Mr. Garry Walsh:

I will start on trade agreements and Ms Mateus Parra has addressed Deputy Gannon’s comments on that. She made the important point that we need to be cognisant of the business and human rights impacts of trade agreements but also as new markets are opened for Irish companies this highlights the need for human rights due diligence as these companies enter those markets. It is frustrating that we cannot all be in the committee room today but the pandemic has also given us the opportunity to be able to use video technology to hear directly from human rights defenders such as Ms Mateus Parra. That is one positive if unintended outcome of this pandemic, which is excellent.

I refer to Deputy Brady’s question on the UN treaty and why Ireland and the EU are reluctant to support it. It is a good question. It should be noted that the countries and areas that are least supportive of the UN treaty are the countries and regions where there are the most transnational corporations. Maybe that is not a huge surprise and there is a strong corporate lobby. That being said, the fact that the EU is failing to secure a negotiations mandate on the treaty is inconsistent with the fact that the EU is also progressing legislation around due diligence. As such, the EU should support a UN binding treaty.

What we have heard from the EU and Ireland is that the latest draft of the treaty is not ready for negotiation. The latest is the third draft of the treaty and our civil society networks have done a legal analysis on that. We believe it is imperfect and there are issues with it but it is a stable draft and it is ready for negotiation. While the EU is not at the table, other states such as China, Russia and the US are actively intervening to undermine the process and this is why we need a strong voice in favour of the treaty and to defend the treaty.

We would like to see the EU at the table defending the need for a robust binding UN treaty. That would be the most impactful way to address these issues given the transnational nature of the issue we are speaking about.

Deputy Stanton asked a question, which was elaborated further on by the Chair, around the examples from other countries, particularly those in the EU. France, Germany and Norway, although Norway is not in the EU, have introduced legislation in recent years. We believe these are ground-breaking initiatives because it is first time anywhere in the world that states have legislated for mandatory human rights due diligence across supply chains and moved beyond the voluntary approach. As such we are seeing the beginnings of a paradigm shift, which is very welcome.

We think the laws do not go far enough, although it is probably too soon to assess whether they are impactful enough. In 2017, a duty of vigilance law was introduced in France. There is a threshold of more than 5,000 employees under the law. The law only covers 0.03% of French firms, which we believe is inadequate. If we applied it in Ireland, then one could probably count the number on two hands. The German law has the smaller threshold of covering companies that have more than 1,000 employees. That is progress but, again, if we applied that law in the Irish context, we believe that would be inadequate. Our position is that companies of all sizes and in all sectors have a responsibility, which is outlined in the UN guiding principles. The most robust law, based on human rights principles, should cover all businesses. That being said, we believe due diligence requirements should be proportional. A small company would not have as much requirement as a large company or a company that is not in a high-risk sector. We believe the law should be practical and workable but cover all businesses.

The Dutch have outlined that they will introduce legislation and an announcement will be made in the coming days. We believe the legislation the Dutch are considering is stronger than the French and German examples. The Dutch are talking about legislation that would cover companies of 250 employees or more and apply a two of three principles. That means there would be a threshold of employee number but also a certain threshold regarding the balance sheet or turnover, which we think is something that Ireland could look at given that there are companies in Ireland that may have a turnover of billions of euro yet have fewer than ten employees. As Mr. O'Neill mentioned, there is the Coal Marketing Company, which is registered in Ireland and connected with the serious issues in the Cerrejón mine in Colombia, but it has only 27 employees and a turnover of $2 billion.

We need to make a law that is workable and practicable but we also need to make sure it is effective for communities like those of Ms Mateus Parra and prevents human rights violations. Ireland should take a close look at what the Dutch are doing. As we begin these discussions, it is excellent that the committee is supportive of playing a role in initiating these discussions where it is within the mandate of the committee. As I said in my opening statement, writing to the three relevant Departments would be an excellent way to progress this matter. It would be great to consider the different legislation in different contexts as well as consider the principles we outlined in our report, which we think is the most robust way to introduce such legislation.

I want to address the Chair's question on how this would work in practice through the Irish courts. I will give a few hypothetical examples of how the different duties would work for Irish companies. First and foremost, the legislation that we propose would introduce a legal duty to undertake human rights and environmental due diligence. That involves considering supply chains and with whom one does business throughout the entire global value chain. Indeed, one can see that at the very end of the value chain there are the communities where abuse is happening. Some of the laws do not go through the full chain and we do not think that is effective. We would like if Irish companies were obliged to continually assess their business relationships, which is subsidiaries and suppliers, to see if there are any human rights issues and if a company did not undertake this process, then it would be liable to pay an administrative fine as is done for not paying a television licence. If a business did not undertake the process of due diligence, then it would have to pay a fine regardless of whether harms have occurred.

We would like to see civil liability introduced. Let us say an Irish company imports 80% of its cocoa from a subsidiary in the Ivory Coast and, therefore, it has leverage or a controlling influence over the subsidiary. Let us say it does not undertake human rights due diligence, does not assess the conditions in the workplace and, say, force labour or child labour is involved in production and supply. Let us say the company did not undertake its due diligence and did not address or mitigate this risk. In that instance, under the proposed law, the affected company could take a case through the Irish courts against that company.

The third level that we would propose would be the introduction of criminal liability for the most egregious abuses such an oil spill. Let us say an Irish oil company is involved in a toxic oil spill and there is severe ecological damage. Let us say there is evidence that its company directors are directly implicated and there was negligence or a failure to prevent this severe abuse from happening. In that instance, we would propose that there will be a criminal liability and charges could be taken against the State for that individual. I hope my three examples illustrate how a law might work in practice.