Why shouldn’t EDF protect its gas plants?

The news that EDF Energy has decided to exercise its right to sue trespassers on its new gas plant for damages of £5million has elicited shrill protests from pundits and from the pressure group Greenpeace.

One observer claims that the lawsuit is vindictive, petty, anti-democratic, and ‘an assault on British political life’. British political life must be practically moribund, if a single lawsuit could really be so described. It’s surprising that the act of vindicating your legal rights in court is deemed anti-democratic: this suggests a certain disdain for the constitutional right of access to the courts.

Greenpeace claims the lawsuit is an attack on direct action. Well, yes: unlawful direct action, that is. Greenpeace’s attempt to compare EDF’s power-generation business to illegal rainforest timber imports or pirate fishing is inaccurate. EDF pays UK taxes and is running a legal operation, which it is entitled to protect from interruptions by officious third parties with axes to grind. This is no different from Huntingdon Life Sciences’ right to protect itself from the excesses of anti-vivisectionists.

Indeed, the idea that these protesters should be immune from legal action as self-appointed defenders of the environment, as if they were diplomats, is absurd when you stop to think about it.

Let’s put the hysterics to one side and remind ourselves of what actually happened. Sixteen protesters, who objected to the opening of new gas stations, invaded EDF’s plant at West Burton in Nottinghamshire last October. They occupied two chimneys illegally for seven days, shutting down production. They loftily claim to be defending the ‘global commons’ from ‘sustained attack by polluting fossil fuel companies’. This position is really a form of noble cause corruption, where the end is said to justify the means.

By contrast, EDF says lives were put at risk, the construction of the plant disrupted and substantial losses incurred.

In law, what these protesters did is called trespass. The right to sue in trespass is an ancient common-law right. For centuries, people in England have used the courts to protect their land from unwanted incursions by others. Cattle raids, land grabs and gang violence were unfortunately common, as medieval court records demonstrate. It’s a time-honoured tradition that landowners don’t let trespassers walk all over them; they head off to court.

Unlike the emasculated version of rights bestowed by the Human Rights Act 1998, the right to throw unwelcome visitors off your land is what Oscar Wilde once called ‘articulated might’. If anything, EDF seems to have been very restrained in its initial reaction to these protesters, given that it could have used reasonable force to evict them.

In English law, trespass is actionable as of right – that is, you don’t need to prove that you have suffered any damage to sue. You also don’t have to justify the exercise of your right to anyone. The point of homegrown rights like these is that their exercise is not dependent on others’ approval. You can be an obnoxious landowner, and your action might strike others as unreasonable, or even immoral, but that’s irrelevant. Courts are courts of law, not morals.

Imagine if a bunch of Jehovah’s Witnesses blockaded the operating theatres of an NHS hospital for a week, because they were opposed to blood transfusions, and then complained about being sued. They would be decried as irresponsible. In reality, Jehovah’s Witnesses, who are law-abiding, would never stoop to such methods.

The protesters claim that EDF’s court case is bullying and intimidation, and an attempt to stop them using direct action. Many would see this as cant. The European Convention on Human Rights expressly prohibits the abuse of rights, by Article 17. So any attempt to allege that the protesters have a right to freedom of expression, which EDF is somehow infringing by suing them for trespass in the civil courts, would be highly likely to fail. One can protest lawfully without violating social norms.

Indeed, the protesters face a bigger problem. Twenty-one activists pleaded guilty to aggravated trespass in Mansfield Magistrates’ Court on 20 February, and were duly convicted. Sentencing has been adjourned to later this month.

The offence of aggravated trespass was introduced by the Criminal Justice and Public Order Act 1994, as amended by the Anti-Social Behaviour Act 2003. The offence is committed if a person trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect:

a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity;
b) of obstructing that activity; or
c) of disrupting that activity.

It’s standard in a civil claim, which is founded on a criminal act, to rely on the conviction. So, if the protesters think they are going to be able to mount some kind of public-interest defence, they are mistaken: they have admitted serious offences, and their current problems are self-inflicted. They do not deserve sympathy.

Barbara Hewson is a barrister at Hardwicke in London.