In a blog to mark Human Rights Day, Sara Chandler looks at what the role of solicitors should be in promoting human rights.
This Saturday, 10 December, is Human Rights Day. In our everyday working lives, solicitors are often the bridge between sometimes incomprehensible statute, judicial procedure, and their clients. When it comes to human rights and our obligation to advise our clients, some argue that we should not take into account interests that lie outside the mandate given by the client. But solicitors have a vital role in promoting the protection of human rights by our business clients. Why does it matter? Because by taking on that role, we can contribute to creating a society which respects human rights for all.
What is required of governments and businesses?
In 2008, John Ruggie, a Harvard academic and UN Special Representative for Business and Human Rights, presented a report for the United Nations (UN), that challenged the complacency of nations and businesses and gave the world a framework with which we, as solicitors and as citizens, could uphold principles which reach into every aspect of our business lives.
That business and human rights framework is called 'Protect, Respect and Remedy'. In June 2011, the UN Human Rights council approved guiding principles, known as the UNGPs, to be used for applying the framework. These principles state that governments must protect their citizens against human rights abuses carried out by commercial corporations. States are required to prevent and investigate violations, punish perpetrators, and compensate victims, by having effective policies, legislation, regulations and justice.
In September 2013, the UK government published its national action plan to implement the UNGPs– it was the first state to do so. Part of the plan requires professional organisations to develop their own plans to adopt due diligence policies to identify, prevent and mitigate human rights risks, and commit to monitoring and evaluating implementation.
What role should solicitors have?
The framework and guidelines have sparked controversy. From the outset, NGOs supporting human rights defenders at risk were critical, because the remedies lacked strength and the framework appeared to do no more than encourage better behaviour. While activists might defend indigenous communities at risk of expulsion from their land for example, they found that there were no effective remedies to support that defence.
There is also a live debate about the role of lawyers in providing legal advice which takes account of human rights impacts. Some argue that a lawyer should not, when giving advice, take into account interests that lie outside the mandate given by the client. The UNGPs do not constitute binding law, so lawyers are not bound to advise their clients on them. It is argued that to advise on the UNGPs is an attempt to distort lawyers’ conduct and lawyers should serve their client's interests and no other, unless advice on such matter is part of a client’s instructions.
But surely it is precisely in the client’s interests that they be advised on the UNGPs? If lawyers fail to do so, there may be unforeseen consequences for the client. A simple example is when a company does not set standards in its supply line and claims to know nothing about slave or child labour in its factories.
In 2014, the International Bar Association published guidance for lawyers which, in addition to requiring that lawyers ensure that their own businesses protect and respect human rights, recommend they advise their clients on their role in complying with the UNGPs. The Federation of European Bars has adopted and published flexible guidelines which aim to assist local bar associations and law societies in training their members for implementation of the guidelines.
The Law Society also believes that lawyers have a role in raising awareness of the UNGPs and other ethical business practices, and thereby improve the respect and protection of human rights by business enterprises and, for those with global interests, compliance with international human rights standards.
An advisory group of solicitors has been working with Law Society staff to develop approaches for the profession itself and also to support solicitors to advise their clients or employers on best practice. The Law Society's Business and Human Rights guidance and a practice note on the Modern Slavery Act 2015 are both published this week.
The majority of corporate solicitors advise small to medium-sized businesses or, as in-house counsel, advise their employers. For these clients, issues like due diligence, confidentiality, retainers and what 'leverage' means in the context of legal provision should, in our opinion, be covered as part of the advice we give as solicitors. The Law Society’s new guidance will help firms identify how to protect and respect human rights and remedy abuses, both in their own businesses and in those we advise.
Read our new guidance on business and human rights
Find out about our events for Human Rights Week
Read our new practice note on the Modern Slavery Act
Find out about the Law Society's work on human rights