Setting workers’ rights at the top of the agenda and classifying their abuse as modern slavery has much symbolic power. This is particularly so when coming from the President of a country that has been scarred by slavery historically.  ‘I do not use the word “slavery” lightly’, Obama said. And he went on to explain: ‘When a man, desperate for work, finds himself in a factory or on a fishing boat or in a field, working, toiling, for little or no pay, and beaten if he tries to escape — that is slavery.  When a woman is locked in a sweatshop, or trapped in a home as a domestic servant, alone and abused and incapable of leaving — that’s slavery.’

Obama is not alone in classifying present-day labour abuses as slavery. Organisations such as the International Labour Organisation and the Council of Europe have also adopted this position. The European Court of Human Rights itself brought the issue to the forefront of discussions in Europe. In Siliadin v France (2005), the abuse of a young migrant woman employed as a domestic worker was held to be servitude. In Rantsev v Cyprus and Russia (2010), the abuse of a young migrant woman, victim of sex trafficking, was held to be slavery. The position of the Court is that state authorities have a duty to criminalise this behavior, to protect and support victims, to investigate allegations, and other such issues. Against this background, the European Union adopted a Directive on Human Trafficking, and issued a Strategy towards the Eradication of Trafficking by 2016. The UK enacted legislation criminalizing human trafficking and modern slavery.

That grave labour exploitation of workers has been set at the top of the agenda, in Europe and the US, can only be welcomed. The recognition that workers’ rights are human rights, and that their breach is an affront to dignity, is an important start. The political will seems to be there. Yet the eradication of modern slavery will be no easy task. Present-day slaves are hidden. They work in private homes, in isolated agricultural areas, in factories in remote countries. They may wish to remain invisible to the authorities. They are in desperate need of jobs and may be fearful of deportation. We have to take firm steps to discover the victims and help address their abuse. But the recognition that the problem exists is no small achievement, so it is rightly celebrated as such.

Tying a migrant domestic worker to a particular employer can lead to situations of modern slavery, as Kalayaan and Anti-Slavery International, both London-based NGOs working on migrant domestic workers, underlined. It is no secret that this group of workers, particularly when they are live-in, is very prone to abuse. Living and working in private households, they are invisible to the authorities. A recent report produced by Kalayaan said that in 2010, 60% of those who registered with it were not allowed out unaccompanied, 65% had their passport withheld, 54% suffered psychological abuse, 18% suffered physical abuse or assault, 3% were sexually abused, 26% did not receive adequate meals, and 49% did not have their own room. Their working conditions were exploitative: 67% worked seven days a week without time off, 58% had to be available ‘on call’ 24 hours, 48% worked at least 16 hours a day, 56% received a weekly salary of £50 or less (M Lalani, Ending the Abuse, Kalayaan, 2011, p 10).

In the face of calls for regulation of domestic work in national and supranational fora, the Government did the very opposite. With the new rules, if a domestic worker leaves the employer to escape abuse, she will either remain in the country as an irregular migrant, or be deported. The fear of deportation will probably make them prefer to remain invisible victims of exploitation.

That the Government decided to tie these migrant domestic workers to their employer, who may be violating their basic dignity and rights, might come as a big surprise. Or maybe not. Only in June 2011, the UK Government decided not to ratify the new International Labour Organisation (ILO) Convention 189 on Domestic Workers, which entered into force with wide international support (see further E Albin, V Mantouvalou, ‘The ILO Convention on Domestic Workers: From the Shadows to the Light’, (2012) 41(1) Industrial Law Journal).

At a time when there is grave disappointment at the ILO Convention not being ratified, and with two migrant domestic workers’ cases pending before the European Court of Human Rights (Kawogo v UK, App No 56921/09 and C.N. v UK, App No 4239/08), the position of the Government is enormously troubling. This is not only for its symbolism – the neglect for a category of most disadvantaged workers – but also practically, in light of the fact that several aspects of UK law already fall short of human rights requirements.

But here’s the thing. There is not much they can do. Pulling out of the European Convention, and the Strasbourg court’s jurisdiction, the ‘nuclear option’, would be so catastrophic for UK foreign policy, international standing and moral high ground on human rights that it is not conceivably on the horizon. Certainly the Liberal Democrat side of the coalition would not stand for it. Repealing the Human Rights Act itself, again not favoured by Lib Dems, might assuage the right of the party, but it would not free the government from the troublesome constraints the ECHR places on domestic policy. After all, it was Strasbourg and not a domestic court that led to the ruling on prisoners voting rights that the government found so incomprehensible. What is more, a long shadow has been cast by the Act over UK jurisprudence. Precedents have been set in specific cases, principles have been developed and deployed in law which will remain even if the Act itself were to go. With a continued relationship to the Strasbourg court, the attitude to its jurisprudence by UK judges will probably not budge significantly.

So what is the government to do? Here is where the ‘wriggling’ comes in. The idea that the government has been trying to sell its discontents on Human Rights is that somehow it can get some ‘wriggle-room’ for domestic judges and itself when it comes to Strasbourg judgements. Can the UK use its presidency of the Council of Europe (of which the Court is an organ) to obtain dispensation to interpret ECHR rights more in line with ‘domestic priorities’? It seems some in the Conservative leadership think so. The more sensible part of the party, and government, started pushing this as a kind of compromise option at least as far back as February. They have argued that there are principles, such as ‘subsidiarity’ and the ‘margin of appreciation’ used by the court can be used more expansively to allow domestic judges more leeway in developing home-grown human rights jurisprudence. And more recently Ken Clarke has reported being close to a deal at the Council of Europe to get this extra wriggle-room for the UK, and even the Lord Judge of England and Wales has got involved in a plea for UK judges to see themselves less bound to follow Strasbourg jurisprudence too closely. The idea behind these moves seems to be that the Court has been judging over issues of nitty-gritty in domestic administration, and so not really acting as an international court focused on genuine tyranny and oppression, which should be its primary role. The proposal of a British Bill of Rights, on which a Commission on a Bill of rights is deliberating, is seen as part of this process of creating more wriggle-room.

But this seems somewhat misguided, including the idea a Bill of Rights could help with this extra wriggle-room (see analysis of this in the UCL Institute for Human Rights submission to the Commission). First of all, the principles that people like Dominic Grieve (Attorney General), Kenneth Clarke, and Lord Howard have been appealing to as potential sources of wriggle room are nothing of the sort. The principle of subsidiarity is not a principle about the rights of states, such as a right to interpret ECHR rights in a slightly different way, it is rather a principle on the obligations of states. It holds states primarily responsible for implementing and enforcing human rights protections in their territories. As such, it can also be the basis for finding states wanting in particular cases. So, in fact, the Court’s duty includes checking whether states are fulfilling their obligations under that principle. The margin of appreciation, on the other hand, is a principle that makes allowances for states specific domestic circumstances when applying and enforcing a particular right. But the test for whether states are given this margin is not simply that they have different aims and priorities from other states under the ECHR. The test is whether there are, in fact, sufficient divergences throughout Council of Europe states on how a particular element of a right is understood to warrant treating that question as moot. Significant divergence, say, on whether abortion is a right or even permissible, means in the eyes of the court that different states are given a wide margin with regard to how they treat this practice. Deporting people deemed undesirable by the government irrespective of their family ties would not get a wide margin because there is consensus on the relevant element of privacy and family life that is protected.

Joining the ranks of states trying to restrict the reach of the court, and those ranks include a number of serial-violating states, is misconstrues clear principles of international law. In fact it is an attempt to usurp such principles for political purposes. That attempted usurpation goes against a fundamental principle applied domestically and inherent to the unwritten UK constitution: the rule of law. The rule of law is not the principle that judges are right when they please us and jurisprudence is binding when it is politically acceptable. It is the principle that judicial decisions and principles apply irrespective of political expediency. That principle preserves the separation of powers, and makes politicians, including the executive, subject to the law like everyone else. Meddling with ECHR judicial practice without a clear legal principle behind you is therefore meddling with the rule of law. In this case the rule of law for the whole Council of Europe for the sake of political expediency back home.

Unsuprisingly this attempt at political meddling with the rule of law has provoked some come-back from the Court. Ironically, it was the very Strasbourg judge nominated for the Court by the UK that responded with accusations that UK government ministers were showing xenophobia and hostility to the Convention. It is difficult to predict what the UK will get out of the negotiations at the Council, although it seems rather optimistic to think the Council will move to interfere with its own Court on such grounds. There is no room to wriggle on this.

The Lord Judge is right about one thing when he says UK judges should not tie themselves too strictly to Strasbourg jurisprudence. That is that this is not an ECHR obligation but rather a self-imposed restriction, and one that might be lifted by future legislative action. That would make room for more home-grown jurisprudence that can, in relation to domestic circumstances, expand and extend the Strasbourg level of protection. So long as this is not interpreted as asking for licence to protect ECHR rights less than Strasbourg does, this move would genuinely bring human rights home whilst respecting the rule of law.

Dr. Saladin Meckled-Garcia is Director of the UCL Institute for Human Rights

More detailed discussion of these issues and more in relation to the ECHR and the Commission on a Bill of Rights can be found in the Institute for Human Rights’ Submission to the Commission on a Bill of Rights.

Relative Deprivation & Violence:  Work by Robert Gurr, amongst others, has argued that when people are worse off, in comparison to what they expect, then this difference between expectations and outcomes will increase the likelihood of violence.  This concept is also described as self-regarding behaviour.  Perhaps the two clearest and most recent examples that may increase the likelihood that someone feels relatively deprived have been the government’s cuts to the Educational Maintenance Allowance and the increase in costs of university education.

The Conservatives and the Liberal Democrats argue that the EMA cuts and the increase in educational costs are actually being carried out in a way that protects the poor and enables them to gain a university education.  However, even if is the case (and it is not clear that it is), it does not actually matter, since people believe that they will not be able to go to college or university anymore.  Whether we accept the interviewed rioters’ explanations also does not matter.  If their objective financial situation would lead them to believe that they can no longer afford an education, this will increase their perceived level of relative deprivation and also the likelihood of violence.  Though the riots exhibit some classic hallmarks of relative deprivation, or self-regarding behaviour, there is also an important related concept called other-regarding behaviour where individuals compare their own situation to the situation of others.

Other-regarding behaviour is also particularly important and speaks to a broader sense of malaise that governments of both the Left and Right are not governing in the broad interests of society.  This disenchantment also seems to be part of the underlying set of reasons for why the riots took place.  In interviews, rioters often compare their situation to others who have become wealthy, especially those whose ill-gotten gains seemed to have been achieved with impunity.  MPs expenses, and the financial crises caused by the selfish behaviour of the banks, have often been described in anger by the interviewed rioters.  Just because the rioters interviewed are not, for the most part, linguistically sophisticated or able to express themselves in the ‘Queens’ English doesn’t mean that they are not pointing to very legitimate concerns.

One of the standard responses to the relative deprivation arguments put forth by rioters has been that MPs and bankers have gone to jail.  This may be true, but it fails to recognize the culture of entitlement that has grown up around both these institutions.  The fact that some already very wealthy MPs believe it is appropriate for their moats to be cleaned on public expense seems incredible.  The only reason that this behaviour has (perhaps) changed is that it was blown open by investigative journalism.  Likewise, individual bankers are often rewarded for risk-taking behaviour.  Yet, is it really risk-taking if the gains are private and the losses are public?  The problem is more widespread and is one not limited to the Conservatives; it was under Labour’s watch that the City was effectively de-regulated.  The banks successfully lobbied the previous Labour government. The banks seemed to have convinced the previous government that they could behave themselves.  Moreover the banks argued that while other areas of society have effective regulation and oversight, that banks are better and can regulate themselves. Yet we are now surprised that selfish human behaviour takes place in these organisations as in any other?  In interviews, the rioters have repeatedly commented that society is all about making money and that the behaviour of bankers and MPs stealing with impunity is indicative of this larger societal issue.  They reason that if bankers and MPs are doing it why shouldn’t they be able to do the same?

One of the most surprising responses from some of the interviews with the rioters was the repeated response that taking part in the riots made them feel ‘powerful.’  This suggests that most of the time they feel powerless and unable to shape their future.  Indeed, a number of the rioters made explicit reference to what we might think of as very ‘little-c’ conservative values.  That is, what they wanted for themselves was not the glitz and the glamour of the vaunted rapper lifestyles, but actually more ‘wholesome’ values—being able to afford a house and having a job.

More generally, young people are increasingly aware that they are no longer able to afford to have what society considers the norm, such as buying a home and having a job (which is evidenced by the highest levels of youth unemployment in recent decades).  Not only do the adults in society effectively control access to these financial services and revenues in the employment world, but it is also adults that have created this situation. Now some of the basics that most people expect in an advanced industrialised economic, namely a home, and employment with sufficient income for a decent life, are now out of reach to many.  These facts are all well-known.  We shouldn’t be surprised if violence is a result, especially if previous demonstrations like those that took place earlier this year are effectively ignored.  More generally, the focus of politicians and the press on ‘rich kids’ who become involved in these demonstrations, or those who we might otherwise class as ‘professionals’ are red-herrings for why the majority of this particular group rioted. To be sure there are a number of other reasons too, and some would argue that this relative deprivation discussion does not explain why individuals were stealing trainers and TVs.  To this critique I turn next.

Rational Choice & Violence:  The second category of rationales for the riots might be labelled as rational choice and violence.  In these circumstances, individuals weigh the costs and benefits of engaging in the violence.  For example, for those who were looting with an aim to keep or sell these goods for themselves, they weighed the likelihood that they would be caught versus the ‘benefit’ of keeping or selling these goods. To be sure this set of choices can run concurrently with the feeling of relative deprivation, and in many ways, it would make sense that it does.  If someone feels relatively deprived, perhaps that feeling results from their EMA being cut or from college becoming more expensive.  Stealing, then, is a rational (if illegal) response.  Individuals might feel that they can make up the difference in their income, which has been affected by the cuts.   This is especially likely if other sources of income, such as proper employment, are not available, or the individuals are not qualified.

Sampson’s Paradox & Violence:  Finally, there has been consternation at the choices of some individuals to damage their own communities.  Mark Lichbach, in earlier research, has argued for the concept of Sampson’s paradox.  The biblical story of Sampson was one in which the title character would rather die with the Philistines than suffer at the hands of his foes.  Today, this translates to people who are deprived and rational—the ‘have-nots’ will choose to hurt the ‘haves’, even if it is at great cost to themselves.  In this case, the rioters chose to destroy what they could not afford, or, perhaps more worrying, they destroyed that which they did not have the ability to attain.

The policy choices are clear: return support for higher education, return support for EMAs, return support for Youth Centres, and provide educational and training opportunities that are not based upon the ability to pay.  It is these unglamorous ‘soft’ policies that keep society together.  We are the only industrialised country to make such cuts; they are both self-defeating and divisive. Such policy choices now will cost money.  But the riots cost a massive amount of money, estimated at £100M, which the tax payer will ultimately foot.  And this doesn’t consider the lost revenues from tourists and investors who have decided to go elsewhere.  The economic success story of countries like South Korea is long–term, sustained levels of support for education.  More generally, education has an intrinsic value in a liberal society, teaching people to think for themselves and, sometimes, to question authority.  This makes governments more accountable and enables individuals to realise their own personal talents and live their own lives to the fullest extent.

Perhaps the more important question, which will kill or facilitate these choices, is a societal question.  What do we, as a society, value?  Very few commentators have noted that these were English riots, not riots across the United Kingdom.  Is this a coincidence?  In contrast to Westminster, which effectively only governs education in England, the Scottish Executive and the Welsh Assembly have made affordable education and assisting poorer students a relative priority. Everyone understands the need to make cuts in financially difficult times, but if departments were cut on average 20%, why was support for higher education cut by nearly 82%? Some could rightly accuse these individuals of targeting and destroying what they don’t have, but perhaps those individuals were targeted first.

Dr. M. Rodwan Abouharb
Director MSc Global Governance and Ethics
Lecturer International Relations
Department of Political Science, School of Public Policy
University College London
m.abouharb@ucl.ac.uk

If you have any human rights related questions or issues you would like to see us comment on, please contact us and suggest one!