Memorandum submitted by the International
Business Leaders Forum
We are delighted that the Joint Committee on
Human Rights has submitted a call for evidence on business and
human rights issues, and seeks to understand in greater depth
how UK businesses influence society, both positively and negatively.
The International Business Leaders Forum (IBLF)
was founded in 1990 to put business at the heart of sustainable
development. Championing and advancing responsible business practices
is at the heart of what we do. The business and human rights agenda
has been a central plank of IBLF's work for over a decade and
we have gained global recognition for our expertise in this area,
having collaborated with organizations such as Amnesty International,
the Business Leaders Initiative on Human Rights (BLIHR), the International
Finance Corporation, the UN Office of the High Commissioner for
Human Rights and the UN Global Compact Office to produce ten leading
company management guidance publications.
Over the last two decades, IBLF has worked with
leading multinational corporations across all continents to promote
human rights issues within their business operations. For example,
in Vietnam we worked with major retail brands Pentland, Adidas
and Nike, together with international NGOs, the Vietnamese Chamber
of Commerce and the Vietnamese public sector to raise health and
safety standards in the footwear industry. Similarly, in Colombia
IBLF worked with international and domestic companies across a
range of industries, NGOs and other sectors to raise awareness
around the positive role business can play in development, peace-building
and human rights and to encourage practical action. From 2005-06,
IBLF collaborated with the UN Secretary-General's Special Representative
on Human Rights and transnational corporations and other business
enterprises (henceforth, the UN Special Representative) to coordinate
the 2006 survey of Fortune Global 500 companies' Human
Rights Policies and Management Practices.
Given IBLF's long-standing record of thought
leadership in the business and human rights field, and that much
of our recent work has been motivated by seeking to support and
inform the mandate of the UN Special Representative we believe
we are well positioned to put forth our views on the effectiveness
and viability of the UN Special Representative's "Protect,
Respect and Remedy" framework.
In compiling IBLF's views, we have sought the
opinions of Lucy Amis and Desiree Abrahams, whom are both Programme Managers on
Business and Human Rights issues at IBLF. Desiree attended the mini conference on Business and Human
Rights on 25 February 2009 at the House of Commons.
Lucy represents the IBLF on the UN Global Compact's expert Human
Rights Working Group.
Before we respond to your specific questions,
we would first like to respond to your general question on the
effectiveness and viability of the "Protect. Respect and
Remedy" framework.[233]
From the outset, we would like to state that
IBLF fully supports the mandate of the UN Special Representative
on Business and Human Rights, Professor John Ruggie.
We are very pleased to note the unanimous endorsement
by the United Nations Human Rights Council of the policy framework
on business and human rights in June 2008, and the extension of
the UN Special Representative's mandate until 2011 to operationalise
the framework, and provide practical recommendations and concrete
guidance to states, businesses and other social actors on its
implementation.
We believe that such full support of the UN
Human Rights Council underscores the importance and gravity of
human rights issues for businesses in the 21st century.
Crucially, we agree with the approach outlined
in the "Protect, Respect and Remedy" framework, which
promotes:
1. The state duty to protect against human rights
abuses by third parties, including business, through appropriate
policies, regulation, and adjudication.
2. The corporate responsibility to respect human
rights, which in essence means to act with due diligence to avoid
infringing on the rights of others.
3. Improved access for victims to effective remedy,
both judicial and non-judicial.
This framework provides clear guidance on the
main areas for engagement on business and human rights issues,
for states, businesses and other related actors. We wholeheartedly
agree with the premise that all social actors need to learn to
do things differently (UN 2008: 7).
While we maintain a watching brief on the first
pillar—the state duty to protect, and where appropriate
we will seek to understand how this primary duty impacts on the
corporate responsibility to respect human rights, our raison d'etre
and modus operandi presents us with a specific interest in the
second pillar. That said we would wish to draw the Joint Committee's
attention to the observation made by the UN Special Representative
in paragraph 22 (UN 2008: 22) which we regard as critical
and pertinent to this call for evidence: it states:
"Governments should not assume they are
helping business by failing to provide adequate guidance for,
or regulation of, the human rights impact of corporate activities.
On the contrary, the less governments do, the more they increase
reputational and other risks to business."
There is therefore, in IBLF's view, a helpful
role for national governments to play in providing domestic companies
with guidance on how to manage human rights issues both at home,
but more particularly in contexts where the rule of law is weak
or poorly enforced.
Under the second pillar—the corporate
responsibility to respect, companies are urged to pursue a human
rights due diligence process composed of four core elements:
— Adopting a human rights policy.
— Undertaking—and acting upon—a
human rights impact assessment.
— Integrating the human rights policy throughout
the company.
— Tracking human rights performance.
We believe strongly that this four-pronged approach
provides a good, clear steer for companies. By implementing each
step, a company could develop comprehensive systems and processes
that are sensitive to potential human rights risks.
In particular, by completing a human rights
impact assessment, a company would be armed with a better understanding
of how their operations impact their employees and consumers and
the society in which they operate. Such invaluable intelligence
would place the company in a greater position to make informed
decisions on their business operations. Should potential negative
risks be exposed throughout the human rights impact assessment
process, such information would inform a company's mitigation
polices and practices.
In the context of the second pillar—the
corporate responsibility to respect—IBLF would also like
to affirm its support for the position taken by the UN Special
Representative in paragraph 52 (UN 2008: 52), namely that
there are:
"few if any internationally recognized rights
business cannot impact—or be perceived to impact—in
some manner [and that] Therefore, companies should consider all
such rights."
This premise underpinned the publication Human
Rights Translated: A Business Reference Guide that IBLF released
in 2008 with the Castan Centre for Human Rights Law, the
UN Office of the High Commissioner for Human Rights and the UN
Global Compact. The publication, cited by the UN Special Representative
in his 2009 submission to the UN Human Rights Council (UN
2009: 57),[234]
translates the State-based language of international human rights
law into language and examples that make sense in a business context,
and may also be of interest to the Joint Committee as it explores
the relevance of human rights to business.
The third pillar that focuses on improving access
to remedy for victims of abuses is an important aspect within
the framework, and in our view, complements both the first and
second pillars. Crucially, we believe that there needs to be greater
attention and support for company based grievance mechanisms,
which can be immensely valuable to companies. They have the potential
to provide an early-warning complaints system before complaints
are magnified and compounded. By cataloging such important information,
this should help the company develop an appropriate mitigation
policy or process.
Over recent years, the UN Special Representative
on Business and Human Rights has managed to corral a diverse set
of stakeholders, including business, government and civil society
groups from the North and South around the possibility that there
should be a set of differentiated but complementary responsibilities
(UN 2008: 9). We believe that the high level of support from all
actors is indicative of a relevant, appropriate and practicable
way forward. In this regard, we encourage you to base any recommendations
for the UK on the recommendation of the UN Special Representative
on Business and Human Rights, and in particular the UN Special
Representative's ongoing efforts as part of the "new mandate
is intended to translate the framework into practical guiding
principles" (UN 2009: 3).
Before we respond to your specific questions,
we would like to inform you that IBLF is an organisation operating
under an international remit. Given our international focus, we
are not in a position to provide informed comments to some of
your UK focussed questions. That said, we have endeavored to make
general comments where possible.
THE DUTY
OF THE
STATE TO
PROTECT HUMAN
RIGHTS
1. How do the activities of UK businesses
affect human rights both positively and negatively?
Companies, like any other organisation have
the ability to affect the human rights of stakeholders in both
a positive and negative way. As an international focused organisation,
we do not wish to make a specific comment about UK businesses,
however IBLF holds the view that companies of all nationalities
have the potential to impact, positively or negatively, on all
international human rights standards and that for all companies
and all industries this encompasses labour-related rights, including
freedom from discrimination, the right to freedom of association
and collective bargaining, and freedom from child and forced labour.
In addition, companies from different industries also have the
potential to impact on non-labour related rights, for example
an internet company may impact on the freedom of expression; a
pharmaceutical company may impact on the right to health; and
a mining company may impact on the freedom of movement.
2.How do these activities engage the human rights
obligations of the UK?
As an international focused organisation, we
do not wish to make a specific comment about UK businesses.
3. Are there any gaps in the current legal
and regulatory framework for UK business which need to be addressed,
and if so, how?
Given our international focus, we are unable
to provide an informed comment to this question.
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?
We would encourage the UK Government and all
governments to follow the guidance outlined in the UN Special
Representative on Business and Human Rights' "Protect, Respect
and Remedy" Framework which provides guidelines for Member
States on their state duty to protect. The UK Government, and
by extension, the Joint Committee might for example wish to canvass
the opinion of business leaders and business associations to more
fully understand the nature of guidance companies would find helpful
in managing human rights issues at home, and more particularly
internationally in contexts where the rule of law is weak or poorly
enforced.
5. What role, if any, should be played by
individual Government departments or the National Human Rights
Institutions of the UK?
Given our international focus, we are unable
to provide an informed comment to this question.
THE RESPONSIBILITY
OF BUSINESSES
TO RESPECT
HUMAN RIGHTS
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?
All businesses, regardless of their nationality
or registered status can take into account their human rights
impact of their activities by implementing a human rights impact
assessment. The Guide to Human Rights Impact Assessment and Management,
which provides a methodology on how to conduct a human rights
impact assessment by following a eight-step process is a good
example of a practical approach companies can adopt, which will
upon completion, provide information and intelligence on a company's
human rights impact in society.
It is possible that by undertaking a human rights
impact assessment, a company may be presented with information
on both positive and negative company impacts. However, while
gathering information on one's impact is an important step, it
is even more critical for a company to use this information and
in light of the information and data presented, change their business
operations accordingly. Without this next step, a human rights
impact assessment is of little value.
A company's human rights impact assessment,
should as outlined by UN Special Representative, ideally sit within
a wider process of human rights due diligence, which also encompasses
the adoption, and more critically the integration of, a human
rights policy.
— 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?
This is an issue that the UN Special Representative
has earmarked in his 2009 submission to the UN Human Rights
Council as meriting further investigation as he continues to operationalise
the "Protect, Respect and Remedy" Framework. In particular
the UN Special Representative remarks in paragraph 64 (2009:
64):
"More than respect may be required when
companies perform certain public functions for example, the rights
of prisoners do not diminish when prisons become privatized."
— Whether they are operating inside
or outside the UK;
IBLF believes that companies should respect
the human rights of their direct and indirect stakeholders, wherever
they operate.
— the size, type or nature of their
business?
All companies, irrespective of the size, type
or nature should respect the human rights of their direct and
indirect stakeholders, wherever they operate. That said the capacity
and resources of companies to carry out full human rights due
diligence process may vary by size; size should not however be
used as an excuse for inaction.
— How, if at all, should the current
economic climate affect the relationship between business and
human rights?
An economic crisis should not adversely affect
a company's ability to respect the human rights of their direct
and indirect stakeholders. Indeed as highlighted by the UN Special
Representative in his 2009 report the UN Human Rights Council
(UN 2009: 10), companies will need to:
"acknowledge that business as usual is not
good enough for anybody, including business itself, and that they
must better integrate social concerns into their long-term strategic
goals."
EFFECTIVE ACCESS
TO REMEDIES
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?
We have no specific comments on the UK legal,
regulatory and voluntary framework. However, we do believe that
Member States, companies and other social actors should consider
the recommendations put forth in the "Protect, Respect and
Remedy" Framework under the third pillar—access to
remedy, and in particular take note of the principles spelled
out in paragraph 92 (UN 2008: 92) which posit that all grievance
mechanisms be: legitimate; accessible; predictable; equitable;
rights-compatible; and transparent.
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 and respondents);
We have no specific comments to make.
— 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?
We have no specific comments to make.
— Government initiatives, whether by
legislation, statutory or other guidance or changes in policy;
We have no specific comments to make.
— Initiatives by business or other non-Government
actors.
We have no specific comments to make.
233 Protect, Respect and Remedy: a Framework for Business
and Human Rights-Human Rights Council, A/HRC/8/5, 7 April
2008. Back
234
Business and human rights: Towards operationalizing the "protect,
respect and remedy" framework, A/HRC/11/13, 22 April
2009. Back
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