Further supplementary memorandum submitted
by the Ministry of Justice
1. A list of which Government departments,
if any, which have had problems in relation to Section 6(3)(b)
HRA, including through disputes, litigation or proposed Bill amendments,
since the decision of the HL in YL. We would be grateful if you
could list the Government's position in any litigation, or its
response to any amendments, if possible.
The way in which section 6 of the Human Rights
Act (HRA) is drafted means that the question of whether or not
any given function is a "function of a public nature"
is something that must be addressed on a case-by-case basis. As
such, we would not necessarily agree with the Committee's suggestion
that disputes, litigation or probing amendments relating to section
6(3)(b) necessarily constitute "problems" in respect
of this issue. Indeed, we consider that probing amendments in
particular represent a normal part of the examination of legislation,
and note that litigation on this point has been rare.
The involvement of Government Departments in
each area is set out in more detail below.
DISPUTES AND
LITIGATION
As noted above, it is rare for the point to
be contested in litigation. This is illustrated by the length
of time it took the Government to find a suitable case in which
to intervene to argue about the status of privately-provided social
care, as recommended by the Committee. In terms of disputes and
litigation, the majority of the cases in which this point has
arisen and in which central Government has been involved are set
out in the Committee's own reports on the subject.
To the best of our knowledge Weaver v London
and Quadrant Housing Trust represents the only significant
contested post-YL proceedings on the subject, although we understand
that the point has also been raised in a number of minor judicial
review proceedings that have, for the most part, failed to receive
permission as presenting no arguable case. Weaver is not a case
at this time in which the Government is involved, and as such
it has taken no position in the litigation.
PROPOSED BILL
AMENDMENTS
To the best of our knowledge, three Government
Departments have encountered proposed Bill amendments relating
to section 6(3)(b) of the Human Rights Act since the judgment
in YL. They are: the Department for Children, Schools and Families,
the Department of Health and the Department of Work and Pensions.
The Bills in question and the nature of the amendments tabled
are set out below.
Children and Young Persons Bill
The amendment tabled to the Children and Young
Persons Bill concerned the status of social work providers under
section 6, and was tabled by Baroness Walmsley at Committee stage
in the House of Lords.
Health Bill
An amendment was tabled in each House during
the passage of the current Health Bill, seeking to clarify that
the provision of healthcare services under direct payment provisions
is a public function for the purposes of the HRA.
Welfare Reform Bill
Two separate amendments were tabled in the House
of Lords to the Welfare Reform Bill relating to the status of
independent bodies providing services under right to control provisions,
and contractors carrying out public functions on behalf of the
Secretary of State.
In each case the Government has clearly set
out its view as to whether it considers the functions or bodies
in question to be public for the purposes of the HRA, which is
recorded in Hansard.
1.What role do human rights and, in particular,
conflict risk, play in the assessment of Export Credit Guarantee
applications?
Consideration of Human Rights is incorporated
into the Export Credit Guarantee Department (ECGD)'s Business
Principles, which guide its practices. One objective of these
is that:
"ECGD will, when considering support, look
not only at the payment risks but also at the underlying quality
of the project, including its environmental, social and human
rights impacts."
The Business Principles go on to state that
ECGD:
"...will promote a responsible approach
to business and will ensure our activities take into account the
Government's international policies, including those on sustainable
development, environment, human rights, good governance and trade."
In carrying out its role ECGD also has to comply
with various international agreements, including the Organisation
for Economic Co-operation and Development (OECD) Recommendation
on Common Approaches on the Environment and Officially Supported
Export Credits (the Common Approaches). This requires Export Credit
Agencies to ensure that the projects that they support meet international
environmental and social standards. These are normally the standards
of the World Bank Group, which include standards on human rights
issues.
It is ECGD policy that the projects it supports
should normally comply in all material respects with the relevant
international standards. ECGD has published a Case Impact Analysis
Process (CIAP), which sets out how it determines whether the projects
it is asked to support satisfy that policy.
Where projects are considered to have a high
potential environmental and social impact, the Common Approaches
require that an Environmental Impact Assessment (EIA) is produced
and made publicly available with human rights issues being indentified
and included in any EIA. It is the responsibility of the project
sponsor/developer/owner to produce an EIA or equivalent, not the
UK supplier. Typically, the human rights issues which are considered
against international standards include:
(i) involuntary resettlement;
(ii) compulsory land acquisition;
(iii) Impact of imported workforces;
(iv) job losses among local people;
(v) damage to sites of cultural, historic or
scientific interest;
(vi) impact on minority or vulnerable groups;
(vii) child or bonded labour; and
(viii) use of armed security guards.
If a project has been classified as having high
potential environmental and social impacts, ECGD would normally
require monitoring arrangements to be put in place during the
construction and operational phases of the project to ensure compliance
with international standards by the project owner.
During oral hearings, the Committee referred
to the evidence given by ECGD at a recent Information Tribunal
in regards to conflict risks on the Baku-Tbilisi-Ceyhan (BTC)
pipeline project that was supported by ECGD. I understand that
at the Tribunal, ECGD explained that conflict risks are in fact
assessed by ECGD's Country Risk Analysts. This was certainly the
case with ECGD's consideration of support for the BTC project.
Such risks could impact upon the viability of projects that ECGD
is asked to support and, therefore, are always assessed so that
ECGD can satisfy itself that the repayment risks are acceptable.
That assessment is informed by advice from the Foreign and Commonwealth
Office, including overseas posts, as it has particular expertise
within the Government on conflict risk issues.
2. You promised to provide a supplementary
memorandum on the Government's position in respect of public procurement
and human rights. It would be helpful to know what guidance is
currently provided to public authorities by central Government
on public procurement and human rights. Please provide examples,
if there are any, of good practice on public procurement and human
rights in the UK.
All public procurement spend must comply with
the EC Treaty principles of transparency, non-discrimination and
the free movement of goods, services and persons across the European
Union single market. In addition, procurements over certain value
thresholds must comply with specific measures contained in the
EU Procurement Directives, which are transposed into UK regulations
(The Public Contracts Regulations 2006).
Public procurement decisions aim to achieve
value for money and take various factors into consideration, including
cost, quality and reliability. Human rights issues are taken into
account where they are relevant to the subject matter of the procurement
or where they relate to the performance of the contract. When
human rights issues have been assessed as relevant, departments
take that into account in their procurement activities.
For example, public sector bodies consider the
human rights record of companies performing services on their
behalf as one important factor in the procurement process. This
is particularly the case when the protection of human rights is
inherent in the performance of the service being procured, such
as care services, when the contract will specify standards for
its performance that ensure that the human rights of service recipients
are protected.
Because there are multiple factors involved
in the procurement process and the decisions taken are often the
result of several different considerations, it is not possible
to select examples of companies being excluded solely on the basis
of their human rights record. At selection stage, Article 45(2)(D)
of the Procurement Directive allows contracting authorities to
exclude a supplier from the procurement process if guilty of grave
professional misconduct, which could include breaching human rights
legislation. In considering whether to exclude a supplier for
breaches of human rights legislation, the contracting authority
would need to ensure that exclusion would be relevant and proportionate.
In reaching its decision, it should consider the nature of the
breach, and the remedial action taken in the meantime by the supplier.
The Regulations also list specific offences,
where convictions must result in the mandatory exclusion of contractors
from tendering. These cover matters such as fraud, bribery and
corruption, which can be linked to abuses of human rights and
are an important consideration in helping to protect vulnerable
groups of people.
Similar provisions to those contained in the
EU Procurement rules apply to states outside the European Economic
Area (EEA) that have signed the government Procurement Agreement.
The Office of Government Commerce (OGC) is also working with the
United Nations Commission on International Trade Law to extend
model procurement laws to third countries. Suppliers from countries
outside the EEA or from countries that are not signatories to
the Government Procurement Agreement can be automatically excluded
for human rights breaches, and breaches by suppliers of human
rights in EEA countries will be in breach of local law and should
be dealt with accordingly.
Domestically, OGC has taken action to help contracting
authorities to address issues that impact on human rights beyond
minimum legal requirements in public procurement. In 2008, OGC
published a guide which demonstrates, with practical examples,
how social issues can be reflected at each stage of the procurement
process in a manner consistent with the Procurement Directive
and UK Regulations. This complements OGC's existing, more detailed
guidance published in 2006 on addressing social issues through
public procurement.
As the Committee is aware, in 2005 the Department
for Communities and Local Government, then the Office of the Deputy
Prime Minister, produced a guide for public authorities entitled
Guidance on Contracting for Services in the light of the Human
Rights Act 1998. The MoJ, in partnership with the Department for
Communities and Local Government, now intends to review the content,
communication and distribution of this guidance, and will be working
with the Improvement and Development Agency for Local Government
to take this forward.
OGC is also developing a procurement charter
between Government and private sector suppliers, aimed at promoting
wider policy agendas through procurement by placing voluntary
commitments on its signatories. While the formal procurement process
affords contracting authorities opportunities to address human
rights issues, much can also be achieved on a voluntary basis
through ongoing supplier relationship management that could not
be included in a formal procurement.
3. We asked the Ministers to consider the
approach of the Norwegian Government to ethical public investment.
Ian Lucas MP promised to consider the Norwegian position and come
back to the Committee.
The majority of UK public pension schemes, including
those for the Civil Service, the NHS, teachers, police, fire-fighters
and the Armed Forces are unfunded pay-as-you-go schemes. They
are not therefore backed by a specific fund of monies which are
then invested. This is in contrast to Norway's, "Norwegian
Government Pension Fund- Global" to which Ian Lucas was being
referred by the Committee.
The Local Government Pension Scheme is a funded
scheme comprising of 89 separate local authority controlled pension
funds in England and Wales, plus 11 in Scotland and 1 in Northern
Ireland which operate on a similar basis. These funds have powers
to make investments in the ordinary sense but there are prudential
limits as set out by their investment framework which is broadly
similar to that set out in "The Local Government Pension
Scheme (Management and Investment of Funds) Regulations 1998"
and its subsequent amendments. The regulations require local authorities
with responsibilities for pension funds to act prudently, seek
proper advice, ensure the suitability and diversification of investments
and are required to publish their policy regarding ethical investments
as part of their Statement of Investment Principles.
The Norwegian Government Pension Fund-Global
is one of the largest pension funds in the world and derives its
financial backing from oil profits rather than pension contributions.
As of August 2008, 50% of the fund was invested in the international
stock market. The fund referred to is subject to an ethical investment
policy which includes measures to exercise ownership rights in
order to promote long-term financial rewards, based on the UN
Global Compact and the OECD Guidelines for Corporate Governance
and for Multinational Enterprises. As Ian Lucas stated in his
evidence, the principles of the OECD Guidelines underpins the
work of the UK Government. Therefore any action by the Norwegian
Government to support them is welcomed by the UK.
4. Please confirm how responsibility for human
rights and the private sector, including responsibility for corporate
responsibility, is currently arranged across Government. We would
be grateful if you could explain which Ministers, departments
and agencies have responsibility for each area of Government policy;
and set out any recent relevant joint working programmes or initiatives
undertaken, specifying the departments involved.
The subject of human rights is shared between
the Ministry of Justice (MoJ), the Foreign and Commonwealth Office
(FCO), and the Department for International Development (DFID)
depending on whether the issues are mainly domestic, international
or related to other countries' international human rights obligations.
The Department for Business, Innovation and Skills (BIS) is fully
engaged in initiatives taken forward by these departments which
have an impact on UK businesses, consumers and employees.
BIS's role in coordinating corporate responsibility
across Whitehall effectively draws together work going on within
other government departments into a coherent and cohesive agenda
with a specific remit to help develop the business case for organisations
to adopt and embed corporate responsibility within their operations.
Other Government Departments with policy responsibilities for
corporate responsibility include: the Department for Environment,
Food and Rural Affairs (DEFRA) with environmental reporting, skills
for corporate responsibility and liaison with trade unions in
the workplace; DFID with ethical trading, the extractives industry
and natural resource conflict issues; the Department for Work
and Pensions (DWP) on ethical pension fund management, UK relations
with the International Labour Organisation and socially responsible
investment; the Department for Communities and Local Government
for business brokerage and neighbourhood renewal; the Cabinet
Office with the Prime Minister's Social Action Agenda, City Leader's
Challenge and the Prime Minister's award for Social Technology;
and the Office of the Third Sector with youth volunteering, community
endowments, support for charities and faith-based organisations.
BIS is also responsible for the reporting provisions
of the Companies Act 2006; and is the home of the National Contact
Point which leads on the OECD Guidelines on Multi-national Enterprises
and Anti-corruption issues. Business Group's Central Team provides
the BIS interface with the Office of the Third Sector. As the
Committee is aware, Ian Lucas, Minister for Business and Regulatory
Reform, is the Minister responsible for corporate responsibility.
5. Please provide further information on the
cross-Government steering board on corporate responsibility. In
particular please tell us about its:
— membership and structure;
— working methods and objectives; and
— responsibilities and achievements.
In his evidence to the Committee, Ian Lucas
referred to a "steering board across government" with
responsibility for the OECD Guidelines for Multinationals; an
international corporate responsibility standard. This steering
board includes a number of Government departments and agencies.
The OECD Guidelines are recommendations on responsible
business conduct addressed by Governments to multinational enterprises
operating in or from their territories. Each signatory Government
to the Guidelines, (all 30 OECD member states, as well as 11 non-OECD
countries have signed up), must establish their own national Contact
Point (NCP). The role of the NCPs is to promulgate the Guidelines
to the business community, employee organisations and other stakeholders,
and to implement the Guidelines Specific Instance, often referred
to as the complaint, procedure to examine allegations that multinational
enterprises have breached the Guidelines.
The OECD does not prescribe how an NCP must
be organised or run, consequently there are a number of different
models in existence across different signatory countries. Following
criticism of the effectiveness of the UK NCP, the Government undertook
a consultation with UK NCP stakeholders. This consultation resulted
in a revamp of the UK NCP, including the establishment of a Steering
Board.
The purpose of the Steering Board is to oversee
the work of the UK NCP and to provide it with strategic guidance.
The constitution of the Board is currently nine
Members, five representing Government departments (BIS, who also
Chairs the Board, DFID, FCO, DWP and ECGD) and four representing
external stakeholders (the Trades Union Congress, civil society,
the business sector, and the All-Party Parliamentary Group on
the Great Lakes Region). However, because the Guidelines cover
a range of issues the Steering Board, with the agreement of the
Chair, can call upon persons having a knowledge, experience or
understanding of particular topics. These individuals can be either
from external organisations or other Departments not currently
represented on the Board.
The responsibilities of the Steering Board are
as follows:
— to oversee and monitor the effectiveness
of the operation of the National Contact Point, ensuring correct
and fair procedures are followed in line with the established
and published NCP procedures for dealing with complaints;
— to agree any changes in procedures, and
develop further procedures, where this is necessary in the light
of experience;
— to consider issues of general and specific
application of the Guidelines when they arise. The Steering Board
will consider requests from the NCP for guidance on the procedure
to be followed, for example where there are new or contentious
issues to consider. However, the Steering Board will not make
decisions on the substance of Specific Instances;
— to consider requests for review in relation
to Specific Instances examinations in respect of procedural issues
only;
— to assist and advise the NCP in relation
to the promotion and awareness raising of the Guidelines; and
— to consider issues where clarifications
or improvements to the Guidelines are proposed for bringing to
the attention of the OECD Investment Committee. The Steering Board
may make recommendations to Ministers as appropriate in this respect.
The main achievements of the Steering Board
since its conception are:
— Review of the UK NCP's procedural handling
of the Baku-Tbilisi-Ceyhan (BTC) pipeline Specific Instance, at
the request of one of the complainants. The Board found that there
had been procedural failings in the UK NCP's handling of this
case and made various recommendations including: the withdrawal
of the previously issued Final Statement; and the preparation
and issuing of a new Final Statement.
— Provided advice on how the UK NCP should
handle Specific Instances which are or have been subject to legal
proceedings and where there is a risk of prejudice occurring.
— Promoted the Guidelines in various ways,
including participating in events and discussions.
6. Please explain how responsibility for human
rights issues is organised across the FCO.
The subject of human rights is mainstreamed
across all of the FCO's departmental strategic objectives. This
means that geographical and thematic departments and posts are
responsible for ensuring that human rights are factored into their
work. The FCO's Human Rights and Democracy Group (HRDG) exists
to drive, guide and support this effort, while leading on work
to protect and strengthen the international human rights system
and develop policy on key international human rights and democracy
challenges.
Lead responsibility for the UN human rights
machinery, international human rights law, and overarching human
rights themes therefore rests with HRDG, but thematic and country
specific issues rest with the responsible geographical or functional
FCO departments. In practice departments work together to ensure
coherence between different policy priorities. Likewise HRDG works
closely with other government departments where they have the
overall policy lead, for example on the following subjects: climate
change; international development; UK compliance with international
human rights obligations; and corporate responsibility.
In line with HRDG's lead responsibility for
UN special procedures we strive for credible, expert individuals
such as Ruggie to be appointed as mandate holders. HRDG supports
Professor Ruggie's work and has a keen interest in seeing it operationalised
in a manner compatible with the international human rights framework
to improve respect for human rights on the ground. In addition,
the FCO's Conflict Group is seeking to improve private
sector compliance with best practice frameworks in order
to reduce the links between the exploitation of natural resources
and conflict. As a result, Conflict Group acts as the focal
point across Whitehall on business and conflict issues, but not
corporate social responsibility or sustainable development. Conflict
Group sits on Professor Ruggie's core steering group, which is
seeking to develop a code of conduct for businesses operating
in conflict zones.
7. Please provide further details of the "support
mechanisms" which currently exist within Government for the
purposes of assisting businesses to develop their awareness of
human rights, both in relation to their activities within the
UK and overseas. We would be grateful if you could provide examples
of how these mechanisms work in practice.
The Human Rights Division within the MoJ produces
a range of guidance on the subject of human rights. As well as
a toolkit for public authorities, this includes both a guide and
a short introduction to the Human Rights Act, which are available
to the general public. The Private Sector and Human Rights Project
currently being taken forward by MoJ, in partnership with the
Department of Health, will consider a range of options including
whether any further guidance should be provided for UK businesses
on how to integrate human rights approach within their domestic
policies and practices. This work will be taken forward in partnership
with the Equality and Human Rights Commission (EHRC) and Race
for Opportunity, a third sector organisation that works with both
public and private sector employers on equality issues. The Government
believes that as the protection and promotion of human rights
and the Human Rights Act is a core duty of the EHRC, the Commission
should actively provide leadership in promoting and raising awareness
of human rights.
Furthermore, the Private Sector and Human Rights
Project has served to initiate dialogue between the Government
and the UK private sector on the subject of human rights. Businesses
from across the UK private sector have participated in the scoping
study via questionnaire and interview, and will be kept updated
on the project's findings and any next steps. Representatives
of the sector, including the Confederation of British Industry
(CBI) and the Federation of Small Businesses (FSB), have also
been fully engaged; they have participated in the project's Steering
Group and have made valuable contributions to the development
and distribution of the questionnaire, and identifying participants
for in-depth interviews. The Government will continue to work
closely with these organisations to develop any next steps for
the Private Sector and Human Rights Project, based on the findings
of the scoping study.
The Government supports the development of a
human rights consciousness in UK companies operating overseas
through a programme of Corporate Responsibility awareness-raising
and the systematic promotion of international good practice guides.
For example, the OECD Guidelines for Multinational Enterprises
is brought to companies' attention through mainstream trade promotion
services such as the UKTI and ECGD websites.
The Government has also developed a toolkit
for our overseas posts to raise awareness of how business operations
may affect the enjoyment of human rights and how to promote good
corporate conduct, including through the OECD Guidelines. As
Lord Malloch Brown told the Committee during the oral evidence
session, this is one in a series of working-level human rights
guides provided to officials working overseas. In addition,
the Government issues an annual telegram to overseas Posts reminding them
that the OECD Guidelines constitute a useful tool when dealing
with complaints brought by NGOs about the behaviour of UK companies
overseas including in relation to human rights.
The Government has also sponsored a number of
multilateral intiatives to help equip UK companies with practical
tools to assess and manage the impact of their international activities.
For example, the UK NCP has sponsored the development of a dedicated
web portal to promote the OECD Risk Awareness Tool for Weak Governance
Zones.
8. We would be grateful for examples of the
circumstances in which guidance is provided by the Foreign Office
to businesses on the human rights impacts of their activities.
It is standard practice for FCO posts overseas
to brief visiting business missions on the security and internal
political situation in a country. Posts make every effort to ensure
that UK businesses understand how local conditions might affect
their activities and vice versa when conducting business in a
country.
Through posts FCO supports the work of the UK
NCP, encouraging British companies to meet their obligations to
their workers under these guidelines. Posts are also encouraged
to promote the guidelines locally with civil society and others
and to consider providing a link to the guidelines from their
websites. Annual guidance is issued to posts reminding them how
the guidelines can be used, and posts judge the situation on the
ground to determine when an intervention might be appropriate.
Training on human rights is provided for officers going to post
and the Government has recently compiled a toolkit on human rights
and business.
All FCO posts are expected to monitor and report
on the human rights situation in a country. They have played a
key role too in promoting ethical business practice initiatives
including the UN Global Compact, the Voluntary Principles on Security
and Human Rights and British Government initiatives such a the
Medicines Transparency Alliance and the Extractive Industries
Transparency Initiative.
FCO has on a number of occasions provided further
advice to businesses, for example on the reputational risks of
their activities or on appropriate local business partners. Such
guidance is often provided at the business' request, and the circumstances
under which the guidance is provided vary greatly from case to
case.
9. What steps, if any, has the Government
taken to integrate human rights into the objectives of UKTI?
There are no specific references to human rights
principles in the objectives of UKTI. However, through the commitments
of its parent departments BIS and FCO, UKTI is bound to consider
human rights principles in its efforts to achieve its objectives;
the FCO provides introductory and advanced level human rights
training courses to officers going overseas.
Further, UKTI is always mindful of the UK's
responsibilities regarding Corporate Social Responsibility; this
forms part of the thinking behind their general operational guidelines,
much the same as their eligibility guidelines, the FCO tobacco
guidelines, and the bribery and corruption guidance. Through overseas
posts the Government actively encourages countries to establish
the necessary governance/ business regulatory framework to protect
human rights.
10. Please provide further details of the
scope and purpose of the Private Sector and Human Rights Project,
including the working methods employed, its aims and the departments
and agencies involved in the steering group for the project. In
respect of each department or agency, please explain their role
in the project.
The Private Sector and Human Rights Project
is currently being taken forward by MoJ, in partnership with the
Department of Health. The initial phase of this project consists
of a scoping study to establish an understanding of how UK businesses
are currently engaging with human rights and whether they see
a need for any further guidance on how to integrate human rights
into their businesses practices.
As part of the scoping study, questionnaires
have been distributed to a range of companies across the UK private
sector, and in-depth interviews have been conducted with selected
companies. The questionnaire was distributed to companies across
the sectors identified by the Office of National Statistics, in
order to ensure that it engages the breadth of the UK private
sector. It was also distributed to a number of companies from
Scotland, Wales and Northern Ireland to ensure that the study
includes all parts of the UK.
The questionnaire has been distributed both
directly to companies, and via online announcements, through:
— the Business and Human Rights Resource
Centre website and newsletter;
— the Federation of Small Businesses newsletter;
— the Race for Opportunity online newsletter;
and
— the CBI announcing to their members and
encouraging them to respond.
In-depth interviews have been conducted with
companies across a range of sectors, and from across the UK. These
interviews provided an opportunity to look below the surface and
find out exactly how companies perceive human rights and how they
affect their domestic operations, and whether there is a need
for any further guidance on how to integrate human rights within
their practices.
The emerging findings from the scoping study
were outlined in the Government's supplementary memorandum of
evidence submitted to the Committee as part of this inquiry. They
key messages emerging from the scoping study to date are:
— UK companies understand human rights
issues although they do not use explicitly human rights language
within their practices. They instead use a variety of overarching
terms including ethics, social responsibility and specific terms
such as equality and diversity. Therefore, most do not have stand-alone
policies or position statements on human rights, but have integrated
human rights into their existing relevant policies.
— Companies usually view human rights as
risk factor only in their overseas operations, and for their UK
operations see human rights as an issue only in terms of employment.
Within the UK, companies are most likely to have comprehensive
policies in place for occupational health and safety, harassment
and most forms of discrimination. The most common ways in which
these issues are integrated into policies are through codes of
conduct and grievance and discipline processes.
— The supplementary memorandum also explains
that there is a significant demand for practical guidance on how
UK businesses can integrate human rights into their business practices.
A Steering Group has been established for the
Private Sector and Human Rights Project, which is comprised of
the relevant Government Departments, private sector organisations
and Race for Opportunity, a third sector organisation that works
with employers on equality issues. The Group has contributed to
the scoping study through the development of the questionnaire,
identifying participants, distributing the questionnaire through
contacts and networks, and analysing the findings of the study.
The Group will be fully engaged in considering any potential next
steps of the project.
The project's Steering Group is comprised of
the following Government Departments: the Department of Health
(who are jointly sponsoring the project), the Home Office, the
Department for Work and Pensions, the Department for Transport,
the Government Equalities Office, the Office of Government Commerce,
the Foreign and Commonwealth Office, the Department for International
Development, the Audit Commission, the Tenant Services Authority,
the Wales Office, Scotland Office and the Northern Ireland Office.
The Equality and Human Rights Commission is also a member of the
Group.
The Welsh Assembly Government, Northern Ireland
Executive and Scottish Executive have been informed of the project
and have asked to be kept updated regarding its progress. Officials
from each are therefore copied into papers for the Steering Group.
Although this project has a domestic focus,
at the evidence session held by the Committee on 14 July we discussed
the need to ensure that the Foreign and Commonwealth Office is
fully engaged with the work and that the international and domestic
dimensions of business engagement with human rights are fully
joined up. FCO has since attended a meeting of the Private Sector
and Human Rights Project's Steering Group, to discuss the findings
of the project's scoping study. FCO and DFID will remain fully
engaged with the project and we will continue to seek opportunities
to integrate the work that both are taking forward in the area
of business and human rights with that being taken forward by
MoJ.
In addition to Government Departments, the Steering
Group of the Private Sector and Human Rights Project is also comprised
of private sector organisations, including the Confederation of
British Industry (CBI) and Federation of Small Businesses (FSB).
The CBI in particular has been closely involved with this project,
both through the Steering Group and through additional collaboration
with the Ministry of Justice. The CBI has made a valuable contribution
to the design and distribution of the questionnaire, and has participated
considerably in the discussion of the study's findings. Both the
CBI and FSB will continue to be fully engaged in this project,
including any next steps.
As well as public and private sector bodies,
Race for Opportunity has also made a significant contribution
to the scoping study, both through and beyond the project's Steering
Group. Race for Opportunity is a third sector organisation that
works with employers on equality issues. This organisation has
a strong commitment to taking this work on the UK private sector
and human rights forward, following a survey that they conducted
amongst public and private sector employers last year, which showed
that many participants were interested in learning more about
how human rights impact on their practices. Like the CBI, Race
for Opportunity has made a valuable contribution towards developing
the questionnaire, identifying participants, and analysing the
findings of the scoping study.
The findings of the scoping study are currently
being collated and analysed. They will be detailed in a report
later in the year, which the Government intends to publish. The
findings of the scoping study will inform the potential next steps
of the project and thus determine its overall scope. Any potential
next steps will be taken forward in partnership with the key stakeholders,
including the EHRC and Race for Opportunity.
11. How does the Government respond to the
concerns of Professor Ruggie that stabilisation clauses in bilateral
investment treaties impact adversely on human rights in developing
countries? What is the Government's position on stabilisation
clauses? How, if at all, does the Government consider their potential
human rights implications?
The UK's Bilateral Investment Treaties (known
as Investment Promotion and Protection Agreements, IPPAs) do not
contain stabilisation clauses. The purpose of the protections
in our IPPAs is to ensure that regulation is non-discriminatory
and is introduced in a fair and equitable manner, not to prevent
host States from regulating in the interest of such issues such
as the environment or human rights.
We understand Professor Ruggie's concern was
in fact with clauses in agreements between host governments and
private sector investors, in which the UK Government cannot directly
intervene. We are, however, looking at ways in which developing
countries' own capacity to address the issues raised can be improved.
12. During the passage of the Companies Act
2006, the Government committed to review the operation of the
social and environmental requirements of the business review within
two years (by 2010). We would be grateful if you could confirm
the arrangements for that review, including the proposed timetable.
The Government committed to conduct an assessment
of the business review provisions under Section 417 of the Companies
Act 2006 two years after implementation. These provisions came
into force on 1 October 2007 for financial years beginning on
or after that date. The first business reviews to be completed
under these provisions have therefore been published this year
and we expect to review how the provisions have worked in 2010,
after two reporting cycles. A detailed timetable has not yet been
set for this project.
13. In the Government's view, are there any
lessons to be drawn from the already completed business reviews
for 2009?
The Government plans to evaluate how the new
provisions are working after two reporting years and we have not
undertaken an analysis in advance of starting that project.
14. In evidence, you told us that you did
not see the need for a dedicated Commission for Human Rights,
the Environment and Business. I would be grateful if you could
provide us with more detail on the Government's position.
The Government is confident that there exists
in the UK the correct framework to protect the human rights of
individuals, and therefore does not consider that the creation
of any additional bodies is necessary. The Government established
the Equality and Human Rights Commission (EHRC) under the Equality
Act 2006 with wide range of statutory responsibilities. Section
9 of the Equality Act, states that the Commission has duties to:
— "promote understanding of the importance
of human rights",
— to "encourage good practice in relation
to human rights", and
— to "promote awareness, understanding
and protection of human rights".
Jack Straw and I have noted on 15 June the publication
of the Commission's Human Rights Inquiry, which made a number
of important recommendations for the way in which it should in
future carry out its responsibilities under the Equality Act 2006,
which sets out the Commissions duty in relation to human rights.
We think Dame Nuala O'Loan's team has produced a realistic and
workable scheme for the way in which the Commission can assume
a leadership role in promoting human rights, and building capacity
across the public sector. We look forward to seeing how these
recommendations will be translated into specific projects and
outputs in their business plans and grants programmes for this
and future years.
We are pleased to note that the Commission in
its Human Rights Strategy for 2009-12 has set out how it plans
to take forward the recommended actions from the Inquiry. The
Government believe that as part of this strategy, the Commission
should become more active in the promotion and protection of human
rights within the UK private sector. Therefore, the Government
does not believe that it is necessary to create a new Commission
which relates specifically to the private sector and human rights.
15. Do you see any place for the existing
UK human rights commissions in raising awareness among businesses
of the human rights impacts of their activities or having an educative
role in disseminating good practice? In the Government's view,
would this role be open to any of the EHRC, the SHRC or the NIHRC
within their existing mandates and resources?
The Government believes that the Equality and
Human Rights Commission (EHRC), the Scottish Human Rights Commission
(SHRC) and the Northern Ireland Human Rights Commission (NIHRC)
can play a valuable role in raising awareness of human rights
among businesses and having an educative role in disseminating
good practice.
As a National Human Rights Institution, the
EHRC has a vital role to play in raising awareness of human rights.
The Commission also has statutory duties to promote and protect
human rights, and encourage compliance with the Human Rights Act.
One of the EHRC's key functions is to provide authoritative advice
and guidance across their remit, including to business, and their
recent Human Rights Inquiry found that there is a need for new
guidance on human rights. The Commission is currently considering
how they could best provide practical and relevant advice and
guidance on human rights to private bodies, particularly those
such as private detention and deportation facilities and private
care homes.
As outlined in the responses to Questions 8
and 11, the EHRC is working closely with MoJ on the Private Sector
and Human Rights Project to consider a range of options including
the development of any guidance for UK businesses. The Commission
was created under the provisions of the Equality Act 2006 with
new powers to enforce legislation and to encourage and promote
equality for all, including compliance with the Human Rights Act.
The SHRC believes that it can play a valuable
role in promoting best practice to businesses, both directly and
through the International Coordinating Committee of National Institutions
for the Promotion and Protection of Human Rights (ICC). Indeed,
the SHRC has been elected as representative of the European group
of NHRIs on two ICC steering committees, one of which is on human
rights and the business sector. As outlined in their written evidence
to the Committee, the SHRC promotes a human rights based approach
to business, which seeks to integrate human rights into all business
decisions and practices.
The NIHRC engages in a regular dialogue with
the Institute of Directors, CBI, FSB and local Chambers of Commerce.
To date this dialogue has focused on consulting on the NIHRC's
advice on a Bill of Rights for Northern Ireland, but the Commission
has expressed an interest in considering options for pursuing
work on the private sector and human rights with the Ministry
of Justice and other relevant stakeholders.
The SHRC and the NIHRC are being kept informed
of the progress of the Private Sector and Human Rights Project
and will consider how they can engage with any next steps.
On 9 June 2009, the Committee issued a supplementary
call for evidence, focusing on a number of recent Government activities
or initiatives. These included:
— HM Government, Corporate Responsibility
Report, February 2009;
— Foreign and Commonwealth Office, Consultation
on Promoting High Standards of Conduct by Private Military and
Security Companies (PMSCs) internationally, April 2009;
— Industry and Exports (Financial Support)
Bill 2009; and
— Draft Bribery Bill, May 2009.
16. If the Government would like to submit supplementary
evidence on the human rights implications of any of these proposals,
or other recent Government initiatives affecting the private sector
and human rights this would be welcome.
CORPORATE RESPONSIBILITY
REPORT, FEBRUARY
2009
Our vision, as outlined in the Government's
Corporate Responsibility Report of February 2009, is to see UK
businesses take account of their economic, social and environmental
impacts. In particular it outlines ways in which Government is
working with businesses to reduce poverty and promote human rights
overseas. A copy of the report is enclosed.
FOREIGN AND
COMMONWEALTH OFFICE,
CONSULTATION ON
PROMOTING HIGH
STANDARDS OF
CONDUCT BY
PRIVATE MILITARY
AND SECURITY
COMPANIES (PMSCS)
INTERNATIONALLY, APRIL
2009
On the conduct of Private Military and Security
Companies, the Government has seen James Cockayne's submission
to the Committee and is pleased to enclose its formal response
to the recommendations made, which is attached at Annex 1. The
Foreign and Commonwealth Office would be happy to answer any further
questions the Committee might have.
DRAFT BRIBERY
BILL
We do not propose to submit supplementary evidence
on the draft Bribery Bill. We are carefully considering the views
of the Committee on the issues referred for its consideration
by the Joint Committee on the Draft Bribery Bill as part of our
preparation of both the Government's response to the Report of
that Committee and the Bill referred to in the Government's draft
legislative programme for the next session of Parliament. The
Explanatory Notes accompanying that Bill will include a section
dealing with human rights issues.
INDUSTRY AND
EXPORTS (FINANCIAL
SUPPORT) BILL
2009
The Industry and Exports (Financial Support)
Bill 2009 made amendments to the Export and Investments Guarantees
Act 1991, these in no way affected the operation of ECGD's Business
Principles including in relation to human rights.
THE LETTER
OF CREDIT
GUARANTEE SCHEME
Since the Committee met with Ministers, ECGD
has decided to launch a new product, the Letter of Credit Guarantee
Scheme. This was the subject of a recent public consultation which
among other things considered the application of ECGD's Business
Principles to the exports that would be covered under the scheme.
Following that public consultation, the Government decided that
it would not be appropriate to undertake such assessments. This
is consistent with OECD Common Approaches on the Environment and
Officially Supported Export Credits which applies only to exports
involving repayment terms of two years or more. A copy of the
consultation document and the Government's response can be found
at www.ecgd.gov.uk.
17. We would be grateful if your officials
could provide us with copies of all submissions on behalf the
UK to Professor Ruggie and with any submissions made by the United
Kingdom intervening in any proceedings in the United States against
UK companies under the Alien Torts Claims Act (Alien Torts Statute).
Submissions to Professor Ruggie
The UK played a leading role in setting up Professor
Ruggie's mandate. The Government has been impressed by the work
he has done in bringing understanding and coherence to the subject
area. We continue to support his mandate and co-sponsored the
resolution in 2008 to renew it. Through EU and national statements
we have registered broad support for his approach and proposed
tripartite framework.
Beyond Council statements, we maintain a policy
of not seeking to influence the views of UN special procedure
mandate holders in order to show respect for their independence.
We have therefore not submitted UK views to Professor Ruggie,
except for a recent letter from the FCO Legal Adviser on a technical
legal question. We are pleased to enclose this letter and Professor
Ruggie's response, attached at Annexes 2 and 3 [not printed with
this volume].
Separately we have recently accepted an invitation
from Professor Ruggie to join his core steering group seeking
to develop a code of conduct for businesses operating in conflict
zones (which will hopefully be available by the end of 2010).
The UK has a standing invitation for UN special
procedures to visit. Professor Ruggie has not visited the UK in
his formal capacity as the mandate holder, but did meet with Lord
Malloch Brown during an informal visit in May 2008. We are pleased
to attach at Annex 4 the record of this meeting.
SUBMISSIONS TO
THE US ALIEN
TORTS CLAIMS
ACT
The Government has submitted to intervene in
ATS proceedings on three occasions:
— In 2007 the ATS came before the 9th Circuit
Court of Appeals on a case involving Rio Tinto. The UK and Australia
together submitted an amicus brief;
— In 2007 the UK submitted a letter to
the US Secretary of State at the petition-for-certiorari
stage in the Khulumani case which was then attached to the amicus
brief by the US Solicitor General along with two joint UK-German
Note Verbales to the US State Department;
— In 2004 the UK filed a joint amicus brief
with Australia and Switzerland in the case of Sosa v Alvarez-Machain
before the US Supreme Court.
I am pleased to enclose these documents, attached
at Annexes 5, 6 and 7 [not printed with this volume].
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