International Learning Lab on Public Procurement and Human Rights First International Workshop Report This is a summary of the First International Workshop of the Learning Lab on Public Procurement and Human Rights (“Learning Lab”), which took place on 19 November 2015 in Palais de Nations, Geneva, Switzerland.1
Opening Session Dr. Claire Methven O’Brien, DIHR, and Mr. Amol Mehra, ICAR, welcomed participants and introduced the aims and objectives of the Learning Lab. They reflected on the significance of procurement within the global economy, at 17% GDP on average across the OECD, rising to 25% in individual countries. On this basis, public procurement had potential to impact positively on human rights by requiring respect for human rights by government suppliers, as well as by “moving markets” for certain products and services towards greater social sustainability where public buyers represent significant market share. Despite this, human rights were still typically neglected in the field of public procurement, and vice versa. This was ironic when many human rights and business movements had been triggered by abuses in private corporations’ global supply chains and, if anything, public purchasers’ obligations to uphold human rights in the procurement context were stronger than those of corporations. From discussions with practitioners, part of the reason for this relative neglect appeared to derive from real and perceived constraints on measures to integrate respect for human rights into public purchasing deriving from procurement law and policy frameworks. At the same time, the United Nations Guiding Principles on Business and Human Rights (UNGPs) highlighted the relevance of human rights norms in the sphere of public purchasing. Seven states had published national action plans on business and human rights (NAPs), most The views expressed in this summary are the sole responsibility of the speakers and participants and to not necessarily reflect the view of meeting organisers or staff. Where this summary refers or reports statements made by speakers every effort has been made to provide a fair representation of their views and opinions. If any extract of this summary is used, the author(s)/speakers and the Learning Lab should be credited, preferably with the date of publication and details of the event. 1
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of these making commitments in the public procurement area. The Learning Lab would capitalise on the momentum behind the UNGPs and NAPs to address current deficits in guidance and capacity on public procurement. The Lab aimed to provide a platform for a multistakeholder network to engage in legal analysis, identification of best practices, capacity building, development of professional education materials for practitioners and, ultimately, advocacy towards law and policy-makers at national and international levels. During the opening panel. Ms. Harriet Berg, Minister Counsellor, Norwegian Mission to the UN and other international organisations in Geneva, noted the UN Human Rights Council’s unanimous endorsement of the UNGPs in 2011, and subsequent reaffirmation of support for the UNGPs by individual governments, through NAPs, as well as by multi-lateral agencies. Norway’s NAP committed its procurement agency to take measures on high-risk products and recommended steps towards verification of contract clauses, while a new procurement law would be tabled in draft form in early 2016. Denmark’s NAP had committed to eliminate an existing threshold for the application of social conditions in construction contracts. The Learning Lab was an innovative approach and had great potential as a tool for collaborative work, dissemination of knowledge, and promotion of good practices, and Ms. Berg concluded by expressing strong support for the initiative. Mr. Dante Pesce, Member of the UN Working Group on the issue of human rights and transnational corporations and other business enterprises (“UNWG”), expressed the UNWG’s ambition to “speed up” and “scale up” implementation of the UNGPs. Greater attention had focused on Pillar II than on Pillar I thus far: for instance, a recent UNWG survey had received responses from only 4 governments globally in relation to questions on policy coherence and the state-business nexus. He further noted the importance, in addressing this gap, of integrating efforts with existing initiatives, such as the Inter-American Network on Government Procurement (“Inter-American Network”) comprising 32 member countries’ public procurement agencies. Where such initiatives focus on sustainability rather than human rights per se, human rights were nonetheless often encompassed by their scope, implicitly or explicitly. In 2006-07, a UNEP green public procurement pilot in Chile had resulted in the amendment of national legislation and policy in order to permit public buyers not to select the cheapest tender, which could also have positive impacts on “social” and human rights factors. There was evidence that where national laws permitted, for example, exclusions from public tenders for a 2-year period for infractions of freedom of association of workers, that such abuses had significantly diminished. The potential of public procurement to promote public policy goals such as greater economic inclusion of minorities and minority-run businesses was also of note. Mr. Baskut Tuncak, UN Special Rapporteur on the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes, drew attention to the implications for human rights of the environmentally sound management and disposal of hazardous substances and wastes. The Special Rapporteur’s mandate extended to the whole product life cycle, from extraction to manufacturing, use, release, and disposal of 2
chemicals. Chemicals have severe and widespread impacts on human rights, and businesses are linked to most toxic chemicals affecting society. The State had the responsibility to control the human rights impacts of hazardous substances and wastes. Public procurement was an important tool in preventing human rights abuses and several examples of positive initiatives could be highlighted. These included the United States Environmental Protection Agency’s launch of the Electronic Product Environmental Tool (EPEAT) for federal procurement agencies, which required agencies to purchase only EPEAT-registered products for listed product categories, and the introduction in Seattle, Washington by an electric utility company of a policy on chemicals that required employees to choose the least hazardous option. A further example was the introduction of measures to reduce the use of mercury in the U.S. states of California and Minnesota. Via video statement, Ms. Urmila Bhoola, the UN Special Rapporteur on contemporary forms of slavery, noted the critical importance of public procurement in the elimination of slavery and associated human rights abuses. She noted that in the United States, President Obama had issued an Executive Order prohibiting contractors, sub-contractors, and their employees from engaging in fraudulent and misleading actions, such as charging employment fees and confiscating identification documents, in order to help prevent forced labour. Such initiatives were to be applauded. However, there remained an urgent need to increase efforts to address contemporary forms of slavery across globalised supply chains, and Ms. Bhoola applauded the Learning Lab for seeking to contribute to this goal.
Roundtable: Integrating human rights into public procurement Part I: Views from public bodies Ms. Charlotte Bernhard, Netherlands Ministry of Social Affairs and Employment, described the “social conditions” introduced into the post-contract award phase of public procurement by the Dutch government. An evaluation of these in 2014 had shown that, while they are known and accepted amongst public purchasers, they are seen as complex to use and their application has been limited in practice as a consequence. The ideal was to align purchasing decisions with the OECD guidelines for Multinational Enterprises (“OECD Guidelines”) and ensure that suppliers would undertake human rights due diligence and provide a due diligence report indicating measures taken in relation to risks they had identified. To achieve this goal would require greater efforts in the areas of training and education, in which regard the Dutch PIANOo initiative had made some progress. In terms of tools to support public purchasers, the Dutch government had also supported the development of an online CSR Risk Check, offering specific risk profiles based on product category and country-of-origin. Ms. Anna Lipkin, Swedish Procurement Agency, noted that while social considerations had been included in Swedish public procurement processes for some years, follow-up monitoring and evaluation of the implementation of contract clauses has not yet been implemented in a 3
comprehensive manner. Exceptionally, since 2007, the Swedish County Councils have established ethical criteria for certain product categories (e.g. health, mobile phones) and pooled their resources to permit follow-up monitoring amongst selected suppliers. Previously, EU legal rules meant that ethical criteria could only apply to contract performance. However, the revised EU Directives of 2014 introduced scope to address ethical criteria also to award criteria, in addition. Ms. Lipkin further indicated requiring suppliers’ compliance with ILO Core Conventions for products manufactured outside Sweden was to become mandatory in the future. Ms. Rachel Phillips Rigby, Bureau of International Labor Affairs, U.S. Department of Labor, expressed her government’s commitment to ensuring human rights protection in public procurement. In the fiscal year 2015, federal procurement reached a value of $375 billion in contracts and nearly $600 billion in grants. A range of actions to promote human rights and social considerations in U.S. federal procurement were being taken. A new Executive Order mandated each federal agency to hire a person with a background in labour rights to help them assess this issue. There were over 40,000 contracting officers in the U.S. system and, understandably, most such personnel did not have previous training on human rights issues in the procurement context. The Executive Order sought to address this knowledge deficit. Other recent Executive Orders applied new minimum wage requirements and prohibited discrimination based on sexual orientation in federal contracting, and introduced requirements that suppliers cascade prohibitions on human trafficking through the supply chain. In addition, a new Executive Order required bidders to disclose past violations of labour laws and permit procurement agencies to exclude relevant bidders on that basis. Regulations implementing this Order were in the process of development. Mr. Andy Davies, London Universities Purchasing Consortium (“LUPC”), explained that LUPC purchased technology on behalf of many institutions in the United Kingdom’s higher education sector, which accounted for annual spending of approximately £1.5billion. A recent report by the Danish NGO Danwatch had documented forced labour of Chinese students in the electronics supply chain of European higher education institutions. This had highlighted the urgent need for such bodies to address such abuses robustly, from a business and reputational perspective: the victims, in this case, were also potential customers of the purchasing organisations. Relevant clauses and a monitoring regime should be incorporated into contracts, ideally so as to secure the collective leverage of educational bodies across the EU. Ms. Valérie Robert, African Development Bank (AfDB), applauded the Learning Lab initiative for bringing relevant actors together, and ensuring the incorporation of different perspectives in seeking to address challenges in this complex area. The AfDB is a regional financial institution focused on middle- and less-developed countries that provides loans and grants to countries to fund development projects. It was important to AfDB to ensure that its fiduciary principles were upheld by borrowers, also in the context of borrowers’ procurement, which should not undermine the overall goal of development. However, Ms. Robert explained, the procurement process belongs to the bank’s borrowers, rather than the AfDB itself. Accordingly, until 4
recently, the bank was involved solely in providing “no objections” at different stages in a borrower’s procurement process. But the AfDB had recently adopted a new procurement policy that introduced a greater focus on risk assessment at the government level, and allowed the use of national procurement systems, based on a risk assessment. In this context, AfDB would take steps to promote the reform of national procurement systems, capacity building and compliance with international conventions, such as those on forced labour and child labour, and social protection. In terms of monitoring and enforcement of standards, the AfBD did not currently monitor contracts, and new models for sanctions where breaches were proven, for instance in the area of reliance on child labour, needed further exploration. By comparison, in the area of anti-corruption, multi-lateral banks operated a common scheme for exclusion of suppliers found to have engaged in fraud. It could be considered whether similar schemes would have value in relation to violations of human rights, and if so, by what mechanism they could be triggered (a confidential complaints system, for instance). In discussion, workshop participants were in agreement regarding the need for new tools and guidance on human rights in the public procurement area, as well as stronger policy commitments from governments, and additional resources to support implementation. Procurement processes can be technical, and often procurement officers’ first concern is to avoid challenges to a tendering process by unsuccessful or potential bidders. In the EU, this had been influenced in particular by the Remedies Directive. Complaints were also frequently made by suppliers about the use by public authorities of exclusion lists in the anti-corruption context on grounds of due process. Such factors had a deterrent or “chilling” effect on practitioners’ willingness to engage in new practices where either the legal framework was unclear or their knowledge was incomplete. As a result, clear direction and support from the top-down was essential. Attention should be further given to supporting procurement personnel in identifying high risk sectors; evaluating human rights considerations, if they are included in selection criteria; and to the additional resources needed to secure effectiveness, through monitoring and enforcement. Similarities and differences between public procurement and private supply chain management were also considered. Experience-sharing between public and private procurement personnel might avert repetition of mistakes or “re-inventing the wheel” on some issues. On the other hand, public procurers were more restricted than private buyers in certain respects. For instance, many governments would arguably be precluded from hiring consultants to engage in labour audits of production sites abroad, due to issues of jurisdiction and diplomacy, in addition to budget constraints. On another front, public procurers could benefit, it was suggested, from strengthening links with procurement academics and human rights experts and NGOs. This might add value in terms of developing understanding of questions of coherence between human rights requirements on public actors under domestic law, the UNGPs and OECD Guidelines for MNEs, on one hand, and procurement frameworks, such as the EU Directives and UNCITRAL, as well as those of multi-lateral organisations and international financial institutions, on the other. 5
Evaluation of the effectiveness of existing sanctions regimes, and their implications for the design of any new such measures, would also benefit from such dialogue and collaboration. Part II. Views from stakeholders In his presentation Mr. John Hawkins, Engineers Against Poverty, described the COST Initiative on infrastructure and construction procurement. Human rights abuses such as child labour, death and injury resulting from breaches of health and safety regimes, non-payment or latepayment of wages, and recruitment practices resulting in forced labour were endemic in the construction sector in many jurisdictions. The separation of design and procurement phases in infrastructure often contributed to this situation, given that this prolonged construction processes and weakened accountability relations between those commissioning, designing and delivering projects, and the affected rights-holders. Risk and human rights impact assessment and community consultations were typically weak or absent, and workers often struggled to identify which business along a chain of contracts should be approached with complaints. However, companies were becoming increasingly sensitive to the reputational costs of association with such abuses and practical solutions to such problems were available, if not yet widely used. These included establishing arrangements for direct payments to subcontractors by project commissioners or direct electronic payments to workers; the use of blacklisting for companies found to be responsible for abuses on a repeat basis; and requirements on companies to disclose human rights impacts via, for instance, publication of accident and fatality rates. The perspective of a national human rights institution was provided by Mr. Darren Dick of the Australian Human Rights Commission (AHRC). In terms of the national framework, though there is no explicit general link between procurement and human rights in Australian legislation, the government is required to purchase a certain percentage of goods, services and works from SMEs owned by indigenous people as a protected group. In addition, the government intended to enact new legislation similar in focus to the UK Modern Slavery Act. Such measures would not, however, address abuses such as those occurring in the context of private delivery of public services, for example, the management of refugee detention facilities by private sector contractors, which AHRC had highlighted in recent work. In addition, AHRC was collaborating with partners such as the Australian Global Compact Network on a study of human rights and supply chain issues in Australia’s business sector, including amongst small and medium-sized enterprises. This study, which would be published shortly, had found that companies were increasingly concerned to address human rights issues on the grounds of brand recognition and employee expectations, rather than due to regulatory requirements or queries from customers or shareholders. Ms. Irina Uzun, UNEP, elaborated on the 10YFP Sustainable Public Procurement Programme (SPP). The goal of this programme is to promote global implementation of SPP through increased cooperation between key stakeholders and a better understanding of the potential benefits and impacts of sustainable public procurement. The 10YFP aims to achieve this 6
objective by improving knowledge on SPP and its effectiveness as a tool to promote greener economies and sustainable development, and support for implementation of SPP on the ground through increased collaboration and improved coordination between SPP stakeholders. Ms. Uzun highlighted two studies resulting from the SPP Programme to date, the report “Sustainable Public Procurement: a Global Review” published in 2013, and “Sustainability of Supply Chains and Sustainable Public Procurement” published in 2014. As regards the former, while UNEP’s last global survey had addressed human rights to a very limited extent, UNEP was pleased that, following engagement with the Learning Lab, the 2016 survey would incorporate questions to assess procurers’ awareness and engagement with human rights issues. The latter study, according to Ms. Uzun, explores how SPP can be a tool to promote sustainability in supply chains and identifies the present potential and limitations of SPP. Ms. Sarah Labowitz, the NYU Stern Center for Business and Human Rights, shared the results of a recent study on the apparel supply chain in Bangladesh. This concluded that the apparel supply chain comprised 7ooo factories in Bangladesh, much more than the number of factories recognized by the Bangladesh Garment Manufacturers Association. The study found that many of the apparel factories in Bangladesh were informal subcontractors (i.e. factories that are not registered with the government, foreign brands, or either of the two national apparel manufacturers trade associations). Workers at these informal subcontractor factories were particularly vulnerable due to the fact that they were invisible to regulators and their employers functioned on slim margins and thus did not invest in basic safety measures. The study also found that only 27 per cent of apparel factories in Bangladesh were covered by either the Bangladesh Accord for Fire and Building Safety or the Alliance for Bangladesh Worker Safety. Ms. Labowitz noted that while transparency in supply chains is a useful measure to ensure accountability, there are complexities involved as the full extent of the supply chain is often opaque due to subcontracting and other practices. Overall, the study highlights that much more work needs to be done to understand these complexities and to map the export garment sector in Bangladesh. Ms. Labowitz also discussed a model of reform premised around “shared responsibilities” where brands, governments, and civil society work together to solve the complex challenges involved in addressing harms in supply chains. This model of reform focuses on creating industry-wide approaches (as opposed to company specific actions), making the human rights issues in the entire supply chain of an industry fully visible, assessing costs and commitments with a focus on the most serious human rights risks, and ensuring that there is an equitable division of both financial and regulatory responsibility among various stakeholders. In discussion, participants acknowledged tensions that can arise where the public sector is simultaneously a client and also a regulator, particularly where the subject matter is sensitive, for example, concerning the use of private security. On the other hand, dialogue and collaboration with human rights organisations could offer important support for public buyers. In one country, for example, regular multi-stakeholder meetings were held where public authorities, such as local government and police authorities, could table specific tenders for 7
discussion, to help identify human rights issues arising, and appropriate measures to address them, with support from national human rights bodies. A further issue raised was how to align public procurement in developing countries simultaneously with domestic and international policy commitments connected to human rights, as well as in the areas of poverty reduction and increasing the access of SMEs to public contracts. The need for measures to increase transparency of public procurement, especially in developing country settings, was also highlighted: greater transparency, it was suggested, was crucial to eliminating corruption and procurement practices, such as obligations to purchase based on lowest price that tended to undermine human rights. While “social” considerations might entail price increases in the short run, in the longer term they would bring public benefits and hence costs savings.
Mapping Survey on public procurement and human rights Dr. Marta Andrecka, Aarhus University and Consultant to the Learning Lab, provided an overview of key findings included in the Background Paper that had been developed by DIHR, ICAR, Nottingham and Georgetown Universities and circulated to workshop participants, to provide context for their discussion. The Background Paper comprised two main sections. The first section identified existing initiatives relevant to public procurement and human rights, with the aim of allowing participants to consider how the Lab should relate to such initiatives, to capture synergies and avoid duplications. Twenty relevant initiatives were identified that focused on “sustainable procurement” in general, six addressing the health sector, three addressing the construction sector, one on private security, three on apparel, three on electronics, two addressing food/agriculture/timber, and six were classified as covering miscellaneous sectors. The second section of the Background Paper comprised the results of a multi-jurisdictional survey on public procurement and human rights conducted by the Learning Lab in 2015. This survey was based on a questionnaire that had been distributed to organisations across sixteen jurisdictions (Australia, Czech Republic, Denmark, EU, Finland, Germany, Republic of Ireland, Italy, Netherlands, New Zealand, Northern Ireland, Norway, Poland, Scotland, South Africa, Sweden and Switzerland). Respondents to the survey comprised a mixture of NHRIs, CSOs, procurement agencies, academic institutions and individual experts. Questions in the survey were divided into four sections: Section 1 addressed the general legal framework pertaining to public procurement and human rights applicable to the jurisdiction in question Section 2 inquired into policies and guidance relevant to human rights issues Section 3 sought information on initiatives in each jurisdiction addressing public procurement and human rights, and Section 4 concluded by seeking information about relevant developments in courts, legislatures, and the activities of other actors considering human rights in procurement. 8
On the basis of the information received, the Background Paper drew the following preliminary conclusions. Firstly, lack of respect for human rights in the context of public procurement is an area of emerging risk for central and local government bodies. Secondly, there is a need for greater legal clarity and policy coherence, as public authorities currently have to navigate “mixed messages” originating from different arms of government concerning integration of sustainability and social considerations into their buying practices. Thirdly, public procurement laws are fragmented in most jurisdictions, with a lack of clear oversight by any single body, creating challenges in terms of coherence and implementation of measures to promote human rights. Fourthly, the issue of access to remedy for victims of human rights abuses in government supply chains had been neglected, and needed careful consideration. Finally, the Background Paper suggested, sustainable procurement initiatives needed to integrate human rights considerations in a systematic way and in line with governments’ and businesses’ human rights commitments as highlighted in the UN Guiding Principles. The presentation was followed by break-out group discussions that focused on identifying opportunities and challenges to increase respect for human rights in public purchasing. Amongst opportunities, participants identified: new scope for human rights measures under the 2014 EU public procurement Directives; increasing leverage by collaboration amongst public buyers; identification and dissemination of best practices, including through the use of web-platforms; strengthening consensus amongst public buyers on the definition of “social” criteria; connecting the social dimension of public procurement to government commitments in the areas of sustainable trade and development assistance; learning from, and not replicating, the weaknesses of “social audit” in the context of private sector supply chain management; and connecting public procurement to new transparency legislation. Amongst challenges identified during discussion were: restrictions on the use of certification imposed under some procurement law regimes; the need to extend understandings of human rights beyond core labour rights in the procurement context; the difficulty for small and medium enterprises of influencing change down their supply chain, given their weak leverage in many instances; lack of know-how on the development of contract clauses that would protect human rights but not fall afoul of other legal requirements; in general, weak knowledge and capacity by procurement personnel around sustainability issues; lack of resources on the part of procurement agencies to engage in capacity-building measures. Further challenges included resources needed for verification of information delivered by suppliers on their social performance, and fear of litigation or other challenge by procurement offers as a result of ambiguity and negative precedents. Innovations in procurement and human rights – good practice in goods The next panels focused on innovations in public procurement and human rights in four different sectors of high priority for most public purchasers: apparel, electronics, healthcare and security.
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Regarding the apparel sector, presentations were given by Professor Bob Stumberg, Harrison Institute at Georgetown University Law Center, and Ms. Judy Gearhart, International Labor Rights Forum. A first point emerging was the importance of purchasing at the level of local government: in the US, cities and states purchase almost twice, by value, as much as the Federal government. If local government buyers could be encouraged to aggregate their spending power, their leverage would be very substantial. Secondly, the role of transparency requirements was again emphasised. Suppliers should be required to know and disclose their supply chains, which could be done without comprising competitiveness. Experience also showed that voluntary and confidential monitoring restricts information flow and limits the role of workers and trade unions in the solution. Thirdly, it was vital that policies and tools focused on public purchasing are combined with measures to empower workers so they can effectively monitor workplace conditions and claim human rights themselves. Confidential monitoring by social auditors in corporate supply chains, by contrast, marginalised workers and trade unions and restricted information flow in ways that had been proven to substantially undermine its effectiveness. Thus supply chain initiatives intended to ensure workers’ rights to organize trade unions and bargain collectively effectively undermine their own message by avoiding any engagement with trade unions in practice. Turning to the electronics sector, Dr. Olga Martin-Ortega, Greenwich University, and Jim Cranshaw, Electronics Watch, described some of the specific challenges in this sector, owing to the complexity and speed of the production process, as well as the reliance on very large numbers of component parts and corresponding involvement of high numbers of companies and workers. In addition, many costs were fixed, which increased pressure on suppliers to compete on the basis of labour costs and, as a consequence, working conditions. On the other hand, some electronics brands were exposed to end consumers, and evidence could be seen of the effectiveness of increasing consumer awareness of supply chain abuses in changing attitudes of such companies. The public sector accounts for a substantial share of ICT purchasing: for instance, in the US, government spends approximately $11 billion annually on ICT, and the manufacturer Dell had reported that 26% of global sales were to public buyers. Consequently, if they engaged in joint procurement measures, public buyers would hold a very strong position in the market, with potential to influence supplier practices. Electronics Watch, it was reported, is a multi-stakeholder initiative involving public sector organizations, trade unions, academics, and NGOs. It aims to support public buyers in achieving respect for labour rights in their electronics purchasing. It provided its members with access, amongst others, to model contract clauses addressing labour standards and due diligence requirements, and a Code which purchasers should require suppliers, and their suppliers, to adhere to. In the experience of Electronics Watch members, even where ILO Core Conventions were in place in public contracts, they were typically not verified and so at risk of serving as a mere “tick box exercise.� Given resource limitations of individual public authorities, it was critical that they collaborate, pool funds, and share the costs of data collection and monitoring, if this weakness was to be addressed. 10
Innovations in procurement and human rights – good practice in services The third sector discussed was healthcare, with presentations from Elizabeth Bowles, UK Equality and Human Rights Commission (“EHRC”), and Theo Jaekel, Swedwatch. It was reported that the UK’s Human Rights Act of 1998 (HRA 1998) had brought most Articles of the European Convention on Human Rights (ECHR) into effect in domestic law. Consequently, all UK public authorities were now required to ensure that they acted compatibly with the civil and political rights guaranteed by the ECHR, insofar as their powers and duties allowed. In addition, the HRA 1998 established a duty to act compatibly with ECHR rights not only on public authorities, but also other organisations, including private and voluntary organisations, when carrying out functions of a public nature. This had resulted in uncertainty, following a number of court decisions, over whether the delivery by private companies of public services on behalf of government bodies, such as the provision of residential care for the elderly or persons with disabilities, triggered their responsibility and liability under HRA 1998 – leaving the users of such services, who were often vulnerable persons at risk of neglect or abuse, in an unsatisfactory position. Subsequently, the British Parliament had enacted new provisions in the Health and Social Care Act 2012 to clarify that providers of publicly-funded care are bound by the HRA, irrespective of whether services are delivered to people in their own homes or in residential care homes. Although this had cured the ambiguity in relation to services of this kind, overall, the case highlighted the need for close attention to human rights by public authorities in the context of “contracting out.” Ms. Bowles added that the EHRC had developed guidance for home-care providers in 2013. This was primarily aimed at local authority elected members and local authority staff involved in the commissioning and procurement of home care. The guidance emphasised five key messages on why local authorities should commission home care compatibly with the HRA: it is required as a matter of legal compliance; it is practical and ensures accountability; it raises quality and efficiency; it supports other duties and initiatives; and it promotes shared values. Mr. Jaekel reported that Swedwatch had started its work on public procurement in the health sector in 2006. Its main focus was on the procurement by the Swedish County Councils of surgical instruments and garments, produced in India and Bangladesh. Various abuses had been identified by Swedwatch in supply chains in these sectors, including union-busting, failure to pay minimum wages, and child labour. Swedwatch research had demonstrated, however, that the introduction by Swedish Council Councils of measures such as risk assessments and supplier monitoring had achieved significant improvements in working conditions in the factories and workshops they were applied to. This also demonstrated the importance of pooling of resources by public authorities to increase leverage and improve effectiveness of codes and commitments through the implementation of monitoring. However, a persisting challenge was that public buyers, like private ones, often demanded improvements in working conditions while refusing to accept higher prices, which left some abuses, such as failure to pay living wage, out of reach. 11
The concluding presentations of the session, by Ms. Nelleke van Amstel, DCAF and Ms. Meg Roggensack, ICAR, focused on the security sector. It was highlighted that, owing to the nature of such services, they entail a high risk of serious human rights abuses, so that measures taken by purchasers and providers of security services to prevent and mitigate the risk of such abuses, including through due diligence, were of critical importance. Efforts by governments and security companies in this area, however, disclosed various promising frameworks to address these concerns. A number of industry standards had been established with multistakeholder backing, such as the Voluntary Principles on Security and Human Rights, the Montreux document and the International Code of Conduct for Private Security providers. The speakers discussed Swiss law and U.S. State Department procurement policy requiring membership in ICoCA as a condition of procurement, as a means of improving overall due diligence and mitigation of human rights risk in private security services. The speakers urged other governments to follow this lead, and noted that other sectors could consider a similar strategy to enhance procurement management and oversight. On the other hand, the lack of transparency in the sector was a challenge, with both governments and security providers failing to disclose information that would allow public scrutiny of measures taken to promote respect for human rights. Lessons Learned In conclusion, participants discussed “lessons learned” at the workshop. Firstly, raising awareness, increasing knowledge and building capacity of procurement officers on human rights issues was required as a primary task of procuring agencies. Procurement officers could be supported by tools to help them assess risks, establish evaluation criteria relating to human rights in relation to suppliers and specific bids, and suggest concrete steps to take in response to any risks identified. Government endorsement of such tools would be useful in raising their profile and influence on practitioners: procurers needed to feel “safe” that measures promoting respect for human rights would not attract negative consequences before they would start to implement them. A further measure to consider was the appointment of personnel with expertise in human rights to provide advice to procurement officers for contracts above a high value threshold, or for supply of certain goods or services identified as a high risk category. Secondly, governments needed to raise their level of engagement in the area of public procurement and human rights if their commitments to the UNGPs and other instruments were to work in practice. Governments should support efforts to identify measures and approaches that proved to be effective and those that were not. They also needed to provide greater clarity on legal requirements that relate to potential challenges to sustainable procurement endeavours. Procurers needed easily accessible platforms to facilitate access to information and tools on human rights, and government should have a role in providing the resources necessary to establish these. Finally, a more proactive approach was needed to address the 12
current lack of policy coherence: officers responsible for sustainability and human rights should engage directly with those responsible for procurement policy and its implementation. They should also support mainstreaming of human rights into sustainable procurement policies and initiatives at international and national levels.
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