#2 - Claire Methven O'Brien (Danish Institute of Human Rights)

How can public procurement ensure that Human Rights are complied with?

Dr. Claire Methven O’Brien from the Danish Institute for Human Rights is the second interviewee of the PPP. Claire is an expert in human rights law, particularly human rights and business. Claire has a long experience both across Europe, and in developing countries, dealing with multi-national enterprises, governmental and human rights bodies, and civil society. She is also a Research Fellow at the University of Groningen Department of International Law and a member of the International Law Association Working Group on Business and Human Rights.

The topic of our talk today was the intersection of human rights and public procurement and how the first should influence the second. Links for papers/research discussed in the podcast available after the transcript.

 

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Transcript

It’s great to have you here with us today and I would like to start the conversation by getting you to talk about your big idea or argument in a nutshell.

Thank you. Well human rights are of course a big idea, you might say the big idea of the 20th century and what we have seen over the course of the 20th century and…21st is the gradual extension of the application of human rights, not just to the state but now also increasingly with a view to securing the accountability of non-state actors and in particular the private sector to human rights standards. Of course globalisation and the rise of multinational enterprises, and increasing liberalisation, which has made that possible, have brought with it changes in the nature of production and the way in which production affects human individuals and communities.

Unfortunately, a lot of the time those impacts have not all been positive, and what has been very well publicised in recent decades are negative environmental effects of multinational activity but also negative impacts on labour conditions, working conditions, particularly in developing countries, in a variety of ways. The United Nations have sought for quite a number of years to generate standards which would be able to express the application of human rights norms to the private sector. Eventually in 2011, the [UN] Human Rights Council endorsed a set of Guiding Principles on Business and Human Rights which affirm that states have got a responsibility to regulate the private sector in order that negative impacts on human rights are avoided, that private companies themselves have got a responsibility to respect human rights, and that also thereby, whoever’s a victim of human rights impacts or abuses perpetrated by or associated with businesses have a right to mediation and remedy for those.

And a part of those Guiding Principles focuses on public procurement. Guiding Principles 5 and 6, in particular, highlight the need for the state, as part of its general duty of protecting and promoting human rights, to make sure that, in relation to the delivery of public services by the private sector human rights are protected, and also in any commercial transactions that the state engages in. And this obviously entails the extension to the private sector [with whom the government contracts], to ensure that human rights are also protected…[which] you could expect… in line with the general push towards ensuring that private companies in their global supply chains ensure that human rights are protected.

So we can see if you like that the time appears to have come for public procurement laws and regulations - which have historically often been perceived, and sometimes in practice have also been applied, to restrict the state’s possibilities for introducing terms which are designed to protect human rights, we’ve seen that you know in terms of the general issue of sustainability in public procurement and also initiatives around fairer trade - the time has come for that interpretation of public procurement law to be scrutinised to a much greater extent than has been true previously, and to be aligned now with the requirements of human rights norms, [as]…fundamental norms which ought to define the rule of law for any state…[and which in] many countries are also part of the constitutional order.

I would start with the end, as you said correctly, in many states human rights are a part of the constitutional order but a part of the constitutional order up to a certain extent. Now the interesting point, as you mentioned literally at the start, is that there has been a gradual expansion and extension of the concept of human rights over the last 50 or 70 years and one of the queries I have is how can we match for example the importance or relevance, let’s say, of the first generation kind of human rights, right to life, right to privacy, rights to private property and so on, which more recently the evolutions of the concept of human rights because I mean public procurement law has nothing to say that you cannot respect human life for example in terms of, or the conception as a human right, but what is now sometimes conceived as human rights on a more modern or contemporaneous interpretation those ideas.

I suppose in answer to that I would say that there is less and less support within human rights law and human rights circles for the view according to which you can distinguish “waves” or “generations” of human rights which have different weight, which have a different place in the normative order…[H]istorically, according to peoples’ political preferences, civil and political or economic and social rights were emphasised, and there are still jurisdictions in which distinctions are made between those and they are given effect to in different ways through constitutional law.

On the other hand, in newer constitutions you can see, and in some countries with older constitutions in different ways, you can see the significance of that distinction between civil, political, economic, social and of course including labour rights in the economic and social, that distinction beginning to be dissolved.  And, you know, you can look towards for instance, I mean not to digress too much, but you can see in the area of human rights impact assessment which is a discipline being increasingly applied to evaluate laws and policies at the regional level in the EU, in national jurisdictions, those kinds of exercises will include economic and social along with civil and political rights.  

In the area of human rights based budgeting or participatory budgeting exercises… to focus in on those, will be all human rights and certainly in the jurisprudence of bodies at the UN and… the general output of the UN human rights system you will see, increasingly, less distinction between those categories that you’ve mentioned, so that it’s a more holistic approach that is being applied and adopted by I think most bodies today so it becomes harder to maintain in the public procurement context that as, you know, a distinction.

I think that is the crux of the problem, when you say that there is a more modern holistic approach to the interpretation of the, or the concept of should constitute human rights and that we should not distinguish between different kinds of human rights or waves the fact is, the examples that you’ve given other than the ones that are received directly in the constitutions, for example, in the European Charter of Human Rights, all those other human rights are based in soft law. So the example that you use at the start, for example, of the guiding principles that were put out by the Human Rights Council of the UN they constitute an example of soft law.

That’s correct but that’s another binary, the hard and soft law distinction, of course is a binary one which quite a lot of scholars, political scientists, have questioned the utility of, in understanding what actually has the effect of producing changes in society. The Guiding Principles [on Business and Human Rights], albeit technically a soft law standard, have been remarkable, in a short space of time, in what they have achieved, in terms of triggering action at the international level but also at the national level.  

So the European Commission, in its 2011 Communication on Corporate Social Responsibility called on EU Member States to develop national action plans on business and human rights with reference to the UN Guiding Principles [on Business and Human Rights], and subsequently already a number of Member States have produced national action plans on business and human rights, all of which, I should say, [of those] that have been published mention public procurement and the need at the national level to either undertake reviews of the extent to which existing measures ensure respect for human rights in the course of public contracting or similar measures.

At the international level, the OECD has aligned its Guidelines for Multinational Enterprises with the UN Guiding Principles [on Business and Human Rights] so that the OECD Guidelines now include reference to human rights and when, at the national level again, National Contact Points under the OECD Guidelines receive complaints about the conduct of businesses based in the OECD abroad, again those National Contact Points are now called on to determine those complaints or to facilitate the mediation of those kinds of complaints with reference to the UN Guiding Principles essentially.  Just in terms of the practices that we see evolving and emerging amongst public authorities and central government, you can see that notwithstanding their status as a soft law standard, the Guiding Principles have actually had a lot of significant effects already.

Going back to the fact that EU Commission put out a CSR policy or communication document in 2011 and some member states have created national action plans, again we are in the realm of soft law. It is not a decision by the European Commission, nor a Regulation, or a Directive and certainly not a part of the Treaties, so again, this is an idea that tries to help to nudge member states in a certain direction but the litmus test here is that if Member States do not comply with that communication, nothing will happen to them.

Well, I completely agree with you on that, the litmus test is of course whether at national level, or indeed at the regional of the EU, the policy commitments made to human rights are internalised, through the adoption of specific laws on whatever subject which are aligned to the ambitions and commitments contained in human right standards.  And in that respect, certainly the recent procurement Directives have been disappointing. While the Commission maintains that the new Directives provide ample scope to allow public authorities in the EU to undertake procurement practice which does comply with the [UN] Guiding Principles, my assessment is that, in technical terms, the changes that have been made are narrow, they’re narrow in as much as they refer actually only to Core Labour Standards… so the rights protected by the ILO’s Core Labour Standards, forced labour, child labour, discrimination and some trade union rights, but in practical terms the [European] Commission has not done anything to suggest they’re going to follow through in promoting awareness of the commitments of the EU to the Guiding Principles and to ensuring respect for human rights… in procurement, in relation to the transposition of the Directives or really in any way, [such as] undertaking activities to support public authorities within EU member states to understand what the significance of human rights might be in the procurement context.

And there’s a lot of things that the Commission or public authorities, procurement authorities at the national level, can do to help purchasing authorities begin to get on the human rights train if you like or to begin that journey, because none of us on the human rights side who’ve been looking at public procurement would say that it’s a simple or straightforward matter to advance human rights in procurement while also, at the same time, respecting the other legal obligations on public authorities flowing from public procurement law and in other areas. It’s not going to be easy because, as I said at the beginning, historically there has been a both real and perceived conflict between public authorities obligations to ensure that they take action to ensure that procurement respects human rights, that companies they contract with respect human rights while meeting their other obligations.

Could you provide us an example of how member states and contracting authorities should work together to develop more human rights friendly or human rights compliance policies in procurement.

Maybe I can start by illustrating a couple [of examples], since we haven’t touched on it already, just some of the human rights issues that are arising in the context of public procurement in case [your listeners] are not familiar with those.  Just to give a few examples, focusing on the more egregious examples, these are in fact some cases… taken from a report by the International Corporate Accountability Round Table, ICAR, on public procurement and human rights called ‘Turning a Blind Eye, Respecting Human Rights in Government Purchasing’, which of course is [available to listeners] on the internet:

The insignia, for instance, of US military services were found in the rubble of a factory fire that recently killed workers in Bangladesh. The Danish government has also been reported to order military uniforms from an Export Processing Zone, in fact also in Bangladesh, where trade unions are prohibited. Plastic gloves, procured by the public…healthcare sector in Denmark have also been documented to contain rubber from plantations which rely on forced labour, and a US government contractor transported Nepalese construction workers from their home country into Iraq, which was at that time a combat zone, and while on route their convey was attacked by insurgents who executed them and posted their deaths on the internet.  

So you can see…just in relation to procurement of goods, there is quite a wide range of serious human rights abuses that can be associated with procurement. And also in the area of public services, particularly I have familiarity with the UK, there have been various reports produced by the National Human Rights Institutions in the UK, by the Parliamentary Human Rights Committee, and of course by NGOs, on the lack of respect for human rights and dignity in the private delivery of health and social care for the elderly or other people, persons with disabilities or other people who need personalised care.

So in that context there’s all kinds of ways in which elderly, vulnerable people who are dependent on the state taking due action to look after them and ensure their human rights are respected have actually been totally let down and either…the framework terms of contracts, or the monitoring provided for, or indeed the price paid for those kinds of services has been inadequate to ensure that an appropriate standard of care is delivered.

This final example is more of an issue not with the procurement processing itself but the actual outcome, the actual service that is being procured that does not respect the human rights of the users or beneficiaries.

It’s not always clear cut that that’s the case, and in fact the Scottish Human Rights Commission collaborated in recent years with the Scottish government in relation to the review of the whole contracting process in relation to those kinds of services that we’ve just been discussing, to look at in what ways the process of commissioning of care can be changed in order that human rights are integrated right from the beginning of that process. So we don’t want to be in a position where we’re trying to close the door after the horse has bolted, it’s really a question of ensuring right “from the get go”, from the design of the terms of tenders, of framework contracts, that human rights are being adequately considered.

Similarly in Northern Ireland, the Human Rights Commission there is working…with public procurement authorities to look at those kinds of issues.

To go back to your earlier question, how can we really start to work together to address the problems that have been identified, there are some very encouraging examples of collaboration and mutual support between public procurement authorities and bodies with human rights expertise, and those are things that we certainly hope to build on in the Public Procurement and Human Rights Learning Laboratory that we… aim to launch later this year, that would involve ourselves as National Human Rights Institutions, a number of us, but also public procurement authorities from a number of different countries in the Scandinavian region and perhaps in the UK and elsewhere. The aim of that laboratory will be to work together to map out in what ways public procurement law and human rights law can be mutually supportive, in what ways they perhaps are perceived to conflict and then, within the room for manoeuvre that the legal framework permits, to identify what more can be done at each of the different stages of the procurement process to effectively integrate consideration of human rights.

Going back to your example, I think you’ve touched on something that is important which is it’s important to consider what happens at every stage of the procurement procedure or the procurement process and that includes also the performance and monitoring contract performance has been one of the biggest problems in public procurement for many, many years. Usually what tends to happen is you have a team that is responsible to get the contract together and you may have the best team in the world and they may design the best contract for you but then when it comes through to be implemented it’s passed onto someone else and it’s usually at the implementation stage that the problems arise irrespectively of the quality of the actual original contract so I wouldn’t be surprised if actually the easiest fruits to pick, the low hanging fruit, would be actually be at the performance level because that is very much allowed where procurement needs to improve its game, it’s no longer the question of, only of the procedure it’s much more so the question of the actual contract performance.

Yes, and I think I’m not in a position now to make, you know, an evaluation of the relative contribution that monitoring might make as compared with interventions at earlier stages in the procurement process. I am sure there is a lot in what you say and certainly from my experience of working with the private sector in supply chain management, monitoring is usually an area which requires greater resources than have previously been devoted to it.

I fully agree with you.

And resources, you know, are really the key issue here. Of course it’s easy to make commitments to ethical or human rights standards as a purchaser, and it’s relatively easy to pass those on through a contract to your suppliers, and it’s relatively easy and cost free to do those things. But it does cost money, either to yourself or to the supplier to take steps to ensure that the delivery of the contract is audited and monitored, and that is a significant obstacle for most companies, as it will be for public purchasers, you know finding the resources to pay for that monitoring operation will not an easy thing to do. So there again I think, well there’s possibly scope for the public sector to learn from some of the collaborative endeavours of the private sector in relation to supply chain audit and monitoring, the sharing of audit reports and platforms which have been developed to allow them to share information. Of course then you have the risk in some cases of running into anti-competitive practices, which again goes to show the potential for contradictions that exists in relation to measures to support human rights and what public procurement and fair competition require.

Well the time is almost up and I would like to finish it off with two good questions, what are you going to try to achieve with the Learning Laboratory project that you were talking about?

Our aim with the Learning Laboratory project is to generate knowledge essentially for public procurement agencies and other public purchasers on what their room for manoeuvre is in terms of taking greater steps to incorporate respect for human rights in the procurement process and to disseminate that knowledge in the form of notes on good practice, case notes on experiences of pilot projects that have been run by our participants and to disseminate that as widely as possible. So we really hope it will be the beginning of a much longer and wider conversation amongst public procurement agencies and of course human rights stakeholders on what creative and innovative steps can be taken to combat some of the challenges and contradictions we’ve been discussing.

Final question, if anyone wants to get in touch with you, where should they head?

They can reach me by email on COB @ humanrights dot dk and we’ll be very happy to hear from any agencies that would be interested in taking part in the lab.

Okay, brilliant, thank you very much Claire.

Thank you Pedro.

You can find me at my blog, telles.eu or on Twitter where I use two handles, one at @Detig for general discussion and also @publicprocure for public procurement related topics. Thank you very much and see you next time.

Links

Claire's essential services paper on SSRN:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591898

Claire's paper on corporate responsibility to respect human rights on SSRN:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2591226

Northern Ireland Human Rights Commission PP HR report:

http://www.nihrc.org/uploads/publications/NIHRC_Public_Procurement_and_Human_Rights.pdf

Northern Ireland Human Rights Commission report on Nursing Homes:

http://www.nihrc.org/documents/research-and-investigations/older-people/in-defence-of-dignity-investigation-report-March-2012.pdf

ICAR report on US PP and human rights:

http://icar.ngo/wp-content/uploads/2014/09/Procurement-Report-FINAL.pdf

Scottish Government guidance on procurement of care and support services:

http://cdn.basw.co.uk/upload/basw_85955-5.pdf