by Marilyn Croser, CORE Director
Four things that jumped out at me from the Kiobel FoI documents that have been released to CORE:
We have a problem
A section on p.52 headed ‘Prosperity and support to British business’ in a briefing for Ministers on whether to submit an amicus brief in the Kiobel case includes the line:
‘While the extraterritorial application of the ATS/failure to require exhaustion of local remedies are not included in the questions for the US Supreme Court hearing, the fact remains that this is a real problem for business generally.’ (p. 52)
This sentence irritates me. First off, without wishing to downplay the significance of ATS cases and other corporate accountability cases that have been brought in the home States of MNCs, the idea that ‘this is a real problem for business generally’ seems like a massive overstatement. More importantly, if this issue is being encountered by lots of British businesses operating overseas, then surely questions need to be asked about what is going wrong with business practices in the first place, rather than attempting to close down one of the few routes to remedy available for people adversely affected by corporate malpractice.
A similar point comes up later in the same document:
‘BHC [British High Commission] Abuja commented that not objecting to the extension of international human rights law to corporations could cause difficulties. For example groups could continually cite international human rights against British companies operating in Nigeria.’ (p.54)
How dare ‘groups’ even consider such a thing? Again, if this were to happen, then the issue for the UK government is how to take appropriate action to regulate businesses and ensure they can be held to account.
These points are representative of what appears to be a mindset in parts of government, that expecting companies to adhere to particular standards creates ‘a problem’ for business. This is a misleading and outdated view which is fundamentally incompatible with the commitment to implement the UN Guiding Principles.
The UK and The Netherlands filed their first amicus brief in the Kiobel case ‘…in support of the respondents [Shell] as we had not been made aware that it was possible to file a neutral brief.’ (p.19)
When the possibility of filing a second brief came up, it was noted:
‘A number of European States have indicated a willingness to join a neutral brief [text redacted]. The brief would undoubtedly have greater impact with the Supreme Court if more countries are signed up to it. Hence on balance a neutral brief with more supporters could be of greater benefit to business than a brief in support of the Respondents backed only by the UK [text redacted]. A neutral brief might also prevent accusations that we are on the side of human rights abusers.’ (p.24)
How very convenient.
The recommendation to Ministers was that:
‘…we seek support from partners [other States] for a brief in support of the Respondents, but if other countries are set on filing a neutral brief that we agree to do so in order to increase the likely impact of our collective views with the Court.’ (p.25)
So in essence, the whole purpose of submitting a neutral brief was not to be neutral but to bring on board more governments and the fact that a neutral brief didn’t look quite as bad as a supportive one was just a helpful bonus.
All in the mind?
‘While our argument in this case is a matter of sound legal principle, the perception of critics of HMG’s position on business and human rights will be that we are standing up for big business and against the human rights cause of ordinary people’ (p. 61)
Among the key issues for Ministers to consider was:
‘The risk that intervening may, however, be perceived to be inconsistent with our position on the UN Guiding Principles.’ (p.57)
For me, these points aren’t really (to use the standard civil service-speak) ‘perceptions’. They’re what I would call ‘facts’.
When it seemed that a second brief was likely to be ‘neutral’, the FCOs Commercial & Economic Diplomacy Department (who even knew we had one?), CEDD in the documents, was to inform Shell. At the same time FCO officials noted that:
‘We will be prepared to answer Parliamentary questions should they arise, but do not believe that the issue warrants proactive work with Parliament such as a Written Ministerial Statement.’ (p. 26)
And I thought the Executive was supposed to be accountable to the elected Legislature! Turns out I was wrong all the time and they are actually accountable to an oil company. I guess it’s one of the downsides of not having a written constitution, people like me get the wrong end of the stick. Us and our silly ‘perceptions’.