Environmental campaigners are counting on protesters and senior judges to protect hard-fought rights which they say are under threat from powerful and wealthy onshore oil and gas companies.
The Court of Appeal is hearing challenges in March to injunctions against protest activity granted to UKOG and Ineos Shale, the UK’s biggest fracking company owned by the country’s richest man.
The hearing will be the latest attempt by individuals and campaign organisations to stem an increasing number of injunctions against protests at oil and gas sites across the UK.
There are now court orders in force at sites connected to the industry in at ten counties: Lancashire, Sussex, Surrey, Nottinghamshire, Cheshire, Derbyshire, North Yorkshire, South Yorkshire, Hampshire and central London. Some cover sites for which there is no planning permission.
Some of those challenging the injunctions took their case to parliament this afternoon for a meeting with MPs and peers.
The barrister, Stephanie Harrison QC, who is involved in the Ineos appeal, urged people opposed to the onshore oil and gas industry to continue campaigning and not to be deterred by injunctions.
“Those who are participating must continue to exercise their right. We have to keep campaigning and protest about matters of concern and importance.
“Yes we also have to challenge the injunctions in the courts but challenging in the courts is never enough. Even if we succeed the company can come back with other ways to undermine people’s rights.
“Real democracy is when people say ‘enough is enough, this is not acceptable’, and they take steps to pursue that.”
“If we do not succeed in overturning this process then I think that we have to recognise … very wide-ranging injunctions are going to be made with large repercussions across the board for many people with no effective opposition.
“For that reason alone this form of proceedings must be categorised as unacceptable and challenged both politically, as well as legally in the courts.”
Friends of the Earth is involved in the UKOG appeal and is seeking to intervene in the Ineos case. The organisation’s head of political affairs, Dave Timms, said:
“The use of injunctions is taking the UK to a dark and frightening place where rights and liberties essential to a healthy democracy look very fragile”.
“These draconian injunctions go far wider than covering already illegal actions.
“They create a climate of fear where people taking lawful protest are uncertain about whether their actions could breach an injunction with the risk of imprisonment or having their assets seized.
“They put decisions about public order policing into the hands of the oil and gas industry with their army of corporate lawyers and private security firms.”
Oil and gas companies have always said they are not seeking to curtail lawful and peaceful protest.
But the injunctions have specifically outlawed the protest technique of slow walking, where protesters walk in front of lorries to delay deliveries. This has often been tolerated, and even facilitated, by police. People prosecuted for slow walking at recent protests have often been acquitted or, if found guilty, given a conditional discharge.
Breaching the terms of an injunction, in contrast, could result in people being found in contempt of court, for which the penalties are prison, fines or the seizure of assets.
“Bypassing constitutional rights”
Stephanie Harrison said the companies were seeking recourse through the civil courts to bypass the constitutional right of police to make decisions on the ground.
The onshore oil and gas industry disliked the police toleration of slow walking and some forms of sit-down protest, she said. It also disliked decisions made in magistrates’ courts on protest cases and regarded penalties as an insufficient deterrent.
Ms Harrision said:
“We say it is fundamentally illegitimate for a private company to use its powerful resources to go to the civil courts to recast the line where the police apply the legislation. There are concerns about the way the police have policed these protests but constitutionally they are the body that makes the decisions on the ground.”
“The primary aim of injunctions was to limit the number of people willing to participate, to intimidate and deter local activists and members of the local community from standing together with others who were involved in peaceful direct action protest.”
Barbara Richardson, a campaigner against shale gas operations at Preston New Road in Lancashire, where an injunction is in force, said:
“Even though protest of some nature was allowed, people were scared off, unclear about what they could do and worried about things like assets getting seized.”
Max Rosenberg, a campaigner against oil drilling near Leith Hill, in Surrey, said injunctions by Europa led to a loss of support and funding.
Ms Harrison said the injunctions were particularly concerning because they were brought against persons unknown. She said this was a departure against ordinary legal process:
“If you don’t have an individual, who are going to be the defendants? Who will come to court and say this wrong and this unacceptable?”
Anyone who becomes a defendant in an injunction case risks having costs awarded against them.
Dave Timms, of Friends of the Earth, said:
“The risk of huge legal costs has a massive deterrent effect for anyone opposing these injunctions and means the legal process is already stacked in favour of the fossil fuel industry, and against the concerned public.”
The highway as a place of protest
Ms Harrison said the injunctions sought to rewrite the common law on the use of the highway as a place of protest, prohibiting actions that cause inconvenience or disruption. She said:
“They do not want people in large numbers on a regular basis being present outside these sites raising the profile, keeping the pressure on, continuing to draw attention to these activities of such concern.”
The injunctions had also resurrected an ancient tort of conspiracy to injure, Ms Harrison said:
“Its purpose is to bring in anybody who is involved in the campaign by making them liable for the actions of others because they can be said to be combining.”
She said this could include the very effective campaign tactic of discouraging members of the supply chain to work with onshore oil and gas companies.
“Communities must have a voice”
The injunctions come as the government is considering speeding up decisions on fracking and shale gas applications by taking decisions away from local council.
Vicki Elcoate, of Weald Action Group and one of six women from Sussex and Surrey involved in the UKOG appeal, said the court orders had deterred people from protesting:
“At a time when the government is seeking to fast track fracking, it’s even more important that local communities have a voice.
“Across the South East, oil companies are pursuing a programme of extreme extraction using unconventional methods like acidisation. These far-reaching injunctions are being used by these companies to silence dissent.
“The law shouldn’t be there to protect the oil and gas companies against the overwhelming opposition of the people to this threat to industrialise the countryside and pollute our environment”.
“Gaming the legal system”
A defendant in the Ineos appeal, the fashion designer, Joe Corre, accused the industry of “appearing to buy the law by gaming the British legal system.”
Mr Corre, pictured left with fellow Ineos challenger, Joe Boyd, said the companies initially brought their injunction cases at secret court hearings.
“The reasons they were able to bring these cases to a secret court is because they painted a picture of local people as hard-core fanatics. Not only is that a lie, it is also incredibly upsetting to local people.”
They told the courts they needed injunctions to control these unreasonable people, Mr Corre said.
The barrister, Paul Powlesland, who represented Ian Crane in the IGas injunction case in December 2018 said injunctions should not be allowed where there was an existing criminal law. If that type of injunction were allowed the penalties for beaching them should match the costs of breaking the criminal law.
Baroness Shami Chakrabarti, the shadow attorney general and former director of Liberty, accused companies of privatising legislation. She called for practical suggestions on how a Labour government could act quickly to protect what she described as a “creative abuse of power”.
“Bringing people together”
Dennis May, an anti-fracking campaigner from the east midlands, said an unintended consequence of the Ineos injunction was that it had brought people together.
“This threat to democracy is one of the reasons why fracking is a Rubicon that cannot be crossed.
“It’s not just about gas. It’s not just about energy. The way it has been imposed on our communities is intolerable.”
Steve Mason Of Frack Free United, one of the organisers of the meeting, said.
“This meeting has reflected the huge amount of concern of these draconian injunctions. In this current political climate, I am encouraged by the fact we had representation of all the English parliamentary parties and the SNP shows there is a real political willingness and cooperation to oppose the threat to basic rights and to fracking as a whole.”
Additional reporting by Paul Seaman
Reporting from this meeting was made possible by individual donations from DrillOrDrop readers