Last week I brought you news of the sentences handed down to the seven women who cracked the glass at the Barclays Bank building in Canary Wharf, London. How is the law treating people who demonstrate to warn and demand action on the climate crisis?
After four years of demonstration including two years awaiting the outcome of her arrest Zoe's taking some time to recover from the stress of the situation. You’ll remember that she was sentenced to 7 months imprisonment, suspended for two years. If she is found guilty of any crime of any type during that time she will be sent to prison, but she says she finds it hard to think that she will not demonstrate again within the next two years. She will certainly be speaking and writing, and urges others to join the campaign.
The judge did not impose an order for compensation when he passed sentence, but will Barclays Bank pursue a civil case against the seven for damages? Theoretically it could, but apparently the bank has spent some £100m on refurbishing the office. Against that the £97,000 cost of the glass is hardly a rounding error and could be a PR disaster for the bank.
Silence in Court
Zoe and her co-defendants were allowed to address the court, although they were not allowed to present facts or expert witnesses. This meant that the judge could trivialise them as a group of women with peculiar beliefs.
By contrast, the judge in other cases involving Insulate Britain and Just Stop Oil, Judge Silas Reid, ordered defendants to avoid talking about the climate and ecological emergency. He said, “This is not a trial about climate change, fuel poverty, etc. Matters relating to that are not relevant.” Defendant David Nixon disagreed, and used his closing speech to tell jurors: “We are on a highway to climate hell with our foot on the accelerator. That is why we sat in the road, to tell the truth about the direction we are heading in and prompt action before it’s too late.”
The judge jailed him for eight weeks for contempt. The remaining defendants will be sentenced on 27th March and have been told to expect custodial sentences.
In an article published last week the pressure group Open Democracy cites the case of David Nixon and accuses the government of staging show trials to silence activists. Author Rob Stuart explains that he and other activists have been prosecuted for public nuisance. This is an old common law offence, not statute law, which means there are no prescribed rules and to some extent it is a blank cheque for a judge to deal with as he or she sees fit.
A public nuisance is tried on the basis of consequences, not motivation, so once again defendants cannot explain their reasons. “If jurors can’t hear why a ‘crime’ was committed, are they there just to rubber-stamp the state’s decision?”, asks Stuart.
Just Stop Oil supporter and one of the founders of XR, Roger Hallam, was denied bail at Southwark Crown Court last month and will remain in HMP Wandsworth Prison, without trial. Roger is charged with ‘Conspiracy to Commit a Public Nuisance’ and has been held on remand, without trial, since the 6th November 2022, when he handed himself in to the authorities. Stating that he believed Roger to be a ‘committed and resourceful gentleman’ Judge Milne said: ‘I have no doubt you will continue to re-offend.’ It is likely that Roger will remain in prison until trial later this year, even though others arrested for the same incident have been bailed.
A Just Stop Oil spokesperson said:
“What happened to being presumed innocent until proven guilty? This is why Human Rights Watch are warning the UK risks being re-categorised as a ‘human rights abuser.’”
There are 10 JSO supporters in prison, and incidentally there are some 1,800 citizens currently imprisoned for over a year without trial for other offences.
Meanwhile, while strengthening its hold through the Police, Crime, Sentencing and Courts Act (PCSCA), the government presents its Public Order Bill, widely believed to be designed to enact those provisions of the PCSCA which were blocked as that law progressed through Parliament. The Home Secretary pushed through a last-minute amendment to the bill that would allow her to apply for injunctions against anyone she deems ‘likely’ to carry out protests that could cause ‘serious disruption’ to ‘key national infrastructure’, prevent access to ‘essential’ goods or services, or have a ‘serious adverse effect on public safety’. The proposal would also give police the power to arrest anyone they suspect to be breaching such an injunction.
The Public Order Bill is not yet law and is making its way through parliament and the House of Lords. It could still be amended, but it could still restrict the rights of people to express their views.
Government to Blame
Zoe blames the press and the government for the present situation. The government for inaction, or indeed for reckless action, in encouraging continued fossil fuel investment by offering new exploration licences for oil and gas. She blames the press because the press have not spelt out the consequences of climate change and failed to address the issue until the demonstrations start inconveniencing people. Then the story is the demonstration and not the science which the protesters are trying to draw attention to.
This week both The Times and the i-newspaper have announced their plans to campaign for clean rivers. The truth is that by far the great majority of Britain's watercourses and beaches are polluted with raw sewage released by the water companies and with agricultural run-off. Undoubtedly it's an important issue, but is it really as important as the need to mitigate climate change? It will no doubt give people a warm feeling that they're doing something important, but it's really not top priority.
Shut Down Debate
If governments don't want to address an issue they will do all they can to shut down the debate. Increasingly strict legislation on demonstrations and freedom of speech have gone through parliament in recent months. While the House of Lords is an anachronism long past its sell-by date it has at least prevented some of the more outlandish proposals, such as tagging individuals who might be believed likely to attend a demonstration. Some people have been arrested on suspicion of conspiracy to cause a public nuisance, and then released under investigation. The police may take no further action but they can decide to do so at any time, so the threat hangs over the individual.
The Role of Law
Since last week I have tried to find out more about the position of the legal profession on the issue of the climate crisis. Last September an open letter was signed by some 170 lawyers - now up to 250 - urging members of the profession to commit to climate justice and cease any operations linked to fossil fuel companies. Around the same time in the United States law students for climate accountability published their Law Firm Climate Change Scorecard for 2022.
The Executive Summary opens with the message: “It's 2022 and the legal profession continues to fan the flames of climate chaos. The unshakeable truth is that the fossil fuel industry and the law firms that support it are directly responsible for the climate crisis and the resulting damage caused to communities around the world.”
The report analyses the top 100 US law firms and grades them according to the number of fossil fuel enabling cases they have handled in the year, describes the lobbying activity which some are involved in and reports that between 2017 and 2021 the top firms facilitated a staggering $1,620,000,000,000 in fossil fuel transactions.
“The movement to change the legal industry is only growing,” says the report. More than ever, law students are occupying offices, disrupting recruiting events, speaking to their classmates, and standing in solidarity with the communities that have led the fight for climate action and a just transition. Many within law firms are doing their best to move their firms away from extraction. It is well past time for law firms to catch up and heed these calls to change.
“If they refuse, we will only grow louder.”
The problem is that money talks, and the vast amounts of money that the fossil fuel industry has to spend shouts so loud that nothing else can be heard.
What about the lawyers’ professional associations? In the UK the Law Society is the association for solicitors. They say, “There's never been a better time for the legal profession to take the lead in the race to net zero. We've published a climate change resolution outlining the role solicitors can play in addressing the climate crisis.”
The document says that “The Law Society of England and Wales resolves to develop plans and take rapid action in a manner which is consistent with restricting global warming to 1.5°C by adopting science-based targets.”
It goes into detail over a number of pages, and among other things, undertakes to “provide guidance to solicitors on how, when approaching any matter arising in the
course of legal practice, to take into account the likely impact of that matter upon the climate crisis in a way which is compatible with their professional duties and the administration of justice;
It urges solicitors, “….to engage in climate conscious legal practice by… providing …competent advice to their clients on how they can achieve their objectives in ways which mitigate the effects of the climate crisis and promote adaptation to climate change…”
No doubt there are members of the legal profession working for the US top 100 law firms in London and others working for the top UK law firms who will all be members of the Law Society. However the Law Society is not a regulatory body - that falls to the Solicitors Regulation Authority (SRA) - so members can follow or ignore Law Society advice as they please. And clearly many are.
The SRA doesn't seem to say much about the climate crisis but I was interested to find an article on the website about the possible criminal conviction of legal practitioners in relation to matters of principle or social conscience.
The SRA says, “Ordinarily we would expect a member of the legal profession or anyone aspiring to join it to not engage in any unlawful activity….
“However, when such matters are brought to our attention we have broad discretion to consider the context in which any criminal convictions arise. This will not automatically result in disciplinary action for a solicitor or automatic refusal of admission to the roll of solicitors. We will consider each case on its own facts. There are a broad range of factors that affect how seriously we will view a matter.”
That seems unexpectedly tolerant and broadminded.
Does the Bar Council, the organisation for barristers, take a similar view to the Law Society? Not really. There is a link on the Sustainable Futures Report website to the appropriate pages on the bar council website and you will see that they are mainly concerned with making their individual practices low carbon operations. They also talk about pro bono work for charities and good causes, but there is nothing about the threat of a climate crisis or anything that should be taken into account in this regard when representing their clients.
Judges are regulated, insofar as they can be regulated while remaining independent, by the Courts and Tribunals Judiciary. Again there’s a link on the Sustainable Futures Report website. The role of the judiciary seems to be to uphold professional standards, but I have not been able to find, here or anywhere else, any training opportunities to bring judges up to date with the way of the world and current affairs. Do they go to seminars on cyber-crime? Do they talk with the security services about terrorism? Do they meet with the police to learn about trends in domestic violence? I think they probably should. I think they should learn about the climate science which is leading moderate middle-class people to break the law.
Tim Crosland is director of Plan B, one of the organisations promoting the lawyers’ open letter about the climate crisis. In December he renounced his status as a barrister over what he described as “the British courts’ support for climate genocide”. He said,
“My maternal grandmother was a German Jew who escaped to England in the 1930s – just in time. Out of 15,000 German judges under the Nazi regime, only one, Lothar Kreyssig, actively denounced the genocide as unlawful. Others were later tried and convicted at Nuremberg for their complicity in crimes against humanity.
The British Government knows full well that human-made climate change will annihilate whole peoples, whole regions of the world, and whole generations. It knows it will devastate our own country too. Yet it remains so captive to the fossil fuel industry that it permits the City of London to support 15% of global carbon emissions, accelerates new oil and gas licences in the North Sea and has just announced the opening of a new coal mine in Cumbria. This is genocide. It is the ultimate crime against humanity and life on earth. It is only possible because of the complicity of the courts and certain members of the legal profession.”
In January this year Tim Crosland was disbarred for the “considerable reputational harm” he did to the profession by leaking the result of the U.K. Supreme Court’s ruling in support of the expansion of Heathrow Airport,
Speaking after the ruling, he said:
“The Supreme Court concealed from the public evidence that Heathrow expansion would cause the 1.5˚C Paris temperature limit to be breached, with catastrophic implications for us all. It did so in the midst of a climate and ecological emergency, declared by Parliament on 1 May 2019. Preserving the confidentiality of draft judgements is important, but conserving the conditions which make the planet habitable is more important still.”
Like Tim Crosland, Zoe Cohen has jewish heritage. They are both horrified to see parallels between increasing autocracy in the UK and the rise of fascism in the 1930s.
I think it was Mr Bumble the Beadle in Charles Dickens’ Oliver Twist who said, “The law is a Ass”, a phrase which lawyers have repeated with glee ever since.
In truth the law is generally a force for good. In the wrong hands it can be a sinister force for oppression and evil.
At least Keir Starmer, the leader of the opposition in the UK, seems to have got the Just Stop Oil message.
Here he is talking at the World Economic Forum in Davos last month.
You can hear him saying that there will be no new exploration licences in the North Sea from a Labour government.
That's it for this week. Sleep easy.
Put 21st April into your diary. That's the date of The Big One from XR. No, not nonviolent protest, just a very large group of people standing outside parliament urging MPs to actually do something. I'll be there. Will you?
I'm Anthony Day.
That was the Sustainable Futures Report.
Until next week.
Oh, and by the way, this was not written by robots.
Just Stop Oil - prisoners
Law firms exacerbating climate change
Law Society Resolution
Solicitors Regulation Authority
Keir Starmer on No New Oil
Image by <a href="https://pixabay.com/users/aitoff-388338/?utm_source=link-attribution&utm_medium=referral&utm_campaign=image&utm_content=1665104">Andrew Martin</a> from <a href=“https://pixabay.com//?utm_source=link-attribution&utm_medium=referral&utm_campaign=image&utm_content=1665104">Pixabay</a>
Image by <a href="https://pixabay.com/users/gdj-1086657/?utm_source=link-attribution&utm_medium=referral&utm_campaign=image&utm_content=5161278">Gordon Johnson</a> from <a href="https://pixabay.com//?utm_source=link-attribution&utm_medium=referral&utm_campaign=image&utm_content=5161278">Pixabay</a>