Legal protests: success in the Extinction Rebellion judicial review
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Marc Bloomfield
As many who follow the activities of Extinction Rebellion (XR) will know, the Metropolitan Police’s blanket ban issued on 14 October 2019 under Public Order Act 1986 (POA) s14, which demanded that XR cease its protest(s) within London, was challenged by our members and supporters earlier this month.
This s14 order was in fact the second issued by the Met. The first had been issued on 8 October and seemingly granted permission for any protests so long as they continued in Trafalgar Square. By 14 October, no doubt having grown frustrated at the continued protesting by rebels, the Met issued a second order, which removed all right for any assembly linked with XR within the London area.
High-profile individuals put themselves forwards as claimants for a judicial review of the Met’s actions, including Baroness Jenny Jones, Caroline Lucas MP and George Monbiot – all likely to be familiar names to most readers. The two-day hearing took place before two judges of the High Court at the Royal Courts of Justice, a building where only one month earlier, we, as Lawyers for Extinction Rebellion, had staged our first action and made our Lawyers’ Declaration of Rebellion, in spite of the blanket ban that the judicial review sought to challenge.
It was notable that that action (which involved all the accoutrements of an XR action – banners, loudhailers, sound systems, blocking of public highways), while still heavily policed, did not see any of our members arrested. It was certainly noticeable to those of us leading the action – a barrister, a solicitor and a QC, all suited and booted – that we had managed to carry out our actions unhindered while our fellow activists only a few streets away were instead bundled into police vans, silenced and charged for the same types of activities.
The claimants’ submission was focused mainly on the grounds that the application of the s14 condition was ultra vires as the Autumn Uprising was a series of events, not a single assembly – encompassing various activities, some of which were ‘assemblies’ and others of which were not.
We were delighted that the High Court accepted XR’s position and overturned the ban (Jones and others v Commissioner of Police for the Metropolis [2019] EWHC 2957 (Admin), 6 November 2019), effectively rendering illegal all the arrests that took place under it during the Autumn Uprising – of which there were many.
Dingemans LJ and Chamberlain J accepted XR’s position that POA s14 can only apply to single assemblies. Their judgment ruled:
First … there must be a ‘scene’, and not a series of different scenes across the Metropolitan and City of London police areas. Secondly … a location of which it is coherent to pose the question whether it is wholly or partly open to the air, and not a series of separate locations across the Metropolitan and City of London police areas (para 66).
They went on to state:
In our judgment a public assembly in section 14 must be in a location to which the public or any section of the public has access, which is wholly or partly open to the air, and which can be fairly described as a scene. Separate gatherings, separated both in time and by many miles, even if co-ordinated under the umbrella of one body, are not one public assembly within the meaning of section 14(1) of the 1986 Act (para 72).
XR is founded on a holacratic model, which means that anyone who follows its principles and values can take action in its name. Furthermore, XR is decentralised and based on autonomous structures. That the judges found the Autumn Uprising comprised multiple, physical assemblies wholly reflects the reality of our independent groups and structures, all making autonomous decisions that support and progress the same common goals.
Success in the judicial review for the second s14 order is a great step. No judgment can remedy the lost opportunity and actions that the order occasioned, though, a further action by Lawyers for Extinction Rebellion being one of those that was shelved due to the second s14 order.
There still also remains the issue of the legality of the first s14 order, a matter that is being pursued by the same team involved in the judicial review. Furthermore, the fundamental question of whether the orders breached the European Convention on Human Rights is unaddressed. As Lawyers for Extinction Rebellion, we are seeking to establish the latter as, unsurprisingly, we believe protecting the right to a peaceful protest is fundamental. As the climate and biodiversity crisis unfolds, we hope more and more people will join us to rise up against government inaction. Protecting and reinforcing our core rights will be essential if we are to succeed in turning the tide of mass extinction.

About the author(s)

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Natalie Barbosa is a spokesperson for Lawyers for Extinction Rebellion.