The Business view on Ireland’s forthcoming National Action Plan on business and human rights

In advance of this week’s Irish Congress of Trade Unions Summer School “Tackling Corporate Power in the Global Economy”, I have been reviewing submissions made to the Department of Foreign Affairs and Trade as it prepares a national implementation plan for the United Nations Guiding Principles on business and human rights. I have previously provided an overview of the submission from Business in the Community, and now want to turn to the submissions made by the Irish Business and Employer’s Confederation (Ibec) and Chambers Ireland.

The submissions by two of the largest business representative organisations in Ireland are key to understanding the business take on the Guiding Principles and corporate responsibility more generally. Both documents begin with broadly positive statements, which welcome the creation of the UN Guiding Principles and commend the Department’s efforts at developing a national action plan. Praise is also forthcoming in the submissions for the existing efforts of business to incorporate human rights in their operations. However, both submissions favour a voluntary approach to the issue and caution against any imposition of mandatory requirements. In all, they advocate for a soft approach to human rights, along the lines of corporate social responsibility, which does not involve legislative or administrative responsibilities, for fear that it might harm the competitiveness of Irish business. It is a view which is at odds with many of the other submissions sent to the Department, and which have been reviewed previously on the blog.

Chambers Ireland

The submission from Chambers Ireland opens up with some broad pronouncements regarding the relationship between business and human rights, setting out the organisation’s view that economic development is necessary for human rights:

the cause of human rights is best served by increasing communication, commerce and interdependence between nations. We believe that international trade supports economic development which in turn promotes equitable social development and the increased recognition and protection of human rights.

In terms of trade, Ireland should continue to undertake trade missions around the world, even in countries with poor human rights records, because “we can play a role in driving economic growth which we believe will generate a greater dialogue on the importance of equality and human rights”. The submission also states that “it is approaches to human rights protection and peace building which are driven by the global business community themselves that are most effective at protecting human rights and promoting economic and social development”. This is a somewhat remarkable statement, for various reasons, primarily because companies are mostly answerable to owners and shareholders only rather than the general public. The submission recognises the importance of business in this context, but overstates its suitability or capacity to provide the necessary solutions.

Turning to role of the Irish State in delivering the national plan on business and human rights, Chambers Ireland maintain that this should be based on “the principle of supporting Irish businesses to meet their obligations in terms of protection of human rights, and not become an unwieldy, over burdensome, costly, layer of additional regulation”. The submission expresses concern at any attempt at making human rights compliance and reporting a requirement for access to State support or services, for fear that this would advantage more well-resourced companies, or become a mere “box-ticking” exercise. Similarly, social clauses which may entail due diligence reporting may create an onerous burden on small and medium sized enterprises. Such clauses, it is claimed, might undermine the “integrity” of the Guiding Principles, even though due diligence is a central element of the corporate responsibility to respect human rights as set out in the UN Guiding Principles. Chambers Ireland wants the national action plan to focus on “adding value rather than increasing bureaucracy”. The submission recognises that due diligence and human rights impact assessments can be important “strategic tools” for business but insists that these “must not be made mandatory”.  This would favour larger companies, and would “impede competitiveness and drain scare [sic] resources and capacity”. Instead, the national plan should offer templates and case studies as a form of encouragement for better business respect for human rights. To ensure companies meet their human rights obligations, the national plan should “promote dialogue”, rather than introducing “additional administrative burdens”. The submission rightly notes that the State should make easily accessible information available to companies regarding the Guiding Principles themselves and on countries or sectors where human rights risks may arise.

Chambers Ireland’s submission acknowledges that business and human rights and corporate social responsibility are not interchangeable, but suggests that “the manner in which CSR has developed in Ireland over the past decade can provide a model for how the relationship between business and human rights can develop in the years to come”. This reflects the clear preference for a voluntary, self-regulation approach to corporate responsibility, which ultimately allows companies decide what they wish to do in terms of human rights, rather than what is required of them. In keeping with this stance, the submission concludes by cautioning that the Guiding Principles “should not be used as an excuse to impose further obligations on the business community”, that they must “remain voluntary”. It offers the following argument:

A commitment to responsible business conduct requires consensus and conviction within a company. Voluntary business principles have the advantage of offering flexibility to companies so they can tailor their approach to particular conditions. Voluntary approaches also inspire many companies to go beyond the regulatory baseline, thereby often eliminating the need for further legislation.

This view is no longer tenable. As the former UN Special Representative on business and human rights John Ruggie has put it, “the era of declaratory corporate social responsibility is over”.

Irish Business and Employers Confederation (Ibec)

The submission by Ibec begins by praising the Guiding Principles and outlining how “diversity, inclusion and respect for human rights is very much part of the modern business model”. Responsible business behaviour, the submission continues, is “crucial for building trust towards the market economy, trade openness and globalization”. Noting the existing range of employment legislation in Ireland, Ibec echoes the view of Chambers Ireland when it states that the national action plan should be developed “without unfair costs or unnecessary additional administrative or regulatory burdens”. Instead, what is needed is that all the different stakeholders should “have a shared agenda and work together”, as well as “proactive leadership and innovative policies and practices rather than a narrow regulatory approach”. In terms of due diligence, Ibec also recommends making a template available for companies as a potential starting point.

The IBEC submission usefully highlights questions raised by business, such as the scope of rights covered, the distinction from corporate social responsibility, and governmental expectations in terms of due diligence. Sector-specific guidance from the State is recommended, as is a differentiation between responsibilities for companies of differing sizes. Ibec also mentions the importance of incorporating human rights education in business education. The need for information concerning human rights risks, coming potentially from the Department of Foreign Affairs, is also highlighted, as are examples of best practice (with the problematic example of CRH cited). Turning to remedy, the submission notes IBEC’s opposition to the creation of a “global ombudsman function” (a suggestion noted by the UN Special Representative John Ruggie in 2008), repeating the statement previously made by employer organisations that there was “no argument to convince how this would be practical or possible or would address the lack of access to effective and impartial mechanisms at national and local levels”.

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