Extinction Rebellion: Is its protest legal?

Extinction Rebellion is back. Day five in central London and they’ve blocked off Oxford Circus, glued themselves to a giant pink table and once again pissed off most of the country. Around 200 have been arrested so far and I am sure the latest legal precedent has given them new impetus to be even more disruptive. 

This newfound confidence stems from a landmark ruling from the highest court in the land. In June, the Supreme Court decided to overturn the convictions of four activists who disrupted an arms fair at the Excel Centre in East London in 2017. At the first trial before magistrates, the prosecution needed to prove that “limited, targeted and peaceful action, which involved an obstruction of the highway, was unreasonable.” Because the protest had only lasted 90 minutes, the judge concluded that the protest was “reasonable”. This was later reversed at a higher court before the Supreme Court upheld the original decision to acquit the protestors.

Named after one of the protestors, the Ziegler judgment is often cited by Extinction Rebellion (XR) activists in order to help provide legitimacy for their cause. But the right to protest and peaceful assembly must be balanced carefully against the rights of citizens to freely go about their daily business. The scenes of some police officers standing back and letting the disruption go on unabated has not helped. But the police are not entirely to blame here. They are just trying to keep up with the latest law and court rulings – which are at best tricky to navigate and implement.  

For example, it is an offence under section 137 of the 1980 Highways Act, “if a person, without lawful authority or excuse, in any way wilfully obstructs the free passage along a highway.” Quite clear – intentionally block the road and you’ll be arrested. But a High Court ruling from 1965 argued that “lawful excuse” should include “reasonableness” – and this was cited by the Supreme Court in the Ziegler ruling. 

As daft and woke as the MET police appear – just take a look at the “hate-crime cars” adorned with ghastly rainbow stripes – they are not to blame if the law is confusing. After all, “reasonable” is just as vague and subjective as “grossly offensive” in the Communications Act and perception” in the College of Policing’s Hate Crime Operational Guidance. Tyranny loves a grey area.

Whatever XR says about the Ziegler judgment, it doesn’t allow them to block off one of the busiest cities in the world, nor stop thousands from getting on with their lives.  

XR’s justification for their increasingly extreme and disruptive behaviour is predicated on the urgency which they believe underpins their cause. This self-righteous ends/means rationality makes them feel as if they can act with impunity because they feel billions will die if we don’t act now. We all want a cleaner healthier environment but the imminent heat death of the planet is not borne out by the evidence.

The United Kingdom has decarbonised its economy faster than any other G20 country. Emissions have fallen 41 per cent since 1990. As a result, our carbon emissions are lower than at any period since the Victorian era. Globally we are responsible for just one per cent of all emissions. 

To reach net-zero by 2050 will be a logistical nightmare, involving the retrofitting of energy efficient boilers, insulation and electric heat pumps. Not to mention the monumental price tag. The Climate Change Committee estimates the cost of net-zero to be £50 billion a year from 2030. But to reach this goal in just four years – as XR demands – is just ridiculous. 

All of this is happening while the government attempts to codify coherent legislation on the right to protest through the Police, Crime, Sentencing and Courts Bill. A new offence in the Bill of “intentionally or recklessly causing public nuisance” has been introduced while plans are in place to make noise unlawful if it is “seriously harmful or oppressive.” 

They may be the most annoying middle-class protest group in recent history but they are not terrorists – as one commentator has labelled them. We have to tread carefully here because as much as a lot of us want XR to clear off, if they become a proscribed group, what of other protests that are noisy and subjectively deemed “harmful” by the state?  What’s a protest if your views can’t be heard? This needs to be taken out of the Bill. 

But if you hold a city of nine million to ransom just because you feel your cause is more important than anyone else’s, it has to be clamped down on. Criminal damage destroys property. And the state is supposed to defend the property rights of its citizens.

Once again, XR has chosen the wrong country in which to do this. China is planning to build 43 new coal-fired power plants and is currently responsible for 27 per cent of all global emissions. 

Or perhaps they could head to Afghanistan to help the Taliban, who recently announced a plan to tackle climate change.