"UK Law Commission: Options Paper includes criminal offence of failure to prevent human rights abuses", 17 Aug 2022

The failure to hold to account criminally UK companies (and companies which operate in the UK and/or have UK listings) which are complicit in human rights abuses abroad stands in stark contrast to more promising developments in countries such as France, with the Lafarge case, and Sweden with the Lundin case.

...UK advocacy organisations Traidcraft Exchange and the UK network, Corporate Justice Coalition (CJC), have long campaigned both for enforcement of existing criminal law and for reform to corporate criminal liability...

Their efforts on criminal law reform have recently borne fruit, with their proposals being acknowledged and discussed in the recently launched UK Law Commission’s Options Paper on Corporate Criminal Liability.

In 2020, the British Government asked the Law Commission to investigate the legal framework on corporate criminal liability and provide options to reform it... Traidcraft and CJC responded with a submission that dealt directly with the failure to hold to account criminally UK companies which are complicit in human rights abuses abroad, including abuses constituting all the elements of the domestic criminal offences murder, assault, sexual offences, theft, modern slavery, or of offences designed to protect workers and the environment...

The submission recommended the adoption of a new “failure to prevent” human rights abuses (defined to encompass existing criminal acts such as murder) offence, modelled on the UK Bribery Act’s s.7 “failure to prevent bribery” offence, with a defence of having reasonable prevention procedures in place.

...Promisingly for the NGOs, the Paper includes “an offence of failure to prevent human rights abuses” as Option 4 for the British Government to consider.

Less promisingly for the NGOs, the Law Commission suggests that a key policy question, if such a law is to go forward, is whether “there is a sufficiently pressing need for extraterritoriality.” The paragraph... continues, “this cannot in practice be divorced from the challenges of holding to account in the overseas jurisdiction both the primary offenders (which may be corporations) and allegedly complicit UK firms.”

This policy question is truly at the heart of the NGOs’ submission and the work they do –their position is that the pressing need for a law that prevents and punishes human rights violations overseas involving UK companies has already been established...