Decision

UK NCP Procedural Review of Complaint

Updated 11 January 2022

1. UK National Contact Point (NCP) Review Panel Findings of the Procedural Review brought by Bonsucro and Complainant

Review Panel members:

• Edward Bickham
• Stephen Russell
• Department for Work and Pensions (DWP) Steering Board representative

2. Scope

The panel agreed to proceed on the basis that they each serve on review committees as Board members rather than as representatives of specific constituencies. They confirmed that their scope was limited to assessing if the UK NCP’s processes, as published, had been properly followed, though they reserved the right to comment if the boundary between process and the substantive case was in anyway blurred or uncertain.

This note therefore contains findings in relation to the complaints raised as well as comments to the UK NCP for improving practices for the future

3. Background

The UK NCP received a complaint on 11 March 2019, brought jointly by 3 complainants:

• Inclusive Development International (IDI), a civil society organisation based in the United States that works to advance social, economic and environmental justice by supporting communities,
• Equitable Cambodia (EC), a civil society organisation based in Cambodia that works to promote housing, land and natural resource rights in Cambodia, and
• Cambodian League for the Promotion and Defense of Human Rights (LICADHO) a civil society organisation based in Cambodia that is the national Cambodian human rights organisation.

The complainants refer to a company Bonsucro Limited (Bonsucro). Bonsucro is a London based company limited by guarantee and describes itself as a global multi-stakeholder non-profit organisation.

The case was handled in line with the UK NCP: published procedures for complaints brought under the OECD guidelines for multinational enterprises published on GOV.UK.

The UK NCP published the final initial assessment accepting the issues for further examination on 25 September 2019 on GOV.UK.

All parties accepted the UK NCP’s offer of mediation and the proposed mediator. A first meeting with the mediator took place in January 2020. In the following months, the mediator reported that the parties were continuing to pursue an agreement. However, in May 2020, the mediator notified the UK NCP that the parties would not be able to come to an agreement.

In May 2020, the UK NCP began its further examination of the issues that were accepted in the initial assessment. To assist its considerations, it received and considered further information from both parties. The UK NCP shared a draft statement with the parties and following factual comments from the parties changed one of its recommendations. It shared the revised version and offered a further opportunity for factual comments. A final statement was completed on 28 June 2021 and shared with all parties, who were also notified of the guidance for procedural review requests. Full Particulars requesting Procedural Review were received from IDI, EC and LICADHO on 23 July 2021. Full Particulars requesting Procedural Review were received from Bonsucro on 26 July 2021.

The Steering Board Secretariat invited Steering Board members to form a Review Committee. The members of the Review Committee listed above formed in response. The Review Committee were provided with information by the NCP and all parties in response to the Full Particulars and met to consider all the information, before producing this report.

4. Bonsucro

The panel focused first on Bonsucro’s complaints.

4.1 Ground 1: the NCP’s alleged failure to make a finding that is ‘evidence based’

Bonsucro alleged procedural issues with translated evidence, obligations under the OECD Guidelines, and the wording of the recommendation.

Translated Evidence

The panel noted with some concern the issue of the disputed translation of a key text. Although we understand the need to control the cost of cases, this cannot be at the risk of relying on potentially flawed evidence, and appropriate transparency about evidence submitted would allow for corroboration or rebuttal by interested parties and avoid similar difficulties.

However, the panel also noted that Bonsucro had seemingly failed to raise any concerns about the content of the report once they were in possession of the official translation, and indeed their complaint does not suggest that either text was misleading or otherwise at fault.

The panel therefore consider that there was no material impact on the final statement connected to the different translations.

Since the content of the evidence is not disputed – although the interpretation is – the panel did not find further grounds for the suggestion that the final statement was not ‘evidence based’ (interpretation not being a matter of process).

Obligations under the OECD Guidelines

In its comments about the rationale behind the NCP’s findings, Bonsucro suggests that there was insufficient rationale for linking the organisation to the harm caused by one of its members. The panel disagrees.

Moreover, the panel notes that the core of the dispute rests on whether the Bonsucro member can be proven to have caused harm. However, given that the evidence in question is not a procedural matter, and that it has already been addressed, we can only look at the NCP’s rationale in the context of a good faith interpretation. In that regard, the OECD Guidelines are sufficiently clear that no greater rationale was required by the process.

Use of the phrase “highest level” of due diligence

The panel noted Bonsucro’s concern over the use of phrasing that, it argued, held them to a higher account than other organisations when following the Guidelines.

The Panel accepts the NCP’s explanation of the use of the phrase and does not consider this a breach of procedure, but the panel suggests that it would be appropriate for the NCP to use, wherever possible, language from the key texts rather than introducing new phrases with potentially disputed meanings.

Parallel Proceedings

Bonsucro alleges that the NCP is at fault because it did not investigate the possibility of the final statement having adverse impacts in separate legal proceedings against the Bonsucro member at the heart of the complaint.

However, we are satisfied that the process clearly states that the responsibility for requesting a suspension lies with the parties to the complaint, and not with the NCP. The NCP, therefore, followed appropriate guidance, as no such request was received during the active lifetime of the complaint process, despite plenty of opportunity existing for such a request to be made.

The panel suggests that the NCP should reappraise its parallel process guidance to ensure that it is fit to contend with the natural tendency of the OECD Guidelines to have multiple points of interest, including some not always named in the initial complaint - but this request has no material impact on the Panel’s judgement of the procedural approach adopted in this specific case.

4.2 Ground 2: The opportunity to be heard

The panel found no grounds to sustain the view that Bonsucro were denied an appropriate opportunity to be heard. As the NCP notes, Bonsucro were, in fact, offered an additional chance for input. Whether or not the NCP acted appropriately on the basis of the information provided to it would not be within the scope of this panel’s procedural review.

4.3 Ground 3: Natural Justice and the appearance of bias

On the evidence presented, as an independent review panel approaching the contested issues with a fresh perspective, we did not detect any appearance of bias in this case. Any delays do not appear to have disproportionately affected one particular party, and the final statement was amended with input from Bonsucro and not from the complainant. The Panel was not convinced by the suggestion, inasmuch as this is a matter of procedure rather than substance, that the NCP did not conduct itself in line with reasonable expectations of a public body.

Findings Against Non-Parties

The panel considered this complaint against the background of an appreciation of the purposes underlying the OECD Guidelines, which – amongst other things - seek to limit harms arising from fragmented and complex supply chains and business relationships.

In this context, the panel considered that it was a reasonable interpretation of the NCP process that “non-party” cannot be applied to any organisation with which the subject of the complaint has a business relationship, if it is the actions of that organisation that have caused the alleged harms at the centre of the complaint.

Throughout its submission, Bonsucro cites having asked for further information about how the Guidelines apply to their business and membership relationship. The panel notes that a great deal of explanatory material on the scope and operation of the Guidelines is freely available online.

The NCP might consider if all this is entirely clear to anyone unfamiliar with the Guidelines, even if the party concerned may have the advantage of professional advice, but the panel did not consider that within the scope of their duties.

5. Conclusions

There are some lessons to be drawn from Bonsucro’s complaint, and the NCP’s stated sympathies with Bonsucro’s “frustration” over information sharing suggest that they are already aware of some of them.

However, although there were areas where the NCP seemingly did not follow good practice, partly as a result of staff turnover and in relation to adherence to deadlines, the panel saw no evidence that this affected the outcome of the final statement and that any legitimate concerns over the quality of evidence and the interpretation thereof lie outside of the remit of the panel.

6. The Complainant

The panel also reviewed the complaints made in the request for a procedural review by the original complainant.

6.1 Changes to the Final Statement

Amendments to the final statement, if based on factual submissions from the parties, are clearly allowed for in the process. Thus, the Panel rejected the complainant’s submission.

6.2 Sharing factual information in a timely manner

The panel reviewed this complaint and agreed with the NCP’s view that there was no responsibility to share the information in question, and that therefore there could be no official definition of “timely.”

However, the panel had some sympathy with the complainants that the application of policies of transparency and sharing of evidence appears to have been inconsistent, though not evidently to the advantage or disadvantage of either party.

7. Conclusion

The panel found that this was a non-substantive complaint.

However, it also felt that the labelling of the issues raised as ‘frivolous’ was based on an interpretation of the complainants’ actions rather than any incontrovertible proof, amounted to an unnecessary labelling of the complaint given the solidity of the NCP’s position. Although the panel found no material impact from any failures by the NCP to follow process, there were some irregularities in the overall handling of the case, partly relating to staff turnover and passage of time, and the complainant’s wish to ensure that the process was fair by requesting a review was entirely understandable.