Injunctions against Protest: Could the Aarhus Convention offer Shell-ter to protestors?

In late 2024 the Shell UK Limited, Shell UK Oil Products Limited and Shell International Petroleum Company Limited returned to court to seek final injunctions against unlawful protest activity which had caused disruption to its operational sites.  

During the course of that hearing the court was asked to consider a previously untested point of law. Namely whether the provisions of the Aarhus Convention were relevant to the exercise of its discretion in deciding whether to grant an injunction - and if so in what way and to what extent.

The outcome develops judicial guidance on the balance to be struck in injunction cases between the rights of businesses and landowners in England and Wales and those of campaigners claiming rights to protest under the Human Rights Act 1998. As such, the decision will be of particular interest to anyone involved in managing disruption by protestors. It also raised a new point; the extent to which the Aarhus convention can be regarded as a consideration for the court in addition to rights arising under the Human Rights Act 1998.

The injunction application

Shell UK Limited (and the other companies) sought final injunctions to protect its operational premises from unlawful protest. In response 2 defences were filed challenging the continuation of the injunction on grounds that it breached protestors’ human rights under Articles 9, 10 and 11 of the European Convention of Human Rights (EHCR).  

The argument about Aarhus

One of the claims made by the defendants in that context was that the injunction should be refused because it breached the terms of the  Aarhus Convention which protects “environmental defenders” from “excessive” use of law (“Aarhus”).   

Notwithstanding Brexit, the UK is a signatory and party to Aarhus. It is not, however, incorporated into UK law.

Everyone was agreed that the rights conferred could not be directly applied in domestic UK law. The question which HHJ Dias was asked to decide was whether Aarhus was nonetheless relevant to the exercise of the court’s discretion under the Supreme Court Act 1981 in deciding whether to grant an injunction - and if so in what way and to what extent.

The relevant section of Aarhus was Article 6 which imposes obligations on Member States to guarantee rights of public participation in decision making and access to justice in relation to environmental matters.

This and other aspects of Aarhus are underpinned by Article 3(8) which requires every signatory state to ensure that anyone exercising rights under Aarhus should not be penalised, persecuted or harassed in any way for their involvement.

The short point for the defendants was that the terms of the injunction fell afoul of the provisions of Article 3(8).

Its relevance to the injunction application

But before Dias J could consider that issue, he first had to reach a conclusion about whether Aarhus was relevant at all.  As to that he acknowledged that the common law should not be used to incorporate otherwise unincorporated international conventions “through the back door” (A v Secretary of State for the Home Department (No 2) [2005] 1 WLR 414 (CA)).

However he also concluded that Aarhus was a relevant issue to the interpretation of substantive rights under the ECHR, particularly the rights under ECHR Articles 9, 10 and 11.  

And thus it was a relevant issue for the court to take into account when considering whether to exercise its discretion to grant an injunction.

His logic being that protest was part and parcel of “public participation” in decision-making that may have a significant effect on the environment and therefore of relevance to rights under Article 6 of the Convention.

Having reached the conclusion he then considered whether the terms of the injunction could be said to amount to an action which penalised, persecuted or harassed such that it breached Article 3 (8) of Aarhus).

He decided, in the particular case of the injunctions in these proceedings, that it did not. 

In his judgment however Dias J specifically drew a distinction between an injunction whose purpose is to prevent the actions of protestors who are deliberately flouting the law and the grant of an injunction to prohibit entirely peaceful protest. In the latter case, said Dias J, it was strongly arguable that Aarhus would be engaged and that those provisions would fall foul of Article 3(8).

Takeaways

• this decision raises a point of broader relevance to any application for an injunction involving environmental protest. Namely that the UK’s unincorporated treaty obligations under Aarhus should be taken into account by the court when considering whether to exercise its discretion to grant an injunction
• the judge could find no basis for a claim that Aarhus authorises “environmental defenders” such as the protestors to deliberately break or flout the law or materially violate the lawful rights of others. The position would be different though if an injunction could be said to try and prohibit lawful protest
• this judgement puts an additional gloss on the importance of ensuring that any injunction is very carefully drafted so that only unlawful activity is prohibited. See our October 2019 Lawbite The dangers of a wild goose chase for more information
• in his judgment Dias J also endorsed the conclusions reached by Cotter J at a previous Shell hearing that the enactment of the Public Order Act 2023 – and more generally the availability of criminal sanctions in respect of some of the protestors’ conduct – was not a reason not to grant a civil injunction. See our July 2024 LawBite on that previous decision