Shell v PUs & Ireland & Laurie

Hearing dates: 22–23 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30 am on 5 th December 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

This is the judgment of the court.

To assist the parties and the public to follow the court's line of reasoning, the text is divided into 13 sections and four annexes as set out in the table below.

INTRODUCTION

Three claims are being heard together. The case overall is about whether the claimants, a number of companies in the Shell Group (“Shell”), should be granted final injunctions against Persons Unknown (“PUs”) and a number of named environmental protesters, who took direct and deliberately disruptive action against Shell during 2022. Two of these protesters, Emma Ireland and Charles Philip Laurie, appear in person and addressed the court at length, carefully explaining why they, and many other protesters, have directed protests against Shell. The protesters include supporters or affiliates of environmental campaigning and activism groups including Just Stop Oil (“JSO”), Extinction Rebellion (“XR”), Youth Climate Swarm and Scientists' Rebellion.

The protesters strongly object to Shell's involvement in the extraction, distribution, supply and sale of fossil fuels, and thus Shell's involvement in the burning of the fuels. Such incineration releases carbon dioxide and greenhouse gases into the atmosphere through the process of hydrocarbon combustion. Indeed, the whole point of the complex supply chain created by the fossil fuel industry is the supply of such fuel for burning hydrocarbons. The three claims sharply raise, perhaps for the first time in these direct action environmental protest cases, the applicability and legal relevance of the Aarhus Convention (“Aarhus”) (full title: Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters), an international convention that the United Kingdom is party to, having ratified the treaty almost 20 years ago in 2005 (analysed in detail in Section X. Aarhus Convention Analysis). In particular, Ms Ireland and Mr Laurie rely on Article 3(8) of Aarhus, which provides insofar as material:

“Each Party shall ensure that persons exercising their rights in conformity with the provisions of this Convention shall not be penalized, persecuted or harassed in any way for their involvement.”

Their joint submission is that the grant of final injunctions would be “in breach of Aarhus” and “an excessive use of the law”. More generally, the environmental protest groups in these three claims maintain that burning fossil fuel is a major contributor to the environmental emergency they wish to bring to the urgent attention of the general public and the Government. They intend to pressurise the Government into ending investment in fossil fuels and halting the issuing of licences and consents for their exploration, development and production. In pursuit of this aim, from the spring until the autumn of 2022, environmental groups, including JSO, directed protests at the fossil fuel industry, including Shell. Their tactics have been variable and have explored new ways to manifest their rights under the European Convention on Human Rights (“ECHR”) to freedom of expression and assembly and association. Some people support them; others share their concerns about climate change and the environment but disapprove of their protest methods. In this it is important to remind oneself of the words of Sedley LJ in Redmond-Bate v DPP [2000] HRLR 249 at para 20:

“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence. Freedom only to speak inoffensively is not worth having.”

Shell maintains that the acts of the protesters have gone beyond mere irritation, but damage or create the strong probability of damaging Shell's substantive rights under the civil law. Various of the campaign groups have explicitly called for acts of “civil disobedience”, a term with a long and complex history. It was defined by Rawls in his landmark A Theory of Justice (1971) as a

“public, nonviolent, conscientious yet political act contrary to law usually done with the aim of bringing about a change in the law or policies of the government.” (p.364)

A key issue the court has been invited to examine by the defendants is whether peaceful acts contrary to the law and the rights of others under the civil law are protected by the Aarhus Convention, and if so, in what way. Previously in these claims, when Shell sought to protect its commercial interests from what it said was unlawful protest activity, various judges of this court granted interim injunctions against a shifting array of defendants to prohibit direct action protest which targeted three different parts of Shell's broad business activities:

(1) “ Haven”: Shell's Haven Oil Refinery in Stanford-le-Hope, Essex, a substantial fuel storage and distribution facility ( Claim 1);

(2) “ Tower”: Shell Centre Tower on London's South Bank, an administrative centre for Shell's UK operations ( Claim 2);

(3) “ Petrol stations”: petrol stations which are retail customers of Shell, buying Shell's fuel and selling it on to the public and commercial customers via fuel pumps on petrol station forecourts ( Claim 3).

This judgment must be read in conjunction with the previous judgments of this court. The relevant judgments are tabulated below for convenience and when mentioned will be referred to by the name of the judge (for example, “the Hill judgment” or “Johnson J at para XX”). In all of them, Shell succeeded in obtaining or renewing interim injunctions.

Therefore, these are three separate but connected claims that have been managed together for administrative convenience and efficiency. I come to this case completely independently and have considered the claims afresh. Having received submissions for a day and a half, I reserved judgment and extended the interim injunctions pending the handing down of the court's decision. This is that decision.

Before turning to the specific details of the claims, there are four immediate contexts to the applications for final injunctive relief.

§II. FOUR CONTEXTS

Context 1: The burning of fossil fuels

It is a significant understatement to say that climate change and the existence or not of an environmental emergency are controversial, highly contested issues. There has been a mass of litigation in both civil and criminal courts as a result of this vital public debate. The most recent expression in the courts comes from our highest court, the...