Government in the dock

Morgan Trowland goes on trial today at Basildon Crown Court, charged with causing a Public Nuisance after scaling the QE2 bridge to demand no new oil and gas. In this essay, he shows how the government should be prosecuted under exactly the same charge he faces. It’s a prophetic essay in which we can see what lies ahead for the government criminals whose time is running out.

Can you recall a moment when you suddenly saw something new and surprising in a picture which you have stared at many times? I had that delightful experience last night; everything had been right in front of my face, yet only on the 23rd viewing did it resolve into a new pattern where everything flipped. 

Thankfully I’ve got plenty of time to contemplate these things; I’m in prison awaiting trial for climbing the QE2 Bridge over a UK motorway and hanging a banner which said: “Just Stop Oil”. The connection which I noticed is between the recently signed law which I’m charged under and my reasons for climbing the bridge — between the harm which we were helping to prevent, and in this informal essay, the injustice we were seeking to redress. I’ll explain the connection which revealed itself last night and how it has turned things upside down. Finally, I’ll explore why magical and unexpected gifts like this have popped up, because, what the hell, I’ve got time. 🙂

I was writing my statement explaining why I did the bridge action. One of the kernels of my argument is that disruptive civil disobedience is the only option for a sector of society which has no legal channel to seek redress for a harm which they are suffering. For example, many people in Pakistan have recently suffered in extreme heat and from extreme flooding, with thousands dying. The IPCC has stated definitively that climate change has already increased these harms and that every increment of warming will increase the harm further. In the UK private companies are permitted, by the law of the land, to extract and burn large volumes of oil and gas, an activity which will certainly cause an increment of warming. In fact, once a company is given one of those licences, it becomes a legal obligation to extract the maximum which is economically feasible. So an activity by people in the UK is causing harm to people in Pakistan. This activity is mandated by law. The people harmed can seek no redress from Pakistan’s justice system because the activity occurs in the UK, where Pakistan’s courts have no jurisdiction. Could the people harmed seek redress from the UK justice system? Presently, no law is enforced by UK courts to stop people burning oil and consequently causing widespread harm. Could the suffering people in Pakistan hold the UK Government to account for this failure to regulate a harmful activity? No, they cannot vote in UK elections. But what if the necessary law already existed in the UK? What if I’ve been staring it in the face for the last two months?

I’ll paraphrase Section 78 of my old mate, the PCSC Act 2022 for the situation described above. You can read the original act to judge whether my phrasing is reasonable. I find that this translation is necessary because legislation is written in a very precise way to apply to a huge range of situations, and it has to be written this way, but all the possibilities it contains cloud the mind and make it difficult to examine one particular situation. It aids my understanding to rewrite it in plain English, keeping only the elements which are relevant to the situation which I’m considering.

A person commits an offence if

The person does an act and

The person’s act causes serious harm

to a section of the public

and the person is reckless as to

whether it will have such a consequence.

Serious harm means death, personal injury or disease,

loss of or damage to property,

or serious distress, serious annoyance,

serious inconvenience

or serious loss of amenity.

It is a defence for the person

to prove that they had a

reasonable excuse for the act.

Next, let’s break each part down for our situation.

the person does an act

A Government minister issues a licence, which is effectively an order for oil to be extracted and sold; inevitably the majority will be burned, emitting greenhouse gases which heat the world. Some employees of various private companies carry out the physical actions involved in moving the oil but they have no agency; they must follow instructions or quit. The directors of the oil companies give the instructions but they are bound by the terms of their licence to extract the maximum or sell on their licence to someone who will. It does appear that the only person who exercises true agency in this pyramid is the minister, although everyone who participates will know what they have done, even if they were just following instructions.

This act has a consequence: ‘Estimated anthropomorphic global warming is currently increasing at 0.2 degrees c [likely between 0.1 and 0.3] per decade. (high confidence).’ (IPCC report, 2018)

and the person’s act causes serious harm

From the IPCC B.1:

“Human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability…. (high confidence)”

to a section of the public

From the IPCC B.2:

“3.3 to 3.6 billion people live in contexts that are highly vulnerable to climate change (high confidence)”. 

If UK law does not consider those 3.3 billion to be “the Public” because they live beyond the White Cliffs then consider what happened in England in July 2022: hundreds of simultaneous fires were sparked in record heat and drought, the fire service was overwhelmed and only mercifully light winds saved us from a fire storm. The IPCC has observed this:

B.1.1 “Observed increases in areas burned by wildfires have been attributed to human-induced climate change in some regions (medium to high confidence).”

and the person is reckless as to whether it will have such a consequence

It is reckless to act with a lack of knowledge, and without first taking steps to find out what the consequences may be. What successive Government ministers have done is more than reckless. They’ve known since the 1970s what the consequence of this act is; they’ve been aware of scientific evidence of the general consequence: global heating. In 2022, the IPCCs scientific evidence of the detailed consequences runs into thousands of pages comprehensively describing all consequences of the act. When a person acts with full knowledge of the consequence then that consequence is inseparable from their intent. Every mob boss and warlord knows this; the worst crimes are rarely explicitly ordered. That’s why article 30.2(b) of the Rome Statute of the International Criminal Court specifies this type as ‘oblique intent’. 

serious harm means: death

IPCC B.1.1:

“These [impacts] include increased heat-related human mortality (medium confidence)”.

IPCC B.1.4:

“In all regions, extreme heat events have resulted in human mortality and morbidity (very high confidence)”.

personal injury

IPCC B.1.4:

“Climate change has adversely affected the physical health of people globally (very high confidence)”.

or disease,

IPCC B.1.4:

“The occurrence of climate-related food-born and water-borne diseases has increased (very high confidence). The incidence of vector-borne diseases has increased from range expansion and/or increased reproduction of disease vectors (high confidence). Animal and human diseases, including zoonoses, are emerging in new areas (high confidence).”

loss of, or damage to property

IPCC B.1.6:

“Overall adverse economic impacts attributable to climate change, including slow-onset and extreme weather events have been increasingly identified. (medium confidence)…. Individual livelihoods have been affected through changes in agricultural productivity, impacts on human health and food security, destruction of homes and infrastructure, and loss of property and income, with adverse effects on gender and social equity (high confidence).”

Serious distress

IPCC B.1.4:

“In assessed regions, some mental health challenges are associated with increasing temperatures (high confidence) trauma from weather and climate extreme extends events, (very high confidence)”

Serious annoyance

IPCC B.1.3:

“Increasing weather and climate events have exposed millions to acute food insecurity… (high confidence)”

Serious inconvenience

IPCC B.1.7:

“Climate and weather extremes are increasingly driving displacement of people from their homes in all regions, (high confidence)

Or serious loss of amenity

IPCC B.1.1:

“These impacts include… warm-water, coral bleaching and mortality, (high confidence) and increased drought related tree mortality (high confidence).”

It is a defence for the person to prove that they had a reasonable excuse for the act

This sentence seems to have been added to reverse the burden of proof which usually falls upon the prosecution in a criminal trial. So in our situation, the minister must prove that they have an excuse for all the many and varied harms which I’ve listed. They must prove that their excuse is reasonable. If the minister fails to prove either of these points in their defence or omits to mention them at all, then the prosecution need say nothing.

For now, forget historical actions and focus on actions taken by the minister in 2022, taken in full knowledge of the litany of harms scientifically observed to have already occurred as consequences of extracting and burning oil. All the impacts which I’ve listed thus far are only the beginning, they are the consequences of acts taken decades, a century into the past. The minister’s actions in 2022 will have more severe consequences in the near term, 2022–2040, and also in the mid to long term, 2040 to 2100, than what we’ve seen at present. The adverse impacts escalate with every increment of global warming (IPCC B.4). Their action in 2022 is certain to cause an increment to global warming. When expensive lawyers predictably attempt to cast a fog of uncertainty between the action, the burning, and each specific instance of serious harm, they will point to the time lag between action and effect as well as other issues to create doubt. Presciently the drafters of the PCSC Act saw this escape route and cut it off with a stroke of their legislative pen. To simplify it I left out one clause: it is also an offence to “create a risk of serious harm”. The harm doesn’t even need to occur; creating a credible possibility of harm is an offence. The physical reality is that the minister’s action begins to increase the risk of harm on the day of the burning and that risk increases every day after that, moreover, the risk increases everywhere on Earth and as the IPCC has observed the risks have already manifested into innumerable real harms to people and Nature. It seems that some very expensive lawyers will be needed.

The formal and scientifically justifiable language of the IPCC strips away the horror of what real people will face, and are already facing in many regions. I’m sure the authors understand this and that’s why they include statements such as B.4.7 about long-term impact:

“At higher global warming levels, impacts of weather and climate extremes, particularly drought, by increasing vulnerability will increasingly affect violent intrastate conflict (medium confidence).”

Reading between the lines: as the situation becomes desperate people will fight each other in civil wars; there has been a prelude to this in Syria. It means the worst human cruelty is unleashed. There can be no reasonable excuse for contributing to the cause of these conditions, nor even creating the risk of them.

As the law says, it is not for the prosecution to prove, beyond a reasonable doubt, that there is no excuse; it is for the minister to prove that they have at least one reasonable excuse. I can only conjecture what they would offer: that oil is the most convenient way for their customers to power activities which they wanted or needed to do: plough fields, fly private jets, heat hospitals, heat swimming pools, drive ambulances, light shopping malls. To me, it seems unreasonable to sacrifice the lives of people far away, and in the future, for the sake of immediate convenience (though I’m not exactly impartial). 

Thankfully we’re not hostage to fickle opinions in the UK; we have the common law defence of necessity. You have a defence for an act, which would otherwise be a crime, if you acted out of necessity to prevent greater harm. The caveat is that the greater harm must be unavoidable by other legal means and the causal link between your action and the prevention must be clear and direct. You’ll see that half of my examples fall away; no imminent harm is prevented by supplying fuel for swimming pools, private jets or malls. The other half of my examples are critical activities, the cessation of which would cause harm. Would withholding new licences unavoidably cause these crucial activities to cease imminently? No, the UK has substantial reserves of oil and gas, around eight to ten years’ worth. The potential harm would not be imminent and could be avoided by planning alternatives.  In 2022 we have myriad practical alternatives to meet each other’s needs. The harm can be avoided by benign alternatives. Necessity does not apply. 

So the minister cannot prove that they are acting to prevent an imminent harm. They cannot use the defence of necessity; they have no reasonable excuse for the harm their action is causing people around the world. In my layperson’s assessment, the minister is guilty of an offence under section 78 of the PCSC Act.

The serendipity is astounding, or is it the synchronicity? It is some kind of magic that this law arrives in 2022 just as the need to cease the harm heats to an unbearable temperature. It’s uncanny that the law fits like a glove on the actions of the Government minister, which transgress not just one or two prohibitions in the law, but every last prohibition it contains. Some didn’t even fit into this essay; there is also a prohibition of obstructing the public in the exercise or enjoyment of any right usually exercised or even creating a risk of that obstruction. The people of disappearing small island states, among many others, would bring a serious case to answer on this clause. Most bizarrely, this law was brought to us with an intention diametrically opposed to that which I have laid out in this essay. The Conservative ministers who drafted it attempted to repress the upwelling of ordinary people in Extinction Rebellion who sought to urgently hold the government to account for failing to protect all of us from climate and ecological collapse.

In moments like this, I can’t help but feel we are walking in some enchanted footsteps, like Sleeping Beauty up the steps of the forbidden tower to inevitably prick her finger on the one spindle left in the realm; the King’s paranoid dictates are doomed to fail and actually ensure the one thing they are designed to prevent. Extinction Rebellion was fading as a mass movement in the UK after the second rebellion in late 2019. I was confused at the time by the government’s drive to create an oppressive new law which seemed practically unnecessary: soft power had already done the job, media messaging combined with deep cultural conditioning of fear, separation and powerlessness had diffused the momentum and set in an inexorable decline, a flight of spirit. Laws were irrelevant; plenty of laws existed to control declining waves of civil disobedience. Clearly, some paranoia gripped government ministers, or bad intelligence, and compelled them to draft this prophetic law. Ironically by overreaching their power to protect their allies invested in the extractive economy, they inadvertently created the fateful spindle which will put their oily loved one to sleep, hopefully forever if there’s any magic in the world (and there probably isn’t ☹️).

If there are any fairy godmothers out there in the police or Crown Prosecution Service who are considering early retirement and want to go out with a bang while doing something their grandchildren will be proud of, then you’re welcome to my case notes. I haven’t been the only one on the case; on 20th Nov 2019, 39 concerned citizens each handed in a dossier of evidence to various police stations across the country. This dossier contained evidence of unlawful killings similar to what I have described in this essay. The date was chosen as the anniversary of the Nuremberg tribunal. 

Last summer I was remanded in prison for two weeks on suspicion of breaching the PCSC Act, and on far less evidence than you have on the Government minister. So give it a whirl; send them to HMP Chelmsford, F wing and Marcus and I will take them under our wing. No doubt their fancy lawyers will dig them out before long, but what a statement it would make. We can but dream.

BumblebeeUnbarred – Medium

Read writing from BumblebeeUnbarred on Medium. Climate Activist, Bridge Engineer, Bamboo Fancier. Every day, BumblebeeUnbarred and thousands of other voices read, write, and share important stories on Medium.

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