Modern slavery – what will you be declaring from this October onwards; and how will you be ensuring that actions and words align?
Much of the news of the last couple of weeks has been dominated by the migrant situation in Calais and the knock-on effect this side of the tunnel.
GCs whose businesses have import/export commitments with the near continent will no doubt be following events carefully, reaching for the service credit, Force Majeure, time of the essence, price increase and early termination clauses in affected buy- and sell-side contracts and considering the short-, medium-, and long-term guidance they'll be giving their boards in terms of how to react.
But arguably the bigger news – certainly as far as many in-house lawyers will be concerned – was the introduction with much fanfare of the Modern Slavery Act at the end of last month. But not simply that, it was the threshold limit for businesses to report that really caught the eye.
Much of the Act is aimed at combatting people trafficking, and within that there are significant obligations on businesses. Slipped in at Section 54 of the Act is a requirement which, it has now been confirmed, will apply to all organisations with a turnover of more than £36m – yes, just £36m – per year to report annually (approved by the Board and signed by a director) on what measures they are taking to guard against slavery, both within their own back yards and their supply chains. Even if your business is currently doing nothing to comply, you still have to report and state your position.
And, even though the Government has set a limit on businesses of £36m, the chances are that many smaller companies will be affected too as pressure will be applied on them to report by the larger organisations that they supply – how else can the larger organisation make its own supply chain statement?
So, what does all this mean for an in-house lawyer?
Well, firstly, you have the: "It may be lawful – but is it commercially wise?" question – the one that distinguishes good business lawyers from, well, just lawyers.
Legally all that you need to do is simply to post a statement on your website saying that your company has done nothing. Job done. Or is it? Probably not.
This approach is likely to put you in a bad position in respect of any of your current or future customers who want to do something across all of their supply chain – of which you might no longer become a part (remember that "comply with all of our policies…" clause in their contracts?). So, although you have two legally permissible options, suggesting the "do nothing" option may result in your team picking up that familiar and unpopular title of "the sales prevention team" again.
So, assuming that doing something is the only realistic option, you need to educate and then work with your board to decide, in line with the S54 provisions and any guidance published by the Secretary of State, what is adequate in terms of the steps you are taking to comply with the legislation. Even though it's possible that whatever you do will never be enough, you need to set some standards to adhere to and then make sure you apply them. This means not just applying them internally to your own operations, but also ensuring that the companies in your supply chain are themselves taking the appropriate steps.
After all your Board and the director tasked with signing the statement will feel very uncomfortable if they are putting their name to statements that they do not know are, and will remain, true.
But how, in practice, do you actually enforce this? Can you bolt this requirement on to your normal supplier review policies on bribery, anti-money laundering and so on? What about the potentially many thousands of contracts you already have in place? Do you need to make a plan to review and amend them to ensure your suppliers step into line? What will you do if they don't? Terminate them? A lot of practical questions and a lot of operational answers for your team and/or your procurement colleagues to answer and to keep answering.
With Section 54 due to come into force in October this year, there's not a lot of time to get your ship into shape.