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Use of the Council of Europe Anti Trafficking Convention and the EU Trafficking Directive (for lawyers)

In general terms, domestic law gives few dedicated and enforceable rights to victims of trafficking.  Accordingly, victims of trafficking have to rely on existing generic domestic law to obtain remedies.  However, as domestic laws were not designed or drafted to assist victims of trafficking, they are often imperfectly suited to the task.

Accordingly, it may be necessary to argue that the court or tribunal apply international law in order to provide an effective remedy.

The EU Trafficking Directive

The domestic application of the EU Trafficking Directive is relatively straightforward. Courts and tribunals are familiar with the long-established applicability of EU law in a domestic context. EU directives (including the trafficking directive) are ‘vertically directly effective’. This means that a private individual may only use a directive against the state, but not against another private individual.  Therefore, if a victim is bringing a claim against the Home Office, they may rely on the directive, whether or not it has been correctly implemented into domestic law. The directive, in effect, ‘over-writes’ domestic law and any domestic law which is in conflict with the directive, can be disregarded.

However, because directives are only directly effective against the state, this option is not available if the victim is proceeding against their trafficker, another private individual. Instead, the domestic court or tribunal is under a duty, if it is possible, to interpret domestic law in line with the directive.  Accordingly, if there is any possible ambiguity in the law, then it should be construed in line with the directive. The courts and tribunals have a somewhat uneven record in how interventionist they have been prepared to be in interpreting domestic law in line with EU directives.  However, it is probably safe to say that they have become more willing to do so over time.  In the case of Lock and another v British Gas Trading Ltd [2016] EWCA Civ 983 the court was prepared to reverse the sense of the English law in order to interpret domestic legislation in line with the directive; however, this was a case involving Working Time Regulations which were expressly intended to mirror the Working Time Directive.

If it is simply not possible to construe English law in line with the directive, then the final argument is that anti-trafficking – by analogy with anti-discrimination – should be regarded as a core tenet of European law and therefore a private individual may rely on a directive against another private individual (‘horizontal direct effect’). This relies on the Kücükdeveci v Swedex GmbH & Co KG (2010) C-555/07 and Dansk Industri v Estate of Karsten Eigil Rasmussen ( C-441/14) discrimination line of authorities. (The Rasmussen case provides a good summary of the principles of the applicability of EU directives.) This as yet is an untested argument.

If all of these arguments fail, then the only other option is to consider a claim against the state for failure to implement a directive based on Francovich v Italy  (1991) C-6/90.

The rights to compensation under the Trafficking Directive are less clear cut than under the Convention. However, it can still be useful to claimant victims. In Puthenveetil v Alexander and George UKEATPA/0125/14/LA, the Employment Appeal Tribunal relied on the Claimant’s rights in the directive to legal aid, in finding that it can be an error of law to fail to delay an employment hearing to permit a claimant to apply for legal aid for the proceedings.

Brexit, including the Charter of Fundamental Rights

The position before Brexit

Before Brexit, victims of trafficking were able to rely on rights under EU law. Because there is little domestic law giving rights to victims, EU law has played a significant role in providing victims with rights and remedies.

Where EU law had direct effect (for instance treaty provisions, directly effective parts of Directives, the EU Charter) victims could rely on EU law in a court or tribunal irrespective of the provisions of domestic law. This could be a very powerful tool allowing victims immediate and effective access to a remedy.

To illustrate, in Benkharbouche v. Embassy of the Republic of Sudan; Janah v. Libya [2014] ICR 169 the Supreme Court found that the immunity from suit enjoyed by foreign embassies under the State Immunity Act contravened, in certain circumstances, an embassy worker’s rights under the Human Rights Act and under the EU Charter of Fundamental Rights because it prevented them from bringing a claim in the Employment Tribunal. The Court issued a declaration of incompatibility under the Human Rights Act. However, the government subsequently failed to amend the State Immunity Act, thus preventing workers from bringing a Tribunal claim.

Nevertheless, workers are able to bring claims in the Tribunal against embassies, if these rights are of European derivation, eg discrimination or annual leave. This is because article 47 of the EU Charter of Fundamental Rights means that English domestic law must be dis-applied in favour of EU law. Therefore, the Charter provides an immediate and effective remedy although domestic law has not been amended.

In addition, EU rights continue to be used to expand protection of victims. For instance, the claimant in Puthenveetil v Alexander, George & The Secretary of State for Business, Energy & Industrial Strategy 2361118/2013 in the Employment Tribunal seeks to dis-apply the family worker exemption in the National Minimum Wage on the basis that it is incompatible with Article 157 of the EU Treaty in that it constitutes unlawful indirect sex discrimination.

The position during 2020

The UK left the European Union on 31 January 2020. We are currently in the transition period (also called the implementation period) until 31 December 2020. During that time, there are very few if any material differences to the impact of EU law and victims continue to enjoy their rights under EU law.

In practical terms for compensation claims, nothing has changed.

The position from 2021 onwards

After 31 December 2020, unless the transition period is extended, EU law will cease to apply unless it has been retained by the EU Withdrawal Act 2018 (as amended).
The first thing to remember is that if a legal right has accrued before 31 December 2020, the client will in almost all cases continue to be able to rely on EU law even if proceedings started or are decided after 1 January 2021. To illustrate, if a client is not paid during 2020, they can bring a claim (subject to statutory time limits) and the courts and tribunals will apply the law in force at the material time, including EU law.

The difficulty is for victims whose rights accrue after 31 December 2020. They will only be able to rely on EU law to the extent that it is retained in domestic law.

The principle behind the EU Withdrawal Act appears to be that we take a “screenshot” of EU law on 31 December 2020 and this screenshot is retained in domestic law. After 31 December, this retained EU law might be altered by the UK parliament, but unless and until then, it operates – mostly – in the same way as before Brexit. EU law will, presumably, continue to develop and change after 31 December, but these new developments will not be incorporated into domestic law. EU and domestic law will over time diverge after 31 December.

Unfortunately, it is not entirely clear what EU law rights will and will not be retained post-Brexit. It appears that rights under the EU Treaty will be retained – section 4(1) EU Withdrawal Act. However, it is unclear what rights under directives (including the discrimination directives and the Trafficking Directive) will be retained – section 4(2).
It does appear clear that the Charter will not apply after 2020 (section 5(4)).

We will have to wait for litigation to establish what EU rights have and have not been retained after 31 December 2020. There may be uncertainty for a significant period of time.

The Council of Europe Anti-Trafficking Convention

The applicability of the Anti-Trafficking Convention is less clear cut. There are no rules as to direct applicability or otherwise of Council of Europe conventions. However, practitioners should consider the case of Hounga v Allen [2014] UKSC 47. In this case the Supreme Court overturned a Court of Appeal decision permitting a trafficker to rely on the doctrine of Ex Turpi Causa (that someone who has committed an illegal act may not rely on that act in litigation) to avoid liability to her victim. In the second half of the judgment, the Supreme Court held by a majority that it would be contrary to the United Kingdom’s obligations under Article 15 of the Convention, to refuse a remedy in the Employment Tribunal to a victim of trafficking on the basis that she was working illegally.  Accordingly, illegality did not bar the trafficking victim from a remedy.

The Convention was also considered in Ms A Hemdan v Ms Ishmail and Mr H Al-Megraby : UKEAT/0021/16/DM . The appeal tribunal, under its president, relied on the Convention as an aid for interpretation when considering the correct approach to making a deposit order against a victim of trafficking.

The High Court case of Ajayi contains a very useful statement of the effect of the Convention:

The Claimant seeks compensation as the victim of trafficking. The United Kingdom has ratified the Council of Europe Convention on Action Against Trafficking in Human Beings, (The Trafficking Convention). Article 15 of the Trafficking Convention provides that the internal law of the ratifying nations should provide a right of victims to compensation from the perpetrators. The Supreme Court held in Hounga v Allen [2014] 1 WLR 2889 that this obligation not only required the United Kingdom to ensure that victims of trafficking have a right to compensation for the trafficking itself, but also a right to compensation for related acts of discrimination. The court also held that there is also a strong presumption in favour of interpreting English law in a way which does not place the United Kingdom in breach of an international obligation. In Rantsev v Cyprus and Russia [2010] 51 EHRR 1, the European Court of Human Rights recognised that Article 4 of the ECHR prohibits human trafficking and Article 13 requires convention states to provide a domestic remedy for violations of the ECHR rights. Section 3 of the Human Rights Act 1998 requires domestic courts to give effect to primary and subordinate legislation in a way which is compatible with Convention rights. Accordingly, if the court finds that the Claimant is the victim of trafficking, she is entitled to compensation.

This again is an area that is open to further development.

The Human Rights Convention

Finally, the victims may need to rely on the Human Rights Convention.  It should be remembered that the Human Rights Act was deliberately drafted so that the Convention is not directly applicable in English courts by one individual against another; however, the legal proceedings must comply with the Convention, most obviously Article 6, the right to a fair hearing. Further, following the Supreme Court in Gilham v Ministry of Justice [2019] UKSC 4, there may be arguments that in effect give ‘direct effect’ to Convention rights.

The Human Rights Convention may also be relevant to duties under Article 4, prevention of forced labour which includes human trafficking, following the Rantsev v. Cyprus and Russia, Application no. 25965/04  line of authority).

Post-Brexit, this area of law may see further developments.

An application may be made, if the litigation reaches the Court of Appeal, for a Declaration of Incapability with the Human Rights Convention. Be aware that such a declaration is likely to be stayed pending any appeal to the Supreme Court. Further, while a declaration does not necessarily assist the individual litigant in recovering compensation from their trafficker, it may form the basis of a claim for damages against the state.

 

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