimal' (ICTU interviewee). Interview participants from the NGOs believed that
'Ireland does not fare well compared to other countries' with regards to
deterrents (MRCI interviewee) and that the legislation as it stands is not
perceived to be stringent enough to deter perpetrators as it allows perpetrators
to 'operate forced labour freely' (Nasc interviewee). This aspect of the
legislation was discussed further and it was stated by one participant that:
'There are no deterrents at all for traffickers to traffick people...Instead of
the government going after trafficking gangs they are going after the
victims and refusing to see the bigger picture' (MRCI interviewee).
When asked if the Department of Justice believed that Ireland's current
legislative framework was sufficient to deter individuals and organisations from
committing acts of forced labour within the State, the interviewee stated that
whilst the penalties are severe enough, there were still questions as to whether
it was applied often enough, and whether people believed that they would be
answerable to the crime. It was agreed that the lack of convictions would make
it a difficult case to make: 'The most effective deterrent is conviction and at this
moment in time we don't have them' (AHTU interview). Other deterrents were
highlighted by the study participants, such as the disruption caused by
workplace inspections and any Garda inspections in suspected cases, even
when a prosecution does not occur.
7.2.2 Protections for Victims
Whilst states have key obligations under human rights law, as discussed in
chapter five, to ensure protection for victims of trafficking and forced labour,
72
access and entitlements to them can be varied and difficult to obtain as was
discovered during the interviews for the study. The NGOs that participated in the
study were understandably victim-centred in their approach to dealing with the
issue of forced labour. However, MRCI confirmed that not all identified victims of
trafficking or forced labour would be referred to authorities under current policy
practices as they would not receive benefit from doing so. Whilst
'the basic aims of an NRM are to ensure the human rights of
trafficked persons are respected and to provide an effective way to
refer victims of trafficking to services' (OSCE/ODIHR, 2004:15),
it became apparent during the interviews that the National Referral Mechanism
(NRM) and its attached legal status, is only deemed useful for those victims
who are either undocumented or illegal migrants in Ireland and as such, leaves
other victims without a route to protection facilities. Whilst Nasc believe that
victims are unaware of the supports, which prevents them from coming forward
and being referred, MRCI state that when they are referred, immigration status
is not being applied to the individual and as such they 'cannot be deemed as
suspected or potential victims' and therefore are not entitled to the provisions
under the Council of Europe Directive. For them this illustrates that 'the system
is not working' (MRCI interviewee). It is also necessary to note, that referrals
have an effect on quantifying the issue within Ireland as it is only those victims
who chose to be referred through the NRM that are counted within national
statistics.
Other issues with the current legal system also arose during the course of the
interviews. It was seen as an 'unclear and un-transparent system that goes on
for years' (MRCI interviewee), which leaves victims without legal status to work
in the country and therefore continue with their lives whilst possible
73
investigations into forced labour are being conducted, potentially resulting in a
cycle of victimisation. For Nasc, within the legal system, certain guarantees
need to be established for individuals who manage to extract themselves from
forced labour such as 'general supports, compensation and securing their
status in the State from an immigration perspective'. Under the current system,
the labour court is not accessible for undocumented workers who manage to
escape from a situation of forced labour, and neither is there a State
compensation scheme to assist them which means that they remain vulnerable
to exploitative conditions and can be susceptible to re-victimisation due to lack
of financial security (Nasc interviewee). Whilst MRCI were also critical of the
legal system, they approved of the legislative arrangement currently in place but
their main issue was that 'it needs to be interpreted and implemented correctly'
at all levels, and that at present,
'the State is failing to comply to the human rights standards it signed up
to' as we are 'failing to apply the legislation as it should be' (MRCI
interviewee).
7.2.3 Prosecution of Offences
Despite prosecution having 'rarely been an effective way of getting rid of
slavery' (Ould, 2004:72) it is still viewed as 'a necessary first step' (ibid. p.73).
However, both Ireland and the EU as a whole have both been criticised for the
low number of cases of forced labour that are detected and prosecuted (OSCE,
2006; US Department of State, 2013 and 2014). The Organisation for Security
and Co-operation in Europe (OSCE) put forward a number of explanations for
this which support the justification highlighted by the Department of Justice
during their interview surrounding 'inherent evidential difficulties for police in
74
prosecutors in establishing a criminal offence of such complexity to the onus of
proof required' (2006:5). However interviews conducted with NGOs highlighted
other OSCE reasons were also at play within the State, such as the
'disproportionate focus on an individual's immigration status rather than on the
conditions of their exploitation', a 'lack of resources committed to detection and
identification of cases' as well as 'a lack of familiarity with the relevant indicators
by law enforcement agencies' (ibid.:4-5), as discussed in the previous section.
According to the representative from ICTU, a further issue is that 'there is fairly
minimal redress for perpetrators' and 'we don't hold people sufficiently
accountable' for inflicting forced labour within Ireland and Ireland needs to
recognise that 'we are all implicated in forced labour because our laws don't
stop it from happening' (ICTU interviewee). For them it is imperative that
perpetrators 'recognise the wrong' they have caused and 'should have to put it
right, not only pay back the minimum wage'. It stands to reason that if
individuals think that they are likely to get caught and that they will be severely
sanctioned, then they are less likely to commit the offence in the first place.
However at present, partly down to the lack of jurisprudence in Ireland, 'people
think that they are unlikely to get caught and even if they do the consequences
are weak' (ICTU interviewee) as individuals are being prosecuted under
employment law for lesser offences such as breaking Working Time Directive or
Minimum Wage Act as these are easier to enforce. Whilst a number of cases
have been put forward by An Garda Siochana to prosecute for forced labour, to
date no cases have gone to court under the legislation. Reasons why are
speculative and both AHTU and NERA explain that they are unaware of why a
decision was made not to go forward in these cases as it is decided by the
75
Department of Public Prosecutions (DPP) who are independent of government.
No feedback is provided to the State why certain cases are not prosecuted;
however the participant from AHTU believes that the cases 'just weren't strong
enough to test the waters'. This highlights how proving instances of forced
labour beyond reasonable doubt continues to be a stumbling block for the Irish
prosecution system as ‘there is a very high threshold’ due to a lack of
jurisprudence in the State. The interview with AHTU also cited a lack of
corroborating evidence as a major factor in the lack of cases being prosecuted.
‘The more likely and serious the exploitation is, then the less likely there
is any type of a paper trail, and then it is just one person's word against
another’ (AHTU interviewee).
A further difficulty with numbers for prosecutions is that cases tend to be tried
for different (although sometimes related) offences. AHTU spoke of offences
such as ‘money laundering’, ‘false I. D's’ and ‘fake driving licenses’ being
brought against a family that kept an individual as a slave, as insufficient
evidence of the more serious charge of forced labour could not be attained.
AHTU confirmed ‘That wont appear in any statistic because there’s no
trafficking or forced labour charges brought’.
Co-operation between NGO’s, and NERA was seen as key to dealing with
employment offences by both AHTU and the interviewee from NERA. In the
past NERA have only become aware of issues once NGOs have referred them
to An Garda Siochana, who have passed it back to NERA as it was deemed a
major labour issue. Some labour law is statute barred after a year and this delay
in NERA being made aware of cases means that if a criminal case under the
76
Human Trafficking Act is not being taken by the Gardai, a case cannot be taken
under the employment legislation either after this time, effectively resulting in
perpetrators going free and little or no redress being provided to victims. It is
important to note that early referral in these cases is imperative and that a
successful conviction would also be useful for other departments and service
users: ‘We can see how far we can go then as well. I think it would clear things
up for NGOs too because they could then say ‘this is definitely a case for
NERA’’ (NERA interviewee).
7.3
The Role of NERA
Under the ILO Forced Labour Conventions, the role of employment inspectors
is seen as key in providing and ensuring a regulated employment environment
where instances of forced labour cannot easily occur (ILO,2001, 2003, 2005a),
and whilst NERA acknowledge this responsibility, they also highlight a number
of challenges. By their own admission, workplace inspections are disruptive and
do make it more difficult for perpetrators to operate; however if no records of
employment exist and individual workers are unable and/or unwilling to make a
statement to confirm that their conditions amount to exploitation or forced
labour, then the employer can only be prosecuted for lack of employment
records. Lack of corroborating evidence prevents NERA (or An Garda Siochana
if the case has been referred) from prosecuting offences and is a major issue
for dealing with cases of forced labour in Ireland.
A significant issue which was highlighted by both NERA and AHTU was the
unintended negative consequences of workplace inspections and how
‘sometimes doing the right thing, doesn’t always bring the right results’ (AHTU
interviewee). An example was provided of a trafficking investigation that took
77
place around an ethnic restaurant, where a number of workers had no
employment permits and a number of employment laws were being broken. The
employer was charged with a number of immigration offences and as a result
the restaurant and two others the employer owned were closed and
approximately thirty people lost their jobs. ‘The net effect of it all was these
people who had probable exploitative employment, now had no employment’
(AHTU interviewee). A further danger is that these actions could push workers
into potentially more dangerous situations as a result. For NERA this is a
common theme, and they state that they often ‘find employees that are
prepared to tolerate the really bad conditions because they want a job’ (NERA
interviewee).
Another factor which needs to be considered is that currently NERA can only
prosecute issues of labour exploitation relating to abuse of labour laws such as
the National Minimum Wage Act, 2000, Payment of Wages Act, 1991,
Organisation of Working Time Act, 1997 and the Terms of Employment
(Information) Acts 1994 and 2001. NERA are also responsible for policing the
Employments Permits Act 2003 and 2006. Any investigation that shows signs of
forced labour other than those falling under the above categorisations requires
referral to An Garda Siochana to pursue a criminal case against the offender.
A further issue that the interviewee from NERA highlighted was that in instances
where victims do self-identify, they will often choose to go to a Rights
Commissioner, which prevents NERA from investigating any deviance from the
Employment Acts due to the issue of Double Jeopardy, which may mean that
cases are not being dealt with in the most productive way. For NERA
jurisprudence would also outline responsibilities for those pursuing cases of
78
forced labour and they hope that with convictions 'it will become clearer down
the line' (NERA interviewee). At the time of the interview NERA had formally
referred seven cases to An Garda Siochana that had indicators of forced labour.
NERA also play a significant role with regards to information provision
surrounding people's rights and how to access them which if utilised properly
can be a major asset in both prevention and identification of the issue of forced
labour in Ireland. This needs to be encouraged and promoted to ensure that
individuals can recognise if and when they fall into situations of employment
exploitation and forced labour, and also how they can get help.
7.4
The Inclusion of Forced Labour in Trafficking Legislation
Whilst the words 'forced labour' and its definition are now in the Irish legislation,
the protections for victims are still provided for under the trafficking
mechanisms, leaving those who are not identified as trafficked, yet find
themselves in situations of forced labour, without any protections, support
and/or redress under the current legislative framework. A myriad of different and
diverse explanations and understanding of trafficking was highlighted during the
interviews, with internal trafficking being quoted as an area where a lot of
confusion occurs: ' A lot of people don't tend to see internal trafficking as
trafficking as there is no crossing of borders' (MRCI interviewee).
A number of interviewees expressed concern over the fact that 'forced labour is
being seen as a trafficking issue' (Nasc interviewee) and that as trafficking is
seen as something that happens to people forced to cross borders against their
will, then other forms of forced labour were being ignored and/or left
79
unidentified. Further confusion is also apparent when discussing the public's
perception of what constitutes a victim of trafficking: 'If you're a victim of
trafficking, people automatically assume that you are a person that has been
forced into prostitution' (MRCI interviewee). There is also a strong belief that the
focus is still on sexual exploitation when looking at trafficking and forced labour:
'Its all about sex trafficking and other types of labour is just not identified' (Nasc
interviewee). Further to this, according to MRCI, in Ireland the understanding of
the limits between smuggling and trafficking remain very blurred which
subsequently means the notion of consent is questionable too. This becomes all
the more important in cases of forced criminal activities such as the recent
increase in known cases of cannabis cultivation in Ireland, where MRCI say that
not all victims have been trafficked but all are victims of forced labour.
Both Nasc and the ICTU expressed concern over the fact that forced labour
was being legislated for under the trafficking Act for a number of reasons: first
the fact that not all forced labour is trafficked forced labour (Nasc interviewee);
secondly the fact that trafficking is still framed as an immigration issue rather
than a human rights issue worryingly leaves gaps as the focus is seen to be that
the issue is one 'for immigrants and non-nationals' and that there is a tendency
for policy makers to 'ignore the fact that [NGOs] are saying that it happens to
Irish nationals too' (Nasc interviewee) with protection measures for victims of
trafficking located in the Immigration and Residence Protection Bill which further
frames the issue as that of immigration. Finally trafficking is still viewed by many
as being connected to organised crime with further conflates the identification of
perpetrators. For ICTU 'Legislating [for forced labour] under the trafficking Act
sends all the wrong signals', that it happens only in a cross-border situation
80
(ICTU interviewee).
Both AHTU and NERA stated that they believed that forced labour was
‘probably, definitely happening’ to nationals in Ireland (NERA interviewee) and
that ‘Nobody is immune to it’ (AHTU interviewee). Whilst AHTU acknowledged
that that ‘it is easier for, in theory anyway, for them to assert their rights that they
already have as EU citizens’ they also acknowledge that individual
circumstances are very different and their vulnerabilities do not protect them
from the issue of forced labour just because they are not migrant workers.
AHTU and NERA both discussed the case of the Irish tarmacadam group which
operated in the UK and across Europe, forcing vulnerable homeless and
unemployed physically fit British and European men to work, and highlighted
the mobility of the group as a major factor in forced labour flourishing in that
environment.
The representative from ICTU believed that the Irish legal system is unable to
conceptualise the issue of forced labour beyond that of cross-border trafficking
which leaves gaps in protection, assistance and prosecution for those not fitting
the common discourse and understandings (ICTU interviewee). From the
perspectives of the NGO and ICTU participants, forced labour is being seen as
only a trafficking issue. This causes significant difficulties with the identification
of victims, identification of its perpetrators and ensuring that victims get the
services and protections they need due to the connotations which go hand in
hand with the term in common discourse, and questions the appropriateness of
including forced labour within the current trafficking legislation.
81
7.5
The Impact of the ILO Forced Labour Definition
With regard to the insertion of the ILO definition in current legislation there were
mixed opinions between the study participants. The ICTU were 'very
disappointed' to have seen no impact from the change in the legislation 'at any
level'. For the ICTU, the insertion as it stands is 'of questionable value' as it is
seen that the Irish State took the forced labour definition in abstract, separate
from the ILO jurisprudence at an international level, partly due to
misinterpretation of the wording of the original convention by many, as applying
only to States and not to employers (ICTU interviewee). The interviewee from
Nasc also believed that the change has been unimportant and has made 'no
difference or impact at all from our perspective'. They substantiate this claim by
stating that they have witnessed no increase in cases being reported or
individuals coming to them. They also state that people are unaware of the
'protection it should offer' to victims, and that it has not altered the fear their
users still have in coming forward (Nasc interviewee).
On the other hand, MRCI believe that although the system is slow and it will
take time before the legislation can be used effectively and to its full potential,
the insertion of the definition into the Irish legislation is of great benefit to them.
They claim that it has improved the relationship between the organisation and
other state agents, in that they 'are now taken more seriously' by government
bodies and providing them 'with more bargaining power'. Whilst they highlighted
that the legislation makes the act of forced labour clear and importantly makes
the Irish framework more compliant with international standards, it also offers
the opportunity to legally challenge action or non-action on behalf of the State,
and to hold them accountable (MRCI interviewee).
82
From the State's perspective, the interviewee from AHTU was unsure if the
inclusion of the definition will make any practical difference or not, but
welcomed the fact that ‘it clarifies what the legislation means by forced labour’.
The interviewee stated that a committee of experts for the ILO had previously
reviewed the Irish legislation and could not envisage any form of forced labour
to not fall under the Act and that by inserting the definition provided further
clarification for judiciary and law enforcement (AHTU interviewee). However the
respondent also stated that:
'I think it's generally accepted that even with the expanded definitions,
that in practice they are usually problematic' [These problems are usually
surrounding issues of coercion] ' Its always gonna be a grey area as to
whether somebody is a member of a drugs gang, or a pickpocketing
gang, or a distraction crime gang, or whether they are a victim' (AHTU
interviewee).
From NERA’s perspective, the amendment was not believed to have made any
direct impact as their understanding of the issue and their response to cases
remains the same; however they state that they would not be the first point of
contact in a lot of the cases unless they were following up allegations,
complaints or coming across the issue during an inspection. NERA also stated
that ‘MRCI or some of those organisations’ would be the first contact for forced
labour (NERA interviewee).
7.6
A Separate Act?
When discussing the option of a separate and specific Act to deal with the issue
of forced labour, both the interviewees from Nasc and ICTU believed that it was
83
necessary and could offer an improvement on current policy. The participant
from AHTU stated that when discussing the UK stand-alone Act to deal with the
issue of forced labour, both the Metropolitan Police and the British Police force:
'liked the stand alone forced labour crime because it was easy to
understand that the act of forced labour was the crime, was what they
prosecuted for, nice and simple. One Act and you're not tied up with
trafficking and the issues that surround proving that'. (AHTU interviewee).
When asked if a separate piece of legislation would be more effective than
concerning forced labour with trafficking in Ireland, the Department of Justice
stated that whilst in the legislation it was unnecessary as the current Act
criminalises forced labour sufficiently, if it helped the perception of forced labour
then it may be useful. The recurring theme of a lack of jurisprudence was also
recounted with regards to proving effectiveness of the current legislation as it
stands within the trafficking Act:
'While we are in the kind of lacuna now where we haven't got cases of
prosecutions and particularly convictions for it, you could make the
argument that it might be easier to make that initial jump with a stand
alone Act with a clear label over it 'forced labour'. You can definitely make
that argument and we would have a job refuting it until we can point to
cases and say 'look these cases were successfully brought under the
Human Trafficking Act'' (AHTU interviewee).
7.7
Conclusion
The above discussion has highlighted the research participants' thoughts and
concerns surrounding the three steps necessary to help tackle the issue of
forced labour, those of prevention, protection and prosecution. From the
84
discussion, a number of issues arose in all three of these areas which prevents
Ireland from dealing effectively with the issue within its borders, and questions
the current approach to dealing with forced labour. An area of significant
concern which affects all three steps concerns the perception of the issue of
forced labour within the State, both in public and professional arenas. Not only
does this cause confusion between state actors and NGOs in identifying
instances of forced labour, but it can also prevent victims from obtaining the
help and support they require due to national policies that require a victim to be
identified in a specific way. Further to this, it is believed that actual victims of
forced labour, identified by NGOs are being either criminalised or penalised by
the current legal system in place, and this added fear is preventing victims from
coming forward or accepting referral into the current NRM.
The research also supports international criticisms with law enforcement
agencies (Council of Europe, 2013; ILO, 2005c; US State Department, 2013 &
2014), and the necessity of increased and holistic training measures is seen as
imperative to dealing with the issue in Ireland. The findings show that the failure
of the Gardai at all three steps, is affecting the issue of forced labour in Ireland
and as the legislative arrangements rely on An Garda Siochana alone to bring a
case to court, it is all the more important to ensure they have the knowledge
and tools to deal with the problem. Whilst the DJELR have proposed training
certain members of the Gardai, this training needs to encompass the multitude
of different manifestations of forced labour that can occur and not just conform
to the usual stereotypes, to ensure that they can deal with the problem
effectively.
Further to the Gardai, International reports and policies also highlight the
85
necessity of employment inspectorates in the battle against forced labour at all
three stages (ILO, 2003, 2005a & 2006; OSCE, 2007; SAP-FL, 2012; U.S State
Department, 2013 & 2014). This study suggests that Ireland is also weak in this
regard as not only are inspectorates failing to understand all forms of forced
labour (see section 7.2.1), but a lack of co-operation and communication
between themselves and other organisations is preventing them from pursuing
cases and potentially ensuring perpetrators are held accountable for their
actions. The communication aspect is especially important between the Gardai
and NERA as regardless of how severe a case of forced labour NERA may
discover, they can only pursue lesser convictions of employment law breeches
without a case being put forward to the Gardai (see section 7.3).
A further issue which was highlighted during the study is the problem of 'double
jeopardy' if a victim chooses to act against their employer (see section 7.3). This
may prevent cases from being dealt with effectively and again may prevent
redress for victims and a lack of accountability of perpetrators. Both these
issues should be reviewed by government to ensure that severe cases of
exploitation and forced labour are dealt with by the full resources of the Irish
State, which could potentially have a knock-on effect to the number of
prosecutions in the country and provide jurisprudence where it is needed.
The above chapter has also discussed the connotations of trafficking discourse
and its usefulness in dealing with the issue of forced labour from a legislative
viewpoint. The findings suggest that linking the issue with that of trafficking has
a negative impact on all three steps of the process to deal with forced labour
and necessarily leads to questioning the appropriateness of including forced
labour legislation in the current Human Trafficking Act.
86
Chapter Eight
Additional and Alternative Responses
8.1
Introduction
Continuing from the discussion in the previous chapter surrounding issues with
current policy and practice, this chapter illustrates the additional and alternative
measures that were discussed and offered by the interview participants to assist
in the response to forced labour in Ireland. Whilst doing so, the chapter also
responds to the final research question, namely 'In what other ways can forced
labour be dealt with in the Irish context?'
8.2
Changing the Perception of Forced Labour
First and foremost, forced labour has to be seen and understood as an issue
that can affect any vulnerable person; however it was believed that there needs
to be broader civil society participation and ideally the establishment of a lobby
group to acknowledge and highlight that the issue is not solely immigrant
related, in order for this to be achieved (Nasc interviewee). However at present
the only group dealing with forced labour publicly is MRCI and as the
interviewee from AHTU highlighted 'MRCI were the only group of people
'shouting about forced labour' and that the Unions should be the group to
highlight the issue as affecting all workers without an immigrant slant (AHTU
interviewee). For the interviewee from Nasc, forced labour in Ireland needs to
be seen and treated by government separate from immigration, which in their
opinion is not currently the case. For them, the Irish State is viewing the issue
87
as one of 'border control' and the State is unwilling to deal properly with the
problem and view victims as anything other than illegal immigrants as they are
under the illusion that the 'flood gates will open and cause a drain on the
country's resources'. (Nasc interviewee). This perspective was mirrored in the
review of the literature in chapter three, and has become a common theme
internationally.
8.3
Co-operation and Communication
The representative from NERA believed that greater co-operation is required
between themselves, NGOs and the Gardai and that a process or mechanism
needs to be developed 'where complaints are examined in a holistic way'.
NGOs also need to be more aware of the fact that whilst they are looking after
the needs of the victim, there could also be issues related to other areas where
other bodies such as NERA, the Revenue Commissioners, and Social Welfare
Departments, could be deployed in order to bring the full resources of the State
to deal with the relevant parts, whilst also ensuring redress of some description
is provided for the crime (NERA interviewee).
Communication was also seen as a central point during the interview with the
representative from ICTU who also believed that trade unions and other
workers groups should talk to each other more and that there needs to be more
interaction between labour inspectors in the area of forced labour (ICTU
interviewee). The NGOs interviewed would also welcome greater union
involvement with the issue of forced labour (MRCI interviewee) and this could
be by means of ensuring that workers are more aware of their rights (Nasc
interviewee). Employers groups should also be more involved when increasing
88
awareness of the issue as it is often a general unethical approach by employers
who hold profits and their own interests as a priority, which can easily cross the
boundary into forced labour. An entrepreneurial attitude with a lack of focus
upon a workforces conditions means that 'any employer or manager could
easily trick themselves into thinking it wasn't forced labour when it was' (ICTU
interviewee).
8.4
Suggested Legislative Measures
When discussing alternative legislation measures with representatives from the
NGOs and ICTU, the legislative commitment was seen as 'key' in the battle
against forced labour as it 'allows parliamentary scrutiny' and prevents the
States commitment to dealing with issue from being 'just changed to suit' (Nasc
interviewee). The representative from MRCI was more tentative on the subject,
and was aware of the danger that a change of legislation for dealing with the
issue of forced labour may result in a lesser commitment on behalf of
government for the rights of victims, as the current trafficking Act encompasses
the Council of Europe Directive which compels the State to provide a statutory
level of provision and protection (MRCI interviewee).
All the interviewees were in agreement that forced labour should remain within
the criminal justice sphere as moving into any other area, such as that of
employment law would prevent the severity of the sanctions which can currently
be applied. Both ICTU and Nasc believed that the ideal way to legislate would
be an Act separate to immigration and trafficking, one which 'solely and
specifically articulated the issue of forced and compulsory labour' (ICTU
interviewee), and capable of grasping all the elements that forced labour can
89
consist of. However, the participant from MRCI's stance was contrary to this:
'I don't think it should be legislated for separate to trafficking. Trafficking
is a form of forced labour and that is how it manifests itself in Ireland'
(MRCI interviewee).
This disagreement between key service providers highlights the different
perspectives and understandings of dealing with the issue of forced labour that
can be found between professionals. The statement also illustrates a lack of
clarity from the interviewee in regards to the relationship between trafficking and
forced labour as at an earlier junction in the interview, the interviewee stated
that not all forced labour was trafficked forced labour when the NGO was
dealing with a recent issue of forced labour within cannabis grow houses (see
section 7.4).
All parties agreed that legislative measures alongside workplace investigations
were needed to create the conditions which make it harder for forced labour to
exist in Ireland whilst also preventing vulnerable individuals from being exploited
or ending up in conditions of forced labour. The interviewee from Nasc
highlighted the necessity of the inclusion of 'a full victim protection package'
contained in any method to legislate and deal with the issue of forced labour in
Ireland (Nasc interviewee).
8.5
Ratification of the ILO Forced Labour Supplementary Protocol 2014
The agreement to the ILO Forced Labour Supplementary Protocol 2014 was
discussed with a number of the interviewees including the research participants
from ICTU, NERA and AHTU as each of the individuals were present at the time
the protocol was agreed by Ireland. All three commented on the difficulties
90
reaching agreement at the ILO convention regarding the new protocol due to
the constitutional differences between different EU countries and again between
the EU and other countries.
When asked why the Irish delegates chose to opt in to the forced labour
protocol, the interviewee from AHTU believed that if Ireland were to ratify the
new protocol to the ILO Forced Labour Conventions then the only major impact
it would have would be to 'bring the international standards up close to what the
EU standards are.' The representative from NERA was more optimistic and
stated his belief that a consequence of Ireland's ratification of the protocol to the
forced labour conventions would be an increased awareness of the issue by
providing an opportunity to highlight the issue and bring it into the public
perception.
'I think particularly to highlight the issue of Irish and EU citizens that are
not say of the classical viewed forced labour situation, which is
somebody coming from an exotic country in particular occupations, but
like 'do we have a bigger problem?'' (NERA interviewee).
The representative from ICTU also recounted the difficulties encountered in
reaching agreements at on international platform due to 'different peculiarities
for different countries'. Whilst the ICTU would welcome the 2014 ILO protocol
as they perceive it as placing 'a lot more context on the issue of forced labour' in
an employment context as well as 'a lot more responsibility on employers' to
prevent and deal with the issue of forced labour in the workplace (ICTU
interviewee), the participant from MRCI believes that the protocol is an
opportunity for 'the employers side watering down the definition of forced labour'
91
(MRCI interviewee).
Regardless of the power struggles that seemed to manifest between the
different actors both during negotiations at an international level, and the
participants opinions at the national level, if the supplementary convention is
ratified, it will provide an opportunity to highlight the problem of forced labour
within Ireland in all its forms. Based on the evidence from this study, it would be
beneficial to ensure that awareness and clarity of the issue in Ireland is
promoted and this is an opportunity that should not be missed.
8.6
Additional Measures to Tackle Forced Labour
ICTU highlighted the extra administrative measures that should be adopted
prior to and on commencement of an individual entering the State to work to
increase accountability of the employer; however this can only be done by
increasing the amount of information sharing between different branches of the
State such as Social Protection, Revenue and the DJEI. The NGOs interviewed
also highlighted an increase in the dissemination of information was imperative
and that they would welcome 'greater cooperation on behalf of State agencies
in their willingness to collaborate with NGOs' (Nasc interviewee).
An increasing amount of outreach work by NGOs was deemed necessary by
them in order to locate further cases of forced labour within the State; however
this would require an increase in funding and as the US T.I.P report has recently
criticised, the Irish state has cut funding to such groups (2014:214). A further
fact that was highlighted by the participant from MRCI was that comparatively
funding for sexual exploitation can be as much as thirty times more than that
provided for other forms of forced labour (MRCI interviewee). This highlights the
92
State's priority of dealing with this form of labour exploitation over other
manifestations of the crime present within Ireland.
In line with recommendations from the literature surrounding the importance of
supply-chain management and company responsibility (Bales & Cornell, 2013;
Batestone, 2007; LeBaron & Crane, 2013) a new initiative that the AHTU is
currently working on involves working with companies to put in place a system
for highlighting those with an ethical supply chain that does not utilise forced
labour at any stage. This is aimed at increasing their reputation credits and to
also help put them on an even competition with those who are using forced
labour in their production and is hoped to have an effect on the issue of forced
labour globally.
8.7
Conclusion
Echoing the findings from the literature, all interviewees highlighted the need to
make it harder for individuals to disguise what is going on in the place of work
and to put measures in place to ensure they can be held responsible for their
actions when inflicting forced labour on another. Following on from previous
chapters, again the understanding of what constitutes the crime of forced labour
and who its victims are was highlighted as an area that needed to be developed
both by government and NGOs working in the area. The potential detachment
of the issue from that of immigration in policy and by having non-migrant
focused action groups could be utilised to serve this purpose. The ratification of
the 2014 Protocol to the ILO Forced Labour Conventions, will also provide an
opportunity for highlighting the problem from a different perspective and should
be used as such.
93
Understandably due to their professional agendas, the NGOs spoken to all
requested additional funding and extra measures that centred around the rights
and protections of victims, however there was a lack of consensus as to how
this was best achieved and a disregard for the involvement of other State
bodies in ensuring that perpetrators are dealt with effectively in parallel to
providing the support and care victims require. Without this collaborative and
co-ordinated approach, businesses and individuals will continue to go
unpunished and undeterred.
Whilst the adoption of extra legislative commitment from government by way of
the ILO protocol was seen as beneficial by most, discussions surrounding the
agreement of it highlighted the highly problematic terrain which needs to be
crossed when dealing with policy on an international scale. As Herbert reminds
us, these challenges need to me met in order to successfully deal with the issue
of forced labour:
'In a globalised world, today more than ever, individuals confront a
myriad of threats to their human dignity that cannot be remedied by
states operating as discrete, self-contained entities' (2012:105).
As highlighted by the literature, the issue of forced labour is an international
problem and only with international as well as national co-operation, can the
issue of forced labour be eradicated.
94
Chapter Nine
Concluding Remarks
9.1
Introduction
The purpose of this research was to examine the impact and effectiveness of
the current policy framework upon the issue of forced labour in Ireland. The
study examined the current legislative and policy frameworks as well as the
potential impact of, and the likely effectiveness upon the issue of forced labour
in Ireland by the inclusion of the ILO definition within national legislation. The
study also sought to obtain the thoughts and opinions of practitioners within the
field of forced labour concerning current legislation and the issues that they face
because of it, as well as the benefits it brings. The research also gained an
insight as to what other measures key actors in the field of forced labour feel
are necessary in order to deal with the issue effectively.
9.2
Review of the Findings
The following section collates the main findings from chapters six, seven and
eight to explicitly answer the research questions set in chapter one.
What types of cases of forced labour are currently identified within
Ireland, and why these? The above research indicates how identified victims
of forced labour in Ireland and the employment sectors which they are found,
correlates with the majority of findings internationally; those of migrant workers
in casual, seasonal and mobile employment. Whilst evidence has been found
that forced labour exists within these areas, it is necessary to consider that this
may in part be due to the fact that at present, resources are concentrated upon
95
these areas alone. The different causalities of their positions also mirrored
international findings and a number of suggestions were put forward by the
study participants, as discussed in chapter six. Whilst a multitude of personal
vulnerabilities were discussed, the research also illustrated a number of
structural reasons that can be attributed to assisting in the creation and the
retention of conditions tolerant to such exploitative practices such as a lack of
employment inspections and the current links between immigration status and
the work permit system.
By legislating for the offence within the Human Trafficking Act, how does
the Irish legislative framework assist or hinder dealing with the issue of
forced labour? The findings from the study suggest that linking forced labour
with current trafficking rhetoric has a negative and unhelpful effect on dealing
with the issue. As trafficking is often misunderstood by State bodies, service
providers and civil society in general, forced labour is regularly perceived and
responded to ineffectually and inappropriately. As discussed fully in chapter
seven, this causes us to question the appropriateness of including the issue of
forced labour within the current trafficking legislation.
What is the potential impact of the insertion of a clear definition of forced
labour in terms of dealing with the issue in Ireland? The empirical material
gathered indicates that despite the insertion and a defined offence of forced
labour within the Irish legislative framework, that the issue is still relatively
misunderstood both by professionals in the field and the general population.
This becomes especially evident when discussing the lack of identification and
acceptance of the subtleties of coercion that may be present in instances of
forced labour, by An Garda Siochana. As this is the only state agency that can
96
deal with the issue of forced labour, when a criminal sanction is to be applied, it
is clear that the system is fallible. A further concern is the acceptance by both
state actors and other NGOs that only one non-government organisation is
tasked with dealing with the problem within the State, which became evident
both prior to, and during the conducting of the interviews for this study. Whilst
MRCI have undoubtedly done extensive and worthwhile work in regards to
forced labour in Ireland, their focus is understandably skewed to that of the
protection of migrant workers and those alone. MRCI are further prevented from
dealing fully with the issue as they are situated in Dublin and lack resources to
travel nationwide, leaving vulnerable individuals who are not based in the
capital and who are not migrants, with nowhere and no one to turn to.
How effective is the current Irish policy framework for dealing with the
issue of forced labour? During the research a number of other significant
issues became apparent in connection to the awareness of, and the access to,
protections and supports for victims. It is evident from the research that a
substantial number of those who are trapped in forced labour may continue to
be so due to lack of self-identification with the issue and a general unawareness
of what constitutes such a crime, highlighting a real need to provide more
information on acceptable working conditions for both national and non-national
workers and their employers. As illustrated by the above discussion, those who
realise that they are being exploited are also often afraid to come forward to
authorities and other bodies that could offer assistance in such matters. The
research suggests a number of different reasons for this and many point
towards the current policy framework which is in place, especially for workers in
precarious and/or uncertain migration statuses. If we are to encourage these
victims to come forward and report offenders, it is imperative that the workers
97
feel secure in doing so and believe that they will be seen first and foremost as a
victim as opposed to a criminal or an illegal migrant as is often reported to be
the case. Only then is the current NRM procedure which is in place, likely to
work for everyone.
In what other ways can forced labour be dealt with in the Irish context, to
better improve the situation? Co-operation and communication featured
significantly during the interviews and the importance of a unified and
collaborative effort by a number of key stakeholders should be encouraged. Not
only will this ensure that the rights of victims are observed, but the research
suggests that it will also assist in the prosecution of offenders and ensuring
retribution for the crimes they have committed. This should not just be left up to
the Gardai, but as the international studies suggest, should encompass a range
of both State and civil actors. Once convictions have occurred in the State, the
jurisprudence then set will hopefully ensure that further prosecutions can be
brought forward and clarify the legal boundaries for all concerned.
9.3
Recommendations and Possible Avenues for Further Research
On the basis of this study a number of suggestions and recommendations
should be reviewed in relation to preventing forced labour, protecting its victims
and ensuring that offenders, whether they be individuals or organisations, are
dealt with effectively. Though not exhaustive, the following reflects some of the
main concerns with managing the issue of forced labour in Ireland today.
Identification of the Issue
● A focus on filling knowledge gaps has to be adopted by a wider range of
research professionals to ensure a more complete picture of the issue in
98
Ireland. Areas to review should include, but not exclusive to, EU/Irish
victimisation, internal and external causes specific to the Irish situation,
and attempts to acquire first hand information from perpetrators to gain
further insight of the extent of the problem.
● The above discussion has highlighted the inaccuracy of national
statistics. It is widely acknowledged as a necessary development
internationally, that more robust research methodology needs to be
designed and utilised with regards to the issue of forced labour, which
will both assist in identifying and quantifying the extent of the problem in
Ireland, allowing us to deal with the problem more effectively.
● Using exploitation rather than borders as a primary indicator of trafficking
may assist in the identification of victims and perpetrators and therefore
better assess the extent of the issue in Ireland. This approach needs to
be understood by both front line staff and policy makers to ensure all
victims are identified and offences prosecuted.
● Increasing investigations of high-risk employment sectors, and ensure
that NERA and other employment bodies have the support and
assistance from the State to deal with issue of exploitation effectively.
● The research has illustrated the need for responsibility for the issue to be
more wide spread across a multitude of different actors, along with
increasing awareness and civil society engagement of the phenomenon.
● Improved training and commitment of relevant state agents and service
providers to recognise instances of forced labour both including and
abstract from popular stereotypes of the 'trafficked victim'. In light of
recent developments surrounding forced labour for criminal acts, this
commitment needs to remain open to new forms and manifestations of
99
the issue.
● As the research shows, it is important that the Irish State increases
awareness and public understanding of the many forms forced labour in
the world today, and ensures that all citizens are diligent in recognising
the signs and reporting suspicious activities. As suggested, this could
coincide with the ratification of the Protocol to the ILO Forced Labour
Convention.
Victim Supports
● Revision of the current NRM procedure to ensure that all victims can
avail of its use and ensure that its provisions are applied correctly and
equally across all victims of trafficking.
● Ensure that Gardai and other law enforcement agents are fully aware of
the needs of the victim and ensure that they have sufficient procedures in
place to prevent criminalisation or re-victimisation of those who come
forward, or are found to be victims of a forced labour situation.
Prosecution of Offences
● Increase and promote inter-agency responses to ensure that any forced
labour offence is dealt with effectively, and that all appropriate State
instruments are applied in each case.
● Increase and promote State and non-state co-operation and
communication to ensure that all are aware of the resources available to
them as well as any limitations of such support (such as that of statute
barred legal provisions).
● As a lack of jurisprudence is evident in the State, all key actors should be
100
aware of the high onus of proof, and actively seeking out a case which
can successfully be prosecuted for the offence. Once a prosecution has
occurred under the legislation, it is likely that a precedence will have
been set and offenders are more likely to be held accountable for their
crimes. This should simultaneously work as a deterrent.
Others
● As discussed, the legislation is relatively new and as such is still
unproven. It would therefore be beneficial to conduct a similar study of
the issue of forced labour and the effectiveness of the Irish policy
framework once the impact on crime figures, and the potential
ratification of the Protocol to the ILO Forced Labour Convention, is
evident.
9.4
Conclusions
For governments to properly assist victims of forced labour, they must first
provide and implement effective legislation. As this research has shown, not
only does the Irish law have to ensure a comprehensive framework allowing
successful prosecution of those responsible for forced labour, but it also needs
to address the very real needs of the victims to it: needs such as protection
measures, immigration status, restitution, protection from further victimisation
and persecution, as well as the basic human rights afforded to every individual.
Maybe more importantly, and certainly as a first step proceeding any treatment
of victims or perpetrators of forced labour is the issue of identification. Until this
is realised as a major obstacle in the development of the eradication of forced
101
labour, those who are trapped within instances of forced labour and severe
exploitation occurring in the Irish State will continue to be so. Evidence from this
research confirms that this is still a significant issue. Any legislative or policy
changes, despite how stringent and comprehensive they may seem, will remain
useless if government officials and other bodies rely on self-identification of
victims; rather the evidence highlights the necessity to pro-actively search for
instances of this phenomenon, to prevent the issue remaining hidden and
misunderstood. The research suggests that this should occur by increasing
investigations of high-risk employment sectors, advising, educating and
screening of vulnerable and marginalised populations (both nationals and nonnationals), improved training and commitment of relevant state agents and
service providers to recognise instances of forced labour both including and
abstract from popular stereotypes of the 'trafficked victim', and to increase
public understanding, knowledge and awareness of the myriad of forms forced
labour can and does occupy in Ireland today. Understanding and promoting
alternative perspectives concerning the nature of forced labour, may allow
professionals and researchers to identify victims more easily, thereby increasing
our knowledge of the phenomenon and contributing towards its eradication.
Until we have a fuller picture and understanding of forced labour within the Irish
context, we will continue to fail in finding a solution to the problem.
102
Bibliography
Accum (2012) Mirror Project - Developing agreed methodology of identification
and referral for trafficking for labour exploitation: guaranteeing the victims
access to protection. Madrid: Accum
Allain, J. and Bales, K. (2012) Slavery and Its Definition. Queens University
Belfast Law Research Paper No. 12-06. Online at
http://ssrn.com/abstract=2123155 [Accessed 18/10/13]
Allemby, L. et al. (2011) Forced Labour in Northern Ireland: exploiting
vulnerability. York: Joseph Rowntree Foundation.
Anderson, B. and Rogaly, B. (2009) Forced Labour and Migration to the UK.
Online at
https://www.compas.ox.ac.uk/fileadmin/files/Publications/Reports/Forced
%20Labour%20TUC%20Report.pdf. [Accessed 10/10/13]
Anderson, M. (2014) Home Office Launches ad campaign against modern-day
slavery, Theguardian.com, 31st July. Online at
http://www.theguardian.com/global-development/2014/jul/31/home-officecampaign-modern-day-slavery [Accessed 1/8/2014]
Andrees, B. 'Trafficking for Forced Labor in Europe', in Andrees, B. and Belser,
P. (eds.) (2009) Forced Labor: Coercion and Exploitation in the Private
Economy. Geneva: ILO.
Andrees, B. and Belser, P. (eds.) (2009) Forced Labor: Coercion and
Exploitation in the Private Economy. Geneva: ILO.
Anti-Slavery International. (2006) Trafficking for Forced Labour in Europe.
Report on a study in the UK, Ireland, the Czech Republic and Portugal. Online
at
http://www.antislavery.org/includes/documents/cm_docs/2009/t/trafficking_for_fl
_in_europe_4_country_report.pdf. [Accessed 11/10/13]
Bakirci, K. (2009) ‘Human trafficking and Forced Labour: A Criticism of the
International Labour Organisation’, Journal of Financial Crime, Volume 16,
Number 2, 2009 pp.160-165.
Balch, A. (2012) Regulation and Enforcement to tackle Forced Labour in the
UK: A Systematic Response?. York: Joseph Rowntree Foundation
Bales, K. (2000) Disposable people. Berkeley: University of California Press
Bales, K. and Choi-Fitzpatrick, A. 'The Anti-Slavery Movement: Making Rights
Reality' in Brysk, A. and Choi Fitzpatrick (eds.) (2012) From Human Trafficking
to Human Rights: Re-framing Contemporary Slavery. Philadelphia: University of
Pennsylvania Press
Bales, K. and Cornell, B. (2013) Slavery Today. Toronto: Groundwork Books
Bales, K., Trodd, Z. and Kent Williamson, A. (2011) Modern Slavery. A
Beginners Guide Oxford: Oneworld Publications
Barnados. (2007) Submission to the National Action Plan to Prevent and
Combat Human Trafficking, Online at
https://www.barnardos.ie/assets/files/campaigns/child-abuse/Barnardos
%20submission%20into%20national%20action%20plan%20to%20prevent
%20and%20combat%20human%20trafficking.doc . [Accessed 10/07/2014]
Batestone, D. (2007) Not for Sale: The return of the global slave trade and how
we can fight it. New York: Harper San Francisco
Bryman, A. (2012) Social research methods, 4th edition, Oxford: Oxford
University Press
Brysk, A. and Choi Fitzpatrick, A. (eds.) (2012) From Human Trafficking to
Human Rights: Re-framing Contemporary Slavery. Philadelphia: University of
Pennsylvania Press
Brysk, A. 'Rethinking Trafficking: Human Rights and Private Wrongs' in Brysk, A.
And Choi Fitzpatrick (eds.) (2012) From Human Trafficking to Human Rights:
Re-framing Contemporary Slavery. Philadelphia: University of Pennsylvania
Press
Centre for Human Rights, Geneva. (1994) Universal Instruments, vol.1 of
Human Rights: A Compilation of International Instruments. New York: United
Nations.
Charmaz, K. (1983) 'The Grounded Theory Method: An Explication and
Interpretation' in R. M. Emerson (ed.), Contemporary Field Research: A
Collection of Readings. Boston: Little, Brown
Cho, S. (2014) "3P" Anti-trafficking Policy Index. Available at
http://www.economics-human-trafficking.org/anti-trafficking-3p.html [Accessed
13/06/2014]
Choi-Fitzpatrick, A. 'Rethinking Trafficking' in Brysk, A. and Choi Fitzpatrick, A.
(eds.) (2012) From Human Trafficking to Human Rights: Re-framing
Contemporary Slavery. Philadelphia: University of Pennsylvania Press
Clark, N. (2013) Detecting & Tackling Forced Labour in Europe. York: Joseph
Rowntree Foundation
Coghlan, D. (2010) Trafficking for Forced Labour in Ireland and the United
Kingdom: Issues and Emerging Good Practice. Dublin: Migrants Rights Centre
Ireland.
Coghlan, D. and Wylie, G. (2011) ‘Defining Trafficking/Denying Justice? Forced
Labour in Ireland and the Consequences of Trafficking Discourse’, Journal of
Ethnic and Migration Studies, Volume 37, Number 9, November 2011, pp. 15131526. Taylor & Francis Online at
http://dx.doi.org/10.1080/1369183X.2011.623625 [Accessed 5/10/13]
Cohen, D. and Crabtree, B. Qualitative Research Guidelines Project. July 2006.
Available online at http://www.qualres.org/HomeSemi-3629.html
Cohen, R. (2006) Migration and its Enemies. Global Capital, Migrant Labour
and the Nation State. Hampshire-Burlington: Ashgate
Conroy, P. (2003) Trafficking in Unaccompanied Minors in Ireland. Dublin: IOM
Coster van Voorhout, J.E.B. (2007) 'Human trafficking for labour exploitation:
Interpreting the crime' Utrecht Law Review, Volume 3, Issue 2, December 2007,
pp. 44-69. Online at http://www.utrechtlawreview.org
104
Council of Europe GRETA. (2013) Report concerning the implementation of the
Council of Europe Convention on Action against Trafficking in Human Beings by
Ireland. Online at www.coe.int. [Accessed 02/05/2014]
Craig, G., Corden, A. and Thornton, P. (2000) Safety in Social Research (Social
Research Update 29). Guildford: University of Surrey
Criminal Law (Human Trafficking) Act 2008 (No. 8), House of the Oireachtas:
Dublin
Criminal Law (Human Trafficking) (Amendment) Act 2013 (No. 24), House of the
Oireachtas: Dublin
Denscombe, M. (2010) Ground Rules for Social Research: guidelines for good
practice, 2nd edition, Berkshire: Open University Press
Denscombe, M. (2010a) The Good Research Guide for Small-scale Social
Research Projects, 4th edition, Berkshire: Open University Press
DJELR [Department of Justice, Equality and Law Reform]/ An Garda Siochana
(2006) Working Group on Trafficking in Human Beings. Dublin: Department of
Justice and Law Reform
Dormaels, A., Moens, B. And Preaet, N. 'The Belgian counter-trafficking policy'
in van denAnker, C. (ed.) (2004) The Political Economy of Slavery. Hampshire:
Palgrave Macmillan
Dower, N. 'The Global framework for development: Instrumentality or contested
ethical space?' in van denAnker, C. (ed.) (2004) The Political Economy of
Slavery. Hampshire: Palgrave Macmillan
Dowling, E. 'Strategies for Change: The Tobin Tax' in van denAnker, C. (ed.)
(2004) The Political Economy of Slavery. Hampshire: Palgrave Macmillan
Dowling, S. et al. (2007) Trafficking for the Purposes of Labour Exploitation: A
Literature Review. UK: Home Office
Doyle, R. (2006) Modern Slavery, Scientific American, January 2006, pp.30
Dwyer, P., Lewis, H., Scullion, L. and Waite, L. (2011) Forced labour and UK
Immigration policy: status matters? York: Joseph Rowntree Charitable Trust
Economics of Human Trafficking Research Group online at
http://www.economics-human-trafficking.net/anti-trafficking-3p.html [Accessed
02/09/2014]
Elezi, A. (2011) ‘Fighting Human Trafficking’, Juridical Current, Volume 14, Issue
1, 2011, pp.77-91
European Expert Group on Trafficking in Human Beings (2004) Consultative
Workshop in the Framework of the EU Forum for the Prevention of Organised
Crime, Brussels, 26 October 2004. Online at:
http://www.legislationonline.org/documents/id/8755 [Accessed 14/06/2014]
Gallagher, A. 'Human Rights and Human Trafficking: A Reflection on the
Influence and Evolution of the U.S Trafficking in Persons Report' in Brysk, A.
and Choi Fitzpatrick (eds.) (2012) From Human Trafficking to Human Rights:
Re-framing Contemporary Slavery. Philadelphia: University of Pennsylvania
Press
105
Gangmasters Licencing Authority (2014) Teamwork approach to target
trafficking. Online at http://www.gla.gov.uk/PageFiles/1532/Project%20Advenus
%20-%20final.pdf [Accessed 02/08/2014]
Global Slavery Index. (2013) Online at http://www.globalslaveryindex.org
[Accessed 24/11/2013]
Gulati, G.J. 'Representing Trafficking: Media in the United States, Great Britain
and Canada' in Brysk, A. and Choi Fitzpatrick (eds.) (2012) From Human
Trafficking to Human Rights: Re-framing Contemporary Slavery. Philadelphia:
University of Pennsylvania Press
Heinrich, K. H. (2010) 'Ten Years After the Palermo Protocol: Where are
Protections for Human Trafficking Victims?', Human Rights Brief, Vol. 18 (1), pp.
2-5.
Herbert, L. 'The sexual politics of U.S Inter/National Security' in Brysk, A. and
Choi Fitzpatrick (eds.) (2012) From Human Trafficking to Human Rights: Reframing Contemporary Slavery. Philadelphia: University of Pennsylvania Press
Hernandez, D., & Rudolph, A. (2011) Modern Day Slavery: What Drives Human
Trafficking in Europe? (No. 97). Courant Research Centre: Poverty, Equity and
Growth-Discussion Papers.
ICTU [Irish Congress of Trade Unions] / MRCI [Migrant Rights Centre Ireland].
(2011) A Framework for Tackling Forced Labour in Ireland. Dublin: ICTU
ILO [International Labour Organisation] (1930) Forced Labour Convention,
1930: Convention CO29. Online at http://www.ilo.org/ilolex/cgi-lex/convde.pl?
CO29 [Accessed 10/10/2013]
ILO (2001) Stopping Forced Labour: Global report under the follow-up to the
ILO Declaration on Fundamental Principles and Rights at Work, Report of the
Director-General, International Labour Conference, 89 th session, Geneva.
ILO (2003) Perspectives: The ILO’s Special Action Programme to Combat
Forced Labour’, International Labour Review, Volume 142 (2003) Number 1,
pp.73-85
ILO (2005a) A Global alliance against forced labour: Global report under the
follow-up to the ILO Declaration on Fundamental Principles and Rights at Work,
Report of the Director-General, International Labour Conference, 93 rd session,
Geneva.
ILO (2005b) ILO Minimum Estimate of Forced Labour in the World. Geneva:
ILO
ILO (2005c) Human trafficking and forced labour exploitation: Guidance for
legislation and law enforcement, Special action programme to combat forced
labour. Geneva: ILO.
ILO (2006) Legal aspects of trafficking for Forced Labour purposes in Europe,
Geneva: ILO
ILO (2012) ILO Global Estimate of Forced Labour. Geneva: ILO
ILO (2014) Profits and Poverty: The economics of forced labour. Geneva: ILO
IOM (2010) Migrant Resource Centres: an initial assessment. IOM:Geneva
106
Jarman, N. (2014) Forced Labour in Northern Ireland: An Update. York: Joseph
Rowntree Foundation
Joyce, C. and Quinn, E. (2014) Identifying Victims of Trafficking in Human
Beings in Asylum and Forced Return Procedures: Ireland. Dublin: EMN
Kangaspunta, K. (2007) 'Collecting Data on Human Trafficking: Availability,
Reliability and Comparability of Trafficking Data' in Savona, E. U. and
Stefanizzi, S. (eds.) Measuring Human Trafficking: Complexities and Pitfalls.
New York: Springer, pp.27–36
Karakus, O. (2008). A Quantitative Analysis of the Growing Business of
Organized Crime: Structural Predictors of Cross-national Distribution of Human
Trafficking Markets and Trafficking in Women in Turkey. ProQuest.
Karyotis, G. (2007) 'Securitization of European Migration in the Aftermath of
September 11: The Security-Migration nexus', Innovation: The European
Journal of Social Science Research. Vol. 20, Issue 1, 2007
Kearns, C., Jess, S., Keatings, T. and Matthews, D. (2008) ‘Pesticide Usage
Survey 223: Northern Ireland Mushroom Crops’. Belfast: Department of
Agriculture and Rural Development
Kelly, L. (2007) ‘A conducive context: trafficking of persons in central Asia’, in
Lee, M. (ed.) Human Trafficking. Collumpton: Willan Publishing, pp.73-91
King, G. (2004) Woman, child for sale: The new slave trade in the 21 st century.
New York: Chamberlain Bros
Laubeova, M. (2012) Human Trafficking: A Modern Form of Slavery?
Connections between human trafficking, forced labour and immigration
controls. Marston Gate: Amazon.co.uk Ltd
Laczko, F. (2007) 'Enhancing Data Collection and Research on Trafficking in
Persons' in Savona, E. U. & Stefanizzi, S (eds.) Measuring Human Trafficking:
Complexities And Pitfalls. New York: Springer, pp.37–44
LeBaron, G. and Crane, A. (2013) Hidden in Plain Sight: Slavery on a High
Street near You. The Guardian 20th November, Online at
http://www.theguardian.com/global-development-professionalsnetwork/2013/nov/20/forced-labour-in-supply-chains [Accessed 23/11/13]
Lewis, H. and Waite, L (2013) To end domestic servitude, first fix immigration
policy, The Conversation 22nd November, Online at https://theconversation.com/toend-domestic-servitude-first-fix-immigration-policy-20663 [Accessed 18/4/14]
Lewis, H., Waite, L. and Hodkinson, S. (2014) Tackling forced labour among
refugees and asylum seekers: a guide. Leeds: University of Leeds
Manokha, I. 'Modern Slavery and Fair Trade Products: Buy one and set
someone free' in van denAnker, C. (ed.) (2004) The Political Economy of
Slavery. Hampshire: Palgrave Macmillan
Mantouvalou, V. (2010) Modern Slavery: The UK Response, Industrial Law
Journal, vol.39, no.4, pp.425-431
Modern Slavery (2014) The Economist Daily Chart, 20 th May, Online at
http://www.economist.com/blogs/graphicdetail/2014/05/daily-chart-12
[Accessed 23/05/14]
107
MRCI [Migrants Rights Centre Ireland] and Coghlan, D. (2006) No Way
Forward: No Going Back: Identifying the Problem of Forced Labour in Ireland.
Dublin: Migrant Rights Centre Ireland and Dublin City University
MRCI (2006) Harvesting Justice: Mushroom Workers Call for Change. Dublin:
MRCI
MRCI (2012) Situating Migrant Workers in a Decent Work Agenda: The Need
for Solidarity in Recession Ireland. Dublin: Migrant Rights Centre Ireland
MRCI (2014) Trafficking for Forced Labour in Cannabis Production: The Case
of Ireland. Dublin: Migrant Rights Centre Ireland
Murphy, C. (2013) Protection from Slavery, Servitude and Forced Labour under
the ECHR: Problems and Prospects, Human Rights in Ireland. Online at
http://humanrights.ie/criminal-justice/protection-from-slavery-servitude-andforced-labour-under-the-echr-problems-and-prospects/ [Accessed 26/11/2013]
Neumayer, E. and de Soysa, I. (2007) ‘Globalisation, Women’s Economic
Rights and Forced Labour’, The World Economy 2007, pp. 1510- 1535. London:
Blackwell Publishing Ltd.
Northern Ireland Human Rights Commission / Institute for Conflict Research
(2009) The Nature and Extent of Human Trafficking in Northern Ireland. Belfast:
Equality Commission
Obakata, T. ( 2006) Trafficking of Human Beings from a Human Rights
Perspective: Towards a Holistic Approach. Boston: Martinus Nijhoff
O'Connell Davidson, J. (2010) New Slavery, Old Binaries: Human Trafficking
and the Borders of 'Freedom', Global Networks, vol.10, no.2, pp.244-261.
OSCE [Organisation for Security and Co-operation in Europe] / ODIHR [Office
for Democratic Institutions and Human Rights (2004) National Referral
Mechanisms: Joining Efforts to Protect the Rights of Trafficked Persons. A
Practical Handbook. Warsaw: OSCE/ODIHR
OSCE (2006) A Summary of Challenges Facing Legal Responses to Human
Trafficking for Labour Exploitation in the OSCE Region, OSCE Occasional
Paper Series 1. Online at
http://www.osce.org/publications/cthb/2008/01/23622_811_en.pdf [Accessed
07/06/2014]
OSCE (2007) Combating Trafficking in Human Beings for Labour Exploitation.
Decision No. 8/07, 30 November
Ould, D. 'Trafficking and International Law' in van denAnker, C. (ed.) (2004) The
Political Economy of Slavery. Hampshire: Palgrave Macmillan
Pillinger, J. (2007) Trafficking of women and children for sexual exploitation.
Policy Paper. Dublin: Immigrant council of Ireland
Plant, R. (2009) Forced Labour: Global Perspectives and Challenges:
Presentation to Seminar on ‘’Strategies for Tackling Forced Labour’’, Migrant
Rights Centre Ireland, in Conjunction with the Anti Human Trafficking Unit
(Department of Justice and Equality and Law Reform) and the Irish Congress of
Trade Unions, Dublin, 1 October 2009
Quirke, J. (2009) New Approaches to Combating Modern Slavery, Human
Rights Quarterly, vol.31, no.1, pp.257-267.
108
Quirke, J. 'Uncomfortable silences: Contemporary Slavery and the 'lessons' of
History' in Brysk, A. and Choi Fitzpatrick (eds.) (2012) From Human Trafficking
to Human Rights: Re-framing Contemporary Slavery. Philadelphia: University of
Pennsylvania Press
Rogers, C. A. and Swinnerton, K. A (2008) A theory of exploitative child labour,
Oxford Economic Papers. 60 pp 20-41. Downloaded from
http://oep.oxfordjournals.org
Sanghera, J. 'Unpacking the Trafficking Discourse', in Kempadoo, K. (ed.)
(2005) Trafficking and Prostitution Reconsidered. London: Paradigm Publishers
SAP-FL (Special Action Programme to combat Forced Labour) (2005) Forced
Labour and Human trafficking: Estimating the Profits. Geneva: ILO
SAP-FL (2012) A Global Alliance Against Forced Labour and Trafficking in
Persons. Geneva: ILO
Scanlon, S. (2007) 'Assistance to Victims of Trafficking: We can do Better',
Alliance Against trafficking in Person Conference. Anti-Trafficking Programme,
OSCE/ODIHR. Vienna, 10-11 September 2007.
Scarpa, S. (2008) Trafficking in Human Beings: Modern Slavery. Oxford: Oxford
University Press.
Shelly, L. (2003) 'Trafficking in women: The business model approach', The
Brown Journal of World Affairs, vol.10, no.1, pp.119-131.
Skrivankova, K. (2010) Between Decent Work and Forced Labour: Examining
the Continuum of Exploitation. York: Joseph Rowntree Foundation
Slavin, R. E. (1986) Best-evidence Synthesis: An Alternative to Meta-Analytic
and Traditional Reviews, Educational Researcher, vol. 15, no.9, pp.5-11.
Smit, M. (2011) 'Trafficking in human beings for labour exploitation. The case of
the Netherlands', Trends in Organized Crime, vol. 14, pp.184-197.
Strauss, A. and Corbin, J. M. (1990) Basics of Qualitative Research: Grounded
Theory Procedures and Techniques. Newbury Park, CA: Sage
United Nations Office on Drugs and Crime (UNODC) (2004) United Nations
Convention Against Transnational Crime and The Protocols Thereto. New York:
United Nations.
UNODC (2009) International Framework for Action To Implement the Trafficking
in Persons Protocol. New York: United Nations.
U.S. Department of State (2013) Trafficking in Persons Report (Ireland) online
at http://www.state.gov/j/tip/rls/tiprpt/countries/2013/215485.htm [Accessed
10/10/13]
U.S. Department of State (2014) Trafficking in Persons Report online at
http://www.state.gov/j/tip/rls/tiprpt/2014/index.htm [Accessed 07/07/14]
van denAnker, C. 'Contemporary Slavery, Global Justice and Globalization' in
van denAnker, C. (ed.) (2004) The Political Economy of Slavery. Hampshire:
Palgrave Macmillan
van denAnker, C. 'Making Human Rights Accessible: The Role of Governments
in Trafficking and Migrant Labour Exploitation' in Brysk, A. and Choi Fitzpatrick
109
(eds.) (2012) From Human Trafficking to Human Rights: Re-framing
Contemporary Slavery. Philadelphia: University of Pennsylvania Press
Ward, E. and Wylie, G (2012) Researching the nature and Extent of Human
Trafficking in Ireland, The Protection Project: Journal of Human Rights and Civil
Society, vol 5. pp.59-72
Ward, E. and Wylie, G (2014) 'Reflexivities of discomfort': Researching the Sex
Trade and Sex Trafficking in Ireland, European Journal of Womens Studies,
vol.21, no.3, pp. 251-26
110
Appendix A: Participant Information Sheet
Information for Participants
Purpose: As part of the requirements for the Masters in Social Policy at UCC, I have to
carry out a research study. This study is concerned with the issue of Forced Labour in
the Irish context and the legislation which is in place to deal with the phenomenon.
Procedure: If you agree to participate in the research, I will conduct an interview with
you at a time and location of your choice. The interview should last approximately 30 45 minutes. With your permission, I will audiotape and take notes during the interview.
This is to accurately record the information you provide, and will be used for
transcription purposes only. If you prefer not to be audio taped, I will take notes instead.
If you agree to being audio taped but feel uncomfortable at any time during the
interview, I can turn off the recorder at your request. You can stop the interview at any
time.
I expect to only carry out one interview, however follow up contact may be necessary in
order to clarify certain points. If so, this will be kept to a minimum and I will contact
you by email or telephone to request this.
Participation: Participation in this study is completely voluntary. You are free to
decline to take part in this research. A consent form is attached for you to sign to say
that you agree to participate, a copy of which will be given back to you prior to
commencement of the interview. If you sign the form and agree to participate, you still
have the option to withdraw at any time and can opt to refrain from answering any
questions that are posed. If you participate in an interview a transcript of the interview
will be available, and data obtained can also be excluded from the study at your request.
After the interview, you have the option to withdraw permission to use any data
obtained within two weeks, in which case the material recorded will be destroyed.
Use of Information: The information provided will be used as part of the data collected
for my thesis. It will be seen by my supervisor, a second marker and an external
examiner. The thesis may be read by future students on the course and other university
staff members. The study may also be published in a research journal and used by others
with an interest in the area.
Confidentiality: The interview data obtained will be handled as confidentially as
possible. Should you request that your identity and responses remain anonymous, I will
ensure that no clues to your identity are apparent in the study.
When the research is completed, I may save the tapes and notes for use in future
research for up to 3 years after the study is over, unless you request otherwise.
Questions: If you have any questions about this research, or require any further
information, please feel free to contact me by email at s.j.turner@umail.ucc.ie.
If you agree to take part in the study, please sign the attached consent form and return
by email prior to the meeting if at all possible.
Thank you in advance for your help.
Samantha Turner
111
Appendix B: Research Consent Form
Name: _______________________________________________
Organisation: __________________________________________
I agree to participate in Samantha Turner's research study, undertaken as part of the
requirement for the Masters in Social Policy at University College Cork.
The purpose and nature of the research has been explained to me in writing.
I understand that my participation is entirely voluntary and can be withdrawn at any
time, without repercussions.
I understand that I can withdraw permission to use any data provided within two weeks
of the interview taking place, in which case the material will be deleted by the
researcher.
I understand that extracts from my interview may be quoted in the thesis and any
subsequent publications if I give my permission below:
Please tick one box:
I agree to quotation / publication of extracts from my interviews
I do not agree to quotation / publication of extracts from my interviews
Signed: _______________________________ Date: __________________________
ONLY If you agree to allow your name and other identifying information to be included
in all final presentations and/or publications resulting from this research, please also
sign and date below:
Signed: ________________________________ Date: __________________________
112
Appendix C: Sample Interview Guide
Introduction & Consent to record discussion
Questions surrounding the Issue of Forced Labour in the Irish context
How do you see the issue of Forced Labour manifesting itself in Ireland today?
What do you believe are the main contributing factors to Forced Labour?
Could these factors also be applied to Irish nationals?
How do you think the public view the issue of Forced Labour?
Do you think it gets enough attention from government bodies?
Why/ Why Not?
Should more be done?
Do you believe that the instances of Forced Labour have increased in recent times?
If 'Yes' or 'No' - Why do you think this is so?
What do you believe are the main obstacles to eradicating Forced Labour?
What can / should be done about these?
Do you believe that it is helpful to have Forced Labour outlined in the Irish legislation?
What benefits, if any, does it bring?
Do you believe that the current amended legislation has had an impact on the issue of Forced
Labour?
If so how?
For whom?
If not, why not?
In your opinion, should Forced Labour be legislated for separate to the Trafficking Act?
Why / Why not?
What are the benefits?
If not, how should it be legislated?
What do you think to the view that forced labour should be dealt with by other bodies and in
other ways – e.g. employment law?
How could this be applied in practice?
Do you think that people fully understand that trafficking can be internal as well as crossborder?
Should more be done to highlight this?
Should the fact that Forced Labour can and does affect Irish citizens within the state as well as
migrants be acknowledged more by policy makers?
If 'yes' or 'no' - Why?
If 'yes' – How?
Do you believe a lack of public understanding mean that instances of Forced Labour may go
unnoticed and/ or unpunished by legislating only within a trafficking framework?
If 'no' – Why not?
If so, what should be done to help correct this?
113
UN PROPOSED PROTOCOL
What do you see as the benefits to Irish policy of implementing the ILO Protocol?
How best can it be implemented within the Irish policy context?
When do you believe it is likely to be ratified?
Do you believe that this will improve the situation in Ireland?
How / Why/Why not?
Does it go far enough?
Were there other aspects that you believe should have been covered by the protocol?
How useful do you believe national policies to deal with Forced Labour in Ireland are in an ever
increasing globalised world?
Are current policies deterrent enough?
In your opinion, will amendments in Irish policy help the issue of Forced Labour on a global
scale?
Why/Why not?
What else, in your opinion needs to be done to find a solution?
CLOSING
Finally, do you have any other comments, suggestions or opinions around the phenomenon that
you would like to make?
114
Appendix D: Criminal Law (Human Trafficking) Act 2008
————————
Number 8 of 2008
————————
CRIMINAL LAW (HUMAN TRAFFICKING) ACT 2008
————————
ARRANGEMENT OF SECTIONS
Section
1. Interpretation.
2. Trafficking, etc., of children.
3. Trafficking, taking, etc., of child for purpose of sexual exploitation.
4. Trafficking of persons other than children.
5. Soliciting or importuning for purposes of prostitution of trafficked person.
6. Offences by bodies corporate.
7. Jurisdiction.
8. Proceedings relating to offences committed outside State.
9. Double jeopardy.
10. Exclusion of members of public from proceedings.
11. Anonymity of victims of trafficking.
12. Amendment of Criminal Evidence Act 1992.
13. Amendment of Act of 2001.
14. Amendment of Bail Act 1997.
15. Short title and commencement.
————————
[No. 8.] Criminal Law (Human Trafficking) Act 2008. [2008.]
Acts Referred to
Bail Act 1997
Child Trafficking and Pornography Act 1998
Criminal Evidence Act 1992
Criminal Justice (Miscellaneous Provisions) Act 1997
Criminal Law (Sexual Offences) Act 1993
Criminal Law (Sexual Offences) Act 2006
Criminal Law (Sexual Offences) (Amendment) Act 2007
Sex Offenders Act 2001
1997, No. 16
1998, No. 22
1992, No. 12
1997, No. 4
1993, No. 20
2006, No. 15
2007, No. 6
2001, No. 18
————————
Number 8 of 2008
————————
CRIMINAL LAW (HUMAN TRAFFICKING) ACT 2008
————————
AN ACT TO GIVE EFFECT TO COUNCIL FRAMEWORK DECISION OF 19 JULY 2002 1 ON
COMBATING TRAFFICKING IN HUMAN BEINGS; TO GIVE EFFECT, IN PART, TO THE UNITED
NATIONS PROTOCOL TOPREVENT, SUPPRESS AND PUNISH TRAFFICKING IN PERSONS,
ESPECIALLY WOMEN AND CHILDREN, SUPPLEMENTING THE UNITED NATIONS
CONVENTION AGAINST TRANSNATIONAL ORGANISED CRIME, DONE AT NEW YORK ON 15
NOVEMBER 2000, AND THE COUNCIL OF EUROPE CONVENTION ON ACTION AGAINST
TRAFFICKING IN HUMAN BEINGS DONE AT WARSAW ON 16 MAY 2005; FOR THOSE
PURPOSES TO AMEND CERTAIN ENACTMENTS; TO AMEND SECTION 3 OF THE SEX
OFFENDERS ACT 2001; AND TO PROVIDE FOR MATTERS CONNECTED THEREWITH.
[7th May, 2008]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
115
1.—In this Act—
“Act of 1998” means the Child Trafficking and Pornography Act
1998;
“Act of 2001” means the Sex Offenders Act 2001;
“child” means a person under the age of 18 years;
“exploitation” means—
(a) labour exploitation,
(b) sexual exploitation, or
(c) exploitation consisting of the removal of one or more of the organs of a person;
“labour exploitation” means, in relation to a person (including a child)—
(a) subjecting the person to forced labour,
(b) forcing him or her to render services to another, or
(c) enslavement of the person or subjecting him or her to servitude or a similar
condition or state;
“sexual exploitation” means, in relation to a person—
(a) the production of pornography depicting the person either alone or with others,
(b) causing the person to engage in sexual activity for the purpose of the production of
pornography,
(c) the prostitution of the person,
(d) the commission of an offence specified in the Schedule to the Act of 2001 against
the person; causing another person to commit such an offence against the person; or
causing the person to commit such an offence against another person, or
(e) otherwise causing the person to engage or participate in any sexual, indecent or
obscene act;
“trafficks” means, in relation to a person (including a child)—
(a) procures, recruits, transports or harbours the person, or
(i) transfers the person to,
(ii) places the person in the custody, care or charge, or under the control, of, or
(iii) otherwise delivers the person to, another person,
(b) causes a person to enter or leave the State or to travel within the State,
(c) takes custody of a person or takes a person—
(i) into one’s care or charge, or
(ii) under one’s control,
or
(d) provides the person with accommodation or employment.
2.—
(1) A person who trafficks a child for the purposes of the exploitation of the child shall be guilty
of an offence.
(2) A person who—
(a) sells a child, offers or exposes a child for sale or invites the making of an offer to
purchase a child, or
(b) purchases or makes an offer to purchase a child, shall be guilty of an offence.
(3) A person who causes an offence under subsection (1) or (2) to be committed shall be guilty of
an offence.
(4) A person who attempts to commit an offence under subsection (1), (2) or (3) shall be guilty of
an offence.
(5) A person guilty of an offence under this section shall be liable upon conviction on indictment
—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(6) In this section “exploitation” does not include sexual exploitation.
3.—
Section 3 (amended by section 6 of the Criminal Law (Sexual Offences) (Amendment) Act
2007) of the Act of 1998 is amended by—
(a) the substitution of the following subsections for subsections (1) and (2):
“(1) A person who trafficks a child for the purposes of the sexual exploitation
of the child shall be guilty of an offence and shall be liable upon conviction on
indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(2) A person who—
116
(a) sexually exploits a child, or
(b) takes, detains, or restricts the personal liberty of, a child for the purpose of his or her
sexual exploitation, shall be guilty of an offence and shall be liable upon conviction
on indictment—
(i) to imprisonment for life or a lesser term, and
(ii) at the discretion of the court, to a fine.”,
and
(b) the substitution of the following subsections for subsection (3):
“(3) A person who causes another person to commit an offence under
subsection (1) or (2) shall be guilty of an offence and shall be liable upon
conviction on indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(4) A person who attempts to commit an offence under subsection (1), (2) or
(3) shall be guilty of an offence and shall be liable upon conviction on
indictment—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(5) In this section—
‘child’ means a person under the age of 18 years;
‘sexual exploitation’ means, in relation to a child—
(a) inviting, inducing or coercing the child to engage in prostitution or the production of
child pornography,
(b) the prostitution of the child or the use of the child for the production of child
pornography,
(c) the commission of an offence specified in the Schedule to the Sex Offenders Act
2001 against the child; causing another person to commit such an offence against the
child; or inviting, inducing or coercing the child to commit such an offence against
another person,
(d) inviting, inducing or coercing the child to engage or participate in any sexual,
indecent or obscene act, or
(e) inviting, inducing or coercing the child to observe any sexual, indecent or obscene
act, for the purpose of corrupting or depraving the child,
and ‘sexually exploits’ shall be construed accordingly;
‘trafficks’ means, in relation to a child—
(a) procures, recruits, transports or harbours the child, or—
(i) transfers the child to,
(ii) places the child in the custody, care or charge, or under the control, of, or
(iii) otherwise delivers the child to, another person,
(b) causes the child to enter or leave the State or to travel within the State,
(c) takes custody of the child or takes the child—
(i) into one’s care or charge, or
(ii) under one’s control,
or
(d) provides the child with accommodation or employment.”.
4.—(1) A person (in this section referred to as the “trafficker”) who trafficks another person (in this
section referred to as the “trafficked person”), other than a child or a person to whom subsection (3)
applies, for the purposes of the exploitation of the trafficked person shall be guilty of an offence if, in or
for the purpose of trafficking the trafficked person, the trafficker—
(a) coerced, threatened, abducted or otherwise used force against the trafficked person,
(b) deceived or committed a fraud against the trafficked person,
(c) abused his or her authority or took advantage of the vulnerability of the trafficked
person to such extent as to cause the trafficked person to have had no real and
acceptable alternative but to submit to being trafficked,
(d) coerced, threatened or otherwise used force against any person in whose care or
charge, or under whose control, the trafficked person was for the time being, in order to
compel that person to permit the trafficker to traffick the trafficked person, or
(e) made any payment to, or conferred any right, interest or other benefit on, any person
in whose care or charge, or under whose control, the trafficked person was for the time
117
being, in exchange for that person permitting the trafficker to traffick the trafficked
person.
(2) In proceedings for an offence under this section it shall not be a defence for the defendant to
show that the person in respect of whom the offence was committed consented to the
commission of any of the acts of which the offence consists.
(3) A person who trafficks a person who is mentally impaired for the purposes of the exploitation
of the person shall be guilty of an offence.
(4) A person who—
(a) sells another person, offers or exposes another person for sale or invites the making
of an offer to purchase another person, or
(b) purchases or makes an offer to purchase another person, shall be guilty of an
offence.
(5) A person who causes an offence under subsection (1), (3) or (4) to be committed shall be
guilty of an offence.
(6) A person who attempts to commit an offence under subsection (1), (3), (4) or (5) shall be
guilty of an offence.
(7) A person guilty of an offence under this section shall be liable upon conviction on indictment
—
(a) to imprisonment for life or a lesser term, and
(b) at the discretion of the court, to a fine.
(8) In this section “mentally impaired” has the same meaning as it has in the Criminal Law
(Sexual Offences) Act 1993.
5.—
(1) Where, for the purposes of the prostitution of a trafficked person, a person (other than that
trafficked person) solicits or importunes another person, including that trafficked person, in any
place, he or she shall be guilty of an offence.
(2) A person (other than the trafficked person in respect of whom the offence under subsection
(1) is committed) who accepts, or agrees to accept a payment, right, interest or other benefit from
a person for a purpose mentioned in subsection (1) shall be guilty of an offence.
(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction to a fine not exceeding \5,000 or
a term of imprisonment not exceeding 12 months, or
both, or
(b) on conviction on indictment to a fine or a term of imprisonment
not exceeding 5 years, or both.
(4) In proceedings for an offence under this section it shall be a defence for the defendant to
prove that he or she did not know and had no reasonable grounds for believing, that the person in
respect of whom the offence was committed was a trafficked person.
(5) This section is in addition to, and not in substitution for, section 7 of the Act of 1993 in so far
as an offence under that section is committed by, or in respect of, a trafficked person.
(6) In this section—
“Act of 1993” means the Criminal Law (Sexual Offences) Act 1993;
“solicits or importunes” has the same meaning as it has in the Act of 1993;
“trafficked person” means—
(a) a person in respect of whom an offence under subsection (1) or (3) of
section 4 has been committed, or
(b) a child who has been trafficked for the purpose of his or her exploitation.
6.—Where an offence under this Act is committed by a body corporate and is proved to have been so
committed with the consent or connivance of or to be attributable to any neglect on the part of any person,
118
being a director, manager, secretary or other officer of the body corporate, or a person who was
purporting to act in such capacity, that person shall, as well as the body corporate, be guilty of an offence
and shall be liable to be proceeded against and punished as if he or she were guilty of the first-mentioned
offence.
7.—
(1) Where a person who is an Irish citizen or ordinarily resident in the State does an act in a place
other than the State that, if done in the State, would constitute an offence under section 2 or 4, or
section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of
an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or
both.
(2) Where a person does an act in relation to an Irish citizen in a place other than the State that, if
done in the State, would constitute an offence under section 2 or 4, or section 3 (other than
subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be
liable on conviction on indictment to a fine, or imprisonment for life, or both.
(3) Where a person conspires with, or incites, in the State, another person to do an act in a place
other than the State that, if done in the State, would constitute an offence under section 2 or 4, or
section 3 (other than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of
an offence and shall be liable on conviction on indictment to a fine, or imprisonment for life, or
both.
(4) Where a person who is an Irish citizen or ordinarily resident in the State conspires with, or
incites, in a place other than the State, another person to do an act in a place other than the State
that, if done in the State, would constitute an offence under section 2 or 4, or section 3 (other
than subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and
shall be liable on conviction on indictment to a fine, or imprisonment for life, or both.
(5) Where a person conspires with, or incites, in the State or in a place other than the State,
another person to do an act in relation to an Irish citizen in a place other than the State that, if
done in the State, would constitute an offence under section 2 or 4, or section 3 (other than
subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be
liable on conviction on indictment to a fine, or imprisonment for life, or both.
(6) Where a person conspires with, or incites, in a place other than the State, a person who is an
Irish citizen or ordinarily resident in the State to do an act in a place other than the State that, if
done in the State, would constitute an offence under section 2 or 4, or section 3 (other than
subsections (2A) and (2B)) of the Act of 1998, he or she shall be guilty of an offence and shall be
liable on conviction on indictment to a fine, or imprisonment for life, or both.
(7) Where a person attempts to commit an offence under subsection (1), (2), (3), (4), (5) or (6),
he or she shall be guilty of an offence and shall be liable on conviction on indictment to a fine, or
imprisonment
for life, or both.
(8) For the purposes of this section a person shall be deemed to be ordinarily resident in the State
if—
(a) he or she has had his or her principal residence in the State for the period of 12
months immediately preceding the alleged commission of the offence,
(b) it is a company registered under the Companies Acts, or
(c) in the case of any other body corporate, it is established under the law of the State.
8.—
Proceedings for an offence under section 7 may be taken in any place in the State and the offence
may for all incidental purposes be treated as having been committed in that place.
9.—
(1) Where a person has been acquitted of an offence in a place other than the State, he or she
shall not be proceeded against for an offence under this Act consisting of the alleged act or acts
constituting the first-mentioned offence.
(2) Where a person has been convicted of an offence in a place other than the State, he or she
shall not be proceeded against for an offence under this Act consisting of the act or acts
119
constituting the first-mentioned offence.
10.—
(1) In proceedings for an offence under section 2 or 4, or section 3 (other than subsections (2A)
and (2B)) of the Act of 1998, or incitement or conspiracy to commit any such offence, all
persons, other than officers of the court, persons directly concerned in the proceedings and such
other persons (if any) as the judge of the court may determine, shall be excluded from the court
during the proceedings.
(2) In proceedings to which this section applies the verdict or decision and the sentence (if any)
shall be pronounced in public.
11.—
(1) Where a person is charged with an offence under section 2 or 4, or section 3 (other than
subsections (2A) and (2B)) of the Act of 1998, any person who publishes or broadcasts any
information, including—
(a) any photograph of, or that includes a depiction of, the alleged victim of the offence,
or
(b) any other representation of the physical likeness, or any representation that includes
a depiction of the physical likeness, of the alleged victim of the offence, that is likely to
enable the identification of the alleged victim of the offence, shall, subject to any
direction under subsection (2), be guilty of an offence and shall be liable upon
conviction on indictment to a fine, or imprisonment for a term not exceeding 10 years,
or both.
(2) The judge of the court in which proceedings for an offence under section 2 or 4, or section 3
(other than subsections (2A) and (2B)) of the Act of 1998, are brought may, where he or she
considers that the interests of justice so require, direct that such information to which subsection
(1) applies as he or she shall specify in the direction may be published or broadcast in such
manner and subject to such conditions as he or she may specify in the direction.
(3) A direction under this section shall be in writing.
(4) A person who contravenes a direction under this section, including a condition in such a
direction, shall be guilty of an offence and shall be liable upon conviction on indictment to a
fine, or imprisonment for a term not exceeding 10 years, or both.
(5) In this section—
“broadcasts” means transmits, relays or distributes by wireless telegraphy or by any
other means, or by wireless telegraphy in conjunction with any other means, of
communications, sounds, signs, visual images or signals intended for reception by any
person whether such communications, sounds, signs, visual images or signals are
received by that person or not;
“publishes” means publishes to any person, and includes publishes on the internet.
12.—The Criminal Evidence Act 1992 is amended—
(a) in the definition of “sexual offence” (inserted by section 16 of the Criminal Justice
(Miscellaneous Provisions) Act 1997) in section 2, by—
(i) the deletion of paragraph (iv) (inserted by section 7(2) of the Criminal Law (Sexual
Offences) Act 2006), and
(ii) the substitution of the following paragraph for paragraph (e):
“(e) the Criminal Law (Sexual Offences) Act 2006;”,
and
(b) by the substitution of the following section for section 12 (amended by section 10 of the Act
of 1998):
“12.—This Part applies to—
(a) a sexual offence,
(b) an offence involving violence or the threat of violence to a person,
(c) an offence under section 3, 4, 5 or 6 of the Child Trafficking and Pornography Act
1998,
(d) an offence under section 2, 4 or 7 of the Criminal Law (Human Trafficking) Act
2008, or
(e) an offence consisting of attempting or conspiring to commit, or of aiding or abetting,
120
counselling, procuring or inciting the commission of, an offence mentioned in
paragraph (a), (b), (c) or (d).”.
13.—
The Act of 2001 is amended—
(a) in section 3, by—
(i) the substitution of the following paragraph for paragraph (a) of subsection (2):
“(a) paragraph 2 of the Schedule (sexual assault or indecent assault), other than an
offence of sexual assault or indecent assault of a person who, at the time of the
commission of the offence, was mentally impaired,”,
(ii) the substitution of the following paragraph for paragraph (ii) of subsection (2):
“(ii) the person guilty of the offence— (I) is, for the time being, the subject of an order
of the court remanding him or her on bail or in custody pending the passing of sentence,
or (II) has not, in respect of the offence, been sentenced to any punishment involving
deprivation of liberty for a limited or unlimited period of time or been made subject to
any measure involving such deprivation of liberty.”, and
(iii) the insertion of the following subsection:
“(4) In this section ‘mentally impaired’ has the same meaning as it has in section 5 of
the Criminal Law (Sexual Offences) Act 1993.”,
(b) in section 12, by the substitution of the following subsection for subsection (3):
“(3) A person guilty of an offence under this section shall be liable—
(a) on summary conviction, to a fine not exceeding €5,000, or imprisonment for a term
not exceeding 12 months, or both, or
(b) on conviction on indictment to a fine not exceeding €10,000, or imprisonment for a
term not exceeding 5 years, or both.”,
(c) in section 33, by the insertion of the following subsection:
“(4) Proceedings for an offence under subsection (1) may be brought and prosecuted by
a probation and welfare officer.”, and
(d) in the Schedule, by the insertion of the following paragraph:
“16A. An offence under the Criminal Law (Human Trafficking) Act 2008 in so far as the
offence is committed for the purposes of the sexual exploitation of a person.”.
14.—
The Schedule to the Bail Act 1997 is amended by the insertion of the following paragraph:
“8A. An offence under the Criminal Law (Human Trafficking) Act 2008.”.
15.—
(1) This Act may be cited as the Criminal Law (Human Trafficking) Act 2008.
(2) This Act shall come into operation one month after its passing.
121
Appendix E: Criminal Law (Human Trafficking) (Amendment) Act 2013
————————
Number 24 of 2013
————————
CRIMINAL LAW (HUMAN TRAFFICKING) (AMENDMENT)
ACT 2013
————————
ARRANGEMENT OF SECTIONS
Section
1. Amendment of section 1 of Criminal Law (Human
Trafficking) Act 2008.
2. Amendment of Criminal Law (Human Trafficking) Act 2008.
3. Amendment of Child Trafficking and Pornography Act 1998.
4. Amendment of Criminal Evidence Act 1992.
5. Short title and commencement.
————————
[No. 24.] Criminal Law (Human Trafficking) Amendment Act 2013 [2013.]
Acts Referred to
Child Trafficking and Pornography Act 1998
Criminal Evidence Act 1992
Criminal Justice (Public Order) Act 2011
Criminal Law (Human Trafficking) Act 2008
Criminal Procedure Act 1967
Ethics in Public Office Act 1995
1998, No. 22
1992, No. 12
2011, No. 5
2008, No. 8
1967, No. 12
1995, No. 22
————————
Number 24 of 2013
————————
CRIMINAL LAW (HUMAN TRAFFICKING) (AMENDMENT)
ACT 2013
————————
AN ACT TO GIVE EFFECT TO CERTAIN PROVISIONS OF DIRECTIVE
2011/36/EU OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL OF 5
APRIL 20111 ON PREVENTING AND COMBATING TRAFFICKING IN HUMAN
BEINGS AND PROTECTING ITS VICTIMS, AND REPLACING COUNCIL
FRAMEWORK DECISION 2002/629/JHA; FOR THOSE AND OTHER PURPOSES
TO AMEND AND EXTEND THE CRIMINAL LAW (HUMAN TRAFFICKING) ACT
2008, THE CHILD TRAFFICKING AND PORNOGRAPHY ACT 1998 AND THE
CRIMINAL EVIDENCE ACT 1992; AND TO PROVIDE FOR RELATED MATTERS.
[9th July, 2013]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
1.—Section 1 of the Criminal Law (Human Trafficking) Act 2008
is amended—
(a) by substituting the following definition for the definition of “exploitation”:
“ ‘exploitation’ means—
(a) labour exploitation,
(b) sexual exploitation,
122
(c) exploitation consisting of the removal of one or more of the organs of a person, or
(d) exploitation consisting of forcing a person to engage in—
(i) an activity that constitutes an offence and that is engaged in for financial
gain or that by implication is engaged in for financial gain, or
(ii) an activity in a place other than the State that—
(I) constitutes an offence under the law of that place and would, if
done in the State, constitute an offence, and
(II) is engaged in for financial gain or that by implication is engaged
in for financial gain;”,
(b) by substituting the following definition for the definition of “labour exploitation”:
“ ‘labour exploitation’ means, in relation to a person (including a child)—
(a) subjecting the person to forced labour (including forcing him or her to beg),
(b) forcing the person to render services to another person, or
(c) enslavement of the person or subjecting him or her to servitude or a similar
condition or state;”,
and
(c) by inserting the following definitions:
“ ‘beg’ has the same meaning as it has in section 1(2) of the Criminal Justice (Public
Order) Act 2011;
‘forced labour’ means a work or service which is exacted from a person under the
menace of any penalty and for which the person has not offered himself or herself
voluntarily, but shall not include any of the following:
(a) a work or service exacted by virtue of compulsory military service laws for
work of a purely military character;
(b) a work or service which forms part of the normal civic obligations of the
citizens of a fully self-governing country;
(c) a work or service exacted from a person as a consequence of a conviction in
a court of law if—
(i) the work or service is carried out under the supervision and control
of a public authority,
and
(ii) the person is not hired to, or placed at the disposal of, a person
who is not a public authority;
(d) a work or service exacted in a case of an emergency that endangers or that
may endanger the existence or the well-being of the whole or part of the
population, including war, fire, flood,famine, earthquake, violent epidemic or
epizootic diseases or invasion by animal, insect or vegetable pests;
(e) a minor communal service of a kind which, being performed by the
members of the community in the direct interest of the community, can be
considered as a normal civic obligation incumbent upon the members of the
community, and where the members of the community, or their direct
representatives, have the right to be consulted in regard to the need for that
service;”.
2.—The Criminal Law (Human Trafficking) Act 2008 is amended by inserting the following section after
section 4:
4A.— (1) Where a court is determining the sentence to be imposed on a person for an offence
under section 2 or 4, the fact that the offence was committed by a public official during
the performance of his or her duties as such public official shall be treated for the
purpose of determining the sentence as an aggravating factor.
(2) Accordingly, the court shall (except where the sentence for the offence is one of
imprisonment for life or where the court considers that there are exceptional
circumstances justifying its not doing so) impose a sentence that is greater than that
which would have been imposed in the absence of such factor.
(3) The sentence imposed shall not be greater than the maximum sentence permissible
for the offence.
(4) In this section—
‘public body’ shall be construed in accordance with the Ethics in Public Office Act
123
1995;
‘public official’ means an officer or employee of a public body.”.
3.—The Child Trafficking and Pornography Act 1998 is amended by inserting the following section after
section 3:
3A.— (1) Where a court is determining the sentence to be imposed on a person for an offence
under section 3 (other than an offence under subsection (2A) or (2B) of that section), the
fact that the offence was committed by a public official during the performance of his or
her duties as such public official shall be treated for the purpose of determining the
sentence as an aggravating factor.
(2) Accordingly, the court shall (except where the sentence for the offence is one of
imprisonment for life or where the court considers that not doing so) impose a sentence
that is greater than that which would have been imposed in the absence of such factor.
(3) The sentence imposed shall not be greater than the maximum sentence permissible
for the offence.
(4) In this section—
‘public body’ shall be construed in accordance with the Ethics in Public Office Act 995;
‘public official’ means an officer or employee of a public body.”.
4.—The Criminal Evidence Act 1992 is amended—
(a) in section 15—
(i) in subsection (1), by substituting the following paragraphs for paragraphs
(a), (b) and (c):
“(a) under Part IA of the Criminal Procedure Act 1967, the prosecutor
consents to the sending forward for trial of an accused person who is
charged with an offence to which this Part applies,
(b) the person in respect of whom the offence is alleged to have been
committed, or a person who has made a video-recording under section
16(1)(b)(ii), is under 18 years of age on the date consent is given to
the accused being sent forward for trial, and
(c) it is proposed that a video-recording of a statement made by the
person concerned during an interview as mentioned in section 16(1)
(b) shall be given in evidence pursuant to that section,”,
and
(ii) by substituting the following subsection for subsection (2):
“(2) The judge hearing an application under section 4E of the Criminal
Procedure Act 1967 may consider any statement made, in relation to
an offence, by a person in a video-recording mentioned in section
16(1)
(b) if the person is available for cross-examination at the hearing of
the
application.”,
(b) in section 16(1), by substituting the following paragraph for paragraph (b):
“(b) a video-recording of any statement made during an interview with
a member of the Garda Síochána or any other person who is
competent for the purpose—
(i) by a person under 14 years of age (being a person in respect of whom such
an offence is alleged to have been committed), or
(ii) by a person under 18 years of age (being a person other than the accused) in
relation to an offence under—
(I) section 3(1), (2) or (3) of the Child Trafficking and Pornography
Act 1998, or
(II) section 2, 4 or 7 of the Criminal Law (Human Trafficking) Act
2008,”,
and
(c) in section 19, by substituting “16(1)(a) and (b)(ii) to a person under 18 years of age
and the reference in section 16(1)(b)(i)” for “16(1)(a) to a person under 18 years of age
and the reference in section 16(1)(b)”.
5.—
(1) This Act may be cited as the Criminal Law (Human Trafficking) (Amendment) Act 2013.
(2) This Act shall come into operation one month after its passing.
124
Appendix F: European Commission Proposal to Ratify the Protocol of
2014 to the Forced Labour Convention, 1930
COM(2014) 563 final 2014/0259 (NLE) Brussels, 11.9.2014
Proposal for a
COUNCIL DECISION
authorising Member States to ratify, in the interest of the European Union, the
Protocol of 2014 to the Forced Labour Convention, 1930, of the International Labour
Organisation with regard to matters related to social policy
EXPLANATORY MEMORANDUM
CONTEXT OF THE PROPOSAL
The proposed Council Decisions will enable Member States to ratify the Protocol to the
Forced Labour Convention, 1930, of the International Labour Organisation (ILO), hereinafter ‘the
Protocol’.
The Forced Labour Convention, 1930 (No 29) of the ILO (‘the Convention’) is one of the ILO’s eight
fundamental Conventions that make up the core international labour standards, and it is considered
a human rights instrument. In adopting the Convention in 1930, the International Labour
Conference (‘the Conference’) called upon States to end the use of forced labour within the shortest
possible period, and to criminalise the offence. Yet, more than 80 years later, despite almost
universal ratification of the Convention, the practice still exists, albeit in different forms to those
that provoked such concern in the early twentieth century. The ILO estimates that at least 20.9
million people globally are victims of forced labour.
The Protocol, adopted by the 103rd session of the Conference, seeks to address gaps in
implementation and to make progress on preventing trafficking for labour exploitation and
protecting and compensating victims of forced labour.
The European Union (EU) is committed to promoting human rights and decent work and to
eradicating trafficking in human beings, both internally and in its external relations. Of particular
importance in the context of the Protocol is also the commitment of the EU to the promotion of the
protection of the rights of the child and gender equality, as women may be particularly vulnerable to
some forms of forced labour. Rights at work are a key pillar of decent work. In ratifying ILO
Conventions and related Protocols, EU Member States send an important signal on the coherence of
the EU’s policy in promoting fundamental principles and rights at work and improving working
conditions worldwide.
In addition, as part of the EU’s strategy on eradicating trafficking in human beings, the Commission
urged EU Member States to ratify all relevant international instruments, agreements and legal
obligations. This will help address trafficking in human beings in a more effective, coordinated and
coherent manner. Strengthening victims' rights in the EU has also been a strategic priority of the
Commission over the past few years. The horizontal Victims' Rights Directive will ensure that
victims of crime benefit from common minimum standards of rights during police investigations
and court proceedings. The Protocol should be seen as part of this work.
It is therefore necessary that any legal impediments at EU level to ratification of the Protocol by EU
Member States be removed at EU level. The Protocol’s substance does not cause any concern in the
light of the existing EU acquis.
The Protocol’s provisions strengthen the international legal framework by establishing obligations
to prevent forced labour and to provide victims with protection and access to remedies, such as
compensation.
The Protocol, in its Articles 1 and 6, requires ILO Member States to develop a national policy and
plan of action for the effective and sustained suppression of forced labour and to take measures to
apply the Protocol’s provisions, in consultation with employers’ and workers’ organisations. Article
2 of the Protocol sets out the measures that ILO Member States must take to prevent forced labour,
namely:
• educating and informing people, especially those who are particularly vulnerable, and employers;
• making efforts to ensure that the coverage and enforcement of legislation relevant to the
125
prevention of forced labour apply to all workers and all sectors of the economy and that labour
inspection services are strengthened;
• protecting people, especially migrant workers, from potentially abusive and fraudulent
recruitment and placement practices;
• supporting due diligence by both the public and private sectors; and
• addressing the root causes heightening the risks of forced labour.
As regards the victims of forced labour, Article 3 provides that effective measures are to be taken for
their identification, release, protection, recovery and rehabilitation and other forms of assistance
and support. Article 4 requires ILO Member States to ensure that all victims have access to
remedies, such as compensation, and that competent authorities are entitled not to prosecute
victims for unlawful activities that they have been compelled to commit. In addition, Article 5
provides for international cooperation to prevent and eliminate forced labour and Article 7 deletes
the transitional provisions from the Convention.
The Protocol addresses areas of EU law that are already subject to an advanced degree of regulation.
In its provisions on preventing forced labour, the Protocol deals with aspects covered by EU social
policy, in respect of which EU law sets minimum rules on working conditions. In its provisions on
protection of victims and access to remedies, the Protocol deals with aspects relating to judicial
cooperation in criminal matters, in respect of which EU law sets minimum standards on antitrafficking and victims’ rights. Parts of the Protocol also interplay with freedom of movement for
workers and rules on asylum and immigration. In addition, the Protocol interplays with rules under
the common commercial policy, EU international agreements, development cooperation and trade
instruments that make reference to core labour standards and the ratification and effective
implementation of fundamental ILO Conventions by third countries and in the EU.
2014/0259 (NLE)
Proposal for a
COUNCIL DECISION
authorising Member States to ratify, in the interest of the European Union, the
Protocol of 2014 to the Forced Labour Convention, 1930, of the International
Labour Organisation with regard to matters related to social policy
THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty on the Functioning of the European Union, and in particular
Article 153 (1) (a) and (b) TFEU in conjunction with Article 218(6) (a) (v) thereof,
Having regard to the proposal from the European Commission,
Having regard to the consent of the European Parliament14,
Whereas:
(1) The European Union is promoting the ratification of international labour conventions
that have been classified by the International Labour Organisation as up-to-date, to
contribute to the European Union’s efforts to promote human rights and decent work
for all as well as to eradicate trafficking in human beings both inside and outside the
EU, of which the protection of fundamental principles and rights at work is a key
aspect.
(2) Parts of the rules under the Protocol of 2014 to the Forced Labour Convention, 1930,
of the International Labour Organisation (ILO), hereinafter ‘the Protocol’, fall within
the competences of the Union in accordance with Article 153(1) (a) and (b) TFEU. In
particular, some rules of the Protocol are already covered by the EU acquis in the area
of social policy15.
(3) As a consequence, Member States may not enter into commitments in relation to these
parts outside the framework of the European Union’s institutions16.
(4) Article 19(4) of the ILO Constitution, on the adoption and ratification of Conventions,
similarly applies to a Protocol, which is a binding international agreement, subject to
ratification and linked to a Convention.
(5) The European Union cannot ratify the Protocol, as only States can be parties thereto.
(6) It is therefore necessary that Member States are authorised to ratify the Protocol,
acting jointly in the interests of the European Union, for the parts falling under Union
competence in accordance with Article 153(1) (a) and (b) TFEU.
(7) The provisions of the draft Protocol other than the provisions related to social policy
will be subject to a Decision adopted in parallel to this Decision.
126
HAS ADOPTED THIS DECISION:
Article 1
Member States are hereby authorised to ratify, for the parts falling under the competence
conferred upon the European Union in Article 153(1) (a) and (b) TFEU, the Protocol of
2014 to the Forced Labour Convention, 1930, of the International Labour Organisation.
Article 2
Member States should take the necessary steps to deposit their instruments of ratification
of the Protocol with the Director-General of the International Labour Office as soon as
possible, preferably by 31 December 2016.
Article 3
This Decision is addressed to the Member States.
Done at Brussels,
For the Council
The President
__________________________________________________________________________________________________________
14 OJ C , , p. .
15 In particular, Articles 1(1), 2(a) and 2(d) of the Protocol concern matters governed by Directive 91/533/EEC on an employer’s
obligation to inform employees on the conditions applicable to the contract or employment relationship (“written statement”),
Directive 2008/104/EC on temporary agency work, as well as Directive on health and safety at work, including the Framework
Directive 89/391/EEC, the working time Directive 2003/88/EC, the protection of young people at work Directive 94/33/EEC and
the maternity protection Directive 92/85/EEC.
16 ECJ, Case 22/70 Commission vs Council ("AETR") [ECR] 1971, 263, paragraph 22, Opinion 2/91 ("ILO"), ECR 1993-I, 1061,
paragraph 26 and Case C-45/07, Commission vs Greece [ECR] 2009 I-701, paragraph 31.
127
Samantha Jane Turner