My word, you think, if this is the seventh draft, what on earth must versions one to six have been like? Following the passage of the Modern Slavery Act, “many businesses have called for effective guidance on producing a slavery and human trafficking statement” acknowledges the Home Office, but the latest draft of its Practical Guide to Transparency in Supply Chains is clearly not it.
Let us leave aside the random punctuation, teenage English and blatant non sequiturs which gives the draft Guidance the feel of something put together by a group of work experience students sat in separate rooms. Let us ignore also the repeated use of “remediate” instead of “remedy” and grit our teeth through nouns like company and organisation changing from singular to plural and back in the same sentence. All that can (though probably won’t) be fixed in later drafts.
But what cannot be ignored here is a series of deeper failings which make the Guidance in its current form close to an active liability for employers seeking to rely upon it. In particular:
- It does not define “supply chain”, a concept right at the heart of the new law. If I buy from a supplier only once or twice, is that my supply chain for MSA purposes? In addition, says the Guidance, “it is not always clear at what point poor working practices and lack of health and safety awareness seep into…human trafficking [or] slavery”. A number of the key components of the new legislation are therefore left unclear.
- The Guidance blurs beyond deciphering the lines between legal compliance, good practice and ideal-world aspiration. It refers also to the protection of human rights, even though the statute itself does not.
- It makes reference to points as obligations which are simply not contained either in the MSA itself or in the wider law – for example, that “businesses are likely to need [well, will they or won’t they?] to build on what they are doing year on year” and the fabulously unfounded “businesses…have a legal duty to drive out poor labour practices in their business (sic)“.
- It relies extensively on the adoption of “a common sense approach” as the pre-emptive defence to complaints about the vagueness of the MSA drafting (and let us face it – any two page legislative provision which requires 49 pages of Guidance has its issues with clarity, does it not?). This is of little help to employers, since their idea of common sense could well differ from that of the Secretary of State charged with enforcement. One example given of the adoption of such approach relates to the assessment of whether a commercial organisation is carrying on a business in the UK. Applying common sense, says paragraph 1.4 brightly, “would mean that organisations that do not have a demonstrable business presence in the UK would not be caught”. Even that is later qualified, perhaps as too definitive – paragraph 3.8 says only that it is “anticipated” that businesses without a presence in the UK will not be caught by legislation aimed at businesses which do. Really, Sherlock?
- Paragraph 4.1 says that the MSA statement should “cover all the relevant points”, while 4.2 swiftly undermines that with “it is up to organisations how much detail they provide”. Paragraph 4.3 gives up any real attempt to help at all, and just refers the reader off to the CSR and ethical trade sections of the websites of major UK retailers (but without indicating which).
All that said, there are some points of note which the tolerant reader can glean from the Guidance which may be of reassurance to those businesses just seeking to comply with the law:
- “To comply with the provision a business may state that they have taken no steps”.
- “[The MSA] does not mean that the organisation…must guarantee that the entire supply chain is slavery-free”.
- “Legal compliance is not related to how well the statement is written or presented”.
- “We would encourage organisations to [do the MSA statement] within six months of the organisation’s financial year end”.
- “Due diligence in assessing modern slavery or human rights risks in operations or supply chains is not a legal requirement of the transparency provisions”.
No one can dispute the good intentions of the MSA. Some may even say that it does not go far enough. However, from the perspective of an employer concerned primarily with the humble aspiration of adequate legal compliance, good law is clear law. The MSA is not clear and the practical assistance which one might faintly have thought would be found in 49 pages of official Guidance is simply not there. This really needs another look before it is launched or it risks bringing the very worthy aims of the MSA into disrepute.