Moderating the debate was Des Hudson, Chief Executive of the Law Society, who got proceedings underway by suggesting that although the UNGPs did not create any hard legal obligations, they clearly demonstrate how the debate of the corporate impact on human rights is as he put it ‘hotting up.’ Hudson was unequivocal: lawyers will need to know and show that they are aware of the UNGPs when they advise their clients. He added that lawyers play a crucial role in how clients manage their activities, a theme repeated by all the speakers later in the debate.
Anna Triponel, from Professor Ruggie’s organization SHIFT, was the first speaker. She gave a very brief overview of how the UNGPs had come into being, describing the culmination of 6 years of multi-stakeholder consultations as ‘a momentous achievement.’ Triponel explained how the fundamental purpose of the UNGPs was to operationalise what it means in practice for a company to respect human rights. Many major institutions had already bought into the substance of Professor Ruggie’s work – for example, the OECD’s Guidelines for Multinational Enterprises now mirror the wording of the UNGPs insofar as they relate to human rights. Triponel also described how corporate lawyers from 39 jurisdictions (working on a pro bono basis) had been instrumental in helping Ruggie’s team assemble the text of the UNGPs. In noting that lawyers are the first people to whom companies turn when faced with human rights issues, she reminded the audience that law firms are business enterprises in their own right and have discrete human rights responsibilities under the UNGPs.
This theme was developed by the next speaker, Anthony Crockett from Clifford Chance. He made the point that many solicitors’ firms are also MNEs, advising on international business deals the effect of which may potentially impact the human rights of others. To that end, he advised that large firms should assess the areas where their activities may lead to adverse human rights consequences, and ensure processes are in place to avoid, mitigate or remedy these. In terms of what practical steps law firms should take to implement the UNGPs themselves, Crockett stressed the need for individual lawyers to be aware of their content and to advise their clients accordingly. He raised the sobering point that it was entirely possible that a failure to advise clients on the UNGPs could amount to professional negligence.
Nevertheless, he highlighted client confidentiality as a major challenge for developing understanding of the UNGPs. He felt that there would be limited opportunities to share case studies relating to the steps taken to discharge human rights obligations.
Chris Esdaile of human rights claimant specialist solicitors Leigh Day sought to identify how the UNGPs fit into the existing civil and criminal legal framework. In the most basic sense, they clearly require respect for human rights. In practice this could mean five things for lawyers: (1) Refusing to take on new clients if it was suspected that they violated human rights; (2) Considering carefully the nature of advice to give to clients, particularly if the client’s suggested policies were inconsistent with the law firm’s own human rights policy; (3) Terminating the relationship with the client where it was clear that the client company was violating human rights; (4) Questioning their client’s strategy in (for example) pursuing litigation if this conflicted with the philosophy of the UNGPs; and (5) Assisting in the development of accountability mechanisms under Pillar 3 of the Protect-Respect-Remedy framework. Esdaile ended his presentation by reminding the audience that whilst the international system is relatively young, the business and human rights movement is even younger. His hope was that the UNGPs are a step towards creating binding legal obligations for businesses, and to expand the web of accountability mechanisms for victims. He ended by echoing Christian Aid’s position on bringing to justice the authors of human rights violations: that this should not be left to voluntary mechanisms. The UNGPs are after all more of an encouragement and not an obligation for businesses to respect human rights.
The final speaker was Francis Neate, retired senior solicitor (Slaughter & May) and former President of the International Bar Association. Addressing the point that the UNGPs did not currently have the force of law, he remarked that best practices tended to become law, or at least to affect law, over time. In practice, he did not see any problem for a solicitor to advise his client to comply with the UNGPs: it has always been part of a solicitor’s job to give his client guidance on both legal and non-legal obligations, as the way a company conducts their business has a public relations impact.
In contrast to Chris Esdaile, Neate was rather more sceptical of the suggestion that all law firms would refuse to act for client companies that might be suspected of involvement in adverse human rights impacts. As he put it, ‘everyone wants to act for Shell!’ However, he recognised that public opinion would exert real pressure on companies to comply with the UNGPs, and concluded by remarking on how advice on the Ruggie guidelines clearly represented a new business opportunity for lawyers.
As this was an educated audience, the questions from the floor were informed and relevant: how to incentivise compliance with UNGPs? - should lawyers’ professional organisations set the moral compass regarding the duty to respect the UNGPs? - could a human rights accreditation programme be created so that businesses will be able to demonstrate they have achieved a benchmark standard for UNGPs compliance?
The debate and questions demonstrate that there are challenging issues of practical implementation ahead if the UNGPs are to progress beyond theoretical discussion. However, this well-attended Law Society event demonstrated that John Ruggie’s message is being understood by a wide and well-informed audience. And perhaps that Neate’s suggestion that there are business opportunities for lawyers seeking to advise their clients on how to comply with the UNGPs.