Platform witness statement in RBS court case against the Treasury

Article 1 Jun 2009 admin

Court Ref: CO/5323/2009

In the Administrative Court High Courts of Justice

Between: Platform World Development Movement People and Planet Claimants

and Commissioners of HM Treasury Defendant

First Witness Statement of Kevin Smith


1. I, KEVIN SMITH of Platform, 7 Horselydown Lane, London SE1 2LN, make this statement in support of our application for permission to judicially review the Treasury.

2. This statement aims to provide the Court with evidence of the extremely harmful investments which have been made by RBS in the past and which continue today. These investments significantly increase the level of CO2 emissions and result (whether through climate change or otherwise) in the abuse of human rights.

3. Platform was set up 25 years ago. It aims to bring together environmentalists, artists, human rights campaigners, educationalists and community activists to create innovative projects driven by the need for social and environmental justice.

4. This interdisciplinary approach combines the transformatory power of art with the tangible goals of campaigning and the rigour of in-depth research with the vision to promote alternative futures. It is a registered charity.

5. For two decades Platform has been addressing issues of energy, climate and sustainability. In 1993, Platform’s pioneering project ‘Delta’ installed the first micro-hydro technology to be powered by an urban river. The turbine is situated near the mouth of the River Wandle, metres from the Thames, and contributes energy to a local primary school. The project was reported in national and international media, funded by local and national government, and was visited by Bill Clinton’s then Environment Advisor, Gary Lawrence.

6. Our proposal for transforming the financial architecture of RBS into ‘the Royal Bank of Sustainability’ is currently short-listed (out of more than 300 submissions) in the Sustainable Development Commission’s ‘Breakthrough Ideas for the 21st Century’. In 2000 Platform was the recipient of the prestigious ‘Schumacher Award’ that recognises outstanding contributions to the field of environmentalism and sustainable development.

Unravelling the Carbon Web

7. One of Platform’s main areas of focus over the last ten years has been its project: “Unravelling the Carbon Web”. This project has been investigating and analysing the financial, legal and political services that the fossil fuel industry rely upon in order to carry out fossil fuel extraction.

8. Longer pipelines, deeper drilling and Arctic weather mean that project costs for oil and gas companies have increased greatly over recent years and reached levels that mean they are now difficult to finance off balance sheets alone.

9. The six largest, private oil companies (known as supermajors), national oil companies and second tier oil corporations have therefore become heavily dependent on external finance for expansion and development and the investment they receive from banks has become crucial to their ability to continue to operate.

10. Banks thus play a crucial role in financing companies whose work and/or projects effect both climate change and the human rights of individuals. The banks’ involvement can be classified as direct, indirect or silent.

11. Direct complicity occurs when a bank intentionally finances a project or company, and it is fully aware its financial assistance will contribute to the commission of human rights abuses or damage to the environment.

12. Indirect complicity occurs when a bank profits from a transactions with a company or project which has committed human rights abuses or contributed to climate change. The bank’s financing need not be directly related or intended to support the violation of human rights or increase in CO2 emissions in which the company or project’s work results.

13. In relation to human rights, the notion of silent complicity reflects the expectation that banks should respond to human rights abuses by notifying the appropriate authorities and/or taking steps to object to or prevent and/or stop the human rights violations and/or withdrawing from their association with the abuse. Where banks do not respond, silent complicity arises.

14. To avoid these various forms of complicity, banks need clear and detailed standards and policies which require them to systematically consider the risk of their investments and to take effective action to mitigate those risks.

15. Such policies would include: (a) Defining a clear bottom-line: which activities and practices are no-go zones to the financial institution? (b) Assessing the banks’ portfolio and defining sectors, countries and clients that need explicit scrutiny and due diligence concerning human rights obligations and environmental damage; and (c) Establishing procedures or advisory groups that address human rights and climate change.

Results of our Research

16. “Unravelling the Carbon Web” research identified RBS as the UK bank that appeared to be the most heavily involved in financing new major fossil fuel developments and human rights abuses.

17. RBS has been one of the most significant funders of the oil and gas sector in the UK.

18. Between 2001 and 2006, RBS provided over $10 billion in oil and gas loans, and structured the loan agreements and acted as financial adviser on over $30 billion worth of oil and gas projects. [page 420]

19. This funding has resulted in the production of an estimated 36.9 million tonnes of CO2 per year, i.e. the amount produced by a quarter of all UK household per annum. [page 418]

20. Between May 2006 and April 2008, RBS was involved in loans worth $96 billion to coal projects and companies. This can be contrasted with the other two banks most heavily involved and supportive of coal projects: $38 billion for Barclays and $71 billion for HSBC. [page 427]

21. Some examples of the particularly controversial fossil fuel operations and projects that are known to result in the abuse of human rights that RBS financed from 2004 to 2007 include the following.

22. In 2004 and 2006, RBS-NatWest acted as the lead arranger of loans totalling US$800 million to Canadian oil company Opti Canada for their Long Lake tar sands project south of Fort McMurray in the Athabasca region of Alberta in Canada. In 2007, RBS arranged a further $100 million. [page 478-479]

23. James Hansen, one of the world’s foremost climate scientists, recently stated in relation to the effect of this project: “The tar sands of Canada constitute one of our planet’s greatest threats. They are a double-barrelled threat. First, producing oil from tar sands emits two-to-three times the global warming pollution of conventional oil. But the process also diminishes one of the best carbon-reduction tools on the planet: Canada’s Boreal Forest….An underlying fact has become crystal clear. The horrendously carbon-intensive unconventional fossil fuels, tar shale in the US and tar sands in Canada, cannot be developed. The carbon emissions from tar shale and tar sands would initiate a continual unfolding of climate disasters over the course of this century. We would be miserable stewards of creation. We would rob our own children and grandchildren.” (Guardian, February 2009)

24. In February 2009, indigenous people from the Beaver Lake Cree Nation issued a legal challenge in UK courts against UK oil companies, calling for an injunction to stop more than 16,000 permits issued by the Alberta state government. The Beaver Lake Cree Nation alleges that tar sands extraction is destroying their traditional hunting and fishing grounds. [page 767-782)

25. In October 2006, RBS participated in an $800 million revolving credit facility for Arch Coal, (page 811) the second largest coal producer in the US. Arch Coal owns a number of mountain top mines in the Appalachia region, [page 859] and utilises the controversial Mountain Top Removal method, using explosives to remove up to 1,000 feet of vertical rock to extract coal. The practice produces vast quantities of coal sludge that is dumped in neighbouring valleys and threatens local communities. Bank of America has recently committed to phase out financing of Mountain Top Removal coal mining because of its impact on the environment and on local communities. [page 860-861] To date, RBS has refused to take any such action.

26. In October 2007, RBS underwrote loans of $1 billion for Lundin Petroleum. The Sudan Divestment Task Force (SDTF) classifies Lundin in its Top 5 “Highest Offenders”, for its direct support for the Sudanese government during the continued ethnic cleansing in Darfur. Lundin was exploring for oil in Block 5B in south Sudan, together with Sudapet, the Sudanese national oil company, which is part of the regime. Human Rights Watch and Christian Aid asserted that, if not complicit, the Lundin’s past operations in the country enabled Sudanese military operations against local civilians, including the clearing of villages and widespread rape.

27. In 2005 RBS contributed to loans totalling $5.25 billion to Sonangal, the Angolan state oil company. Oil-backed loans to Angola have been criticised by the World Bank as the core obstacle to development and for undermining IMF transparency standards [page 224-362]. The human rights organisation Global Witness has condemned the loans as perpetuating chronic corruption and poverty. [page 363-367]

28. Apart from the climate impacts of investing in fossil fuels, RBS has also financed companies with appalling environmental records. In March 2008, RBS was one of the Mandated Lead Arrangers in a $1.1 billion loan to Trafigura, the Dutch commodity trader. In 2006, a ship chartered by Trafigura was responsible for disposing toxic waste under false pretences at the port of Abidjan on the Ivory Coast. The UN and the government of the Ivory Coast say that gases released from the toxic waste were responsible for the deaths of 17 Ivorians and the injuries to over 30,000 more, ranging from mild headaches, to severe burns of skin and lungs. [page 408]


29. Since recapitalisation in October 2008, it is the government, as the majority shareholder in RBS who now has the power to determine the bank’s policy and how the public money which has been invested in it is spent.

30. As the Court is no doubt aware, the UK government decided to recapitalise RBS (and Lloyds and HBOS) following the collapse in global asset prices which resulted from the ‘credit crunch’ which began in mid-2007. This crunch meant the banks were unable to secure sufficient funding from the capital markets to continue operating.

31. On 13 October 2008 RBS announced a £20 billion capital raising programme. This comprised £15 billion of ordinary shares underwritten at a fixed price of 65.5 pence a share by HM Treasury, and £5 billion of preference shares purchased by HM Treasury. Only 0.24% of the ordinary shares were taken up by private investors and so the Government took up the remaining shares and acquired a majority stake in RBS of 57.9%.

32. In November 2008 the Government announced that a body called UK Financial Investments (UKFI) was being created to manage the Government’s shareholdings in UK banks including RBS.

33. UKFI is wholly owned by the Government and the Treasury’s announcement of 3 November stated its overarching objective is to “protect and create value for the taxpayer as shareholder with due regard to the maintenance of financial stability and in a way that promotes due competition.”

34. On 26 February 2009 RBS announced pre-tax losses of £2bn for 2008 – the biggest loss in UK corporate history – and the government announced it was to put another £13bn of capital into RBS in return for non-voting shares.

35. It now estimated that the government owns 95% of the bank, although its voting stake has been capped at 75%.

36. In February 2009, RBS confirmed it was also going to take advantages of the Government’s Asset Protection Scheme (APS) – which is essentially an insurance scheme for “bad” debts.

37. RBS’s terms of participation in APS, as set out in an ‘agreement in principle’, are that it will bear the first 6% of losses on assets with a face value of £325bn which it is placing in the scheme. Any further loss is shared between the state (which bears 90% of the loss) and RBS (which bears 10%). In return, RBS is paying a fee of £6.5bn of “B” shares which carry an effective interest rate of 7 per cent once the bank returns to profit.

38. In return for such government assistance, the Treasury imposed certain conditions on the investments and policies of the RBS.

39. In October 2008, the Chancellor announced that: “No bonus will be awarded to any board member this year, and any bonus paid next year will be in stock and linked to long-term growth in the bank…” [page 852]

40. The government also insisted that RBS make an immediate commitment to restoring and maintaining the availability and marketing of competitively priced mortgage lending over the next three years at a level at least equivalent to that of 2007.

41. It also insisted that RBS make available increased sums for the next 12 months “for shared equity and shared ownership schemes” and “to support ongoing expansion of financial capability initiatives”. RBS also had to agree to “restore and maintain availability and active marketing of competitively priced lending to SMEs at a level at least equivalent to that of 2007.”

42. In return for it’s participation in APS, the government forced RBS to provide additional commitments on lending and remuneration over and above those agreed in October 2008. These included (a) to increase lending to £25bn in 2009 (£16bn in business lending and £9bn in mortgages) and (b) to adopt FSA guidelines on pay and bonuses.

43. The government announced that any bonuses would be paid as a minimum two-thirds in shares, maximum one-third in cash, and the cash elements of bonuses should be deferred and subject to clawback if future bank performance is poor, meaning a cut in bonuses paid from £2.5bn in 2008 to £175m (the contractual minimum) in 2009.

44. When giving evidence to the Treasury Select Committee’s inquiry into the banking crisis in March 2009, UKFI Chief Executive John Kingman said that it was “very important” that UKFI should discuss remuneration policy with the banks. “One of the lessons of what went wrong in these banks was that the incentives were wrong in these banks and I think as shareholder we should really care about that.”

45. Such conditions to the investment of public money in RBS ensured that the bank acts and spends taxpayers’ money taking into account the public interest on these issues and existing government’s policies.

RBS investments since recapitalisation

46. The failure by the government to ensure RBS did the same in relation to the protection of human rights and the need to tackle climate change is irrational and inconsistent with its stated position on both issues. Please see the statements provided by the World Development Movement (in relation to human rights) and People and Planet (in relation to climate change) for further information.

47. On 2 March 2009, the Guardian reported that in the six months following the initial bail out of the banks, RBS had been involved in financing loans to coal, oil and gas companies worth nearly £10bn (£9,941m) — over a quarter of the amount the bank had received from the tax payers at that point. [page 995-996] These projects include the following:

48. RBS helped extend £6.66 billion worth of credit to controversial energy giant E.ON in November 2008 (on top of the $70 billion worth of loans to E.ON it was involved in the 2 years prior to the bail out). [page 855] E.ON is the most controversial power company in the UK because of its plans to build the first coal fired power plant for more than two decades at Kingsnorth, Kent. In 2008 it announced plans to build a further 17 coal and gas-fired plants across Europe and Russia by 2010, and is exploring options of switching its gas-fired power stations to increased coal use. In 2009 representatives of civil society groups from over 40 different countries in the developing world wrote in an open letter to Energy and Climate Secretary Ed Milliband that, “New coal power stations in the UK will exacerbate the impact of climate change on impoverished communities in the global south and prevent the UK from developing sustainable ways of creating a low-carbon economy that could be used elsewhere in the world,.. A decision to support new coal power stations will confirm the UK as a climate criminal in the international climate change negotiations.” [page 882]

49. In November 2008, RBS was one of only two banks that took part in a $1.23 billion dollar loan to Constellation Energy Group. Constellation is the biggest wholesale power seller in the US. It owns 78 electricity generating units in the US with a combined capacity of 8,700 MW, 35% of which is generated from coal combustion.

50. In March 2009, RBS took part in $ 2 billion loan to Energias de Portugal, which operates a number of coal-fired plants in Portugal.

51. In March 2009, RBS was part of a consortium of 14 banks that lent $1,890 million to the Irish company Tullow Oil – providing in the region of $100 million itself. [page 1028] The bank had already helped raise £402 million by placing shares for Tullow in January 2009. [page 874-876] Tullow’s expansion plans are exacerbating conflict in Central Africa and South Asia. In early 2009, the company announced a major discovery of 400-1000 million barrels by Lake Albert in Uganda, just on the border with the Democratic Republic of Congo (DRC). Tullow also holds oil exploration rights across the border in North Kivu in the DRC, which continues to be torn by strife after more than a decade of resource-driven civil war. This border area has seen some of the fiercest fighting take place as rival armies and militias have struggled for control. An additional 30,000 refugees were displaced in North Kivu during two weeks of fighting in March, adding to the existing 1.4 million internally displaced people in the region. The government of the DRC has previously accused Tullow of irregularities and encouraging the Ugandan military to cross into DRC territory. [page 856] Tullow also owns a significant stake in offshore oilfields on the Bangladeshi-Burmese border, which have led to recent naval escalation over maritime boundaries. [page 854] The company has further been criticised for re-using single-hull tankers (which are widely phased out under environmental safety regulations) as floating production and storage vessels in its Ghana offshore operations. [page 891-956]

52. In March 2009 RBS financed exploration work in previously untouched regions of Greenland’s Arctic. Acting as joint bookrunner with Merrill Lynch on March 11, RBS placed shares worth £116 million for Cairn Energy, a Scottish oil company. [page 1029-1036] Although Cairn’s main existing production lies on the Indian-Pakistani border, the placing statement made clear that money raised would go towards “accelerated drilling” in Greenland. With the Exploration Director describing Greenland as “a true frontier country where oil and gas exploration is at an embryonic stage”, the company has built up licences covering 72,000 square kilometres of acreage off the country’s west coast, covering an area half the size of England. Cairn has described its Arctic exploration plans as high-risk but potentially “transformational” – stating that “costs will be large so the size of the prize needs to be big“ and “there’s going to need to be a lot of wells drilled before you’re successful.” [page 783]

53. It cannot be correct that such investments be allowed to continue. We can see no legal basis upon which the Treasury can argue it does not need to consider the effect that investment (using public money) will have on climate change and on exacerbating human rights abuses. Such a position is completely contradictory to all other statements made by the government on both issues. Again, please see the statements from People and Planet and the World Development Movement on this issue.

54. HMT has completely failed to consider the public interest of RBS’ investments and/or or to review how these might conflict with established government best practice and policies. It has displayed absolutely no intention of considering these issues, let alone acting on them.

55. Furthermore, HMT’s decision-making processes in this regard have been opaque, un-consultative and, to the best of our knowledge, taken without regard to calls by campaigning organisations, over 70 members of Parliament [page 888] and others to consider the need for a proactive strategy for positive management of shares to improve the investments of RBS.

56. On the same day as it became apparent that RBS would need billions of pounds of taxpayers’ money to save it from collapse, the government’s climate change watchdog warned that we should abandon almost all fossil fuel use for power generation by 2028.

57. Although all the UK high street banks (with the honourable exception of the Co-op) are heavily involved in bankrolling new oilfields, gas pipelines and coal power stations around the world, RBS has been shown to have the worst track record of them all, and it has not changed since recapitalisation.

58. It cannot be correct that short-term return on tax-payer’s investment is the only possible factor the Treasury and UKFI consider when investing public money in RBS, not only because it cannot be in the public interest to do so, it is also out of line with all other government statements and policies on the issues and the conclusion to numerous studies, including the influential Stern Review commissioned by the UK Government. Unabated fossil fuel investment will incur far greater costs to the tax-payer in the future, as well as more lives lost, property damaged and a more politically and ecologically unstable world.

59. The widely touted interests of the tax-payer as shareholder would be much better served by creating a more climate-secure future than by the short-term inflation of RBS’s profit margins.

Good Practice examples from other banks

60. Examples from other banks show that consideration of human rights and environmental factors are clearly possible and commercially sound.

61. There are a number of banks in both the UK and abroad that have adopted some form of environmental policies or principles with regards to their lending decisions. Many of these principles and policies are criticised by environmental and human rights groups for being voluntary and lacking binding commitments, but the fact that RBS remains conspicuously absent from so many of them is testament to the fact that it has given minimal consideration to the relevance of these factors.

62. From the Cooperative Bank’s ethical policy: “We will not finance any business whose core activity contributes to global climate change, via the extraction or production of fossil fuels (oil, coal and gas), with an extension to the distribution of those fuels that have a higher global warming impact (e.g. tar sands and certain biofuels)….The high price of oil and technological advances mean the exploitation of unconventional fuels, such as tar sands, is now viable. Given the global imperative to deal with climate change, it is concerning that some businesses have begun to invest in these fuels whose extraction and production requires much more energy and therefore has a much higher impact on climate change than conventional fuels. 90% of customers who participated in the review supported the bank’s decision to extend our policy on climate change to withhold finance from businesses involved in the distribution of fuels with a higher global warming impact.” [page 885]

63. According to the HSBC 2008 Sustainability report, “HSBC has developed a series of policies for sustainable sectors,” including energy. “These policies cover a wider range of lending activity and are applied regardless of the value of the transaction or the size of the business. They outline ‘restricted’ and ‘prohibited’ areas of business and set with minimum standards in line with, or better than, international good practice guidelines…In 2009 HSBC will review its Energy Sector Policy to take into account the changing regulatory environment, new research, and developing technologies. The revised policy will provide improved guidance and information of the political, economic, technical and social developments in the sector with a particular emphasis on climate change.” [page 791-792] In view of the shift in consensus in climate science that has occurred since 2006 when this policy was drafted it is expected that HSBC’s the review will result in more stringent restrictions on lending.

64. In December 2008, HSBC announced that it would review lending to Canadian tar sands developers, on the grounds that tougher climate regulations may make such energy-intensive activities commercially unviable. [page 857-858]

65. In February 2008, three US-based banks Citigroup, JP Morgan Chase and Morgan Stanley, announced the creation of the ‘Carbon Principles’ – a set of climate change guidelines for advisors and lenders to power companies in the U.S. The banks claimed that the Principles were in anticipation of the government capping GHG emissions in the coming years and that the biggest motivation for them was financial. The new standards were the result of nine months of negotiations among the banks, environmental groups, and large utilities. The Principles do not preclude the possibility of the banks financing new coal-fired power stations, but they do involve a more rigorous climate-sensitive evaluation process before embarking on such finance. [page 485-486]

66. In December 2008, Bank of America announced that it would stop financing companies that produced more than half of their coal through the process of Mountain Top Removal mining. A company spokesperson said at the time that, “We feel the practice has a significant impact on the environment and on communities.” [page 862]

67. Both Barclays and HSBC have signed up to the ‘Climate Group Principles’. The Principles include statements such as, “That climate change is an urgent problem that requires an internationally coordinated, collaborative response directed at substantially reducing global GHG emissions within a timeframe that minimises the risk of serious impacts….[and] That the transition to a low GHG economy will involve all levels of government, the private sector, non-governmental organisations and others and require a diversity of approaches reflecting the range of environmental and economic challenges involved.” RBS has not signed up to these ‘Climate Group Principles’. A copy of the principles is at pages 864-865.

68. In addition HSBC signed ‘the Climate Principles’ that, “provide strategic direction on managing climate change across the full range of financial products and services, including: research activities; asset management; retail banking; insurance & re-insurance; corporate banking; investment banking & markets; project finance.” [page 868]

69. An assessment of the performance of various UK banks against a number of different international corporate responsibility standards by the NGO BankTrack scored RBS’ human rights policy 1 out of 4; meaning that the bank’s policy “is vaguely worded or aspirational, for instance by endorsing the Global Compact or the Universal Declaration of Human Rights, with no clear commitments”. [page 569 and 690]

70. In his last report to the UN Human Rights Council, Professor John Ruggie suggests that the existence of vague policies and commitments do not constitute due diligence for companies, arguing that “more detailed guidance in specific functional areas is necessary to give those commitments meaning.”

71. This advice was cited in a decision by the UK Government’s own national contact point (NCP) for the OECD Guidelines for Multinational Enterprises, made up of officials from BERR and DfiD, who wrote with reference to companies operating or investing in the Eastern DRC.

72. These Guidelines state: “The NCP urges UK companies to use their influence over contracting parties and business partners, when trading in natural resources from this region, to ensure that due diligence is applied to the supply chain. The NCP reiterates John Ruggie’s definition of due diligence: ‘Due diligence can be defined as a process whereby companies not only ensure compliance with national laws but also manage the risk of human rights harm with a view to avoiding it. The scope of human rights-related due diligence is determined by the context in which a company is operating, its activities, and the relationships associated with those activities’.” [page 837]

73. In light of all the above, we cannot see how the government’s decision not to even consider environmental and human rights issues when determining how best to invest UK taxpayers’ money via RBS and other recapitalised banks is lawful.

74. Given the potentially devastating and extremely harmful effect of RBS’ ongoing investment commitments and their likely future ones (if this decision remains) we feel we have no option but to ask the court to review this issue as a matter of priority.



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Cashing in on Coal, p17
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A Stratton, The Guardian, 2 March 2009, ‘New banking rules should reveal emissions from investment, campaigners say’,
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Asean Affairs, 5 November 2008, ‘
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Focus Areas