Any of our business? Human Rights and the UK private sector - Human Rights Joint Committee Contents

Memorandum submitted by Clifford Chance LLP


  This response is made on behalf of Clifford Chance LLP to the call for evidence issued by the Joint Committee on Human Rights as part of its inquiry into business and human rights.

  We very much welcome the Committee's decision to examine this issue, and welcome the opportunity to submit our views. We trust that the Committee will find our comments helpful.

  Clifford Chance is an international law firm, headquartered in London, with 30 offices in 21 countries throughout Europe, the Americas and Asia (together with a co-operation agreement with Al-Jadaan & Partners Law Firm in Saudi Arabia). We are regulated in this country by the Solicitors Regulation Authority.

  We have advised a considerable number of companies and public sector bodies on the application of the Human Rights Act 1998 and other human rights instruments to their activities. We are one of a number of law firms supporting the work of Professor John Ruggie, the UN Secretary-General's Special Representative on Business and Human Rights.

  In the comments below we have not sought to address every question posed by the Committee. We deal below with those on which we are able to offer comment based on our experience (and we do so adopting your numbering).

3.  Are there any gaps in the current legal and regulatory framework for UK businesses which need to be addressed, and if so, how?

  There is a gap in that there remains uncertainty as to whether some businesses are covered by the Human Rights Act 1998 or not. Since the Act came into force, there has been considerable satellite litigation regarding the definition of a "public authority" within the meaning of section 6 of that Act, and not all of the decisions are easy to reconcile with one another. Thus, we currently have a situation in which a privately-run care home is not a public authority[213] but a privately-run psychiatric hospital can be.[214] At the time the Human Rights Bill was being debated, a decision was made not to attempt to describe or list the bodies to which the legislation would apply, on the basis that the Government considered it was "far better to have a principle rather than a list which would be regarded as exhaustive".[215] However, no such difficulty appears to have been encountered with the Freedom of Information Act 2000 (which appends a schedule listing thousands of bodies required to adhere to the provisions of that statute), and there has been minimal litigation on the point in that context (and then confined to bodies which have some functions covered and some not). This uncertainty can make it difficult for businesses to know exactly where they stand in terms of the precise obligations they are required to fulfil.

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?

  While the UK Government provides considerable guidance on the Human Rights Act through sites such as , and the Equality and Human Rights Commission website at, there appears to be little that is specifically aimed at the business community. This could of course be because the focus of the Human Rights Act is on the activities of public authorities rather than organisations operating in the private sector. Guidance which does extend to private sector companies tends to concentrate on employment law, which is an area in which human rights norms have long been incorporated into domestic legislation. If more guidance was thought appropriate, we consider that the logical place for it to be made available would be via the Department for Business, Enterprise and Regulatory Reform.

  Guidance for businesses on the wider issue of human rights outside the Human Rights Act context is also difficult to find. For example, a Google search on "OECD Guidelines for Multinational Enterprises" does not produce a link to the BERR website until the second page of results, and the page is then found under Europe, Trade & Export Control > Trade Policy > OECD Multinational Guidelines & UK NCP. However, that page simply notifies users that the relevant information is to be found elsewhere, and links to a page under Business Sectors > Low Carbon Business Opportunities > Corporate Responsibility, Sustainable Development & Waste Policy > UK NCP—OECD Guidelines. In our view, neither of these is a destination where someone looking for this information on the BERR website would intuitively expect to find it. Even the first search result on BERR's own search engine returns the first page, which no longer contains the relevant information.

5.  What role, if any, should be played by individual Government departments or the National Human Rights Institutions of the UK?

  Government departments should make available timely and accurate information about the way in which human rights obligations affect individuals, business and public authorities.

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?

    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 does and does not apply directly to businesses?

    Whether they are operating inside or outside the UK

    The size, type or nature of their business?

    How, if at all, should the current economic climate affect the relationship between business and human rights?

  Respect for human rights should be something that all businesses strive to achieve. We do not consider that it should depend on whether a business is performing public functions or providing services which have been contracted out by public authorities.

  As we have stated above, it is not currently clear when the Human Rights Act does or does not apply directly to businesses, and, while this should not affect a basic respect for human rights, most businesses will want to ensure that they are complying with the law where there is a obligation to act (or to forbear from acting) in a particular way.

  We do not consider that a responsibility to respect human rights should very according to whether a business is operating inside or outside the UK. Human rights apply to everyone, wherever they are. Businesses operating outside the UK, and particularly in developing countries, may, however, find even less in the way of local laws or guidance than they do here, and may need to be guided by instruments such as the OECD Guidelines for Multinational Enterprises rather than relying on local laws to set out their obligations.

  Nor should the size, type or nature of a business affect respect for human rights. Once again, however, businesses operating in countries or industries where human rights abuses have historically been common, or are known to continue today, should take extra care to ensure that their policies and processes do not contribute to further abuses, whether actively or by lack of proper supervision.

  The current economic climate should not adversely affect the relationship between business and human rights. Respect for human rights should be a given in any business, and not something that depends on economic conditions.

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?

  The confusion over exactly which bodies are subject to the Human Rights Act presents an obstacle not just for businesses but also for individuals who believe their human rights have been infringed. If satellite litigation on the issue of what is and is not a public authority has to go to the Court of Appeal or the House of Lords before a claimant can even be sure that a claim can proceed, that is a significant barrier to a remedy for that claimant, who may struggle to fund even a straightforward claim.

  Human rights are not, of course, confined to those rights set out in the Human Rights Act, or able to be secured only by proceedings under that Act. Many human rights are protected in an employment setting, for example, by employment laws, and there is widespread access to employment tribunals for individuals who believe that their rights have been infringed by their employers.

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 both claimants and respondents);

    Non-judicial remedies (for example, through the operation of ombudsmen, complaints mechanisms, mediation or other non-judicial means). If non-judicial remedies 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.

  We consider that clarification of what is a public authority within the meaning of the Human Rights Act is an important step which should be considered at the earliest opportunity by means of an amendment to the Act.

  If the definition of public authority means that more businesses are likely to become subject to the Act, guidance for those businesses would be useful so that they can ensure they comply with the relevant provisions.

  Outside of the Human Rights Act context, we welcome the Government's commitment of additional resources to the National Contact Point for the OECD Guidelines and the publication of new procedures to improve the process for handling complaints.

Clifford Chance LLP

213   YL v Birmingham City Council and others [2007] UKHL 27. Back

214   R v Partnerships in Care Limited, ex parte A [2002] EWHC 529 (Admin). Back

215   583 HL Official Report (5th series) col 796 (24 November 1997). Back

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