To date, the UK Government’s efforts to curtail access to finance and financial services for human rights abusers has largely focussed on slavery and human trafficking. In particular:
- The Modern Slavery Act 2015 (MSA) amended the list of “lifestyle offences” in Schedule 2 of POCA to include offences under the MSA, making it easier for the prosecuting authorities to bring confiscation proceedings against persons convicted of slavery or human trafficking.
- The Transparency in Supply Chains etc. practical guide, published by the government to assist businesses in preparing slavery and human trafficking statements pursuant to section 54 of the MSA notes the risk of financial institutions laundering funds derived from modern slavery.
This amendment recognises that abuses relating to a wider range of human rights can bring commercial benefits for perpetrators and their associates, and seeks to remove that financial incentive. Having said that, there remain a number of unanswered questions which the Court would need to consider if the amendment to the Bill became law in its current form.
Firstly, the amendment envisages that the respondent’s abusive conduct would need to occur in response to another person seeking to “exercise” human rights. It is unclear what circumstances would be necessary to fulfil this criteria. This may well be a low hurdle, as the Bill is already restricted to gross abuses.
The meaning of “gross human rights abuse” has been the subject of much debate over the years. In a 1993 working paper, the UN Commission on Human Rights’ Sub-Commission on Prevention of Discrimination and Protection of Minorities noted that “distinguishing between gross and less serious human rights violations…cannot be done with complete precision”. This reflects current thinking, although the following helpful guidance can be found in the Interpretative Guide to the UN Guiding Principles published by the Office of the United Nations High Commissioner for Human Rights (OHCHR):
There is no uniform definition of gross human rights violations in international law, but the following practices would generally be included: genocide, slavery and slavery-like practices, summary or arbitrary executions, torture, enforced disappearances, arbitrary and prolonged detention, and systematic discrimination. Other kinds of human rights violations, including of economic, social and cultural rights, can also count as gross violations if they are grave and systematic, for example violations taking place on a large scale or targeted at particular population groups.2
Ultimately, the effectiveness of the new law will hinge largely on the number of applications made to the High Court by NGOs capable of complex investigations involving asset-tracing exercises such as Global Witness, Amnesty International and Human Rights Watch.
Such investigations are on the increase, and the link between human rights and finance is very much in focus. Against this backdrop, the amendment highlights the importance of financial institutions and other professional service providers ensuring their due diligence and on-going monitoring processes are well-attuned to identifying clients and business partners with potential links to human rights abuses.