Government Loses Court Challenge: Public Order

Craig MacKenzie
Craig MacKenzie

Published: May 31st, 2024

6 mins read

The National Council of Civil Liberties (“Liberty”) successfully challenged the legality of Regulations adopted by the Secretary of State which have the effect of lowering the threshold for police intervention in processions and assemblies by persons wishing to protest.

The Public Order Act 1986 (“POA 1986”) permits the police to intervene in a public procession or assembly in order to prevent “serious disruption to the life of the community”. The legislation does not define what is meant by “serious disruption”.

In response to concerns expressed by the police that this expression was unclear, a power was introduced in the Police, Crime, Sentencing and Courts Act 2022 (“PCSCA 2022”) allowing the Secretary of State to amend the definition of “serious disruption” by secondary legislation. The power to amend an Act of Parliament by a statutory instrument is colloquially termed a “Henry VIII power.”

In a statement to Parliament on 8 June 2021 a government minister made this statement:

“I now turn to the parts of the clauses that set out that the Home Secretary will have the power, through secondary legislation, to define the meaning of “serious disruption to the life of the community” and “serious disruption to the activities of an organisation which are carried on in the vicinity of the procession”, or assembly or single-person protest. Again, to clear up any misunderstandings, this is not about the Home Secretary of the day banning protests.

Opposition Members have understandably called for clearer definitions wherever possible, which is what this delegated power is intended to achieve. Any definition created through this power will need to fall within what can reasonably be understood as “serious disruption”. The threshold will be clarified, not changed: such definitions will be used to clarify the threshold beyond which the police can impose conditions on protests, should they believe them necessary to avoid serious disruption. This is about putting the framework in place to help the police on the ground."

In 2023, this time specifically in relation to public processions and assemblies, the Government introduced two amendments to a new Public Order Bill which would have defined the phrase “serious disruption” in the POA 1986 to include any disruption that was “more than minor”. These amendments were however rejected by the House of Lords and the Government did not seek to re-introduce them into primary legislation.

Instead, the Government exercised the newly conferred Henry VIII power to amend the POA 1986 by secondary measures. It laid draft regulations before Parliament which sought to define “serious” as anything that was “more than minor” i.e. introduce the same changes which had failed to get through Parliament as primary legislation. It is a feature of secondary legislation that it is subject to less scrutiny than Parliamentary Bills and cannot be amended by either House of Parliament. In formulating their proposals, the Government engaged with police enforcement agencies but did not consult with the public or groups representing civil liberties.

Liberty challenged the regulations on 3 grounds, namely:

  • Ground I - In conferring power upon the Minster to amend legislation, the legislature did not intend that power to be used to alter the standard for police intervention in processions and assemblies. By defining “serious” in the Regulations to mean “anything more than minor” the Secretary of State did lower the threshold and therefore acted outside of the power conferred by Parliament.

  • Ground II – The Regulations were unlawful because they subverted Parliamentary sovereignty in seeking to achieve by secondary legislation that which Parliament had rejected as primary legislation.

  • Ground III: The Regulations were unlawful because they frustrated and circumvented the will of Parliament and lacked objective justification.

  • Ground IV: The Regulations were unlawful because they were the result of an unfair consultation process.

Liberty was successful on grounds 1 and 4.

The High Court held:

:...the expression “serious” is intended to set the threshold for police intervention at a relatively high level. This reflects its ordinary and natural meaning, its purpose and context, and is a conclusion consistent with admissible extrinsic material. It reflects the important balance to be struck between the right of free speech, assembly and protest, on the one hand, and the orderly conduct of society, on the other."

Recognising the public importance of the issue the High Court has granted the Secretary of State permission to appeal and has indicated that the appeal should be expedited. Pending the appeal the Court has also suspended its order that the Regulations be quashed.

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