Memorandum submitted by the Ministry of
Justice
1. How do the activities
of UK businesses affect human rights both positively and negatively?
It is now often recognised that businesses can
affect the human rights of individuals, and there is an increasing
public expectation for businesses to respect human rights. Therefore,
in addition to the traditional areas of corporate social responsibility
(the environment and sustainability) some UK companies are taking
steps to incorporate human rights into their business practices
and policies. This can take a variety of forms, however a trend
has emerged of a company-wide constitution or code of best practice.
Preliminary desk research taken forward by my department
has revealed that companies are taking proactive steps to produce
their own human rights policies, statements of values, codes of
conduct and pledges. However, policies and statements tend to
be aspirational and overarching, with a blurring of corporate
social responsibility and human rights.
It should be noted that UK businesses have the
potential to impact positively upon human rights. By promoting
and respecting human rights in their activities, businesses can
play a vital role in mainstreaming human rights and rebutting
popular myths.
2. How do these activities engage the human
rights obligations of the UK?
Under its international human rights obligations,
the UK is required to secure certain rights to people within its
jurisdiction. For this purpose, these rights may be split into
three types.
A "negative obligation" is an obligation
not to interfere with a certain right or freedom. A right may
be absolute or may be limited or qualified in some manner, which
in turn affects the extent of the corresponding obligation. In
general, the state's responsibility for negative obligations extends
only to state functions. The European Court of Human Rights has
developed extensive jurisprudence as to the scope of state responsibility
under the European Convention on Human Rights (ECHR). The doctrine
of state responsibility also applies under international human
rights law, but is less widely used given the absence of as developed
a system of enforcement in individual cases as under the ECHR.
A "positive obligation", by contrast,
obliges the state to take certain reasonable steps to secure the
enjoyment of a certain right to people within its jurisdiction.
In the case of absolute or limited rights, this may involve taking
steps through the law to prevent one person from engaging in behaviour
that may breach the right of another, an example of this is the
law on offences against the person in respect of the right to
life. in respect of certain qualified rights, such as the rights
to respect for private and family life and to freedom of expression,
the action required of the state may be more nuanced to reflect
the balances that need to be struck, and may engage both law and
policy.
The third type of right is that requiring progressive
realisation, for example economic and social rights arising from
the UK's obligations under the International Covenant on Economic,
Social and Cultural Rights. These too may require positive steps
to be taken by the state. This will generally involve the disbursement
of state resources and the administration of state policy so as
to secure a minimum enjoyment of the right to all people within
the jurisdiction and then a progressively greater enjoyment of
the right by those people to the limit of available resources.
The doctrine of state responsibility means that
the activities of businesses do not generally fall directly within
the scope of the state's negative responsibilities. However, where
a state has delegated or relied upon a private body to fulfil
its own obligations under the ECHR or has delegated a function
which is clearly a function of the state to a private body, Strasbourg
and UK jurisprudence provide that the state will remain liable
for the acts of that entity which violate Convention rights. It
remains, however, that this occasional private engagement of state
responsibility is a limited exception to the general principle
that a business trading as a private entity will not engage the
state's negative obligations.
So long as a business does not engage the State's
negative obligations, it can for the purposes of a State's positive
obligations be considered in theory indistinguishable from any
other private person; in this respect, a business would be obliged
in the same manner as any other private person to respect the
laws promulgated by the State that fulfil positive obligations,
and is subject like any other private person to the actions taken
as part of State policy to secure a balanced enjoyment of qualified
rights to all people. However, it is inevitably the case that
the power of certain private corporations is such that their potential
impact on the fulfilment of positive obligations is greater than
that of a single private person; in this respect, it is therefore
particularly important that the laws take account of this greater
power, and that the corporation both respect the law and engage
in the formulation and delivery of State policy. However, it is
important to note that the obligation remains with the State,
and it is therefore for the State to formulate its laws and policies
in a suitable manner that achieves the required outcome.
3. Are there any gaps in the current legal
and regulatory framework for UK business which need to be addressed,
and if so, how?
As discussed above, there is no requirement
for a business to comply with the obligation under section 6 of
the Human Rights Act 1998, save where it is exercising a function
of a public nature within the meaning of section 6(3). However,
the Government believes that it is good practice for companies
to use the Act as a framework in their business policies and practices.
4. Does the UK Government give adequate guidance
to UK businesses to allow them to understand and support the human
rights obligations of the UK? If not, who should provide this
guidance?
The Ministry of Justice is currently undertaking
a project, in partnership with the Department of Health, to establish
an understanding of how UK businesses engage with human rights,
and whether there is a need for further guidance on how companies
can embed human rights within their business practices. Phase
1 of the project consists of a scoping study, conducted via questionnaire
and in-depth interview with companies from a range of sectors.
Once the scoping study has been completed the need for any further
guidance will be considered, based on the study's findings.
5. What role, if any, should be played by
individual Government departments or the National Human Rights
Institutions of the UK?
Individual Government departments and National
Human Rights institutions should take steps to ensure and promote
human rights in business where appropriate. Government Departments
and other public sector bodies can take steps to exclude firms
with a poor human rights record from tendering and, where relevant,
ensure appropriate human rights issues are covered in the contract.
Where necessary, Government departments, after consultation with
small businesses and their representatives, should also produce
information and guidance on best practice.
The Foreign and Commonwealth Office and the
Department for Business, Enterprise and Regulatory Reform are
currently producing a toolkit on business and human rights for
FCO and UK Trade and Investment posts, in order to create awareness
of and promote, amongst other tools, the Organisation for Economic
Co-operation and Development (OECD) Guidelines on Multinational
Enterprises (a set of corporate responsibility standards for companies
which include a provision on human rights) among UK posts overseas.
The toolkit gives guidance on how the activities of multinational
enterprises may infringe human rights, how to promote the OECD
guidelines and how to deal with complaints using the OECD National
Contact Points.
Since 2003, the Department for Business, Enterprise
and Regulatory Reform has introduced legislation that makes it
unlawful for employers to discriminate against employees on the
grounds of their religion or belief, sexual orientation or age.
Any employee who feels discriminated against on one of these grounds
may make a claim for redress to an Employment Tribunal.
Several Government Departments are playing an
active role in the Private Sector and Human Rights Project outlined
in the previous question. Representatives from some private sector
organisations are also engaged, including the CBI and the Federation
of Small Businesses. Race for Opportunity, a third sector organisation
that works with public and private sector employers on equality
issues, is also actively engaged with the project. Once the scoping
study has been completed, its findings will inform the consideration
of the potential roles of individual Government Departments, the
Equality and Human Rights Commission and private sector organisations
in taking this work forward.
6. How should UK businesses take into account
the human rights impact of their activities (and are there any
examples of good or bad practice which the Committee should consider)?
How can a culture of respect for human rights in business be encouraged?
UK businesses can adopt various tools to take
into account the human rights impact of their activities, including
human rights risk assessments, codes for suppliers and contractors
and policy analysis. The Private Sector and Human Rights Project
will consider the current awareness of UK businesses of human
rights and how a culture of respect for human rights in business
can best be encouraged.
A good practice example of such a voluntary
tool is the OECD Guidelines for Multinational Enterprises. The
Guidelines are a set of recommendations for responsible business
conduct addressed by the OECD members (and 11 additional adhering
countries) to multinational enterprises. The Guidelines (Chapter
11(2)) clearly encourage enterprises to "respect the human
rights of those affected by their activities consistent with the
host government's international obligations and commitments':
A unique feature of the Guidelines is the establishment of National
Contact Points by the adhering countries. The UK National Contact
Point (UK NCP) has been very active in raising awareness of the
Guidelines amongst UK businesses and civil society and also in
implementing the Guidelines' complaint procedure. The outcome
of the complaint process is a final statement which is published
on the UK NCP's website (www.berr.gov.uk/nationalcontactpoint)
and, since May 2007, also deposited in the Libraries of Parliament.
The final statement may either state whether a UK company (or
its subsidiary overseas) has breached the Guidelines (and, in
this case, will make recommendations to rectify the situation),
or reflect the successful outcome of the mediation offered by
the UK NCP. An example of the former is the final statement on
Afrimex (August 2008), and an example of the latter is the final
statement on G4S (December 2008), both published on the UK NCP's
website. The Government is currently considering what follow-up
there should be after the UK NCP has closed an investigation under
the Guidelines.
The UK NCP is also responsible for promoting
the OECD Risk Awareness Tool for Multinational Enterprises in
Weak Governance Zones, which aims to help companies that invest
in countries where governments are unwilling or unable to assume
their responsibilities, It addresses risks and ethical dilemmas
that companies are likely to face in such weak governance zones.
The UK has also been a driving force behind
a number of other initiatives designed to promote business responsibility
for human rights. These include:
Voluntary Principles on Security and Human
Rights (VPs)—Set up in 2000 by the Foreign and Commonwealth
Office and the US State Department, the VPs aim to provide guidance
to companies in the extractive industry, on ensuring the safety
of their personnel and security of installations in insecure environments,
while at the same time promoting standards of corporate responsibility
with regard to human rights.
Professor John Ruggie (United Nations Special
Representative on Human Rights and Transnational Corporations)
is looking at reducing the risks of negative human rights consequences
of international business activity in conflict zones as part of
his overall human rights mandate. The Foreign and Commonwealth
Office's Conflict Group act as the main point of contact on this
particular piece of his work, with support from the Department
for International Development and the Department for Business,
Enterprise and Regulatory Reform.
The Kimberley Process (KP) was designed
to combat the trade in conflict/rough diamonds. The UK played
a leading role in setting it up in 2003. The Government Diamond
Office (GDO), run by the Foreign and Commonwealth Office, works
closely with participants, industry and civil society to ensure
that it remains effective and credible.
The UK Government has also supported businesses'
own efforts to improve global understanding of the relationship
between business and international human rights standards. For
example, the Department for International Development provided
seed funding to the Business Leaders Initiative on Human Rights
to support the development of an international Institute for Human
Rights and Business. The Institute is supported by a wide range
of international stakeholders, including governments, businesses,
the UN Global Compact and non-governmental organisations (NGOs).
The purpose of the Institute is to provide a source of global
expertise in the area of business and human rights. The institute
will build a body of knowledge to help define the responsibilities
of different duty bearers, and provide services to help build
the capacity of business and others to uphold human rights in
practice. The Institute was launched in early 2009 and its Executive
Board is chaired by Mary Robinson, former UN High Commissioner
for Human Rights.
The Private Sector and Human Rights project
being taken forward by the Ministry of Justice and the Department
of Health aims to establish an understanding of the engagement
of UK businesses with human rights within their domestic operations,
and will consider whether a need for further guidance for businesses
exists on how to embed human rights within their UK practices.
Should UK businesses' responsibility to respect
human rights vary according to:
— whether or not they are performing public
functions or providing services which have been contracted out
by public authorities; is it clear when the Human Rights Act 1998
does and does not apply directly to businesses?
In terms of legal responsibility, as noted in
the response to question 2 in the discussion of negative obligations,
State responsibility under international law can extend to
certain functions of non-state actors where
those functions are considered state functions. At the international
level, businesses have no direct obligation to respect human rights
when they are not operating within the scope of state responsibility.
The Human Rights Act 1998 defines the scope
of the duty under section 6 not to act incompatibly with the Convention
rights by reference to "public authority", a concept
analogous but not identical to state responsibility. Section 6
provides that "public authority" includes a person exercising
public functions and the Committee will be well aware of the jurisprudence
in this area. In the majority of cases, it is clear whether a
certain function is or is not of a public nature. While the issues
considered by the House of Lords in YL v Birmingham City Council
and others have been the subject of much attention, it should
not be overlooked that, for the most part, it is clear both in
law and in practice when a function should be considered a function
of a public nature. It is only at the very margins of the concept
that certainty may not exist; however, such marginal uncertainty
would be an inevitable consequence of the duty having been defined
in any manner other than by reference to a list of those subject
thereto. In the Government's view this does not obviate the overall
success of the duty under section 6 in developing an effective
general domestic mechanism for the provision of remedies for breaches
of human rights.
Further to such general human rights provisions,
however, it should be recalled from the earlier discussion (question
2) of positive obligations and rights of progressive realisation
that a substantial part of the framework of our law and of Government
policy exists indirectly so as to protect or promote the enjoyment
of such rights. Businesses that operate under the law of the UK
will inevitably indirectly participate in the protection or promotion
of such rights by respecting laws and regulations, and on occasions
by participating in the general framework of the delivery of essential
services and functions to the public. Doing so may well amount
to no more than the performance of their ordinary business functions,
but it should nevertheless be recalled that human rights as a
broad field of Government activity is not limited only to those
laws and policies that bear the title, especially where economic
and social rights are concerned.
— whether they are operating inside or
outside the UK;
The responsibility of UK companies to respect
human rights should not vary according to whether they are operating
inside or outside the UK. However, in practice this may be the
case, as UK companies operating overseas are required to respect
local laws, which may vary according to the international human
and labour rights instruments that host countries may have ratified.
— the size, type or nature of their business?
UK businesses should have an equal responsibility
to respect human rights. The amount of resources that are available
to address human rights issues may vary from business to business
and sector to sector, however all UK businesses should be encouraged
to engage and address human rights in their policies and practices
regardless of their size, type or nature of business.
— How, if at all, should the current economic
climate affect the relationship between business and human rights?
The current economic climate has put pressure
on UK businesses to make cutbacks. However, although this may
mean that businesses are concerned about investing resources in
developing new human rights policies, there remains a strong business
case for companies embedding human rights within their practices.
In addition to potentially improving their corporate image, companies
may enjoy potential benefits of protecting the human rights of
their employees in terms of their staff turnover and retention,
sickness rates and motivation.
7. Does the existing legal, regulatory and
voluntary framework in the UK provide adequate opportunity to
seek an appropriate remedy for individuals who allege that their
human rights have been breached as a result of the activities
of UK businesses?
8. If changes are necessary, should these
include:
— Judicial remedies (If so, are legislative
changes necessary to create a cause of action, or to clarify that
a cause of action exists, or to enable claims to proceed efficiently
and in a manner that is fair to claimants and respondents);
— Non-judicial remedies (for example,
through the operation of ombudsmen, complaints mechanisms, mediation
or other non judicial means). If non-judicial means are appropriate,
are there any examples of good or bad practice which the Committee
should consider?
— Government initiatives, whether by legislation,
statutory or other guidance or changes in policy;
— initiatives by business or other non-Government
actors.
Recalling the discussion in question 6 about
the legal framework put in place by the Government to fulfil its
positive obligations to secure the protection of certain human
rights, the Government is confident that adequate opportunity
exists through these means for activities of businesses that have
breached these laws, and hence may have led to a breach of an
individual's human rights, to be challenged in court. The same
would be true of regulatory frameworks where appropriate. it is
not always necessary for there to be a remedy for the individual:
indeed, where the breach is not one that falls within State responsibility
for negative obligations, there will be no direct relationship
under human rights law between the alleged originator of the breach
and the person who is claiming that their rights have been breached.
This is a proper consequence of the predication of human rights
law upon the responsibility of the State, and of the proper role
of the State in acting to ensure that all people within its jurisdiction
are able to enjoy their rights. If a remedy should exist, therefore,
that remedy will often be a remedy against or supplied by the
State.
The Government therefore considers that, taking
in combination the human rights protections for matters within
the scope of State responsibility, such as under the Human Rights
Act, and the protections developed as a direct or indirect consequence
of the positive human rights obligations of the State, including
obligations to fulfil rights of progressive realisation, there
exists in the UK the correct legal framework to protect the rights
of individuals.
However, as previously discussed, the Government
encourages all organisations, whether public or private, to consider
whether and how they could adopt a rights-based approach to their
interface with the public, and believes that the Human Rights
Act can provide a useful framework for businesses to embed human
rights within their practices.
20 May 2009
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