March 2024
On 23rd January 2024, the first UN Special Rapporteur on Environmental Defenders under the Aarhus Convention, Mr Michel Forst, published a scathing End of UK Mission Statement following a meeting with NGOs, climate activists and lawyers in London earlier that month. The Statement reiterated the importance of peaceful protest as a basic human right and essential part of a healthy democracy.
But rather than facilitating the right to peaceful protest, the UK Government has relentlessly pursued a package of restrictive measures through the Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022) and the Public Order Act 2023 (POA 2023). The PCSCA 2022 introduced a penalty of up to 10 years imprisonment for the criminal offence of public nuisance
and the POA 2023 created entirely new offences of locking on and tunnelling. It was the POA 2023 that provided the basis for the six-month imprisonment of a peaceful climate protester who took part for in a slow march on a public road for 30 minutes in December 2023. Prior to this, it had been almost unheard of since the 1930s for members of the public to be imprisoned for peaceful protest in the UK.
In recent cases, presiding judges have forbidden environmental defenders from explaining to the jury their motivation for participating in protests - or from mentioning climate change at all. There are also harsh bail conditions imposed on peaceful environmental defenders while awaiting criminal trial, including electronic ankle tagging, nightly curfews and GPS tracking. The UN Special Rapporteur questioned the necessity and proportionality of such conditions for people simply engaging in peaceful protest.
The Statement also highlighted that environmental defenders are derided by some mainstream UK media outlets and in the political sphere, putting them at risk of threats, abuse and even physical attacks. A recent article in the Daily Mail characterised a former Green Party councillor, Dr Andrew Boswell as an “eco-zealot” for lawfully pursuing a judicial review of a decision to dual parts of the A47 road and create a new slip road in which he had fully participated. Despite winning a high-profile defamation case last year, idly flicking through any social media platform reveals hundreds of hate-filled posts about environmentalist Chris Packham CBE, many inciting violence and discussing the myriad ways in which he could come to harm. Vile behaviour isn’t restricted to environmental campaigners, but the UK has signed up to an international Agreement that specifically requires it to address this kind of harassment.
Link’s Nature 2030 asks include an Environmental Rights Bill (“ERB”) encompassing measures to prevent the harassment and persecution of environmental defenders. Section five of the Bill will be modelled on an Equality Act style prohibition on harassment, which enables individuals performing a “protected act” to explain to a jury their motivation for participating in a given protest. It would also make it unlawful to restrict the freedom of speech, movement or association of any person in relation to protected acts, other than is necessary to prevent injury or harm to others and damage to property and prohibit the use of civil injunctions to ban protest in certain areas, including on public roadways. Finally, while there are strong freedom of speech imperatives in play in the UK, the Bill seeks to give Ministers the power to protect environmental defenders from attacks in the mainstream media and compel others (such as OFCOM) to do likewise.
By ratifying the Convention in 2005, the UK elected to protect environmental defenders from being penalised in this way, but now – twenty years later – our treatment of them is being described as the worst in Europe. The UN Special Rapporteur pointed out “we in the midst of a triple planetary crisis of climate change, biodiversity loss and pollution. Environmental defenders are acting for the benefit of us all. It is therefore imperative that we ensure that they are protected”. The Government has not simply been passive – it has rigorously pursued a package of reforms that redefine peaceful protesters as cavalier or subversive – so much so that our laws around peaceful protest are now unrecognisable.
Finally, it’s worth also noting the UK isn’t simply failing in its obligation to protect environmental defenders. While the UK agreed to bring itself back into compliance with the Convention amid concerns about the high costs of legal action, it has taken no action on the matter and now cannot make the target date of 1 October 2024 because of the Parliamentary timetable. Link has written to the Secretary of State for the Environment, Steve Barclay MP, and the Parliamentary under Secretary of State, Lord Bellamy KC, to press for the launch of a promised Call for Evidence on costs. The letter also raises concerns about the aims of Lord Banner’s current review on national infrastructure “to explore whether Nationally Significant Infrastructure Projects (NSIPs) are unduly held up by inappropriate legal challenges, and if so what are the main reasons and how the problem can be effectively resolved”. If the Review were to result in proposals to make legal action for such cases more expensive and/or less accessible, this would further undermine the UK’s poor compliance with the Convention.
Please support Link’s call for a Bill that protects our democratic rights, alongside a legal right to a clean, healthy and sustainable environment.
Carol Day is legal consultant for the RSPB and co-Chair of the Link Legal Strategy Group. She is also a legal consultant for public interest law firm Leigh Day.
The opinions expressed in this blog are the authors' and not necessarily those of the wider Link membership.
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