The Right to Protest
On 10 December last year, 15 men and women were found guilty of ‘endangering safety’ at Stansted Airport by ‘means of a device or substance’. The offence was created in 1990 in response to the Lockerbie bombing and fulfilled the UK’s obligations under the 1988 Montreal Protocol for the Suppression of Unlawful Acts of Violence at Airports. The ‘devices’ used by the Stansted 15, as they have come to be called, were industrial bolt-cutters, expanding foam, scaffolding poles and lock box devices, which they used to cut through the airport’s perimeter fence in March 2017 and to lock themselves together around a Boeing 767 which was being prepared for boarding on the airport apron.
The plane had been chartered by the Home Office to deport sixty people, a number of them LGBTQ+, to Nigeria, Ghana and Sierra Leone, where it was believed they might be at risk of persecution. The campaigners wore pink hats and carried a banner saying ‘No one is illegal.’ In court they listed their concerns about the Home Office’s deportation charter system, also known as ‘ghost flights’, where people are removed to undisclosed locations in the middle of the night, often with little warning and before they have exhausted all means of appeal (nearly half of all immigration decisions are overturned on appeal). The prosecution argued that the Stansted 15 had ‘caused significant disruption’ and ‘placed themselves, the flight crew, airport personnel and police at serious risk of injury or even death’. They were convicted under a law intended to apply to acts of terrorism, not to entirely peaceful – if disruptive – protests.
Less than two months before this, three men were sent to prison after blocking a convoy of trucks carrying drilling equipment to the Preston New Road fracking site in Lancashire, operated by Cuadrilla. At around 8 a.m. on 25 July 2017, as seven lorries approached the site, Richard Roberts, a piano restorer from London, got through a police cordon and climbed on top of the first lorry, bringing the convoy to a standstill. Rich Loizou, a teacher from Devon, climbed onto the cab of the final lorry. At around 3 p.m. Simon Blevins, a soil scientist from Sheffield, managed to climb onto another lorry. Fellow protesters threw blankets, food and water up to the men, who remained on the lorries for four days.
The three men did not attach themselves to the lorries, but their presence prevented the lorries from moving. The prosecution argued that the demonstration had caused a public nuisance by significantly interfering with traffic, disrupting local people and causing loss of trade to local businesses. Cuadrilla claimed that the protest had cost it £50,000. The men were sentenced to terms of imprisonment of up to 16 months: the first environmental activists to receive jail sentences for staging a protest since the Kinder Scout mass trespass in 1932, which marked the beginning of the right to roam movement. For the last 86 years the general consensus has been that people shouldn’t be sent to prison simply for protesting – a principle that was upheld by the Court of Appeal, which overturned the men’s sentences, though the convictions remain in place.
The significance of these convictions, and those of the Stansted 15, has not been lost on activists or the lawyers who defend them. In sentencing the Preston New Road campaigners, Judge Robert Altham said that the defendants’ views on the dangers posed by fracking made them more deserving of prison sentences, not less, because there was ‘no realistic prospect of rehabilitation’. Since he refused to hear evidence related to the case against fracking, the defendants could not give a meaningful account of their beliefs and their lawyers couldn’t defend them on the basis of free speech and the right to protest – Articles 10 and 11 of the European Convention on Human Rights. (The Human Rights Act 1998 brought Article 10, freedom of expression, and Article 11, freedom of assembly, into British law: the state has to observe the rights of citizens to freedom of expression and peaceful assembly and has an obligation to ensure those freedoms.)
Another change is the granting of pre-emptive injunctions to companies engaged in ‘controversial’ industries like fracking. Quia timet injunctions (an injunction anticipating the breach of a legal right) were introduced in 2003 after copies of the fifth Harry Potter book started circulating before the publication date. They allow restrictions to be placed on unnamed individuals in anticipation of illegal activity. INEOS, one of the world’s largest manufacturers of petrochemical and oil products, which owns fracking licences that cover more than 1.2 million acres of land across the north-west of England, was granted a pre-emptive injunction against ‘persons unknown’ in July 2017, preventing interference in the activities of its staff and contractors, before the company had even received permission to start drilling. This was soon followed by further injunctions granted to UK Oil and Gas (UKOG), Cuadrilla, iGAS and Angus Energy. The INEOS injunction applied not only to the eight sites across England where fracking was planned or being considered, but also to the activities of a large number of companies, contractors, subcontractors and other entities which make up its ‘supply chain’. The judged appeared convinced that the controversial nature of fracking meant INEOS’s economic interests required special protection, the first time a court has restrained anticipated protest on the basis of an asserted industry-wide risk.
The injunction was challenged by two activists, Joe Boyd and Joe Corre, who argued before the High Court that INEOS had failed to provide evidence that justified such a broad interpretation, and that the order was having a substantial impact on the rights of people to protest lawfully against fracking. In a witness statement to the court, the Green MP Caroline Lucas argued that ‘reasonable obstructions of the highway, such as slow walking, and peaceful protests, are legitimate tactics in the anti-fracking and other political and civic movements.’ The High Court disagreed and the interim injunction was renewed. On slow walking, Mr Justice Morgan held that
the ‘walking’ by the protesters was at an unnaturally slow pace … A court would take the view that standing still in order to block the passage of vehicles on the highway, because the vehicles are being used for a purpose to which the protester objects, would not be a reasonable use of the highway … The rights of the fracking operators should prevail over the claims of the protesters.
Breaches of the injunction could be punished by a prison sentence of up to two years and/or a fine of up to £5000.
The fracking companies acknowledged the exceptional nature of the injunctions: INEOS claimed it had obtained ‘the most wide-ranging injunction of its kind secured’. The contentious use of the phrase ‘persons unknown’ means, in principle, that an injunction applies to the world at large. An individual may become aware of the injunction and its terms only after breaching it and placing themselves in contempt of court. What’s more, the terms of the injunctions are vague and unclear: the injunction granted to UKOG, for example, bans people from ‘gathering or loitering outside’ its fracking sites. What does that mean? How many people constitute a ‘gathering’? For how long could people stand outside a site before they are deemed to be ‘loitering’? The intended effect is obvious: people will assume that protest, even of the most peaceful and unobtrusive sort, is prohibited.
Earlier this month, the Court of Appeal ruled much of the INEOS injunction unlawful, stating that the High Court had failed properly to balance INEOS’s commercial interests against the right to protest. In handing down the lead judgment, Lord Justice Longmore underscored the effect of the injunctions on lawful activity: ‘The citizen’s right of protest is not to be diminished by advance fear of committal except in the clearest of cases.’ He struck down the blanket prohibition on slow walking, on the basis that walking slowly in front of vehicles, or obstructing the highway, does not necessarily result in any damage to the companies. This judgment could not have come at a more important time. It shows that the judiciary will intervene to prevent powerful companies like INEOS from obtaining injunctions that intimidate and deter people from participating in lawful protest. Similar injunctions obtained by other companies should now be reconsidered.
In April more than a thousand climate change activists were arrested during ten days of apparently non-violent direct action in London, organised by Extinction Rebellion. Scotland Yard, under intense pressure to break up the protests, released a document stating that ‘we have been asked why we are not using tactics such as containment, physically and forcibly stopping the protesters from moving around. The simple answer is we have no legal basis to do so.’ Many of those arrested have been released, but 69 – so far – have been charged and await trial. The right to protest cannot be symbolic: it is not meaningful if no one hears it, no one sees it, and no one is disrupted by it. We wait to see how the courts will react.