Greening the law

Illustration by: ANDREW WHEATLEY

NI Special Feature: Greening the law

Across the world, there are more environmental regulations in force today than at any point in legal history. From oceans to mountains, micro-organisms to the largest of creatures, almost all are – in one way or another – under the jurisdiction of a regulatory framework. Yet, the planet’s environment is in a worse state than ever. Rather than a network of countries united in well-regulated environmental stewardship, we have a global Wild West of poorly formed and inadequately enforced environmental laws.

So what’s gone wrong? And, with human-induced biodiversity-loss marching on, and some estimates putting irreversible shifts in our climate at only 86 months away, what hope do legal structures offer in finding solutions to such problems?

Early developments

To understand current environmental regulation, we need first to examine how it emerged. Perhaps ironically, it was the US which led the way in incorporating the environment into law and, in so doing, created a model followed the world over.

In the early 1960s, one of the first cases in the history of US environmental law reached the courts. In an area only 50 miles from Manhattan, Consolidated Edison – the company responsible for delivering energy to New York City – sought to construct a reservoir and pumping station atop Storm King Mountain. The intention was that, at night, energy produced by the company’s other power stations be used to pump water from the Hudson River into the proposed reservoir. During the day, that water would be released to drive generators and so satisfy peaks in demand.

A coalition of local people calling themselves the Scenic Hudson Preservation Group opposed the plans, citing the detrimental effect the construction would have on one of New York State’s most important landscapes. Scenic Hudson, which rapidly grew into a highly vocal campaign group, did finally force the company to drop their plans for construction, but not before legal wranglings which dragged on from 1963 to 1981.

The case’s significance was not, however, its success in preventing the construction. Rather, it was a decision made early on in the campaign, on 29 December 1965. The Federal Power Commission, the government agency which initially approved Consolidated Edison’s plans, had done so on a purely technical basis, without examining either environmental or aesthetic concerns. Scenic Hudson’s attorney queried the validity of this decision, suggesting that such factors were key to the Commission’s public interest remit. The court sided with Scenic Hudson, stating that, as a result, ‘the Commission has failed to compile a record which is sufficient to support its decision’. Through this case, a precedent was set in which environmental concerns would need to be addressed in future large-scale developments. If they were not, the public could organize and challenge such developments.

A growing awareness of the importance of environmental preservation throughout the 1960s, and key events such as April 1970’s Earth Day – a green teach-in fronted by Democrat Senator Gaylord Nelson – led to a significant bolstering of the US public’s arsenal of environmental laws. January 1970 saw the National Environmental Policy Act (NEPA), which requires federal agencies to consider the environmental impacts of proposed large-scale projects, signed into law. A number of key pieces of environmental legislation were later brought in to cover air, water, endangered species and hazardous waste. These laws weren’t just to be followed by public bodies. In 1972, a ruling by Wisconsin Supreme Court demonstrated that the state could legitimately restrict the modification of private land if it considered that such modification would likely cause damage that contravened the wider public’s right to a clean environment.

‘Our laws are like band aids treating the symptoms and not the root causes of environmental degradation’

However, even though environmental laws and regulations were growing in number, seeds were already sown for future pitfalls. NEPA, regarded as the jewel in the crown of America’s green statutes, was soon rendered ineffective by a decision that it should be regarded as purely procedural. Put simply, this meant that environmental impacts of state projects would have to be considered, but there was no requirement to mitigate those impacts.

Though some, such as legal professor Christopher Stone [see box opposite] challenged it, the structure of environmental law meant that only that which was specifically outlined in the statute books would be declared illegal. With no definitive recognition of the idea that the destruction of the environment was inherently negative (the Constitution having been prepared long before environmental concerns were on the agenda), the law contained little scope for broadening its environmental remit.

Lawyers for the earth

In spite of its limitations, with green legislation on statute books across the world, the law has emerged as an important way by which those concerned about environmental degradation can challenge the actions of both governments and businesses to effect change. Either allied with mainstream campaigning groups, or run as practices in their own right, organizations have sprung up which look out for bad practice, taking court action when they can.

The non-profit Canadian group, Ecojustice, is one such. Formerly the Sierra Legal Defence Fund, Ecojustice has 4 offices, a team of 12 staff lawyers, and around 30,000 supporters.

It’s certainly a frustrating business. Even though governments are themselves responsible for the formulation of environmental law, it can often seem as though they regard this as the end of their responsibilities. Even when big business openly breaks the rules, as Ecojustice’s Executive Director Devon Page explains, government officials turn a blind eye. ‘That’s turned us into an environmental watchdog. One of the things we’ve been doing more and more in recent times is enforcing the law in lieu of the government.’

Recently, 500 migratory ducks died in tailings ponds – giant pools several kilometres long into which the toxic waste from tar sands oil extraction in Alberta, Canada is dumped. Ecojustice was forced to take on an enforcement role. Syncrude Canada, the company responsible for the tailings ponds, had failed to put the required preventative measures in place to discourage migratory birds from landing. So Ecojustice launched a private prosecution under the Migratory Birds Convention Act. Though they dropped the case soon after launching it, the private prosecution was a success, in Page’s eyes, as it prompted action from the state: ‘The federal and provincial governments stepped up and themselves laid the charges, which they should have done in the first instance.’

Because of the limitations of environmental law provision, organizations like Ecojustice are often required to think laterally. ‘We’ve sought to interpret laws that might not be characterized as environmental laws, as laws that can be used to protect the environment,’ Page explains. This can mean anything from defending the rights of activists demonstrating against potentially harmful developments, to making complaints against the advertising of environmentally damaging products, as they did in 2008 when Nestlé claimed that its bottled water was ‘the most environmentally responsible consumer product in the world’.

As a small organization subsisting on donations, Ecojustice must choose its fights carefully. Legal precedents are an important part of this decision-making, as Page explains. ‘In Canada, we operate under common law, so the principle is that precedents are binding. If you win a victory now, that victory stands a good chance of being preserved into the future. The outcomes of those cases can then be used by other groups.’ The organization also seeks to influence the law-making process directly, working with the authorities in the writing of legislation, in an attempt to counter the powerful lobbying from big business that occurs.

Non-human rights

‘In theory, environmental law is important,’ argues David Boyd, author of Unnatural Law, a trenchant critique of Canadian environmental law. ‘If it actually achieved the goals it sets out to fulfil – that is: protecting the air, land, and water that we’re biologically dependent on as animals – we’d all be better off. And of course the planet would be better off too.’ But, as we’ve seen, so often it doesn’t achieve those goals. Weak laws, poorly enforced, and further attenuated by intensive corporate lobbying, have little effect, but the problem runs deeper. ‘Our laws are like band aids treating the symptoms and not the root causes of environmental degradation,’ suggests Boyd.

At the forefront of thinking on environmental law is an idea which might just change that. Across the world, individuals and pressure groups are developing frameworks in which non-humans, whether individual creatures, species, or even landscapes, are afforded rights akin to those of humans. For many working in this area, like Mari Margil, Associate Director of the US-based Community Environmental Legal Defense Fund (CELDF), moving towards a rights-based agenda was the obvious next step for the legal representation of the environment.

‘Our work is very much based on past people’s movements, like the abolitionists and the suffragettes. Slaves and women were once property under law, and those campaigns made them into rights-bearing people. I think we’re in a similar situation with nature and the environment. Nature is currently under structures of law that consider it property. So, many of our federal environmental laws function under commerce clauses. We know there are major environmental laws in the US, yet our environment is in a worse shape than before they were adopted. They’ve slowed the rate of decline, but given where we are right now, with ecosystems on the brink of collapse, we need something fundamentally different.’

In 2006, events in the borough of Tamaqua – 10 square miles of eastern Pennsylvania and home to 7,000 people – changed everything. A campaign against corporations spraying sewage sludge from intensive livestock farming onto cropland was successful, and they were banned from doing so. But the new laws went further. Drafted with the help of CELDF, they stated for the first time that ecosystems would have enforceable rights against corporations, and went on to note that residents of Tamaqua could take on lawsuits that defended those rights. Within weeks, Rush Township, also in Pennsylvania, followed suit.

Then, in September 2008, under recently elected president Rafael Correa, Ecuadorians approved their new constitution. Also drafted with input from CELDF, this was the first constitution on earth which explicitly enshrined rights for nature in its wording. The chapter’s first article sets out the requirements clearly: ‘Nature or Pachamama [“Mother Earth” in indigenous Andean mythology], where life is reproduced and exists, has the right to exist, persist, maintain and regenerate its vital cycles, structure, functions and its processes in evolution.’ Environmentalists were delighted by what seemed to be evidence of a new green outlook for the country. Sadly, so far, senior government officials, including the President himself, remain wedded to destructive development. The first test of the new constitution is already in progress: a lawsuit from the Confederation of Indigenous Nationalities of Ecuador is attempting to use it to halt large-scale metal mining in the country.

Though excited by such developments, for London-based barrister Polly Higgins, a solution with a global reach is still needed. Over two years, she has developed a framework for a Universal Declaration of Planetary Rights. The concept of planetary rights is particularly important to Higgins. ‘The “rights of nature” concept is slightly smaller, it’s quite “us and them”. I was interested in the idea of how we encompass it all. We are but one species here, and if we still have an “us and them” relationship we haven’t broken the barrier. We need to see ourselves as part of a whole interconnected ecosystem.’

In November 2008 Higgins was invited to present her ideas to the United Nations, and in June 2009 she brought them to the annual forum of the Swedish international think-tank, the Tällberg Foundation. In both cases, the idea was well received. Higgins sees the outlook as positive. ‘Tällberg did me out of a job,’ she jokes. ‘All the relevant institutions, all the relevant people, were there. And they’re on board with this. The intention is to take it to the UN General Assembly.’

Looking to the future

It is clear that our current legal frameworks for environmental protection are failing us. However, things are changing. Innovative methods are getting green issues before courts across the world [see box below]. Watertight environmental laws are essential to regulate the actions of large organizations. But with powerful lobbying from big business, as global citizens we will have to work hard to encourage the law-makers to push regulation in the direction it needs to go.

Olly Zanetti is a freelance journalist specializing in environmental issues.

Branching out: should trees have standing?

Had the ideas of Christopher Stone – Professor of Law at the University of Southern California – hit the mainstream, environmental law might today be in very different shape. Beginning as a chance remark, intended to regain the attention of his students in the closing minutes of a lecture, his words became the foundation of an important legal query. What, he put to his students in 1971, if trees, and by extension other natural entities, were given legal standing?

‘Standing’ is the term which signifies permission for litigation to be pursued on your behalf. There are two key tests. First, you must be a legal ‘person’, in the way that humans, but also ships, municipalities, corporations and numerous other non-human entities are. Second, you must demonstrate that you have been sufficiently harmed or affected by the actions of whoever you are suing that you are entitled to bring a case. Because natural entities automatically fail the first test they are deemed not to have standing and cases would be dismissed.

Stone’s suggestion would have resulted in a complete change of direction for environmental litigation. Rather than legal challenges being mounted when specific environmental legislation is broken, Stone’s proposal would have allowed any example of environmental damage to be brought before the courts. Having formed the idea, Stone then searched for active cases in which he could test his proposal.

In Sierra Club v. Hickel, which ran from 1970 to 1972, the environmental pressure group was attempting to prevent the Disney corporation from building a leisure park in Mineral King valley, a protected region of California. The case was rejected, not necessarily because the courts found the Forestry Service right in having issued Disney a permit, but because they declared the Sierra Club did not have standing to pursue the case as they could not demonstrate that the construction would directly affect them adversely. ‘Perhaps the injury to the Sierra Club was tenuous,’ Stone later wrote, reflecting on the case, ‘but the injury to Mineral King – to the park itself – wasn’t.’

On those grounds, the case was appealed, and went as far as the Supreme Court. In spite of generating a great deal of interest and approval from influential legal figures, the argument that the park itself should have standing was never approved by the courts.

 

Challenges from unexpected angles

It’s not just organizations with a green remit which use the courts to challenge poor environmental decisions. Belying the notion that the US political system is wholly uninterested in environmental protection, city and state governments made great efforts, particularly during George W Bush’s presidency, to force regulation of greenhouse gases on to the statute books.

In September 2006, the state of California used public nuisance laws to sue the US branches of six of the country’s largest car-makers – GM, Toyota, Ford, Honda, DaimlerChrysler and Nissan – for their vehicles’ emissions of greenhouse gases, and the subsequent effect climate change has on the state. In 2004, another public nuisance case in which the attorneys general of California and numerous other states and cities were represented, was filed against five electric power companies. It alleged that these companies are the largest emitters of greenhouse gases in the US, and called on them to reduce their emissions.

Both cases were dismissed, as it was argued that under the ‘political question doctrine’ – a controversial feature unique to US law which allows courts to sidestep decisions which might be better resolved through electoral politics – the Constitution forbade them from considering the claims. The State of California disagreed: ‘[w]e believe that both courts misapplied the political question doctrine and should not have dismissed the cases. Federal courts not only have the ability to provide a forum for the states’ grievances, they have a duty to do so, particularly while Congress and the President fail to act.’ The case against the power companies is now being appealed. The case against the car manufacturers was dropped on 24 June 2009 as, under the Obama Administration, the case’s demands were brought into law.

In England, environmentalists have found other ways of getting their arguments before the courts. Six campaigners who climbed the chimney at Kent’s Kingsnorth coal power station, and began writing ‘Gordon Bin It’ down its side in reference to the need for Prime Minister Gordon Brown to change the Government’s energy policy, were acquitted of criminal damage in September 2008. The six claimed ‘lawful excuse’, justifying their actions by the likely effects of human-induced climate change. They called on influential witnesses, including NASA climate scientist Professor James Hansen and chair of The Ecologist magazine Zac Goldsmith. In 2000, a similar defence was used successfully by anti-GM activists who destroyed crops. Such acquittals based on lawful excuse looked likely to set a significant precedent in direct action cases.

Except it wasn’t to be. In December 2008 it was revealed that the attorney general was considering referring to the court of appeal any future cases that used the defence of lawful excuse to justify direct action. It appeared to be an attempt to undermine its use in such circumstances. Although this never happened, when activists who stopped a train delivering coal to North Yorkshire’s Drax power station were recently taken to court, the judge refused to allow the defence of ‘necessity’ – which permits breaking the law due to the overwhelming urgency of a situation – supported by climate change-related evidence. No matter that climate change was, as defendant Louise Hemmerman stated, ‘the sole reason for doing what we did’. ‘The court must determine whether the defence is available and in this case it is not,’ the judge stated in a pre-trial ruling. ‘The defendants were in no immediate danger and nor was anyone else.’ To allow such evidence, the judge said, would be to allow the activists ‘to hijack the trial process as surely as they hijacked the coal train.’

You are being watched

Caught on camera: a police surveillance officer captures Greek and British protesters on film at a London demonstration against police repression, December 2008.

Photo by: MARC VALLÉE

‘If you’re gonna take my picture, be careful with my nose. Get a good angle with your camera, and get my finest pose...’

Standing on a makeshift stage at the Climate Camp entrance, two women sing to the cameras that have been trained on them and other campaigners since the event began. Like Climate Camps across the world, 2008’s action in Kent, England, took place in the centre of the media’s glare. But it wasn’t a news crew these activists were singing to. Rather, the serenade was addressed to police photographers from the Forward Intelligence Team: ‘the FIT’, as they have come to be known.

The FIT’s interest extends from demonstrations to the back-room planning meetings of local activist groups. They are at the forefront of a new wave of intimidatory and disproportionate policing and surveillance practices aimed largely, it seems, at cataloguing and riling nonviolent protesters. Set up by Metropolitan Police Inspector Barry Norman and Sergeant Andy Brittan, the FIT gained notoriety in 1995. The pair attended Reclaim the Streets actions, filmed demonstrators, and attempted to engage them in dialogue, borrowing tactics from the monitoring of football hooliganism in the early 1990s.

Armed with upmarket cameras and camcorders, officers overtly record everything and everyone in their sights. They have even been known to quote their surveillance findings back at activists. ‘We know what you’re up to,’ seems to be the FIT message – the act of data gathering remade as a method of control.

Indeed, the results of FIT surveillance, and so-called intelligence-led policing, hit the headlines recently when, in the early hours of 14 April, 114 activists were pre-emptively arrested for allegedly conspiring to commit criminal damage and aggravated trespass in a demonstration at Ratcliffe-on-Soar coal-fired power station. This pre-emptive policing raises serious civil liberties concerns, as Shami Chakrabarti, director of Liberty, notes. ‘In the light of the policing of the G20 protests, people up and down the country will want to be confident that there was evidence of a real conspiracy to commit criminal damage by those arrested and that this was not just an attempt by the police to disrupt perfectly legitimate protest.’

So why sing at them? ‘It’s the only way to deal with it,’ says Amelia Gregory, one of the Climate Camp songsters. ‘We were there on the gate to welcome people into the camp, people who were being intimidated [by the police], who’d possibly never had this experience before. We had to make them feel comfortable, to make light of it.’

Nowhere to hide

Civil liberties and the right to privacy have become big issues in Britain. We live in a time of unprecedented surveillance by state powers, and of particular interest to them are those who challenge the status quo. Although gathering data on dissent is nothing new, today’s technological advances and sheer audacity have moved evidence-gathering techniques up a notch.

In 2005 the Financial Times reported that mobile phones could be used as roving bugs, with software remotely activating microphones and transmitting data.1 Since then, removing batteries and SIM cards from phones before sensitive meetings has become standard practice among activists. And, if recent experience from New Zealand/Aotearoa is anything to go by, even those you hold closest might not be trustworthy. Helping her boyfriend Rob Gilchrist fix his computer, Rochelle Rees, an animal rights campaigner from Christchurch, discovered emails which showed he was a police informant – part of a 10-year surveillance operation which went as high as the Government’s Special Investigations Unit.

There is nothing undercover about the FIT’s methods, however. ‘Overt filming is a tactic used to combat crime and gather intelligence and evidence,’ reads a 2008 Metropolitan Police Authority briefing paper.2 ‘Cameras should be deployed overtly with the staff operating them clearly identifiable as police officers or police staff. The intention of overt filming is to provide reassurance and to reduce the fear of crime as well as to assist in its prevention and detection.’

‘It was dark, I was pushed up against the wall and they took my photograph. I was just going about my business. It was completely designed to intimidate’

In May 2008, the FIT hit the headlines when it was revealed that a police force in Essex had decided to use overt filming against alleged trouble-makers in the area. Code-named Operation Leopard, officers ‘harassed’, in the approving words of Home Secretary Jacqui Smith, young people on estates in the county. ‘I want police and local agencies to focus on them by giving them a taste of their own medicine,’ she explained, while justifying an extension of the tactic to elsewhere in the country. ‘Daily visits, repeated warnings and relentless filming of offenders [will occur] to create an environment where there is nowhere to hide.’ The targets of Operation Leopard were those known by the police for their persistent misbehaviour. As the tactic was rolled out, however, it became less directed, with young people stopped, searched and photographed seemingly at random.

‘I was absolutely horrified the first time I was FIT-ed,’ explains Marina Pepper from the campaign groups Climate Rush and G20 Meltdown. ‘I was at Climate Camp. It was dark, I was pushed up against the wall and they took my photograph. I was just going about my business. It was completely designed to intimidate.’ As well as targeting individuals, FIT officers target specific events. Before an Earth First meeting at a social club in Brighton, officers snapped everyone entering the building with a long lens camera. As commentators, including the area’s MP David Lepper have suggested, this was designed to discourage people from attending, and intimidate those who did.

The FIT’s techniques occupy a subtle niche in UK law. There is no right to privacy in a public space, so the police – and public – are entitled to record at will. In 2008, this was tested by judicial review.3 Leaving a shareholders’ meeting of the academic publisher and then-arms-fair-organizer Reed Elsevier, Andrew Wood, press officer for the group Campaign Against Arms Trade, was photographed. He applied for the review on the grounds that this photography was in contravention of his human rights. Articles of the European Convention which govern the right to privacy and the right to freedom of political expression were cited.

The review found no contravention had occurred. Referring to the case of photographs taken of model Naomi Campbell leaving a drug therapy centre, in which it was stated that ‘[t]he famous and even the not-so-famous who go out in public must accept that they may be photographed without their consent’, the judge ruled there had been no undue interference with Wood’s right to privacy. Likewise, under articles governing freedom of political expression, the judge decided that the recording of images in no way inhibited the claimant’s political activity.

A masked female activist at an animal rights march in Hertfordshire exercises her right to protest.

Photo by MARC VALLÉE

The Handschu guidelines

This police tactic is not unique to Britain. However, under an extraordinary agreement, activists in New York – where it was also used – have won the right to maintain their privacy. Under what are called the Handschu guidelines, tight controls are placed on the type of evidence gathering police may undertake on individuals and the groups with which they affiliate. Following extensive and intrusive data gathering by the New York City Police Department (NYPD) intelligence team in the 1950s and 1960s, a class action lawsuit was brought in 1971 against the police in which political activist and lawyer Barbara Ellen Handschu was the main plaintiff.

The guidelines, which were finalized in 1985, placed strict controls on the methods and type of covert surveillance that police were permitted to undertake, and required a detailed paper trail to be created should surveillance occur. ‘Most broadly, and probably most importantly,’ explains Arthur Eisenberg, legal director of the New York Civil Liberties Union (NYCLU), ‘the settlement prohibited police from engaging in surveillance resulting in the creation of a police file, unless there was evidence that a crime had been committed or was about to be committed.’ This rule effectively outlawed widespread police photography.

After functioning with reasonable success through the 1980s and 1990s, the conservative Mayor Bloomberg, citing terrorism concerns, arranged with Judge Haight, overseer in the original Handschu case, to modify much of the agreement. In 2004 new regulations were issued by the NYPD, which allowed ‘the use of photographic or video equipment by operational personnel to accurately record police operations or other public activity if a permissible operational objective exists’. The scope was massive, given that an ‘operational objective’ was defined as any time when, at a public event, ‘accurate documentation is deemed potentially beneficial or useful’.

While in spirit the Handschu agreement protects little not covered by the Constitution’s First Amendment (which upholds freedom of speech, freedom of assembly and the right ‘to petition the Government for a redress of grievances’), in practice Eisenberg believes it proved significant. ‘Going back a number of years, decisions have been made by the Supreme Court which severely weaken First Amendment rights in this context. [They] have made it unenforceable because of what the court has called a “lack of standing”, as no individual has been able to show that they are harmed by such intelligence collection. Handschu affords protection beyond that which the First protects.’

The NYCLU were not going to allow Handschu to be watered down without a fight. So, in April 2007, the police department, Eisenberg and Judge Haight were back in court to discuss the matter. Though the police department argued that the agreement should remain in its attenuated form, the debate was in fact academic, because two weeks earlier, police officials had surreptitiously scrapped it.

It was not until September 2008 that Eisenberg and his colleagues were made aware of this. For 18 months, they had been working on legal proceedings to overturn a ruling the police had already revoked.

‘It’s quite remarkable,’ said Eisenberg. ‘I don’t know whether it was a case of the right hand not telling the left what it was doing, or whether there was some more malevolent goal. There may well have been.’ It has been speculated that this was a case of the police cutting their losses. The New York Times had run an investigative piece into the NYPD’s surveillance tactics. That the tactics were then dropped perhaps indicated the Department’s fear of further bad press. Though surveillance officers are still seen on the sidelines of New York demonstrations, they are prohibited from raising their cameras unless they have reason to believe a crime may be about to be committed.

Watching the detectives

The UK legal system has been unwilling to order similar restraint from police intelligence units, yet the FIT has not gone unresisted. In April 2007, Val Swain was attending a widely advertised activist meeting. Shortly before it began, around 10 FIT officers arrived. Their photographer took pictures of everyone entering the building, both campaigners and, because the meeting was held in the University of London Union, students unconnected with the discussion.

The week before, Swain had been at another meeting at which FIT officers had been similarly deployed. ‘I decided that I could not continue being active politically under these conditions. I would either have to stop going to meetings, or I would have to do something about it.’ She chose the latter. When the officers refused to stop filming, she held up a banner she had already prepared, on which she had written ‘protect our privacy’, to obstruct the FIT cameras.

The officers pushed her away, then ‘violently arrested’ her for allegedly obstructing a police officer in his duty. In court Swain argued that the police were breaching privacy rights, and did not have authority to use force to get their pictures. However, she says, ‘the judge decided to dodge the whole issue’. Because the photographer was freelance and not a serving police officer, he decided that the charges could not stand, therefore refusing to enter into the wider debate.

That direct action marked the beginning of the group FIT Watch. As well as using banners, potential FIT Watchers are advised to play officers at their own game, following them, listening in to their conversations, and taking their photographs. Information gleaned is made publicly available online. As Emily Apple from FIT Watch notes, psychologically it was not an easy movement to start. ‘We felt any reaction to the police detracted from the subject we were protesting about. But as it progressed, what we did on the street was pretty much ineffective because of the way they were policing. So tackling the FIT seemed necessary.’

Since Swain’s case, several others have been brought against FIT watchers. While most have been acquitted, five were recently convicted of obstructing the police. They have lodged an appeal, but new evidence has come to light and the appeal has been put on hold.

Is there a database?

That new evidence relates to the earlier judicial review brought by Andrew Wood. During proceedings, the Metropolitan Police’s legal team explicitly noted that there was no invasion of privacy through overt photography because it ‘was not an exercise in compiling any national database’. Yet in a FIT Watch trial, PC Dan Collins admitted that a database was being assembled. An investigation by The Guardian newspaper in March 2009 recorded a similar admission by a senior officer, providing further proof.4 Photographs and video footage are being retained electronically, The Guardian suggested. It also suggested that names are being associated with photographs, and a database is being prepared which contains details of many thousands of protesters, irrespective of whether they have broken the law.

‘I decided that I could not continue being active politically under these conditions. I would either have to stop going to meetings, or I would have to do something about it’

Additional evidence of the existence of such a database came from photojournalist Marc Vallée. When FIT officers attend demonstrations, they are issued with cards, called ‘spotter’s cards’, on which the faces of activists they wish to track are printed. ‘I was working at a protest against the attack on Gaza. I saw an officer with a camera speaking to another officer, who I know works with the FIT. They were going through a notebook which had a number of pictures in it, spotter’s cards. And I got a shot of it. Enlarging the picture, you can see the mug shots with people’s names underneath each one. Not codes or aliases, but full names. They were clearly looking for particular individuals.’

On the existence of the database, campaigners are frank. ‘It wasn’t a surprise, I think it was fairly common knowledge amongst activists,’ said Amelia Gregory. Common sense dictates that these photographs are being taken by the police to be used for something. Anecdotal evidence backs this up. When Marina Pepper arrived at an action, she was quizzed by a FIT officer on a matter from her personal life she had told few friends about, but had mentioned once on the front-line of a protest. ‘I asked him how he knew that. “I just guessed,” he told me.’ In spite of this overwhelming evidence, a police press release insisted that ‘the Met Police Public Order Branch does not hold a database of protesters’.

Playing the police at their own game: protesters at an anti-G8 demonstration last year.

Photo by MARC VALLÉE

Journalists targeted

As Vallée’s experience has shown, the FIT’s interest is not limited to activists. Though a press-card-carrying member of the media, he has been subjected to significant harassment. After recording images of a particularly brutal arrest at the 2008 Climate Camp, he and colleagues went to a nearby restaurant to file footage using their wi-fi connection.

‘There were six of us, all of whom held press cards,’ Vallée explains. ‘We had laptops open, cameras all around, and were uploading images. Then a colleague said: “look behind you, out the window.” And there was an evidence-gathering crew filming us doing our job. That was very concerning. There was no legitimate reason for them to be doing that. If the state, through the police, are building up a list of which media organizations and journalists have covered particular events, they may in future attempt to get hold of the material we’ve collected. It’s speculation, but it’s the only reason I or the National Union of Journalists [NUJ] can think of.’

In May 2008 Jeremy Dear, General Secretary of the NUJ, wrote to the Home Secretary: ‘The routine and deliberate targeting of photographers and other journalists by the FIT undermines media freedom and can serve to intimidate photographers trying to carry out their lawful work. The rights of photographers to work free from threat, harassment and intimidation must be upheld.’ These concerns were echoed in a recent report by the parliamentary Joint Committee on Human Rights.

With calls for change coming not just from activists, but from establishment figures too, the era of panoptical surveillance and ‘harassment’ policing should have had its day. Whether Britain, or indeed any other country where similar tactics are deployed, will follow New York’s lead is another matter. What is clear is the need for a strict message from the top. Police files are for criminals, while legitimate protest is just that. Legitimate.

Olly Zanetti is a freelance journalist and climate change activist.

See:  www.tinyurl.com/guardianFIT; www.tinyurl.com/HandschuNYCLU; www.fitwatch.blogspot.com

  1. Mark Odell, ‘Use of mobile helped police keep tabs on suspect and brother’, Financial Times 2 August 2005.
  2. http://tinyurl.com/ddfm2u
  3. www.bailii.org/ew/cases/EWHC/Admin/2008/1105.html
  4. http://tinyurl.com/dbzjfm  and http://tinyurl.com/dmfbs9

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