Access to remedy and COVID-19 in the Business and Human Rights field
Walker Syachalinga and Oliver Holland assess the risk to access to remedy in the second of their blogs discussing the impact of COVID-19 on the justice system.
Posted on 07 August 2020
Recent data shows that more than 140 countries have imposed various forms of lockdown measures since the start of the COVID-19 crisis. Part 1 of this blog assessed the challenges to open justice posed by measures restricting in-person access to court buildings in civil cases in England and Wales. This second part assesses the risk to access to remedy posed by restrictions to in-person access to court buildings in cases involving business-related human rights abuses.
Access to remedy for victims of business-related human rights abuses forms the third pillar of the United Nation’s “Protect, Respect and Remedy” framework set out in the Guiding Principles on Business and Human Rights (‘UNGPs’).
States introducing measures to restrict in-person access to court buildings during the COVID-19 crisis face the challenge of ensuring accountability for business-related human rights abuses and continuing access to remedies for victims of such abuses.
According to the International Commission of Jurists (‘ICJ’), measures bearing on the right to access to remedy include the suspension of non-urgent cases; the impact of limitation periods on cases during periods of lockdown; and the move to telephone, video-conferencing and electronic filing.
Measures have been implemented both in the home countries of multi-national companies (such as Australia, Canada, USA and the United Kingdom) and in host countries where their subsidiaries operate (such as South Africa, India and Nigeria).
Suspension of non-urgent cases
In Canada, for example, the Federal Court adjourned or cancelled all in-person hearings with the exception of urgent or exceptional matters and other very limited hearings. Similarly, South Africa's COVID-19 provisions limit access to court buildings to only those with a material interest in urgent matters. This includes members of the media, legal practitioners, the accused, witnesses, litigants and those supporting them.
The ICJ cautions that in choosing which cases are urgent, States must give priority to those involving human rights violations; vulnerable groups such as women, children, older people and the disabled; and cases involving the deprivation of liberty.
In the business and human rights context, vulnerable groups include migrant labourers—a fact reflected in recent calls by NGOs for an urgent transitional justice mechanism for migrant labourers impacted by the closure of courts and other labour dispute mechanisms during the Covid-19 crisis.
Many States have adopted measures to limit the impact of the restrictions to in-person hearings described above. In many cases, this has involved amending procedures to help ensure that access to remedy is maintained.
For example, the Supreme Court in India extended limitation periods for all proceedings during the COVID-19 crisis until a further order to be passed by the Court, while Nigeria permitted physical court sittings for “time bound, extremely urgent and essential matters that may not be heard by the court remotely or virtually”. In England and Wales, new rules were introduced extending to 56 days the period during which parties could agree extensions without requiring the Court’s permission.
Such flexibility will go some way to allaying concerns raised by the UNDP that COVID-19 measures could “negatively impact the provision of timely and fair hearings, contribute to increased case backlogs, and lead to increased length of judicial and administrative proceedings.”
Use of telephone and video-conferencing facilities
In Australia, the Federal Court introduced special measures requiring hearings to be conducted via video or telephone conferencing.
No ‘in person’ hearings were permitted, unless exceptional circumstances applied and prior approval was given by the Chief Justice. These measures have been eased through the limited return of in-person attendance in Court with appropriate physical distancing and personal hygiene in place. In a significant step, the US Supreme Court streamed live audio of oral hearings for the first time in its history.
So successful was the livestream that 83 per cent of those polled supported the decision to livestream with 70 per cent asking that it continue post COVID-19.
The expansion in the use of telephone and video-conferencing facilities in the US, Australia and elsewhere has the potential to improve access to remedy in business and human rights cases. For instance, the Ogale and Bille communities in Nigeria had the opportunity to watch a live stream of their Supreme Court case against Shell for environmental pollution of the Niger Delta—a step which enables indigent communities to see justice being done even where they are unable to attend hearings in person.
Move with caution
However, the UN Working Group on Business and Human Rights cautions that “As States move their courtrooms online, and shutter government institutions, we need to understand how any change in judicial practices, will impact those who seek remedy and may not have the capability to simply show up to court via the Internet.”
The reality is that access to online resources is not always possible for the most vulnerable and indigent communities involved in business and human rights cases.
From that perspective, any shifts to online courts should also take into account the need to widen access to the internet for interested parties.
COVID-19 is predicted to be part of “the new normal”, a fact that will make measures restricting access to court buildings necessary to safeguard public health. The above analysis shows that some States are trying proactively to mitigate the unique challenges to access to remedy posed by COVID-19, but clearly more needs to be done. To be effective, States should amend relevant procedural requirements to take into account the impact of the COVID-19 crisis on business-related human rights abuses and ensure interested parties are able to access remote hearings.