It is now widely recognised that:
- human rights impacts can affect a company’s reputation, disrupt its operations and even cause a company to fall into non-compliance with the law; and
- human rights due diligence should form a necessary part of day-to-day business processes and decisions, including for the purposes of acting as a potential defence to a legal claim or an accusation of complicity in human rights abuses
Although there is talk about it at EU level, particularly in relation to conflict minerals, there is currently no blanket human rights due diligence requirement in the UK. At least, not how the process is outlined under the UN Guiding Principles on Business and Human Rights (UNGPs). However, the UNGPs do not create new obligations; they draw from and pull together examples of human rights due diligence standards and enforcement mechanisms which are already present in several different international and national instruments.
Moreover, the UNGPs do not necessarily advocate the creation of new company processes – existing processes may be amended to account for human rights considerations. Truth be told, there is little, if any, express reference to human rights alongside existing corporate due diligence requirements in the UK. Nonetheless, you may have more to work from than what you think.
Many companies will have in place processes to ensure: compliance with health and safety standards, consumer protection requirements, and employment laws, as well as good governance and ethical practices. To name a few concrete examples – you may be familiar with requirements related to the following:
- hazardous substances in electronic products
- director’s duty of care
- food safety
- anti-money laundering
- unfair commercial practices
- timber sourcing
Regulations relating to these may not use the term “human rights” but there is an overlap in content. Furthermore, many of these require a degree of due diligence of companies, at the very least to act as a defence in the case of potential liability.
For those embarking on their business and human rights journey, it may be advisable to consider how to adapt existing processes related to the above by expressly and actively incorporating the human rights angle.
“Why,” you ask? Because the requirements of due diligence are likely to develop, particularly as the notion of business and human rights becomes more established.
You may be aware that the UNGPs constitute the universal benchmark for human rights due diligence. Together with other international frameworks and tools, they provide guidance as to what ‘adequate’ due diligence might require at national level.
Certainly across the EU the notion of human rights due diligence as a standalone legal requirement is gaining traction (See our previous blog here) and a conflict mineral regulation which could potentially affect some 880,000 EU businesses is in the process of being drafted (see our Legal Insight here). Some semblance of “human rights” due diligence is already required, or at least advisable, under several pieces of UK legislation. Moreover, the UK government’s commitment to implementing the UNGPs may inform the development of future legislation or evolving interpretations of existing legislation.