The study, by the British Institute of International and Comparative Law (BIICL), with the support of global law firms Hogan Lovells and Quinn Emanuel, looked at the impact of the Bribery Act 2010 and considered the legal feasibility of a corporate duty to prevent human rights harms.
The report, ‘A UK failure to prevent mechanism for corporate human rights harms’, sets out a model legal provision. It is based on s 7 of the Bribery Act and would apply to ‘human rights’, which would be defined to include environmental harms. BIICL recommends that it apply to all sizes of companies carrying out business in the UK, including SMEs. However, ‘guidance should clarify the recognition that any due diligence processes should be proportionate to their size and the complexity of their operations’. The defence would be that ‘reasonable due diligence’ was carried out. Civil remedies would be available.
The report includes the results of a business survey, which found 69% of UK companies and multinationals want more legal certainty about which procedures are required to avoid legal risks for human rights abuses.
The majority of respondents thought more regulation would benefit business―82% agreed it would provide legal certainty, 74% thought it would level the playing field and 75% said it would create a non-negotiable standard to facilitate leverage with third parties.
Quinn Emanuel partner Julianne Hughes-Jennett said: ‘The direction of travel is clear: we will see more regulation, in particular, in relation to human rights due diligence.
‘It is important any such regulatory developments provide legal certainty and a level-playing field.’
BIICL senior research fellow Lise Smit, said: ‘Although each jurisdiction would need to develop its legal mechanism to fit within its own legal system, these developments are all based on the framework of the UN Guiding Principles on Business and Human Rights.’
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