Submission to the Department of Foreign Affairs and Trade
on the Working Outline of Ireland’s National Plan on
Business and Human Rights 2016-2019
29 January 2016
The Irish Centre for Human Rights is an academic unit located within the School of
Law of the National University of Ireland Galway. The Centre undertakes teaching
and research, and contributes to human rights policy development nationally and
internationally. Professor Ray Murphy is the Interim Director of the Irish Centre for
Human Rights. This submission was prepared by Dr Shane Darcy, a lecturer at the
Centre (shane.darcy@nuigalway.ie).
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The Irish Centre for Human Rights welcomes the opportunity to provide input to the
Department of Foreign Affairs and Trade on its Working Outline of Ireland’s national
plan on business and human rights, and commends the Department for the open and
engaged nature of the consultation regarding the national action plan to date. The
Centre’s original submission of 1 March 2015 focused primarily on recommendations
concerning the State duty to protect human rights and the need to ensure effective
remediation, as established in international human rights law and elaborated upon in
the United Nations Guiding Principles on business and human rights. That submission
had urged the Irish Government to give effect to the range of legal and policy
recommendations as set out in the Guiding Principles and had made a number of
recommendations which were considered to be of particular relevance in an Irish
context. This brief submission offers some comments of a general nature on the
Working Outline, followed by a number of recommendations on specific issues.
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The Working Outline constitutes a detailed and far-ranging document, which reflects
aspects of a number of the recommendations made in the previous submission of the
Irish Centre for Human Rights. The Centre welcomes the firm acknowledgment that
the State duty to protect human rights from harm by third parties, including business
enterprises, is based on existing international human rights law. The Guiding
Principles elaborate that this duty requires States to take “appropriate steps to prevent,
investigate, punish and redress such abuse through effective policies, legislation,
regulations and adjudication”. While the Working Outline acknowledges the role of
regulation, legislation and adjudication, and commits to reviewing relevant laws and
processes, the document overwhelmingly focuses on promoting business respect for
human rights through dialogue, encouragement and information-sharing. While
promotional activity is obviously relevant and important in certain respects, the
effectiveness of such activity is enhanced if compliance with human rights is required
or legally mandated in some manner. The Working Outline fails to sufficiently
acknowledge or commit to an examination of the role of potential incentives or
sanctions in this context. The potential effectiveness of Ireland’s national action plan
would be significantly enhanced if a commitment were made to consider the role of
mandatory measures in ensuring business respect for human rights. In this regard, the
Irish Centre for Human Rights would refer back to the recommendations of its
previous submission.
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The business case The Working Outline refers to the business case for respecting
human rights, noting that “responsible behaviour and ‘doing the right thing’ has been
shown to benefit business in the long run”. While rightly acknowledging that the
business case “need not be overstated”, the Working Outline should also make it clear
that business respect for human rights should not be contingent on any business case
that may exist for such actions. Given the range and variety of ongoing negative
impacts on human rights by business activities, it is readily apparent that there is not
always a compelling business case for respecting human rights.
State-business nexus The Guiding Principles require that States take additional
steps to protect against human rights abuses “by business enterprises that are owned
or controlled by the State, or that receive substantial support and services from State
agencies”. The Irish Centre for Human Rights had recommended that the national
action plan on business and human rights should set out how the Irish Government
seeks to ensure that State owned or controlled companies and those that receive
support or services from the State respect human rights. The Working Outline does
address the subject of State-owned enterprises, but does not seem to propose action
points that differ in any great respect from those which it is proposed will apply to all
companies. In particular, the Working Outline proposes to “promote awareness” of
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relevant initiatives such as the UN Global Compact or concepts such as human rights
due diligence amongst such companies, as well as State agencies involved in trade
and investment. In view of this State-business nexus, the national action plan should
not limit itself to what is largely a promotional approach. Consideration should be
given to insisting upon human rights compliance in this context, perhaps by requiring
as a first step the making a commitment to respect human rights as a prerequisite to
benefitting from the provision of support from Government Departments and
agencies, such as Enterprise Ireland and IDA Ireland, as well as State investment.
Public procurement According the United Nations Guiding Principles on business
and human rights, it may be appropriate for the State to require “human rights due
diligence” in the context of procurement. The Working Outline asserts that Request
for Tender Forms from the Office of Government Procurement include “human rights
conditionality insisting on human rights compliance by companies with which it
contracts for products or services”. This section requires clarification, as at present
there is no legislative requirement for public procurers to apply measures to require or
incentivise respect for human rights, although this is an optional measure for
individual procurers. The Irish Centre for Human Rights reiterates its suggestion that
consideration be given to integrating human rights in public procurement, such as by
requiring companies to make a declaration of respect for human rights, conducting
human rights due diligence and reporting on how they meet their human rights
responsibilities. In transposing the relevant EU Directive (2014/24/EU), the Irish
Government should ensure that respect for human rights underpins public
procurement activities.
Legislative framework and access to remedies The UN Guiding Principles on
business and human rights affirm that the State duty to protect human rights under
international human rights law requires that States provide access to remedies in the
event of human rights violations by business enterprises. The Irish Centre for Human
Rights had recommended that the national plan include a commitment to a
comprehensive review of both judicial and non-judicial mechanisms, and relevant
legislation, in order to ensure access to an effective remedy and to identify and
address any potential barriers. Such a review should be conducted in light of the
State’s relevant international legal obligations concerning business and human rights.
Accordingly, the Working Outline includes the positive commitments to conduct a
“comprehensive baseline assessment of the legislative and regulatory framework
pertaining to business and human rights as it applies in Ireland”, to review “how best
to ensure remedy for potential victims overseas of human rights abuses by Irish
companies, with a focus on barriers to justice, including legal, procedural or financial
barriers” and to “explore international best practice and principles governing the
development of operational level grievance mechanisms”.
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These actions points are to be welcomed generally, although the national action plan
should contain more detailed information concerning timelines and further action
points, for example. The baseline assessment should also consider the effectiveness of
relevant legislation, particular in view of the negligible use of legislation concerning
trafficking in persons and anti-corruption. It should also be made clear how the
review of remedies for victims of violations overseas will be conducted and what
action will follow to eliminating barriers which may exist. In its previous submission,
the Irish Centre for Human Rights had also recommended that the role of the National
Contact Point established under the OECD Guidelines on Multinational Enterprises
be strengthened, given its lack of visibility, independence, resources and appropriate
human rights expertise. Despite the shortcomings of Ireland’s National Contact Point
when compared with the other OECD countries, the Working Outline merely commits
to facilitating mediation where appropriate. The national action plan should commit to
a thorough review of the National Contact Point’s operation and effectiveness,
perhaps as part of its broader review, with a view to enhancing the capacity of this
mechanism for addressing the human rights impacts of businesses enterprises.
Corporate tax avoidance The Working Outline makes no reference to the issue of
corporate tax avoidance, despite this important issue having been highlighted in a
number of submissions, including that of the Irish Centre for Human Rights. There is
strong public support for companies to behave in a tax responsible manner and the
subject is being addressed with increasing frequency by international bodies. As noted
in the Centre’s previous submission, the United Nations Special Rapporteur on
extreme poverty and human rights, Philip Alston, has highlighted the importance of
tax and fiscal policy for human rights and the harmful effects of tax avoidance,
including the negative impact that tax practices in Ireland have on the enjoyment of
human rights in other countries. Given that the Guiding Principles make clear that
companies should not undermine a State’s ability to meet its human rights obligations,
it is important the national plan on business and human rights acknowledge the
relevance of tax issues in this context. It is recommended that the national action plan
on business and human rights include a commitment to consider the feasibility of
conducting an assessment of the human rights impact of Irish tax practices, including
on developing countries. The Irish national plan should also commit to supporting and
implementing efforts to prevent global tax avoidance, including the need for greater
transparency through country-by-country reporting.
Implementation of the national action plan The Irish Centre for Human Rights
welcomes the establishment of the Business and Human Rights Implementation
Group and the proposed forum on business on human rights to be held two years after
the adoption of the national action plan. With regard to the composition of the
Implementation Group, the national action plan should commit to seeking
participation by senior Government officials and politicians from across Government
departments and relevant State agencies. In addition to business representatives and
civil society, the Implementation Group should also include representation from the
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Irish Human Rights and Equality Commission. Regarding the specific timeframes set
out in the Working Outline, it is recommended that the frequency of the meetings of
the Implementation Group be increased, while consideration be given to holding an
interim forum on the anniversary of the national action plan’s adopted. To ensure an
element of international review of the implementation of the national action plan, the
Irish Government should commit to addressing business and human rights as a matter
of course in its regular reports to the United Nations treaty monitoring bodies and
under the Universal Periodic Review before the Human Rights Council.
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