Memorandum submitted by Clifford Chance
LLP
INTRODUCTION
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 www.direct.gov.uk
, www.justice.gov.uk
and the Equality and Human Rights Commission website at www.equalityhumanrights.com,
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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