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Tumbling Lassies and laws that free them.

Arnot Manderson Advocate Eric Robertson  examines recent initiatives – practical and legislative – to tackle persistent problems of modern slavery, as reviewed at the recent Tumbling Lassie Seminar.

Days after the Scottish Parliament passed new anti-trafficking legislation, The Tumbling Lassie Seminar took place in the Faculty of Advocates’ Mackenzie Building on Saturday 10 October 2015. Inspired by the eponymous heroine of a 1687 Court of Session case, the event addressed modern slavery – considering contemporary realities in the context of historical reflection. The presentations highlighted the scale of ongoing challenges posed by the hard fact that slavery – like poverty – is not yet history.   For the lawyers, students and members of the public who attended there was positive news too: careful identification of the problems has led to clear-sighted measures to tackle modern day slavery and deal with the damage it has caused those who can be taken out of its grasp. In our interconnected world, there were lessons for Scotland from India’s experiences.  Jenny Marra MSP drew the various strands of policy together in her closing address on the Human Trafficking and Exploitation (Scotland) Bill.

In Reid v Scot of Harden (Mor. 9505) in 1687 the Court of Session rejected a showman’s claim of ownership of a Scottish girl he had forced to dance on stage for his profit. The case report stated: “But we have no slaves in Scotland”. The contract of sale from the girl’s mother he produced was legally worthless and the girl received the law’s protection. For others however, a harsher reality persisted well into the next century. Those enslaved in colonial plantations were sometimes shipped to Scotland to continue indefinite servitude for their returned Scottish masters. Professor John Cairns (Professor of Civil Law at the University of Edinburgh) told of many instances of 18th century newspaper advertisements where Scottish masters offered reward or threat to any who came across “Negro” runaways, fully confident that law enforcers or the public would return their “property”.

Lord Mansfield’s ground-breaking English decision in Somerset’s Case (1772) 98 ER 499 has been much debated: exactly what legal principle was upheld and how wide is its application?  It is clear however that the Court’s judgment gained much publicity. It was taken as meaning that a slave-owner could not rightfully ship back to the colonies a slave who had been brought to England. By 1774 a black manservant, brought back from a Jamaican plantation to serve John Wedderburn on his Ballindean Estate near Dundee, had read about this in a Scottish newspaper. His legal team set out to show Scotland as a land of liberty and to thwart his master’s claim that he be required to continue his service “as before”.  Vindication of his right to freedom took many years involving several appeals from Perth Sheriff Court. The challenges of the world he inhabited are vividly realised and re-imagined in James Robertson’s 2003 novel, Joseph Knight. (The novel’s richly authentic legal detail owes much to Professor Cairns’ input as historical adviser.)

It is still possible to engage with the assumptions and ideas around eighteenth century slavery by reading the detailed written arguments lodged in the Inner House, carefully preserved in the Session Papers.   A flavour of those comes across in the “haill fifteen’s” judgments (split 8 to 4 in favour of the pursuer) in Knight v Wedderburn summarised in (1778) Mor. 14545. Some arguments are picked up and developed in the popular movement which secures abolition of slavery by the Westminster Parliament – in Britain by 1807 and in most of the Empire by 1833. The lingering exemption granted for East India Company slaving is ended by 1843.

But – globally and locally, slavery has not been ended; in our time the numbers involved are higher than slave numbers at the peak of the Atlantic Slave Trade.   The Director of National Strategy and Interventions for International Justice Mission (IJM) in India, Anu George Canjanathoppil, is based in Delhi. She confirmed India’s terrible distinction – its number 1 position in the league table of modern day slavery. More than twice the population of Scotland – 11 million is a conservative estimate – are slaves in India today. Bonded labour is widespread across many industries including food and textiles. Just as 18th century Scots enjoyed sugar imported from Jamaica slave plantations, so now do 21st century Scots consume (albeit unwittingly) cheap products of Indian industries generated by labourers who live in bondage. The UK’s Modern Slavery Act 2015 seeks to tackle this global trend by insisting on transparency in supply chains for businesses with qualifying turnover.

IJM has been able to make significant inroads into the problems of slavery by working with local partners to address the brokenness of the Indian public justice system. A culture of impunity held in place by weak laws, chronically overburdened courts and corrupt “law enforcers” has been challenged by IJM’s engagement with government, media and civil society.   Two thirds of the 20 million pending district court cases in India are criminal cases. Statistically, there is a higher chance of being struck by lightning than being convicted for crimes concerning slavery in India.

Undaunted, IJM’s team have been instrumental in the last few years in freeing more than 4,000 slaves from bonded labour in 19 provinces. Until very recently, the maximum penalty of 3 years’ imprisonment was a dead letter; the sentence in practice, if applied at all, was no more than a single day. From August 2015, section 370 of the amended Indian Penal Code prescribes a minimum of 7 years and a maximum of life imprisonment, along with a fine. By pursuing convictions with the application of proportionate penalties according to law, IJM and its partners seek to shift attitudes and build confidence in the integrity of a public justice system that can be shown to work to provide protection. The new Scottish legislation, considered further below, likewise provides for life imprisonment as a statutory maximum and seeks to build and sustain support for anti-trafficking measures through collaboration.

As the trauma of slavery is deep-seated, IJM is also committed to help deliver a rehabilitation programme for those who have been rescued.   Such people are viewed and treated as active survivors rather than passive victims. In 2014, around 7,408 survivors were being supported by IJM’s social workers and partners.

There are parallels in the support provided under a Glasgow-based initiative of Community Safety Glasgow: an agency called TARA (Trafficking Awareness Raising Alliance) exists to support women in Scotland rescued after having been trafficked here, abused and forced into exploitative sexual activity.  Bronagh Andrew, Assistant Operations Manager, highlighted the importance of identifying indicators of dependency and abusive relationships and gaining insight into personal circumstances while building trust with the women they support. The women are enabled to gain a proper perspective on the people and circumstances that hold them. Coercion by false promises; threats to alert authorities to legal issues (real or fabricated); the bondage of a debt that can never be repaid: all these are as real for those trafficked to Scotland as they are for people in India.

Through the support of TARA’s staff working in tandem with psychologists and social services, the women can be enabled to break out of cycles of enforced actions which are against their interests and wishes and sometimes against the law. Sensitive liaison with Police Scotland and the justice system is critical to the success of these efforts.

Baroness Helena Kennedy QC’s 10 recommendations for action in her 2011 report for the Equality and Human Rights Commission into trafficking were the avowed starting point for action by Scottish Labour’s current Shadow Equalities spokesperson, Jenny Marra MSP. She was prompted to seek introduction of the Bill as a private member’s measure and thereafter to work with others in creating cross party support. Both existing common law and scattered statutory provisions were recognised as inadequate to address the very real problems of modern day trafficking and exploitation. The Bill has generated the third highest ever level of public response to Holyrood legislation. It then went forward as a Bill adopted by the Scottish Government. Following the Stage 3 Debate the Scottish Parliament passed the legislation on 1 October 2015 with Royal Assent the final remaining step.

The new legislation defines in Part 1 trafficking and slavery or forced labour offences with specific provisions about trafficking being an aggravation of another offence in certain circumstances. Part 4 sets out various preventive provisions and risk orders. Ancillary measures to secure compliance such as detention or confiscation of property are included in Part 3.

Addressing the aftercare concerns evident from the experience of TARA and IJM, Part 2 provides statutory rights to support and assistance for adults and children. It makes provision for independent child trafficking guardians under section 8B where there are reasonable grounds for believing that a child is, or may be, a victim of human trafficking (or is vulnerable to becoming a victim) and no person in the UK is a person with parental rights or responsibilities for the child. The presumption of age provisions in section 8C require a local authority to assume that a person is a child where the authority is not certain of the age but has reasonable grounds to believe that the person is a child.

The not uncommon situation of a person being coerced into committing crime is addressed – not by the statutory defence available under the Modern Slavery Act 2015 for England and Wales but by a requirement that the Lord Advocate provide instructions under section 7. The instructions have to set out factors to be taken into account and steps to be taken in the prosecution of someone for an offence in particular circumstances. These are where it appears that there was compulsion to commit the offence and this is directly attributable to the person being a victim of an offence of human trafficking or under section 4.

The Bill as passed is noteworthy for its insistence on systematic planning of the way forward in this area for the Scottish public justice system. Part 5 requires the Scottish Ministers to prepare a strategy which sets out the actions, arrangements and outcomes which are considered appropriate in relation to the conduct which constitutes an offence. The first strategy is to be produced within a year of the coming into force of section 1 and is reviewable at least every three years. In keeping with the Bill’s passage to the statute book, there is a requirement that the Scottish Ministers consult persons likely to have an interest in the strategy. Reporting to the Scottish Parliament is an integral part of the process.

The passing of the Scottish legislation marks an historic moment – a confident new beginning, made in the knowledge of what has gone before, to face the challenges that remain.

© Eric Robertson 22 October 2015

For more information about IJM contact

Regional Development Executive, Scotland, 0741 1052351

Find out more at 

For more information about TARA contact Telephone 0141 276 7724

TARA, Community Safety Glasgow (CSG), Eastgate, 727 London Road, Glasgow G40 3AQ

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Photo of Eric Robertson

Eric Robertson



This article first appeared in the Scottish Legal News and we thank SLN for granting their permission for it to be reproduced here.