Written evidence submitted by Professor Robert McCorquodale (INR0003)

Robert McCorquodale

1. I am a Professor of International Law and Human Rights at the University of Nottingham, a barrister and mediator at Brick Court Chambers, London, and Founder of Inclusive Law, a business and human rights consultancy. I publish widely on international law issues, have been an advocate before the UK Supreme Court and the International Court of Justice, and have provided advice and capacity building around the world to governments, companies, international organisations, non-governmental organisations, civil society groups, and individuals about international legal issues.

2. I have had many interactions with the Foreign and Commonwealth Office (FCO) over more than three decades. This has included giving and attending seminars, providing training, and undertaking research for the FCO, as well as many other interactions with FCO staff individually and collectively.

Context

3. This submission is in relation to one part of the FCO Integrated Review. It  concerns the Strategy in UK Foreign Policy in relation to the priorities for UK foreign policy strategy and the relationship of the FCO with the other UK Government Departments in foreign policy strategy.

4. The focus of this submission is on international law, international human rights law and, in particular, the role of the FCO in relation to UK companies when acting overseas.

Role of the FCO in International Law

5. In my experience, the FCO, especially those working as lawyers, have generally had a very positive impact on the development of international law worldwide. This is in their negotiation of treaties, their engagement in international discussions, their formal and informal interactions with others from around the world, and their knowledge of international law and international affairs.

6. This expertise and influence on international law and international affairs is confirmed by the books based on research by the British Institute of International and Comparative Law (of which I was the Director for 10 years) relating to these matters. This includes: The Role of Legal Advisers in International Law (2016) and British Influences on International Law 1915-2015 (2016). These show the important role of the FCO in relation to developments in, for example, the law of the sea, laws on armed conflict, the law of treaties, recognition of States and governments, and on the law relating to diplomatic and State immunity (including in their roles in UK courts).

7. In my submission, it is crucial that the FCO retain and expand its expertise in international law, and other staff working in relevant areas. This includes in relation to its team of lawyers, including the excellent Legal Advisers, in London, its provision of lawyers to various important missions, such as in The Hague, and the UN in Geneva and New York, as well as the secondment of the FCO lawyers to other Government Departments. This enables the expertise of these lawyers to be available immediately, as well as having the existing links within the FCO lawyers to assist when necessary.

8. In relation to the role of the FCO in other Government Departments, they have, in my experience, been crucial over many years in ensuring a consistency of approach in most instances and a reliability and credibility of legal advice on international legal issues. This includes roles in the Attorney-General’s Department, the Department of International Trade, the Department for International Development and the Department for Exiting the European Union. Further, without their expertise within these Departments, to my own knowledge, there may have been many concerning incidents or inconsistencies in advice and actions, as there are few civil servants in these Departments with the level of international legal knowledge required.

9. In addition, the FCO lawyers provide a consistent presence in the courts in relation to matters of international law which come before them. There are countless examples where the FCO lawyers have appeared before the UK courts, as well as international courts, in which their knowledge of international has been invaluable.  Of course, their views may not have always been agreed with by the courts and they are limited by their instructions from Government, which may be problematic (as seen in the International Court of Justice’s Chagos Archipelago Opinion). Nevertheless, their views are always taken seriously because they are those of the FCO and it ensures that there is generally a degree of coherence in the decisions made by the courts on matters of international law.

Role of the FCO in International Human Rights Law

10. One area of international law for which the FCO has had a particular expertise has been in relation to international human rights law. This has included their role before the European Court of Justice and the International Court of Justice. They may also appear or support other Departments in relation to actions within the courts of the UK in which issues of human rights are raised, where these are based on international treaties or other international documents.

11. The UK is one of the few States in the world which is a party to most of the major international human rights treaties. The FCO has also been consistent in its view about the need for the UK Government to become a party, and then remain a party, to the International Criminal Court, even when external political pressures pushed otherwise. This is an important and impressive position for a State which upholds the rule of law. Negotiations on international human rights treaties are notoriously difficult, not least for the differences worldwide on economic, social and cultural issues which they raise. The FCO is able to do this.

12. However, the UK has still not implemented (incorporated) all these international human rights treaties into domestic law, which is disappointing for a State which expects others to uphold their international human rights obligations. It also creates a gap between what the UK may state publicly at an international level and what it protects for its public internally. I strongly encourage the UK to incorporate all these treaties into domestic law, especially in relation to the International Covenant on Economic, Social and Cultural Rights, the European Social Charter and those Conventions of the International Labour Organization.

13. Further, human rights have been greatly reduced as a public priority by the FCO in recent times, other than for a few activities. The most recent statement on the FCO priorities only mentions human rights as a small part of the “diplomatic leadership” priority, in which it states: “work to champion democracy, human rights, good governance and the rule of law by assisting supporters and using our leverage against abusers”.[1] This indicates that human rights is, for the FCO, about how other countries act rather than how the UK is acting. It is reflected in the lack of priority of human rights issues for the FCO and reduced staffing capacity and seniority on human rights. This is, in my view, a serious backward step in the ability of the UK to show real leadership in this area.

Role of the FCO in Business and Human Rights Law

14. There is an increased expectation on companies to ensure that they do not create adverse human rights and environmental impacts in their activities wherever they occur. This expectation is one by the public, civil society and, increasingly, by investors and by companies themselves. It is part of a corporate responsibility to respect human rights and the environment and goes beyond CSR voluntary statement which are often mainly about public relations for the company. The current terminology for this area is “business and human rights”

15. This corporate responsibility to respect human rights and the environment have been stated clearly at the international level. The United Nations Guiding Principles on Business and Human Rights (UNGPs), the OECD Guidelines on Multinational Enterprises (and the consequent OECD Responsible Business Conduct Guidances), and the International Labour Organization’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, are all important international documents on this area. The UK has expressly supported or accepted all of them.

16. Indeed, the UK was the first country in the world to produce a National Action Plan on Business and Human Rights stating how it would implement the UNGPs.  This document - Good Business: Implementing the UN Guiding Principles on Business and Human Rights[2]– has been updated once already to reinforce the UK Government’s commitment in this area.[3] Some action was taken as a consequence of this policy, including the insertion of sections 414A-C of the Companies Act to require companies to report on human rights, labour and environmental issues. There is also the Modern Slavery Act 2015, which was the first piece of legislation in the world to require companies to report on their supply chain in relation to modern slavery issues.

17. In its approach to the UNGPs, the FCO – as the lead Department in Government for them -  is aware that business and human rights issues are “about levelling the playing field for businesses; mitigating against companies undercutting others by using unethical practices. It is about helping businesses to be aware of their legal obligations; helping them to demonstrate their ethical standards, to their reputational benefit”.[4]

18. However, both domestically and internationally, the Government has failed to put in place any accountability for UK companies on this area. There is no enforcement provision for the Modern Slavery Act or for failure to implement the relevant reports under the Companies Act. There are also very few requirements in UK public procurement for companies to produce human rights and environmental impact assessments before they can tender for government contracts. This creates a very poor incentive for companies to act in relation to their activities – in the UK and elsewhere – which have or may have human rights and environmental impacts.

19. This is relevant for the FCO in both its policy priorities and its action to support companies worldwide. In relation to its policy priorities, the area of human rights has been greatly reduced in priority, as noted above, which has also led to a reduction in the activity, staff (both in numbers and seniority), and focus on the area of business and human rights. This is regrettable, not least as it comes at a time when this area is increasing at a great rate internationally. For example, there is a UN inter-governmental working group on the development of a treaty on business and human rights,[5] to which the UK has not spoken at all, and rarely attended, in the five years of negotiation. In addition, other countries are passing legislation on this area, such as France and The Netherlands,[6] and the European Commission is actively examining drafting  directive on this area,[7] so the UK is being left behind by the FCO’s inaction.

20. In addition, this lack of attention has a direct effect on companies. When a UK company is either operating abroad or intending to do so, the FCO has rarely provided direct and effective advice about the companies’ risks in terms of any activities which they undertake which have or might have human rights and environmental impacts. I am aware of this from discussions with companies. This lack of action and advice by the FCO can have a very damaging effect on the companies themselves and also on the reputation of some UK companies, which can harm all UK companies seeking to operate abroad. The training on this area for FCO staff in missions and in the UK has largely disappeared, so that they are not aware of the issue and often leave it to the DTI to press for more and more activity by companies, and not take into account the potential risks that arises both for the companies and the UK’s reputation generally. It also affected UK trade and investment.

21. In my view, UK missions should be aware of possible issues of human rights and environmental impacts arising from the operations of UK companies or their subsidiaries overseas. Where possible, these missions should facilitate and lobby for discussion and resolution of these issues with the companies and the relevant country, and be especially alert to these matters where companies are operating in high risk areas or fragile States, since there may be increased risk of human rights and environmental impacts. At the moment, as far as I am aware, these actions are rarely done and FCO staff are not trained in being aware of these issues.

22. In addition, the activities of companies and States in regard to the coronavirus (COVID-19) may give rise to further issues about which the FCO should have the ability to act and to act quickly.

Summary

23. The UK Government has been served well by FCO lawyers for many years in relation to their roles in international law and their inclusion in other Government Departments. However, the lack of priority to human rights issues, including those on business and human rights, has diminished its influence internationally. It has also impacted on UK corporate activity, which affects UK trade and investment.

24. I encourage the Committee to commend the FCO lawyers and other staff for their activity and to add to their staffing numbers. I would also ask the Committee to press for the FCO to have a higher priority for human rights, especially business and human rights, matters. This will require more staff and more senior staff dealing with these matters.

April 2020