The round-up of the stories that a budding Student Lawyer should be aware of this week. Sign up here to get these updates in your inbox every week.
EU Parliament vote for corporate due diligence
Reported by Laurence Tsai
On Wednesday 10 March 2021, the EU voted on legislation that would require companies to conduct thorough due diligence throughout their supply chain. The aim of this proposed law is to hold companies to account for good governance, human right abuses and environmental damage, such as corruption, labour rights and deforestation.
Members of the European Parliament (“MEPs”) stress that due diligence is intended to be a preventative instrument requiring companies to take proportionate measures to those three pillars. Factors that companies should consider when implementing measures include:
The legislation, which the EU Commission is expected to present its draft in June 2021, should oblige companies to identify, address and remedy any aspects of their supply chain that could infringe human rights, the environment or good governance. The law would apply to all businesses operating within the EU, or companies that want to access the EU internal market, including those established outside the EU. A requirement of the proposed legislation for companies seeking access to the market is that they must prove that they comply with environmental and human rights due diligence obligations.
Many MEPs favour the new law (504 votes in favour, 79 votes against and 112 abstentions). Additionally, the EU Parliament calls for additional measures, including a ban on importing products linked to severe human rights violations. This additional measure links to several jurisdictions, such as the UK, placing greater weight on investigating or re-evaluating their trade relations with China due to the repression of Uighurs.
While the vote to proceed with the legislation is welcome, some campaigners remain unconvinced that the law will make a fundamental difference to global supply chains. Organisations, such as ClientEarth, argue that the statutory provisions should compel organisations to ensure their business activities are not directly or indirectly responsible for or associated with, environmental damage and human rights violence. Such concrete commitment would be more productive in satisfying the perpetual objective of avoiding and/or addressing the harm caused to the environment and human rights infringement.
Indeed, the efficacy of the new law would depend on how the draft provisions realistically ensure companies are held to account. Other campaigners, such as Friends of the Earth, hope that human right violations and environmental harm are treated as crimes so that companies can be tried under the law.
Arguably, the most difficult aspect of the law would be how the EU’s proposed law would guarantee effective reparations for victims and also what the threshold is for companies to prove that they were justified in their conduct. Such investigations should be conducted on a case-by-case basis, though companies would benefit from clear guidance from the EU as to what steps they should generally take and what conduct they should avoid. For example, to reduce liability or avoid liability altogether, companies should demonstrate how they acted in line with due diligence obligations, set out what measures they took to prevent the harm and explain why such measures were adopted.
An important consideration for global companies is their parent-subsidiary relationships. In the UK, companies have separate legal personality, so that means group companies are, at first instance, not responsible and liable for each other’s faults. However, the courts will consider factors, such as how much control and power the subsidiary exerts over the subsidiary. To that end, global organisations should strike a balance between ensuring their group companies adopt effective corporate-wide policies whilst not interfering at high levels of control with the governance of other companies.
Reform: British nationality of the Windrush generation
Reported by Emma Ducroix
In 1948, the liner Empire Windrush called at Kingston, Jamaica, to bring back to London soldiers stationed in the British West Indies. Many West Indians, who had recently been granted British citizenship under a law recently passed for all inhabitants of Commonwealth countries, pay for a crossing to Anglo-Saxon lands.
This transport became a symbol of British multiculturalism and of its migration policy: the term “Windrush generation” came to designate the Caribbean immigrants who settled in Britain until 1971. That year put a near-permanent end to Caribbean immigration, requiring immigrants to have a work permit or to have parents or grandparents born in the UK to settle there.
However, the Home Office at the time did not consider it necessary to provide documentation to prove any British citizenship, nor did it keep records of those who had actually settled in the UK. Finally, in 2010, the landing tickets belonging to the ‘Windrush immigrants’ were completely destroyed by the authorities.
And here is the latest twist in the ‘Windrush generation’ affair, a wider fiasco regarding immigration services strategy. Among the individuals affected by this policy are many Caribbean immigrants: the ‘Windrush generation’.
These anomalies have recently led to people from the Windrush generation being refused citizenship – despite the Home Office admitting that its own errors led to them being ruled ineligible. Priti Patel, the home secretary, had been frustrated that the rules meant officials were unable to grant British citizenship to people such as Trevor Donald, who was wrongly prevented from returning to the UK after travelling to Jamaica for his mother’s funeral in 2010. He had been in Britain for 43 years, having arrived as an 11-year-old to live in Birmingham, legally, in 1967. He was stuck in Jamaica, destitute, for nine years before officials recognized that they had made a mistake in preventing him from returning, and flew him back to the UK. However, he was subsequently refused citizenship because of the length of time he had been out of the country; nationality law requires people to have been in the UK five years before applying.
Publicity about his case earlier this month caused embarrassment for the department, revealing that three years after the government first apologized for the Windrush scandal, ministers were still failing to address difficulties faced by some of those affected.
Fixes to the law will be introduced as part of wider changes to the immigration system and will give the home secretary discretion to overrule residence requirements, which have made it impossible for officials to grant citizenship to people who were wrongly deported or prevented from returning home to the UK because of the Home Office’s Windrush scandal.
The reforms, which will be introduced as part of changes to immigration legislation, will add flexibility into the system, so that the Home Office can waive residence requirements in exceptional cases.
A Home Office source said: “British nationality law has not changed significantly since 1983. It is outdated, convoluted and littered with anomalies which impact hundreds of people each year. These new reforms will bring about lasting change to our entire immigration system, ensuring it is fair and just.”
The government repeatedly refused to give credence to what windrush generation said or experienced. That leaves an indelible mark on this group of mainly black migrants who consider the UK their home.
The immigration lawyer Colin Yeo said these were “welcome but relatively minor tweaks” and suggested that the government’s reforms should also look at the very high costs of applying for citizenship.
It is also understood the reforms will overhaul laws that prevent a child acquiring their father’s citizenship if their mother was married to someone else and will introduce a new process for children of British overseas territories citizens to acquire citizenship more easily.
Cross-justice review group recommends a specialist court for the most serious sexual offenses
Reported by Emma Ducroix
According to a wide-ranging review, Scotland should have a national specialist court to deal with rape cases, that campaigners say has the potential to “transform the country’s response to sexual crime”.
The cross-justice review group, chaired by Scotland’s second most senior judge, Lady Dorrian, recommends a specialist court for the most serious sexual offenses, using trauma-informed procedures, with both defense and prosecution lawyers accredited in dealing with vulnerable witnesses, sentencing powers of up to 10 years and a presumption that evidence by the complainer would be pre-recorded.
In addition, the review group, which took evidence from judges, the court service, lawyers, police and victims’ organisations, has set out measures to improve communication for complainers, with a single point of contact who would guide them through the trial process.
The proposals, described as “bold, exciting and evidence-based” by Rape Crisis Scotland, recommend complainers have access to publicly funded, independent legal representation to oppose applications asking questions about their previous sexual history, and that the right to lifelong anonymity for rape complainers be enshrined in Scots law, a historical anomaly that vexes legal experts.
Other proposals recommend that evidence from complainers in serious sexual offence cases be recorded by specially trained police officers as early as possible after an alleged attack. It also suggests that juries be given “plain language directions”, with a pilot programme looking at how jurors can be told about rape myths and stereotypes. The group also suggested further consideration be given to the possibility of a pilot of single judge rape trials, to fully assess their effectiveness.
According to most recent figures, 47% of rape and attempted rape trials in Scotland result in a conviction, while more than one in five result in a “not proven” verdict. Research in 2019 found that the availability of this unique Scottish verdict may push more jurors towards acquittal before they have even discussed the evidence.
Dorrian said: “The wide ranging review was prompted in particular by the growth in volume and complexity of sexual offending cases affecting all sections of the criminal justice system. We have made recommendations which we believe will fundamentally change and improve the way sexual offences are prosecuted in Scotland.” She thanked all those involved for their “clean sheet approach”, which enabled a wide scope of recommendations.
The chief executive of Rape Crisis Scotland, Sandy Brindley, said the report was “important and necessary”. “All too often survivors tell us that the process of seeking justice – and in particular their experience in court – is as least as traumatic as the attack(s) itself. It is clear that significant action is needed. The recommendations are bold, evidence based and have the potential to transform Scotland’s response to sexual crime.”
Det Ch Supt Samantha McCluskey, of Police Scotland, said: “We are acutely aware of how difficult it can be to report sexual crime and we are continually working with partners on ways to improve the police response to reports of rape and sexual crime.”