By Nikki Archer, Deputy Director, Head of Procurement and Commercial Policy & Strategy, shares the progress made across Scotland
In Scotland, public procurement of goods, works and services accounts for more than £11 billion a year, which constitutes a significant part of the Scottish economy. Consequently, the Scottish Government recognises that public procurement can be used as a lever to achieve inclusive and sustainable economic growth. They are seeking to ensure that public money is not only spent in a more efficient way, but also helps to deliver wider social, economic and environmental outcomes aligned with their wider aims and ambitions.
A holistic approach: Scotland’s National Performance Framework
At the heart of Scotland’s legislation is the National Performance Framework, a holistic framework for all of Scotland. It is composed of three central elements. Firstly, the overall purpose to create a more successful country by promoting sustainable and inclusive growth. Secondly, the national values that guide the Scottish approach. And thirdly, the envisaged national outcomes describing more specifically the kind of Scotland the framework aims to achieve. In addition, national indicators help to track and measure the progress against each of the eleven national outcomes.
The national outcomes are aligned with the United Nations Sustainable Development Goals, and make explicit reference to human rights: “We respect, protect and fulfil human rights and live free from discrimination”.
The World Bank (the Bank) is a development finance institution established by the 1944 Bretton Woods agreement to provide reconstruction aid to the countries devastated by World War II. The Bank has had a fractious relation with human rights. Whilst the Bank long ago recognised that it had some role to play in protecting and promoting human rights, this role was conceived as ensuring that “human rights are fully respected in connection with the projects it supports”. The Bank has however been less forthcoming about articulating its role in promoting human rights in countries in which it operates, and there has been reluctance by the Bank to use human rights to advance “an agenda that could present an obstacle for disbursement or increase the cost of doing business.” In other words, the Bank would not take human rights into account if this had adverse financial implications.
In terms of the way it operates, when the Bank loans money to fund projects in developing countries, the project is implemented through a procurement process conducted by public agencies in the borrower country. This process is regulated by the Bank’s procurement rules, as it is a condition of the loan agreement with the borrower that the procurement process is conducted in accordance with the Bank’s procurement regulations. Thus, the Bank provides the agreed funds to the borrower, and the borrower spends these funds in accordance with the Bank’s procurement rules, whilst the Bank supervises, but does not conduct the procurement process. In 2011, the Bank revised its procurement policies, practices and procedures. This led to the adoption of a new procurement framework, effective from 1 July 2016. The procurement framework includes new Procurement Regulations, containing instructions to borrowers implementing funded procurements.
In late 2018, the Guardian published an investigation revealing forced labour from high recruitment fees and debt bondage at Top Glove, the world’s largest glove manufacturer in Malaysia supplying Britain’s National Health Service.
Despite some minimal improvements, it’s clear that modern day slavery in factories in Asia supplying basic hygiene and medical products to the EU remains systemic.
In 2018, an estimated 268 billion gloves were used globally, with an annual increase of 15% predicted. Ensuring a continuous supply of gloves, mostly manufactured in migrant labour-intensive factories in Thailand and Malaysia, is vital for maintaining public health and ensuring food safety.
Yet does our dependence on gloves and other hygiene, safety and medical products tainted by exploitation, and procured often cheaply so as to reduce taxation burdens, mean manufacturers or suppliers are exempt from combatting this abuse?
By Albert Sánchez-Graells Professor of Economic Law, University of Bristol Law School, UK
In this post, Albert Sánchez-Graells maps how the 2014 EU public procurement rules create regulatory space for human rights considerations in every phase of the procurement cycle. Despite this possibility, there are questions as to the effectiveness of any of the foreseen mechanisms due to policy fuzziness and significant resource constraints. The desirability of human rights-oriented procurement can also be queried due to the implicit trade-offs it creates against the general effectiveness of the procurement function.
Despite the fact that the term ‘human rights’ does not appear even once in the European Union’s 2014 Public Procurement Package, there is an emerging consensus that this new set of rules provides increased scope for contracting authorities to include human rights considerations in the design and execution of public tenders. However, with one limited exception concerning the mandatory exclusion of tenderers convicted by final judgment of child labour and other forms of trafficking in human beings, the 2014 rules do not mandate the use of procurement for the enforcement or promotion of human rights norms. All relevant decisions are left to either the implementing legislation of the Member States or, where the latter does not prescribe a specific approach, to general policies or case-by-case decisions by contracting authorities.
This means that, to a large extent, the pursuit of human rights goals is left to the discretion of contracting authorities and, consequently, it is subjected to the relevant checks and balances—and, in particular, the constraints derived from the general principles of EU procurement law. Equally, constraints derived from limited human and technical resources, as well as the difficult trade-off between competing procurement goals will determine the extent to which contracting authorities are willing to or capable of taking into consideration human rights issues at different phases of the procurement cycle, while still achieving the desired general effectiveness and efficiency of the procurement function.
By Shekinah Apedo Intern, Danish Institute for Human Rights
European health services are saving lives at home but destroying lives abroad by purchasing rubber gloves and condoms produced through forced labour in Malaysia. Malaysia and the European states purchasing these goods should take immediate action to address such human rights abuses through laws, policies, and guidance, and use their leverage as buyers to demand with a unified voice that businesses respect the human rights of their workers.
In November 2018, Temos International Healthcare Accreditation revoked Malaysian glovemaker Top Glove’s certification for undisclosed reasons. A month later, The Guardian published a story investigating the UK’s National Health Service (NHS) procurement of medical gloves from Malaysian factories accused of exploiting migrant workers, including factories in Top Glove’s supply chain. Interviewed workers highlighted practices of debt bondage, passport seizures, forced overtime and withheld wages, which are all forms of forced labour. In January 2019, the Telegraph revealed that Karex, a supplier of condoms to the NHS, perpetrated human rights abuses against its workers at rubber factories through unethical and expensive recruitment schemes. In contrast to its initial defence of Top Glove, the Malaysian Human Resources Ministry announced that it would take action against WRP, a rubber glove manufacturer, for withholding salaries from its workers.
By Caroline Emberson Research Fellow, Rights Lab, University of Nottingham, UK
In this post Caroline Emberson discusses the results of a research study which examines the risks of modern slavery to care-workers in the labour supply chains of adult social care, created through contracting-out by English local authorities. While there are signs that the problems may now be receiving recognition, the findings presented raise questions about the adequacy and efficacy of current human rights accountabilities in our public authorities which may be of relevance to those in other EU member states.
This post discusses the risks related to modern slavery that may arise from the contracting-out and personalisation of adult social care in the UK.
Adult social care services support adults with physical or learning disabilities and physical or mental illnesses. According to the Institute of Fiscal Studies total annual expenditure on adult social care in England reached nearly £35 billion of which £19 billion was state spending.
Over the past three decades there has been a shift in the medium of public provision of adult social care in England from homes owned and operated by local government to public procurement of care services by local government from private providers.
So when, in September 2018, the Governments of Australia, Canada, New Zealand, the United States and the United Kingdom jointly published a set of principles to guide Government action to combat human trafficking in global supply chains hopes were raised that Governments might take action to exclude from public tenders companies that have not committed to action to eradicate modern slavery.
However, while the first of these four principles requires Governments to take steps to prevent and address human trafficking in their procurement practices, its focus on global supply chains means it falls short of providing sanctions of relevance to the networks of small, domestic, private-sector organisations and individuals who provide services in their home countries’ adult social care markets.
Yet, as Claire Methven O’Brien identifies, the public procurement of such essential services may remain within the scope of the state’s duty to protect human rights which arises from international human rights instruments such as the European Convention on Human Rights: a premise that is reinforced by the recent publication of a Procurement Guidance Note related to Human Rights in Public Procurement from the Northern Ireland Public Procurement Policy Board.
However, as Anna Gorma and Patrycja Krupinska noted in this blog last year, Section 54 of the UK Modern Slavery Act (MSA), which might be expected to provide specific legal protection related to modern slavery, currently precludes public bodies such as local authorities from the duty to provide an annual statement of the steps that they have taken to eliminate modern slavery from their organisation and those of their suppliers or to state that they have taken no such steps. This may change. A number of local authorities have already opted to publish voluntary statements related to their activities and, in the second interim review report of the MSA published by the UK Government at the end of January, the reviewers recommend that Section 54 be extended to the public sector.
This is important since there is, at present, limited oversight of the fragmented adult social care sector in which the majority of private care providers fail to meet the £36 million threshold in place for commercial organisations’ annual reporting.
To better understand the risks of modern slavery in this sector, it is necessary to consider the context in which procurement decisions are made.
The session on 28 November 2018 at the UN Business and Human Rights Forum was organised by the Danish Institute for Human Rights (DIHR), the International Corporate Accountability Roundtable (ICAR), the Ethical Trading Initiative Norway (ETI Norway), and the Harrison Institute for Public Law of Georgetown University Law Center.
This session looked at how public procurement at the sub-national level can be used, per the UNGPs and SDG 12.7, as a lever for extending the practice of corporate human rights due diligence in local economies and global supply chains. It focused on identifying transferable good practice examples and lessons learnt from those working with this topic including local and municipal governments, cities, universities, and hospitals. It addressed the unique challenges and opportunities faced at this level including building leverage, ensuring policy coherence between the national and sub-national institutions, and developing institutional capacity.
Executive Director and Board member, CSO Network Japan
Sustainable public procurement has become an important issue in Japan. We have witnessed that the Japanese government has committed to contributing to the Sustainable Development Goals (SDGs) that includes “Promoting public procurement practice that are sustainable” in the target 7 of Goal 12. The Tokyo Organizing Committee for Olympic and Paralympic Games (TOCOG) has announced its respect for the UN Guiding Principles on Business and Human Rights (UNGPs) and developed a sustainable sourcing code for goods and services to be procured for the 2020 games based on the UNGPs. The TOCOG has established a Grievance Mechanism, which will receive reports of non-compliance with the sourcing code and respond with a view to resolving reported cases promptly in a fair and transparent manner. In addition, the Government of Japan has launched the development of a National Action Plan on the UNGPs and public procurement is one of the core issues in the Plan. With all mentioned above in mind, public procurement is expected to be a strategic policy instrument toward achieving a sustainable society by integrated approaches of social, environmental and economic aspects in Japan (Figure 1)
Figure 1 Impact of Sustainable Procurement (Procura+ Manual)
In this post, Eamonn Conlon considers whether the 2014 EU Procurement Directives provide a basis for liability of public buyers or their suppliers for severe labour rights abuses experienced by workers, including modern slavery, using a construction case study. While the post examines Irish implementing legislation in particular, much of the analysis is of broader application across EU member states.
According to the UN Guiding Principles on Business and Human Rights (UNGPs) governments should promote respect for human rights by those with whom they do business. They should also take steps to ensure that their domestic judicial mechanisms are effective as a route for victims of business-related human rights abuses to access a legal remedy. As this post explores, these norms raise interesting questions for EU procurement law.
The EU’s 2014 directives governing general public sector, utilities, and concessions procurement include two ‘principles of procurement’ (art 18 public sector procurement Directive, art 36 utilities Directive and arts 3 and 30 concessions Directive). The first principle requires contracting authorities to treat ‘economic operators’ equally and without discrimination and to act transparently and proportionally. Economic operators are suppliers of goods, services and works on the market.
The second principle requires member states to take appropriate steps to ensure that, in performing public contracts, economic operators comply with applicable obligations in the field of environmental, social, and labour law including the ILO core conventions. The ILO’s eight ‘core’ conventions prohibit forced labour, child labour, and workplace discrimination, and provide for freedom of association, the right to organise, and collective bargaining. All EU member states have ratified them.
EU Directives are addressed to member states, who must give them effect in their domestic law. Member states have responded in different ways to the new requirement to ensure compliance with ILO conventions by their suppliers. As reported on this blog by Théo Jaekel, the Swedish parliament rejected a government proposal to make core labour standards binding on public contractors. Norway (in the European Economic Area) requires public authorities to ‘have appropriate measures/procedures/routines to promote respect for fundamental rights through public procurement when there is a risk of violation of such rights.’[i] The UK, apart from Scotland, decided to avoid ‘gold plating’ its regulations and left adherence to the new principle of compliance with ILO core conventions as a matter for administrative measures.
Enacted to implement the 2014 public procurement Directive, Ireland’s 2016 public procurement regulations require economic operators to comply with applicable obligations under ILO core conventions in performing public contracts. Contracting authorities must, by their contracts, require such compliance. Ireland has matching terms for procurement of concessions and by publicly-owned utilities.
In the rest of this post I look at whether Ireland’s new regulations under the 2014 Directives provide a remedy—by establishing potential liability—for infringement of core labour rights in public supply chains, in line with the UNGPs. But first I consider whether the Directives themselves provide or require such a remedy in all EU member states.
Initially by creating an unclear air about who is supposed to report, many public bodies were left unconcerned with reporting or further investigating their supply chains. This mirrors the position across many other jurisdictions where public buyers are uncertain as regards scope for measures to promote respect for human rights in their supply chains.
This following article is based on our research at the Business, Human Rights and the Environment Research Group (BHRE) at the University of Greenwich. Firstly, it explains what s.54, Transparency in Supply Chains (TISC) provision of the Modern Slavery Act 2015 is, which organisations it applies to and the legal reporting requirements. Secondly, it includes a summary of general reporting trends seen among public sector bodies, that is, universities and local authorities.