Ciara Hackett and Marisa McVey
Over the summer the Department of Foreign Affairs called for interested stakeholders to submit their views on a proposed second National Action Plan for Business and Human Rights. This call was released over the summer, and without much fanfare, but nonetheless demonstrates a commitment to soliciting stakeholder views on the BHR infrastructure in Ireland. The consultation document included in the call, outlined the developments from the first National Action Plan and summarised the recommendations put forward in the review of Plan by the DFA’s Human Rights Unit.
National Action Plans on Business and Human Rights (NAPs) are a key part of the ‘smart mix’ envisaged by the UNGPs to ensure corporate responsibility for human rights abuses. They set out what the key priorities are for government to work towards during the lifecycle of the programme. They usually focus on state led initiatives but incorporate other stakeholders/stakeholder consultations and participations. The UN Working Group on Business and Human Rights has strongly encouraged all stated to develop, enact and update NAPs. The NAP process should be iterative and adaptable. We very much welcomed the DFA’s proposal for a second updated plan.
The purpose of this blogpost therefore is to outline the key recommendations that we made to the consultation. We felt that it would have been impossible to focus on all the areas that need to be improved upon within the BHR space, so, we focussed on three main areas in our response (thus reflecting our expertise as well). These were: Implementation and Monitoring, Legal Environment and Legislative Developments; Thematic Issues. The thematic issues focused on, BHR as a cross border issue, modern slavery, remedy and education.
This blog represents only a snapshot of our response. Should you like to read our response in full, you can do so here.
Implementation and Monitoring
We recommended that any monitoring body needs to have a transparent and robust selection process to identify candidates. We emphasised the need to focus on those at risk of marginalisation and also the importance and relevance of all-island issues. We also felt that it was important to ensure transparency on those involved in the monitoring body. This would include publishing the names and expertise of the members selected. We appreciate (and indeed anticipate) that membership might change over the duration of a NAP, but we would recommend that these changes also be published accordingly.
Beyond, stakeholder consultation needs to be more than consultation. We recommended that the development of the second NAP should require meaningful and useful stakeholder participation. In line with the UN Working Group guidance and the most recent iteration of the BHR Treaty, we think that there should a real focus on those most at risk of vulnerability or marginalisation. Related to this, accessibility is central to the usefulness of the NAP. In addition to a wide spectrum of participation, we believe that accessibility needs to extend to language. The language contained within the NAP needs to be clear and unambiguous and all the targets outlined need to relevant, measurable, and achievable. It needs to be clear what responsibilities belong to what entities within a particular timeframe. Further there needs to be clear and concise indicators for evaluating success.
Of course, reviewing the effectiveness of the NAP is only one aspect of the role of the monitoring body, it should (we believe) be able to report on the implementation and empower an independent, adequately resourced body to monitor and oversee this implementation. It is also important that the monitoring body can amend the NAP. This will mean that it is able to best respond to policy issues that might arise during the life cycle of the mandate. Our final point on this was that meetings of the future monitoring body should be convened, recorded, and published on a public platform in a timely manner.
Law and Legislative Developments
Any future NAP needs to reinforce the idea that all businesses have human rights responsibilities. There is a tendency (not just limited to Ireland) to direct BHR policy towards Anglo or American multinational corporations. Whereas there are many global firms with a base in Ireland, it is important to also recognise the range of micro, small and medium enterprises. They too have a role to play in the respect of business and human rights.
Mandatory Human Rights Due Diligence (mHRDD) has been a key theme in the BHR sphere in recent years and months. Currently, negotiations for the EU Corporate Sustainability Due Diligence Directive are ongoing. It is important that Ireland – through their NAP- develops their own positioning on due diligence. The state has a role to play in fostering a dynamic HRDD environment with a wide range of stakeholder participation. It will not be enough to rely on European advances. However, the second NAP must commit to transposing and implementing EU BHR regulations in a timely manner. This would ensure that any gaps in regional initiatives are adequately addressed via national legislation.
The Irish/Northern Irish angle needs to be considered also. The ongoing peculiarities created by the UK’s departure from the EU, combined with Northern Ireland’s relationship with the EU and Ireland since the Windsor Framework requires both recognition and consideration by the second NAP.
Whereas legal advances need to be considered, we would also recommend recognition of and focus on the potential of a holistic approach to BHR. This might include how it encapsulates ideas of participation, education, remedy and engagement within the BHR framework. Chiara Macchi details what ‘holistic’ BHR might look like (albeit through the lens of climate).
Thematic Issues
We also identified some key (to us) thematic issues that we felt should be addressed by the NAP. First, is the idea of BHR as a cross border issue. We need to recognise that BHR has an all-island angle. The second NAP needs to appreciate the all-island approach. This involves advancing all-island issues, consultation on all-island issues and holistic participation on all-island issues. Related to this is that appropriate space should be made for the three human rights and equality Commissions and that they are utilised and adequately supported as conduit for BHR issues on an all-island basis. Beyond, we recommend commitment on the continuation of benchmarking assessments (every 2-3 years) that is inclusive of an all-island perspective.
Relatedly, (and requiring an all-island approach) is Modern Slavery. We recommend the development of a national policy on this issue. In the past we have responded to consultations in Northern Ireland on this issue (here and here) – we think there is space for the Irish NAP to invite similar discussions and participation from relevant stakeholders.
A lot of our focus in the consultation response was on Remedy. There are several reasons for this. We feel that the developments to date (and as outlined in the first NAP) need to be further advanced and entrenched in the Irish policy environment. Further, with the conversations on a potentially binding instrument, remedy is still central to the BHR project. As a priority, the second NAP should address and action the recommendations set out in the Review of Remedy. We also recommend a focus on foreign direct liability. Finally, in recent years, the emergence of discussions on historical business and human rights abuses in Ireland (business involvement in the Mother and Baby homes) have demonstrated the need for an ‘archival bent’ to be factored into any remediation process going forward.
Conclusion
Business and Human Rights is a process and Ireland has an opportunity to enhance this process through the next iteration of the NAP. The issues that fall within the BHR spectrum will not and cannot be solved in the lifecycle of a singular National Action Plan. However, real progress can be made if there is a concerted attempt by government to work alongside (and in participation not consultation with) relevant stakeholders.
Business & Human Rights in Ireland 