On 22 January 2016 I spoke at the consultation held by the Department of Foreign Affairs and Trade at Iveagh House, Dublin on its ‘Working Outline’ for the national action plan on business and human rights. The Department is accepting written submissions on this document until 29 January 2016. Full details can be found on their website.
Thanks to the Human Rights Unit and the Department for the invitation to speak to this consultation on the ‘Working Outline’ of Ireland’s national action plan. Congratulations to the Unit on having prepared such a detailed and far-ranging document and it is to be commended for welcoming further input from interested parties.
Ambition & Potential
The ‘Working Outline’ declares itself to be ‘practical, credible and ambitious’. And although the Irish government was slow to engage with the business and human agenda at first, a notable ambition can be found in pronouncements on the national action plan. Minister Flanagan has spoken of the potential of Ireland becoming a global leader in the area of business and human rights.
There is little doubt that this undertaking has the potential to put ethical and social concerns at the heart of how Irish companies do business, and to reinforce Ireland’s commitment to human rights. There is clearly public support for business to behave ethically.
The recent scandal concerning trafficking and working conditions in the Irish fishing industry has highlighted how business activities can negatively impact on human rights. A robust national action plan could serve to ensure that business respect for human rights is more than mere rhetoric. It could also underpin and shape Government policy in important but contested areas, such as data protection and privacy, tobacco, sugar and alcohol, trade missions overseas and tax avoidance by multinational corporations.
Will this ambition and potential be realised by the plan as set out in the ‘Working Outline’? As has been explained, the document concerning the Irish national action plan offers an assessment of where Ireland currently stands in relation to business and human rights and sets out numerous actions to be taken to further implementation of the Guiding Principles.
The objective of the national action plan is “to inform public and private policy making”. One of its central aims is to provide companies “with guidance on how to ensure respect for human rights in their activities”. While the scope of the plan’s intended audience is commendable, in that it seeks to encourage human rights compliance by “all companies operating in Ireland and Irish companies operating overseas”, it focuses mainly on information-sharing and dialgoue with business. Quite usefuly, it suggests that Irish embassies overseas could play a role in guiding business on human rights issues.
It is proposed to establish a ‘Business and Human Rights Implementation Group’, whose mandate will include oversight of the putting into practice of the plan and reviewing access to remedies. The commitment to undertaking a baseline study on the legislative and regulatory framework is obviously to be welcomed, but would ideally have been done sooner and could have informed the development of the national action plan. It should be made clear in the ‘Working Outline’ when this baseline assessment will be completed or indeed acted upon.
The Department is to be commended for the open and consultative process that it has undertaken. The run up to this draft national action plans reveals two dinstinctly contrasting views on ensuring business respect for human rights – those of business respresentative organisations as compared with civil society organisations, the Irish Human Rights and Equality Commission and the Irish Congress of Trade Unions, amongst others. The latter will struggle to find much meaningful take-up of their recommendations in the draft document.
In their submissions to the Department’s consultation, various human rights organisations advocated that the Government go beyond simply encouraging Irish business to be socially responsible. The national plan should move away from the voluntary approach that has characterised the increasingly disparaged concept of corporate social responsibility, and commit to introducing mandatory requirements for business compliance with human rights in regard to, for example, due diligence or reporting. Eligibility for Government procurement, investment, participation in trade missions or listing on the stock exchange could be tied to respecting human rights.
Business representative organisations, on the other hand, have largely favoured a voluntary approach to human rights. Chambers Ireland, for example, advocated against imposing any “further obligations” on business, that the Guiding Principles must “remain voluntary”. It claimed that this would allow for greater flexiblity and a tailored approach. Ibec have expressed support for the Guiding Principles, but similarly argued against any “unnecessary additional administrative or regulatory burdens”.
The ‘Working Outline’ seems to have been persuaded by the latter approach towards business and human rights, perhaps even reflecting tension between the Department of Foreign Affairs and Trade and other Government departments on this subject.
Although the ‘Working Outline’ notes that voluntary corporate social responsibility initiatives may have a positive impact on human rights, it states “they are no substitute for the legal protection of human rights”. Nevertheless, the document offers little in the way of proposed legislative changes. The proposed plan emphasises the provision of guidance and information for business, and ongoing dialogue and consultation with all relevant stakeholders. It seeks to “encourage and provide space” for companies to meet their human rights responsibilities, and “to promote understanding” of how respecting human rights can be good for business.
There is almost no reference to incentives or sanctions, nor any suggestion of mandatory due diligence or reporting, at the very least for State-owned companies. This begs the question as to how other than well-meaning companies are to be brought into the fold?
The limited discussion of remedies for victims comes across as an afterthought and the commitment are somewhat vague. On Pillar 3, the ‘Business and Human Rights Implementation Group’ is to review how best to ensure remedies and to explore international best practice on operational-level grievance mechanisms. One might ask what ‘on the ground’ impact this has for victims access to remedies.
Competing visions of how to address business compliance with human rights is not unique to Ireland. It was highlighted by the recent resignation of Puvan Selvanathan of the United Nations working group on business and human rights. He expressly criticised the preference for voluntary over mandatory standards – as a former senior executive who worked in business for many years, he argued that legally required standards are necessary as they provide clarity, certainty and “compel compliance in business operations to a meticulous degree”.
The approach of the ‘Working Outline’ is overly deferential to business prerogatives and fails to reflect the progressive recommendations made by civil society in their submissions. When it comes to advancing business respect for human rights in Ireland, the national plan, as it stands, runs the risk of being a case of business as usual.