Insulate Britain are on the right side of history; the Government’s injunctions are not.
According to a Freedom House report[1], 2020 was the 15th consecutive year of decline in global freedom and across the world: “Incumbent leaders increasingly used force to crush opponents and settle scores, sometimes in the name of public health, while beleaguered activists—lacking effective international support—faced heavy jail sentences, torture, or murder in many settings.”
Think Hong Kong, Belarus, Afghanistan, Venezuela, Hungary, Poland, India, Russia, China. And of course the Covid pandemic which heralded an unprecedented level of state surveillance and intrusion across the political spectrum and was exploited by numerous dictators to crush opposition and strengthen their hold on power. And while that was still going on, in January this year Donald Trump concluded his four-year assault on one of the world’s most influential democracies by inciting an armed mob to storm Congress rather than accept his election defeat.
The Freedom House report concluded: “democracy is in decline because its most prominent exemplars are not doing enough to protect it”.
This country, one of those prominent exemplars of democracy, has not helped to improve that trend. From Boris Johnson’s unlawful prorogation of Parliament in September 2019 to the assaults on judicial review, and the depressingly familiar recent sleaze allegations, our country is just one of many whose own governments are undermining, rather than upholding their own democratic norms and institutions.
Then there is the recent spate of protests by Insulate Britain. Their methods are disruptive, inconvenient and deeply irritating to those directly affected but there is no doubt that they have brought attention to their cause. Similarly Extinction Rebellion, with their annoying and disruptive protests across London, helped bring public concern about the environment to record levels, such that it is, finally, generally accepted that we need to confront climate change in order to avert catastrophe.
The Suffragettes were far more disruptive and annoying than Insulate Britain. Not only that but they used violence, caused deaths and endangered lives. They were much hated at the time but universally forgiven now, because they were on the right side of history.
That public annoyance – the most effective way for protesters to bring attention to their cause – provides states with a convenient way to respond to disruptive protest by reducing democratic freedoms while retaining popular support. It’s a pattern with a long history, from the Peasants’ Revolt to the Suffragettes.
Likewise public anger at the disruption caused by Insulate Britain, even though they do not use violence and few dispute that they are fighting for the single most important cause there is, has encouraged our government to introduce ill-thought through measures to restrict their activities without regard for the preciousness of our democratic freedoms.
The series of injunctions issued by National Highways and Transport for London, on the instructions of the Government, in response to the Insulate Britain protests supplement the criminal law which is already being used to curb their methods. The severe imbalance of resources between these state-backed and state-funded bodies with the financial power to bring such injunctions, and individual protesters who are subject to them, means there is little scope to properly challenge them.
And these injunctions are particularly bad. Take the most recent one, which prohibits protests that interfere with the traffic anywhere on the Strategic Road Network (SRN) and adjacent roads.
The SRN covers a vast number of roads across the country. The list of them is 250 pages long. Many of them are motorways or high-speed roads, but many are not. They include roads that pass through urban areas, roads that are open to bikes and horses, roads with footpaths or pedestrian crossings, roads with reduced speed limits or no minimum speed, and roads with a single lane of traffic in either direction.
The injunction was granted at a hearing on 25 October that only those acting for National Highways attended, because the people affected by it were not aware of it.
After the hearing, our Transport Secretary Grant Shapps proudly tweeted: “Insulate Britain are back, risking lives & ruining journeys. 3 specific injunctions are already in place, but today I instructed @NationalHways to apply for an injunction covering the entire strategic road network – tonight this has been granted on a temp basis by the High Court.”
According to the note of the hearing, the judge was told that it would be consistent with earlier injunctions to allow for the injunction to be “served” on people by simply emailing it to Insulate Britain’s email address. This was not true.
It is an important principle of law that someone cannot be bound by a court order unless reasonable efforts have been made to bring it to their attention by “serving” it on them. However in this case, the court at the initial hearing was persuaded to grant an injunction that would bind anyone who interfered with traffic for the purpose of protest on any of roads on the 250-page list, just by emailing it to Insulate Britain. That person could have nothing to do with Insulate Britain and no knowledge of the injunction.
Anyone who did interfere with the traffic for protest purposes, even very slightly for five minutes, was then prohibited from undertaking a long list of activities, which included hanging banners from road bridges, cycling along a cycle lane adjacent to the SRN, or crossing the SRN on a pedestrian crossing or footbridge. If they did any of these things they were potentially liable for contempt of court with an unlimited fine and up to two years in prison.
The injunction also gave unprecedented powers to police officers, National Highways officers and High Court Enforcement Officers to order anyone bound by the order to leave the SRN, without any requirement for them to be doing anything unlawful, or any guidance as to when this power should be used. There was nothing to prevent an untrained High Court Enforcement Officer from banning an individual bound by the order from the entire SRN for life, on a whim.
Two brave climate activists who were not associated with Insulate Britain, and had never taken part in their protests, brought a challenge to the injunction at a second hearing that took place last Thursday, 11 November. They instructed me and the brilliant Owen Greenhall, who pointed out the numerous ways in which the injunction infringed the right of protest. Numerous Insulate Britain protesters attended too, unrepresented, and spoke up about their reasons for objecting to the injunction.
The judgment and amended injunction were handed down today. Our clients were granted almost all the amendments we suggested, so that the injunction no longer binds people who have not been made aware of it, it no longer grants powers to untrained officers to ban individuals from the entire SRN, and it no longer prohibits activities such as hanging banners or crossing a road on the SRN at a pedestrian crossing, unless they are done with the deliberate aim and effect of interfering with the traffic for the purpose of protesting. They also managed to secure equivalent amendments to the other injunctions issued by National Highways and Transport for London, which all had similar issues.
We did not manage to get the entire injunction overturned but that was a longer shot, given the public mood towards Insulate Britain. So the order remains, for now, but I doubt this is the end of the story.
It should be embarrassing that the injunctions were ever granted in those terms. There should be thanks offered to our clients and the other protesters who spoke at the hearing, for bringing the court’s attention to the serious infringements to the right of protest within the injunction, and an apology to them for the fact that they had to accept considerable personal risk in order to do so.
Instead, Mr Shapps tweeted in response to Thursday’s hearing: “Excellent news! The injunction I instructed @NationalHways to take out protecting the country’s ENTIRE strategic road network will continue, thanks to the High Court’s ruling today.”
If Mr Shapps won’t do it, I will: thank you, brave protesters, for having the courage to protect our precious democracy, and sorry for the many risks you are having to take for that purpose.
[1] Democracy Under Siege, 2021: https://freedomhouse.org/report/freedom-world/2021/democracy-under-siege