We wrote last week about the Public Procurement Podcasts – a series of recorded interviews with Dr Pedro Telles, senior lecturer in Law at Swansea University in Wales, talking to other academics whose area of study is related to procurement . We will start with the second edition, just to be different!
In it, Dr Telles discusses the intersection of human rights and public procurement with Dr Claire Methven O’Brien. Dr O’Brien is from the Danish Institute of Human Rights and is an expert in human rights law, particularly human rights and business. She has comprehensive experience dealing with multinational enterprises, government and human rights bodies, and civil society. In the latest PPP episode, she makes the case for how human rights should influence how EU public bodies should procure goods and services.
Dr O’Brien says that human rights have become a big idea over the past century, and that the application of human rights must extend beyond just the state, to include the private sector as well. Globalisation and the rise of multinational enterprises has changed how production affects human individuals and communities, meaning companies are increasingly being encouraged to take accountability to ensure that human rights are protected in their global supply chains. The UN’s Guiding Principles on Business and Human Rights states that nations have a responsibility to regulate the private sector to avoid human rights abuses and that companies themselves have a responsibility to respect human rights. This of course means that, in relation to the public procurement of goods and services, the state has an obligation to ensure human rights are protected in any commercial transactions it engages in.
Dr O’Brien claims that the time has come for interpretations of public procurement laws to be scrutinised to a greater extent, and to be aligned with the requirements of human rights norms. The Guiding Principles have already has a significant effect already. In 2011, the European Commission called on EU Member States to develop national action plans on business and human rights with reference to the UN principles. A number of Member States have produced plans already, which emphasise the need to undertake reviews and ensure that existing measures ensure respect for human rights in the course of public contracting. Internationally, the OECD has also aligned its Guidelines for Multinational Enterprises with the UN Guiding Principles.
In the podcast, Dr O’Brien says that while the EU has made efforts to abide to the principles, the litmus test is whether policy commitments are internalised at a national or regional level, through adoption of specific laws. She says that the recent EU procurement Directives have been disappointing in this respect as they provide scope to allow public bodies to use procurement practices that don’t comply with the UN principles. The directives only refer to the International Labour Organisation’s Core Labour Standards, which include forced labour, child labour, discrimination and some trade union rights. In fact, the EC has done nothing to suggest they will promote awareness of the EU’s commitment to the Guiding Principles and to ensure protection of human rights in procurement.
She points to recent examples, such as the Danish government procuring military uniforms from an Export Processing Zone in Bangladesh, where trade unions are prohibited. Plastic gloves procured by Denmark’s public healthcare sector have been found to contain rubber from plantations that rely on forced labour. In the UK, there have been various reports by National Human Rights Institutions on the lack of respect for human rights and dignity in the private delivery of services for the elderly and disabled.
We wonder whether one problem is that pubic procurement is now focused on so many different “policy through procurement” initiatives and interests. Or at least it tries to focus on them – but it is difficult to make everything a priority. So we have support for SMEs (small and medium enterprises) with some legislation designed to help that group; we have support for Mutuals, with special treatment in the Directives. We have the desire to generate “social value” in general, which may include getting long-term unemployed into work, or supporting local business. We have the whole innovation agenda, not to mention environmental considerations in procurement.
Of course we can argue that all of these are important; and you might argue that protecting basic human rights should be at the very top of the priority list. But it is hard for contracting authorities and public procurement staff to work in a manner that satisfies all of these agendas all of the time, we feel.
However, as Dr O’Brien says in the interview, there are encouraging examples of collaboration between public procurement authorities and bodies with human rights expertise, such as in initiatives in Scotland and Northern Ireland. Dr O’Brien says that she wants to build on this in developing a Public Procurement and Human Rights Learning Laboratory, which will be launched later this year.
To hear more about the laboratory, and to listen to the whole interview, do tune in here.