As part of its National Plan on Business and Human Rights 2017-2020, the Irish Government committed to having a baseline assessment undertaken of the legislative and regulatory framework as it relates to business and human rights in Ireland. Although the commitment was to have this published six months after the launch of the National Plan in November 2017, the baseline assessment has only recently been completed. It is now publicly available here on the website of the Department of Foreign Affairs and Trade.
It has been worth the wait, however, in a number of ways. The baseline assessment is a comprehensive and detailed look at the existing legislative and regulatory framework in Ireland concerning business and human rights. It identifies a number of gaps in this context to be addressed and offers numerous recommendations to Ireland which will ensure that international commitments concerning business and human rights are met. The study was independently prepared, which lend its findings particular weight.
The baseline assessment contextualises its analysis of the national framework with reference to Ireland’s international and regional commitments under international human rights law, as well as relevant European and OECD instruments. It assesses national law, policies, regulations and institutions of relevance for business and human rights, before looking in detail at key issues for Ireland as identified in the National Plan: workers’ rights, anti-corruption, equality, anti-trafficking, data protection, environment, non-financial reporting, procurement and supply chain.
Of the numerous valuable recommendations made in the baseline assessment, just a few can be touched upon here (a complete list is included at the end of the published document). It is recommended, for example, that consideration be given to developing the role of the National Contact Point under the OECD Guidelines for multinational enterprises in light of the more robust approaches taken in other jurisdictions, such as Denmark.
Human rights due diligence is addressed in the report, which acknowledges that “Ireland has not generally required businesses to conduct human rights due diligence”. It notes how recent non-financial report regulations require companies to report on due diligence policies implemented, but does not actually require the undertaking of human rights due diligence. The approach adopted in the National Plan towards due diligence comes in for some criticism:
The commitments in the National Plan propose a largely voluntary regime, whereby the role of the State is to encourage and support rather than to ensure compliance by way of a mandatory regime. While such an approach may derive results in some cases, it may not result in compliance across the board, and indeed may take longer to achieve compliance.
In response to concerns that due diligence might place an onerous burden on smaller businesses, the report rightly states that:
Human rights due diligence of a mandatory rather than discretionary character can therefore be developed in a manner that takes account of the size of businesses and also serves to give effect to the imperative to develop business in a human rights compliant manner.
It is recommended that consideration be given to “the adoption of mandatory human rights due diligence” by the Irish State, and that a suitable foundation exists in the recently adopted regulations giving effect to the 2014 EU Directive on non-financial reporting. It adds:
in the absence of such a mandatory regime, the State may wish to consider the provision of additional benefits to companies that adopt human rights due diligence. This would serve to develop human rights due diligence as a norm in business, upon which a mandatory regime could, in turn, be developed. Consideration may also be given to the inclusion of human rights due diligence as an eligibility criterion for Government procurement, for investment by the State, for participation in trade missions, and for listing on the Irish Stock Exchange.
As a minimum, human rights due diligence should be a requirement for State companies, those with whom the State does business, and those that receive State support, including when doing business overseas. Such due diligence should include activities outside of Ireland, throughout the supply chain, the report recommends.
Other recommendations in the baseline assessment include:
- Consideration should be given to ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families
- The Business and Human Rights Implementation Group should consider the implementation of the legislative and regulatory regime concerning environmental issues with a view to formulating a timeline with concrete actions to achieve Ireland’s goals and commitments to environmental policies. Climate justice considerations should also be form part of the analysis in the development and practice of environmental regulation by the State
- Consideration could be given to the provision of advantages in the procurement process to companies who comply with human right standards
- With regard to non-financial reporting, the State may wish to consider the expansion of existing regulations to include companies of different types and sizes in order to advance Business and Human Rights.
One criticism of the baseline assessment is that it offers only a limited assessment of access to remedy. It states that “[a] detailed consideration of remedies falls outside the scope of this Report”, that this was not “within the remit of the Report”. This is disappointing, given that the absence of access of remedy is at the heart of so many business and human rights issues. Nevertheless, the baseline assessment does make some general observations concerning gaps in the area of remedies as outlined in the UN Guiding Principles and the following recommendation:
it is recommended that the Implementation Group engage in a detailed review of remedies and access to these remedies as a priority. Remedies are essential to the functioning of the principles and to the advancing and mainstreaming of the values of Business and Human Rights in practice. A thorough review of remedies which focuses chiefly on meaningful access to remedies is therefore an important step in advancing remedies in the Irish context. The input of key stakeholders concerned with access to justice would be of assistance in this regard.
Notwithstanding, the limited discussion of remedies, the baseline assessment provides a strong and detailed look at Ireland’s legislative and regulatory framework concerning business and human rights, and makes a series of valuable recommendations which merit serious and urgent consideration by relevant Government departments and the recently-established Business and Human Rights Implementation Group.