How-to guide: Understanding the legal framework for human rights and the importance of human rights due diligence (UK)

Introduction

This guide will assist in-house counsel, private practice lawyers and compliance professionals in their understanding and navigation of the legal framework for human rights. It also explains the increasing importance of human rights due diligence for organisations. Much of the background information and general principles set out in this resource will be applicable in many jurisdictions worldwide, but it has a specific focus on the UK.

This guide covers:

1. Human rights legal frameworks
2. Protection of human rights in Europe and the UK
3. The increasing importance of human rights due diligence

This How-to guide can be read in conjunction with Checklist: Human rights due diligence in supply chains, which provides detailed steps for organisations to follow to integrate the protection of human rights into their supply chains.

Section 1 – Human rights legal frameworks

Human rights legal frameworks do not impose direct legal obligations on businesses. The United Nations Guiding Principles on Business and Human Rights (UNGPs) and the Organisation for Economic Co-operation and Development (OECD) Guidelines (see 1.3 and 1.4 below) were developed with the objective of assisting States to translate their international human rights law obligations into domestic law – in particular, the expectation that all business enterprises domiciled in the respective State’s territory or jurisdiction respect human rights throughout their operations.

1.1 The International Bill of Human Rights

The 1948 Universal Declaration of Human Rights (Universal Declaration) is the foundation of modern human rights law and was created to prevent a recurrence of the atrocities of the Second World War. The Universal Declaration is not itself a legally binding agreement, but it is codified in international law through the 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights (together known as the Covenants). Collectively, all three documents are known as the International Bill of Human Rights.

For the Covenants to become binding in any State, the government of that State must ratify them. Each of the Covenants has been ratified by over 150 states. There is a list of the countries that have ratified the Covenants on the Office of the High Commissioner’s website.

Under the Covenants, States must refrain from interfering directly or indirectly with an individual’s human rights. For example:

• the State must not torture an individual nor hold anyone in slavery; and
• the State cannot force an individual to work in an area they have not freely chosen nor stop an individual from speaking their language.

States must also take measures to make sure that others, such as businesses, political groups or other people do not interfere with an individual’s rights. For example:

• the State must stop people publicly inciting hatred, violence and discrimination against a person or a group of people (often called hate speech), which can interfere, for example, with an individual’s right to freedom from discrimination;
• the State has to make sure that private companies provide a fair wage for work (thus protecting, for example, an individual’s right to just and favourable conditions at work) and do not give different salaries to ‘men and women’ who do the same job (UN human rights treaty bodies have confirmed that international law prohibits discrimination based on sexual orientation, gender identity and sex characteristics, even though the language used in the Covenants is ‘men and women’).

States must take steps to realise rights. For example:

• the State has to provide interpretation during trials if the accused cannot speak the language spoken in court (fulfilling the right to fair trial, for example);
• the State must provide state budgets to make sure everyone can access medicines (eg, fulfilling the right to health) and be free from hunger (eg, fulfilling the right to freedom from hunger).

Human rights violations occur when a State government fails in its obligations to respect, protect and fulfil these rights. Often a violation of one of these rights is linked to a violation of other rights. Examples include:

• forcibly evicting people from their homes (the right to adequate housing and the right to choose their place of residence);
• water treatment facilities contaminating drinking water (the right to health and the right to life);
• failure to ensure a minimum wage sufficient for a decent living (the right to work and the right to equality before the law);
• denying a person access to information and services related to sexual and reproductive health (the right to health and the right to life);
• systematically segregating children with disabilities from mainstream schools (the right to education and the right to equality and non-discrimination); and
• banning the use of minority or Indigenous languages (the right to participate in cultural life and the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion or to use their own language).

The UN Human Rights system uses different mechanisms to monitor how States protect the rights set out in the Covenants. These include human rights treaty bodies (committees of independent experts that monitor implementation of the Covenants and associated treaties). Individuals, groups of individuals or communities, civil society organisations and national human rights bodies that are victims of human rights abuse or have credible evidence that someone else is a victim can report human rights violations committed by States to the UN.

1.2 International Labour Organization’s Declaration on Fundamental Principles and Rights at Work

The rights of workers are further protected by the 1998 (as amended in 2022) International Labour Organization’s (ILO) Declaration on Fundamental Principles and Rights at Work (ILO Principles). The ILO is the only tripartite UN agency and has been operating since 1919. It is tripartite because it consists of (i) governments, (ii) employers and (iii) workers – currently from 187 States. The ILO Principles set out the commitment that governments and employers’ and workers’ organisations have to uphold in relation to:

• freedom of association and the effective recognition of the right to collective bargaining;
• the elimination of all forms of forced or compulsory labour;
• the effective abolition of child labour;
• the elimination of discrimination in respect of employment and occupation; and
• a safe and healthy working environment.

1.3 United Nations Guiding Principles

The UNGPs flow from the International Bill of Human Rights and are a set of voluntary guidelines for States and companies to prevent, address and remedy human rights abuses committed in business operations. They were proposed by UN Special Representative on business and human rights, John Ruggie, and endorsed by the UN Human Rights Council in June 2011. They apply to all States and to all business enterprises, both transnational and others, regardless of their size, sector location, ownership and structure. They contain three chapters, or pillars: protect, respect and remedy. They set out concrete, actionable steps for governments and businesses to use to meet their respective duties and responsibilities to prevent human rights abuses in business operations and provide remedies if such abuses take place.

1.4 OECD Guidelines

The OECD Guidelines for Multinational Enterprises on Responsible Business Conduct were first introduced in 1976 as a voluntary ‘human rights response’ to urgent social, environmental and technological priorities facing societies and businesses, including on climate change, biodiversity, technology, business integrity and supply chain due diligence. They cover all key areas of business responsibility, which include human rights and labour rights, environment, bribery, consumer interests, as well as information disclosure, science and technology, competition and taxation. The UNGPs refer to the OECD Guidelines as an example of a ‘multilateral soft-law instrument’ adopted by States that sets out the expectation that businesses respect human rights throughout their operations (ie, at home and abroad).

The OECD Due Diligence Guidance for Responsible Business Conduct (the Guidance) provides practical support to enterprises on the implementation of the OECD Guidelines by providing plain-language explanations of its due diligence recommendations and associated provisions. The OECD states that implementing these recommendations can help enterprises avoid and address adverse impacts related to workers, human rights, the environment, bribery, consumers and corporate governance that may be associated with their operations, supply chains and other business relationships. The Guidance includes additional explanations, tips and illustrative examples of due diligence. The OECD also intends the Guidance to promote a common understanding among governments and stakeholders on due diligence for responsible business conduct.

The OECD also states that the Guidance can help enterprises implement the UNGPs’ recommendations on human rights due diligence (see further section 3 below), as well as the ILO Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (MNE Declaration).

The UNGPs and OECD Guidelines require businesses to respect human rights (as expressed in the International Bill of Human Rights and the Principles), and for States to take such appropriate steps to prevent, investigate, punish and redress any human rights abuses by businesses. Whilst businesses may undertake activities to support and promote human rights (such as corporate and social responsibility activities), these do not cancel out a failure to respect human rights throughout their operations.

Section 2 – Protection of human rights in Europe and the UK

States that have ratified the International Bill of Human Rights are encouraged to incorporate the human rights protections set out in it into national constitutions or national law.

2.1 Protection of human rights in Europe

In September 1953, the Convention for the Protection of Human Rights and Fundamental Freedoms, otherwise known as the European Convention on Human Rights (ECHR), came into force. The ECHR was the first instrument to give binding effect to the rights set out in the Universal Declaration and it is an international treaty of the Council of Europe (not the EU). The Council of Europe is distinct and separate from the EU and is an international organisation of 46 member states (EU members and non-EU members), which was formed after the Second World War to promote democracy, human rights and the rule of law.

The ECHRs’ enforcement framework (which includes the European Court of Human Rights (the Court)), is not part of the EU’s legal framework. Accordingly, Brexit has not impacted the UK being a signatory to the ECHR and the ECHR is still binding on the UK as a matter of international law – it is a condition of Council of Europe membership that States agree to be bound by the ECHR. Thus, if the UK withdrew from the ECHR (as has been raised in recent times), it would probably also have to leave the Council of Europe.

The rights and principles enshrined in the ECHR are very general, which has allowed them to be interpreted and developed through case law and applied in a range of contexts reflecting developments in society since the ECHR was adopted. For example, there is no mention of personal data in the ECHR, but it has become well established that the article 8 right to private and family life extends to protecting an individual’s personal data.

Some ECHR rights are known as absolute rights, such as the article 2 right to life. This means that any State interference with that right is a breach of the ECHR. However, most ECHR rights are qualified rights. This means that a State is permitted to restrict a right, such as the right to protest, in some circumstances, provided that the restriction is justified and proportionate.

A number of rights have been added to the initial text of the ECHR with the adoption of additional protocols, such as the abolition of the death penalty, the protection of property, the right to free elections and freedom of movement. Member states can choose whether or not to ratify the additional protocols.

A State that is found to have committed a violation of the ECHR by the Court will be required to provide redress for the damage sustained by the applicant and, as far as possible, remedy any consequences of the violation. The State must also make sure that no similar violation occurs, in other words that nobody else is a victim of the violation found. In practice this often gives rise to a change in State legislation. An example of a legislative change resulting from the Court’s judgments is the prohibition of corporal punishment in State schools in the UK in 1986, which happened following a judgment of the Court in 1982.

2.2 Protection of human rights in the UK

In the UK, the Human Rights Act 1998 (HRA) incorporates the ECHR into UK national law.

When claims are brought in the UK courts under the HRA, section 2 requires the courts to take account of the case law of the Court, as it is the Court that provides the authoritative interpretation of ECHR rights across all States that are party to the ECHR.

Successive governments since 2007 have suggested that the HRA should be either reformed or replaced with a Bill of Rights out of concern that human rights were impacting politically sensitive areas (eg, migration, security and anti-terrorism policies) or where a judgment by the Court was seen as making a decision that should properly be up to UK Parliament. These proposals did not involve plans for the UK to leave the ECHR.

In June 2022, a Bill of Rights Bill was introduced, which aimed to repeal and replace the HRA. The Bill would have significantly changed how human rights are protected and enforced in the UK, making it harder for people to bring claims. The government clarified at the time that the UK would remain a party to the ECHR. The Bill failed to progress through Parliament and it was withdrawn in June 2023.

Certain rights, such as the rights to life, to a fair trial and to freedom of expression, are recognised both in UK common law and in the ECHR. Significant human rights cases have relied on UK common law; for example, on the prohibition of evidence obtained by torture. Thus, experts describe UK common law and the ECHR as ‘distinct, overlapping and complementary systems for protecting human rights’ (see Professor Mark Elliot: Public Law for Everyone).

However, UK common law protection for human rights is not as extensive as that guaranteed by the ECHR. The ECHR, as interpreted by the Court and by UK courts under the HRA, protects a broader range of rights than the common law has so far recognised. For example, experts note that the ECHR alone offers redress to victims of crime who have been failed by state investigations or whom the state has failed to protect from harm, such as the bereaved families of the Hillsborough tragedy. UK common law did not prevent children from being subject to corporal punishment in schools, or gay people facing discrimination who, prior to the HRA, took their cases to the Court.

In addition, the HRA offers several forms of protection that do not feature in UK common law. For instance, it allows higher UK courts to issue declarations of incompatibility when they find that a law cannot be interpreted in a way that makes it compatible with ECHR rights. Such declarations signal to ministers and Parliament that the law needs to be revised. Declarations of incompatibility have never been issued at common law.

Further, the HRA requires public authorities to respect ECHR rights in their everyday actions and decisions, with the aim of preventing human rights violations, while the common law focuses more narrowly on the courts as the means by which rights can be protected, on a case-by-case decision basis.

Criminal charges may also be asserted against businesses for the commission of human rights abuses or involvement or complicity in abuses.

Section 3 – The increasing importance of human rights due diligence

With the increased focus on environmental, social and governance (ESG) and sustainability issues in the corporate world, as well as the increasingly global nature of business, taking responsibility for human rights issues within organisations and their supply chains is becoming a key factor in legal compliance, brand reputation and ethical business practice.

Human rights due diligence (HRDD) is a recognised best practice method for organisations to identify, prevent, mitigate and account for any potential and actual adverse human rights impacts with which they are involved.

It is recommended that all businesses, whatever their size, sector, location, ownership and structure incorporate an HRDD procedure into their strategic, procurement and risk management procedures – whether they are legally required to do so or not. Businesses legally required to do so must comply as they otherwise might face the risk of an injunction or fines, while others should voluntarily do so to protect human rights and to, for example, avoid legal and reputational risk as customers’ and investors’ expectations regarding such issues continue to increase. Volunteers will also likely be ‘ahead of the curve’ as legislative initiatives incorporating HRDD obligations are expected to increase.

For detailed steps to follow when carrying out HRDD, see Checklist: Human rights due diligence in supply chains.

Some of the key drivers for organisations to carry out HRDD are set out below.

3.1 ESG ratings

Adopting HRDD will enable businesses to robustly address the ‘S’ in ESG. Many of the elements included under ‘S’ by ESG rating providers and others are either human rights, or are closely related to them – for example, ‘equal pay for equal work’ and ‘diversity, equity and inclusion’ stem from the human rights to freedom from discrimination, equality between men and women and minority rights; the need to tackle forced labour stems from the right to freedom from slavery, amongst other rights. It has been suggested that if businesses adopted recognised human rights frameworks (such as the UNGPs and the OECD Guidelines) as the standard for ‘S’, this would improve the reliability and comparability of ‘S’ ratings, and of trust in ESG data overall.

3.2 Legislation and regulations requiring human rights due diligence

As noted above, human rights legal frameworks do not impose direct legal obligations on businesses and while the UNGPs and OECD Guidelines were developed to enable organisations to respect human rights throughout their operations, compliance is voluntary.

Several jurisdictions have adopted legislation that requires human rights considerations to be taken into account in an organisation’s operations, for example:

• the Corporate and Sustainability Due Diligence Directive (EU);
• the Law No 2017-399 on the duty of vigilance (France);
• the Supply Chain Act (Germany);
• the Batteries Regulation (EU); and
• the Uyghur Forced Labor Prevention Act (USA).

The UNGPs and OECD Guidelines are recognised as the ‘source code’ for the majority of such legislation.

3.3 Legislation and regulations requiring human rights disclosures

Other aspects of the legal framework include international regulations requiring organisations to make human rights disclosures, such as Regulation (EU) 2019/2088 – the Sustainable Finance Disclosure Regulation (SFDR), and Directive (EU) 2022/2464 – the Corporate Sustainability Reporting Directive (CSRD). Both require organisations to know about the human rights performance of their supply chains in order to make the required disclosures.

For example, the SFDR requires reporting on Principal Adverse Impact (PAI) indicators. PAIs are the negative impacts caused by a firm or an asset on the environment and society. The PAIs include violations of the UNGPs and OECD Guidelines and lack of processes and compliance mechanisms to monitor compliance with the UNGPs and OECD Guidelines, amongst other human rights indicators. Even if an organisation is not in-scope for the purposes of these regulations, if they are in a supply chain with an organisation that is, they may be required to provide information about their human rights impacts to that organisation. Implementing HRDD is key to providing this information. The European Commission is currently carrying out a comprehensive assessment of the SFDR framework, looking at issues such as legal certainty, usability and how the SFDR can play its part in tackling greenwashing.

3.4 Human rights due diligence and climate change

HRDD is also important in relation to climate change and a just transition to net zero (see LSE article: What is the just transition and what does it mean for climate action?). The Preamble to the Paris Agreement calls on States, when taking action to address climate change, to ‘respect, promote and consider their respective obligations on human rights’. In the multi-State declaration made at COP21 on ‘Supporting the Conditions for a Just Transition Internationally’, the signatories (including the UK):

. . . urge businesses to ensure their supply chains are free of human rights abuses, including through carrying out corporate due diligence in line with the [Guidelines], the UN[GPs] and the ILO’s Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.

Considering human rights is particularly important when using carbon credits, and a framework for a UN-backed carbon market that is intended to address integrity and human rights abuses in carbon markets was adopted at the Conference of the Parties (COP29) in November 2024 (see United Nations Framework Convention on Climate Change article: Mandatory Environmental and Human Rights Safeguards Agreed for UN Carbon Market). The new framework emphasises human rights and respect for local communities, indicating that these should be a key part of any due diligence carried out on carbon offsetting projects.

3.5 Anti-slavery legislation

Regarding the UK Modern Slavery Act 2015, a select committee of the UK Parliament issued a report on 16 October 2024 that described the Act as outdated and falling behind international best practice (see Modern Slavery Act 2015 Committee report). During the preparation of the report, the committee heard that the Act ‘has not been effective in preventing modern slavery’ and that modern slavery cases are ‘continuing to arise within supply chains of organisations that have complied with reporting obligations’. The report also stated that ‘the incentives are not there’ for organisations falling below the mandatory reporting threshold to report on modern slavery commitments.

The committee recommends that the UK government strengthen the enforcement of employment rights in the UK and introduce new legislation requiring organisations to undertake modern slavery due diligence in their supply chains and impose sanctions for those failing to act. It also advocates introducing import laws banning goods associated with forced labour from entering the UK and recommends that the government should meet the same standards of responsibility that are required of private organisations (ie, both public procurement and private procurement should be required to operate to the same level of social responsibility).

The UK government has already confirmed that it is committed to strengthening the enforcement of labour standards. For example, a draft Employment Rights Bill, expected to be finalised in 2025 and to come into force in 2026, currently provides for a new Fair Work Agency, which it is hoped will bring together existing state enforcement functions and, over time, take on enforcement of a wider range of employment rights, including labour exploitation and modern slavery. If the government adopts the other select committee recommendations, it will align the UK with the EU and other countries adopting a more proactive approach.

Countries that have used the UK Modern Slavery Act 2015 as the basis for their own modern slavery legislation (eg, Australia) will likely follow suit.

Additional resources

United Nations – The Corporate Responsibility to Respect Human Rights: An Interpretive Guide
UN Guiding Principles Reporting Framework
OECD – OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas
Shift
Monica Vinader – Human Rights Policy 
Principles for Responsible Investment – How to identify human rights risks: A practical guide in due diligence
Marks and Spencer – Human Rights & Our Supply Chain
The Remedy Project
The UN Global Compact 
ILO – Human Rights Due Diligence: Policies, Practice, and Implementation
Voluntary Principles on Security and Human Rights
Ethical Trade.org – Recommendations for effective operational grievance mechanisms

Related Lexology Pro content

How-to guides:

Understanding environmental, social and governance (ESG)
What general counsel (GC) need to know about environmental, social and governance (ESG)
How to consider and navigate the consequences of ESG risks
Overview of climate legislation and regulation in the UK and Europe
How to understand and implement the ‘S’ in environmental, social and governance (ESG)
How to assess suppliers for modern slavery risk (UK)
How to create a supplier code of conduct (UK)
How to navigate the regulatory and litigation risks associated with greenwashing in the UK and EU

Checklists:

UK Modern Slavery Act reporting requirements: Section 54 (UK)
Greenwashing risk assessment (UK)
Conducting environmental, social and governance (ESG) due diligence in supply chains (UK)
Human rights due diligence in supply chains (UK)

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