Are there too many hurdles to making human rights complaints about multinational companies?

Amnesty International has published recommendations for improving the effectiveness of the UK National Contact Point (NCP) following a study into the work of the NCP.

UK’s NCP handles human rights complaints under the OECD Guidelines for Multinational Enterprises. Each of the 46 governments adhering to the OECD’s Guidelines for Multinational Enterprises has a NCP to handle complaints. The NCP provides the complainant with access to a non-judicial remedy so they are not compelled to pursue a civil or criminal claim. Complaints are lodged on behalf of both identifiable and non-specific victims with the expectation that the NCP takes into account the needs of victims throughout the complaint process. A complaint may be made by:

  • A community affected by a company’s activities.
  • Employees or their trades union.
  • Non-government organisations.

NCPs are required to operate in accordance with core criteria of visibility, accessibility, transparency and accountability. The Department for Business, Innovation and Skills (BIS) is responsible for the NCP in the UK. BIS has provided guidance on the procedure for companies and guidance on how to make a complaint.

The OECD Guidelines, first introduced in 1976, provide principles of good business practice consistent with applicable laws and internationally recognised standards in areas including employment and industrial relations, human rights, environment, information disclosure, combating bribery, consumer interests, science and technology, competition and taxation.

In 2011 the OECD Guidelines were revised reflecting the UN Guiding Principles on Business and Human Rights, to put greater emphasis on human rights. These Guiding Principles impose an obligation on transnational corporations to respect human rights by avoiding causing or contributing to adverse human rights impacts through their own activities. Companies must also prevent or mitigate adverse impacts that are directly linked through business relationships to the company’s operations, products or services, even if the company itself has not contributed that impact.

In order to be compliant with its obligations under the Guiding Principles a company must conduct thorough, meaningful and transparent due diligence processes. The guidance recognises that the complexity and scope of the due diligence undertaken may vary depending on the size of the business and the risk of human rights abuses, but in all cases, the process must be designed to identify, prevent, mitigate and account for potential adverse human rights impact.

The UK’s national action plan to implement the Guiding Principles specifically provides that the government is committed to ensuring that in government procurement processes, human rights related issues are reflected appropriately when purchasing goods, works and services. A breach of human rights may result in exclusion from governmental contractual opportunities. In conjunction with this requirement is the responsibility for transparency in supply chains in respect of slavery and trafficking. For more see Note for the board on offences under the Modern Slavery Act 2015The Companies Act 2006 (Strategic Report and Directors’ Report) Regulations 2013, requires that quoted companies prepare a separate strategic report alongside the annual directors’ report including disclosures about human rights, gender diversity and greenhouse gas emissions. This may be another opportunity to ensure compliance with transparency in the supply chain. Breach of the requirement to make a human rights disclosure under section 414C(7) Companies Act 2006 is a criminal offence. For more information, see Practice note, Companies Act 2006: Schedule of offences.

The G7 Leaders’ Declaration made in Germany in June 2015 committed to strengthening mechanisms for providing access to remedies including the NCPs for the OECD Guidelines for Multinational Enterprises. In order to achieve this, the G7 leaders agreed to encourage the OECD to promote peer reviews and peer learning on the functioning and performance of NCPs. This is the rhetoric, but what does this mean in practice? As previously reported BIS has received no complaints of offences committed in breach of section 414 Companies Act 2006.

Amnesty International has published a report which examines the trends highlighted in the 25 complaints alleging breaches of the human rights principles of the Guidelines that have been submitted to the UK NCP since the 2011 revision. It categorises the business sectors associated with the complaints and details the nature of the allegations against the companies concerned. The report examines how complaints have been dealt with by the UK NCP across three stages – initial assessment, mediation and determination. It assesses the extent to which the NCP complies with the OECD Guidelines’ implementation procedures and the extent to which the NCP’s statements and decisions are aligned with the Human Rights chapter of the Guidelines.  The conclusions of the report suggest that a complete overhaul of the form and process of the NCP is necessary.

Practical Law Morag Rea

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