Human rights protections in UK post-Brexit trade and investment agreements

Yesterday, I spoke at a UK Parliamentary inquiry into how the UK could protect human rights in its post-Brexit treaties with other countries. Much of the focus was on international trade and investment agreements. Below you can see my opening thoughts on this issue. I argue that the rhetoric of human rights protections in such treaties globally is sadly not often matched by the reality of what they achieve in practice. The UK has the opportunity to set the bar much higher.

But there are grounds for concern that human rights issues are currently being mariginalised within trade and investment law-making processes. When Lord Ahmad, from the Foreign and Commonwealth Office later addressed the Committee, he gave the impression that human rights were not an important part of the discussions when the UK was agreeing its first post-Brexit trade deal with Israel earlier the same day (see 1 hr 16 minutes onwards in the full video below).

You can view the full hearing here and my full written evidence to the Committee is available here.

The 2018 UN Forum on Business and Human Rights: Improved, but due diligence discussions still a cause for concern

Since I wrote a rather scathing article about the UN Forum on Business and Human Rights in 2016, there has been a significant change in tone in the last two fora. And that is to be applauded.

This year, there were more panels where the problems and deficiencies of the UN Guiding Principles on Human Rights (UNGPs) were discussed. As highlighted in the final plenary by Dante Pesce, Chair of the UN Working Group on Business and Human Rights, governments need to do much, much more to support the UNGPs if they are going to have a significant impact on the human rights situation of workers and communities affected by business activity. 

Another improvement in this year’s forum was that there were more sessions where business representatives, trade unions and civil society activists discussed concrete human rights problems, and strategies for overcoming them. For instance, I learnt a great deal from a session on approaches to tackling the problems of vulnerable workers in supply chains (from campaigns on the exploitation of eastern European truck drivers to addressing the abuses of migrant labour in the Italian tomato industry).

There were also more sessions where the human rights performance of business was actively scrutinised. On several panels, business representatives sat alongside civil society representatives and academics and responded to criticism. 

But sadly, I still had a sense of widespread doubts about whether any of this will lead to real change in practice. Some of this reflects the difficult times we live in. Delegates who I encountered seemed downbeat about governments taking meaningful action in the face of so many other political crises. Others were skeptical that businesses would embrace the UN’s human rights agenda in a way that would lead to real change.

I share these concerns. At the same time, I think it is still important to look at where change could happen. Much of the focus of this year’s forum was on the commitment contained in the UNGPs for companies to carry out human rights due diligence. HRDD is central to business’ responsibility to respect human rights. It is therefore the cornerstone of the UNGPs. And I have written before in this blog about the fundamental problems with current practice.  

The UN Working Group have themselves identified the fact that there are many challenges in terms of getting companies to undertake meaningful HRDD. But I left the forum wondering whether proponents of HRDD are focusing on the right issues to make the situation better. There still seems to be an obsession with benchmarks (the problems of which i have discussed previously) and the importance of making the ‘business case’ for HRDD.

I stand by my previous argument that without transparent reporting on HRDD, there will be no progress. But at this year’s forum i was also stuck by another problem. It highlighted to me the increasing numbers of consultants who are employed by companies to undertake their HRDD, and the opaque and often difficult relationships they have with their paymasters.

At a session where i spoke, organised by Kendyl Salcito from Nomogaia, questions were raised about the relationships between consultants and businesses. When HRDD is undertaken by an outside consultancy this gives credibility and a perception of independence to the process. But can consultants perform robust and meaningful HRDD when companies hold most of the power in the relationship? How often are unreasonable demands made about the work that should be carried out and the resources required to do it? Can consultants demonstrate their own independence if they can’t publish their work? And when they come up with uncomfortable findings which the company isn’t expecting, what can they do to ensure those findings are acted upon?   

I wonder if it is time for more progressive consultants to come together and commit to a set of standards required for HRDD to be considered legitimate. This must include their right to publish the results of their work. Such standards would lend legitimacy to a group who are currently bearing much of the responsibility for ensuring the UNGPs are a worthwhile endeavour.              

The UK Trade Bill ‘Rollover’ Fallacy

I attended a really interesting Trade Bill Briefing Session in the House of Lords today – in the same room I sat in as a young researcher 20 years ago fearfully presenting my ideas for an independent police complaints system to the great and the good. I was a lot more relaxed today! But at the same time a lot more depressed by current parliamentary process than I was 20 years ago. Let me briefly explain why.

In today’s session, Amnesty International UK, Liberty, the TUC and Traidcraft presented their perspectives on the Trade Bill that is going through Parliament. I have posted before on my concerns about the Trade Bill. These were reinforced by the presentations I heard today. From the dangers of the Bill taking extensive law-making powers from Parliament and granting Ministers the ability to amend primary legislation for a range of broadly defined reasons, to the lack of any kind of scrutiny of the human rights and development impacts of future trade agreements, to the dangers of erosion of workers’ rights as a result of future trade deals, the discussants presented a compelling picture of critical potential problems with future UK trade policy that the Trade Bill fails to address.

As various House of Lords peers told us, one of the key problems with suggesting amendments to the Bill to include consideration of these issues, is that the trade Bill is presented in very narrow terms. All it does is ‘roll over’ existing EU trade agreements into UK law. There is, therefore, no need to create a comprehensive trade policy framework at this stage. That can all be done later when the UK government signs new trade deals.

Lots of reasons were given for why this is not a ‘rollover’. But it is difficult to convince MPs to take it seriously because it all gets very technical very quickly. One very clear example of the rollover fallacy that struck me as I was listening to the discussions is the fact that every trade agreement is a ‘living instrument’ with its own committees, groups and other bodies to implement it.

Take the Trade and Sustainable Development Chapters of all recent EU trade agreements. Each chapter has a set of institutions including a joint governmental committee and domestic advisory groups made up of civil society representatives which work on sustainable development issues in relation to the agreement. How do you simply ‘roll over’ these committee structures? Impossible. The EU won’t let the UK government borrow theirs.

The UK government will instead have to create them afresh for its ‘rollover’ trade deals. It will have to decide who will be selected to sit on these bodies, how they will function etc. And before you know it, you are creating a framework for how UK trade policy operates, which will then, surely, be carried over into new agreements that the UK signs. This should all be done within a pre-existing trade policy framework, which should be set out now in the Trade Bill now passing through Parliament.

 

The UK Trade Bill: More Scrutiny and Accountability Required

Next week the second reading of the UK Government’s Trade Bill will take place in the UK Parliament. This will be an opportunity for MPs to enter into serious debate about an issue that will be much discussed in 2018 – how should the UK formulate its post-Brexit trade policy?

The Trade Bill has been widely criticised for being published only a day after a consultation had ended. Its “disappointingly brief” contents include proposals for how the UK will implement 40 existing EU trade agreements once it leaves the EU and the establishment of a new independent UK body, the Trade Remedies Authority, to defend UK businesses against unfair trade practices.

But for a country that has not had a trade policy for 40 years, it is alarmingly silent on how government will negotiate new trade agreements. There is nothing in the Trade Bill which sets out a process of public or parliamentary scrutiny of future UK trade policy, nor individual trade agreements which the UK government seeks to sign. Nor is their any process identified for how the potential impacts of any future trade deals will be evaluated. Campaigning organisations have been demanding that proper accountability and scrutiny mechanisms are included within the Bill.

This is not just a technical dry piece of legislation. It seeks to take important steps towards a future UK trade policy, and frames the issues which the government sees as important priorities within that policy. MPs should be demanding in the debates next week that fundamental principles of accountability for, and scrutiny of trade policy are included within the Bill’s remit.

 

Taking Labour rights seriously in future UK Trade Policy: Protect,Promote, Empower

In June and July, everything became a little hectic for me and this blog became rather inactive. Just the odd bit of tumbleweed blowing through! One of the reasons for this was that I was busy on a project looking at how labour rights might be protected in future UK trade policy. There were lots of questions we were asking…

Could any UK’s future trade deal with the EU be used to ensure that the UK retains strong protection of labour rights once it leaves the EU?  Could future UK trade agreements with the EU and other countries seek to effectively tackle labour abuses in global supply chains? Do we need to worry that future UK trade agreements might themselves undermine labour rights, and if so, what should be done about that? And plenty of other questions besides.

Myself and my colleagues on the ‘Working Beyond the Border‘ project held a policy seminar in London on 4 July. And we presented a colourful policy brief (Front cover below) where we considered the above questions. And we produced a working paper where we analysed them in more detail (try the policy brief first, if you want more move on to the working paper!). We came up with a set of principles to help future about trade and labour linkage – Protect,Promote, Empower. I also produced blogs for the LSE and Touchstone. So if you are interested, you now have links to all of that in one place. Do get in touch if you’d like to talk more about anything you read…

Talking trade agreements and workers’ rights – A TJM Podcast

 

Recently the Trade Justice Movement recorded me in conversation with Paul Keenlyside from TJM talking about trade agreements and workers’ rights. Paul asked me:

• What do we mean when we talk about workers’ rights?
• What are the threats posed to those rights by trade agreements?
• How do the EU and US seek to protect workers’ rights and are those protections adequate?
• What could the UK do in future trade agreements to better protect workers’ rights?

You can hear my answers as part of the TJM podcast series. 

Beyond the Foodbank?

Last week saw the launch of part 2 of Lacuna’s ‘Beyond the Foodbank?’ edition about food poverty in Britain and responses to the problem. Lewis Smith and myself curated it. We were seeking to explore the increasingly complex web of initiatives and organisations that are trying to tackle the problem of hunger in the United Kingdom.

In Looking Beyond the Food Bank, Lewis interviewed Simon Shaw who works for Sustain, an “alliance for better food and farming”. Sustain campaigns to improve the fairness and sustainability of the food system for both producers and consumers. Simon leads Sustain’s work on food poverty. Here, he talks about Sustain’s wide-ranging work, including a recent project which encourages local authorities in London to step up and play a more active role in tackling food poverty. Simon argues that by supporting initiatives such as children’s centres, meals on wheels and Healthy Start (a voucher scheme supporting families on low incomes to access fresh fruit and veg), local authorities can offer a more effective response to food poverty than food banks.

Lewis and Simon also discuss some of the different community-led approaches to food poverty that have emerged recently, and talk more broadly about issues of choice, healthy eating, rights, and the need for a proper measure of food poverty to be introduced in the UK.

One of the initiatives that Simon talks about is Community Shop. And in Gin and Skinned Rabbits, Gary Stott and Clara Widdison from Community Shop tell us more about their organisation. They explain how it operates to “bring surplus food to families in deprived communities, selling it at deeply discounted rates and reinvesting the profit into individual and community development”.

Gary and Clara also look at how food culture in Britain has changed within living memory, and argue that these changes are also a part of the story of food poverty in Britain. They explain how, in response, Community Shop seeks to build communities around food, by growing, cooking and then eating food together. Their hope is for a world where food is no longer “a symbol of anxiety and financial hardship, but instead becomes representative of all that is good in life”.

In our final piece, Wendy Eades talks about an aspect of food poverty that perhaps causes more anxiety than any other; the holiday hunger that affects millions of children across the UK. She recounts her own local efforts to tackle the issue by setting up a MakeLunch kitchen in a school in Coventry. The scheme was a success. But it came to an end. Her own experiences led Wendy to think about the effects of holiday hunger for children up and down the country, and how we can respond better to tackle this issue in the future.

Wendy concludes by questioning whether this is a problem that can be left to voluntary initiatives alone. And this leads her to ask, just as Simon Shaw does, what the role of government should be in tackling the hunger issue. Should government be doing more to measure the extent of food poverty in the UK, to understand its root causes, and to support initiatives which provide solutions? And can invoking a “right to food” help us to hold our government and public authorities more accountable for the hunger affecting their citizens?

The first part of our Beyond the Food Bank edition led to a number of people getting in touch to say they would like to contribute to future discussions in Lacuna Magazine about food aid and food poverty. We will continue to explore these themes, by investigating the issues that are causing hunger and the range of organisations and campaigns that are trying to address these problems in different ways. And we will look beyond the UK to experience in other countries. So if you would like to join the conversation please do get in touch.

Foodbank Futures

Three years ago, in a piece for Lacuna Magazine entitled ‘The Foodbank Dilemma’, I investigated the reasons behind the rapid rise of the Trussell Trust foodbank network across Britain. Three years on, I re-visited Britain’s foodbanks and spoke to the people who work and volunteer there to find out what had changed and what the future might hold in store. You can now read my latest article ‘Foodbank Futures‘.

What I found was that more people within the Trussell Trust Foodbank network are today asking questions about the causes of food poverty, and wondering about the role they are playing in efforts to make that situation better. But i also found that there are lots of different models being adopted by different foodbanks to tackle food poverty issues. It left me wondering whether it is possible to build a stronger consensus about the causes of food poverty, and how foodbanks should engage with those causes.

The Ethics of UK Trade Policy – 3 events in 24 hours add up to grave cause for concern

Three events in the last 24 hours deepened my worries about the degree to which the UK government will be held to account for the ethics of its future trade policy. Liam Fox in the Philippines, Theresa May in Saudi Arabia and the publication of a report by the Joint Committee on Human Rights of the UK Parliament together gave me grave cause for concern. Here is why.

Liam Fox managed to be pilloried by everyone from the Guardian to the Daily Mail yesterday for saying that the UK ‘shared values’ with the brutal regime of the Philippines’ President Rodrigo Duterte. Dr. Fox was in the Philippines to talk about a potential trade deal with a leader who has publicly encouraged his citizens to kill drug addicts and once bragged about throwing people out of a helicopter.

Meanwhile, Theresa May was being forced to defend her trip to Saudi Arabia (also being wooed for a post-Brexit trade deal) at a time when the Saudi regime, using UK-produced weapons, is causing a humanitarian disaster in neighbouring Yemen.  May’s foreign policy doctrine, she told a reporter, is “that everything we do is in our British national interest…It’s in our British national interest to have good relations around the world so we can trade around the world…it’s in our national interests to ensure that the values that underpin us as Britons are values that we promote around the world – and that’s what we’re doing.”

Talk of ‘British values’ as the ethical underpinning of our trade relationship is extremely dangerous. Even when teaching British values in British schools, the term is open to all kinds of worrying interpretations, as research by my colleague Dr. Ali Struthers has demonstrated. Those dangers are greatly exacerbated when the conversation becomes the bedrock of ethical discourse between entire countries. The term is so malleable that it is only when we are told we share the same values as one of the world’s most brutal political leaders that people sit up and take notice.

This is where terms like human rights can play a role. They create specificity. The Saudi regime regularly detains and imprisons critics, human rights defenders and minority rights activists on vaguely worded charges; women are faced with discrimination in both law and practice and are insufficiently protected against sexual and other violence; significant numbers of executions are carried out, including of juveniles. And of course there are Saudi actions in Yemen. These are all clear violations of human rights.  Using the term ‘human rights’ allows us to measure the ethical performance of the countries we want to trade with against internationally recognized standards. But what should we do when they fall short?

Both Liam Fox and Theresa May claim to be raising concerns with their interlocutors. But leaving the EU means that we have massively reduced the chances of our concerns being taken seriously. Instead of speaking on behalf of a potential market of more than 500 million consumers, we now speak as a market of 65 million. This diminishes our bargaining power. We need to very carefully scrutinize the claims that what remains of our influence will be used on ‘values’ rather than commercial interests.

The UK Parliament will be vital in that scrutiny process in the years to come. It was therefore disappointing to see the Parliament’s Joint Committee on Human Rights in their report published today on business and human rights, fail to show a detailed and nuanced understanding of trade and human rights issues (they were much better on pointing out the limitations of other government policy on business and human rights).

First, in their discussion of the EU’s trade policy (which, it is argued, could be a model for future UK trade agreements), they mix up human rights provisions, sustainable development provisions and labour provisions as if they are one and the same thing. They are not. Human rights and labour standards are handled very differently in different parts of EU agreements – UK parliamentarians need to understand how relevant mechanisms operate much better, if they are to evaluate their effectiveness.

Second, the report welcomed the UK government’s commitment to include human rights provisions, equivalent to those in EU trade agreements, in its own trade deals. There are limitations with the EU’s labour and human rights provisions (as I have previously discussed) which should be more thoroughly interrogated.* But, most fundamentally, this endorsement by the Joint Committee on Human Rights fails to recognize the complexity of translating human rights in law into human rights in practice.

One, relatively optimistic study of EU practice on trade and human rights concluded that “human rights conditionality seems to have some clear results with third countries over which the EU holds substantial economic leverage, which might … suggest that the latter is more important than legalisation for promoting compliance.”

We need a UK Parliament that recognizes our heavily reduced post-Brexit economic leverage, and in light of that, carefully scrutinizes our government’s efforts to strike trade deals with countries with very dubious human rights records. And we need human rights advocates within the UK Parliament who much more carefully interrogate what a truly ethical UK trade policy actually entails.

 

* The Joint Committee’s report also encourages the UK government to do better than the EU on enforcement (but the devil here is in the detail). It also encourages assessment of human rights impacts of trade agreements before entering into deals – the EU already does this, but rather superficially. Again more specificity is required about what a human rights impact process should entail.

An EU-UK trade deal; What role can it play in protecting rights?

A recent article in the Guardian, highlighted a letter signed by 50 leading human rights lawyers. It raises concerns about the threat of a UK human rights crisis post-Brexit and argues that the UK’s post-Brexit trade agreement with the EU might be part of the solution. This letter, and today’s triggering of the Brexit process, prompted me to think about the complex relationship between trade and rights, and how the UK’s post-Brexit trade deals might affect that situation (for better and worse). Some initial thoughts below…..

The current UK conservative government has for a long time flirted with abolishing the UK’s Human Rights Act. The letter by human rights supporters raises the concern that, once outside the EU, the UK is also free to leave the European Convention on Human Rights (all EU members must sign up to the ECHR, but once you leave, this isn’t an issue). The letter also raises concerns about the UK “trading away protections against torture for grubby trade deals with foreign tyrants.” Hence the crisis.

The signatories to the letter are right that our changing economic relationships with the EU and other nations can potentially have a great affect on rights protection. And their proposed solution tackles some of the problems.

The letter’s signatories call for “the EU to make Britain’s membership of the ECHR a legally binding requirement for any future free trade deal with the UK.” This is a very important step. It would potentially* lock in the UK’s ECHR commitments and ensure that the UK government cannot unilaterally decide at a later date to abandon the ECHR, a step which “could embolden populist leaders in countries such as Hungary and Poland to abandon domestic and international commitments to human rights.”

Using trade agreements to ensure against a human rights ‘race to the bottom’ across Europe is vital. But should we also be thinking beyond this about a range of other protections that the UK’s future trade deals should engage with? For instance, protection against the UK creating a more ‘competitive’ economy by eroding the rights of workers;  protection for the human rights of vulnerable individuals in countries with troubling human rights records which the UK now wants to create trade agreements with; and protection that ensures the UK’s future trade agreements become building blocks towards better working conditions for workers all over the world, rather than reinforcing existing problems of slavery, forced labour, discrimination, poverty pay etc. in global supply chains.

The current anti-globalization backlash in many western countries has intensified critical engagement with trade agreements and their impacts.  Populist political movements all over the globe are gaining political momentum based on the idea that trade policies (as part of bigger processes of globalisation) are not working for ordinary people. Proponents of EU trade agreements argue that they already take these concerns seriously. EU trade officials point to human rights and labour rights clauses in trade agreements as evidence of their commitment to making sure that trade produces good social outcomes. But are such clauses effective? There is an increasing amount of evidence that suggests current labour rights and human rights provisions in EU trade agreements have had very limited positive effects.

The Post-Brexit EU-UK trade negotiations present a (perhaps tragic) opportunity to revisit this situation and re-think what a rights agenda within trade agreements might achieve. Certainly provisions which ensure that the UK cannot make a unilateral decision to leave the ECHR are of vital importance to human rights supporters in the UK and across Europe. But a more expansive agenda is required if we are to address the wide range of rights issues alluded to above. I am trying to work out what this might look like. More detailed thoughts on these issues from me over the next few months……..

* I say ‘potentially’ because this depends on how the requirements are constructed. Most importantly, the penalties must be sufficiently serious to ensure the commitment is taken seriously.