The struggle for environmental rights:
Does our legal system adequately protect the right to protest environmental issues through freedom of assembly?
Written by: Sanja Katic
Monday, September 19, 2022
The right to freedom of assembly consists of the human right to gather together and express views on various societal issues. Under English law, this right is protected by principles found in the country’s uncodified constitution; decades of case law, the rule of law, and Acts of Parliament. However, the ways in which protests and assemblies are carried out has evidently changed, particularly with respect to environmental cases, while the laws surrounding these rights have not evolved and no longer adequately protect citizens wishing to voice their opinions and defend the natural world.
The Right to Freedom of Assembly
The UK holds an unwritten Constitution, thus the establishment of certain rights is, in part, reliant on case law from judicial decisions and Acts of Parliament. The right to freedom of assembly is determined mainly by two sources of law. The first is the case of Beatty v Gilbanks, which allows people to conduct themselves in whatever manner they wish, as long as this conduct is not unlawful. The second source establishing this right is the Public Order Act 1986 (s14), which was put in place to allow police to regulate these types of public assemblies, although concerns have risen over police exceeding their legal powers, as there is no way of challenging the police’s perception of the situation.
There are several forms of assembly for which the law is applied differently. In cases of assembling on private property when picketing, there exists the possibility of criminal offences being incurred. While picketing is legal under the Human Rights Act, other offences will warrant arrest when protesting on private property. Many protests are used to raise awareness for an issue, while simultaneously aiming to change public policy, however this can be done in any space. However, in the case of many environmental protests a sit-in, a form assembly where protestors occupy an area preventing things such as development, is required and as by Appleby v United Kingdom, this is not a protected right. Obstruction of a highway is another form of assembly, and is deemed an offence under the Highways Act 1980 (s137) however, it too does not factor in why this may be a necessary means of protest for environmental contexts.
This right to freedom of assembly is protected under the rule of law as well, although this isn’t used as much in practice as it is in theory. Depicted by AV Dicey’s, ‘Introduction to the Study of the Law of the Constitution,’ one of the principles of the rule of law states that protection of rights and freedoms is guaranteed. However, this approach has had a controversial response as it idealises the degree to which rights and freedoms can be secured without reference to the Constitution, furthermore contradicting the concept of parliamentary sovereignty. In Joseph Raz’s, ‘The Authority of Law,’ draws assumptions regarding this theory, wherein minorities may continue to be suppressed through legislative procedures. On the contrary, Lord Bingham’s, ‘The Rule of Law,’ resolves certain aspects, and reassures the manner in which the law itself must protect fundamental human rights, thus ensuring a just society.
Application of the Right From an Environmental Perspective
When reflecting on environmental protests, the subject matter often requires a different type of action. For instance, the need to physically block demolition sites which may be private property in order to prevent development in a natural habitat is the only way that protects the site, or similarly protestors could block a highway or road leading to the site and thus attempt to prevent workers from reaching it. The issue here is that the participants are engaging in freedom of assembly on private property or a highway which are both criminal offences warranting arrest. In cases where this might occur, there should be new legislation put in place, that development must hold off if the participants have reasonable grounds as to why the site should be left. In other circumstances, the actions of the government due not respond with the urgency that is needed in not only the climate crisis, but even smaller threats to biodiversity. Due to this, protest groups often use action that causes large disruption with hopes that it goes noticed by all people and may help the cause which they are fighting for. This brings about the question of whether the government can be held accountable for its omission and lack of initiative in conservation, which has thus lead to such behaviour from climate activists.
In the case of Shell UK Oil Products Ltd v Persons Unknown, the defendant’s conduct was deemed unlawful under CDA 1971. However the party, consisting of protestors from environmental group Extinction Rebellion, claimed that the only way to hinder the environmentally-harmful work of the claimant was to destroy their property. In R v Ditchfield, Section 5 of the Criminal Damage Act 1971, provides an excuse for criminal damage when it is committed to protect the property of another. In the Shell case, this principle was argued in that climate disaster posed an imminent threat to one’s property, however this was not upheld upon appeal as the environment is not legally belonging to any one person. This principle should be recognisable as a lawful case in order to protect both the rights of protestors and environmental conservation, as nature cannot speak for itself and these people give it a voice. In the case of R. v Brown, the defendant’s actions included gluing himself to a plane resulting in many airport disruptions and leading to a 12 month sentence. While his actions were extreme and disruptive from certain perceptions, they can also be argued as necessary, as his purpose was to draw attention to the urgency of the issues surrounding climate change.
The government continues to lack the action that is needed to help the planet, with behaviour that proves where their interests lie, such as recently legalising a pesticide harmful to bees. Several tabloids and newspapers are now raising awareness for a new threat to mental health particularly in young people, referred to as climate anxiety. This should also become a factor when judgements are drafted in freedom of assembly and protest cases, as it is surely a present factor in cases such as Brown, however is not taken into account. Furthermore, protestors come from many different backgrounds, which brings light to another issue, that of many people not having access to a just legal system. Defendants prosecuted by the police or sued by a powerful company, such as Shell UK Oil, may be able to justify their actions or lessen their sentences, however not be able to afford a lawyer with the resources to defend them.
While the right to freedom of assembly is formally protected under English law, there is a great need for legal reform to accommodate an evolving society protesting for the rights of nature. Laws need to be clearer and police forces regulated. Private property laws need amending in environmental cases concerning development, deforestation, and habitat destruction. Environmental concerns also must carry greater weight in court decisions. Only through these changes can we be able to protect both the environment and the people fighting for its rights.