Judiciary has a place in climate protection

Donnachadh McCarthy, The Independent

The ethical imperative for our justice system should be to protect the climate and climate protectors, and prosecute the extremist fossil fuel corporations. That is not how it is operating today.

Last week was tough. As an EU migrant, on Brexit Day I ceased to be a citizen of the country I have loved living in since 1986. On Monday, a court declared I was a criminal for peacefully protesting with Extinction Rebellion (XR) over our government’s criminal lack of action on the climate and ecological emergencies. The emotional impact of this double whammy, of having my official identity changed from a citizen with good character to a criminal migrant alien, was profound.

The climate crisis dwarfs Brexit in its danger to Britain and the natural world, which is why last year, on Easter Sunday, I joined the XR protest on Waterloo Bridge. The campaign group transformed it into a beautiful traffic-free garden bridge, with trees, a music stage, even a temporary skateboard ramp.  It was a lovely sunny day with a peaceful carnival atmosphere, with the occasional rally explaining the depth of the ecological and climate emergencies.

Then in an overwhelming display of brute force, the Metropolitan Police command flooded the bridge with hundreds of uniformed officers and the mood on the bridge changed to one of quiet dignified purpose. Hundreds of us who had volunteered to be arrested if necessary, sat down on what the climate protectors called “the peace line”. We sang peace songs and hymns to nature and then news arrived that Polly Higgins, the international advocate for the law of ecocide, had died after a short illness.

Hearing of Polly’s death, who I counted as a personal friend, as I sat on the ground surrounded by hundreds of police, was deeply moving. I stood up, with tears in my heart, gave a eulogy to the crowd of seated arrest-volunteers within the police cordon. We dedicated our arrests to her memory and cause. I then sat down and meditated, awaited my arrest.

When I was taken to the end of Waterloo Bridge, it was packed with police wagons being filled with handcuffed earth protectors. My arresting officer said he had never seen such a peaceful crowd of arrestees. Police at the station expressed their support for the rebellion and treated us kindly. My arrest was one of more than 3,000 peaceful XR arrests in London in the last year.

As I did not have the funds for a barrister, I acted as my own defence. That process gave me the opportunity to make my case in my own words. The judge and prosecution both accepted the reality of the climate emergency but said it was not the climate crisis that faced a criminal trial that day. I agreed, but argued that what was on trial was the utter failure of our government to take the necessary actions to protect its population and what is left of our natural environment.

I told the court that – in a crisis that Lord Stern described as worse than WW1, WW2 and the Great Recession put together – our government was colluding with Britain’s enemies. I argued for the legal defence of necessity; that in this time of crisis, we needed the judiciary to join our rebellion. This was a matter of ethics and morality, as well as law.

In the run up to the Third Reich, judges overseeing the legal persecution of Jews, gay people, gypsies, disabled people and others faced a terrible moral and ethical dilemma. Our judges, prosecutors and police now face a moral choice, just like that faced by those during the rise of German fascism. Should they collude with the state protecting the genocidal fossil fuel corporations and banks or defend the people, climate and country they swore to protect?

Some judges have already broken ranks and sided with climate protectors. A US judge refused to convict activists trying to block an oil pipeline. A French judge refused to convict climate activists who stole a town hall photograph of France’s president.  A UK jury found Roger Hallam, one of the founders of Extinction Rebellion, and David Durant not guilty of criminal damage for chalking the walls at King’s College. And their Supreme Court found the Dutch government guilty of failing to protect the human rights to life and home, by failing to take adequate climate action.

It is time for all our judges to stop colluding with the state oppression of those trying to protect Britain’s shores from literally being destroyed.

This judicial climate rebellion does not, of course, mean the collapse in the rule of law, as all other laws would still be upheld. As a “criminal” and an “alien”, I know I shall continue to stand for climate justice. The existential question is – will they?