By Rachel Chambers
The OECD National Contact Point (NCP) is a non-judicial mechanism intended to hold companies to account over breaches of international standards set by the OECD on labour rights, human rights, the environment and corruption, among others. To-date, 46 governments have adopted the Guidelines, and the prominence of this mechanism has been widely acknowledged. For example, in June 2015 the G7 leaders made a declaration calling for the strengthening of NCPs in the context of providing access to remedy.
The UK NCP has a good reputation particularly since 2008 when its processes were strengthened. A complaint is brought by filling in a form which is available on the NCP’s website. The NCP offers professional mediation in suitable cases and, where mediation fails or is not taken up by the parties, examination of the complaint and determination of whether or not the Guidelines have been breached. There is follow up by the NCP a year after examination of a complaint to assess progress on the issues raised.
However, a recent Amnesty International report charts a decline in the NCP’s performance since 2011. Through an in-depth analysis of all the complaints brought to the NCP in this period, the report examines procedural and substantive concerns about the NCP process from the perspective of complainants.
On the procedural side, concerns include: serious delay, ineffectiveness of the NCP’s steering board, and the need for fundamental reform of the NCP’s review mechanism. On the substantive side one particular concern said to be emblematic of the problems with the NCP’s current approach is that of over-zealous rejection of complaints at the initial assessment. 60% of human rights complaints have been rejected at this point, without investigation or recourse to mediation.
There are three main reasons for the rejection of complaints: firstly the initial assessment test from the Guidelines Implementation Procedures has been adapted by the UK NCP and made more demanding for complainants to meet. NCPs are told that in making an initial assessment of the information available to determine whether the issue raised in a complaint merits further examination, they need to determine whether the issue is bona fide and relevant to the implementation of the Guidelines. There are six criteria to be taken into account including:
- whether the issue (raised in the complaint) is material and substantiated; and
- whether there seems to be a link between the enterprise’s activities and the issue raised.
The aim of the exercise is to prevent frivolous complaints without setting an unreasonable threshold for offering good offices.
The following case illustrates how the test has been made more demanding by the UK NCP. In Privacy International v 6 Telecoms Companies the allegation was that press reports had implicated the companies in enabling access by Government agencies to fibre optic cables and related infrastructure, allowing mass interception and indiscriminate collection of data by the Government. Thus the companies were said to have knowingly contributed to Government violations of the human right to privacy. The NCP merged the two criteria from the Implementation Procedures by asking whether the link between the activities of the company and the issue raised was substantiated (rather than whether there ‘seem[ed] to be a link between the enterprise’s activities and the issue raised’). This demanded a higher threshold of evidence than the Implementation Procedures asks for and in fact a higher evidential standard than that required in the civil courts, where, so long as a prima facie case can be made out, a matter can proceed to trial. The NCP then concluded that the relevant link was not substantiated by the press report cited in the complaint. In reaching this conclusion, the NCP made interesting comments about the question of adequacy of evidence.
The press report, a Guardian article, depended for its source on the contents of a document alleged to have been produced by the security services, which was among the documents released by Edward Snowden. Although the NCP accepted that the authors of the article had seen the document and had reason to trust Mr Snowden who, it noted, had provided other information generally acknowledged to be genuine, it was not satisfied that the link was substantiated in circumstances where the source document was not available to be viewed by either party to the NCP complaint and where none of the telecoms companies was party to the document. Thus the NCP rejected a credible press report, albeit one which it could not verify the facts behind, as not substantiating a link between the enterprises and the issue raised.
This case is illustrative of the second reason for rejection of complaints at initial assessment, namely that the NCP is demanding high standards for adequacy of sources and sufficiency of evidence. The rejection of the press report in the Privacy International case is one example of this but there are others including the refusal of evidence from ‘unnamed sources’ in the WWF v SOCO complaint (seemingly meaning that for a source to be acceptable they must be named) and the requirement in Reprieve v BT that the complainant substantiate evidence of a ‘specific link between the communications service provided by BT and the human rights impacts of drone operations’ (where the allegation was that telecommunications between two US military bases were being used to support drone strikes on Yemen). In the latter case, it would have been near-impossible for the complainant to access information substantiating such a link.
The third reason for rejection of complaints at initial assessment is that the NCP makes it particularly difficult for complainants to link companies to human rights impacts through cause or contribution. The Guidelines contemplate a number of different relationships that an enterprise may have to human rights impacts, that is: whether it is involved in the impact, caused or contributed to it, or is linked to it by a business relationship. The NCP is more ready to find that companies are ‘linked by a business relationship’ to adverse human rights impacts than that they have ‘caused or contributed’ to such impacts. This is important because while the relevant part of the Guidelines tells companies to avoid causing or contributing to adverse human rights impacts and to address such impacts when they occur, that on business relationships is weaker, telling companies to ‘seek ways to prevent or mitigate adverse human rights impacts that are directly linked to their business operations …’ (emphasis added).
The following example illustrates this point: Lawyers for Palestinian Human Rights (LPHR) v G4S was a complaint about the provision of security equipment and services by G4S to the state of Israel for use in military checkpoints at the Separation Barrier and in Israeli prisons. The services provided by G4S are the installation, maintenance and operation of this equipment, which allegedly contributes to breaches of international human rights law, including the detention and imprisonment of children, and their subjection to torture or cruel and degrading treatment.
The NCP rejected at initial assessment the allegation that the company’s equipment was being used to commit human rights violations, or that servicing or maintaining the equipment made a ‘substantial contribution’ to such violations being committed. This excluded from the scope of NCP examination the issue at the heart of the complaint, namely whether providing the equipment and services was consistent with the Guidelines. The NCP did find that LPHR had substantiated an issue with regard to the company being ‘linked by a business relationship’ to adverse human rights impacts, giving rise to weaker obligations to mitigate the adverse impact rather than to avoid it altogether, and to address any existing impacts.
These concerns about initial assessment by the NCP were discussed, along with other concerns raised in the report, at a roundtable event on 9 March chaired by Supreme Court judge Lord Mance. It is hoped that this marks the beginning of a process of reform of the NCP.
Essex Business and Human Rights Project (EBHR) made substantive contributions to the report focusing on the NCP’s grounds for decision-making at the initial assessment stage.
Rachel Chambers is a barrister who has worked in private practice at Cloisters chambers in London for ten years specialising in employment, discrimination, equality and human rights law. Rachel has held research roles at Monash University (Melbourne) on their “Human Rights Responsibilities of Multinational Corporations” project and in a pro bono capacity for Amnesty International Business and Human Rights team. Before being called the Bar, Rachel worked for corporate social responsibility body the International Business Leaders Forum. A graduate of Oxford University, she is currently a doctoral student at the University of Essex and an Essex Business and Human Rights Project Associate.
Disclaimer: The views expressed herein are the author(s) alone.