By Eamonn Conlon
Partner, A&L Goodbody, Dublin

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.

1. Introduction

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.

Continue reading. “Modern Slavery: Do the 2014 EU Procurement Directives Establish New Routes to Remedy for Victims?”

By Anna Gorma & Patrycja Krupinska
Project Managers, London Universities Purchasing Consortium – University of Greenwich BHRE Modern Slavery Project

In April 2017, the UK Parliament’s Joint Committee on Human Rights stated that “If the Government expects businesses to take human rights issues in their supply chains seriously, it must demonstrate at least the same level of commitment in its own procurement supply chains.” Unfortunately, modern slavery in public procurement remained absent from the Modern Slavery Act 2015, as highlighted by submissions by the Learning Lab to the JCHR. The Act itself omits public bodies from the requirement of publishing a modern slavery statement and instead focuses on ‘commercial entities’. This is despite public procurement making up 13.7% of the UK GDP in 2015 making public bodies into a major influence.

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.

However, as Dr. Olga Martin-Ortega has put it, universities, as both a public body and a commercial entity, had to “wake up: they, too, are players in fighting modern slavery” (further see Ready or not: Universities and reporting requirements under the UK Modern Slavery Act by Dr. Olga Martin-Ortega for some initial observations on early reporting by Universities). Public authorities had equally little awareness of the reporting criteria, since they do not fall under the requirements of the Act, as analysed below.

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.

Continue reading. “Modern Slavery Act 2015 – Transparency in Supply Chains: Reporting by Universities and Local Authorities”

By Nicole Vander Meulen
Legal and Policy Associate, International Corporate Accountability Roundtable

On November 13, 2017 the Learning Lab hosted a one-day workshop in Pretoria, South Africa, bringing together relevant stakeholders to explore ways to operationalize the UN Guiding Principles on Business and Human Rights and the Sustainable Development Goals in Africa through public procurement laws, policies, and practices. The workshop was co-organized by the International Corporate Accountability Roundtable (ICAR), the Danish Institute for Human Rights (DIHR), the Geneva Centre for the Democratic Control of Armed Forces (DCAF), and the African Procurement Law Unit (APLU).

The workshop included a short morning session on public procurement and human rights broadly, with the main focus of the day being on: 1) public procurement of private security and military services, and 2) public procurement and sustainable development. The presentations and discussion during these two sessions are briefly summarized below, and additional resources including the workshop concept note, agenda, and presentation slides are can be found here. Continue reading. “Learning Lab Workshop on Public Procurement and Human Rights in Africa”

By Alys Samson Estapé
NOVACT

On 16 November 2017 Novact, Servei Civil Internacional de Catalunya and Nexes launched the “Guide for the protection and promotion of Human Rights in Public procurement”. The Guide aims to be a tool to support local councils and public administrations in Catalonia to avoid contracting with suppliers that commit or are linked to human rights abuses.

The new Guide focuses on the whole process of public procurement and addresses in turn: eligibility criteria; binding supplier responsibility statements (to be signed by the highest responsible manager of the supplier); evaluation criteria; contract execution and management; and monitoring and follow-up of public contracts.

The Guide was developed during the passage of a new Public Procurement Law in Spain in 2017. The organisations responsible for the Guide and others working for human rights advocated for amendments to this procurement law. Our principal aim was that it should become illegal for state bodies to enter into supply contracts with companies that do not respect human rights. As we did not succeed in integrating this norm into the Spanish legislation, the Guide is more necessary than ever. The new Spanish procurement law does establish a wider range of possibilities and includes more social aspects compared to its predecessor, but what social organisations sought is still missing: the ability to exclude entirely those companies responsible for human rights abuses from public procurement procedures. Continue reading. “Catalonia: New Guide on Human Rights in Public Procurement”

By Linda Piirto
Senior Advisor, Responsible Business Conduct, Ministry for Economic Affairs and Employment, Finland

Some years ago I was sitting in a small conference room in Brussels with a bunch of European colleagues – public procurement specialists and responsible business conduct enthusiasts – to hear how social aspects could be taken into account in public procurement. Unfortunately the message we heard wasn’t that encouraging: I got the impression that procurement units (and us representing the awareness-raising wing) weren’t encouraged to explore the topic since it was deemed too difficult.

I left that non-workshop feeling baffled, but not discouraged. For us Finns the option of not doing anything wasn’t really an option: there were already social expectations that public procurement should be responsible, both environmentally and socially. Once a strong expectation exists, we tend to think it’s better to explore how it could be executed in practice and provide guidance, rather than wait for “innovative” ways to interpret the procurement legislation to emerge in bulk. Continue reading. “Finland: New guidance on socially responsible public procurement spotlights practical solutions”

By Daniel Morris
Adviser, Human Rights and Development, Danish Institute for Human Rights

On the 6th October 2017 the Inter-American Network on Government Procurement (INGP) held a workshop on public procurement and human rights for its members in Santiago, Chile. This workshop was facilitated by Centro Vincular of the Catholic University of Valparaiso, the Danish Institute for Human Rights (DIHR), the International Corporate Accountability Roundtable (ICAR), and members of the International Learning Lab on Public Procurement and Human Rights.

The objectives of the workshop were to:

• Explore human rights law and public procurement;
• Look beyond the law to examine the economic and commercial benefits of integrating human rights into public procurement exercises;
• Share experiences on inserting social, human rights, and environmental protections into public procurement exercises; and
• Discuss how the INGP could support further integration of human rights in public procurement.

Presentations were made by Dante Pesce, Catholic University of Valparaíso, Member of the UNWG on Business and Human Rights; Nicole Vander Meulen, ICAR; Professor Geo Quinot, Stellenbosch University; Daniel Morris, DIHR; Natalie Evans, City of London; Pauline Gothberg, Swedish County Councils and Regions; and by members of the INGP. Continue reading. “Workshop on Public Procurement and Human Rights with the Inter-American Network on Government Procurement”

By The Geneva Centre for the Democratic Control of Armed Forces (DCAF)

The use of private military and security companies (PMSCs) worldwide is increasing. Since the early 1990s, the global private security industry has been expanding significantly in response to increasingly complex security environments, ranging from conflict or post-conflict situations to growing terrorism threats and humanitarian crises.

In the Latin America and Caribbean region for instance, at least 16,174 private security companies have been identified, with more than 2,450,000 legal employees working as security guards. Today it is not rare to have states with a higher ratio of private security personnel to police. PMSCs have adapted their services and operations to this context; nevertheless, some PMSCs have also attracted increasing international attention due to misconduct, human rights abuses, and violations of international humanitarian law.

For example, PMSCs provide operational support to a number of asylum seeker and immigration detention centers. Human rights organisations are concerned about the numerous reports of serious human rights violations and relative lack of monitoring and oversight of private security personnel managing and operating these centres. Abuse of detainees has raised serious ethical and legal questions and facilities with armed guards lead to concerns over the use of force. Furthermore, the transparency of contracts between private security companies and governments has also been questioned. Continue reading. “Public procurement of private security services: new contract guidance tool promotes greater respect for human rights and accountability”

By Jovana Stopic
Jovana Stopic is a human rights expert, she has been working with Belgrade Centre for Human Rights on establishing human rights and business footprint in Serbia since 2013

As a candidate country for EU membership, Serbia has been in the process of accession negotiations since 2014. Negotiations were initiated on a number of chapters including Chapter 5 on public procurement and Chapter 23 covering fundamental rights. To enter into EU membership, amongst other requirements, Serbia is expected to ensure that EU legislation has been transposed across the board into Serbian law and that it is effectively implemented. This means that the accession process is currently the main reform engine in the country in all spheres of political and economic life. It also entails that the success of any advocacy activity is conditioned on its proximity to the priorities set for the EU integration agenda.

In its 2016 Progress Report, the European Commission assessed that Serbia was “moderately prepared” for EU accession in the area of public procurement, but in order to close the negotiations under Chapter 5 on Public Procurement Serbia is expected to reach three major benchmarks. Continue reading. “Raising Awareness on Public Procurement Impact on Human Rights in Serbia”

By Alison Elliott
Senior Policy Adviser, UNICEF Australia

The business and human rights agenda has gathered pace over the last year in Australia.

Now, three on-going processes represent significant opportunities to strengthen Australian policy and legislation, including in the area of public procurement.

If seized, they offer a chance to better protect individuals and communities against adverse human rights impacts of business activity, reward leading companies and further support corporations to meet their responsibility to respect human rights.

First, in January 2016 the Australian Government undertook to conduct a national consultation on implementing the United Nations Guiding Principles on Business and Human Rights. This was a voluntary commitment made as a result of Australia’s participation in the UN Universal Periodic Review process, where states review each other’s fulfilment of their human rights obligations. Continue reading. “Policy Coherence on Business and Human Rights – A Trifecta of Opportunity in Australia”

By Olga Martin-Ortega, Business, Human Rights and the Environment Research Group; Claire Methven O’Brien, Danish Institute for Human Rights; and Andy Davies, London Universities Purchasing Consortium

In April 2017 we submitted written evidence on behalf of the Learning Lab to the Australian Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade inquiry into establishing a Modern Slavery Act in Australia.

In particular, we recommended the inclusion of a “Transparency in Supply Chains” provision to apply to public bodies, as well as corporations, and to build upon experience, practice and research concerning the first year of implementation of Section 54 of the UK Modern Slavery Act 2015 (MSA) by UK public buyers.

This recommendation followed from an analysis undertaken during 2017 by the Business, Human Rights and the Environment Research (BHRE) Group of over 80 Slavery and Human Trafficking statements produced by UK public buyers, mostly universities.   Continue reading. “Australia Should Extend Modern Slavery Obligations to Public Buyers”