Out-Law Analysis 2 min. read

Energy firms increasingly successful at countering protestor disruption

Energy Disputes OutLaw Banner 2023

In recent years there has been a significant increase in direct action carried out by climate change and environmental protestors in the UK – but energy companies are not powerless to prevent it.

Amid a similar rise in activism in various countries like the Germany, Sweden, Denmark, Austria, France, and Italy, some protest groups in the UK have adopted highly disruptive tactics such as road blockages and vandalism. To justify the lawfulness of their actions, climate change protestors rely heavily on Articles 10 and 11 of the European Convention on Human Rights (ECHR), which enshrine the rights of freedom of expression and freedom of assembly respectively.

In 2021, the Supreme Court handed down a landmark ruling concerning the balance between disruption caused by protestors and their Article 10 and 11 rights. The Court held unanimously that, even when protestors deliberately obstruct the activities of other people, criminal prosecution is not automatically necessary and proportionate when balanced against protestors’ Article 10 and 11 rights.

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The court said this was still true even in cases where the effect of the disruption was not minimal, adding that an assessment of facts was required in each individual case to determine whether prosecutions are necessary in a democratic society for the purposes of Articles 10 and 11. Protesters believe the Supreme Court judgment has given them the ‘green light’ to conduct obstructive activities which cause more than minimal disruption and inconvenience.

However, many firms that have been the target of protests are taking successful legal action to prevent further disruption. For example, the High-Speed Rail 2 (HS2) project has previously obtained a number of injunctions against protests, and is understood to be seeking a route-wide injunction against similar activity.

The Highways Agency and Transport for London have both also recently obtained injunctions stopping activists from blocking motorways and major junctions. In addition, Shell has obtained injunctions to prevent climate change protestors from blockading and disrupting activities at two of their oil terminals as well as at all of their filling stations in England and Wales. 

Pinsent Masons has also successfully obtained an injunction on behalf of Balfour Beatty, who were contracted to carry out works on a section of the HS2 high speed rail link in Staffordshire.  The injunction prevents anti-HS2 activists from blockading the entrance to a compound run by the infrastructure firm.

Protestors had set up a camp near to the site and frequently stopped vehicles from entering and exiting the compound for up to two hours at a time. In accordance with the 2021 Supreme Court judgment, police would generally not remove the protestors because officers believed there was a lawful excuse for them to disrupt Balfour Beatty's activities.

But granting the request for an injunction, the judge made clear that protestors’ reliance on the Supreme Court ruling as a template for what is, and what is not, lawful protest was misplaced.  Unlike in that case, which concerned a one-off demonstration, there had been a concerted series of actions designed to disrupt the Balfour Beatty’s activities.

The judge also found that the protestors’ activities were only related to the communication of views and ideas – the core freedoms which Articles 10 and 11 sought to protect – to a very limited extent. In addition, although the Supreme Court case concerned interference with the protestors’ ECHR rights in the form of criminal liability, Balfour Beatty’s claim concerned injunctive relief pending trial in a civil action, which the judge felt was, arguably, a less intrusive form of interference.

Ultimately, the judge was satisfied that the protestors had committed the torts of private and public nuisance, and that the torts would continue unless an injunction was granted. The success of this action, and others like it, demonstrate that the 2021 Supreme Court ruling does not allow unfettered protesting activity – despite what climate change protestors might believe.

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