The work in brief: In April 2013, Banyan was asked by the Corporate Responsibility Coalition (CORE, http://corporate-responsibility.org/) to assist in some post-Kiobel research (see our post-Kiobel brief here).
The students involved were Thomas Trennery (SOAS, MA Law), Victoria Fernandes (SOAS, LLM) and Belize Harrison (SOAS, LLM). The coordinators at CORE were Marilyn Croser and Ben Amunwa.
The goal of the work: In April 2013, the Kiobel decision had a dramatic impact on access to justice for victims of corporate abuse. What is less known is that in 2012, whilst the case was being heard, the UK and Dutch governments submitted 2 amicus curae briefs to Supreme Court seeking to limit US extraterritorial jurisdiction and support Shell’s arguments. CORE wanted to use Freedom of Information Laws to release documents concerning the UK’s intervention in this case.
Thomas Trennery elaborates on the case and the work involved:
“Even by the standards of the US Supreme Court, the judgement in Kiobel v Shell was enormously controversial and provoked a wide array of commentary and coverage. The failure of the claimants, a group of Nigerian citizens, to invoke the Alien Tort Statute was seen by some as a sensible limitation on American power abroad, and by others as a guttering of this nation’s beacon for human rights and a sign of the continuing failure of any breach of international law to be followed up with any semblance of enforceability.
However, of particular interest is the fact, not often discussed, that the governments of the UK and the Netherlands filed amicus briefs that were broadly in support of Shell – they argued that international law should not impose liability on corporations. I became aware of this point following a call for volunteers from Banyan Advocates in conjunction with Ben Amunwa and the Corporate Responsibility Coalition (CORE). It was a mandate to work on developing arguments to persuade the Information Commissioner’s Office (the regulatory authority controlling freedom of information in the UK) that documents concerning the Kiobel case that had been withheld by the government should be disclosed under the Freedom of Information Act 2000. Having spent a substantial proportion of my time at SOAS studying corporate accountability, I leapt at the chance to become involved in the work.
To be honest, I went into the project expecting UK freedom of information laws to be pretty dry (although in all fairness I was certainly looking forward to getting my teeth into an area of law with which I’d had no previous contact). I was surprised to discover that this legal landscape wasn’t quite as barren as I’d anticipated. In fact, freedoms of information laws, being relatively new, are still subject to rapid changes in precedent and possess an already vibrant history of case law.
The government had attempted to exempt information under several sections of the Freedom of Information Act 2000. Specifically, it had attempted to use exemptions to protect the United Kingdom’s international relations and interests abroad; information relating to the formulation and development of government policy; information relating to commercial interests; and information that may be held under legal professional privilege. My main task was providing research on legal professional privilege and how to circumvent the government’s attempt to withhold information on this point. This is an inherently difficult exemption to challenge given that such privilege against disclosure recognises the fundamental human right to be candid with legal counsel. However, it is possible to show that the public interest may swing in favour of disclosure in some cases – using previous case law and applying it to the case in hand was an exciting challenge.
In the end, we were more successful than expected. We achieved a considerable level of disclosure on many documents, particularly those relating to government policy, public affairs and commercial interests. Even where we were not successful, the Information Commissioner’s comments revealed that we had often come tantalisingly close. In particular, the exemption relating to legal professional privilege was upheld but the public interest was ‘finely balanced’ and the ICO acknowledged that there was a strong case for disclosure. More work, no doubt, will be put into pushing further against the government’s efforts to withhold the information in this case – but I certainly found my role in the project to be both stimulating and highly rewarding.
What the organisation said about our work: Marilyn Croser, Coordinator at CORE said: “Huge thanks to…the fantastic volunteers from Banyan: SOAS Advocates , without whom it would have been impossible for CORE to pursue the complaints to the ICO”
Further information and coverage:
Documents reveal extent of Shell and Rio Tinto lobbying in human rights case in Guardian, 06th April 2014
CORE & Amnesty International press release, 06th April 2014 (Word document)
The documents that show our Government caved in to corporate lobbying on Amnesty International UK blog, 07th April 2014
To make a successful FOI request, take a big dollop of patience and a handful of top-class law students on CORE blog, 07th April 2014