“Polarisation between local and national decision-makers leads to a perceived lack of fairness.”
In September, Kirsty Brimelow QC, representing Richard Roberts after his conviction for public nuisance for his part in an anti-fracking protest in Lancashire, told HHJ Altham at Preston Crown Court that, if he were jailed, it would be the first time environmental protestors had been given custodial sentences since 1932, when landowners went to the law to stop ‘mass trespasses’ by the working classes of Manchester and Sheffield on the Peak District moors. That campaign continued and, today, the ‘right to roam’ is set out in the Countryside and Rights of Way Act 2000. A plaque at Sheffield Town Hall commemorates the (illegal) campaign.
Nevertheless, Roberts, with Simon Roscoe Blevins and Richard Loizou, were each jailed for 16 or 15 months, despite having no previous convictions. The judge found that they ‘provide a risk of re-offending. Each of them remains motivated by unswerving confidence that they are right. Even at their trial they felt justified by their actions.’ I am sure the campaigners would agree.
In October, the Intergovernmental Panel on Climate Change (IPCC) reported that ‘rapid and far-reaching transitions in energy, land, urban and infrastructure (including transport and buildings), and industrial systems’ are needed to limit global warming to 1.5°C above pre-industrial levels (Global warming of 1.5 °C – summary for policymakers
In an obvious shout-out to public lawyers, the IPCC says (at D5.6):
Public acceptability can enable or inhibit the implementation of policies and measures to limit global warming to 1.5°C and to adapt to the consequences. Public acceptability depends on the … perceived fairness of decision procedures.
It adds that the options are ‘most effective when … local and regional governments and decision makers are supported by national governments’ (D3.3).
In June 2015, the democratically-elected county council refused Cuadrilla’s planning application. Cuadrilla appealed to the planning inspector. However, in November 2015, the secretary of state announced that he would make the final decision himself. In July 2016, the planning inspector recommended granting planning permission in part and refusing it in other respects. However, in October 2016, the secretary of state not only granted Cuadrilla the planning permission recommended by the inspector but also in respect of the remainder of the case. A challenge to the decision was dismissed: Preston New Road Action Group v Secretary of State for Communities and Local Government and another  EWCA Civ 9
The idea of the will of the people being overturned by vested interests goes some way to explain the strength of feeling behind the Preston New Road protests. Polarisation between local and national decision-makers leads to a perceived lack of fairness.
Back in Preston Crown Court, it is unfortunate for HHJ Altham that even the Daily Mail
(not known as always a friend of direct action environmental campaigns!) has commented
on his family’s business links with the oil and gas industry and his sister’s active promotion of fracking in Lancashire. The ‘manifestly excessive’ sentence was overturned on appeal in October.
At a global level, climate change is fundamentally an equality issue. The IPCC states (at D6.1):
Social justice and equity are core aspects of climate-resilient development pathways that aim to limit global warming to 1.5°C as they address challenges and inevitable trade-offs, widen opportunities, and ensure that options, visions, and values are deliberated, between and within countries and communities, without making the poor and disadvantaged worse off …
At D2.2, it states that the ‘consideration of ethics and equity can help address the uneven distribution of adverse impacts … particularly for poor and disadvantaged populations, in all societies’.
As anti-fracking protests bring out the legal conflict between property rights and international challenges, could this be an area of social justice law that is set to expand?