The author is a British writer, who has a background in law and writes here. ‘Tony Dowson’ is a pseudonym.
Just Stop Oil announced on 11 November that it would ease off its protests over the Remembrance weekend after a period of significant disruption. It promised to return until the Government accedes to its demands that fossil fuel licences are permanently halted.
However, the action following was more muted, with protesters merely throwing paint over Barclays in Aberdeen.
The main method over the previous few weeks involved climbing into gantries on the M25, causing traffic to come to a standstill. A total of 58 protesters were charged in relation to that action, according to Sky News.
Although the Daily Mail criticised the police, saying “What is the point of these police?” in a headline below which was an image of officers standing below a gantry, arrests have been swifter than had been the case, and some protesters were intercepted before reaching their intended destination.
The protest group has followed a similar line to that taken in respect of the justifications taken for their actions. They say that the importance of pressuring the Government to address climate change outweighs the inconvenience to the average citizen.
They even went so far as to offensively compare themselves to “the people who hid Anne Frank”, maintaining that “Good people bread bad laws”, which elides breaking the law when that law is inherently unjust (by hiding members of persecuted minorities) and breaking the law to when the criminalisation is long-standing and reasonable (laws against public nuisance, blocking the highway and committing minor criminal damage).
They minimise the impact of their disruption in comparison to the coming turmoil, often described in Boschian terms.
Yet, the impact of the protest is not negligible. For instance, a man, Tim Banbury, reportedly missed his father’s funeral because of the delays.
Each delayed individual has a right to go about their business. Rights to freedom of expression and assembly under the European Convention of Human Rights (the Convention) are qualified and the proportionality of restrictions on them are weighed against the rights of others.
Nor should the economic cost be ignored. In 2021, the September disruption on the M25 was estimated to cost £500,000, not taking into account further losses to businesses.
In terms of impact on health, on 9 November a police officer was involved in a crash with two lorries after a road block had been put in place, showing the increased risk of personal injury following disruption. In Germany, a similar protest meant that a cyclist who had been trapped under a cement mixer could not receive medical attention. The cyclist later died.
All part of the plan
Roger Hallam has been an influential figure behind the climate protest movement, influential in recruiting for the cause. In an interview, Hallam spoke in very specific terms about his predictions regarding the results of climate change; his very graphic prophecy is worth hearing from his own mouth.
In the Penguin published This Is Not A Drill: An Extinction Rebellion Handbook, Hallam set out some of his proposed tactics. Although Extinction Rebellion and Just Stop Oil object to being subject to the criminal justice system, often maintaining that they are being unjustly targeted by the police, Hallam mandates in his chapter that “you have to break the law”. Just Stop Oil follows this by having members pledge to be arrested.
Hallam encourages fostering an underdog image. He is interested in manipulating the public to believe that arrests and convictions are unreasonable. He says that he wants to create enough disruption and economic cost to force the “elites” to sit up and take notice. His hope is that repressive measures by the police would trigger mass protest, with the wider public joining his group.
Hallam’s aims are not reformist. In his book Common Sense for the 21st Century, he proposed a revolution, to be succeeded by a citizens’ assembly, which would become the new governing body for the UK, transforming the economy and society to deal with the climate crisis, and creating a new constitutional settlement.
These plans did not bear fruit for Extinction Rebellion in 2019. The protests did not trigger a mass movement. Ultimately, Just Stop Oil became more prominent, and attempted to engage in even more eye-catching protests, where arrests were common, including blocking roads and engaging in minor criminal damage. Hallam was arrested before he could join in with the November M25 action.
The right response
The task of the police, then, is to make arrests in a firm and reasonable way, without triggering the objection of the wider community. Popular opinion is not, on the whole, in favour of mass disruption done by a minority intent of pressuring the government to change policy; a YouGov poll found that 64 per cent of respondents were opposed to Just Stop Oil’s actions.
Baroness Jenny Jones curiously said that “People do not protest because they want publicity”, but that is precisely the aim of Just Stop Oil. Whilst Just Stop Oil is intent on acting to provoke, it is also very much aware of how its communications come across, which explains why they halted their actions over the period of Remembrance. They are keen to exploit public sentiment to gain popularity.
In view of that, some of the arrests of journalists last week, including of LBC reporter Charlotte Lynch, were a misstep by the police, in that they allowed Just Stop Oil to advance their propaganda that the police have been acting unjustly overall in their approach.
Policy Exchange recently released a paper with law reform recommendations to facilitate arrest and conviction in cases where protest goes further into the norms of unlawful civil disobedience and direct action. It recommends that police should be less cautious about arresting protesters. Swift arrests may be proportionate when there is major disruption.
Policy Exchange also proposes that the judgment in Ziegler be overturned in Parliament so that the lawful excuse in the obstructing the highway offence would not apply to deliberate obstruction of the highway. (Ziegler found that even more than minimal obstruction should require a proportionality exercise, taking into account rights to freedom of expression and assembly under the Convention, before conviction.)
The think tank likewise makes the case that this should not apply to criminal damage. In a recent case, Extinction Rebellion activists were acquitted after chalk spraying a government building on the grounds that minor damage to public property is protected under the Convention.
Policy Exchange further recommends that repeat offenders who break the criminal law in respect of protest should be treated more harshly in sentencing. A similar view was taken in last week’s Cuciurean judgment in the Court of Appeal regarding a protester’s contempt of court, where it was said that if a:
“defendant had not behaved with a sense of proportion, or had caused excessive harm, or had not accepted the penalties imposed, his or her culpability would be much higher and there would be little or no basis to expect corresponding restraint from the courts”.
It could be possible for Parliament to make carefully drafted legislative changes regarding Ziegler which remain complaint with the Convention, within the margin of appreciation. The proposed approach to minor criminal damage could run into obstacles in light of recent European Court of Human Rights case law. The solution could be to mandate that the prosecution should provide proof of expenditure when putting right damage, for convictions to remain complaint with the Convention.
For a core of very radical protesters, it is possible that some of these measures would not have a strong deterrent effect. However, it may well be the case that swiftly dealing with the protests, combined with meaningful penalties, will dissuade many from acting and at least prevent the most radicalised from engaging in widespread disruption.
Additionally, the Government should consider how to prevent funding of the group – funding which encourages criminal protest.
The approach so far has given Just Stop Oil and Extinction Rebellion considerable space to offend, and then return to reoffend even after conviction. As long as the response is not grossly disproportionate to the offending, the public appear to be in favour of more decisive action against the protesters.