Solicitor General speech on business and human rights

On Human Rights day Solicitor General Robert Buckland QC MP delivered a speech on business and human rights at the Law Society Conference

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Stained glass window at the Law Society

Law Society Human Rights Conference – Solicitor General Speech

It is a real pleasure for me to be with you here today to reflect on human rights issues on this, Human Rights Day. I am particularly pleased that the Law Society has chosen the theme of this year’s conference as “Business and Human Rights” – which has been a priority of this Government during its time in office – at home and abroad.

I have long had a personal interest in this subject, both as a lawyer in practice here in England and Wales, and also more latterly as an MP and Chair of my Party’s Human Rights Commission. My practice in South Wales was predominantly criminal legal aid, so the liberty of the individual lay at the heart of my work. I have been a human rights lawyer, like thousands of fellow barristers and solicitors, for nearly 25 years. It’s just that I didn’t think to call myself one!

As lawyers, quite naturally, we spend our working lives engaged in human rights issues across all areas of our practice, at a national and international level. Human rights are entwined into all aspects of legal work. The leadership of the UK’s legal community in its human rights work is widely recognised internationally.

I believe that UK business has already shown international leadership on human rights.

For example, the Stronger Together project, a multi-stakeholder initiative sponsored by major British retailers operates to reduce human trafficking, forced labour and other third party exploitation of workers.

And many British companies have demonstrated their commitment to ethical trade and to improve working conditions by signing up voluntarily to the Ethical Trade Initiative, a body which drives improvement in companies’ performance – and which has received funding from the Department for International Development since its inception in 1998. There are many other examples.

We expect British companies to respect human rights law, wherever in the world they may operate. As a consequence, as it trades across the world, British business should be and is seen as both a protector and a promoter of human rights.

I consider that the reason why UK business has been so successful in its leadership on human rights is its own recognition that business and human rights are complementary. British business recognises what as lawyers, we know to be almost a self-evident truth - that the safeguards created by the respect of human rights also create fertile conditions for growth.

In particular that means

  • The rule of law;
  • Democratic freedoms;
  • Good governance;
  • Civil society; and
  • Property rights.

In turn, the absence of these safeguards leaves workers more susceptible to abuse. It also restricts access to opportunity. It drives political instability. It reduces innovation. It creates conflict. It reduces investment.

Far from finding that respect for human rights is a threat to growth or innovation, British business has been engaged and supportive of action taken by the Government to ensure that businesses uphold human rights law. British business appreciates that action by the private sector on human rights is good - both for enterprise and the communities in which those businesses operate. British businesses know that in order to operate with confidence abroad, they need confidence that their assets, investments and personnel will be protected by a principled system of law, governed by an independent judicial system. It is vital for their own interests for British businesses to stand up for human rights.

Law firms too, are a key force in upholding human rights as they practise in this jurisdiction and across the world. Evidently, the advice given to clients means that law firms are well-placed to operate as promoters and protectors of human rights principles. But this advice can also function as a way in which law firms can reflect upon their own responsibilities - as enterprises in their own right - to uphold human rights. Working conditions, supply chains and involvement with clients are all issues which affect law firms, wherever they may operate.

To give some examples of the fine work done overseas by UK firms:

  • Allen and Overy has a collaboration with the Rwandan justice sector – aimed at building capacity in the Rwandan legal system which was almost completely destroyed during the genocide.

  • Likewise, DLA Piper’s New Perimeter project has assisted to restore the Kosovan judicial system.

  • Lawyers at Linklaters have contributed to a key report on discrimination by the Cambodian Centre for Human Rights.

It is with these considerations in mind that in 2011 the UK was instrumental in the creation of the UN Guiding Principles on Business and Human Rights. I am proud that the UK was the first country in the world to implement those principles when the UK Government launched the UK’s National Action Plan last year.

That the Plan is a joint project between the Department for Business, Innovation and Skills and the Foreign and Commonwealth Office underlines the Government’s belief that respect for and promotion of human rights cannot operate in isolation. Respect for human rights in business requires cooperation across Whitehall, working with business, the legal sector and the rest of civil society.

The Action Plan embodies the UK’s commitment to protect human rights and sets out our expectations for the behaviour of business operating within the UK and abroad. It contains twenty commitments which will be met by a cross-government response.

Examples of the work carried out under the Plan by the Government so far include:

  • An amendment to the Companies Act to require all Listed Companies to report on their human rights impacts;
  • Guidance for the ICT sector which advises on the human rights risks of exporting their products and services;
  • The Modern Slavery Bill, aimed at tackling slavery and human trafficking and includes a provision on supply chain transparency,
  • Financial support given to business and human rights projects in countries such as Colombia, Burma, Brazil and
  • Working on developing practical solutions with other countries and business – for example building safety and working conditions.

Yet, we know that it is not enough to just produce a plan. Much more work needs to be done.

In particular, much more attention needs to be given to the issue of remedy – the third pillar of the Guiding Principles.

For the UK Government, the issue of remedies for human rights abuses by business is going to be a key area for consideration as the National Action Plan is reviewed next year.

Although, on paper, states may support the Guiding Principles and business is engaged with human rights issues, if individuals cannot seek redress for wrongs suffered at the hands of business, the commitments made lack sufficient meaning.

Redress for the victims of human rights abuses, and the prevention of any future abuse, are the measure by which the effectiveness of the business and human rights agenda will be judged. That is why the UK has committed to action to promote and ensure access to remedy within the National Action Plan.

Many see an internationally legally binding instrument as the right tool to address the gap on remedy. Indeed, many will wonder why the UK, given its other commitments in this area, did not support the proposal for an international treaty at the UN Human Rights Council in June.

The answer is: that proposal was not sufficient.

The UK, along with the EU and US, do not support a Treaty at this stage because, what is currently proposed would not adequately or quickly address the issues faced by victims.

As John Ruggie, the former UN Special Representative on Business and Human Rights said, “the field of international human rights does not lack for expressive texts; what is in short supply are specific, actionable paths capable of generating cumulative progress”.

Negotiating a single Treaty is going to be a long and difficult process – diverting attention and resources away from practical action to help victims. In the meantime, it risks discouraging business from the active engagement needed for effective action and risks dividing the international consensus around the Guiding Principles.

Another problem was that it was proposed that the Treaty would be limited to “transnational” companies only, which would ignore human rights abuses perpetrated by national companies.

So, how should remedy be addressed on an international scale?

I believe that it is possible to have a process for remedy which can be ambitious, meaningful and achievable.

What the UK Government wants to see is first of all, a degree of straightforward research into the different models for a solution on remedy, including an assessment of the gaps in governance and the barriers to remedy across the world. An approach which works incrementally to identify where the gaps in governance are and then address those problems, will be, by far, the most effective and enduring. That approach will address the need for those “specific, actionable paths” identified by John Ruggie.

And in any process undertaken, from the very beginning of that process the Government will need to encourage the business sector, the legal sector and the rest of civil society to be engaged with the creation of systems which provide remedy. In turn, this engagement will strengthen the commitment to the promotion and protection of human rights at home and abroad.

At a national level, the UK is recognised as having one of the most effective systems for providing remedy. For example, the Bribery Act 2010 made UK companies liable in the UK for acts of bribery committed anywhere in the world. The Gangmasters Licensing Act 2004 established specific offences for companies which use workers or services provided unlawfully. And as well as ensuring that perpetrators will receive severe punishments for slavery offences, the Modern Slavery Bill is set to introduce new orders to enhance the court’s ability to place restrictions on individuals to protect people from the harm caused by modern slavery offences.

However, we are determined not to be complacent.

In the Action Plan, the Government has made a commitment to keep the UK provision of remedy under review. This reflects the Guiding Principles, which recommend that those affected by human rights abuses have access to effective remedy through judicial, administrative, legislative or other appropriate means.

The UK will continue to review the remedies which are available to victims of human rights abuses involving business enterprises within the UK jurisdiction. The aim is to provide an accurate picture of the present system, highlight the strengths of what is currently available, and identify areas for improvement.

There has already been excellent work undertaken in this area, which will be taken into account, for example:

  • The report on remedy for gross human rights abuse published by the Office of the High Commissioner for Human Rights; and
  • The Third Pillar report on Access to Judicial Remedy which highlights, from a legal perspective on the legal and practical barriers which prevent victims from access remedy.

As we review remedy within our own jurisdiction, we hope that it will serve to assist the work of other countries on the provision of remedy. Ideally, remedy should be provided within the jurisdiction where any abuse has taken place. The Government is conscious of the UK’s responsibility to help other states improve their own systems for remedy.

Indeed, during the recent round of calls for projects under the Foreign and Commonwealth Office’s Human Rights and Democracy Programme Fund, bids for projects on remedy were particularly encouraged.

As well as considering judicial remedies, we will also look at the non-judicial mechanisms as the first channel for addressing grievances.

Remedy can be an apology and restitution as well as compensation and punitive sanctions. It may also be the prevention of harm through injunctions or guarantees of non-repetition.

Our intention is to ensure we have a comprehensive and well-equipped system of remedy in place to eradicate human rights abuses through both judicial and non-judicial processes.

The Government will not overlook the excellent and essential work being carried out by non-judicial bodies, which can continue to be developed and built upon.

For example, the OECD’s National Contact Point assists business to take appropriate measures to observe human rights guidelines. It provides a mediation and conciliation platform to resolve practical issues which might arise.

The Gangmasters Licensing Authority has also done tremendous work to prevent the exploitation of workers.

As part of this work, we will encourage British business to extend their grievance mechanisms which are provided for their UK workers to their overseas operations, adapting them where appropriate and necessary.

I am aware as I draw my remarks to a close, that in many ways, I have set out the problems faced and the work which needs to be done in this area, rather than the solutions.

However, I am keen that as the UK Government goes forward with the implementation and review of our National Plan that we engage fully with you - the lawyers.

I can promise that the Government will be open to listening to every reasonable suggestion for addressing remedy in the UK and internationally.

I am confident that through the commitment of businesses, lawyers and the work of Government, the UK will continue to make progress.

I am confident too, that the UK’s reputation as a leader in business and human rights will continue to grow, and help other countries implement human rights principles.

Today’s discussions on business and human rights are timely for many reasons. Next year marks the 800th anniversary of the signing of the Magna Carta. The anniversary will be an opportunity for celebration and reflection of the significance and values of the Magna Carta for lawyers here in the UK and around the world.

One of the ways in which the anniversary will be marked here in London will be the Global Law Summit in February, a world-class conference exploring how the principles of the Magna Carta can achieve political, social and commercial goals in the 21st Century. Not only will the conference be an opportunity to promote business and the rule of law, it will showcase British legal expertise and create global opportunities for British lawyers.

Many of you here today will be participating in that conference, and I want to encourage as many law firms, lawyers and human rights organisations to be involved.

Today, this conference represents that commitment by the legal community to the pursuit of improved human rights, and I am grateful to have had the opportunity to speak to you today on these issues.

Published 10 December 2014