We are delighted to welcome this guest post from Dr. Marisa McVey. Marisa is a lecturer at Queen’s University Belfast, School of Law and a fellow at the Senator George J. Mitchell Institute for Global Peace, Security and Justice. Prior to joining QUB, she held post-doctoral positions at the University of St. Andrews, and Aston Law School. Marisa’s expertise lies at the intersection of business and human rights. Her research critically examines current and potential mechanisms of corporate accountability for human and environmental rights, and imagines alternatives for a just transition to a sustainable and equitable society.
In November 2023, Baroness Young introduced an ambitious Private Members Bill, entitled ‘The Commercial Organisations and Public Authorities Duty (Human Rights and Environment) Bill’ (COPAD) into the UK House of Lords with the aim of protecting against corporate human rights and environmental harms. In the UK, public authorities (and to some extent, private entities who perform public functions) are already subject to human rights obligations under the Human Rights Act 1998 (the outworkings of which are made clear in Lord Scott’s judgment in YL v Birmingham City Council (2007)). Instead, the COPAD Bill seeks to extend a duty to corporate actors to conduct human rights and environmental due diligence or risk facing a variety of criminal and civil sanctions.
The Bill comes at a time when momentum is growing on strengthening corporate accountability of human rights, whether this be via international binding treaty or through mandatory human rights and environmental due diligence (mHREDD) legislation. Most recently, the EU Council and Parliament reached a provisional deal on the draft Corporate Sustainability Due Diligence Directive (CSDDD). This Directive would apply to all Member States, including Ireland, and will require many companies in the EU and beyond to conduct environmental and human rights due diligence on their operations and value chain. Since the UK is no longer a member of the EU, the CSDDD will not apply, though UK companies with a significant presence in the Single Market may still fall into scope. Current UK legislation such as the 2015 Modern Slavery Act, which requires company with an annual turnover of more than £36 million to disclose the steps taken to prevent modern slavery in their supply chains, still leaves much to be desired. And, while the UK was the first state to adopt a National Action Plan on business and human rights in 2013 (updated in 2016), the process has been criticised as having limited scope, lack of effective goals and excluding civil society concerns.
Brexit has also circumvented access to justice for victims of corporate human rights abuse, since the Brussels Ia Regulation no longer applies, and the UK is not currently party to the Lugano Convention. This, as other scholars have astutely assessed elsewhere, leaves foreign claimants hoping to bring suits against UK-domiciled companies (as was the case in Vedanta), potentially vulnerable to forum non conveniens hurdles. With all this in mind, UK business, investors, and civil society have consistently called for the adoption of a mHREDD regime. These calls are in addition to recommendations from Westminster’s Joint Committee on Human Rights in 2017, and a 2023 cross-bench pledge on business and human rights.
Against this backdrop, the Bill itself is ambitious for a number of reasons. First, in terms of scope, it appears to include all ‘commercial organisations’, meaning any commercial body incorporated in the UK which carries on business there or elsewhere, or any other entity carrying on business in the UK (referencing section 7(5) of the UK Bribery Act 2010). This correlates with the scope of the UN Guiding Principles on Business and Human Rights, which apply to all businesses, regardless of size or sector. It also appears to go further than its mHREDD predecessors on the continent by applying to a company’s whole value chain, including ‘all activities undertaken by any entity during the lifecycle of a good or service upstream and downstream of the commercial organisation’ (Clause 2(1)). The minimum expectation of ‘reasonable’ HREDD to be undertaken by companies is outlined in (Clause 3) which must include informed, meaningful and safe engagement with stakeholders. Interestingly, and perhaps in recognition of the concerning proliferation of cosmetic social audit schemes, the Bill further notes that audit reports, certification schemes, and memberships of initiatives are not sufficient to be considered due diligence (Clause 3(4)).
In terms of penalties, the Bill creates relatively broad civil liability for commercial organisation where they fail to prevent human rights or environmental harms (Clause 8), in addition to both criminal liability for directors of a company failing to implement HREDD (Clause 9) and corporate criminal liability for the offence of ‘failing to prevent’ where a person associated with an organisation commits crimes such as offences under the Modern Slavery Act (2015) (Clause 11). Reporting requirements carry with them an expectation that companies of a certain size (to be determined by later regulations) would produce a HREDD report annually (Clause 5). Public procurement duties in Clause 6 would also require public authorities to establish specific award criteria related to HREDD policy and provide a list of excluded companies annually. There is a further expectation that a regulatory authority will be created oversee compliance with the Bill, echoing the kind of mechanism proposed by Chambers and Yilmaz (2021).
Finally, the Bill weaves a close connection between the intersection of human rights and environmental harms (as has been done in various legislative arrangements elsewhere), and recognising the corporate impact upon climate collapse by including in the definition of environmental harms in Clause 2, ‘adverse impacts on the environment…including…any contribution to climate change contrary to the pathways for limiting global warming to the international established goal of 1.5°C according to the best available science’. Interestingly, the definition of environmental harms also includes ‘ecocide’, which for the purposes of the Bill, means the ‘unlawful or wanton acts commitment with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being cause by those acts’. This mirrors the definition drawn up by the Stop Ecocide Foundation’s Independent Expert Panel in 2021, as a potential amendment to Rome Statute to establish the crime of ecocide before the International Criminal Court. Internationally, there has already been lengthy debates around the criminalisation of ecocide, and while the campaign has gained momentum over recent years, political, operational and semantic challenges remain. The inclusion of ecocide has presumably been placed within the COPAD Bill to complement the Ecocide Private Members’ Bill also introduced in the House of Lords in November 2023, which carries greater detail into criminalisation and includes both individuals and companies in scope for liability.
The Bill’s ambitious intentions are clear; however, a few key questions remain. Perhaps the most pressing is whether the COPAD Bill will become law? At the time of writing, the Bill had only just passed its second reading in the House of Lords, which still leaves a long (and potentially unsuccessful) journey through two Houses of Parliament. As a legislative instrument, Private Members’ Bills are often a way to draw attention to a particular cause or to take the temperature on a particular issue within parliament, rather than being realised as law. Next, even if the Bill does eventually succeed, it is unclear how it will be harmonised in relation to other national and regional frameworks (for example, the UK Government’s own intentions for the development of a Green Taxonomy and the revocation of sustainability-related EU regulation post-Brexit), and in relation to its counterpart, the CSDDD, in Europe. Could this mean that two different mHRDDD regimes existing in parallel on the island of Ireland, with COPAD applying to Northern Ireland and the CSDDD in force in rest of Ireland? Finally, a more existential question for the wider business and human rights community remains; that is whether the focus on mHRDD regulation the most effective direction of travel for ensuring corporate responsibility? Certainly, they seem to be the mechanism de jour, but questions remain as to whether they are able to fully realise corporate accountability for human rights.
Business & Human Rights in Ireland 