Rebels with a cause
Climate activism is not going away. We need to protect and adapt the institutions that provide that safety valve of freedom of expression.
by Laura O’Brien and Raj Chada
@HJACrimeTeam @lauraemilyob @Raj_Chada
A sustainable and healthy democracy is anything but simple. It does not derive its legitimacy solely from citizens exercising their right to vote once every four or five years.
A democratic society is one with complex and interlocking facets: a free press, a vibrant civic society, an independent judiciary and public bodies that are both accountable and representative of society in all its forms.
Yet one of the keys to democracy remains our commitment to our individual fundamental human rights, such as the right to free speech. It means that we can choose our elected representatives in the market place of ideas; the right to free speech has often been described as the ‘lifeblood of democracy’.
Protest as a form of free speech has always played an important role. Where this can be most significant is in relation to causes where there is not yet widespread public pressure for change or where no consensus exists. Change is most hard fought when it both poses a threat to the power structure and vested interests and where new voices emerge in the public sphere. Female suffrage came about following a brave marginal movement that challenged the social and political patriarchy.
As the High Court judgement in the case of Ziegler reiterated:
“History teaches that what may begin as a heresy (for example the idea that the earth revolves around the sun) may end up as accepted fact and indeed the orthodoxy… [Freedom of expression] helps to maintain social peace by permitting people a ‘safety valve’ to let off steam. In this way it is hoped that peaceful and orderly change will take place in a democratic society, thus eliminating, or at least reducing, the risk of violence and disorder.”
The existential threat of climate crisis, hardly a cause that is heresy. Yet there are few campaigns that threaten current vested interests or power structures more. The response of the government has been anaemic.
In recognition of this, one group, Extinction Rebellion (XR), has sought to challenge the inaction in spectacular fashion. XR is a global environmental movement that has sought to use the right to free speech creatively. Its stated aim is to use non-violent civil disobedience to compel government action to avoid tipping points in the climate crisis. It is unique in its reach and scale, its ability to cross borders and permeate every walk of life.
Politicians and policymakers have been on notice for years about the devastation that the climate crisis is causing, from biodiversity loss to societal collapse. This crisis presents a clear and present danger to the lives of millions, yet change from individual behaviour to legislation has been painfully slow. The climate crisis cannot be addressed without national governments and the international community taking a lead.
While impartiality is its critical feature, the law and its application are inevitably normative and informed by ethical considerations. Whether we like it or not, the law influences the most personal aspects of our lives, as well as shaping the corporate world. It drives and reacts to cultural, political and economic change, and can be used to respond to societal shocks.
However, most of the time, the political and legislative wheels turn slowly. History is littered with examples where changes in legislation have been woefully, sometimes tragically, behind the curve of public opinion. It is hard to believe that it took until 1991, for example, for the law to be clear that marital rape was a criminal offence.
We may be running out of time for such a leisurely approach when it comes to the climate crisis. Following a number of initial demonstrations in late 2018, in April 2019, XR protesters assembled at a number of locations in London, with the stated aim of holding these sites for two weeks or until their demands were met. The Metropolitan Police responded by putting in place conditions restricting the protest to a single site in Marble Arch; over a thousand people were arrested at different locations and on different days across London. Most were arrested for breaching the conditions placed on the protests by refusing to move on so they could hold the sites across London.
Hundreds of those who were prosecuted pleaded not guilty and went to trial in the magistrates’ court. Many relied on the defence of “necessity”. These defendants argued that their actions were undertaken to prevent the risk of death or serious injury arising from the climate crisis and the inaction of the government. They pointed to the deaths that have already occurred as a result of air pollution, flooding, wildfires, food shortages and crop failures. They cited a body of scientific opinion that shows action must be taken before a tipping point is reached, at which point it will be too late to halt the climate collapse that risks mass extinction.
Compelling evidence. But the defence of necessity did not succeed in any of these trials. In rejecting defence arguments, many judges stated that there was no nexus between the actions of the protesters and the risks they claimed that they were trying to prevent. Some judges also argued that the threat was not imminent.
In our view, the courts have failed to grasp the magnitude of the crisis and the ambition of the solutions. Many protests in the past have concentrated on specific goals, often in terms of civil and political rights. For example, the anti-apartheid protests or the Northern Irish civil movements had clear defined objectives that affected a defined number of people.
The climate crisis, on the other hand, is present in the way we shop, eat, farm, move around and plan for a sustainable future. It is not about civil, political or economic rights, it is about the very survival of humanity. When the crisis is that all-encompassing, it is too glib to say that there was no nexus or the threat is not imminent. People have died, are dying and will die as a result of the climate crisis. The evidence shows that the point of no return is much closer than many think; we are fast approaching the time when it will be too late to mitigate or halt further death and destruction.
This different type of threat has inspired a different type of action. It created the biggest campaign of mass civil disobedience in mainland UK for over 100 years. There was something extraordinary about the sight of 1,000 individuals, many of whom had never been arrested before, attending week after week at City of London Magistrates Court. Whether they pleaded guilty or not guilty, their testimony as to what drove them to take action was compelling, emotional and often inspirational. The range of individuals involved was unprecedented — pensioners, teachers, doctors, students and many others. This was a movement not based on the same old activist, but something that had reached every part of the country and every level of society.
Those that decided to have a trial invariably did not succeed on a “necessity” defence. Higher courts have stripped away at the necessity defence, imposing limits on the nature of evidence that can be heard in criminal proceedings and adding further difficult obstacles for the defence to succeed. There is an inherent conservatism or fear from some in the court system that agreeing to such defences would lead to protesters “acting as a sheriff in town”, instead citing that such arguments should be had at the ballot box.
Yet when successive governments have been unwilling or unable to act on this crisis, it is perhaps incumbent on citizens to take up the challenge and for the judiciary to protect their actions that are reasonable and proportionate.
Climate activism is here to stay. As we wake up to the critical importance of sustainability and resilience, not just of the planet, but our way of living, we need to protect and adapt the institutions that provide that safety valve of freedom of expression. Once the envy of the world, while our criminal justice system may never garner the level of public support of the NHS, we need to recognise the critical role that UK law and its processes play in delivering justice, testing, challenging, poking and prodding how a democratic society responds to shifts in public expectation and societal shocks.
These issues, being played out in our police stations and courts, go to the heart of our democracy. While our justice system is under threat and undermined, so is our democracy.
Laura O’Brien is defence solicitor and Crown Court advocate and Raj Chada is Head of the Criminal Defence, Financial Crime and Regulatory Department at Hodge Jones & Allen
