HS2 Court Injunction Undermines Democracy
 
Today, 26th May 2022, HS2 are in the High Court seeking a route-wide injunction, which will effectively criminalise peaceful protest and remove any possibility of independent oversight of a project which has been beset by allegations of wildlife crimes, violent behaviour by staff, and of polluting London’s drinking water.

The court case marks the next step in the Conservative government’s ongoing war against peaceful protest. It undermines democracy and is a serious attack on civil liberties.

This morning, the 16 named defendants to HS2’s attempted route wide injunction were barred from access to their own 3-day trial, which started at Birmingham County Court today.

Members of the public who tried to attend and bear witness to proceedings have likewise been denied access to the court. With apparently no journalists present either, the hearing, which may grant HS2 an unprecedented injunction covering a whopping 165-mile corridor of England, and in places will stretch wider than Wembley Stadium, is effectively taking place in camera, reminiscent of the notorious secret trials of old.

In a similarly unprecedented attack upon democracy and the right to protest, if granted the injunction will criminalise not just protest, but all public presence anywhere along the proposed route of HS2 backed up with the threat of imprisonment.

This injunction will threaten anyone who, knowingly or unknowingly, steps foot on HS2 land, stops briefly in any of their gateways, walks along any road that crosses their land, or voices discontent about the project with arrest, imprisonment, seizure of assets and extortionate fines.

This will not only prevent otherwise entirely lawful protest, but even the monitoring of HS2 activities by conservation groups and biodiversity charities, already hugely concerned about the multitude of wildlife crimes committed by HS2, many of which have been ruled unlawful by the courts.

It will also set a terrifying precedent in terms of the scale of geographic area which may be covered by an injunction, and used to criminalise lawful democratic protest in the future.

Beyond protesters, it risks criminalising locals, ramblers, and dog walkers who may unknowingly cross into injuncted land. It is a Kafka-esque scenario, in which “persons unknown” could face imprisonment for unwittingly breaking a court order, which they did not know existed, could not know the implications of, and have no idea that they were one of the “persons unknown” targeted by it.

HS2 (in professionally written press releases paid for with our taxes) often claims to be a “good neighbour” and a positive project for the nation. However, if this injunction is passed, people will find the footpaths around them, the access to their own homes and even their own back gardens to be injuncted – without consultation and without being given the opportunity to oppose it.

It is a clear intimidation tactic, attempting to silence anyone who dares to speak out against HS2, while causing yet more disruption and cruelty to local residents. As usual with HS2, once you go beyond the PR, there is nothing neighbourly or positive about it.

This is the latest in a worrying trend of injunctions being used to prevent protest. The High Court ruled the Metropolitan Police’s 2019 London-wide ban on Extinction Rebellion protests unlawful. The Government then used injunctions, covering areas as great as the whole of the M25, to prohibit Insulate Britain and Just Stop Oil protests. But this new proposed injunction would utterly dwarf anything previously seen, marking a frightening day for the erosion of democracy in this country.

Why Now?

This desperate attempt to outlaw peaceful protest follows the acquittal of four protesters in March at High Wycombe Magistrates Court. District Judge Pilling concluded that there was a real risk that breaches of wildlife protection legislation may have occurred, and emphasised her concerns that she was “not impressed by the lack of detail” provided by HS2’s ecologists.

Essentially, the District Judge acknowledged that HS2 were failing in their duty to ensure their work was carried out legally and no wildlife crimes were committed. Therefore, the presence of protesters to witness and record HS2’s work was justified in order to prevent or to witness and report wildlife crimes taking place.

Adam, an HS2 Rebellion spokesperson said, “HS2’s response to this ruling should have been to improve their working procedures to ensure proper wildlife surveys are carried out, our natural habitat is protected in line with legislation, and laws are followed. 

“Instead, HS2 have chosen to carry on regardless, but are now trying to prevent anyone from witnessing their ongoing crimes by applying for this extreme injunction. This is indicative of what we have seen from both HS2 over the past few years and also from this government in recent months. It seems they believe the law does not apply to them.

“Right now, we are in a crucial moment where environmental collapse is an urgent threat. This is the moment when we all need to be able to use our voices to call for change and progress. But instead, HS2 and the government are seeking to silence our voices and even blind us from witnessing the environmental destruction they are committing.

“This goes beyond just a railway line. This is a threat to the basic civil liberties of us all. Particularly coming so soon after the government’s new Policing Bill. If peaceful protest and oversight can be criminalised, what next? Could Parliament Square be injuncted? Where and how are we supposed to call for the change that we so urgently need, if all of our avenues to peacefully protest are being taken from us?”

Emotions running high in court this morning

This morning’s court case began with many of those named in the injunction, and possibly some of those “unnamed”, being unable to enter court.

The defendants were not permitted to enter court with electronic devices. This is very serious, because many defendants had their evidence on their phones and laptops. Moreover, as the bundles had been submitted electronically, it is necessary for defendants to be able to use their devices to review specific references.

In contrast, HS2’s solicitors were permitted to begin making their arguments, while using their laptops and drinking from bottles of coca-cola. But defendants and members of the public have been prevented from entering with their devices or drinks. Some defendants were searched three times by security and others were unable to enter or delayed from entering.

This has created an entirely unjust and undemocratic situation in which many defendants have been unable to follow proceedings or check their evidence bundles when HS2 make reference to a specific document or incident.

This court case was already unfair in that it involves HS2, funded to the tune of £200bn+ by the government, and their high-priced team of solicitors seeking an injunction against ordinary members of the public, who may risk losing their homes if forced to pay costs. By allowing one side to have access to their electronic devices, but preventing the other from doing so, the court has created a discriminatory two-tier situation.

After time-consuming and unnecessarily repeated security checks, the 16 defendants were finally permitted to watch the end of the day’s proceedings over a crackling and intermittent video feed, on a tiny television set, in a room set aside from the court, but were still not allowed to participate in any way.

One of the defendants, Mark Keir, comments: “We turned up at court this morning to defend the massive denial of democracy that is the proposed route-wide injunction sought by HS2 against protest. But we were denied our right to join proceedings, to hear the challenge against us, or offer a defence against it. Instead we were treated like convicted criminals, while none of the representatives from HS2 were subjected to such ignominy. The judge has already clearly pinned his colours to the mast.”

One concerned member of the public at court said, “Although the hearing has started, it has started without many of the defendants. People from all walks of life who are affected by HS2 came here today to have their voices heard. But instead they have been prevented from being able to enter the hearing to even listen, never mind to be heard!

“While defendants have been trapped outside or had to hand over electronic devices containing key evidence, HS2 have been allowed to commence making arguments – many of which are unfair or unjustified – without the defendants being present to hear them. Some people were searched three times before entry and even to leave the room to visit the toilet requires an additional search.”

HS2 Rebellion spokesperson Adam said, “Our court system is based on the idea of equality and fairness. But today’s discriminatory proceedings, much like the injunction itself, make a mockery of that idea. It does make you wonder what it is that HS2, the government and the courts are so desperate to hide, and why are they so afraid of independent oversight?

“This sort of biased and prejudiced treatment does not equate to what I thought going to court in a democratic country was supposed to feel like. Following the recent Policing Bill, this feels like another dangerous lurch towards authoritarianism.”

This landmark legal hearing for British democracy continues tomorrow.