How The Government And Wealthy Corporations Work Together To Stifle Protest
Before our now-former prime minister was in politics she was commercial manager for Shell. She, her climate minister (Graham Stuart) and her business and energy secretary (Jacob Rees-Mogg) were big fans of fracking, regardless of climate change, earthquakes and poisoned groundwater. She was also keen to stifle protest against the anti-environmental policies she planned to implement. I’m relieved we’ll never know what her promised crackdown on “militant activists” might have looked like. But that is not to say that the right to protest in this country is in a healthy state.
The Police, Crime, Sentencing and Courts Act 2022 was passed in April. It increased the penalties for protest-related offences such as obstruction of the highway which is now punishable with an unlimited fine and up to 51 weeks in prison. It also introduced new crimes, so any action that risks causing a “serious annoyance” or “serious inconvenience” is now punishable by up to ten years in prison. Many protesters have already been imprisoned for that offence.
Last week the Public Order Bill passed its third reading in the House of Commons. It includes many of the measures from the Policing Act that were defeated by Parliament for being too draconian. It criminalises peaceful direct action tactics, such as those used by the Suffragettes. It introduces Serious Disruption Prevention Orders, which facilitate and encourage the monitoring, control and surveillance of people who exercise their democratic right to engage in protests. Perhaps most sinister are the provisions that allow the Secretary of State to seek injunctions and have a power of arrest attached.
And now that Dominic Raab is back as Justice Secretary and Suella Braverman is back as Home Secretary we should brace ourselves for a return of the appalling Bill of Rights, which seeks to dismantle the Human Rights Act, a nuanced, vital piece of legislation, rooted in a collective determination to ensure the atrocities of the Second World War never happen again. It has been functioning well for over twenty years. Among many things, it protects the rights of individuals to express dissent, without unnecessary state surveillance or intrusion in their lives.
This is all in the context of burgeoning use of injunctions by corporations, usually oil companies, to restrict protests against their practices.
The use of injunctions against protestors
Injunctions can be granted where there is real and immediate risk of an unlawful act and the existing remedies are insufficient. There shouldn’t be much need for them given the inflated criminal sanctions now available to be used against peaceful protesters.
Ideally an injunction should only prohibit acts that are already unlawful, giving a quicker, stronger remedy than the existing law offers. But there are many examples of injunctions that ban lawful protests as well as the unlawful actions that they are supposed to target.
For example, protests on the public highway can be lawful, even if they cause some level of disruption. Similarly, protests that interfere with a person or corporation’s right of access to their own land is only unlawful if the interference is substantial and unreasonable. Whether the protest is lawful depends on the duration and extent of the disruption caused. However injunctions tend to make all such protests unlawful, regardless of how brief and proportionate they may be.
Injunctions against “Persons Unknown”
Injunctions do not have to be against identified people; they can be against “persons unknown” who are considered likely to join the unlawful acts in the future.
“Persons unknown” injunctions are obtained in hearings that are effectively held in secret. They are increasingly used against travellers and protesters. In practice only people or corporations with significant resources can obtain them. There is no legal aid available for people affected by an injunction so if they want to challenge it they have to pay lawyers. Not only that, but anyone who tries to challenge an injunction may be ordered to pay the costs of the company who obtained it if the court rejects their challenge.
As a result, injunctions regularly go completely unchallenged. It is shockingly common for a large corporate to be granted a draconian injunction after an entirely one-sided hearing with no opposition present at all.
So even after the Policing Act there is a growing phenomenon of corporates using their vast resources to obtain injunctions that restrict freedom of speech and assembly, bypass the local police and include the threat of imprisonment, the risk of damages and excessive legal costs. These injunctions are devastatingly effective at stifling protest, not least because of the climate of fear that they create.
Challenging injunctions against protests
I instructed Owen Greenhall to represent two brave protestors challenging a series of injunctions issued by National Highways and Transport for London in November last year and again in May this year. The scope of those injunctions was huge, covering thousands of miles of roads all over the country. Since then, we have challenged injunctions issued by Shell, Valero, Exxon and Esso as well as three local authorities on behalf of oil companies.
Last month over 50 protesters were arrested in a single day after breaching an injunction restricting protests at the Kingsbury Oil Terminal in North Warwickshire. That injunction was obtained by North Warwickshire Borough Council on behalf of a number of oil companies that operate from the terminal, including Essar, Valero and Shell. It applies to anyone who encourages any form of protest against fossil fuels in the terminal’s locality.
I instructed Stephen Simblet KC to challenge that injunction in April on behalf of two protesters who were concerned by its alarmingly broad scope. The judge, Mr Justice Sweeting, heard the arguments but has yet to deliver his judgment, some five months on. In the meantime the injunction continues and protesters are being arrested and imprisoned in large numbers.
HS2 recently obtained an injunction over the entire HS2 proposed route. It prevents a range of peaceful protest activities in the vicinity of the HS2 land. HS2 do not own the land covered by the injunction. Much of the land does not even have any HS2 works currently scheduled. The land is unfenced and unmarked in many places. Yet anyone who breaches the injunction risks two years in prison or an unlimited fine.
Granting the injunction, Mr Justice Knowles said: “The right to peaceful and lawful protest has long been cherished by the common law, and is guaranteed by Articles 10 and 11 of the ECHR and the HRA 1998 however these rights are not unlimited. I reject the suggestion that the injunction will have an unlawful, chilling effect. There are safeguards built in.”
The safeguards he refers to comprise the introductory paragraphs to the injunction, which state that the injunction is not intended to prohibit lawful protest. The fact that the injunction may not be intended to prohibit lawful protest does not change the fact that it plainly does that. I’m not sure I would risk two years in prison or an unlimited fine in reliance on a safeguard of that nature.
Esso’s injunction in relation to its Southampton to London pipeline for aviation fuel is another stark example of this growing phenomenon of giant corporations buying their own laws to stifle protests against them, while threatening anyone brave enough to challenge them with vast legal costs.
My clients are two ladies who care about the world’s over-reliance on fossil fuels. They are concerned about the future of the planet and the government’s lack of action. They object to the pipeline because the use of aviation fuel exacerbates climate change. They do not participate in violence of any kind, they have not broken the law and they do not intend to.
Between them they have been involved in three peaceful protests along the pipeline that had the effect of temporarily pausing construction. The police were present and did not intervene, presumably because they assessed the protests to be lawful and proportionate.
Esso have obtained an injunction over the entire stretch of land along the pipeline construction from Southampton to London even though, like HS2, it does not own the land. Unlike HS2, Esso does not even have the prospect of acquiring possession of the land. For that reason they cannot claim trespass or nuisance. Instead they claim that the protesters are conspiring to injure Esso’s business by unlawful means. This is a relatively new development and paves the way for future companies to obtain huge injunctions over land that they do not even own.
My clients challenged this injunction. The hearing took place on 5 October. Judgment was handed down on Friday 21 October. The judge, HHJ Lickley, was content to allow the injunction and considered the interference with the right to protest to be proportionate and justified.
Esso sought an order that my clients should pay their costs. Esso were represented by a KC, a junior barrister and a team of solicitors from Eversheds, a vast corporate law firm with fees in the region of £600 per hour. My clients instructed me and Owen Greenhall.
In July this year Exxon Mobil, which owns Esso, announced profits of $17.9 billion for the second quarter of 2022, nearly four times its profit for the same period last year. A company with wealth of that magnitude, that claims to uphold high ethical standards and promote transparency, might consider it unethical to threaten two non-violent protesters who have never broken the law with tens of thousands of pounds in legal costs.
The environment cannot speak for itself or raise funds to fight legal battles. It cannot protest against activities that increase the risk that climate change poses to all life on this planet. It doesn’t look likely that this latest government is going to protect these things. It therefore falls to protestors such as my clients to have the courage and integrity to fight for their right to protest, in circumstances of astonishing inequity.