Liberty is taking the home secretary to court for ‘unlawfully’ passing legislation Parliament had already rejected
Image of Home Secretary Suella ‘Sue-Ellen’ Braverman
A human rights campaign group is taking Suella Braverman to court for “unlawfully” forcing draconian anti-protest legislation through Parliament, openDemocracy can reveal.
In June, Braverman used secondary legislation – which is subject to less parliamentary scrutiny – to allow police to restrict or shut down any protest that they believe could cause “more than minor disruption to the life of the community”.
A cross-party parliamentary committee said this is the first time secondary legislation has been used to make changes to the law that have already been rejected by Parliament. Akiko Hart, interim director of Liberty, which launched initial legal action in June, described the move as “the latest power grab from this government”.
The government previously tried to insert the new powers into the Public Order Act 2023 in January, but was blocked by the Lords. Liberty’s lawyer, Katy Watts, accused Braverman of “sneak[ing] in new legislation via the back door, despite not having the power to do so”.
Hart said: “We all want to live in a society where our government respects the rules – but the home secretary has deliberately done the opposite. The home secretary’s actions have enabled the government to circumvent the will of Parliament.”
She continued: “This is just the latest power grab from this government, which has shown it is determined to erode the ways people can hold it to account, whether that’s in Parliament or on the streets. The home secretary’s actions give the police almost unlimited powers to stop any protest the government doesn’t agree with – and the way she has done it is unlawful.”
The home secretary has long called for more police powers to tackle peaceful methods of protests by climate activists, such as road blocking, ‘locking on’, and slow marching, which she said “bring misery and chaos to the law-abiding majority”.
One supporter of Insulate Britain previously told openDemocracy that protest is “our only legitimate means to achieve the changes needed within the time frame we have”.
Another of the group’s supporters said that the criminalisation of protest – in particular, of environmental protest – “is an example of attempting to shoot the messenger” and that elected politicians “obviously don’t really care about protecting people’s democratic rights”.
Watts, Liberty’s lawyer leading the case, said Braverman’s circumventing of the Lords’ rejection is “a flagrant breach of the separation of powers that exist in our constitution”.
She added: “The wording of the government’s new law is so vague that anything deemed by police to cause ‘more than a minor’ disturbance could have restrictions imposed upon it. This same rule was democratically rejected earlier this year, yet the home secretary has gone ahead and introduced it through other means regardless.
“It’s really important the government respects the law and that the home secretary’s decision is reversed immediately.”
Liberty has also claimed the new legislation was not consulted on fairly. It has accused the government of only consulting parties it knew would support the amendments, such as the police.
Activists have protested outside crown courts in England against the contempt of court action being taken against a woman for holding up a placard on the rights of jurors.
In response to the decision by the solicitor general, a government law officer, to pursue Trudi Warner, 68, for contempt of court, scores of people gathered outside crown courts on Monday holding placards that pronounced on the rights of juries to acquit a defendant according to their consciences.
Abi Perrin, a scientist involved in the protest said: “In 2023 telling the truth is being treated as a criminal act, with people prosecuted for displaying facts in public, and imprisoned for explaining their motivations in their own defence in a court of law.
“I am deeply afraid of a world where truth, science and morality are not important, or where we are not free to fight for them.”
In Bristol three generations of one family held placards outside the crown court.
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While Warner faces a possible jail sentence, a separate police investigation is taking place into allegations of attempting to pervert the course of justice relating to at least 12 people who also stood outside Inner London crown court in May holding similar placards.
Protesters facing criminal convictions are being punished twice as National Highways and TfL seek costly injunctions
Climate activists have told openDemocracy they are being hit with “crippling” bills totalling thousands of pounds because of legal action brought by government and public bodies to prevent protests.
Injunctions – orders issued through civil courts, usually to ban something – are increasingly being used to crack down on climate demonstrations, activists say, in what they believe is an attempt to silence dissent.
Both National Highways and Transport for London (TfL) have named supporters of environmental campaign groups Insulate Britain and Just Stop Oil on injunctions intended to stop protests on certain roads in recent years. One person named on a TfL injunction told openDemocracy they have never even protested in London.
Breaching an injunction can lead to a contempt of court conviction, which is punishable by up to two years’ imprisonment, an unlimited fine and the seizure of assets.
One Just Stop Oil protester said they had been warned by their lawyers that those who go to trial to fight an alleged breach and lose could be made to pay up to £150,000 to £200,000 in legal fees, while accepting a breach could incur costs of between £5,000 and £20,000.
The protester told openDemocracy that the costs could leave defendants vulnerable to “the kinds of debts which could cripple you and potentially make you homeless”.
Raj Chada, a partner at law firm Hodge Jones & Allen who represents a number of Insulate Britain supporters, said the way injunctions are now being used is “astonishing” and something he’s never seen before in 15 years of working with protesters.
“The injunctions that are currently being used have always been there but it has never been the case that National Highways Agency or TfL would seek injunctions to completely prevent protests in certain areas,” he said.
Yesterday, it was reported that Rishi Sunak is considering weakening the government’s net-zero commitments, including by delaying a ban on the sale of new petrol and diesel cars, watering down the phasing out of gas boilers, and scrapping plans for new energy-efficiency targets for private rented homes.
Such actions are likely to lead to increased environmental protests. Climate activists say the use of injunctions is one way the government has been cracking down on such protests in recent years, alongside new police powers to shut down demonstrations deemed too disruptive, and existing public nuisance laws that can see people imprisoned for up to ten years for taking part in civil resistance.
Chada agrees, saying: “This government in particular doesn’t like being challenged by groups such as Just Stop Oil or Extinction Rebellion.”
Hefty fees
National Highways is a government-owned company responsible for operating, maintaining and improving motorways and major A-roads in England.
According to a court document seen by openDemocracy, National Highways initially sought costs of £727,573 for legal fees incurred in securing injunctions blocking protests on and around the M25. Split between more than 130 climate activists it named on its injunctions, this would have worked out at more than £5,000 per person.
Those named in an interim injunction must go to court to negotiate its full terms, or to try to have their names removed or the injunction overturned. During this process, which can take years, the terms of the interim injunction – which can be harsher than the final parameters – are binding.
In the National Highways case, the court granted a final injunction against 24 people who were found in contempt of court for breaching the interim injunction. It also issued an anticipatory injunction against a further 109 people, meaning they were injuncted in anticipation of potential wrongdoing.
The court ruled that the 109 people who weren’t found in contempt of court should pay £1,500 in interim payments towards National Highways’ legal fees, while the remaining 24 will pay £3,000. The full extent of the costs will be determined at a later hearing.
Labour councillor Giovanna Lewis, an Insulate Britain supporter who has been fighting the National Highways injunction on behalf of all defendants, says the financial consequences are far-reaching. Some of the 133 people injuncted have had to set up payment plans to pay legal fees. Missed payments could result in a visit from bailiffs.
Annie, a 66-year-old retired grandmother from Dorchester, is among those paying off the £1,500 ordered by the court. She believes the government is “trying to squash” protesters.
After being left feeling “shocked” and “horrified” to hear of people dying of cold in their own homes, Annie took part in three road-blocking Insulate Britain protests in the south of England in September 2021. She was arrested and charged with wilful obstruction of the highway, a criminal offence. Thinking that was it, the injunction issued days later came as a shock.
“We were suddenly getting these people in black knocking on the door and trying to deliver massive letters to us,” she said. “This is both National Highways Ltd and TfL. I’ve kept everything, it’s all in a box and there’s between 10 kilograms and 12 kilograms of mail.”
Annie described feeling hounded by lawyers trying to deliver injunction documents. “It came to a point where if I knew that I was making arrangements with friends, I’d ask them not to knock on the front door and come around the back. I just stopped answering,” she said.
A spokesperson for National Highways said people were added to the injunction due to evidence that they “had previously been engaged in protests on or near our roads shortly before or after the injunction order was made, and therefore posed a risk of breaching the injunction in future”. They added that such evidence typically came from the police after arrests.
A spokesperson for TfL also said the names of protesters it included on an injunction that it sought due to “continuing threats of disruptive protests from Just Stop Oil and Insulate Britain” were disclosed by the Metropolitan Police.
‘Anxious and vulnerable’
Organisations applying for an interim injunction don’t have to prove any of the claims they make, according to Green and Black Cross, a grassroots project that helps protesters with legal matters. Companies can name specific people, wider groups, or ‘persons unknown’ who have protested against the organisation or are believed to be likely to do so.
Insulate Britain and Just Stop Oil supporters told openDemocracy that those who are named are being forced to front expensive legal fees to fight the injunction. The hourly rate for a solicitor in London with more than eight years’ experience is £512, according to government guideline figures.
If they lose the case and are injuncted against, the activists can also be made to pay the legal fees of the winning side. The court has discretion over how much they should pay.
They try to impoverish people so that they’re more concerned about earning to pay things off than campaigning on the climate crisis
Mya, who is also the subject of multiple injunctions, was arrested in November 2022 after attempting to climb a gantry over the M25 with Just Stop Oil. She told openDemocracy that costs for people who admit to breaching a National Highways injunction range from £5,000 to £20,000.
These figures were described as “broadly correct” by National Highways, though they said the amount would “vary from person to person, taking into consideration individual circumstances, the severity of the breach and the number of breaches”.
Mya said: “I think the injunctions are there to try and deter people. And then they’re there to also keep people caught up in all these legal proceedings and to try to impoverish people so that they’re more concerned about trying to earn money to pay things off, rather than trying to campaign on the climate crisis.”
As well as the hefty financial costs, Chada told openDemocracy that the human impact of the injunctions has left people feeling “concerned, anxious, vulnerable and fearful of what the cost of their actions will now be”.
“It really is just quite astonishing – the chilling effect of what all of this could be,” he said.
A National Highways spokesperson said: “Our primary concern is always safety – protesting on the strategic road network is extremely dangerous to the protesters and motorists.
“It’s right that dangerous and reckless protesters who disrupt our strategic road network should face the necessary consequences; anyone intending to protest on these roads should know that they run the risk of imprisonment and/or an unlimited fine. People rely on the strategic road network for so many things and they have a right to expect it to operate as it should.”
TfL said it is “doing all it can to ensure that London’s road network operates safely and efficiently and that vital emergency service vehicles are able to move freely through the city”.
The prime minister praised Policy Exchange, which received $30,000 from oil and gas giant ExxonMobil in 2017, for shaping laws that target green activists.
Image of InBedWithBigOil by Not Here To Be Liked + Hex Prints from Just Stop Oil’s You May Find Yourself… art auction.
Rishi Sunak has confirmed that a fossil fuel-funded think tank helped to draft his government’s laws targeting climate protests.
Speaking at Policy Exchange’s summer party on Wednesday (28 June), the prime minister boasted that the think tank’s work “helped us draft” the government’s crackdown on protests, according to Politico.
OpenDemocracy reported last year that Policy Exchange’s US wing, American Friends of Policy Exchange, which provides funds to the UK branch, received $30,000 (roughly £23,700) from oil and gas giant ExxonMobil in 2017.
Two years later, Policy Exchange published a report entitled “Extremism Rebellion”, in reference to the environmental protest group, calling for the police and the government to clamp down on eco protests.
An Extinction Rebellion spokesperson told DeSmog that this story “exemplifies the stranglehold that private interests have on our democracy.”
Ministers have been clear that new police powers are designed to stop climate protests. The former Home Secretary Priti Patel cited tactics used by Extinction Rebellion and Insulate Britain when arguing for what became the Police, Crime, Sentencing and Courts Act 2022.
Sunak’s statement yesterday appears to confirm Extremism Rebellion’s allegation that sections of the 2022 law were ‘directly inspired’ by Policy Exchange’s report.
The “Extremism Rebellion” report said that legislation relating to public protest needed to be “urgently reformed” in order to “strengthen the ability of the police to place restrictions on planned protest and deal more effectively with mass lawbreaking tactics”.
This was implemented in the Police, Crime, Sentencing and Courts Act, which came into effect in April 2022 and awarded the police new powers to decide what constitutes a ‘disruptive’ protest and to more harshly punish those involved.
In the year to April 2023, more than 2,000 people were arrested and 138 spent time in prison for their involvement in campaigns by Just Stop Oil, the climate protest group.
Those encarcerated included two protesters who were each sentenced to more than two and a half years in prison – the longest sentences for peaceful climate protest in British history, according to the group – for causing a ‘public nuisance’ by scaling the Dartford Crossing.
This crackdown on protests has been continued by current Home Secretary Suella Braverman, a vocal critic of the UK’s net zero targets, who singled out Just Stop Oil when advocating further powers in the Public Order Act 2023, which received Royal Assent in May.
The legislation, which has been labelled as “draconian” by its opponents, allows the police to pre-emptively intervene to shut down protests and creates new offences for what it describes as “guerrilla tactics”, all of which have been used in recent climate protests.
The law criminalises protesters for attaching themselves (or coming equipped) to lock on to other protesters or buildings, threatening a maximum penalty of six months’ imprisonment, an unlimited fine or both.
For organising protests that block key infrastructure including “airports, railways, printing presses, and oil and gas infrastructure” protesters are threatened with up to 12 months in prison, while tunnelling is set at three years.
The law follows a November report by Policy Exchange that said it was “imperative” for protesters who repeatedly obstruct the highways to be “swiftly arrested, convicted and punished”. It further urged that “magistrates and judges should be imposing severe sentences on repeat offenders who aim deliberately to harm the public by breaching the criminal law”.
Sunak, who worked at Policy Exchange before his 2015 election to parliament, also used the summer party to make a jibe about the Labour Party’s links to Just Stop Oil, one of whose funders, Dale Vince, has donated £1.4 million to the party since 2014.
Sunak’s comments echoed the claim made often by senior Conservatives, that Labour’s opposition to new North Sea oil and gas projects is linked to Dale’s donation. Grant Shapps, Secretary of State for Energy Security and Net Zero, has repeatedly attacked Labour over the connection, writing in the Daily Mail that Labour has become “the political wing of Just Stop Oil”.
In fact, the International Energy Agency has said that new oil and gas projects are not compatible with keeping warming below 1.5C – an international climate goal that has been adopted by the UK government.
Meanwhile, DeSmog revealed in March that the Conservative Party received £3.5 million from fossil fuel interests, high-polluters and climate science deniers last year alone.
Policy Exchange and Climate Change
Policy Exchange was co-founded in 2002 by Michael Gove, who has been a mainstay in the cabinet since 2010. The think tank continues to retain significant influence in Westminster: Policy Exchange alumni make up a greater number of special advisers in Rishi Sunak’s government than any other think tank.
At the 2022 Conservative Party conference, Jacob Rees-Mogg, at the time serving as Business, Energy and Industrial Strategy Secretary, said: “I believe that where Policy Exchange leads, governments have often followed.”
Lord Frost, is currently a senior fellow at the think tank. He was also recently appointed as a director of the Global Warming Policy Foundation (GWPF) – the UK’s principal climate science denial group. This week, Frost – who also attended the Policy Exchange summer party – gave a speech criticising Sunak’s government for offering voters “more net zero”.
Since 2016, Policy Exchange has hosted events at the Conservative Party conference sponsored by energy companies and trade groups including: wood-burning bioenergy firm Drax, gas and electricity supplier E.on, British Gas parent company Centrica, the gas and electricity industry body Energy Networks Association, gas generation company Cadent Gas, trade association Hydrogen UK, and the Sizewell C nuclear plant.
According to VICE News, while the think tank does not advertise the cost of sponsored meetings at party conferences, other similar organisations charge over £12,000 to host an event, which lasts about 30 minutes.
Meanwhile, the chair of the Policy Exchange board is Alexander Downer, who served as Australia’s Foreign Minister from 1996 to 2007. Downer has expressed climate science scepticism in the past, claiming that we are “going through an era” of global warming, and saying that Australian climate leadership would be expensive “virtue signalling”.
Downer was appointed as the High Commissioner to the UK in 2014 by Tony Abbott, who also recently joined the board of the GWPF.
Policy Exchange and 10 Downing Street have been approached for comment.
Judge Silas 'Silence' Reid ordered the arrest of Trudi, an #InsulateBritain supporter, who stood outside Inner London Crown Court yesterday with this placard: pic.twitter.com/fjXnWtrGwK
On Monday morning[ Today], 24 activists from Extinction Rebellion sat outside Inner London Crown Court carrying placards with the same message borne by Ms Warner.
The activists said they also handed in a letter to the court stating their intentions.
Lawyer Tim Crosland, who was disbarred for leaking a draft judgment about the building of a third runway at Heathrow Airport, said the protesters had chosen to be outside the court during another Insulate Britain trial to test Judge Reid.
He said: “He’s backed off, he’s left us alone. He’s exposed himself as an unprincipled bully. Because if he really believed that those signs were interfering with the courts of justice, it was his duty to stop us. And he didn’t.
“Think about what it means for Trudi and others who’ve been arrested. Those prosecutions are completely unsustainable, assuming we don’t get arrested now.”
The protesters, made up of doctors, lawyers and Quakers as well as a rabbi and a former police officer, sat in a row along the pavement outside the court premises showing their placards to passers-by.
