The INEOS injunctions: Undermining the right to protest

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by Pete Kenyon
Posted on November 26,

MAKE no mistake, last week’s High Court ruling confirming the majority of temporary injunctions that have been in place to ‘protect’ shale gas explorer INEOS’s assets, staff and supply chain since July, is a setback for the anti-fracking protestors.

But whichever side of the fence one stands on (and be careful not to chain yourself to it unless you fancy six months in prison and a hefty £5,000 fine), the case raises serious questions, going forward, about the ability of public protest movements to be effective in any kind of meaningful way.

And remember, as owner of PEDL 294, INEOS has a licence to frack for gas here – subject to planning permission – in an exploration licence area that covers Frodsham and Helsby, as well as the biologically diverse marshes near the Manchester Ship Canal that the British Geological Survey is so intent on scoping.

Free speech

Rosa Curling, solicitor at the Leigh Day chambers in London that represented anti-fracking protestor Joe Boyd from Liverpool throughout his three-and-a-half month battle to get the injunctions overturned, hit the nail on the head in her summary of Thursday’s important ruling:

“Free speech is at the heart of any democracy. This case is about the right to protest, a right which has always been, and must continue to be, a fundamental aspect of peaceful political action in our society. Without the right to protest effectively, the ability of citizens to peacefully challenge injustices will be severely curtailed.”

The key words here are “effectively” and “peaceably”. Can protest movements be in any way effective if they are systematically stripped of any and all kinds of behaviours or tactics that have the ability to disrupt and expose the activities of their intended targets? Can one be effective while remaining peaceable?

I will return to these fundamental questions – which the anti-fracking movement is having to address in light of the very restrictive injunctions affecting all of INEOS’s sites – later. In the meantime, I don’t think it’s too radical of me to suggest that the whole point of protest is precisely to draw attention to the alleged injustice at hand. Can simply standing around, not obstructing anyone, waving a placard, raising one’s voice (but not too loudly), and to all intents and purposes behaving ‘normally’, influence any kind of offending behaviour, not least one that has powerful interests – not to mention a national Government – lined up behind it?

Would black people in America now have equal rights had the Civil Rights movement not resorted to a programme of civil disobedience in the 1960s; would men in this country have given the vote to women if they had ever-so-politely asked for it? Would homosexuality now be legal?

 

And how long will it be anyway before waving a placard is added to the list – a list that now, as far as INEOS assets are concerned, specifically includes lock-ons, slow walking and lorry surfing as outlawed activities. Precisely, in fact, those very activities that have hitherto been so effective, yet so expensive and difficult to counter.

Critics of the more direct (for ‘direct’, read ‘illegal’) tactics utilised by the anti-fracking fraternity have at their fingertips a series of simple arguments that run something like this:

“What some of the anti-frackers are doing is against the law”;
“INEOS are within their rights to run their lawful business without interference”;
“Honest people connected with shale gas exploration, the drivers, the suppliers, the lady who makes the tea, are just going about their daily business and should not be subjected to intimidation of any kind”;
“Look at all the arrests and violence we have seen at fracking sites on the news.”
Such arguments are often contemptuously condensed into a variant of: “It’s just a bunch of scruffy, trouble-making scroungers, drop-outs and dole cheats who have nothing better to do with their time than hug trees.”

This type of smear, however, is less likely to gain popular traction as it might once have – especially with regard to ‘tree hugging’. The internet has helped drive a far-reaching and broadly supported sense of shared responsibility for our environment (among other things) to a level that has never before been seen. Tree hugging is good. Giving a shit is good.

This fact alone makes it more difficult for ‘the authorities’, and ‘corporate interests’ to portray protestors simply as deluded social misfits and crackpots at best; and as anarchists and borderline terrorists at worst.

Prevent campaign

Nevertheless, the Home Office recently had to step in to clarify that the resources behind its high-profile Prevent campaign – born primarily out of concern in 2010 about al-Qaeda and the threat of radicalisation and terrorism in our midst – should not be used as a way of targeting a presumed “terrorist-leaning” anti-fracking movement.

The reason? Because City of York council, and indeed a school in east Yorkshire – where fracking is at a more advanced stage than it is in Cheshire – used the Government’s counter-terrorism programme to target environmental protestors. The council in question placed known anti-fracking activists on a list of “key risks to York”, while the school included anti-fracking campaigners in its counter-terrorism advice for parents (Guardian, 10 December 2016)

Yet despite the sporadic efforts of the fracking industry, the police, the Government and some local councils to characterise the high-profile disturbances witnessed at various fracking sites around the country as the ‘norm’, the evidence is fairly compelling that many ‘ordinary’ people, across all sections of society, are concerned about the threat that fracking poses to the environment. The anti-fracking movement is wider and more broad-based than just a claimed itinerant band of alleged troublemakers and anarchists travelling up and down the country intent on causing disruption.

But although the largest volume of opinion against fracking is of the silent and reserved kind – on my own doorstep some 80% of local residents expressed their opposition to it in a recent poll, and you couldn’t find two more peaceable localities than Frodsham and Helsby – it is on the more dramatic front line that the mainstream media tends to focus.

Which takes me back to my original question, one which is thrown into sharp focus now that those direct actions on the front line that have previously so successfully affected INEOS’s business activities are effectively banned; and now that the perpetrators willing to risk carrying on expressing themselves in such manner, regardless of consequence – the so-called “persons unknown” that the injunctions target ­– do so in full knowledge that they will be arrested, charged, fined and/or imprisoned.

Is breaking the law, in whatever way, compatible with operating “peaceably”? And are some laws more “breakable” than others; and if they are, which ones are they?

NETPOL report

To answer this it is worth noting that there have been times when even the police have allowed anti-fracking groups to ‘break the law’. According to the well-worth-reading NETPOL report Protecting the Environment is Not a Crime: A Report on the Policing of Anti-Fracking Protests During 2017, Lancashire Police “intermittently allowed” 15-minute slow walks in front of delivery vehicles at the Cuadrilla site in Preston New Road early in 2017 – before changing their minds in March.

Nevertheless, the fact that local agreements could be reached on this issue, does indeed imply that even those responsible for enforcing the law have been prepared to take a view (however temporarily) that the ‘crime’ of slow walking might be tolerated.

In fact, when one drills down into the arrest figures for Lancashire Police at fracking sites between January and September 2017 it becomes clear that by far the smallest proportion of arrests on the front line are for violence – just 1.9% (9) of the 319 in that period were for assaults on police.

In the same time period, a significant proportion of arrests (10.7%, 34) were made under the controversial Section 14 of the Public Order Act, which gives police discretionary power to impose conditions on the right to assembly if they feel that there is a risk of “serious public disorder, serious criminal damage or serious disruption to the life of the community”.

A further 10.7% (34) of arrests were for breach of Section 241 of the Trade Union Act – legislation which is more usually used to prevent picketing – while by far the highest number were for what some might view as the relatively harmless activity of obstructing the highway (46.1%, 147), an activity that as I mentioned earlier had been previously tolerated.

Meanwhile – though not specifically with regard to anti-frackers, but rather politically-motivated activists more generally – NETPOL reports “industrial-scale collection and retention of personal information on individual campaigners” being held in “secret police databases”. One such secret surveillance file, reported the Guardian in 2013, was kept on an 88-year-old pensioner who had never committed a crime but had attended 55 demos over a four-year period.

The fact is, however, that in some respects nothing has really changed since Mr Justice Morgan delivered his verdict on Thursday (23 November).

Previously, however, fines for more moderate forms of direct action – lock-ons, slow walking and ‘lorry surfing’ – have tended to range up to £500, with cases being dealt with on a case-by-case basis in the criminal courts. Whilst offenders can still end up in the criminal court system (a process that takes significant amounts of police and court time in terms of processing), the injunctions move the penalty for a whole series of predetermined direct actions into the civil arena, and to breach them is to be automatically in contempt of court, a serious offence that comes with a penalty of up to £5,000 and/or up to six months in prison.

 

More pertinently, the injunctions cover “persons unknown” – so everyone in the entire country has effectively been served with an injunction in advance of doing anything wrong – rather than the more usual method of being served with one after the fact, and being given an opportunity to defend oneself accordingly. And it is this that is an important development – the “persons unknown” clause effectively means that in terms of committing a civil offence it’s not one strike and you’re out, it’s first strike and you’re out because the injunction has already been served on all of us.

Crowdfunding and anti-fracking

There is another reason why having in place the harsher financial penalties associated with a civil injunction, might be attractive to those with an interest in fracking. A trawl by me through the Facebook profiles of some of those who have been involved in direct actions (a trawl similar to that which INEOS’s lawyers undertook as part of the evidence-gathering process in support of its injunctions) reveals the existence of a not insubstantial number of benefactors prepared to fund – via online crowdfunding sites – the fines that are being racked up by protestors.

Some are fellow activists who are ‘sharing the load’. But others, presumably, are those who have a stake in society that they dare not risk losing by being seen to be directly involved, but who nevertheless have the resources to contribute financially to fund the activities of those who are either willing to risk that stake, have no stake, or who are passionate enough about the cause as not to care about the consequences.

Whether such benefactors’ pockets will be deep enough to start funding £5,000 fines is unlikely; and in any case offenders now know that they face prison, whereas under the criminal system they likely did not unless the offence was so serious as to merit it.

Meanwhile, away from the courts, shale gas explorers are under mounting pressure to start delivering returns on substantial investment; time is a commodity they just do not have; and any measure that diminishes the ability of the anti-frackers to delay their activities is likely to be actively pursued. What price other fracking companies following INEOS’s lead and taking out injunctions of their own?

With both the Labour Party and the Liberal Democrats pledging a ban on fracking, the industry has a maximum of four guaranteed years to move from exploration to full-scale production. Which might explain why INEOS this week became the first of the fracking companies to take advantage of legislation that came into force in 2015 and which enables planning applicants to bypass local authorities if they feel there has been an unreasonable delay in determining planning permission.

Should there be a change of Government, it will be interesting to see if the fracking industry has managed to advance itself far enough forward as to make it almost impossible to retrospectively ban. But if Labour or the Liberal Democrats are given the opportunity to make good on their promise, maybe we’ll yet see INEOS owner Jim Ratcliffe chained to Joe Boyd’s fence in protest …

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