Apparently, it’s not enough for the police to be given powers to shut down any protest they choose. It’s not enough for peaceful protesters to face 10 years in prison for seeking to defend the living planet, or to be deprived of the right to explain their actions to a jury. Now they are also being pursued through another means altogether: the civil courts. And the penalties imposed in these cases, with or without trial, legal aid or presumption of innocence, can be much greater.
The law in England and Wales permits corporations and government bodies to create their own system of punishment. The tool it grants them is a simple one, with massive, complex and ever-ramifying consequences. It’s called the civil injunction.
A corporation might apply to a court for an interim injunction. In doing so, it doesn’t need to prove any claims it makes. It can name not only people who have protested against it, but anyone it feels inclined to name. Papers are then served on the named people, who have an opportunity to contest the injunction. If, as is often the case, they don’t understand the implications, they are likely to miss their chance. In any case, there is no legal aid, so people without knowledge of the law must defend themselves against companies using the best lawyers money can buy. Sometimes the final injunction is granted by a court within days; sometimes it can take years. In either case, the interim measure applies until the final injunction is granted.
These injunctions can be used to prevent any protest by the people they name at or around company property. If you break one, the corporation can apply for an “order of committal”. Again, there’s no legal aid and no jury. If the court finds you in breach, you can be deemed guilty of contempt, facing up to two years in prison, an unlimited fine and potential confiscation of your assets. This is on top of any penalties incurred under criminal law for the same action. In other words, you can face double jeopardy: two prosecutions for the same offence.
But this is not the worst of it. National Highways Ltd, a company owned by the government, is using a new strategy: passing on the costs of obtaining its injunctions to the people named in them. Once a company has obtained a costs order from the court, it can force the people it names to pay the fees charged by its lawyers. Yes, even if you have adhered to the terms of the injunction, you are charged simply for being named. If you cannot pay, bailiffs might come to your home and confiscate your property.
The people I’ve spoken to, who have been injuncted by National Highways, say they have each been charged £1,500 for its legal fees, and are expecting further bills, which they believe could amount to £5,000 a head.
National Highways tells me, “Cost orders are at the discretion of the court … National Highways takes seriously its duty to manage public money and to recover for the benefit of the public purse any sum which the court orders is due to be paid to National Highways.”
Some of the people it names also feature on injunctions taken out by other organisations, either because, as dedicated campaigners, they’ve protested in several places, or because they’re “the kind of people” who might. Transport for London, which has taken out injunctions against campaigners with Just Stop Oil and Insulate Britain, tells me it has also obtained a costs order. Knowing how successful legal strategies spread like wildfire, environmental campaigners fear they could now face costs from multiple claimants, for having the temerity to oppose the destruction of the habitable planet.
Some companies expecting to obtain a costs order may have little incentive to limit their expenses. Quite the opposite: for some, the costlier their lawyers, the greater the hit for those the injunction names. This is how the rich crush the poor.
An environmental campaigner named on several injunctions tells me she sees this tactic as “the way to wear us down”. If you are pushed into poverty by legal costs, “your life becomes incredibly difficult and you don’t have the time and opportunity to protest”. Another injuncted protester told Yorkshire Bylines, “at least in criminal law if you’re found guilty you know what the penalty is. Here, we have absolutely no idea ... What’s the endpoint?” Another campaigner tells me, “many of us are feeling terrified and overwhelmed … This has become an absolute fucking nightmare and we don’t know what to do about it.”
If companies decide they want to take you out, there is nothing to stop them from bombarding you with injunctions. Either you drown in paperwork as you apply to the courts to have your name removed, or you face the impossible and ever-growing costs of financing their lawyers.
The human rights barrister Adam Wagner tells me that while in criminal prosecutions people of limited means might have to pay only a small proportion of the prosecution’s costs, in these cases there’s no such protection. “The costs orders can be huge,” he says. They can “hang over people’s lives for years or even forever, stop them getting mortgages, loans etc. It’s pernicious.”
This is just one of three new injunction tactics being used against people seeking to defend our life support systems. Another is injunctions against “persons unknown”, meaning everyone. No one can contest such orders without having themselves named as a defendant and facing massive potential costs. Oil companies, among others, are using these injunctions to stop all protests at their premises. This “persons unknown” instrument is being challenged before the supreme court by Friends of the Earth and others, who expect a ruling soon. The third tactic is a power in this year’s Public Order Act, enabling the government to bring civil proceedings against protesters: double jeopardy is now baked into the law.
These measures are a blatant injustice, a parallel legal system operating without the defences available in criminal law, that can inflict ruinous and open-ended costs. They amount to a system of private fines, to be levied at will and out of the blue against political opponents.
Perhaps you aren’t bothered. Perhaps you don’t care about activists. But this is an attack on you, too. It’s an attack on the democratic right to protest in which our freedoms are rooted. It’s an attack on the living world on which we all depend.
George Monbiot is a Guardian columnist
