Most English-speakers, I imagine, would have little difficulty defining torture. They would be equally clear about slavery. In the first instance, we would be talking abhorrent physical methods used to try to extract information; in the second, the buying and selling of human beings for their labour.
What were once quite specific and commonly accepted meanings, however, seem to be developing a new elasticity, thanks in part to decisions made by judges and legislators; in part to pressure from well-meaning campaigners.
Last month, a high court judge found in favour of seven asylum-seekers, who had been detained pending decisions on their applications. Their case was that, as per the Home Office’s own guidelines, they should not have been detained because they had survived torture. The ruling, handed down by Mr Justice Ousely, turned on the definition of torture.
It emerged that for several years, in deciding who should be detained, the Home Office had applied a broader definition of torture than the one set out in the UN Convention Against Torture. The broader definition included rape and sexual assault, as well as maltreatment inflicted by someone in pursuit of a personal grievance, rather than in the name of a state or other recognised authority.
Two years ago, however, the Home Office had brought its definition into line with the narrower, UN, definition, and the seven asylum-seekers in the recent court case had fallen on a certain side of that line. In what was hailed as a great victory by Medical Justice, the charity that brought the case, the judge upheld the broader definition and ruled that it should have applied. The Home Office said it would not appeal.
"What were once commonly accepted meanings seem to be developing a new elasticity"Now it should be stressed that this case was not about the definition of torture as it applies to the granting of asylum—where torture is a persuasive, but not absolutely conclusive, factor, and the narrower, UN, definition applies. It was only about the exemption of torture victims from detention while their asylum claims are assessed, on the grounds that, by replicating conditions of confinement, detention might well compound their suffering.
But it raises several questions. Is it satisfactory for two different definitions of torture to coexist in the legal system? And is it really right to include sexual assault and rape in the definition of torture? Is rape, say, not enough of a crime, without being treated as a subset of torture? And should everyone who has been heinously maltreated in whatever way, for whatever purpose, have a claim to be considered a torture victim? Does the broader definition, now validated by the courts, not risk downgrading torture, or indeed rape, as distinct crimes?
And so to slavery. The Modern Slavery Act came into force in 2015 with great fanfare, and Theresa May, first as Home Secretary, and now as Prime Minister, has been a fervent champion of the cause. But the law seems not to be working very well.
Just last week, the Inspectorate of Constabulary for England and Wales took police forces to task for “letting down” thousands of victims. The week before, the National Police Chiefs Council had reported—with a positive gloss—that there were more than 400 investigations in progress, up more than 200 per cent from the year before.
What comes of these investigations, however, may be another matter. Sky News discovered, via a Freedom of Information request, that, out of 1,265 cases reported by police forces in the two years to March 2017, there had been only 25 successful prosecutions—a conviction rate of 1.9 per cent.
This is why it might be worth asking whether the problem here is entirely down to enforcement, or whether—as hinted at in the Inspectorate of Constabulary report—something else might be to blame. The sense, perhaps, that the victims are predominantly “not ours”—women trafficked from eastern Europe and west Africa for prostitution, Vietnamese smuggled in to work on cannabis farms, and so on. Might it not also be, however, that the public finds the definition of “modern slavery,” as now enshrined in the law, less than completely convincing?
Now it is true that, by using the qualification “modern,” the law allows for a definition of slavery than goes beyond the evil that Wilberforce and others fought. But in the attempt to catch all sorts of exploitation in the same net—from children trafficked to work as skivvies or thieves, to adults forced to work to repay the cost of their illegal passage, to those working in the grey economy for a lot less than the minimum wage—it seems to me something of the meaning of slavery—trade in human beings for their labour—may have been lost.
"Public trust in the powers-that-be has been shrinking—and could yet be diminished further"It is true that there have been cases where the term slavery, modern or not, seems entirely apt. When children, for instance, or adults with learning difficulties, are held captive and used as unpaid labour, the crime is clear. And the public agrees. A jury had no difficulty in convicting 11 members of the Rooney family under the Modern Slavery Act earlier this year.
But when customers are encouraged (as we have been) to scrutinise the demeanour of those working in nail bars and hand car washes for “modern slaves,” when the talk turns to illegal migrants employed on building sites without proper health and safety, or those working anywhere for a lot less than the minimum wage, is this really slavery? Or does it rather reflect the UK’s scandalously lax approach to the enforcement of our labour laws?
If car washes and so on are such potential dens of illegality, why are they not being inspected or raided as a matter of course? If it were harder, or more costly, to exploit people in this way—as it is, for instance, in Scandinavia—might the police not have more time to go after the real slave-drivers?
Now you might ask: why quibble about definitions? Does it really matter that such terms as “torture” and “slavery” are being stretched as they are? My own view is that it does matter, and that for legislators and others to redefine words that used to be well understood is to set off down a very slippery slope.
Public trust in the powers-that-be has been shrinking. If very specific terms start to acquire meanings that do not command broad support, then trust could be diminished further. And where trials are heard by a jury, as they are with prosecutions for modern slavery, the law could become that much more difficult to enforce.
