This morning the high court ruled that the Metropolitan police acted unlawfully when it introduced an unprecedented, London-wide ban on Extinction Rebellion protests last month. Imposed late in the evening of Monday 14 October, the move involved an application of the Public Order Act so draconian that it would usually require the home secretary’s sign-off.
The judgment invalidating that ban is clearly a victory for democratic process and the rule of law. The court agreed with our lawyers that the police had unlawfully overstepped the limits of their powers in a way that disproportionately curtailed the right to protest, and that while the police could impose conditions on protest gatherings, they could not prohibit them from happening altogether.
It is also a victory for those seeking to draw attention to what scientists have been telling us for decades: that the planet is warming, we are in the midst of the sixth mass extinction, we are responsible – and there is a limited amount of time to do something about it.
The ban was not aimed at activists who mounted planes and trains, or stopped vehicles during the two-week International Rebellion in October. Those actions were likely illegal regardless of this ban, and taken with the intention of being arrested in a desperate attempt to jolt politicians out of their inertia.
Instead the ban sought to criminalise anyone who wished to assemble under the banner of Extinction Rebellion in any way. A pair of picnickers or a few school children traipsing around their local park wearing XR insignia would have been guilty of a criminal offence and at risk of arrest. Indeed, we estimate that more than 300 people were detained using these powers.
In the short term, this judgment sets a legal precedent that reaffirms the right to protest and invalidates the arrests of those detained under the ban, many of whom will have claims for compensation from the police for their wrongful arrest and detention.
But in the longer term, it offers little solace. While the law has dug us out of this particular hole, nitpicking through the courts won’t be enough to forestall the climate and ecological emergency.
The government’s attitude to climate protest reflects its wider approach to legislating for the protection of the planet. Just as it has sought to dodge the difficult decisions and hide behind the police to unlawfully ban Extinction Rebellion’s protests, the government continues to dodge the trade-offs that are required to fight the climate crisis, hiding instead behind targets that lie six full parliaments away – as far off in the future as the Berlin Wall is in the past.
Rather than shirking responsibilities until it ends up in court, the government needs to confront those trade-offs now to interrupt catastrophe. The emergency we face requires system change, not incremental tinkering with the status quo.
But a government that suspends fracking in the same week as it approves a new coalmine in Cumbria is clearly not interested in structural transformation. You need not take this from me – the government’s own Committee on Climate Change concluded this summer that: “UK action to curb greenhouse gas emissions is lagging far behind what is needed, even to meet previous, less stringent, emissions targets. Over the past year, the government has delivered just one of 25 critical policies needed to get emissions reductions back on track.”
Non-violent peaceful protest is the last resort of people desperate to divert the trajectory of a system in which inequality rises with the oceans, which ignores the science and the scientists (11,000 of whom warned yesterday that we’re heading for “untold suffering due to the climate crisis”), and turns the mantra “keep calm and carry on” into a suicide note.
The truth is that change is coming whatever we do. Our choice is what kind of transformation we want.
We can choose a transformation that heeds the science, listens to citizens but levels with them too, shoulders our responsibilities to current and future generations and promises an improvement in our collective wellbeing.
Or we can scrap for a few more years in the lingering twilight of business-as-usual – in which up to a million animal and plant species will become extinct – before descending swiftly into a politics of ecofascism forged in the crucible of scarce resources, droughts, floods, climate wars and forced migration.
Against that kind of politics the courts that protected our rights today will not be able to defend us.
It’s not too late for us to choose. In five weeks an election will decide who’s in power for half of the decade the UN’s Intergovernmental Panel on Climate Change tells us we have left to limit climate catastrophe. The question all of us should be asking every parliamentary candidate between now and then is: where is your plan?
• Tobias Garnett is a human rights lawyer and coordinator of Extinction Rebellion’s legal strategy team