Posted by Santiago Porto
New action in Spain on mandatory human rights due diligence and forced labour
Posted by Santiago Porto
Ahead of likely European legislation, the Spanish government has published a proposal for a law requiring Spanish transnational companies to undertake human rights and environmental due diligence in their supply chains, largely based on the draft EU Directive on this subject approved by the European Parliament. The proposed law is included in the government´s legislative plan for 2022 (Plan Normativo 2022 p.114) and is now open for public consultation until March 3.
This move follows NGO pressure from a platform of more than 500 civil society organisations including NGOs that established the Platform for Responsible Business. But equally importantly the socialist-led coalition government in Madrid is keen to be seen as an active actor in promoting human rights when it takes over the EU Presidency in 2023.
The proposed legislation’s objectives include:
• An obligation on Spanish transnational companies or groups, and those transnational companies that operate in the Spanish market, to respect human and environmental rights in all activities carried out throughout their value chains. This includes a requirement to undertake due diligence throughout the entire value chain, including the adoption and development of due diligence plans that contribute to preventing, eliminating, mitigating and/or remedying any violations. Such due diligence should include the participation of unions and non-profit entities in development, implementation and supervision.
• Provide legal certainty to economic relations between States and avoid unfair practices, thus supporting Spanish companies that apply rigorous standards of respect for human and environmental rights.
• A system of sanctions on companies that fail to comply with their obligations.
• Guaranteeing access to justice for all people or communities that have been victims of human and environmental rights violations derived from the activities carried out by companies in their supply chains as a whole. The law also provides that trade unions and non-profit entities can take collective action on behalf of victims.
• Guaranteeing the right of rightsholders to be informed by companies about the risks that their activities pose to human rights and the environment and of the actions they are taking to eliminate those risks.
• The appointment of a competent, public and independent authority to monitor compliance with the law.
Concerns exist among civil society organisations about the prospects for this legislation passing, given the potential push back from the business sector and some political parties, but this initiative represents a significant step for Spain, which has tended to lag behind some other European countries on these issues. In 2020, the Spanish Global Compact network conducted a survey and only 8% of the surveyed 1,900 Spanish companies stated they measured the impact of their activities on human rights.
Implications for companies and others in Spain and beyond
A committee of experts will develop the legal proposal into specific requirements in the coming months. When and if a law is passed, it will take some time before it comes into effect. Parts of the government, and those political parties closer to the business sector, argue that it makes more sense to wait for the forthcoming EU Directive on Mandatory Human Rights and Environmental Due Diligence. However, there is an opportunity for international businesses operating or sourcing from Spain and also for international civil society, trade unions and investors, to use this legislative proposal to engage their Spanish partners and to test what business and human rights might start to practically look like in a world beyond voluntarism.
National Action Plan against Forced Labour
Another recent development in Spain has been the approval in December 2021 of a National Action Plan against Forced Labour. It is the first time that a specific plan has been adopted in Spain to combat forced labour and to comply with Spain’s international commitments signed with the ILO on this matter. The Plan has been drawn up with the participation of social partners and specialised organisations in the fight against forced labour. Nine ministries will coordinate their actions to implement it over 3 years and an inter-ministerial working group will be created to monitor its degree of compliance.
The Plan’s objectives and activities include (as stated in the document):
• Fight against forced labour in defence of human rights and the dignity of people.
• Eradication of forced labour inside and outside our borders.
• Involve all the actors involved in the fight against forced labour to strengthen its effectiveness.
Specific areas of action identified are:
• Measures to analyse forced labour led by various official agencies and judicial and security bodies to improve existing knowledge about forced labour and share information;
• Prevention, awareness and training measures;
• Detection, investigation and prosecution measures, among which the definition of forced labour as a crime and an intensification of the activity of the Labour Inspection, the State security forces and bodies and the State Attorney General’s Office are foreseen. It also includes measures to protect and support victims;
• International coordination and cooperation measures with international organizations (EUROPOL, EUROJUST, FRONTEX or the European Labour Authority, for example).
As we know from our work in Spain, forced labour is seldomly characterized as an issue by most businesses or even other social actors. So, it is particularly encouraging to see a reference to “the fact that forced labour is not a widespread phenomenon in Spain does not mean that it is not necessary to fight against existing cases, even if they are small in number, with all the means at our disposal”. This plan can be used as a legal benchmark when designing compliance evaluations and remedial action plans with Spanish businesses. Equally, it can be a component of training programmes for workers and businesses in the supply chain on the subject.
Ratification of ILO convention 190 and 177
In other moves demonstrating commitment to international standards on human rights and labour rights, in December 2021, the Spanish government ratified the Violence and Harassment Convention (C190) and the Home Work Convention (C177). For more information on the former, see our earlier blog.