Is the planet our neighbour, in law?

7 January 2011 by

It must be something in the air. On the day the “Ratcliffe 20” were spared imprisonment for their planned attack on a power station, the Guardian published environmental lawyer Polly Higgins’ call for a new crime of ecocide and the fringe movement Campaign for Real Farming – rival to the mainstream Oxford Farming Conference – were sewing the seeds for resistance to ecologically damaging agricultural laws and practices.

The widespread perception is that the law and its custodians can no longer be trusted to safeguard the environment, or, to put it in the language of rights, that the protection that flows from current forms of rights entitlement is not only insufficient for, but positively damaging to the interests of the natural world.

Polly Higgins argues that government-led mass destruction of ecosystems should be declared an international crime against peace, alongside genocide and crimes against humanity, which  could be tried at the International Criminal Court. It is necessary, in her view, to create a duty of care to the planet, “a pre-emptive obligation” to not harm the world about us, in order to prevent the resource wars which are arguably a more certain threat to human security than the genocides of the past. Referring in her article to the Ratcliffe 20 campaign, Higgins makes the case for this kind of direct action since

climate campaigners do not have the support of the judiciary in preventing the corporate ecocide that is daily occurring under our very noses….our justice system is unable to protect our greater interests when faced with the superior silent right of corporations to cause injury to persons and planet. Those who stand up and speak out are thereby treated as criminals.

Laudable though these objectives are, not everybody is comfortable with the idea of a judiciary stealthily endorsing its own prejudices, on the environment as much as any other politically sensitive issue . The Ratcliffe case is a good example. A somewhat aerated report in the local press complains that

A GROUP of environmental activists, who were convicted of conspiracy to commit aggravated trespass after they planned to shut down Ratcliffe on Soar power station, have walked free from court.
The combined police and court bill is expected to have costs the taxpayer £700,000.

– a reflection of local indignation that may not have been helped by Teare J’s comment to the defendants that he had “no doubt” that each of them had

acted with the highest possible motives. And that is an extremely important consideration.

Whilst Eleanor Coombs argues in her guest post that the consistent failure of climate activists’ defences of necessity and lawful excuse reflect shortcomings in our legal system, it is ultimately for the electorate, not for sympathetic judges and juries, to change the law in order to address this injustice.  To take another example – discussed by Adam Wagner in an earlier post -whatever view one takes of the Gaza war, it is questionable whether the activists who caused £180,000 damage to an arms factory should have successfully deployed the defence of lawful excuse, or indeed whether the judge should have made the observations that he did when acquitting them.

All forms of direct action, civil disobedience, non-violent protest will kindle this debate and it is in the embers of such controversy that new laws are forged.  This  does not mean that defiance of the law is morally neutral. Damaging a taxpayer-funded power station is one thing; feeding kitchen scraps to pigs is another. But that is a matter for a different post.

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  1. Ben Samuel says:

    Alan Simpson MP said as much as the conclusion of this
    article in his address to the local Labour Party. I quoted him in
    an article in 2008 talking about the climate case “Climate Change
    on Trial” but in fact he was refering to the real threat to human
    rights: The B-52 aircraft bound for war half way around the world.
    The direct action now is inevitably moving towards defending our
    social housing, and the principle of progressive taxation made such
    a mockery of by the tax exiles of Monaco.

  2. Melanie Strickland says:

    It is true that in our constitution it is not for the
    judiciary to change the law. Parliament makes laws. The electorate
    have some limited influence on which laws are passed as they can
    elect MPs whose policies they support. Of course in reality MPs may
    change their policies after they are elected… so the system is
    imperfect. Do you think the planet is our neighbour in law? And
    would a court acknowledging that the planet is our neighbour in law
    be a radical change to the law, or a mere evolution in law? In 1991
    law lords ruled in the R v R case that marital rape was unlawful.
    They declared that common law “was capable of evolving in light of
    changing social, economic and cultural developments.” With
    ecosystems under threat or collapsing everywhere – perhaps the
    judiciary will be more open to accepting that the planet is our
    neighbour. On another note – was the hugely expensive and highly
    intrusive police operation and CPS prosecution an appropriate use
    of public money?!

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