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.

To Benchmark or not to Benchmark? That is the question… which the Corporate Human Rights Benchmark project needs to answer.

Yesterday saw the launch of the inaugural results of the Corporate Human Rights Benchmark (CHRB) – an initiative that comparatively ranks the human rights performance of leading multinational corporations. On initial reading, it seems like a well-researched project which has some very interesting findings for anyone involved in business and human rights. But there are also limitations and assumptions to this benchmarking process that remain unchallenged, unexplored, un-problematized. The question I was left asking was this: under what conditions is benchmarking itself a progressive act which will drive better performance of those being benchmarked?

Steve Waygood, Chair of CHRB, in his forward to the key findings, says that key stakeholders (governments, ngos, the media etc.) can take action and use CHRB’s results to drive improved corporate human rights performance. I want to ask some more searching questions about that claim. But first, for the uninitiated, a few words about what CHRB is, and why its findings are important.

The CHRB project takes 98 leading companies in the agricultural, apparel and extractive industries and measures their comparative performance in implementing the UN Guiding Principles on Business and Human Rights (the UN’s flagship human rights and business initiative).

Reading the key findings, it reinforces my concern (which I have written about before) that the UN Guiding Principles may not be leading to a great deal of meaningful action by the vast majority of companies. As the report itself states:

“The 2017 results are significantly skewed toward the lower bands [of corporate human rights performance]. This reflects the relatively early stage that many companies are still at when implementing the UN Guiding Principles and other internationally recognised human rights and industry standards. Nearly six years on from the UN Guiding Principles’ endorsement, this is an important if uncomfortable finding.”

The results become more uncomfortable when we find out how the leading companies scored their points: “Companies tend to perform more strongly on policy commitments, high-level governance arrangements, and the early stages of human rights due diligence… Performance drops off however, even amongst leading companies, when it comes to acting on those risks, tracking responses, communicating effectiveness, remediating harms, and undertaking specific practices linked to preventing key industry risks.”

My interpretation of this is that even the leading companies are scoring most of their points for telling the world about how committed they are to human rights, and putting in place structures and procedural frameworks which could lead to their taking human rights issues seriously. But they are not scoring many points at all for detailed and specific human rights work to identify and tackle their own human rights problems, nor are they providing stakeholders with information that allows those stakeholders to verify that real and meaningful human rights work is going on. These findings very much chime with my own research in this field.

So back to the question ‘To benchmark or not to benchmark?’. A couple of years ago I was involved in a fascinating academic project which looked at international benchmarking practice across a range of different fields: from disaster management to global financial initiatives, from tackling climate change to achieving the millennium development goals. The project identified a recent explosion in the number of global benchmarking initiatives and argued the attractiveness of such initiatives comes, in part, from the power of benchmarking to “enable non-experts to make simplistic comparisons of relative performance regarding complex phenomena at a transnational level.”

The project’s directors (Andre Broome and Joel Quirk), in their introduction to a journal special issue on benchmarking, encouraged us to examine each benchmarking initiative very carefully because global benchmarks can be represented “as ‘evidence’ that can be used to establish a foundation for initiating particular kinds of political conversations as well as potentially influencing the design of policy interventions and reforms.”

What they are saying is that benchmarks set the terms of the debate, and they dictate what needs to be done to tackle the problems. CHRB’s use of benchmarking as a mechanism to drive action by key stakeholders is problematic in two very important ways.

First CHRB presents the issue as closing the gap between the laggards and the leaders. But the more fundamental question to ask is, six years on from their inception, what meaningful changes are the UNGPs driving? And is closing the gap between the laggards and the leaders in terms of UNGP performance (what CHRB encourages), the way to encourage more companies to do meaningful human rights work?

Second, and related to this, is what the CHRB measures. CHRB is caught in the same old paradigm whereby observers measure what companies say they are doing about human rights, rather than what they are actually doing in practice.

I will leave the last word to a good friend of mine who is much more knowledgeable than me about how corporations operate and had the following observation about the inherent limitations of this benchmarking exercise:

“To benchmark on what companies say rather than what they do allows companies to game benchmarks. Here, there is no real consideration of  “on the ground” action. There are policy commitments, which are fine and required by the UNGPs. But we know they do not, in themselves, mean anything.

The only almost action is the ‘putting in place structures and procedural frameworks.’ But structures and procedures do not necessarily have any meaning or value at all and can exist solely to send the signal to outsiders that something is being done when it is not.

Rankings fail as a matter of theory and practice when companies have the ability to game the rankings by saying what the rankers want to hear. Structures and procedures are only made real by verified outcomes, so benchmarking based on procedures as they are described and reported by the company is doubly meaningless.

Essentially, it is too early to benchmark because companies are not doing enough yet. This is a sad commentary on the UNGPs.”