Assessing Legislation on Human Rights in Supply Chains: Varied Designs but Limited Compliance by NYU Stern Center for Business and Human Rights

Research Brief Assessing Legislation on Human Rights in Supply Chains: Varied Designs but Limited Compliance

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

INTRODUCTION

Combating human rights and labor abuses in global supply chains is one of the critical corporate sustainability challenges of our time. A broad consensus exists that prevailing private regulatory regimes involving voluntary codes of conduct, corporate social responsibility programs, and auditing regimes are often ineffective or insufficient. This has been underscored by recent estimates by the International Labour Organisation (ILO) and the Walk Free Foundation pointing to the prevalence of modern slavery in the supply chains of widely used products. The last decade has seen greater discussion, and in some cases, enactment, of legislation aimed at addressing these concerns. The broad intent of these laws is to increase scrutiny of corporate responses to human rights concerns in supply chains and hold firms responsible for any abuses. Examples focused on specific human rights risks include the California Transparency Act

(2012),2 the UK and Australian Modern Slavery Acts (2015, 2018), and the proposed Dutch Child Labor Due Diligence Bill (2017),6 which target modern slavery and child labour specifically. Examples with a broader scope include the French Duty of Vigilance Law (2017), the impending Swiss Due Diligence Law (2018), and the proposed German Due Diligence Law (2019). While these all aim to redress current regulatory failings in global supply chains, they vary in important ways. This research brief highlights differences in the design of four recently enacted laws. It also looks at how these differences have affected firm compliance and identifies opportunities for further research. The brief will focus on four design features: the number and type of firms subject to the legislation, the compliance mechanism adopted, the reporting requirements, and the definition of supply chains.

COMPARING RECENT SUPPLY CHAIN DISCLOSURE LEGISLATION The table below compares the designs of the California Transparency in Supply Chains Act, the UK and Australian Modern Slavery Acts, , and the French Duty of Vigilance Law. Table 1 11 12 13 14 15 16 : Supply chain disclosure legislation: California, UK, Australia, France

Coverage

Californian Act (2012)

UK Act (2015)

Australian Act (2018)

Retail sellers and manufacturers operating in California with annual receipts that exceed $100 million

Entities with revenue over 36 million pounds

Entities with revenue over AUSD 100 million

(Approximately 12,000 firms18)

(Approximately 3,000 firms )

Market pressure: Firms that comply will enjoy reputational benefits, while those that do not will suffer reputational damage.

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

(Approximately 2,600 firms17)

Compliance Mechanism

Market pressure: Firms that comply will enjoy reputational benefits, while those that do not will suffer reputational damage. The duty to issue a statement is enforceable by the California Attorney General through an injunction.

Reporting Requirements

Companies disclose the extent they engage in:

• Verification: verify product supply

chains to evaluate and address risks of human trafficking and slavery;

• Training: train relevant company

employees and management on human trafficking and slavery, particularly concerning the mitigation of risk within supply chains.

(N.B. Companies have the option of submitting a “no action taken” disclosure.) Focuses on direct suppliers (tier one). In theory, the certification requirement above should extend the impact of reporting into lower tiers of a reporting firm’s supply chain.

Civil Recourse (Punitive) Any concerned party has standing to request that a judge compel a company to establish, implement, or publish a vigilance plan. Companies may be subject to liability if individuals are harmed by their failure to establish or implement a plan.

Mandated Disclosures:

• The structure, operations, and

Companies are expected to make their vigilance plans and regularly report on:

organization’s structure, business model, and supply chain relationships;

• Details of the due

internal accountability standards and procedures for employees or contractors that fail to meet company standards on slavery and trafficking; and

(Approximately 100-200 firms20)

Mandated Disclosures:

• Certification: require certification

• Internal Accountability: maintain

Section 16A introduces a “comply or explain” provision, enabling the relevant minister to pursue an injunction for noncompliance.

French companies that have more than 5,000 employees domestically or employ 10,000 employees or more worldwide

• A description of the

• Information on policies

by direct suppliers that materials incorporated into company products comply with the laws regarding slavery and human trafficking of the country or countries in which they are doing business;

Suggested disclosures:

• Auditing: Perform supplier audits to evaluate compliance with company standards;

Reporting Scope Definition

The duty to issue a statement is enforceable by the secretary of state through an injunction.

French Law (2017)

in relation to slavery and human trafficking

diligence process in relation to its business and supply chains;

• The areas of the business and supply chains at risk of slavery and human trafficking and the steps taken to assess and manage that risk;

• The effectiveness of

measures combating slavery, measured against appropriate performance indicators

supply chains of the reporting entity;

• The modern slavery risks in the operations and supply chains of the reporting entity and any entities it owns or controls;

• The actions taken by the

reporting entity and any entities that it owns or controls to assess and address modern slavery risks;

• How the reporting entity

assesses the effectiveness of those actions;

• The process of consultation with any entities that the reporting entity owns or controls;

• Procedures to identify and analyse the risks of human rights violation or environmental harms in connection with the company’s operations;

• Procedures to regularly assess risks

associated with subsidiaries, subcontractors, and suppliers with which the company has a commercial relationship;

• Actions to mitigate identified risks or prevent serious violations;

• Mechanisms to alert the company to risks

and collect signals of potential or actual risk;

• Mechanisms to assess measures that have

been implemented as part of the company’s plan and their effectiveness.

• Details of the approval of the statement.

• Any training available to staff.

(N.B. Companies have the option of submitting a “no action taken” disclosure.)

In theory, captures the entirety of the supply chain. Guidance since enactment: A common-sense approach is suggested: “For the purposes of this requirement, ‘supply chain’ has its everyday meaning.”

In theory, captures the entirety of the supply chain. Guidance since enactment: “Entities must consider modern slavery risks in their global operations and supply chains, not just their operations and supply chains in Australia. The Australian Government will encourage entities to make use of the UN Guiding Principles on Business and Human Rights.”

Reporting must cover the:

• Parent company itself; • Companies it controls directly or indirectly; • Subcontractors and suppliers with whom

it maintains an “established business relationship.” Under French law, the concept of established business relationship covers all types of relations between professionals, defined as stable, regular relationships, with or without contract, with a certain volume of business, creating a reasonable expectation that such relation will last.

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

COVERAGE

There is a great deal of ambiguity regarding how many firms are obliged to report under these laws, as authorities have been unable or unwilling to publish lists verifying which firms are covered. In California, in 2015 the Attorney Generalâ&#x20AC;&#x2122;s Office distributed guidance to 2,600 firms likely to be subject to the act but did not make this list available publicly. Subsequent efforts to identify how many firms should report in California identified up to 3,336 companies during the 2016 reporting period.21 The UK Home Office estimated in 2017 that that countryâ&#x20AC;&#x2122;s law would cover about 12,000 firms, but some civil society organizations estimate the figure could range as high as 17,000.22 In

Australia, 3,00023 firms are estimated to be covered, while under the French Law estimates range between 100 and 200 firms.24This variability has undermined efforts to assess compliance levels. While these coverage estimates are not exact, they indicate a contrast between the French Law and those in Australia, California, and the UK. Table 2, below, shows that estimates of the number of firms covered by the French Law constitute 3.2% of large firms in France. In contrast, the Californian Act, UK Act, and Australian Act cover 37.5%, 100%, and 77% of large firms, respectively.

Table 2: Supply chain disclosure legislation coverage in proportion to large firms and total firms within each country Coverage Ratios

Californian Act

UK Act

Australian Act

French Law

Firms covered as a percentage of the number of large firms

37.5% of large firms employing over 250 employees

100% of large firms employing over 250 employees

77.8% of large firms over 200 employees

3.2% of large firms employing over 250 employees

0.12% of total firms

0.003% of total firms

27% of medium to large firms employing over 50 people Firms covered as a percentage of total firms

0.16% of total firms

0.02% of total firms

Notes: Large firms are defined in the UK, France, and California as over 250 employees and in Australia as over 200 employees. Coverage ratios are based on authoritative estimates of coverage quoted in Table 1 (California, 2,600; UK, 12,000; Australia, 3,000; France, 200); the most up to date estimates of large firms in each country (California, 6,931;27 UK: 8,000;25 Australia, 3,855;26 France, 6,20027); and the most up-to-date estimates of total firms in each country (California, 1,539,29828; UK, 5,700,00029; Australia, 2,313,29130; France, 6,200,00031).

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

COMPLIANCE MECHANISMS

In terms of incentives used to encourage firm compliance, the Californian Act, the UK Act, and the Australian Act rely primarily on market pressure or reputational risk, rather than any direct punitive or legal measures. In contrast, under the French Law, firms are mandated to publicly disclose and implement a plan to combat human rights concerns in their supply chains. Recourse is available in France through civil liability if harm occurs as a result of firm non-compliance.32 Current estimates of the number of firms that have produced disclosures cast doubt over the effectiveness of the reputational mechanism adopted by the UK Act, Australian Act, and Californian Act. The Modern Slavery Registry (MSR), which tracks published disclosures for the Californian and UK Act (reporting for Australia has not yet commenced but will be tracked), indicate that under the UK Act, 8,081 disclosures

representing 10,044 companies have been published since the registry was established in 2016.Under the Californian Act, 1,432 statements, representing 1,509 companies, have been published.33 To estimate the extent of compliance under these Acts, Figure 1 below compares the number of disclosures published in the registry with the number of disclosures that should have been published from 2016-2018. As noted in Table 1, approximately 12,000 firms are covered by the UK Act and 2,600 are covered by the Californian Act. Under each act, firms are expected to report annually, so full compliance over this three-year period should be 36,000 UK disclosures and 7,800 for the Californian disclosures. The figure shows that only 28% and 19% of firms estimated to be covered by the UK and Californian Acts have published statements in the MSR over the reporting period.

Figure 1: Total firm coverage vs disclosures published in the Modern Slavery Registry under the UK Act and Californian Act (2016-2018): Disclosures published under the Californian Act

Disclosures published under the UK Act

1509, 19% 10,044, 28%

6291, 81%

Disclosures published in the MSR

2596, 72%

Missing Disclosures

Disclosures published in the MSR

Missing Disclosures

Neither of these laws mandate publication in the Modern Slavery Registry, so it is likely that there are some firms which have produced disclosures that are not represented in the database. However, given the data available, they are our best estimates and highlight a relatively low level of compliance.

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

REPORTING CRITERIA

The content of reporting criteria under the four laws varies, but not significantly. All relate to identifying risks of slavery or human rights abuses occurring in supply chains, actions taken to manage that risk, and assessment regarding effectiveness of those actions. Notably, the Californian Act requires reporting on specific actions—for example, auditing and certification—in contrast to the other three, which allow firms to report in a more tailored way. Disclosure under the Australian Act and the French Law is mandatory, while the UK Act and Californian Act allow firms the option to report a “no- steps- taken disclosure,” essentially allowing them to opt out of their reporting obligations. The laws in the UK, California, and Australia allow a relevant authority to seek a court injunction if a firm is deemed to be non-compliant. The mandatory nature of the Australian Act, however, obliges firms to report more comprehensively to avoid an injunction. In theory, given the punitive compliance mechanisms adopted and the mandatory nature of requirements under the French Law, more comprehensive reporting is also more likely. However, in practice, this is not yet

evident. Recently published guidance on reporting under the French Law, by Sherpa, a French NGO, notes that extant reporting has been “light” and not in keeping with obligations under the Act.34 Recent analyses of reporting under the Californian and UK Acts also suggest uneven engagement. A 2018 BHR Resource Centre analysis of FTSE 100 reporting assessed firms on a set of 54 indicators and provided each a percentage score, based on the quality of their reporting within the six criteria outlined under the UK Act. This analysis highlighted that only 12 firms scored above 50%, with the highest score being 78%. The report outlines that over half of firms scored less than 31%, 28 of which scored below 20%.35 This indicates that while a small number of firms have meaningfully engaged with their reporting responsibilities, a significant number have not. Similarly, a 2017 report on disclosure compliance under the Californian Act noted that in 2016, 48% of companies assessed in a sample of 1,961 were still not fully compliant and that a number of reporting criteria were routinely poorly addressed.36

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

REPORTING SCOPE DEFINITION

Finally, regarding the scope of reporting, under the UK Act and the Australian Act, the entire supply chain, from direct suppliers to subcontractors and raw materials providers, is in theory within the scope of the laws. Reporting guidance from UK and Australian authorities is however problematic and does not support comprehensive reporting. In the UK, guidance has been vague in defining the scope of reporting, stating only that firms should report based on the â&#x20AC;&#x153;everyday meaningâ&#x20AC;? of supply chains.37 In Australia authorities have outlined that reporting is not limited to and should extend beyond tier one, in line with principles established under the UN Guiding Principles, however at this stage clear guidance on the depth firms should pursue has not been developed.38 The Californian and French examples are smaller in scope and more prescriptive. The Californian Act, given its emphasis on certification and auditing, is more expressly focused on managing relationships

with first-tier suppliers. Similarly, the French law provides clear, prescriptive guidance dictating the appropriate scope of reporting, but this is limited to subsidiaries, suppliers, and subcontractors, either controlled by the reporting firm or with which it has an established business relationship. A 2017 Ergon Associates report indicates that the model adopted in the UK has generated reports routinely limited to UK operations,39 despite the intent being an international assessment. This raises questions regarding the effectiveness of flexible definitions of scope adopted in the UK and Australia. While improvements in this regard were reported in a follow-up Ergon report, 40 recommendations established after the recent independent review of the UK Act have noted the importance of clarifying definitions of the reporting required and improving mechanism through which to ensure compliance.41

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

CONCLUSION AND IMPLICATIONS

The enactment of disclosure legislation is a potentially fruitful first step towards more effectively combating human rights abuses in supply chains. However, the laws should be viewed as a necessary but insufficient condition for ensuring corporate accountability. Problems regarding compliance are widespread. How best to design this kind of legislation remains an open question. Experience so far with the Californian and UK Acts would suggest that reputationally driven and flexible regulatory designs have not elicited the desired response from firms. Many hold out hope that more stringent models, such as the French Law, will have more immediate and transformative impact. But early assessments of reporting in France have not bolstered this opinion.

These contrasting models present opportunities for further comparative research, examining the ultimate effectiveness of laws requiring proactive business-led responses to human rights abuses in global supply chains. Other possible avenues include developing a better understanding of reputational compliance mechanisms and how to amplify their effectiveness. Salient questions to explore include: How sensitive are firms to the reputational threat posed by transparency in this area? And which stakeholders, under which conditions, are most likely to motivate change from firms through this avenue?

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

EN DNOT E S

1. Richard Locke, “Global rules and private actors: Challenges for business and human rights,” in Business and Human Rights: From Principle to Practice, Dorothee Baumann-Pauly, and Justine Nolan (New York: Routledge, 2016), Section 7.1.

9. Elizabeth Umlas, “Human rights due diligence: Swiss civil society pushes the envelope,” Business and Human Rights Resource Centre, accessed March 20, 2019, <https:// www.business-humanrights.org/en/human-rights-duediligence-swiss-civil-society-pushes-the-envelope>

2. “ Global estimates of modern slavery: Forced Labour and Forced Marriage,” International Labour Organization (ILO), Walk Free Foundation and International Organization for Migration (IOM), September 19, 2018, 10-12, < https://www.ilo.org/global/publications/books/ WCMS_575479/lang--en/index.htm>

10. “German development ministry drafts law on mandatory human rights due diligence,” Business and Human Rights Resource Centre, accessed March 20, 2019, <https:// www.business-humanrights.org/en/german-developmentministry-drafts-law-on-mandatory-human-rights-duediligence-for-german-companies>

2. “The California Transparency in Supply Chains Act 2012,” State of California Department of Justice, accessed October 12, 2018, <https://oag.ca.gov/SB657>

11. Elise Dueck, Delaney Grieg, Kevin Thomas, “The Rise of Supply Chain Transparency Legislation,” Shareholder Association for Research and Education, February, 2017, <https://share.ca/documents/investor_briefs/Social/2017/ Supply_Chain_Transparency_Legislation.pdf> December 04

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21. Chris Bayer and Jesse Hudson, “Corporate Compliance with the California Transparency in Supply Chains Act: Anti-Slavery Performance in 2016,” Development International, March 7, 2017, 5, <https://static1.squarespace. com/static/5862e332414fb56e15dd20b9/t/58bf06e3 46c3c478cf76d619/1488914152831/CA-TISCA.v.24_ secured.pdf> 22. “Risk Averse? Company reporting on raw material and sector specific risks under the Transparency in Supply Chains clause in the UK Modern Slavery Act 2015,” CORE, September, 2017, 4, < https://corporate-responsibility. org/wp-content/uploads/2017/10/171003_Risk-AverseFINAL-1.pdf>

ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

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BI BLIOGRA PHY

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ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

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ASSESSING LEGISLATION ON HUMAN RIGHTS IN SUPPLY CHAINS: VARIED DESIGNS BUT LIMITED COMPLIANCE

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Research by Jaco Fourie, Ph.D candidate, UNSW Business School. Supported by Justine Nolan and Doro Baumann-Pauly.