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The UN Guiding Principles on Business and Human Rights – Challenges in the work of the government (2018:8)

Statskontoret, the Swedish Agency for Public Management, has conducted a comprehensive analysis of the gaps and weaknesses in Sweden’s compliance with the UN’s guiding principles on business and human rights, on behalf of The Swedish Government. Included as a part of the assignment, has also been to present proposals for possible measures for improved compliance.

The UN’s principles are based on the government’s obligation to protect human rights, the responsibility of businesses to respect human rights, and the possibilities for individuals to have their case heard in the event of violations.

The principles do not create new legal obligations. Instead, they clarify the significance of relevant provisions in existing international human rights instruments, some of which are legally binding on states. They point out which measures a country is required by international law to implement in respect of businesses and human rights, in order to achieve what follows from various international treaties.

Focus on the work of the Government and governmental actors

Statskontoret’s analysis focuses on gaps, weaknesses and measures regarding how the Swedish government and other governmental actors comply with the guiding principles. We have, among other areas, investigated how Swedish legislation stands vis-à-vis the guiding principles and what measures the Government and other governmental actors have taken to promote the respect for human rights by companies. It is about how the state lives up to the principles in its own activities which have an impact on companies in various ways. And also how the Swedish Government and public authorities guide and make demands on the business activities of Swedish companies, especially what occurs beyond Sweden’s borders. 

The parties can become more engaged and take additional measures

Statskontoret’s overall assessment is that the Government and state actors so far have taken relevant measures so as to comply with the principles. Our analysis also shows that there are grounds to consider further additional measures with the objective of improving compliance. As we were unable to analyse the consequences of all possible measures, they need to be investigated or further developed before it will be possible to implement them. In the following, we will present some of the suggested measures that we submit in the report.  

The possibility of imposing requirements in the field of human rights due diligence should be investigated

Human rights due diligence is a tool that companies can use to prevent that their activities adversely impact human rights. Statskontoret proposes that the Government investigate the possibilities for statutory requirements for Swedish companies to implement human rights due diligence, at least in high-risk situations. It is also our view that the Swedish Government should develop clear criteria for when state-owned enterprises are to conduct human rights due diligence.

Review how the possibilities of remedies could become better

There are several obstacles to effectively remedying human rights violations related to the economic activities of businesses. Statskontoret therefore recommends that the Government review the possibilities for eliminating practical barriers to redress in a court of law, especially those that are associated with the high costs for court proceedings. Regarding remedies outside of a court of law, Statskontoret recommends the Government to consider whether the National Contact Point’s mandate and resources need to be strengthened.

Statskontoret also recommends that the Government investigate whether a statute can be established that provides the possibility to investigate and take legal proceedings against company-related violations of human rights by Swedish companies that occur outside of Sweden. We are also of the view that an increase in the amount of the fine imposed against companies might be able to promote compliance with the UN’s guiding principles on business and human rights. Statskontoret therefore proposes that the Government consider increasing the maximum ceiling, in accord with what has previously been proposed in an official governmental investigation.

Higher demands can be imposed on governmental investments and public procurement

In the report, Statskontoret shows that the criteria used for the evaluation and monitoring of support and investments in governmental activities do not, in most cases, establish as far-reaching requirements as they would if they were based on the principles. Statskontoret therefore proposes that the criteria be harmonised with the UN’s guiding principles on business and human rights.

Our analysis also shows that certain changes in the work with public procurement should be able to improve compliance with the principles. Statskontoret therefore proposes that the Government investigate the consequences of making it mandatory, under certain conditions, to impose more demands associated with human rights in public procurements. We also propose that the Government take measures so that the state-owned enterprises subject to procurement legislation impose requirements in matters concerning human rights to a greater extent in their procurements.

The governmental guidance to companies could be clarified

Statskontoret submits a number of recommendations to the Government regarding the guidance provided to companies. We recommend that the Government clarify how policy documents in various policy areas related to business enterprises and human rights are interrelated. This includes clarifying that there may be a conflict of objectives between compliance with human rights protections and goals within other policy areas, especially in the field of promotion of exports. The Swedish Government should develop a more concrete and targeted guidance with the aim of raising the knowledge and expertise of state actors and companies in this field.