Mike Schwarz examines how the UK’s failure to tackle the ecological crises is also storing up trouble for public order, civil liberties and the constitution’s legitimacy.
‘Uniting the world to tackle climate change’ is the strapline for the upcoming UN conference on climate change
, which will be held in Glasgow. Let us all hope that objective is achieved. But hope and words are not enough. Action is required, now – yesterday, in fact, as was made clear by August’s sixth Intergovernmental Panel on Climate Change (IPCC) assessment report, Climate change 2021: the physical science basis
. Unfortunately, for many, the current UK government’s track record is as reckless as it is worrying as it is duplicitous. Something is surely very wrong when, as recently as June, even the official Climate Change Committee
(CCC) concluded that the UK is failing to match climate rhetoric with action (2021 progress report to parliament
, 24 June 2021).
So what can ordinary citizens do? In the words of a leading professor of global climate change, Simon Lewis, ‘there is a role for everyone’, in changes to our lifestyles, but ‘[t]he fossil fuel industry is a powerful and complex enemy. Historically, it is where the world’s most influential lobbyists have worked. Their efforts have secured subsidies, military campaigns and a free licence to pollute, all justified in the name of access to fossil energy’ (Simon Lewis, ‘Let’s say it without flinching: the fossil fuel industry is destroying our future
, 10 August 2021). So much responsibility still rests on governments and businesses to make collective change in the interests of us all that citizens should also campaign and lobby for that agreement and action.
Right to protest: the basics
Freedoms of expression and assembly under articles 10 and 11 of the European Convention on Human Rights
are there for a reason. They allow citizens to express their very personality, politics and individuality, and to come together with others with a like mind with the aim of bringing others around to their views – both the undecided and those whom they are trying to influence. If those targets are present, all well and good, but often that is not the case, so there needs to be a receptive and present media to report to those who are willing to listen.
The form of the protest can vary in size, nature and location – any and all shapes and sizes of protest work. European Court of Human Rights (ECtHR) jurisprudence allows messages that shock, offend and disturb (Handyside v UK App No 5493/72, 7 December 1976
; (1979–80) 1 EHRR 737), and countenances disruptive action, especially if peaceful (see Director of Public Prosecutions v Ziegler and others  UKSC 23
;  3 WLR 179 from para 57). The Supreme Court, in Ziegler
, reiterated that ‘[a]rrest, prosecution, conviction, and sentence are all “restrictions” within both articles’ (para 57) and so an assessment of the proportionality of the state’s interference with activists’ rights must be applied, albeit in different ways, to every decision of the state.
Protest can be one of the purest and most accountable expressions of democracy – if, by democracy, one means the influencing of decision-makers with power by those without privilege. Their altruism and transparency stand in stark contrast to other forms of influence: by paid lobbyists behind closed doors; by former politicians or officials turned private consultants, passing through a revolving door or working their old address books; to those who go for ‘route one’ and just pay into party funds.
But in protest law, as with the pressing need to protect nature, there is the same discrepancy between the words and actions of those with power. In R v Jones and other appeals  UKHL 16
;  1 AC 136, a seminal House of Lords judgment, Lord Hoffmann asserted that:
… civil disobedience on conscientious grounds has a long and honourable history in this country. People who break the law to affirm their belief in the injustice of a law or government action are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind. It is the mark of a civilised community that it can accommodate protests and demonstrations of this kind. But there are conventions which are generally accepted by the law-breakers on one side and the law-enforcers on the other. The protesters behave with a sense of proportion and do not cause excessive damage or inconvenience. And they vouch the sincerity of their beliefs by accepting the penalties imposed by the law. The police and prosecutors, on the other hand, behave with restraint and the magistrates impose sentences which take the conscientious motives of the protesters into account (para 89).
The case was about whether activists who sought to immobilise weaponry - tanks and aircraft - due to be deployed at the outset of the first Gulf War could rely on one of the so-called ‘justification’ defences to the criminal charges they faced: that they sought, under Criminal Law Act 1967 s3, to prevent another crime, in this case the crime of aggression, based in part on the Rome Statute of the International Criminal Court
. The court found against them.
Restricting the right to protest
Fast forward to today, specifically to the Police, Crime, Sentencing and Courts Bill
, which includes provisions on protests. The Home Office 'fact sheet' supporting the bill asserted that ‘freedom of expression is a cornerstone of British democracy’ (Police, Crime, Sentencing and Courts Bill 2021: protest powers factsheet
, Home Office, last updated 7 July 2021). And in March 2021, the same month that she endorsed its second reading in parliament, the home secretary, Priti Patel, reportedly expressed support for the police’s robust handling of the protest on Clapham Common about the death of Sarah Everard (‘Priti Patel “backs the police” over Sarah Everard vigil saying she was “sickened” by “violence towards female officers”
’, ITV News, 30 March 2021). The bill has been described by one opponent as being ‘not about law and order’ but ‘about state control’, one concern being that ‘ministers will have the power to suppress any protest they don’t agree with’ (Joshua Clements, ‘The police bill is not about law and order – it’s about state control
, 9 August 2021). Indeed, according to parliament’s own Joint Committee on Human Rights, some clauses limiting protest breach human rights (Haroon Siddique, ‘Curbs on protests in policing bill breach human rights laws, MPs and peers say
, 22 June 2021).
The bill, a response to the blossoming Extinction Rebellion (XR) movement in recent years, is just the final stage of a hackneyed choreography that has culminated, every 10 years or so, in seminal public order legislation. The catalyst for each has been the convulsion of an effective, high-profile campaign or social movement, met by a reactive and at times unlawful police response. A hostile and seemingly co-ordinated media commentary denigrating the campaigners and their message and lamenting the lack of police powers has been followed by new police powers and criminal offences.
Such laws and the spiralling environmental crisis may, in fact, prompt some to graduate from civil disobedience to direct action. A seminal example, from 2007–08, was the Greenpeace action at Kingsnorth coal-fired power station. Activists scaled a chimney stack, and painted a message to the then prime minister, encouraging ‘Gordon’ to ‘bin’ coal-fired energy. Their actions led to the power station being closed down, albeit temporarily, thereby curtailing its carbon dioxide emissions. Charged with criminal damage, they deployed at their criminal trial two of the other so-called ‘justification’ defences: that, as a result of the inevitable impact of emissions on climate change, they were acting through ‘necessity’ to protect human life; and that they had lawful excuse for the damage, that excuse being the protection of other property, the planet itself. The action had its intended effect. They were acquitted by a jury (John Vidal, ‘Not guilty: the Greenpeace activists who used climate change as a legal defence
, 11 September 2008) and the UK started the process of phasing out coal-fired power stations.
Covert state measures
Similar subsequent instances of direct action by environmentalists led to the exposure of other measures the state had been prepared to take, covertly, to monitor and thwart protest, even at great cost to privacy, protest and the right to a fair trial. The state has deployed scores of undercover police officers (UCOs) into the personal lives and political activity of thousands of targets for over 50 years. The unravelling began with the unmasking, by former (duped) partners and activists/friends, of UCO Mark Kennedy (‘Stone’). Besides insinuating himself into women’s lives, he had also been an organiser and participant of, and witness to, direct action (Rob Evans and Paul Lewis, ‘Undercover police officer unlawfully spied on climate activists, judges rule
, 20 July 2011).
One planned action was to occupy Ratcliffe-on-Soar coal power station in 2009. It was thwarted when, on the eve of the action, police arrested over 100 activists (including Kennedy himself) assembled at a nearby school, discussing the proposed action. Those conversations were covertly recorded by Kennedy but withheld at the trials that followed. They would not only have supported the defences being put forward but were at odds with the way the prosecution put its own case. In the words of the lord chief justice, Lord Judge, in the successful criminal appeal in 2011, ‘elementary principles which underpin the fairness of our trial processes were ignored’ (R v Barkshire and others  EWCA Crim 1885
;  Crim LR 453 at para 1).
Similarly, in an earlier action in 2008, activists (including one dressed as a canary) stopped and unloaded a coal train on its way to DRAX power station. In that appeal, in 2014, another lord chief justice, Lord Thomas, found ‘a complete and total failure [by prosecutors] … to make a disclosure fundamental to the defence’ (R v Bard and others  EWCA Crim 463
at para 19).
Over 50 prosecutions have been found wanting so far, and through the initiative, industry and personal sacrifice of campaigners, many more UCOs exposed. There was therefore almost an inevitability when, in 2015, the then home secretary, Theresa May, set up the Undercover Policing Inquiry
(UCPI). It was due to report within three years. So far, it is still examining the activities of UCOs for the first ‘tranche’ of its work – undercover policing up to 1982. COVID-19 has not been the only cause for the delay. Many put it down to a fetish for secrecy on the part of those with the documents and control. The activists have already walked out on proceedings once in protest at the secrecy, delay and conservatism of the police, the inquiry and its chair (‘Undercover Policing Inquiry: chairman urged to quit
’, BBC News, 21 March 2018). Meanwhile, key aspects of its terms of reference – the ‘better’ regulation of covert activity by state agents – have already been pre-empted by the swift and largely unopposed passage of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
Use of force
The state seeks not only to obtain and control information on protesters, but also, in the words of Lord Hoffmann in another passage of his judgment in R v Jones, ‘the monopoly of the legitimate use of physical force. A tight control of the use of force is necessary to prevent society from sliding into anarchy’ (para 77). In words that take on an additional resonance in the light of the IPCC’s doomsday projections, Lord Hoffmann noted (at para 77) ‘the state of nature in which’ (quoting the philosopher Thomas Hobbes’s Leviathan):
… men live without other security, than what their own strength, and their own invention shall furnish them withal. In such condition, there is no place for Industry; because the fruit thereof is uncertain: and consequently no Culture of the Earth; no Navigation, nor use of commodities that may be imported by Sea; no commodious Building; no Instruments of moving, and removing such things as require much force; no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and what is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.
According to Lord Hoffmann, ‘[t]he law will not tolerate vigilantes’ (para 83), which is how he characterised those who turn to the ‘use of self-help to protect the interests of third parties or the community at large’ (para 81). Citizens must instead rely on ‘law enforcement officers, [who] if called upon, would be in a position to do whatever is necessary [and] the citizen must leave the use of force to them’ (para 81). He then asks: ‘What if the sovereign power, when called, will not come?’ (para 82). The answer: ‘If the citizen is dissatisfied with the law as laid down by the courts, he must campaign for parliament to change it’ (para 84).
For many activists, these are hollow words. Hobbes’s ‘social contract’ between the ruled and rulers, by which citizens surrender freedoms to a sovereign who acts in their collective best interests, is not only broken but it is part of the problem. The state is taking insufficient action on the climate and biodiversity crises while professing that it is, responding too slowly in the face of the precipices that are nature’s tipping points (see the CCC 2021 progress report to parliament) and suppressing dissident messengers, like the DRAX canary, while professing that it supports the right to protest.
‘[I]t has been said,’ a former prime minister once famously opined, ‘that democracy is the worst form of government except for all those other forms that have been tried from time to time’. Indeed, it takes no account of the voice or interests of the disenfranchised – the young, those not yet born, and those who live outside the UK, particularly in those countries most affected by, but least responsible for, carbon dioxide emissions. Governments rarely look beyond the five-year election cycle, preoccupied – like a mayfly – with the next 24-hour news cycle. It mirrors a thesis in evolutionary psychology: our outlook is too short-term, a hunt for immediate gratification, an aversion to immediate loss, at the expense of long-term planning. In short, ‘[y]ou can take the person out of the Stone Age … but you can’t take the Stone Age out of the person’ (Nigel Nicholson, ‘How hardwired is human behavior?
’ Harvard Business Review
, July–August 1998).
Shifting the focus of criminal law
The current criminal law is, unsurprisingly, not fit for purpose to deal with those responsible for nature’s collapse. Criminal offences, which may sound fitting for negligent politicians and wilful polluters – misconduct in a public office, (corporate) manslaughter, even assisted suicide – are neutered by drafting, precedent and lack of vision. Activists and lawyers with vision (Stop Ecocide International
) have proposed an oven-ready remedy, a simple amendment to the Rome Statute. It is a new international offence of ‘ecocide’ defined as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts’ (Independent Expert Panel for the Legal Definition of Ecocide: commentary and core text
, June 2021).
To see the implications for public order of the ecological breakdown only through the prism of protest is, however, to recognise only a fraction of the true picture. There is plenty of evidence that ecological collapse will exacerbate social inequality within and across countries, trigger greater migration, including to Europe, and fuel societal stressors that lead to public disorder. The government’s latest policy for refugees, including climate refugees, might easily be characterised as a meld of Little Britain and King Canute. It reaches for legislation (the Nationality and Borders Bill
) widely perceived to be unworkable at best, and unlawful and discriminatory at worst. It ignores the geography of the 21-mile Strait of Dover as well as the porous borders in Ireland and across the Irish Sea.
In terms of public order, there is some precedent for a more enlightened approach that seeks to address and mitigate, even anticipate, the likely causes of public disorder. The Scarman Report (November 1981) was commissioned by a Conservative government just two days after the end of the Brixton ‘riots’. While flawed in many ways, it did level some criticism at the police and government, recognised that the disturbances were caused by serious underlying social and economic problems, and made far-ranging recommendations for urgent action to reduce the risk of a recurrence.
In the face of inaction by the state, might there be a legal basis for citizens to take action to prevent societal breakdown before it becomes inevitable or actually happens? At first sight, the ancient common law of breach of the peace has attractions. Its use by the police against protesters, particularly with regard to the limits of ‘kettling’, has been litigated both in the ECtHR (Austin and others v UK App Nos 39692/09, 40713/09 and 41008/09, 15 March 2012
; (2012) 55 EHRR 14 regarding Mayday protests) and in the House of Lords (R (Laporte) v Chief Constable of Gloucestershire Constabulary  UKHL 55
;  2 AC 105 regarding an anti-war protest, where, once again, UCOs were deployed without the activists’ lawyers or the courts seemingly being made aware1Some of the activists/appellants are now core participants in the UCPI on the basis that they say UCOs were involved but their role was not disclosed – see UCPI core participants ruling 1, 21 October 2015, in particular para 94, page 30. The inquiry has not yet examined the evidence.
But ‘[a]t common law [it] is not only the right of every citizen, it is also his duty’ to prevent a breach of the peace (Albert v Lavin  AC 546, quoted at paras 31 and 61 of Laporte), and a breach of the peace occurs ‘whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance’ (R v Howell  QB 416, quoted at para 27 of Laporte). In practice, the power to take preventative action is likely to remain confined to the police and only to deal with short-term issues – not just protests, but also a melee around a standing water pump at a time of drought, a scramble for a helicopter air lift from a flooded high street or a disagreement over the last remaining loaf of bread at a bakery at a time of food shortage.
The future of protest
What of campaigners’ choice of targets? They will note the instinctive understanding, in the public’s mind, of actions taken by those acting altruistically against those directly, selfishly profiting from environmental degradation. The jury acquittal of the ‘Kingsnorth Six’ over a decade ago has been followed by the acquittal just this year of XR activists who took direct action against Shell at its headquarters, in the face of a direction by the judge that they had no legal defence to charges of criminal damage (‘Jury acquits Extinction Rebellion protesters despite “no defence in law”
, 23 April 2021).
And what of their choice of tactics? The environmental movement has long been committed to the philosophy of non-violent direct action (NVDA) and the pragmatism of persuasion. But the government, in its increased restrictions on peaceful, open protest, has chosen to ignore the conventional brake on such legislation – the assumption that, by doing so, citizens feel disenfranchised and may turn to covert action. As the ecological breakdown becomes more serious and apparent, one need not look very far to see where this may lead a disillusioned minority: a growth in actions like monkeywrenching (a tactic attributed to campaigners associated with Earth First!), sabotage by cells such as the Earth Liberation Front, or even the deployment of improvised explosive devices by individuals working alone, such as the Unabomber.
A final word then on Lord Hoffmann, in particular his comment that ‘[p]eople who break the law to affirm their belief … are sometimes vindicated by history. The suffragettes are an example which comes immediately to mind’ (R v Jones at para 89). This presupposes that there will be an opportunity to put things right, a reckoning for the powerful who fell into error and posthumous satisfaction for those who had foresight and spoke out, but did not hold sway. Such a coda cannot be assumed in the face of existential threats such as climate change and the biodiversity crisis.
In the words of Professor Simon Lewis (a veteran of events at Ratcliffe-on-Soar and currently a core participant in the UCPI), ‘every single achievement of every human society on Earth occurred under a climate that no longer exists’ (Fiona Harvey, ‘World’s climate scientists to issue stark warning over global heating threat
, 8 August 2021). If the planet itself had a voice and it was that of comedian Spike Milligan, it may well echo his last comments, the inscription on his gravestone: ‘I told you I was ill.’