IN THE HIGH COURT OF JUSTICE
Co
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
THE QUEEN
(on the application of) MIGRANT WORKERS DEFENCE GROUP
Claimant
-and-
THE MINISTER FOR THE CABINET OFFICE
Defendant
Section C Summary of grounds
GROUND 1: ILLEGALITY: ACTED IN BREACH OF ARTICLE 4 OF THE ECHR
1. The Defendant has not erred in law or acted incompatibly with Article 4 of the ECHR
and consequently s.6 of the HRA 1998.
2. The positive obligations to put in place a legislative and administrative framework to
prohibit and punish trafficking relied on by the Claimant primarily refers to the
obligation to penalise and prosecute effectively any act aimed at maintaining a person
in a situation of slavery, servitude or forced or compulsory labour (C.N. v. the United
Kingdom, § 66; Siliadin v. France, § 112; C.N. and V. v. France, § 105). The Modern
Slavery Act 2015 (Part 1) thus provides for the criminalisation of slavery, servitude
and forced or compulsory labour and human trafficking.
3. The Defendant has discharged its positives obligations under Art.4 by implementing
an elaborate scheme through the National Referral Mechanism to identify and protect
victims and suspected victims of trafficking.
4. The requirement to publish a modern slavery statement under s.54 applies to all
companies with turnover exceeding £36 million. The Action Note PPN 02/21
specifically relates to public procurement cases and thus has not negated the overall
effect of s.54. In any case, the Modern Slavery statement is not a ground of mandatory
exclusion under reg.57(3) of the PCRs and as such, its temporary waiving has no
decisive impact on the protection of victims whose rights are safeguarded as described
in para.3 above.
5. Even if failure to publish a s.54 Modern Slavery statement was grounds for mandatory
prohibition under the regulations (which it is not), the Defendant is nevertheless
entitled to disregard such prohibition under Reg. 57 “on an exceptional basis, for
overriding reasons relating to the public interest such as public health.”
6. Thus, the Claimant has failed to establish an incompatibility of the Action Note PPN
02/21 with HRA 1998 and permission should be refused on this ground.
GROUND 2: ILLEGALITY: ACTED IN BREACH OF ARTICLE 1 OF THE ECHR
7. The Claimant has failed to bring forward any violations of Article 4 by private parties
acting as agents of state (or at all) and has advanced a purely speculative claim. By
extension, the Claimant has no basis to rely on the principle of state responsibility to
assert that the Defendant is in violation of Article 1 obligations by permitting those
unspecified violations. As such, the Claimant’s argument is unsustainable.
8. In any event, even if a prima facie case of modern slavery, servitude or human
trafficking by a contracting company arose, the responsibility of the Defendant as a
public authority (and consequently the applicability of the ECHR) is not automatically
triggered. It would be subject to a careful examination on a case-to-case basis the
Court will have regard to such factors as (Yershova v Russia, para 55):
“the company’s legal status, the rights that such status gives it, the nature of
the activity it carries out and the context in which it is carried out, and the
degree of its independence from the authorities. The Court will notably have
to consider whether the company enjoyed sufficient institutional and
operational independence from the State to absolve the latter from its
responsibility under the Convention for its acts and omissions.”
At present, no evidence of violation has been provided and therefore no Article 1
violations can be established.
9. Furthermore, the Claimant has misdirected themselves as to the law by stating that the
Defendant has “effectively allowed for companies to be able to enter public
procurement contracts without being subject to any (adequate) control to ensure
compliance with the Modern Slavery Act 2015.” As explained in paragraphs 4-5
above, the failure to publish a s.54 Modern Slavery statement (even in cases in which
it is required), does not constitute a “mandatory exclusion” from entering a
procurement process under Reg.57. In failing to correctly identify the real
implications of the Action Note PPN 02/21, this ground advanced by the Claimant is
moot and necessitates no further examination by the Court.
10. The Claimant’s assertion that the Defendant has breached Article 1 bears no substance
in law or fact and should not be granted permission to be further pursued this claim.
GROUND 3: IRRATIONALITY: FAILURE TO FOLLOW OWN POLICY
11. The Defendant endorses the Claimant’s interpretation of its long-standing policy is to
remain committed to the implementation and enforcement of Art.4 ECHR and the
Modern Slavery Act. The Modern Slavery Procurement Guidance includes a detailed
plan to help understand, recognise and manage risks in new procurements as well as
taking action when victims are identified.
12. The Claimant’s assertion that a temporary (6-month) waiving of the requirement to
publish annual Modern Slavery statements that applied to companies with turnover
exceeding £36 million constitutes a departure from stated policy misstates the overall
spirit and purpose of the Guidance.
13. The Guidance, while of some importance, is nevertheless discretionary and the
Defendant is entitled to depart from it in compliance with the general non-fettering
principle which allows decision-makers to replace an existing policy with a new
policy if that seems necessary or desirable for good administration (Hesham Ali v
Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799).
Discretionary powers must be exercised in accordance with any policy or guidance
indicated by Parliament in the relevant legislation: Padfield v Minister of Agriculture,
Fisheries and Food [1968] AC 997.
14. The Defendant has lawfully exercised its discretion and has provided adequate
reasons for its departure from previous policy by identifying the source of the
difficulty for bidders to comply with the requirement due to the disruption caused by
COVID-19. The Defendant’s discretion was thus exercised reasonably.3
15. Accordingly, the Defendant respectfully requests that the Court refuse permission for
judicial review.
ASA COUNSEL
CITY LAW CHAMBERS
3 June 2021
