Dignity and freedom in the eyes of the law

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Today’s US Supreme Court decision to invalidate same-sex marriage bans has been rightly heralded as historic. On a day when the world desperately needed good news (migrants dying in Europe, tourists murdered in Tunisia, worshipers slaughtered in Kuwait and a beheading in France) it was welcome relief. Freedom has an intrinsic value.

However, when arguing against the ruling, Justice Clarence Thomas defines human dignity only in only its “innate” or “inner core” sense (i.e. something all humans are born with and cannot lose). What then happened to dignity as “freedom” (something which can all too easily be lost)?

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I have written before why freedom matters – on the day of the Charlie Hebdo attack. Fear crowds the mind, it makes simplistic solutions to complex problems seem appealing. This is why it is important to look beneath stones. Not all the US Supreme Court Judges were of the same mind. Justice Clarence Thomas registered “a fervent dissent” to the same-sex marriage ruling and backed his argument by evoking the concept of “dignity” as well as the Magna Carta and the work of John Locke. He wrote:

“Slaves did not lose their dignity (any more than they lost their humanity) because the government allowed them to be enslaved… the government cannot bestow dignity, and it cannot take it away”

In other words, according to Justice Thomas, those petitioning for same-sex marriage had not lost their liberty, or their innate dignity, “they have been able to travel freely around the country, making their homes as they pleased”. Now I would agree with the Justice that homophobia in the USA, or some other countries, is not at  the level of persecution suffered by slaves, or even the discrimination that many other minorities face in the USA today. Although there are some countries where direct parallels can be drawn. But that is not the point. The point is that the judge wishes to define human dignity purely in terms of being innate and irreducible to the human condition regardless of circumstance.

But there is no single definition of “dignity” in society or even in law. Some scholars  have traced the legal roots of “dignity” back 2,000 years to Roman law, where it meant much more about “status” than any innate sense of human worth. It is true that at the time when the US Constitution was written, leading thinkers such as John Locke and Thomas Paine had started to define dignity more as an essential core within humanity and we owe much to this thinking today. From Emmanuel Kant to Chancellor Merkel, or many of the excellent speeches given by the current Pope, it is a good thing to regard all human beings as being equal in “dignity and in rights”.

But this is not the end of the debate. There is a very honourable tradition, no better represented than Martin Luther King or Gandhi, that has seen dignity as “freedom”. If the USA means anything to world, in its best moments, then it is the values of freedom and liberty. For Justice Thomas to define dignity (or rather not to define dignity at all) purely in its “inner core” sense denies that there are at least three competing definitions in law (“status”, “inner core” and “liberty”) is misleading and is to evoke dignity as a “bedrock” to end all argument, when actually it is the contradiction between definitions of dignity that really matters.

This is what the Supreme Court ruling means. The majority opinion was that same-sex marriage ban was predominately an issue of liberty. This is also a ruling that recognises dignity in these terms. It is true that dignity has a “inner core” sense which must be legitimately argued, but the ruling of the Supreme Court was not one that ignored the true meaning of dignity – rather it balanced the definitions and came to a sound ruling.

Freedom matters – human dignity requires nothing less. The majority opinion of the Supreme Court says it best, in the words of Justice Kennedy:

“It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

The social licence and the Bank of England

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Mansion House speech, City of London, 10 June 2015

Inspiring to hear the Governor of the Bank of England, Mark Carney, use the term “social licence” so much in his Mansion House speech in London tonight when making the case for greater accountability. Excellent. Lets hope his audience were listening.  Here are some quotes:

On Markets:

“Markets are not ends in themselves, but powerful means for prosperity and security for all.  As such they need to retain the consent of society – a social licence – to be allowed to operate, innovate and grow.  Repeated episodes of misconduct have called that social licence into question.”

… “Real markets are resilient, fair and effective.  They maintain their social licence.”

On Financial Reform:

“This reform agenda has increased the effectiveness of FICC [fixed income, commodities and currencies] markets and reinforced their social licence.  It is frustrating for us all that such major progress risks being overshadowed by misconduct problems.”

On the Governance of the Bank of England:

“The Bank’s arcane governance blurred the Bank’s accountability and, by extension, weakened the social licence of markets.”

Mark Carney’s full speech can be found here. For more on the social licence.

 

10 reasons why UK MPs should accept their 10% pay rise

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Defending transparency and accountability is hardest when it is perceived to be in your self-interest.

It is not popular to defend the £7,000 pay increase for MPs that the independent parliamentary body has recommended, increasing their pay from £67,000 to £74,000 a year before tax (just over US $110,000). But there are, I believe, very important reasons for making such a defence.

First to say that their existing annual salary of £67,000 is a lot of money for most people: it is well above what most UK workers can ever expect to earn: the minimum annual salary being about £13,000 and the average being just over £26,000.

Over the past two days, nearly all leading MPs across all the main parties have lined up in the media to state how much against the proposal they are. Many claim that they will not be accepting the increase, donating it to charity or keeping it in a separate fund. David Cameron, the UK’s Prime Minister, has asked the Independent Parliamentary Standards Authority (IPSA) to drop the proposal, although as an independent parliamentary body, this is a request and not an order.

It has, most definitely, become a public relations issue – with no perceived reputational or political pay off for any MP that defends the increase. It is perhaps a reflection on how deep the trust deficit surrounding Westminster has become that MPs should behave in this way. I will argue here that conversely, the legitimacy and trust of parliamentary activity requires better paid politicians. The social licence of MPs and of Parliament, requires some longer-term thinking and political bravery as there are deeper issues at stake – the transparency and accountability of elected bodies in the UK and around the world. And yes, even if this means MPs being accused of standing up for their own financial interests on this one occasion, much better it is done within the antiseptic fresh air of public scrutiny than some of the corruption of the past.

1.  It is true that public sector pay in Britain has largely flat-lined over the past six years whilst the richest in society continue to get richer. This is heavily unfair and speaks to an increasingly unequal society. But the issue of MPs pay has not effectively been dealt with since the expenses scandals of 2009 and, let it be said, before that many MPs had regarded their expense claims to be more or less unofficial salary top ups. So MP pay issues in the UK go back much further in time and were also related to the other income they might receive from other forms of employer, shares or consultancies. The old ways of doing things were opaque, and sometimes corrupt, lets not return to that.

2.  The increase would bring MPs in the UK onto a par with those in Germany (this seems a fair benchmark) but still well below MPs in countries such as Japan, the USA or Italy (some better benchmarks than others perhaps). Other public professions in the UK: head-teachers, senior civil servants and hospital administrators can all earn significantly more. There is never a good time to try and correct this imbalance, now is as good as any other.

3.  Allowing MP salaries to continue to fall behind other professional benchmarks favors rich MPs. A 10% pay increase matters very little if you are independently wealthy, like some leading UK politicians are, but matters a great deal if you started with very little and trying to work 80 hours a week to serve your constituents and tackle inequalities. One shocking indicator are the number of UK MPs that have attended private school – a huge social class indicator in the UK which still surprises many of my overseas friends. Only 7% of the UK population attends private school, but they represent 54% of current Conservative MPs, 41% of Liberal Democrats and 12% of Labour MPs. This is perhaps a better benchmark for representational legitimacy than the pay rise issue.

4.  The issue of trust and legitimacy in the eyes of the public is not just about the amount earned, it has been about the lack of transparency and accountability. The two should not be confused. Now that an objective process is in place, MPs should not pussyfoot around the recommendations of the Independent Parliamentary Standards Authority (IPSA) for reasons of short-term perception. How does this help trust and legitimacy over the longer term?

5.  IPSA was created with the very mandate to place the pay increase decision, as well as other related issues, outside of political considerations and benchmarked against external indicators. To not implement this recommendation undermines the ability for objective oversight of such procedures within Parliament.

6.  Creating ‘ring-fencing’ schemes for the increase will cause chaos and the kind of lack of transparency that IPSA was created to avoid. If an MP wants to give some or all of the salary to a charity, fine, but it should not be linked to the pay increase issue. They should also make sure that the name of the recipient charity is publicly declared, as such external interests are indeed an issue of public concern, particularly when it is in effect public money which is being re-routed.

7.  We want the best MPs we can across the three countries (England, Scotland and Wales) and one province/region/country (Northern Ireland) of the UK – not just the richest, privately schooled Oxbridge educated middle-class or a Parliament dominated by the zealots. If it is true that Sepp Blatter earned $10million a year, and some UK bankers and CEOs do still not earn much less, shouldn’t UK MPs earn the equivalent of 1% of this, especially when they are meant to rein in the corrupt?

8.  Giving a pay rise to MPs might create a stronger moral argument for ending public sector pay restraint elsewhere, particularly those professions blighted by poor pay such as residential care.

9.  IPSA have clearly stated the pay award can be funded by the savings in MP expense claims and so there is no negative impact on the parliamentary budget.

10.  If the IPSA recommendation is rejected by parliamentarians it will send a very perverse message on the UK’s commitment to transparency and accountability. Lets not forget that other parliaments around the world – some of which pay MPs more even in less developed economies – do not have similar oversight bodies. IPSA was very late in coming in the UK but, unless its work is supported by MPs, it will be undermined at home and is unlikely to be a model for reformers elsewhere around the world.

Yes, this is an instance where political bravery means an extra £7,000 a year before tax and where each MP (how ever uncomfortable it might be) will need to look their low-paid electorate in the eye during constituency surgeries and justify why it is in the longer term interests of the country. Not according to them but according to IPSA. Isn’t that what independent oversight is mean to be about?

Why don’t we love the European Convention on Human Rights?

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This is a question to ask anyone on the continent of Europe, from the West Coast of Ireland to the Ural Mountains. The European Convention on Human Rights (ECHR), and its Court in Strasbourg, owes nothing to the European Union for its existence as it was created immediately after the Second World War and has 47 member states, including Russia, Turkey and the Caucuses (in fact every county apart from Belarus). The Council of Europe, which oversees the European Convention and the Court, was inspired by Winston Churchill (the UK’s wartime leader) who believed that political union based on core values was essential to prevent future European wars.

It is therefore perhaps surprising that the 2015 manifesto commitment of the recently elected UK Government is to scrap the UK’s Human Rights Act that incorporates the ECHR into law. The ECHR was very much a Conservative Party creation, drafted under the guidance of David Maxwell-Fyfe in the late 1940s, a politician who was to go on to become the UK’s Lord Chancellor. So why are we here?

Human rights are rarely popular

Human rights are not usually a vote winner, in particular when we consider their legal aspects. Perhaps this is because most legal cases relate to specific (often marginalised) individuals and not the majority. When the majority does benefit through policy changes, such as child protection, gender equality, care of the elderly, personal security, education, health and so on, these are rarely regarded as human rights issues (which in fact they are). In the UK, the debate about the much-cherished National Health Service is rarely framed within the terms of the “right to health” and the UK’s commitments under the United Nations Covenant on Economic, Social and Cultural Rights.

The legal cases that have been taken to the Strasbourg Court have been much more associated with the civil and political rights of individuals including prisoners, asylum-seekers, suspected terrorists and so on. Tabloid newspapers have long had a field day on such issues – resulting in many to comment “what about my human rights?” The fact human rights law defends sometimes unpopular minorities for reasons of legal precedent (they are the “canaries in the coal mine”) is rarely explained to non-lawyers (and I am no lawyer). Given the lack of public awareness, some might argue that a debate about a “British Bill of Rights” in the place of the ECHR might be a good thing – to engage the wider public. However, there are a number of important reasons why this might not be the case.

A British Bill of Rights?

At first glance it sounds rather nice: evoking the 800 years legacy of the Magna Carta and all that. But the debate about what should be in such a Bill of Rights will be fierce and might well surprise some of its supporters. Our commitments to human rights within the United Nations are now far more expansive than under the ECHR – including economic, social and cultural rights and more recently the recognition that business too have a direct responsibility to respect human rights. If all of these human rights are to be strengthened under UK law – fantastic – but is this what the Government wants? Will we be litigating to protect rights within the education system, healthcare, water provision or the indignity of food banks?

The UK is generally serious about its United Nations human rights commitments and its place at the top table in New York and Geneva – in particular its permanent seat on the Security Council. Therefore it would be hard to ignore the full range of internationally recognized human rights if the process is to be reopened? If, however, a British Bill of Rights were to be restricted to civil and political rights only, it is likely to be a near carbon copy of the existing UK human rights legislation unless we were to leave the European Court and the Council of Europe altogether. I believe that leaving the ECHR would have very serious international consequences as set out below.

It is also important to note that Scotland, Wales and Northern Ireland are likely to take a very different view on such a British Bill of Rights. Both Northern Ireland and Scotland have their own Human Rights Commissions aligned to the ECHR – they might want no part of a British Bill of Rights that was not fully aligned to the ECHR (and therefore what is the point of replacing the existing UK Human Rights Act?). Does the government really want to provoke such discord at the very time it is trying to keep the Union together? In many ways what is being proposed is actually an English Bill of Rights and not a British one – suddenly it doesn’t sound so compelling. Should the English have fewer human rights than the Scottish, or vice versa?

Leaving the European Court on Human Rights?

It might well be the case that the problem some British politicians have with the ECHR are not the rights themselves, but the lengthy delays involved in cases and (in the case of the right of prisoners to vote) decisions that offend political sensibilities. Occasionally frustrating government ministers is the job of any human rights court, and what is rarely reported in the UK press is how the European Court offends such sensibilities in Moscow, Budapest or Ankara too. The UK leaving the ECHR would send a very clear message to other politicians in every capital across 47 countries (not all of which have outstanding records on human rights) that the days of accommodating the opinion of a court beyond their borders is over? I feel for the British Ambassador in any of these capitals when he or she has to explain this to local human rights defenders, and I worry very much for all those risking their lives for freedom everywhere as the ECHR is also much admired model for those working to developing the capacity of their regional human rights courts in Africa or the Americas.

Citizens within the UK would also be stripped of their ability to petition beyond this country for justice. If we assume that the legal systems of the UK are flawless then fine, but I have yet to meet a British judge who believes this to be the case. Some countries allow their citizens to petition under United Nations human rights conventions but the UK has signed very few of the optional protocols that allow for this. I have heard nothing to indicate that the UK would allow for this as part of such a British Bill of Rights.

Finally, it is worth adding that although the Council of Europe is nothing directly to do with the European Union (which was set up later has far fewer member states), the EU has endorsed the ECHR and recognizing the ECHR is now essential for all EU members. This includes the work of the EU’s External Action Service around the world as well as the internal role of the Fundamental Rights Agency in Vienna. Any plan to revoke the UK’s recognition of the ECHR would play directly into its forthcoming referendum on EU membership.

Where do we go from here?

As is often said at such moments, no one would choose to start from here. The UK Government is right to demand greater efficiencies and clarity from the Strasbourg Court process – as the Brighton Declaration suggested (during the UK’s turn as Chair of the Council of Europe in 2012).

A public debate on the value of human rights law is also welcome as well as the nature of the UK’s international commitments. The challenge will be that an a priori commitment to revoking the UK Human Rights Act might raise the expectations of those hoping the UK will step away from some of its wider human rights obligations – something no internationally responsible democratic Government is likely to do. The debate about a British Bill of Rights might, therefore, waste a lot of time, energy and money if we end up very much where we started in a couple of years time. Worse than that, unless handled with extreme care, the debate might alienate further democrats and civil society in Northern Ireland, Scotland and Wales – and send a very perverse message to other governments around the world less committed to human rights.

We are where we are, and so we must all hope for some level headed and inclusive discussions that really do put human rights in their full context and what is at stake for both British interests but also human rights defenders worldwide. If the UK (or just England) were to leave the ECHR it might not affect the lives of most British people directly in the short-term unless you are unlucky enough to have your fundamental human rights put at risk over the years ahead. But it would have an immediate impact on this country’s international relations and the wellbeing of vulnerable communities across Europe and around the world, as well as integrity of the component parts of the United Kingdom. I know that Government ministers want what is best for this country and so they need to proceed very carefully now the genie is out of the bottle. This too at a time when the UK Anti-Bribery Act and the UK Modern Day Slavery Act set new benchmarks for how our Government, companies and charities must behave around the world in accordance with international standards.

For those of you reading this commentary outside of the UK, perhaps it resonates with your own national discussions. If not now, it might well over the months ahead as discourse in the UK might embolden those who see little value in Churchill’s legacy and the post war social contract.

The 7 May 2015 “British” election

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“Those who expect to reap the blessings of freedom, must undergo the fatigues of supporting it.”    - Thomas Paine (1777)

Thursday 7 May 2015 is the date of the UK election. It  is more than a British election in a number of ways. The fact that there is no adjective for “United Kingdom” – you are either British (i.e. English, Scottish or Welsh) or Irish – is a linguistic clue to a deeper force at work once again. Being of the United Kingdom of Great Britain and Northern Ireland seems to be diminishing still further as a collective identity.

For the first time in over 300 years of union, Scotland might (just might) return only pro-independence nationalist representatives to the Westminster Parliament – something Wales or Northern Ireland have never done (nor for that matter the rest of Ireland before its independence). Even if the Scottish Nationalists fall slightly short of winning all 59 Scottish seats, it is likely to be a historic achievement. The 2015 election looks like being not just about the respective number of Members of Parliament (MPs) but also about the legitimacy of different parties to be part of a government given that none is likely to command an overall majority.

The arithmetic itself highlights what is wrong with the current British democratic system. It maps very poorly onto the new political allegiances that have emerged across the UK over recent years, partly due to our “first past the post” electoral system (in Britain) but also due to how concentrated some votes are. The United Kingdom Independence Party (UKIP) – who despite the name are de facto English Nationalists – looks like gaining 10-14% of the overall UK vote, but perhaps only one or two seats in Parliament. Nationalists in Wales and Northern Ireland will gain more MPs than UKIP but with a much smaller percentage of the overall UK vote (largely because they are concentrated in a few seats each) and it should be noted, that Sinn Fein (part of Irish Nationalist community) will not take their seats in Westminster anyhow.

But the Scottish Nationalists (SNP) will command perhaps only 4-5% of the overall UK electorate but might win 54 or more of the 59 Scottish seats in Westminster. The 50% of Scotts who do not vote SNP tomorrow might not see many or any Scottish Labour, Liberal or Conservative MPs in Westminster. Apart from being a bit weird it is huge drain of talent from the Labour and Liberal Parties and from Westminster as a whole.

But I am not blaming Plaid Cymru or the Scottish Nationalists for this state of affairs – both have advocated for proportional representation. As commentator and satirist Armando Iannucci points out, it is the system itself that is rotten and for this we must blame the two parties that have dominated UK politics for too long: Labour and the Conservatives – for not reforming it. Whilst the de facto English nationalists – UKIP – also claim to be a reaction against the status quo – unlike the Irish, Welsh or Scottish nationalists they cannot credibly claim to be progressive with their anti-immigration and anti-European rhetoric. Intriguingly, if the UK does start to pull apart, even only through greater devolution, it will open political space for any progressive English nationalist party should they ever choose to be labeled such terms given hegemonic problems of being labeled “English”. I am not a nationalist – so I leave this bone for those that think nationalism is a legitimate dogma in the twenty first century.

What makes the May 7th result particularly interesting is that the two main parties are neck and neck at around 33% of the popular vote between them across the UK. In terms of seats, however, this favours the Conservatives in terms of numbers of MPs as their vote is concentrated in England (and particular the South of England). But even this advantage looks as if it will not give the Conservatives enough seats to rule on their own – another coalition will be essential but their partners of the past five years, the Liberal Democrats, will be the biggest losers on May 7th in loss of vote – as were the Liberals in Germany after their first coalition with Chancellor Merkel. There might not be enough Liberal Democrat MPs in the new Parliament to give the Conservatives what they need.

What the colour combination of the next UK coalition will look like is a matter for those who like to set bets and gamble. Unlike Germany, a Red-Blue (Social Democrat – Conservative) “grand coalition” is impossible in UK terms. It happened unofficially last year in Scotland during the referendum on independence and many Scottish voters still resent it. As much as nationalism is emerging as a powerful force in UK politics, it does not trump the much deeper class divide anywhere with the possible exception of Northern Ireland. British politics remains tribal on class grounds, much less so than it was, but the two main parties still have their core votes determined more by genetics than manifestos. What is truly radical about what is happening in Scotland, is that this might be shifting to a new model (albeit an independent Scotland could not be governed by a spirit of nationalism forever and would revert to left-right divisions).

What we will see in the next few days is a hint of a new style of politics in the UK – and one in which legitimacy places an increasing role. Not all the permutations for building a 326 MP coalition in the Westminster are easily legitimate in representative terms – given the imbalances I have outlined above. Until the voting system is reformed (replaced by proportional representation) and we move to a more permanent multi-party system, Westminster will feel its social licence draining away. Its political licence might be cobbled together for another five years, it might have legal licence in constitutional terms, but the social license – the result of the social contract between the peoples of the United Kingdom and their representatives in Westminster is increasingly badly damaged and must be repaired before democracy can once again thrive on these isles west of France.

To end with the words of a British man, in fact an Englishman who perhaps gave the world more in democratic ideas than just about any other. The democracies of France and the USA both owe much to Thomas Paine, but he was never much liked by the elite back at home – in fact he was wanted for sedition: to be hanged for his dangerous thinking. But Paine reminds us in his quote from 1777 (that starts this commentary) that democracy itself is a lot of hard work.

Immigration – more than a numbers game

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The UK election will be decided in less than three weeks and immigration is indeed one of the main issues  as it has been in many other European countries. Whilst the party leaders will debate the UK’s membership of the European Union, none has so far mentioned the two airplane loads of passengers washing up dead on the European coast this week alone. Let me rephrase this. The equivalent of two plane loads of irregular migrants assumed dead in capsized boats trying to make the Italian coast from Libya in the past week. If they had been airline crashes then the media coverage would have been tenfold greater. But they are not plane  passengers, they are nothing more than “clandestinos” and supporting their rights wins few votes. Perhaps the biggest moral issue for Europeans in this generation is rarely a central political concern, particularly to those in the North and West of Europe far from the Mediterranean. When agreement is reached, it is often perverse – such as ending support for Italy’s “mare nostrum” humanitarian interventions for fear that it just attracts more migrants.

However, political debates about immigration are not really about numbers. How does any society decide it has enough migrants? About 9% of the UK’s population is foreign born, whilst in Australia or Switzerland it is 24% and it is over 80% in the United Arab Emirates or Qatar. How to know when enough is enough? It is very hard for host populations to make objective decisions about this, so too their politicians. One common factor for most of these countries is that it is the localities within them with the lowest percentage of immigrants that are often the most anti-immigrant in sentiment. So perhaps it is not about numbers at all, but about the perception of those numbers, about qualitative and not quantitative issues. The target to reduce net immigration to the UK by the current coalition government to 100,000 was all but abandoned last year – so perhaps mainstream British politicians are also realizing this.

Immigration debates then become more meaningful when they are about qualitative issues. Sometimes this can raise tough questions about cultural identity and religion – some of which we discussed in the aftermath of the Charlie Hebdo attack in Paris in January. These can be uncomfortable and challenging discussions but they are what the immigration debate in Europe is really about (but in code), not about the numbers. At its essence is the clash between those that believe Europe should remain predominately white and of Christian heritage and others who see Europe as part of an interconnected world united by a set of universal values but not a set of religious beliefs or a shared bloodline. Those of you who read my blogs know what side of this discussion I am unambiguously on – but it is where the debate really is. In fact it is less and less about immigration at all, as each of cultural identities is beginning to become independent from where in the world any of us are born.

On a more positive note, some British politicians are taking a much smarter position of immigration – linking it more to abuse and exploitation than to numbers. It is an undoubted fact, that some immigrants coming to the UK (in particular those entering illegally) are vulnerable to considerable exploitation in the labour market. This came to prominence in 2004 when 23 Chinese workers drowned whilst picking seashells in the North of England and the issue of unregulated third party labour providers came into focus. The Gangmasters Licensing Authority, which now regulates the role of labour providers in UK agriculture, horticulture and shellfish farming, is a very important step towards ending labour market exploitation. Fundamentally, it focuses on ending exploitation not just for foreign-born workers but also native workers too – exploitation is exploitation. The powerful message this sends is that the UK wants to be home for migrants but not at any cost – not if it means undercutting the protections and rights of native workers or the migrants themselves. This is surely the most effective way of controlling immigration – regulating the labour market and not just the borders.

No UK Government minister has yet been willing to extend the remit of the Gangmasters Licensing Authority to other business sectors donated by temporary agencies, such as hotels, catering or construction. But perhaps after the forthcoming election, whichever party wins, it would make good political sense to do so, in particular if Britain’s newest piece of legislation, the Modern Day Slavery Act, is to become more than a piece of paper.

What more can be done about human trafficking: a lot more

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This is my speech to the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice, Doha, Qatar, 14 April 2015

(reproduced with kind permission of the Institute for Human Rights and Business)

Global supply chains are powerful. They are fundamental to the global economy. If we accept that there is about $60 trillion in the global economy, then according to UNCTAD, about $6 trillion of this (i.e. 10%) is in intermediate products – i.e. goods that require a global brand or other buyer before being sold on the open market. South-South trade is growing significantly, but South-North supply chains are still twice as dominant in financial terms. They are also an increasingly important part of the global labour market with hundreds of millions of workers directly or indirectly involved. Tens of millions of these workers are low-skilled migrants – either within their own country or across international borders – and many of these workers can be vulnerable to exploitation through debt bondage, fraud, withholding of ID documents, non-payment of wages, and a host of other abuses.

Business has a critical role to play in the fight against smuggling of migrants, forced labour and trafficking of workers into the formal economy. According to the ILO, there are nearly 21 million people in forced labour around the world at any given time, over 14 million of these in activities such as agriculture, construction, domestic work and manufacturing. Forced labour and slavery are crimes punishable under international law, as we know. The growing concern over the rise in numbers of people being trafficked not only for sexual exploitation but also for labour exploitation led the international community to adopt in 2000 the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children. The Protocol supplements the UN Convention against Transnational Organised Crime, and came into force in December 2003.

While states clearly have the legal duty to protect citizens and prosecute those involved in exploitation and trafficking, I want to turn our attention here to the role of the private sector in this area. What are the responsibilities of companies to respect human rights and combat forced labour and trafficking within their areas of operation and influence? To what extent can companies be deemed to be complicit in smuggling of migrants or trafficking offenses within their supply chains when they may well be unaware of these activities?

In 2011, the UN Human Rights Council took an important step forward in clarifying corporate human rights responsibilities when it unanimously endorsed the UN Guiding Principles on Business and Human Rights, the final product of Professor John Ruggie’s six-year mandate as the UN Secretary-General’s Special Representative on Business and Human Rights. Many of you will be familiar with its 3-pillar architecture, of the State duty to Protect, the Corporate Responsibility to Respect all human rights and the need to ensure Access to Remedy for victims of corporate related rights abuses.

With regard to migrant workers, and the risks of human trafficking, companies have a responsibility under the Guiding Principles to undertake ongoing due diligence to ensure the risks of exploitation are minimized and access to grievance mechanisms and remedy are in place. This is a huge challenge in the globalized economy. From the raw cotton in the fields of Uzbekistan supplying garment factories in Bangladesh to the mines in DRC producing coltan for mobile phones assembled in Malaysia, or the Thai fishing boats producing prawns for sandwiches consumed in London, supply chains are often complex and distant. Due diligence is required not only in the sourcing of commodities and components, but also in the sourcing of labour. Do apparel retailers know how the Bangladeshi workers in the factories they source from in Jordan or elsewhere were recruited? Do global hotel chains know how many of the South Asian construction workers building their hotels in Dubai or in other cities around the world are working as bonded labour due to the levels of debt accrued by recruitment fees charged by labour brokers?

For the last 20 years we have seen companies attempt to undertake due diligence and provide remedy at a distance through social auditing. This reliance on audits, often sub-contracted, has done little to enhance protection for workers or prevent forced labour and trafficking. A new approach by business is needed with an emphasis on responsible recruitment of migrant workers to combat the risk of bonded and forced labour and trafficking.

My colleagues and I at the Institute for Human Rights and Business has been working with a range of partners, including the ILO and the Office of the High Commissioner for Human Rights, to focus on the role of third-party labour providers present in many global supply chains. These labour providers can pose a significant risk to worker welfare and possible exploitation due to a range of all too common practices including excessive fees charged to workers, the retention of ID documents, and the lack of transparency around contracts. We are working to promote ethical recruitment whereby companies require their suppliers to use registered labour brokers only and to pay the recruitment costs instead of the workers paying those fees and thereby accruing onerous levels of debt.

In 2011, we launched the ‘Dhaka Principles for Migration with Dignity’, with the support of leading global companies and the ITUC. The Dhaka Principles for Migration with Dignity rest on two foundational principles:

First, that all workers are treated equally and without discrimination.

Migrant workers should be treated no less favourably than other workers performing the same or similar work. Moreover, migrant workers should be protected from any discrimination that would constitute a violation of human rights.

Second, that all workers enjoy the protection of employment law.

Migrant workers should have a legally recognised employment relationship with an identifiable and legitimate employer in the country where the work is performed. 

Following these broad statements, the Dhaka Principles are made up 10 implementation steps that can relate to any global supply chain and minimize the risk of trafficking and forced labour from occurring. Allow me to briefly explain these steps, as each are of critical importance and part of a growing international consensus on what is needed to wipe out human trafficking and migrant smuggling:

  1. No fees are charged to workers

The employer should bear the full costs of recruitment and placement. Migrant workers should not be charged any fees for recruitment or placement.

  1. All worker contracts are clear and transparent

Migrant workers should be provided with written contracts in a language each worker understands, with all terms and conditions explained clearly, and the worker’s assent obtained without coercion.

  1. Policies and procedures are inclusive

Migrant workers’ rights should be explicitly referred to in employer and migrant recruiter public human rights policy statements, relevant operational policies and procedures addressing human rights responsibilities.

  1. No workers’ passports or identity documents are retained

Migrant workers should have free and complete access to their own passport, identity documents, and residency papers, and enjoy freedom of movement.

  1. Wages are paid regularly, directly and on time

Migrant workers should be paid what they are due on time, regularly and directly.

  1. The right to worker representation is respected

Migrant workers should have the same rights to join and form trade unions and to bargain collectively as other workers. Let me say a few additional words on this point as they too often are left unspoken.

The biggest single factor in preventing forced labour and trafficking in supply chains is the active presence of trade unions. Where trade unions are able to operate effectively, incidents of modern slavery are demonstrably reduced. Increasingly, enlightened businesses are realizing that far from being something to be feared, trade unions are a key way of ensuring decent workplace standards and protection against exploitation and abuse.

And not just in relation to forced labour and trafficking. The positive role played by the Industriall union in the Bangladesh Accord, after the Rana Plaza tragedy just two years ago is an example of how working partnerships between the brands and trade unions can offer credible solutions to systemic problems. In fact it is the only credible solution. Business has nothing to fear from strong modern trade unions and a great deal to gain. The role of trade unions in helping ensure slavery- free workplaces will become increasingly significant as business realizes it is better to address systemic challenges within their operations than simply continue to face problem after problem in their supply chains. Collective agreements across entire sectors are key to transforming workplace standards, avoiding business risk and helping to deliver respect for rights including human rights.

  1. Working conditions are safe and decent

Migrant workers should enjoy safe and decent conditions of work, free from harassment, any form of intimidation or inhuman treatment. They should receive adequate health and safety provision and training in relevant languages.

  1. Living conditions are safe and decent

Migrant workers should enjoy safe and hygienic living conditions, and safe transport between the workplace and their accommodation. Migrant workers should not be denied freedom of movement, or confined to their living quarters.

  1. Access to remedy is provided

Migrant workers should have access to judicial remedy and to credible grievance mechanisms, without fear of recrimination or dismissal. Beyond the moral reasoning of offering protection for those working within a country or migrating to work, there are also sound economic reasons for governments to do so. We hear much of how laws and regulations strangle and stifle the dynamism of business. The suggestion is often made that if only law-makers would step aside, business and markets would establish themselves to overcome problems and design effective solutions. The experience of IHRB and the many businesses we speak with tells a very different story. If there is one thing that all business wants, and we hear this constantly, it is stability. A set of clearly defined stable conditions that enable them to compete fairly within the law.

  1. Freedom to change employment is respected, and safe, timely return is guaranteed

Migrant workers should be guaranteed provision for return home on contract completion and in exceptional situations. They should not, however, be prevented from seeking or changing employment in the host country on completion of first contract or after two years, whichever is less.

The good news is that a small but growing number of leading global companies have introduced a policy of ‘no worker fees’, such as Apple, HP and Coca-Cola. Others include policies on non-retention of worker passports. With bold corporate leadership this can become the industry norm. Coupled with strong legislation and enforcement by governments requiring companies to use registered labour brokers, these would be very significant steps to reducing the risk of forced labour and trafficking.

Governments are taking steps to require companies to report on how they are addressing the risk of forced labour and trafficking in their supply chains. In the US, the California Transparency in Supply Chains Act of 2012 and the UK’s very recently passed Modern Slavery Act are two such examples, and are being welcomed by responsible companies as a means of leveling the playing field and mitigating risk across industries.

The British Retail consortium and a collection of leading UK Businesses, including a number of leading supermarkets and retailers, made a submission to the UK government regarding the Modern Slavery Bill as it passed through Parliament. In it they stated:

“ we would like to see a clause in the Bill that calls for transparency in supply chains. We believe that smart legislation that requires all companies to be transparent about the steps they are taking to address modern slavery and child labour in their supply chain can help drive stronger and broader efforts to end exploitation and abuse of workers…”

They go on to say:

“ We know we can and must continue to do more to prevent modern slavery and the media and the public demand that we do this. But we can do so more effectively where clear, well designed regulation …. is in place.”

The strength of effective state legislation and enforcement to protect human rights, along with the collective actions and human rights leadership of responsible companies and adequate access to remedy, are all essential elements in tackling the rising tide of trafficking that we are seeing in so many industries and countries today. We at the Institute for Human Rights and Business stand ready to work with all of you who are committed to combating human trafficking and protecting the rights of all migrant workers around the world.

Thank you.

Myanmar – what progress towards responsible business?

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This is a personal reflection of my latest visit to Myanmar and the work of our centre there (reproduced through kind permission of the Institute for Human Rights and Business, www.ihrb.org)

2015 is a big year for Myanmar, with Parliamentary elections due in November after which the next President will be chosen. Experts suggest we can expect the election process to be generally free and fair, albeit under the Constitution Daw Aung San Suu Kyi is forbidden from holding the office of President and 25% of parliamentary seats will remain with serving military officers.

Still, it is remarkable how much has happened since 2012 as well as how many challenges remain. While there is good reason to be hopeful about the future of Myanmar, recent violence surrounding student protests highlights that the stakes are still very high, not least in human rights terms.

It is nearly two years since we established the Myanmar Centre for Responsible Business (MCRB) with our partners at the Danish Institute for Human Rights. We said at the time, and will say again, that our work does not seek to “pick on Myanmar” but rather to remind governments and businesses of the international commitments they have made and help encourage sustainable trade and business – sustainable both in social and commercial terms. In fact, many of the challenges facing Myanmar are relevant elsewhere and undoubtedly transferable to the model of local centres on responsible business we are helping develop in other regions.

My recent visit to Myanmar was the first since Vicky Bowman’s appointment as MCRB Director and the opening of the Yangon office, although I had visited several times during the 2011-12 establishment phase and have been actively involved in the process since. Vicky is known to many in Myanmar not only as a former British Ambassador to the country (the youngest female ambassador in British history) but also for her own human rights advocacy.

Our programme during my stay in Myanmar was tightly packed. We met donors as well as senior diplomats from China and Japan; took part in anti-bribery training; toured a major bottling plant in Hmawbi; participated in a day long civil society meeting on disclosure, partnering with the Business and Human Rights Resource Centre (BHRRC); attended a public debate at the British Council for over 100 participants; discussed ongoing work on the ICT Sector-Wide Impact Assessment (SWIA) and potential agriculture sector work; and traveled for a three-day field mission to the southeastern town of Dawei (capital of Tanintharyi  Region close to the Thai border).

Our stay in Dawei was packed as well with roundtables with local businesses and NGOs respectively; a visit to the site of the proposed Special Economic Zone (SEZ); met the monk of a village that had resisted resettlement and three others who had fled their relocation houses to leave a ghost town; and traveled to Heinda mine up in the mountains run by a Thai company where the waste water and silt from the mine had polluted and silted up the stream and brought more than a foot of toxic mud into the nearby village.

Otherwise, it was rubber, coconut, cashew and betel nut plantations (all of which blended into the landscape much better than palm oil, it seemed to me, also allowing for small-scale farming and livestock to run alongside). And yes, we needed to visit nearby Maungmagan beach to assess the impact to date of tourism, still catering mainly to Myanmar visitors although a few intrepid foreigners make it down there, and a French-Burmese couple have set up simple accommodation in a coconut grove.

All of this might be about to change, big time, with plans for pipelines, a deep-sea port, a petrochemical complex, and even a railway across the border to Thailand, Cambodia and Vietnam in addition to the SEZ itself. Even some of the local business representatives seemed very shaky on all the details, and local civil society feels very poorly consulted and therefore is in opposition to most aspects of these plans. It is unlikely that the Ital-Thai development company will be able to pull any of it off without a surge of major (most likely Japanese) investment.

Despite the useful firsthand contact with so many different stakeholders, the bigger question I’ve asked myself since my visit is: So how do we know if we are making progress? First, it is clear to me that MCRB is firing on many cylinders. Its initiative to rank local companies on their performance (Transparency in Myanmar Enterprises or TiME)intrigued both the international companies I spoke to and the embassies. It seems the need to “know your local business partner” is one of the main drivers for foreign investors and one where MCRB is now very well positioned. And importantly, the TiME project continues to be a great way to engage Myanmar businesses in improving their own transparency with the public. Equally important, our joint work to look in detail at the potential and actual human rights impacts of specific industry sectors through our SWIAs programme has also formed a solid basis for ongoing local engagement. I heard good things about the Oil and Gas sector stakeholder meeting that my colleague Margaret Wachenfeld participated in during January, and the Tourism SWIA seems to have opened opportunities for similar engagement.

One question in my head before this visit was how local civil society perceived MCRB. I was encouraged to find that my colleagues’ efforts, including on the SWIAs and TiME, have convinced many organizations that we are indeed serious about disclosure and transparency – and that our activities benefit civil society as much as they do business or government. MCRB has clearly earned a significant profile and level of trust from all sides. And in terms of real impact, it was gratifying to see that the most frequent and complete responses to the recent BHRRC survey of international companies were in the three sectors where we have been active with SWIAs (Oil and Gas, Tourism and ICT).  This might be dismissed as chance had several respondents not cited to BHRRC the relevant SWIA as one of the main reasons they had developed in-country human rights policies.

One strategic priority moving forward, and an area where we can build and then maximize our leverage, involves engaging with the three SEZs and the Asian investments they are bringing in: Kyaukphyu (in Rakhine State and where the China gas and oil pipeline starts from a Korean-run offshore field, Thilawa near Yangon (where we are already engaged with JICA and helping to catalyze a multi-stakeholder approach) and Dawei, dominated by Thailand but with the prospect of more Japanese involvement. Each SEZ has a different history and stakeholders, but land issues are common to all.

This is not to neglect the significance of western investment in the SEZs – in Thilawa the presence of US aluminum can company BallCorp, hoping to supply to Coke and therefore bound by the company’s no land grab policy – and apparel factories hoping to supply to Europe and the US. But it is clear that we need to develop more leverage where it is needed most: intra-Asian investment. Who will do the deal with the Military-owned dominant beer company with 80% market share (the same military holding Company criticized in the recent Amnesty International report on the Letpadaung copper mine in which it has a share and a neighbouring unregulated acid factory)? Will it be SAB Miller or their Japanese or Thai competitors? Whichever, we need to be drawing a clear red line about the unacceptability of making responsible business claims when a business partner has guns, blocks effective community consultation, and lacks transparency and accountability [or more colloquially, “operates in a secretive fashion”].

Important for us is to know whether our heavy regional investment in Myanmar over the past four years is leading to real change in state and business practice and whether an MCRB inspired model is replicable elsewhere. We have sunk a lot of strategic energy into the hypothesis that it can and that our developing regional centres in Kenya and Colombia can emulate aspects of what is being achieved in Myanmar – and perhaps vice versa. Certainly, the TiME ranking of local companies’ transparency is compelling and something similar could be attempted in East Africa and Latin America. It should also be noted that the world’s first Mining SWIA will be completed in Colombia and not Myanmar, and so if Myanmar starts one in 2015 or 2016, we will be transferring methodology into the country and not out.

In the end, I think MCRB has shown over the past two years that it has the ability to create an impartial and safe space for dialogue and joint action. Many to whom I spoke agreed that if it were not for MCRB, and initiatives like the SWIAs, TiME and so on, there would be little or no multi-stakeholder dialogue involving oil and gas, tourism or ICT sectors in the country. This alone seems a powerful potential legacy.

It is certainly too early to assess whether the MCRB model really can produce tangible change where needed most, and I must admit to being biased here, but all signs indicate we are on the right track. Our work in Myanmar is clearly delivering and it seems poised to take on the significant challenges ahead. In the meantime, I would like to thank Vicky and her team for their outstanding work.

Magna Carta: Magna Negotium

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800 years after the signing of the Magna Carta (“the great charter”) in the water meadows of Runnymede, England, what would we include in a modern day version: businesses perhaps? Business, and other powerful non-state actors, risk being overlooked in the development of new international law despite recent efforts. This commentary argues that whilst working towards the next Magna Carta moment, we are missing some significant opportunities along the way.

As we approach May 2015, there will be increasing focus on what the Magna Carta meant in 1215. To misquote the Monty Python team: “What has the Magna Carta ever done for us?” I will leave it to historians to answer this question. Perhaps the elevator version is that it was a historic settlement between the English barons and their King (John), not honoured at the time but which has become symbolic for the rights of individuals more generally – largely because it was repeatedly evoked by reformers between the seventeenth and nineteenth centuries as “fundamental law”. This is nowhere more the case than in the 13 former English colonies in North America and as an inspiration for the US Constitution itself. Some comfort perhaps for the Eton educated British Prime Minister, David Cameron, who when asked on the David Letterman TV show in September 2012 to translate the words from Latin in English – failed, as many of us Brits would, to do so.

But perhaps the more important question is what would a modern fundamental law such as the Magna Carta include today, or is it already happening? In some ways we know the answer, as the 1948 Universal Declaration of Human Rights (and all that followed) delineates that which the Magna Carta did not – the rights of all peoples against the power of every state. But would we stop there? It is often said that there are others in society that have as much power as some governments and therefore they too need to be constrained in the same way as the barons did to King John. We might consider powerful non-state actors such as religious groups, de-facto sub-national governments, powerful NGOs or, of course, business enterprises. And here I don’t just mean accountability under existing national laws, I mean international standards that strengthen national legal and non-legal accountability, but also hold non-state actors to account when their own states cannot or will not. This is perhaps not what libertarians in the US have in mind when they evoke the Magna Carta, but from a social contract perspective the question needs to be asked and answered.

Lets take one of these powerful non-state actors: business. It is often stated that big businesses are more powerful than many governments – that business represents over half of the world’s top 100 economies outstripping the GDP of many states. This sounds impressive and in some ways it is true: some businesses can leverage significant capital, large companies can move markets and strategic business sectors (such as commodities, ICT, finance or labour providers) can indeed impact – positively or negatively – on the ability of governments to provide for the basic needs of their populations.

But it is easy to overstate the power of large business. Unlike in the days of the East India Trading Company, large companies today do not have unbridled power. They do not have their own armies and cannot easily annex territory or assets by force without the connivance of a government. Publicly listed companies are constrained by shareholders and markets. Private companies are more independent but are rarely of the size and scale needed to rank in the top 100 economies. And state-owned companies, such as many of the titans of China or India, are exactly that – controlled at least in part by governmental interests. No one can seriously maintain that the governments of the USA, China or Russia are run by big business – influenced, yes, but sovereign power is still firmly in place.

But the events of the past thirty years, and in particular following the financial crisis within OECD member states, suggests that big business does have a case to answer at least in part, and we might well expect CEOs to be at the table in Runnymede to account for their power. The Rana Plaza factory collapse in Bangladesh two years ago was one such moment, killing over 1,100, but so too was the Bhopal disaster in India thirty years ago and scores of others in between. Each time big business is asked to account for its actions, or its negligence, and then things move on, much as they were before. If the recent allegations against HSBC relating to tax avoidance are found to be true, then we can have little faith in the maxim that “we are all in it together” when it comes to austerity.

Lets be clear, there are many good CEOs out there, and many large companies trying to use their leverage for the good of society, but there also remain systemic problems including those to do with unaccountable power. It is an unavoidable fact that transnational companies have certain advantages due to their supra-national scale, when it comes to transfer pricing between markets or moving production or supply chains between low-cost sources – where perhaps social and environmental protections are not what they should be. Some of these advantages are borderline anti-competitive and privilege large companies over small. But, of course, small companies too can behave recklessly if they choose to do so with bad consequences – think about the power of ICT security providers (note the recent UK Government ruling on “Gamma International” in Bahrain), cut throat recruitment agencies worldwide or rogue mining exploration companies in unstable countries as examples.

At the moment, Governments are divided as to how best approach the thorny issue of extraterritoriality and business – the extent to which companies should be accountable in the legal systems of “home countries” for their actions across borders and particularly in “weak governance” zones around the world. For some, the central issue is impunity – how large companies can sometimes shift assets and money across borders to escape a particular national jurisdiction. For other governments, the central issue is the creation of a leveller playing field for all business – so that those companies registered in weaker or more corrupt jurisdictions are also held to the same environmental and social standards as those based in well-regulated markets. And for some other governments, it is more about hegemony and an effort to prise open market share from the existing main players.

It is unlikely that there will ever be special rules for large companies, but it is likely that we will see more and more international norms for business more generally, particularly those in high-risk sectors or operating in fragile states. It will not be so much “Magna Negotium” as “Omnibus Negotiis” – all businesses – and in particular those businesses that present the greatest potential risk to human welfare. And there will be no single “Magna Carta” moment – instead there are various Runnymede water meadows at which the role of non-state actors needs to be closely examined. Lets just take two examples.

The UK’s Modern Day Slavery Bill will hopefully gain parliamentary assent in March 2015 before Westminster closes for the forthcoming election. Given the undeniable importance of the market and supply chains in perpetuating many aspects of modern-day slavery it seems inconceivable that the original version of the Bill was first introduced into the House of Commons with no reference to business at all. The disclosure requirement that is now in the Bill is the result of committee work in Parliament, and not directly the UK Government itself – the first to develop a national action plan on business and human rights!

And, beyond the UK, the 2014 Protocol to the International Labour Organization’s Convention on Forced Labour, the first since 1930, was agreed by all but one government with only a very weak reference to business due diligence (a reference that some governments and business associations resisted). It will now be up to individual governments to interpret what the business due diligence requirement should actually look like in their domestic law, if they do so at all.

These two examples were important Runnymede moments where businesses were almost missing conceptually and where governments and much civil society seemed unwilling or unable to bring direct corporate responsibility into the tent.

So, for all of those that wait for the next Magna Carta, the time will come – such as in 1215 or 1948 – but things will need to get worse before power will shift in such fundamental terms. In the meantime, do not miss all the other water meadows along the way.

Has “fracking” lost its social licence?

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As we approach the next general election, will the UK ever develop an impartial national debate on hydraulic fracturing?

The first time I came across hydraulic fracturing (or “fracking”) was when interviewing geologists at test sites in the north of South Africa and Botswana seven years ago. I was looking at how such technologies might affect fragile populations where water is already scarce and where nomadic communities, as well as farmers, rely on shallow aquifers for their livelihoods, as does wildlife for its survival. I came away with a range of questions and have followed the debate since. Frequent reference was made then to the “fracking debate” in the USA but little did I know we also had hydraulic fracturing in the UK even then and had done so for decades, albeit mainly off-shore.

Now, several years later, we do have a national debate in the UK but it is far from being impartial or arriving at any consensus. It seems rooted in mistrust, conflicting information and entrenched positions: like the debate on Genetically-Modified Crops twenty years ago. Why did our policy-makers allow this to happen again?

There are very good reasons, even at a time of falling oil and gas prices, why the UK should be more self-sufficient in its energy supply. Issues surrounding pipelines from Russia receive a lot of publicity as do human rights in Saudi Arabia. By comparison, much less attention is given to Qatar (one the UK’s major overseas gas suppliers). There are good geo-political reasons, at a time when the North Sea Oil Fields resources are declining – or at least the UK’s bit of them, to look seriously at other sources of UK energy production. There are also very good environmental reasons why we should be shifting away from coal and oil to gas for our power generation in the medium term, whilst also building a solid base of renewables and possibly nuclear energy.

There are good arguments, but have they been heard by the British people? Public opinion polls suggest a low baseline of awareness as to what hydraulic fracturing actually is. The Government’s own research suggests that whilst three quarters of the population have heard about “fracking shale gas” about half of the population do not have an opinion either way about its efficacy, whilst those in opposition represent less than a quarter. Other polls suggest that opposition continues to grow to about 30% of those questioned, rising to 40% if it relates to a local area or up to 70% if in a National Park.

In my book on the “social licence” of activities, I define the concept as having three core definitional elements: legitimacy, trust and consent. The first is notoriously difficult to define but vested interests must be seen as part of it – is the case for fracking objectively made or do some stand to profit more than others. The ownership structure of the companies that hold the exploration licenses is perhaps a surprise to those outside of the industry and can raise concerns over potential or perceived conflicts of interest. There are hundreds of oil and gas exploration companies registered in London and operating across Africa and parts of Asia. It is possibly only those operating in the UK that have received scrutiny. It is not surprising that these companies employ former government officials or former captains of industry – they bring expertise but they also bring access. Cuadrilla, one of the leading UK fracking companies, is chaired by Lord Browne (a man I happen to admire greatly), the former BP boss but also an advisor to Government and there are number of former government ministers connected to the industry. There is of course nothing wrong with this necessarily but the state-energy nexus will need careful explaining to the public for the industry to maintain its legitimacy. It is one thing for BP or Shell to hire former government bods for their global operations, quite another when the drilling is in Sussex or Lancashire it would seem.

When it comes to “trust”, the polling suggests there is a significant way to go and that it is Greenpeace and the Green Party that are currently winning the national debate. And “consent”, well although exploration licenses have been granted by central government, local authorities seem increasingly willing to deny or delay planning permission in the face of local concerns. The protests in Balcombe during 2013 might only be the start of what is to come. All of this seems out of kilter when the real risks are considered. It seems the British people are more than willing to allow those in the Middle East or Africa to face environmental degradation or human rights abuses (such as those in the Niger Delta that have gone on for decades) but much more squeamish about drilling in their own leafy backyard – even if the impacts of which will be incomparably less. This Nimby-ism has rarely been called out (which politician, NGO or business sees it in their interests to do so?) but is clearly a strong component of the UK debate.

It might not be too late for the next UK Government to lead a national debate on the future of our energy supply and the many advantages of domestic energy production. And yes, as much of this as possible should be renewable in the short to medium-term with renewables dominating in the long-term. If there is no need for gas over the medium–term – and I mean really no foreseeable need – then fine, but I have yet to read any compelling evidence of this. Rather, if part of our national strategy is to move from oil and coal to gas over the shorter term – then the UK’s own gas should be part of the mix, surely, and not just that from Qatar and Norway. There are clearly environmental risks associated with fracking in the UK but the impacts of these will be far less than those in drought-prone parts of Africa where British companies are also leading the charge and the British public asks no questions. If the UK wants gas, then why not shoulder some of the risk at home, where it can be better managed and is subject to the full force of British law? We have for decades exported the environmental and human rights impacts of our energy demands.

The next government, likely to be a coalition of some kind, would do well to make Britain’s future energy policy as non-partisan and transparent as possible. Perhaps a multi-stakeholder approach could be developed where government, industry and civil society sit down together to identify and manage the risks of which ever energy sources are exploited here at home. The UK has led on such approaches internationally in relation to revenue transparency in the extractive sectors (the Extractive Industries Transparency Initiative currently chaired by Claire Short and which now has 48 member countries) and also in relation to the use of public and private security forces (the Voluntary Principles on Security and Human Rights which the UK currently chairs). Why not a multi-stakeholder approach relating to energy exploration here at home? This might, just might, ensure that that communities can give informed consent to whatever comes next energy wise.