Governments should fight corporations, not collaborate with them

Twenty years ago,

when I was a barrister
and human rights lawyer

in full-time legal practice in London,

and the highest court in the land

still convened, some would say
by an accident of history,

in this building here,

I met a young man who had
just quit his job

in the British Foreign Office.

When I asked him why did you leave,

he told me this story.

He had gone to his boss
one morning and said,

"Let's do something about
human rights abuses in China."

And his boss had replied,

"We can't do anything about
human rights abuses in China

because we have
trade relations with China."

So my friend went away
with his tail between his legs,

and six months later,

he returned again to his boss,

and he said this time,

"Let's do something about
human rights in Burma,"

as it was then called.

His boss once again paused

and said, "Oh, but we can't do
anything about human rights in Burma

because we don't have any
trade relations with Burma."

This was the moment he knew
he had to leave.

It wasn't just the hypocrisy
that got to him.

It was the unwillingness

of his government to engage
in conflict with other governments,

intense discussions.

All the while, innocent people
were being harmed.

We are constantly told

that conflict is bad,

that compromise is good,

that conflict is bad

but consensus is good,

that conflict is bad

and collaboration is good.

But in my view,

that's far too simple
a vision of the world.

We cannot know

whether conflict is bad

unless we know who is fighting,

why they are fighting,

and how they are fighting,

and compromises can be thoroughly rotten

if they harm people who
are not at the table,

people who are vulnerable, disempowered,

people whom we have
an obligation to protect.

Now you might be somewhat
skeptical of a lawyer

arguing about the benefits of conflict

and creating problems for compromise,

but I did also qualify as a mediator,
and these days, I spend my time

giving talks about ethics for free.

So as my bank manager likes to remind me,
I'm downwardly mobile.

But if you accept my argument,

it should change not just the way
we lead our personal lives,

which I wish to put
to one side for the moment,

but it will change the way we think
about major problems

of public health and the environment.

Let me explain.

Every middle schooler
in the United States,

my 12-year old daughter included,

learns that there are three
branches of government,

the legislative, the executive,
and the judicial branch.

James Madison wrote, "If there is any
principle more sacred

in our Constitution,

and indeed in any free constitution
than any other,

it is that which separates

the legislative, the executive,
and the judicial powers."

Now the framers were not just concerned

about the concentration
and exercise of power.

They also understood
the perils of influence.

Judges cannot determine
the constitutionality of laws

if they participate in making those laws,

nor can they hold the other branches
of government accountable

if they collaborate with them

or enter into close
relationships with them.

The Constitution is,
as one famous scholar put it,

"an invitation to struggle."

And we the people are served

when those branches do, indeed,
struggle with each other.

Now, we recognize the importance
of struggle not just

in the public sector

between our branches of government.

We also know it too in the private sector,

in relationships among corporations.

Let's imagine that two American airlines

get together and agree

that they will not drop the price

of their economy class airfares
below 250 dollars a ticket.

That is collaboration,
some would say collusion,

not competition,

and we the people are harmed

because we pay more for our tickets.

Imagine similarly two airlines
were to say, "Look,

Airline A, we'll take the route
from LA to Chicago,"

and Airline B says, "We'll take
the route from Chicago to DC,

and we won't compete."

Once again, that's collaboration
or collusion instead of competition,

and we the people are harmed.

So we understand the importance

of struggle when it comes to relationships

between branches of government,

the public sector.

We also understand the importance
of conflict when it comes

to relationships among corporations,

the private sector.

But where we have forgotten it

is in the relationships
between the public and the private,

and governments all over the world
are collaborating with industry

to solve problems of public health
and the environment,

often collaborating with the very
corporations that are creating

or exacerbating the problems
they are trying to solve.

We are told that these relationships

are a win-win.

But what if someone is losing out?

Let me give you some examples.

A United Nations agency decided
to address a serious problem,

poor sanitation in schools

in rural India.

They did so not just in collaboration
with national and local governments

but also with a television company

and with a major multinational
soda company.

In exchange for less
than one million dollars,

that corporation received the benefits
of a months-long promotional campaign

including a 12-hour telethon

all using the company's logo
and color scheme.

This was an arrangement

which was totally understandable

from the corporation's point of view.

It enhances the reputation of the company,

and it creates brand loyalty
for its products.

But in my view,

this is profoundly problematic
for the intergovernmental agency,

an agency that has a mission
to promote sustainable living.

By increasing consumption
of sugar-sweetened beverages

made from scarce local water supplies
and drunk out of plastic bottles

in a country that is already
grappling with obesity,

this is neither sustainable
from a public health

nor an environmental point of view,

and in order to solve one
public health problem,

the agency is sowing the seeds

of another.

This is just one example
of dozens I discovered

in researching a book on the relationships
between government and industry.

I could also have told you about
the initiatives in parks in London

and throughout Britain
involving the same company

promoting exercise,

or indeed of the British Government
creating voluntary pledges

in partnership with industry

instead of regulating industry.

These collaborations or partnerships

have become the paradigm in public health,

and once again, they make sense
from the point of view of industry.

It allows them to frame
public health problems and their solutions

in ways that are least threatening to,
most consonant with,

their commercial interests.

So obesity becomes a problem
of individual decision-making,

of personal behavior,

personal responsibility
and lack of physical activity.

It is not a problem

when framed this way

of a multinational food system
involving major corporations.

And again, I don't blame industry.

Industry naturally engages
in strategies of influence

to promote its commercial interests.

But governments have a responsibility

to develop counterstrategies

to protect us and the common good.

The mistake that governments are making

when they collaborate in this way

with industry

is that they conflate

the common good with common ground.

When you collaborate with industry,

you necessarily put off the table

things that might promote the common good
to which industry will not agree.

Industry will not agree
to increase regulation

unless it believes this will stave off
even more regulation

or perhaps knock some competitors
out of the market.

Nor can companies agree
to do certain things,

for example raise the prices
of their unhealthy products,

because that would violate
competition law,

as we've established.

So our governments should not confound

the common good and common ground,

especially when common ground

means reaching agreement with industry.

I want to give you another example,

moving from high-profile collaboration

to something that is below ground

both literally and figuratively:

the hydraulic fracturing of natural gas.

Imagine that you purchase a plot of land

not knowing the mineral rights
have been sold.

This is before the fracking boom.

You build your dream home on that plot,

and shortly afterwards,

you discover that a gas company
is building a well pad on your land.

That was the plight
of the Hallowich family.

Within a very short period of time,

they began to complain of headaches,

of sore throats, of itchy eyes,

in addition to the interference
of the noise, vibration,

and the bright lights from the flaring
of natural gas.

They were very vocal in their criticisms,

and then they fell silent,

and thanks to the Pittsburgh Post-Gazette,
where this image appeared,

and one other newspaper, we discovered
why they fell silent.

The newspapers went to the court and said,
what happened to the Hallowiches?

And it turned out the Hallowiches
had made a secret settlement

with the gas operators,

and it was a take-it-or-leave-it
settlement.

The gas company said,

you can have a six figure sum
to move elsewhere

and start your lives again, but in return

you must promise not to speak
of your experience with our company,

not to speak of your
experience with fracking,

not to speak about the health consequences

that might have been revealed
by a medical examination.

Now, I do not blame
the Hallowiches for accepting

a take-it-or-leave-it settlement

and starting their lives elsewhere.

And one can understand why the company
would wish to silence

a squeaky wheel.

What I want to point the finger at
is the legal and regulatory system,

a system in which there are
networks of agreements

just like this one

which serve to silence people

and seal off data points

from public health experts
and epidemiologists,

a system in which regulators
will even refrain from issuing

a violation notice

in the event of pollution

if the landowner and the gas company

agree to settle.

This is a system which isn't just
bad from a public health point of view.

It exposes hazards to local families

who remain in the dark.

Now I have given you two examples
not because they are isolated examples.

They are examples of a systemic problem.

I could share some counterexamples,

the case for example
of the public official

who sues the pharmaceutical company

for concealing the fact
that its antidepressant

increases suicidal
thoughts in adolescents.

I can tell you about the regulator

who went after the food company

for exaggerating the purported
health benefits of its yogurt.

And I can tell you about the legislator
who despite heavy lobbying

directed at both sides of the aisle

pushes for environmental protections.

These are isolated examples,

but they are beacons of light
in the darkness

and they can show us the way.

I began by suggesting that sometimes
we need to engage in conflict.

Governments should tussle with,

struggle with, at times engage in
direct conflict with corporations.

This is not because governments
are inherently good

and corporations are inherently evil.

Each is capable of good or ill.

But corporations understandably act
to promote their commercial interests

and they do so either sometimes
undermining or promoting the common good.

But it is the responsibility
of governments

to protect and promote the common good,

and we should insist

that they fight to do so.

This is because governments

are the guardians of public health,

governments are the guardians

of the environment,

and it is governments

that are guardians of these
essential parts of our common good.

Thank you.

(Applause)