Essential Services, Public Procurement and Human Rights in Europe

Abstract

In many jurisdictions, 'core' public functions in such areas as criminal justice, healthcare, immigration and asylum, housing and social care are delivered by private or other non-state actors. This article argues that public procurement of such essential services, in particular through the mechanism of contracting-out or out-sourcing, lies within the scope of the state’s duty to protect human rights arising under international human rights instruments. The paper first argues for the relevance of human rights standards to public procurement, in particular the European Convention on Human Rights, with reference to jurisprudence of the European Court of Human Rights, and the UN Guiding Principles on Business and Human Rights. It then presents evidence of emerging recognition by human rights duty-bearers of their responsibilities in the area of public procurement in the form of measures taken by the Council of Europe and European Union on business and human rights, and national action plans on business and human rights developed by a number of European states. In closing, it highlights the need for consistency with this acknowledgment of states’ duties in the area of public procurement with regard to EU’s 2014 Public Procurement Directives, their implementation at national level in EU Member States, and the European Commission’s next policy on Corporate Social Responsibility.