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A UK Failure to Prevent Mechanism for Corporate Human Rights Harms

...The study included a survey of businesses to understand their experiences... The vast majority of business indicated that additional regulation may provide benefits to business: through providing legal certainty (82.14%); through levelling the playing field... (74.07%); and by facilitating leverage with third parties... (75%)...

The study also provides a legal analysis as to whether and how the legal elements of section 7 of the Bribery Act could be transposed into a failure to prevent mechanism for corporate human rights harms...

A failure to prevent mechanism should establish a duty to prevent human rights harms... A failure to prevent such harms would result in possible civil liability for damages to those affected, unless the company could show that it has undertaken the due diligence required in the circumstances. This would not affect any criminal liability which could otherwise arise...

We recommend that the mechanism includes a defence of procedures “reasonable in all the circumstances”... This should be accompanied by Guidance elaborating on the meaning of “reasonable” due diligence, with reference to the UNGPs, the concept of leverage, and clarifying that due diligence is accordingly not a “check-box” exercise or a “safe harbour”...