1. Introduction
The shrinking of civic space, the physical and virtual space for people and groups both to participate in and to contest the exercise of power,Footnote 1 is an important phenomenon for environmental lawyers. Whilst both legal rights to participate and legal rights to protest are commonly conceptualized as forms of political or democratic participation, scholars of environmental law (including ourselvesFootnote 2 ) have tended to discuss them separately, as if they were disconnected practices. Environmental lawyers, on the whole, have focused on participatory laws derived from provisions such as the Aarhus Convention rights,Footnote 3 leaving the right to protest primarily, although not entirely, to human rights and political science scholars.Footnote 4 Although legally institutionalized participation and protest can be in tension, particularly when protests ‘confront’ rather than ‘engage in discussion’,Footnote 5 this disconnect leaves us with a partial view of participation. Those of us who are interested in the contribution of publics to environmental decision-making are in danger of missing the role of protest as an important part of the story. Engaging with a fuller story requires consideration of the multifaceted nature of contestation and consent, which can be pursued in legal rights to participate, in street-level direct action, and in every space in between. Indeed, this article starts from the position that there is a continuum of participation, with institutionalized legal rights to participate (including as ordinary public consultation) at one end, and unlawful protest and practices of civil disobedience at the other. This continuum of potentially mutually reinforcing forms of participation is both part of and constitutive of civic space.
In this article, we explore this continuum and the role of law in shaping it. Even if law alone cannot simply create civic space – which depends on an intricate landscape of institutions and norms, discourse, and practice – law invites, permits or resists participation. On the one hand, law encourages and defends participation, potentially contributing to environmental democracy as well as to better environmental outcomes.Footnote 6 Environmental law creates protected spaces for public engagement in projects, activities, policies and legislation related to the environment, and public and human rights law protects freedom of expression and association that enable protest. On the other hand, law can restrain participation: environmental law might create only very narrow spaces for such engagement, while public law might prevent or criminalize certain forms of protest. That the desire to participate escapes and exceeds legally protected institutions is increasingly evident in climate protests across Europe and elsewhere. Contestation is articulated through a rich, creative, and diverse arsenal of practices, changing to maintain attention and to respond to the approach of the authorities. Activists use marches, demonstrations, sit-ins, lock-ons, and boycotts; they interrupt essential services and energy installations as well as art galleries, cultural spaces, and sporting events.
Looking across different forms of participation and protest in this article allows us to describe and analyze an increasingly restrictive legal approach across the continuum of environmental participation. This restrictive approach is clearly a transnational phenomenon, with similar practices and challenges arising globally, albeit in their jurisdictional contexts. Our focus is on Europe, including and beyond the European Union (EU), and particularly those parts of Europe that are conventionally seen as secure liberal democracies. Although an erosion of rights associated with practices of environmental democracy is widely recognized,Footnote 7 we aim here to provide a sharper focus on the continuity and permeability between the different ways in which law contributes to the support or erosion of civic space.
There is a vast and crowded scholarship in this area, and there is much that we cannot do here. We do not assess the relationships between law and the strategies chosen by social movements (although we touch on this literature in Section 3); nor do we assess the success or impact of social movements.Footnote 8 We are also very conscious that civic space is much richer and more various than we can capture here. While, by focusing on the two ends of our continuum in much of this article, we try to explore the most revealing issues, there are many participatory practices that we do not discuss, including voting at elections, citizen or consumer action in the market, and the use and restrictions of virtual space for participation.Footnote 9 Further, while, as environmental lawyers, we begin with the environment, environmental participation is not uniquely restricted.Footnote 10 The environmental dimension of participation in civic space rests in its potential at all points on our broad continuum to create opportunities for environmental voices, and especially for perspectives that are distinct from dominant (especially economic) views.Footnote 11 We do not, however, argue that participation in any of its manifestations is necessarily pro-environment, or indeed supportive of a richer or more open civic space; it is perfectly plausible that anti-environmentalFootnote 12 and illiberal voices will benefit from civic space.Footnote 13
We understand civic space as composed of big moments and small, the drama of activism and the mundanity of consultation on local decisions about relatively small developments.Footnote 14 Our key aim here is to bring our conceptual understanding of protest closer to the banal world of environmental consultations, as well as to bring ordinary moments of participation closer to the rich and vibrant world of environmental activism. The law across each part of the continuum is mutually significant. In Section 2, following this introduction, we identify and explain three steps on the continuum of participation, all of which are part of and contribute to constituting civic space: ‘invited’ participation within the institutions, ‘uninvited’ participation that remains within the law, and ‘forbidden’ participation. The definitional and normative questions are daunting, and we will not rehearse the jurisprudential and political science debates in detail.Footnote 15 The discussion in Section 2 also illustrates the enabling and emancipatory potential of inclusive law, which has the potential to protect diverse spaces for participation.Footnote 16 After locating our conceptual framework in this way, in Section 3 we emphasize the importance of thinking holistically about the connections across civic space. While institutionalized participation and unlawful protest sit at two ends of a continuum, that continuum is not uni-directional or wholly linear. On the contrary, not only are the steps on the continuum permeable, but the extremes are also potentially mutually reinforcing and, from the perspective of those participating, not mutually exclusive. We then turn to restrictions on invited participation and on protest (Section 4).
Our methodology for this article has been simple. We were initially guided by what was then a relatively small number of European and international sources documenting the shrinking of civic space for environmental and climate civil society organizations (CSOs) in Europe.Footnote 17 Building on this broad-brush and transnational mapping, we took time to explore the legal detail in selected jurisdictions. We selected jurisdictions that are conventionally considered to be secure liberal democracies, and with which we were legally, linguistically or institutionally closer. Finally, we took a step back and located the resulting picture within the conceptual framework that we had developed around invited, uninvited, and forbidden participation. We attempted to connect this engagement with environmental protest and activism with our many years of work on legal rights to participate in environmental decision-making, identifying links in what appeared to be a fluid continuum of participation across civic space. Overall, we dealt with a large volume of complex and detailed provisions in different jurisdictions. To ensure a coherent narrative, much of the material we collected along this journey has been relegated to a tiny space in a footnote, but each of these seemingly marginal legal provisions and practices substantially contributes to the shape of environmental civic space in Europe.
We are not alone in arguing that civic space is being restricted at both ends of the continuum of participation.Footnote 18 A snapshot of the simultaneous legal pressures exerted on very different approaches to political participation across jurisdictions, however, emphasizes the severity of the shrinking of civic space. Whilst the legal detail varies by jurisdiction, the trends are clear, rendering participation across civic space increasingly practically and emotionally difficult.Footnote 19
2. Understanding ‘Invited’, ‘Uninvited’, and ‘Forbidden’ Participation
Neither ‘protest’ nor ‘participation’ can be defined in the abstract, their meaning being somewhat contingently shaped by their legal and political framing. In this section we explore the continuum of participation in three stages: (i) formal, institutionalized, and legally protected participation in environmental decision-making; (ii) lawful participation outside those institutionalized moments; and (iii) criminal acts of protest. We share and extend Wynne’s evocative language of ‘uninvited’ participation to describe the contributions that fall outside institutionalized participation, denoting these three practices respectively ‘invited participation’, ‘uninvited participation’, and ‘forbidden participation’.Footnote 20
The boundaries between our categories are often blurred and certainly dynamic, subject to change by the powerful or by majorities; we return to this in Sections 3 and 4 below. With Buyse, we define civic space as ‘the layer between state, business and family in which citizens organize, debate and act’, including ‘the practical room for action and manoeuvre for citizens and CSOs’.Footnote 21 These layers – in which citizens and organizations ‘organize, debate and act’ – are filled with citizens participating, whether (to return to our categories) that participation is invited, uninvited or forbidden.
The relationships between these different forms of participation partially define the nature of civic space. Although it is also used as a metaphor for the degree to which rights of peaceful assembly, expression and association are respected or guaranteed,Footnote 22 most of the literature bounds civic space with lawfulness, a space ‘without fear of official disapproval or harassment, and without breaking the law’.Footnote 23 This space without fear is crucial, but we include unlawful as well as lawful protest in this article, in part because the line between them is not static, and is vulnerable to being politically instrumentalized. Further, legality does not provide us with a clear boundary between invited, uninvited, and forbidden participation, given that the strict letter of the law is subject to and/or intensified by the approach of public authorities and private actors on the ground. Adding forbidden as well as uninvited participation to the formal institutions of participation allows a broader view of participation as a political exercise. This broader view enables a different perspective on the multifaceted forms of public engagement with the socio-economic, ecological and democratic challenges stemming from environmental and climate crises.
2.1. Invited Participation
For environmental law scholars, invited participation often revolves around legal rights to be formally informed and consulted about environmental decisions. These rights are legally institutionalized, most obviously in Europe through the United Nations Economic Commission for Europe (UNECE) 1998 Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (Aarhus Convention)Footnote 24 and environmental assessment legislation in its various guises in EU and many non-EU laws.Footnote 25 Invited participation can take a variety of forms, from simple online consultation to public meetings, from legalistic public inquiries to more fluid ‘conversations’; it operates at every scale, and sits within or alongside conventional democratic institutions at different levels.Footnote 26
While serving different specific purposes, the three pillars of the Aarhus Convention (access to information, public participation, and access to justice) are mutually reinforcing, contributing to a vision of environmental democracy through legally protected rights. The right to participation under the middle pillar requires, broadly speaking, opportunities to participate in decision-making on activities that may have a significant effect on the environment,Footnote 27 as well as more generally on plans, programmes, policies and executive regulations, which in principle provides a space for recurring and broader discussion.Footnote 28 These provisions are meaningful, but often satisfied with minimal approaches to consulting outsiders and responding to external input.Footnote 29 We would argue that they are far more radical and ambitious than they appear in their currently neglected condition, and that they were originally designed to open routes of communication between the public and those who hold power.Footnote 30
Across the EU and beyond, the practice of conducting environmental impact assessments (EIAs) requires both technical assessments of the likely environmental impact of certain projects and ‘early and effective opportunities’ to be provided for members of the public ‘to participate in the environmental decision-making procedures’.Footnote 31 The results of these consultations have to be taken into consideration, and reasons have to be given for the decision, ‘including information about the public participation process’.Footnote 32 Strategic environmental assessment (SEA) applies at an earlier stage than EIA, to plans or programmes, and requires the public to ‘be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report’.Footnote 33
These protected spaces for citizens and groups to participate in decision-making and contest the intentions of government and economic actors are crucial. Without them, inclusion during decision-making would occur largely at the sole discretion of those with power. Importantly, we are not suggesting that the ‘public’ has a veto over decision-making, or that any case in which the final decision is one with which (a majority of) participants disagree is a case of failed participation. Rather, we are concerned with the right to an opportunity to be heard; being heard implies that the powerful attend to and stay open to different ways of understanding the world, and different insights into our situation.Footnote 34
2.2. Uninvited Participation
Decision-making can deliberately curtail or side-step procedures for public participation, and even the best-intentioned participation exercises, protected by law, can be unsatisfactory in predictable ways.Footnote 35 Dissatisfaction with public participation is by no means a simple explanation for protest (if by that we imply a move to activism ‘on the streets’), but it certainly is part of the construction of ‘uninvited’ publics. By ‘uninvited participation’ we mean participation beyond the terms of the ‘invitation’. Within this category we focus on lawful (street) protest as, for the purposes of this article, it is the most revealing of a closing down of civic space.Footnote 36 The breadth of this category, however, and the many, sometimes imperceptible, steps of ‘uninvited participation’ between Aarhus and criminal protest, remind us of the complexity of democratic life. Uninvited participation need not be disruptive, and can occur during official public consultation or, for example, by writing to members of parliament, communicating through mainstream or social media, or making legal claims. Civic space is ever evolving, and while, for example, consumer boycotts date back at least to campaigns against the slave trade,Footnote 37 fossil fuel divestment campaignsFootnote 38 and shareholder climate activismFootnote 39 demonstrate how uninvited participation can take new forms. Uninvited participation is also a result of direct and indirect restrictions on the scope of the invitation, in particular what can be discussed and by whom (to which we return in Section 3.1). It can spill over onto the street, into marches, demonstrations, spectacles, and other embodied performances, which may be perfectly lawful – indeed, legally protected by freedoms of association, expression, and assembly, rather than forbidden.Footnote 40
Protest on the street is an important form of participation. The right to protest is ill-defined as a right, and messy as a normative construct.Footnote 41 It is beyond the scope of this article to delve into the case law of the European Court of Human Rights (ECtHR), but just as we find some (not the only) legal frameworks for invited participation in the Aarhus Convention, we find legal protection of uninvited participation in the right to peaceful assembly. Article 11 of the European Convention on Human Rights (ECHR)Footnote 42 protects this ‘fundamental right in a democratic society’,Footnote 43 which is linked with rights of expression (Article 10) and association (Article 11).Footnote 44 The right to freedom of peaceful assembly covers gatherings of people in private and public places, and therefore includes protests on the street and in multiple forms: press conferences, street processions, or sit-ins,Footnote 45 ‘flash-mobs’Footnote 46 and non-violent courthouse protest.Footnote 47 The cases across Europe of law protecting protest, including by condemning police violence against peaceful (environmental) protesters,Footnote 48 remind us both that civic space can be unlawfully closed, and that law can sometimes play an important role in constituting civic space.
2.3. Forbidden Participation
Protest always has the potential to cross the line into a criminal act and, as discussed below, increasing restrictions are being placed on protest across Europe by criminal law. We conceptualize unlawful or criminal practices of contestation as ‘forbidden participation’. In this context, we argue that certain forms of law-breaking sit on the continuum of political participation, along with invited consultation under the Aarhus Convention.
While protest and civil disobedience are not the same, once participation is forbidden it can be placed within the wider conceptual framework of civil disobedience. In general terms, civil disobedience refers to an act of politically justified law-breaking. For our purposes, the disobedience might include breaking public order laws, or traffic laws by blocking roads, or criminal damage laws by damaging or destroying property; and the justification might be found in using the criminal act to make political demands around environment and climate. Simplifying, a liberal political theory on ‘civil disobedience’, epitomized by Rawls,Footnote 49 locates the boundaries of justified law-breaking against a more general duty to comply with the law. Rawls’s definition of civil disobedience is most often cited: ‘a public, non-violent, 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’.Footnote 50 The disobedience is in accordance with the ‘sense of justice of the majority of the community’ and is ‘within the limits of fidelity to law’Footnote 51 (which can mean accepting the possibility of penalty), and has a symbolic character. It should be considered ‘a last resort’ after all good faith options have failed.Footnote 52
A critical literature interprets the liberal vision narrowly,Footnote 53 and takes issue with its limitations.Footnote 54 Whether fully reflective of the nuance of the liberal approach or not, this critical interpretation of the liberal approach would exclude much contemporary protest, and there is a large literature expanding the boundaries of justification.Footnote 55 Celikates, for example, provides a more minimalist approach that attempts to separate definition from justification: ‘an intentionally unlawful and principled collective act of protest (in contrast to both legal protest and “ordinary” criminal offenses or “unmotivated” rioting), with which citizens … pursue the political aim of changing specific laws, policies or institutions’.Footnote 56 He develops a democratic reading of civil disobedience ‘as an integral part of any complex democratic society, made necessary by the latter’s constitutive institutional defects’.Footnote 57 From this perspective, protest and participation are located on a procedural continuum, as a form of political participation in a democratic society.
Without engaging at length or cleaving to one side of this debate, we err towards a more expansionist approach to justified law-breaking. The line between justified and unjustified law-breaking is, however, ‘porous’.Footnote 58 It depends enormously (as both the liberal and critical limbs of the literature accept in principle) on context and intent.
The question of non-violence in the liberal approach to civil disobedience is particularly relevant for our purposes.Footnote 59 Understandings differ of the extent to which the liberal tradition, and Rawls’s conception of civil disobedience in particular, allows for violence.Footnote 60 Given our emphasis here on the continuum of participation, like the liberal tradition, we ask whether the violent act limits communication.Footnote 61 Interpersonal violence is relatively easy to condemn in environmental or climate protests, and very few would suggest otherwise.Footnote 62 Protest by or including interpersonal violence exceeds the bounds of political participation, and therefore it is not contained in our continuum. Property damage, a different form of violence, is more likely to be justifiable (even if still criminal).Footnote 63 Some level of property damage is central to the impact and symbolism of a certain modality of climate protests: graffiti (using more or less temporary or harmful materials) or defacing (the protective cover of) artwork are familiar parts of the repertoire. The same applies to the deliberately disruptive nature of some protest, the physical disruption to ‘people, institutions and/or processes of capital accumulation’,Footnote 64 which at least looks like ‘coercion’, and is interpreted by some as violence.Footnote 65 We are aware that we leave difficult questions for another day, but the justifiability of property damage and significant disruption, whether or not we call them violent, will depend on context, degree, and intention.Footnote 66 These elements will also determine whether such protest is included in our continuum of participation.
In addition to the question regarding non-violence, the critical literature contests the meaning and appropriateness of every element of the liberal definition of civil disobedience,Footnote 67 which requires that law-breaking be ‘public’, ‘conscientious’, usually aiming to change law or policy (rather than materially to affect the object of the protest), and guided by a ‘commonly shared conception of justice’.Footnote 68 A ‘broader fidelity to law’ (including a willingness to accept sanctions) is a part of the liberal approach that is increasingly tested by harsher policing and sentencing of what was formerly tolerated, as discussed below. Whilst disobedience is almost by definition unlawful, the need for a tolerant approach to sanctioning is shared by many writers in the field.Footnote 69
Consistently with much of the literature cited in this section, we argue in this article that protest, including unlawful protest, can be a form of political participation. We are not arguing that unlawful or illegal acts must necessarily be ‘civil’ to constitute political participation. The boundaries of justifiable law-breaking are difficult to identify, and we do not seek to resolve that complexity here – other than to place interpersonal violence out of bounds. Where we place those boundaries of justifiable law-breaking, however, will define the outer edge of our continuum of political participation.
3. Relations between Invited, Uninvited, and Forbidden Participation
In this section we explore relationships between invited, uninvited, and forbidden participation. We outline two key interactions across civic space. Firstly, we consider the permeability of our different categories of participation, including the potential for mutual influence between the two ends of our continuum. Secondly, and relatedly, we emphasize that CSOs do not necessarily see these categories as mutually exclusive, but may work simultaneously within and outside participatory institutions, as well as strategically complying with or breaching both the definition of the invitation and legal limits on protest. Although we place them on a continuum in this article, oppositional activism can be in tension with invited participation. This tension is in part related to the concern with coercion in the liberal literature if, for example, a hard-won, inclusive decision is put under pressure through protest. We do not explore that further here, but note that protest can be more or less deliberative or ‘exclamatory’,Footnote 70 allowing more or less room for debate within and with the protest group. As Young puts it, ‘[t]he best democratic theory and practice will affirm them both [deliberation and activism] while recognizing the tension between them’.Footnote 71
As we explore the permeability and simultaneity of our continuum of participation, we consider how law is or might be implicated in those relationships. Law cannot provide for thriving civic space on its own, but depends on a culture of cooperation and participation, as well as respect by those with power. Law, however, in both its repressive and its protective or constitutive manifestations, contributes to the shaping of civic space, and to the continuum of invited, uninvited, and forbidden participation.
3.1. The Permeability of Invited, Uninvited, and Forbidden Participation
Beginning with permeability, invited, uninvited, and forbidden participation are not static or wholly independent categories, but are closely connected, as is perhaps inherent in the idea of a continuum. Specifically, the way in which law protects or restricts one of them contributes to the shape of the others.
Perhaps most evident for lawyers is the link drawn between invited participation and protest by the Aarhus Convention itself, the archetypal supporter of invited participation. Article 3(8) requires the parties to ‘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’. The Aarhus Convention Compliance Committee (ACCC) interprets this provision broadly, to apply not only to the exercise of the rights provided by the Convention, but ‘to all situations in which members of the public seek access to information, public participation or access to justice in order to protect their right to live in an environment adequate to their health or well-being’.Footnote 72 This includes activities such as delivering a petition and organizing or participating in ‘an authorized street action’.Footnote 73 While the Aarhus Convention does not refer explicitly to environmental defenders,Footnote 74 the development of a ‘Rapid Response Mechanism to deal with cases related to Article 3(8)’ includes provision for a Special Rapporteur on Environmental Defenders.Footnote 75 The Special Rapporteur understands his brief as encompassing a broad range of activism, explicitly including various disruption techniques. Without condoning serious damage to property and violence, the Special Rapporteur envisages the protection of the Convention as extending to disruptive protests that have been criminalized and subjected to imprisonment by the state.Footnote 76
Uninvited participation is also, and directly, constructed by intentional or inadvertent restrictions on the scope of invited participation.Footnote 77 For example, the information provided to participants, even without any deliberate effort to influence outcomes, might limit what is practically open for debate, or even thinkable. Direct constraints on debate also include the frequent limitation of participation on technologically complex issues to human or environmental safety, normally by excluding broader social questions (such as who bears the costs of mistakes, who benefits from the change), which might be of greater public concern.Footnote 78 Underpinning these challenges is the way in which the parameters of the discussion are restricted by taken-for-granted assumptions, such as the need for economic growth, or by the presumed absence of plausible alternatives. In short, the definition of what Latour calls the ‘matters of concern’ constrains the scope of the participation.Footnote 79 The closure (ideally provisional) of certain prior questions – from target dates for net-zero climate emissions, to equality legislation, to biodiversity protection – is sometimes unavoidable.Footnote 80 Nevertheless, whenever citizens resist or ignore the explicit or implicit limits on participation, their contributions can be described as ‘uninvited’. This uninvited participation may then stay within the institution of participation (such as the consultation process or the public inquiry) in the form of persistence with a perspective that exceeds the institution’s ability to engage; or it may go beyond that institution, in the ways raised in Section 2.
In addition to the limits on what is in the ‘invitation’, numerous practical limitations on participation can limit who is invited. An expectation of a ‘reasonable’ way of communicating, including an absence of emotionFootnote 81 or a prioritization of technical approaches, can, for example, lead to the dismissal of ill-fitting contributions as irrational or irrelevant. Participatory exercises tend to privilege those with the time to take part and the skills to understand the issues and effectively communicate their views.Footnote 82 Again, those who are excluded from invited participation, including by its practical and epistemic demands, are all ‘uninvited’. They may continue to participate, but in some way that is beyond the terms of the invitation.
Political opportunity theories support the broader intuition that more inclusive rights to participate in decision-making make it more likely that dissent will take place within the institutions rather than on the street. Existing theories explore social movement choices between strategies of protest, outside orthodox political spaces and conventional political activity within institutions.Footnote 83 More open and inclusive spaces, coupled with a decision-maker who is receptive to the arguments being made, enhances political opportunity within the institutions. Legal mechanisms like the Aarhus Convention and environmental assessments provide a relatively open space for participation; receptiveness can also be shaped (not dictated) by law, for example, through obligations to take account of input and give reasons for decisions.Footnote 84 The relationship between participatory institutions and protest on the street, however, is not simply linear, so participatory opportunities do not avoid protest, any more than the absence or failure of the normal practices of participation automatically sends protestors onto the street.Footnote 85 Although political opportunity theories do not purport to be complete explanations of civil society choices,Footnote 86 and the lines are not simple, they suggest nevertheless that open and receptive political environments are less likely to lead to protest.Footnote 87
Working in the opposite direction on our continuum, radical methods of participation can support the institutional and legally defined structures of invited participation.Footnote 88 Uninvited or forbidden participation has the potential to shape the future nature and scope of the ‘routine invitation’. For example, Owens and Cowell illustrate how, in some cases, resistance to the narrow scope of invited participation around a project planning can contribute to changing the higher-level policy commitments.Footnote 89 We might also see this more modestly in claims for better, more responsive consultation processes in specific cases, as, for example, in protest against inadequate community engagement.Footnote 90 As well as potentially influencing formal civic space, protest movements might also embed a more radical democratic vision of society in their way of acting, ‘pre-figuring’ the future of society in the life of the protest.Footnote 91 However ephemerally, protest can help to imagine a ‘parallel world’, so that, through protest, we can see new visions of routine participation.Footnote 92
The reality of inclusion is never straightforward in a society subject to structural inequalities.Footnote 93 However, taking a slightly different perspective on permeability, uninvited or forbidden participation may respond to some of the shortcomings of formal institutions of participation, especially by being more (or, at least, differently)Footnote 94 inclusive of people and perspectives, available to those who lack privileged access to influence.Footnote 95 Protest movements can also highlight the concerns and demands of the marginalized communities often excluded from decision-making,Footnote 96 as the bottom-up definition of subjects of concern, independent of the state or economic actors, creates a space of ‘independent collective meaning, knowledge, judgement and action’.Footnote 97 In a similar way, reading the recent critical literature on civil disobedience, discussed above, gave us the sense that transnational, recurrent climate protests could be reshaping our sense of the ‘normal’ repertoire of protest, influencing our understanding of justified law-breaking.
3.2. Acting across the Continuum
Related to this permeability of the participation continuum, organizations can occupy multiple spaces at once as they engage simultaneously with invited, uninvited, and forbidden forms of participation. Protest on the street does not necessarily imply a rejection of more formal institutional processes, or vice versa. Extinction Rebellion (XR), for example, in its most disruptive London 2019 protests, called on the state to create a statutory net-zero target.Footnote 98 Further, following days of protest, XR participants met the United Kingdom (UK) Secretary of State for the Environment, as well as the Shadow Chancellor and the Mayor of London.Footnote 99 Some protestors may have been more anxious than others to bypass the ‘corridors of power’, but XR did not reject the possibility of talking to those within the institutions.Footnote 100 On the contrary, their call on law and government ‘recognizes both the hierarchical logic of the system and its decision-making authority’.Footnote 101 XR’s prioritization, as one of its three demands, of a citizens’ climate assembly, however, makes a more ambiguous call on existing institutions.Footnote 102
More generally, the literature on ‘insider’ and ‘outsider’ strategies,Footnote 103 as long as we recall that this is not a simple binary,Footnote 104 usefully brings out the ways in which groups can move across civic space. According to this analysis, ‘insider’ groups enjoy privileged status and access to decision-makers. They may not always need (or think they need) the protection of a legal entitlement to participate,Footnote 105 but both established environmental groups and issue-specific grassroots organizations participate in processes governed by these rights. Protest is generally considered an outsider strategy or tactic, pursued by outsider groups. But while we would be surprised to see protest movements like Just Stop Oil routinely responding to government consultation, selective participation is not implausible. Just as XR, a classic outsider group emphasising the failures of law and established institutions, called on and engaged with those institutions, so the Royal Society for the Protection of Birds (RSPB), a classic insider group, can take a position of protest.Footnote 106 Most groups display elements that could characterize them as insiders or outsiders,Footnote 107 as they move across civic space in multiple parts of the participatory continuum.
Finally, while we focus here on the edges of our continuum (invited and forbidden participation), environmental and other groups will generally, and often strategically, occupy uninvited territory as they engage in both invited and forbidden participation. For example, sophisticated participants in a consultation will choose how much to push against the defined edges of the invitation; and on the street, they will make choices about when and how to press the bounds of the law.Footnote 108
4. Shrinking of Civic Space through Law
In Section 3 we discussed important relations across invited, uninvited, and forbidden participation, indicating the necessity of thinking about them more holistically and suggesting the incomplete but still significant role of law in constructing civic space. Here, we develop these relations by exploring, necessarily in the briefest way, legal pressure on participation across the continuum.
It is not novel or controversial to observe either that both Aarhus-type participation and protest are forms of political participation, or that they are under pressure. Observing the simultaneous legal pressure being placed on different practices of participation, however, demonstrates the extent of law’s contribution to the closure of civic space. In his observations on uninvited participation, Wynne highlighted the paradox that exclusion sits alongside the apparent commitment to participation embedded in instruments like the Aarhus Convention.Footnote 109 Both formal institutions for participation and external protest are now being actively restricted through law and, of course, legal change does not reflect the full picture. The vilification and stigmatization of protest by the media or mainstream politicians, for example, can distract civil society, chill protest, and normalize repression,Footnote 110 just as the deployment of dismissive language (such as ‘blockers’ and ‘NIMBYs’) against those exercising more conventional rights to participate may be similarly problematic.Footnote 111
Beginning with invited participation, firstly we might note that the opportunity to embed legally protected entitlements to public participation in new environmental legislation is not being taken. The EU, for example, although it continues to champion national participatory processes in some cases, in other new legislation quite notably fails to impose participatory obligations on Member States,Footnote 112 or uses inclusion instrumentally, explicitly as a way to ‘promote public acceptance’ of predetermined outcomes.Footnote 113 More generally, the EU Fundamental Rights Agency has observed that Member States ‘do not always have adequate rules for public participation’; reflecting the common limitations of participation, when they do have such rules, ‘they are sometimes applied in a non-transparent manner, limited in scope or shortened excessively to speed up law- or policymaking processes’.Footnote 114 Beyond the EU, flagship UK environmental legislation passed in the wake of Brexit suffered from a general lack of commitment to public participation, in its development, its language and its implementation.Footnote 115 In addition, frustration with environmental assessments, which is perhaps the key legal instrument for implementing the Aarhus Convention, is apparent in both the EU and the UK. We see both case-by-caseFootnote 116 and wholesaleFootnote 117 reform of environmental assessments in these jurisdictions. While reform need not necessarily weaken invited participation in environmental decision-making, the rhetoric around the changes gives every indication that it will.
The motives for these sorts of change are inevitably difficult to pin down. The rhetoric of the urgent need to ‘speed up’, ‘streamline’ and ‘simplify’ decision-making is currently prevalent and shared across political persuasions and across jurisdictions.Footnote 118 The ‘speeding up’ agenda is often linked to economic growth, or other more specific issues such as the provision of housing or, especially relevant for our purposes, renewable energy infrastructure. In this context, participation can become a simple bureaucratic inconvenience, bypassed in the interests of speed. One of the important attributes of environmental impact assessment legislation and the Aarhus Convention is their efforts to guarantee universal standards of public participation in environmental decision-making; sidestepping public participation when it is perceived to be inconvenient highlights the contingency and vulnerability of invited participation. The relatively muted challenge from environmental civil society to the weakening of participation, or specifically of environmental assessment,Footnote 119 is striking. It may be attributable partly to the piecemeal and undramatic approach to the weakening of rights in this area. The growing awareness of the limitations of participation, including the frequent exclusion of particular groups and perspectives (as discussed above), may also undermine the support for public participation that we used to take for granted.Footnote 120 This is necessarily somewhat speculative, and there are lots of perfectly good reasons for civil society choices,Footnote 121 but rather than fighting for better, more inclusive participation, we may be seeing disillusionment with the very idea of public participation. This sits alongside a technocratic and an urgent mood, including around the climate crisis in the environmental community, which makes the ‘speeding up’ rhetoric difficult to challenge, and downplays the social and political aspects of environmental problems, emphasising instead the expert and the technical.Footnote 122 This technocratic approach may, paradoxically, share a mistrust of process and an emphasis on outcomes, with a more populist approach to government.Footnote 123
A restriction on invited participation increases the importance of uninvited participation. That can take many forms, as discussed above. Here, we are most interested in thinking about how uninvited participation is being converted into forbidden participation, in particular how formerly lawful protest is being criminalized.Footnote 124 The Council of Europe’s Commissioner on Human Rights has referred to ‘a repressive tide’ rising over protest,Footnote 125 which is also well documented in official sources.Footnote 126 A number of Human Rights CSOs have also undertaken important work in identifying, cataloguing, analyzing, and publicising the phenomenon, with Amnesty International describing protest across Europe as ‘under protected and over restricted’.Footnote 127 The growing restrictions on peaceful environmental and climate protest in Europe witnessed in these fora turn uninvited participation into forbidden participation. The law has contributed to the repressive tide across many dimensions, including, for example, the direct regulation of CSOs’ permitted activities and fund-raising,Footnote 128 and the use of private law, including injunctions, to restrict protests.Footnote 129 Here, we simply outline three particularly striking ways in which law confines the repertoire of environmental activism.
Firstly, many European countries have introduced legislation that expressly and specifically exposes the tactics used by environmental protesters to criminal penalties. The UK Public Order Act 2023,Footnote 130 for example, creates new criminal offences to address the practices of locking on, tunnelling, interference with the use or operation of key national infrastructure, and the obstruction of major transport works. We see similar moves elsewhere in Europe, for example, the unprecedented ban in Germany of assemblies on federal highways,Footnote 131 and the creation of a new offence in France of trespassing on airport runways, as a direct response to protests against the extension of the Roissy Airport.Footnote 132 In Italy, a similar approach has taken a cultural turn, with the adoption in 2024 of the so-called ‘Eco-vandalists law’,Footnote 133 a highly contestedFootnote 134 new law, which imposes heavy administrative penalties on any person who damages or causes the temporary defacement of cultural or landscape heritage, doubling the penalties if the defacement takes place during a public protest.Footnote 135
Secondly, the powers of public authorities to impose restrictive conditions on individual protests have been extended. A failure to comply with conditions imposed on a particular protest is conventionally an offence, but extending the powers of the authorities to impose those conditions is also restrictive, in not entirely predictable ways, of protest itself.Footnote 136 The potential for selective application, so that some protests are permitted and others not, is also clear. The UK Police, Crime, Sentencing and Courts Act 2022 expands police powers to restrict protests by relaxing the situations in which conditions can be imposed, and including the noise generated by a protest as a reason for imposing conditions.Footnote 137 Conditions may be imposed on a protest when the noise generated by a protest ‘may result in serious disruption to the activities of an organization which are carried on in the vicinity’,Footnote 138 or ‘may result in the intimidation or harassment of persons of reasonable firmness with the characteristics of persons likely to be in the vicinity’ or may cause such a person to suffer ‘alarm or distress’.Footnote 139 Part of the conditionality of protest involves spatial restrictions, including the protection of transport networks raised above, as well as placing off limits the locations of power, exactly the places where protestors can have the greatest impact. In Brussels (Belgium), for example, a ‘neutral zone’ prohibits protest around the European Institutions and the Royal Palace.Footnote 140
Thirdly, we note changes to law and practice that allow for more intrusive policing of protest. The 2021 Assembly Act in North Rhine-Westphalia (Germany) allows the competent authority to make video and sound recordings of participants, based on suspicion of ‘a significant threat for public safety’, when measures are necessary to avert this danger.Footnote 141 Especially when combined with a ban on face covering, this could produce a chilling effect on protest. France adopted the controversial so-called ‘Anti-Rioters Act’ in response to the yellow vest protests in 2018 and 2019,Footnote 142 which criminalizes ‘deliberately covering all or part of one’s face without a legitimate reason’, in certain circumstances.Footnote 143 Like the UK Public Order Act 2023,Footnote 144 the French law also grants the police new and expanded ‘stop and search’ authority.Footnote 145
Perhaps in some respects inspired by these legislative changes, a more emphatic policing and sentencing of protest is noticeable across Europe. Human rights institutions, most notably the Aarhus Special Rapporteur on Environmental Defenders, have raised concerns on this matter. The Special Rapporteur has, for example, described elements of the law enforcement response to an environmental protest in France as ‘disproportionate and indiscriminate’.Footnote 146 He criticized the four-year prison sentence handed down by a UK court to an organizer of an environmental protest in the strongest terms: ‘[h]ow a sentence of this magnitude can be either reasonable, proportional or serve a legitimate public purpose is beyond comprehension’.Footnote 147 This is one of a series of heavy prison sentences for climate protestors in the UK courts.Footnote 148 Nor is the UK alone.Footnote 149 Changes to policing, charging, and sentencing (as much a matter of policy, politics or practice as law) make forbidden participation much more challenging. As Volk observes, dissent should not require too much courage: ‘one crucial aspect of the democratic experience is the knowledge that protest in democracies does not require a heroic deed and is rarely a matter of life and death’.Footnote 150
As with restrictions on invited participation, the motives for this transnational crackdown on protest cannot be asserted with any certainty. There may be some continuity between the ‘speeding up’ agenda with respect to invited participation, and the ability for protest and activism to delay development and (supposedly) damage economic growth.Footnote 151 While analysis of the motives of government is beyond the reach of this article, we also have some sympathy with the political science literature that attributes restrictions on climate protest to a philosophy of securitization.Footnote 152 Protest becomes the new target of the long-standing efforts of the state to use repression and emphatic policing to seek to secure itself and society from perceived threats,Footnote 153 a securitization that is most obviously found as a response to terrorism and migration.Footnote 154 It implies the creation of a supposedly more secure environment, by restricting access to institutions and public space. For climate specifically, the perception that protest, rather than the impacts of climate change, is the threat to order, society, and economic growth, diverts this philosophy more expressly towards environmental and other activists. We see this in the application of security laws, especially anti-terror laws, against protest,Footnote 155 but also in the generally harsher approaches to public order.Footnote 156
5. Conclusions: The Role of Law in Civic Space
After many years of work on public participation in environmental decision-making, on the role of environmental groups and on just transitions, we find ourselves increasingly being asked about protest. In our work, we witnessed the erosion of what we are now calling invited participation; as citizens, we observed the repression of environmental and other protest. Exploring the very rich literature on protest in this article brought out the connections across civic space and demanded a broader analysis from us.
It is not novel or controversial to argue that both Aarhus-type public participation and street protests can constitute political participation. Nor is it novel or controversial to argue that civic space is shrinking across Europe. However, in this article we have brought invited, uninvited, and forbidden participation together in a continuum of participation for several reasons. Firstly, bringing these elements together informs our conviction that civic space is found in the mundane, day-to-day routine of speaking to power, as well as in set-piece moments like general elections, and that it is found in the drama of practices of protest, even if criminalized, as well as in the sober institutions of democratic deliberation. Secondly, we have attempted to draw attention to the very rich tapestry of participation between these two ends of the continuum; this tapestry of participation is sometimes hard to see, but emphasizes the relation between the ends of the continuum. Thirdly, the transnational trend for simultaneous legal limits on very different approaches to political participation emphasizes the profundity and extent of law’s contribution to the shrinking of civic space in the environmental sphere.
As guarantees of invited participation are eroded, we might conventionally expect to see more uninvited participation, including on the street. Simultaneously, however, the uninvited are increasingly perceived to be a threat to order, leading to a redrawing of the line between uninvited and forbidden participation and a requirement for increasingly courageous sacrifice by protestors. The conditions for justifiable civil disobedience are placed under yet further strain. What will happen to the contributions and contestation that would otherwise have found a home in these different practices of participation is worrying in the context of the inequalities and extreme politics of which the restrictions we discuss may be part.
Acknowledgements
We are grateful to the TEL reviewers for their assistance in completing this article, to Carolyn Abbot and Chris Hilson for their feedback on an earlier draft, and to participants at a Université Libre de Bruxelles, Centre for European Law seminar and the SLSA annual conference. We are grateful to Marie Jadot for assistance with accessing the Belgian case law, and to Elia de Caro for assistance with accessing the Italian case law.
Funding statement
We are grateful to the UCL Global Engagement Fund for supporting this project.
Competing interests
The authors declare none.
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