15 September 2016

President of the Institute of Employment Rights Professor Keith Ewing has warned that the UK is not adequately assessing whether it adheres to the International Labor Organisation's (ILO) four core principles – freedom of association, no discrimination, no child labour, and no forced labour – and that the situation can only get worse with free trade deals made after the UK leaves the EU.

Watch the full evidence session

Professor Ewing was representing the International Centre for Trade Union Rights (ICTUR) to give evidence as part of an inquiry into human rights and business led by the Joint Parliamentary Committee on Human Rights on Wednesday 07 September.

"The starting point is in the name: they are free trade agreements, not fair trade agreements," he explained. "We may have ambitions to have fair trade agreements, but we are dealing with a global culture at the moment in which we have free trade agreements, in which there is only a nod in the direction of labour and sustainability."

He noted the power of other global economies to put pressure on those with higher standards to join a race to the bottom, such as the US saying "no" to many of the regulations the EU requested in the TTIP negotiations.

"What the EU has been able to achieve with Korea and Canada, and what it is trying to negotiate with the United States, is minimum standards, because that is what the other side will accept," he said.

Professor Ewing warned that not all free trade agreements have labour clauses in them and even when they do – such as the trade agreement currently being negotiated between Canada and the EU, which includes the ILO's four principles – these clauses do not offer strong protection for workers.

"If you are lucky, you might be able to go beyond these four core principles, as we have been able to do in the Canada-EU free trade agreement, but all it does is set aspirations. The aspirations are that we promote health and safety and acceptable minimum standards for wage earners, but that is a long way from the rights that people have under EU law at the moment and that can be enforced before our domestic courts and, ultimately, before the European Court of Justice," he said.

Furthermore, Professor Ewing noted there is a culture of non-compliance to the ILO conventions. A study he led with IER Chair John Hendy QC found that only 22 of the 28 member states of the EU are fully compliant with either the ILO conventions or comparable provisions in the European Social Charter. Some of the countries we have free trade agreements with have not ratified some of the critical ILO conventions at all.

"What we do in these agreements, whether we like it or not, is to create a system of mutually assured non-compliance - MANC," he stated.

"We enter into these agreements - two parties, two sides - usually in breach of the obligations we have undertaken to comply with, and no one has any expectation that these obligations will ever be met. If this is the future, compared to the future we are about to leave, it is a very dismal future in terms of respect for human rights of workers."

He also warned that more action needs to be taken closer to home. The UK published a National Action Plan (NAP) for the nation's adherence to the UN's guiding principles regarding human rights in 2013. Professor Ewing highlighted that this plan only sets out what the UK's international responsibilities are with regard to human rights, but fails to evaluate whether those standards are currently being met, or lay out actions that will be taken to ensure compliance.

There needs to be a mechanism to follow-up on the NAP, he advised, advocating for a model similar to that proposed by the Australian Human Rights Commission, in which continuous dialogue with a multi-stakeholder group evaluates how well the Plan is being implemented over time. This group would be made up of businesses, NGOs, unions and other representatives of civil society.

Professor Ewing also recommended that reporting obligations – which are already in place as part of the Modern Slavery Act and Companies Act – are made stronger and broader. Large companies should be required to report on either an annual or two-yearly basis on their human rights policy and any steps they have taken to respond to human rights issues that have arisen. He also called for all four core principles to be included in this reporting, including freedom of association, collective bargaining and companies' relationships with trade unions. Trade unions should be consulted for this report to ensure its accuracy. Lastly, he recommended "a proper method of enforcement", criticising the way the requirements of the Modern Slavery Act are upheld.

"… the sanction is a High Court injunction brought by the Secretary of State. We might as well have said that there is no sanction for breaching this obligation, because it is hard to see the circumstances in which the Secretary of State is going to bring an action in the High Court against a company in default," he said.

"If this was a criminal offence and this information was in the hands of trade unions, you had better believe that those trade unions would make it their business to ensure that these obligations were complied with," Professor Ewing added.