Business & Human Rights: UK Groups Propose New Offence Of Failure To Prevent Human Rights Abuses

• Published date: 02 December 2021
• Subject Matter: Corporate/Commercial Law, Government, Public Sector, Corporate and Company Law, Human Rights
• Law Firm: Gowling WLG
• Author: Mr Kieran Laird

Civil society groups in the UK are campaigning for a new law, which would be modelled on the 2010 Bribery Act, to establish a 'failure to prevent' offence for corporate human rights abuses. This new law would impose liability on companies that fail to take adequate steps to prevent human rights and environmental abuses in their operations or supply chains.

The idea for such an obligation was first proposed in 2017 by the parliamentary Joint Committee on Human Rights (JCHR) which recommended that the UK Government bring forward legislation to impose a duty on all companies to prevent human rights abuses and which requires all companies to put in place effective human rights due diligence processes (as recommended by the UN Guiding Principles on Business and Human Rights), both for their subsidiaries and across the entire supply chain.

At that point, the recommendation was not pursued by the Government.

The current campaign in the UK is being coordinated by the Corporate Justice Coalition and the proposed legislation comprises the following principle elements -

1. Overarching duty - Commercial and other organisations have a duty to prevent adverse human rights and environmental impacts of their domestic and international operations, products and services including in their supply and value chains.
2. Due diligence - Commercial and other organisations must develop and implement reasonable and appropriate due diligence procedures to identify, prevent and mitigate adverse human rights and environmental impacts.
3. Prevention mechanism - Commercial and other organisations must publish a forward-looking plan describing the procedures to be adopted in the forthcoming financial year, and an assessment of the effectiveness of actions taken in the previous financial year.
4. Liability - Commercial and other organisations shall be liable for harm, loss and damage arising from their failure to prevent adverse human rights and environmental impacts of their domestic and international operations, products and services including in their supply and value chains.
5. Defence - It could be a defence from liability for damage or loss, unless otherwise specified, for commercial and other organisations to prove that they acted with due care to prevent human rights and environmental impacts.
6. Civil penalty - Commercial and other organisations, and their senior managers shall be subject to a civil penalty if they fail to develop, implement and publish a due diligence plan within a reasonable...