The government’s anti-protest legislation is unlawful, the High Court has found, quashing regulations which altered the threshold for police intervention in public processions and assemblies.

Lord Justice Green and Mr Justice Kerr upheld two of the four grounds of a challenge brought by campaign group Liberty. The ‘ultimate effect’ was regulations passed by former home secretary Suella Braverman in June 2023 have been found to be unlawful.

The judgment was described as a ‘huge victory for democracy’ by Liberty. The organisation took the government to court over its use of subordinate secondary legislation – a Henry VIII power – to amend the Public Order Act 2023 which ‘repeated the provisions about processions and assemblies…recently rejected by the House of Lords’.

The House of Lords secondary legislation scrutiny committee found the new definition proposed through the Henry VIII power of ‘serious disruption’ in the Public Order Act 1986 would, if adopted, increase the number of occasions when the police intervened by up to 50% and that prosecutions would also rise substantially.

The judges said: ‘The appropriate rule of construction applied to Henry VIII powers supports the conclusion that the power can only be used to clarify or exemplify but not alter or change. This is especially appropriate in a context where the word “serious” has been carefully chosen by parliament to reflect the balance to be struck between competing fundamental common law rights and where altering the balance of those rights, in a manner adverse to protestors, exposes those persons to an increased risk of criminal sanction.’

Finding ground I successful, the judges said: ‘“Serious” cannot, in the enabling legislation, mean “more than minor”. That is sufficient for Ground I to succeed and is the most important aspect of the challenge to the vires of the Regulations.’

Turning to the second successful ground, the judges found the secretary of state did undertake a consultation exercise. They added: ‘Applying a broad standard of fairness we conclude that fairness required a balanced, not a one-sided, approach, and the procedure adopted was not fair. A voluntary consultation process was undertaken. It was however one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.’

The consultation was unfair for several reasons including that the proposals assumed an increased exposure to criminal sanction; there were ‘readily identifiable’ categories of ‘adversely affected bodies and persons’; proposed measures had a ‘significant and negative, restrictive, impact upon the scope and exercise of the fundamental common law civil rights of citizens to protest and to disagree’ and conducting a broader consultation ‘would not have been onerous or disproportionate’.

Akiko Hart, Liberty’s director, said: ‘This ruling is a huge victory for democracy, and sets down an important marker to show that the government cannot step outside of the law to do whatever it wants.’

 

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