Are there any principles that the UK government is willing to stand up for in the face of business lobbying? Apparently not, if documents released through a Freedom of Information request are anything to go by. These show, in detail, how the UK intervened to support Shell and Rio Tinto in high-profile US human rights court cases, following requests from the companies.
The documents, obtained by the Corporate Responsibility Coalition (of which we're a part), relate to the UK government’s intervention in two cases: Kiobel-v-Shell and Sarei-v-Rio Tinto.
The Kiobel case was brought against the oil giant by communities from the Niger Delta, who accused Shell of helping the Nigerian military to systematically torture and kill environmentalists in the 1990s.
Sarei-v-Rio Tinto was a long-running case relating to alleged human rights abuses at the company’s Panguna copper mine on the island of Bougainville, Papua New Guinea. It's alleged that Rio Tinto racially discriminated against black mine workers, harmed the island’s environment and its residents’ health, and was complicit in war crimes and crimes against humanity committed by the army.
The US Supreme court halted the case against Shell a year ago, accepting the arguments from both Shell and the UK Government that cases of this kind shouldn't be taken in the US. A lower US appeals court then followed that decision to dismiss Sarei-v-Rio Tinto.
The UK government has effectively supported the corporations in ducking out of scrutiny in the US courts. Why would the government want to prevent UK companies from being held accountable in the US courts for complicity in human rights violations as serious as torture and murder?
'both BIS [Department of Business, Innovation and Skills] and CEDD [Commercial and Economic Diplomacy Department at the FCO] believe that the prosperity and potentially significant commercial considerations in this case weigh in favour of the UK submitting an amicus brief.'
The Freedom of Information request shows the Government was well aware that its intervention would be seen as inconsistent with its approach to human rights. It knew that these cases are exceptional and relate only to the most serious corporate abuses. It was aware of the reputational consequences, and that Amnesty and other human rights groups would be outraged when we found out - but still, they decided to pursue this course of action.
'Supporters of the action against Shell (including NGOs and the media, as well as the plaintiffs) will likely argue that the courts and human rights legislation of Nigeria are inadequate to deal with a case of this nature, and the US ATS [Alien Tort Statute] is the only practical form of redress for the victims.
'By submitting an amicus curiae brief HMG would be acting to seek a result that will close a possible remedy for victims of alleged human rights abuse.'
What is particularly galling about the UK government’s approach is that ministers and officials with a human rights brief were unwilling or unable to hold their ground. There was no meaningful consideration of the enormous consequences for victims of corporate abuses around the world who would be denied the possibility of justice through the US courts.
Even the government's belief that it was acting to protect UK business interests was based on conjecture rather than evidence.
It's ironic, if not deliberately hypocritical, that these interventions happened within a year of the UK endorsing the Guiding Principles on Business and Human Rights at the UN. A key recommendation of the UN Guiding Principles (also known as the Ruggie Principles) is that victims of business-related human rights abuses should be able to take businesses to court to seek justice and compensation. The UK should be actively promoting the rights of the claimants in the Shell and Rio Tinto cases, not restricting their 'right to remedy'.
'HRDD [Human Rights and Democracy Department at the FCO] is concerned that actively intervening would damage everything the Government is doing to show that good business achievement and good corporate human right behaviour are compatible with each other. Submission of a UK brief effectively defending the corporate position in this case will be perceived as inconsistent with our position on the UN Guiding Priciples... of which the UK was a key supporter during their five years gestation.'
When two Secretaries of State – William Hague and Vince Cable – launched the UK’s plan to implement the Guiding Principles in September 2013, this sent political signals that the UK was getting serious about business and human rights.
The plan pledges that the UK government will provide 'help to States wishing to develop their human rights protection mechanisms and reduce barriers to remedy within their jurisdiction', yet the UK's intervention in Kiobel-v-Shell has had the opposite effect.
In putting British business interests before human rights concerns regardless of context and consequences, the UK government is acting above the law and in breach of its international commitments. When it does so at the request of UK companies facing lawsuits for the most serious of international crimes, our government demonstrates the extent to which it has been captured by corporate lobbyists.
The precedent set by the US Supreme Court’s judgement means that companies all over the world can now abuse human rights with a greater sense of impunity, knowing that an important avenue of redress through the US courts has been closed to their victims.