The UK Divisional Court has found that the Home Secretary acted unlawfully when introducing Regulations which lowered the threshold for the use of police powers to impose conditions on public processions and protests. The judgment showcases the importance of the courtroom in the protection of fundamental civil liberties at a time when Government actions suppress the ability to enjoy freedom of speech and assembly.

How were the Regulations Made?

The Public Order Act 1986 provides police with powers to intervene in a public procession or assembly in order to prevent ‘serious disruption to the life of the community’. In 2023, the second chamber of the UK Parliament rejected amendments to the Public Order Bill which sought to expand the definition of ‘serious disruption’ to include anything which was ‘more than minor’. After this democratic set-back, the Home Secretary ventured to rely on a controversial mechanism known as a ‘Henry VIII power’, which delegates power to a Minister by which subordinate legislation can be used to amend primary legislation.

Thus, the Public Order Act (Serious Disruption to the Life of the Community) Regulations 2023 resurrected the ‘more than minor’ threshold and came into force on 14 June 2023. Following this, police intervention in protest has increased. An effect which the Government was content with, as it had been canvassed that the rise in police action was likely to be 50% and prosecutions would increase by around one third.

The Wider Context

The Home Secretary’s second bite at the anti-protest cherry is part of the wider Government clamp-down on protest. Other changes to the law on protest have targeted specific tactics used by climate groups such as Just Stop Oil and Insulate Britain; for instance, ‘locking-on’, whereby individuals attach themselves to objects or buildings. Notably, there have been several occasions of the Executive targeting pro-Palestinian demonstrations. The former Home Secretary referred to marches calling for a ceasefire in Gaza as ‘hate marches’, the Prime Minister made a speech in March of this year which claimed he will back the police when they take action at these protests, and the Community Secretary introduced a new definition of ‘extremism’ to control which groups can utilise free speech in public life. This last measure attracted comments from Liberty, the same organisation which brought the challenge to the 2023 Regulations, who warned that ‘refusing to engage with groups it disagrees with is becoming a pattern of behaviour from this government’.

Article 11(2) of the European Convention on Human Rights (ECHR) establishes that authorities may interfere with the right to protest for legitimate reasons including public safety, protecting public health and the rights and freedoms of others. This list does not include when a Government Minister disagrees with protesters’ views, or because protest will cause inconvenience or stoke tensions between camps.

The Decision: Unlawful on Two Fronts

The challenge to the Regulations was brought by Liberty and succeeded on two grounds.

Firstly, the Regulations were found to be ultra-vires. When empowering the police to impose conditions on procession and assembly, Parliament acknowledged the inevitable interference with the qualified rights in Article 10 and 11 ECHR. In choosing the language of ‘serious disruption’, the legislature deliberately calibrated a high threshold for the level of interference. Against this background, the court found that the power used to make the Regulation was a power to clarify, not alter. The definition of ‘serious’ as anything ‘more than minor’ was an illegitimate extension of the carefully chosen term and departed from a lawful power to limit fundamental civil rights [72], [100].

The claim also succeeded on the ground of procedural unfairness. In the process of making the Regulations, the Home Secretary had undertaken an overly selective and one-sided consultation of stakeholders likely to be supportive of the proposed changes. Fairness required a balanced consultation, especially due to the prospect of a significant and restrictive impact upon the scope and exercise of the fundamental rights of citizens to protest and to disagree [183].

This case is a salient example of the value of the Administrative Court toolkit in safeguarding fundamental rights when the protections of the legislative process have been obfuscated. The matter remains one-to-watch as, despite being unlawful, the Regulations are yet to be quashed pending the Home Secretary’s appeal.

Want to learn more?

• Extremist Measures: The UK Government Further Obstructs the Right to Protest

• The Coronation, the Public Order Act 2023 and ‘Free Speech’

• Leigh v Commissioner for the Police of the Metropolis: Fundamental Rights during COVID

• The Police, Crime, Sentencing and Courts Bill: an Unprecedented Blow to Democracy and Fundamental Rights