Convention on Domestic Workers

Debate between Fiona Mactaggart and Ed Davey

Wednesday 29th June 2011 Westminster Hall

[Fiona Mactaggart]

To my surprise, when I conclude my remarks, I am going to read a quote from the Centre for Social Justice. That is not normally a place to which I look for guidance, but when it launched its inquiry into human trafficking its director said that it was critical that all the sectors—the Government, voluntary organisations, employers and employees—worked together on a coherent strategy to deal with this modern-day form of slavery. My contention is that the Government’s position is confused—if I am kind—or actively malevolent —if I am not—and that it is not working coherently to deal with this serious and substantial human rights problem in the UK.

Removing the right for migrant domestic workers to change employer means a return to bonded labour. The visa has been recognised as the main form of protection for this group of workers, who, as has been recognised by the international convention, are especially vulnerable to severe exploitation, including slavery and trafficking for domestic servitude. Indeed, the 2009 report of the Home Affairs Committee included the statement:

“To retain the existing migrant domestic worker visa and the protection it offers to workers is the single most important issue the government can do to prevent forced labour and trafficking”

of such workers.

At a time when the Government are choosing not to participate in an international convention, they are choosing, domestically, to remove an important protection for migrant domestic workers against slavery and bondage. Removing the visa altogether will increase both trafficking via illegal routes and unlawful working, which will leave these workers believing that they are unable to contact the authorities for assistance and with fewer, if any, enforceable rights. Limiting the length of the visa makes it likely that unscrupulous employers will keep workers working for them beyond the length of the visa, again without any recourse to meaningful legal protection against severe exploitation.

The Government claim that anti-trafficking measures can replace the protections provided by the visa. I have talked to Kalayaan, whose work I praise. It is the most effective group that represents migrant domestic workers. I have known its work since about a quarter of a century ago, when it helped illegal entrants to the UK who did not know that they were illegal entrants. Together with others who work with victims of trafficking, it has produced a report that shows how ineffective the measures we already have are in practice for all victims.

The report shows that the overseas domestic worker visa is a relatively inexpensive and effective way of protecting migrant domestic workers, and that, without that legal channel, trafficking of domestic workers via illegal routes will increase. Workers who do not benefit from those protections, particularly domestic workers who enter the UK accompanying diplomats, are more likely to be in slavery than those who work in private households. Kalayaan’s figures show that seven in every 100 of the diplomatic workers they have seen were trafficked, compared with one in 1,000 migrant domestic workers in private households. That shows how effective the visa is.

Let us be clear: even when they are not trafficked, these workers are commonly subject to the most grotesque abuse and exploitation. Kalayaan has produced figures that show that two thirds of those who approached them did not have any time off—they worked seven days a week. Three quarters of them worked on call and had to be available 24 hours a day. More than half of them worked 16 or more hours a day, and 70% received a salary of £50 or less a week. I do not think that the Minister is proud of that type of exploitation, but it is a reality and the failure to sign up to the convention and to take any effective action means that it will be a more common reality in Britain.

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Mr Edward Davey)]

The hon. Lady has an excellent record on campaigning against human trafficking and slavery. How would signing the convention have helped to tackle slave labour and human trafficking in the UK? What difference would it have made to our domestic legislation?

[Fiona Mactaggart]

Signing the convention would make a difference in three ways. The first is the signal it would send to traffickers, who will otherwise believe, no doubt, that the UK is joining their infamous gang and saying that this country is open to human trafficking. We know how extensive human trafficking is in the UK and that it is more profitable than drug dealing. It is the most profitable activity for organised crime, although the field of human trafficking is unorganised as well as organised, because people as well as agencies supply domestic workers. Moreover, individual families bring domestic workers with them. It is, therefore, important that Britain sends out a signal that we are closed to that kind of abuse.

Secondly, the victims themselves would also get a signal. People who work with victims of trafficking have told me that those victims believe that they have no recourse to help and that the clear signal is that they are dependent on their owners/employers, who usually retain their passports. They do not believe that anyone can help them. They are frightened of approaching the police and, frankly, our national referral mechanism is an incompetent way for them to get help.

Thirdly, if we were signatories to the convention, the Minister would have to do something about this level of labour exploitation. Our laws apparently say, and we claim at international events, that we have fantastic working hours and protection and so on. However, 67% of the migrant domestic workers who approached Kalayaan said that they did not have any time off, were working seven days a week and worked on call for 24 hours a day, and more than half of them worked for 16 or more hours a day. The Minister may say that the UK’s position is that people ought, voluntarily, to be able to work for more than 16 hours a day, but I do not believe that those workers were working voluntarily for more than 16 hours a day when their salary was £50 or less a week. If the Minister were a signatory to the international convention, I think that he would actually have to do something about this level of labour exploitation in people’s homes.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Business, Innovation and Skills (Mr Edward Davey)]

I congratulate the hon. Member for Slough South East (Fiona Mactaggart) on securing a debate on this important subject. She spent quite a lot of time talking about trafficking, and I understand her campaigning role on that and her record, but we do want to talk about the text of the convention, so I thank her for the opportunity to explain why the Government abstained on the vote on the convention while strongly supporting its principles.

A key factor in understanding our position is recognition of how the convention would or would not have changed our domestic laws for domestic workers. In the UK, we already have a legal framework of basic employment rights and social protections for employees and workers, including domestic workers. So, like other workers, most domestic workers benefit from the national minimum wage, statutory sick pay, paid annual leave and protection from discrimination and unfair dismissal, as well as other protections. My hon. Friend the Member for South West Bedfordshire (Andrew Selous) was completely right about that: the key question is enforcement.

[Fiona Mactaggart]

The Minister says that most domestic workers benefit from paid annual leave.

[Fiona Mactaggart]

I am sure that they should. I want to know how the Minister knows that most actually do, because in my experience, it is very likely that most do not. I do not know how he knows that most do.

[Mr Davey]

This is a question of the law. The law says that those workers are entitled. Signing the convention would have made no difference to that. The question that my hon. Friend the Member for South West Bedfordshire raised was about enforcement. The hon. Lady should understand that. It is about enforcement.

[Mr Davey]

Of course I will come to that point as it is central to my speech, but let me say for the record that I am undertaking a review of enforcement and compliance rights in the UK to try to improve enforcement in the UK. I hope that my hon. Friend the Member for South West Bedfordshire would welcome that.

Domestic workers have the same access as other workers to mechanisms for enforcing their rights. The national minimum wage and statutory sick pay, for example, are enforced by Her Majesty’s Revenue and Customs, and those and other rights can also be enforced by individual workers, if necessary by taking a case to an employment tribunal.

If the domestic worker is an agency worker, they have additional protections under the Conduct of Employment Agencies and Employment Businesses Regulations 2003. Those regulations prohibit agencies from charging work-finding fees; require agencies to pay workers for all the hours worked; and provide other protections. They are enforced by my Department’s employment agency standards inspectorate, which responds to complaints and, additionally, carries out a programme of proactive, risk-based inspection.

The pay and work rights helpline, set up by the previous Government, provides an accessible single point of contact for all workers—and, indeed, employers—seeking advice about or wanting to report abuses. It covers basic employment rights, such as the national minimum wage, working hour limits and the special regulations applying to agency workers. A translation service is provided in more than 100 languages for those who need it.

As required by the convention, our child employment regulations are robust. Children under the minimum school leaving age can only do light work, and there are strict rules on when and for how many hours children can work.

For egregious offences at the serious, criminal end of the spectrum, the UK has recently introduced a new offence of holding someone in slavery or servitude or requiring a person to perform forced or compulsory labour. The offence builds on existing statute and will in some circumstances make prosecutions easier.

Signing the convention would have made no difference to the measures that we have in the UK. It would have made no difference to stopping slavery or human trafficking. Why? Because we already, rightly, have some of the strongest laws in this area. There is no question, then, about the Government’s commitment to the principles behind the convention. In almost all respects, our laws already match the requirements set out in the convention.

I come now to the question posed by the hon. Member for Llanelli (Nia Griffith): if we already comply with almost all of the convention, why did we abstain? The main sticking point for us is the convention’s approach to health and safety in private households. The wording does not provide sufficient flexibility to meet the UK’s long-established approach. Nor does it match our principles of proportionate regulation based on risk. Indeed, because it is inflexible and disproportionate, it could, if implemented, have damaged the interests of vulnerable people. I am sure that the hon. Member for Slough South East would not want that.

[Fiona Mactaggart]

I am not Slough South East; I am all of Slough.

[Mr Davey]

I apologise to the hon. Lady.

Let me explain the position in detail. Article 13 of the convention requires each member to take

“in accordance with national laws, regulations and practice, effective measures, with due regard for the specific characteristics of domestic work, to ensure the occupational safety and health of domestic workers.”

For the UK, that requirement to take effective measures would, in practice, mean extending the Health and Safety at Work, etc. Act 1974 to private households employing domestic workers. I ask colleagues to consider what that would entail.

[Fiona Mactaggart]

As I understand it, the Act does apply to private domestic workers, with the exception of section 51, which provides a specific exclusion in relation to criminal prosecution. It is not usual for people in a small workplace to go to criminal prosecution without previously having been advised by inspectors, unless there has been a death or serious injury. As I said in my speech, perhaps the Minister can give us an example of where criminal prosecution has taken place in a small workplace.

[Mr Davey]

I have to tell the hon. Lady that domestic workers are excluded from part I of the Act, which covers health, safety and welfare in connection with work and the control of things such as dangerous substances, and which includes some general duties. There are protections under civil law, and I will come to them in a second, but I am afraid that signing the convention would have meant extending the Act to private households employing domestic workers.

Anyone employing a domestic worker such as a cleaner, a home help, a child minder, a carer for an elderly or disabled person, a gardener, a nanny or an au pair—it is a long list—would have been covered by a range of health and safety regulations, and, in particular, by the 1974 Act. Hon. Members might ask what is wrong with that, but they should consider the implications. The Act would place specific duties on such employers to ensure the health, safety and welfare of domestic workers in so far as that was reasonably practicable, and individual householders would have to familiarise themselves with the law. According to the Act, they would need to consider the information, training, instruction and supervision that their helper needed. They would need to assess the helper’s tasks and any risks from equipment and substances to which the helper might be exposed. The householder would also have to carry out a wide range of risk assessments, which would be different for each home.

The sanctions for non-compliance would be criminal. Householders failing to comply with the law would be subject to criminal penalties providing for unlimited fines and imprisonment for up to two years.

--- Later in debate ---

[Mr Davey]

Of course, those would be covered if we went down this route.

What would be the benefit of extending health and safety laws to individuals and increasing the scope of our criminal regime? Why would we want to give health and safety inspectors a new right to visit millions of homes? Why would we want to pass quite an intrusive law, which the previous Government baulked at? The evidence of the need for such a change is weak, to say the least. Despite what the hon. Member for Llanelli said, households are low risk in health and safety terms. If there is any increased vulnerability for domestic workers, it arises not from health and safety concerns, but from issues such as their treatment by their employers, which is already covered in other legislation.

Of course, we could have voted for the convention and then not ratified it.

[Fiona Mactaggart]

Before the hon. Gentleman leaves health and safety, will he answer the first question I asked him? I asked for a specific example of a small employer, none of the employees of which had died and which was not suspected of putting customers at risk, but which had been prosecuted.

[Mr Davey]

I do not have such an example at my fingertips. I will write to the hon. Lady. However, she fails to address the fear that introducing these provisions would engender, which my hon. Friend the Member for South West Bedfordshire addressed.

If we had voted for the convention and then not ratified it, what would that have said about the UK? We have heard a lot about our reputation, but other ILO members undermine the ILO by not going ahead and ratifying conventions they have voted for, which is no good for the ILO or labour rights. In the negotiations, we tried to come up with a convention that we could have voted for and ratified—that is what we want. We worked very hard on that and we supported the development of the convention because we see it as important. We rightly meet our legal obligations and do not run away from them.

That is a conventional approach to the ILO, and it is one the previous Government took. Let me explain that by giving some examples. The previous Government abstained in an ILO vote on the maternity protection convention in 2000. I think they would have supported the convention, but it no doubt had some burdensome implications in domestic law. The previous Government also abstained in the 2006 vote on the ILO’s recommendations on employment relationships. That was probably not because they were against the principles, but because they realised that the provisions would have an impact on UK legislation. In other words, we are taking exactly the same approach as the previous Government.

During the debate, it has been suggested that we are letting the rest of the world down and sending a signal that we do not care about these issues, which is one of the more outrageous suggestions I have heard, given the records of the previous Government and this Government. This Government are leading the world in taking practical action to combat human trafficking and to help exploited workers around the globe. Members should consider the Department for International Development’s funding for the Salvation Army anti-child trafficking project in Malawi or its new programme aimed at reducing human trafficking in south Asia, which focuses on helping women and girl domestic workers and garment sector workers. Members should also consider our support for other Governments’ anti-trafficking efforts, such as the Bangladesh police reform project, which established a specialised police unit to combat human trafficking. Above all, Members should consider the increase in the overseas aid budget, which comes when other budgets at home are being cut.

I therefore totally reject the suggestion that we are not showing leadership in the fight against some of the awful crimes we have heard about. We are showing leadership here, and we showed leadership on the convention. We regret that we were unable to vote for it, because others were unable to give member states more flexibility in a sensible and measured way.