Scotland, the Climate and UK Law

Are our elected politicians responding to our priorities?

“If Liberty means anything at all it means the right to tell people what they do not want to hear”
George Orwell

This has been the wettest winter I can remember. The UK has just experienced the rainiest 18 month period. We know the sea is warming, so more evaporation will produce more clouds and rain. Further afield a “mind boggling” rise to 38.5C in the coldest place on Earth in Antarctica is a harbinger of a disaster, not only for humans but the local ecosystem. All over the planet there is disruption in meteorological events…floods, extreme heat, melting glaciers, hurricanes and with it displacement of communities, loss of crops, more droughts, even more human migrants…. Three of the hottest days on record in Europe have all occurred since 2020. And still we go on in the same way. Business as usual, including long plane trips as often as we desire. But now our Scottish government has recently rowed back on the climate commitments made… 75% by 2030, as it is no longer feasible; and once again I am left wondering how can we influence politicians of all parties to get on with looking to the future and not simply short term expediency for votes? We need a long term strategy.

So why not influence our governments to get on with it? Some are doing just that….
A group of Swiss women in their 70s, called the Klimt Seniorinnen, have taken action against the Swiss government over its failure to meet its emission reduction targets. The European Court of Human Rights (ECHR) ruled that the Swiss government had “failed to comply with its duties under the Convention concerning climate change” and violated the right to respect for private and family life. “Climate protection is now a human right – and lawsuits will follow”. Sadly however, a backlash from UK energy secretary Claire Coutinho used this very ruling to call for the UK’s exit from the ECHR, a long term aim of the political right.

Maybe the time is right for the women of Scotland to take the Scottish government to court over their failure on climate targets? Especially after the Scottish government backtracked, scared off by powerful voices. Let’s use the ECHR. Anyone coming along, especially you human rights lawyers?

Sadly the legal response by the UK government to protest in the UK has been escalated to stricter penalties, especially for climate protests. Existing misdemeanours more strictly defined and some climate actions newly criminalised including would you believe:
– Locking on
– Carrying glue to protests
– Walking slowly in road
– Growth in use of private injunctions to prevent protest

All can be escalated from a small fine which can quickly lead to prison. Defences, including “climate emergency” cannot be used. Long custodial sentences are becoming normalised. This is repression. The most extreme case so far was the prosecution of two climate protestors, Morgan Trowland and Marcus Decker jailed for 3 years and two years and seven months respectively for disrupting traffic by climbing the Queen Elizabeth 11 Bridge over the Thames and unveiling a banner. Decker, a musician and teacher says he tried all “respectable ways” to raise awareness…music, letters, petitions, and realised that politics was not going to deliver. Perhaps civil disobedience would. They stayed on the bridge for 37 hours before agreeing to be brought down. Their prison terms were massively out of line with any sentencing previously. Decker was released after 16 months: Longer than anyone has served for a peaceful protest since all adults had the vote.

But there is a glimmer of hope. Trudi Warner is a case to dwell on for a moment. She stood outside the Crown Court with a placard that read “Jurors have an absolute right to acquit a defendant according to their conscience”. She did not speak to anyone and stood silently. An attempt by the government’s most senior law officer to prosecute her for criminal contempt that informed jurors of their right to acquit a defendant based on their conscience. Trudi’s sign was in reference to a 1670 landmark case that cemented the independence of juries, known as “Bushel’s case”, in which a jury refused to find defendants guilty despite having been repeatedly instructed to do so by the judge.

Mr Justice Saini said there was no basis for holding Trudi Warner for criminal contempt for her placard. “I reject that Ms Warner confronted jurors- these submissions significantly mischaracterise the evidence”. Trudi Warner who had waited a worried year for her case to come to court, was relieved “What I was doing was drawing attention to the terrible repression of conscientious protestors, and in particular climate protestors, by the state. If what I did will empower other defendants to use the power to acquit by juries, this will have been the fight of my life”. The decision was welcomed and it came after the UN rapporteur on environmental defenders highlighted the repressive actions being placed on climate campaigners in the UK.

Another present example is Dr Sarah Benn a retired GP, a “Stop New Oil” campaigner, jailed for supporting the climate action, and this week sanctioned by the General Medical Council with the loss of her medical licence for 5 months. Like many others she had tried to alert us all to the dangers of climate change and our need to stop investing in new oil exploration and licences. She spent 32 days in prison for protests, including holding a placard “Stop New Oil” near an oil terminal. She continues to have serious concerns for the risks to public health of climate change impacts.

Since the Peterloo massacre in 1819 the undoubted right of Englishmen to assemble together was a concession granted by the ruling class. Nonviolent protest has long been recognised as a legitimate means of challenging and improving our political settlement. It keeps Democracy alive. Sadly we witness now an economic elite that has taken power, and legitimate protest is less acceptable. Helena Kennedy QC, a highly respected civil rights lawyer and member of the House of Lords writing in The Independent on 24 April 2024. “The recent government “win” over its Rwanda policy is yet another sign of the government playing fast and loose with the law. Its plan to deport asylum seekers to Kigali, in the face of advice that it will breach international conventions, is the latest sign of our justice system being undermined – but it won’t be the last”.

We all need to reflect on that. Our political system must work for us all. Climate action in 10, 20, 40, 100 years or never time is no longer an option. Natasha Walter, honorary professor at the Centre for Climate Crime and Climate Justice at Queen Mary, University of London wrote in The Guardian on 14 April 2024, “Protest is always a path to change. A few years ago, those climate protests suggested an opportunity for meetings across the divides and finding new ways to respond to growing threats. But now a bitter polarisation, driven by government, is making those divides yawn wide. Unless we challenge this marginalisation of those who care the most, unless we stand up against this repression of protest, they will yawn wider still.”

Sally Campbell
April 2024

Featured image credit: Ma Ti on Unsplash.com. Permission from Greenpeace for use of image included in text.