UK High Court rules amendments to Public Order Act unlawful and upholds protest rights
National Council for Civil Liberties v Secretary of State for the Home Department [2024] EWHC 1181
Summary
In an important decision on protest rights in England, the High Court of Justice has found that amendments made by the Secretary of State to the Public Order Act 1986 (‘POA Act’) were unlawful. The amended regulations had the effect of lowering the threshold of police intervention in protests. In its decision, the Court considered four grounds of challenges and accepted two of them. The decision is useful in understanding what is considered to be unlawful and the limitations in circumventing legislative processes.
Facts
Background Context and Legislation
The POA Act is a UK law that regulates public order offences and permits the police to intervene in a public procession or assembly to prevent “serious disruption to the life of the community”. However, “serious disruption” is not defined in the Act. In 2022, the Act was amended by the Police, Crime, Sentencing and Courts Act 2022, which granted the Secretary of State the power to amend the definition of “serious disruption” through a subordinate secondary legislation. This power is colloquially termed a “Henry VIII power”. In the same year, a Public Order Bill was introduced to create two new offences in relation to protesting: “locking on” and “tunnelling”. For these new offences, they had a threshold of “more than minor” and this was passed. A year later, in 2023, the Government then attempted to amend the POA Act so that “serious disruption” would be defined as “more than minor”, which would affect public processions and assemblies. However, this was rejected.
Consequently, the Government worked around this rejection by using the Secretary of State’s Henry VIII power to amend the POA Act. Essentially, the same proposal that was rejected by the House of Lords, was laid before Parliament - the draft regulation defined “serious disruption” as “more than minor”. A feature of secondary legislation is that it is subject to less scrutiny than Bills and cannot be amended by either House of Parliament. Additionally, in forming this proposal, there was no consultation with civil liberty groups, rather only with police enforcement agencies.
In early 2023, the Home Office prepared an Economic Note which estimated that if the draft regulation was adopted, police intervention in processions and assemblies would increase by up to 50% and prosecutions would also rise substantially. Additionally, the House of Lords Secondary Legislation Scrutiny Committee published a report concluding that the regulations would lower the threshold for police intervention in public processions and assemblies, that the new definition was legally uncertain, and that the Government consultation on the proposal was inadequate.
Despite this, the regulations came into effect on 14 June 2023. On 23 June 2023, the National Council of Civil Liberties commenced proceedings for judicial review and the Public Law Project intervened to support them in the proceedings.
Challenges
The National Council of Civil Liberties had four grounds of challenges:
Ground 1: The regulations were ultra vires such that it is beyond the legal power of the Secretary of State to amend the Act in this manner. The Secretary of State should not be allowed to lower the threshold for police intervention, which would be done by altering the definition of “serious disruption” to “more than minor”.
Ground 2: The regulations were unlawful because they subvert Parliamentary sovereignty by seeking to achieve, by subordinate legislation, what was rejected as primary legislation by Parliament.
Ground 3: The regulations were unlawful because they undermine the separation of powers, Parliamentary sovereignty and lack objective justification.
Ground 4: The regulations were unlawful because they are the result of an unfair consultation process.
Decisions
The Court upheld grounds 1 and 4 and dismissed grounds 2 and 3.
In relation to ground 1, the Court interpreted the ordinary and natural meaning of the words in the context of the POA Act and concluded that "more than minor” is not within the scope of the word “serious”. Therefore, by altering this definition, the regulation lowered the threshold for police intervention, and it could not have been Parliament’s intention for a subordinate legislation to have this power.
Grounds 2 and 3 were combined in the Court’s decision. The issue was summarised as whether constitutional principles such as Parliamentary sovereignty and the separation of powers are violated when the Executive uses a statutory power to make subordinate legislation for an object and purpose which it failed to achieve earlier by primary legislation. The Court did not find this to be a frustration or circumvention of Parliament supremacy or the separation of powers. Rather, “all the Executive did was to invoke legitimate Parliamentary processes in a wholly transparent manner.” Further, the Court noted that just because the pathway was controversial and “unpopular”, this did not equate to the method being “undemocratic” or “constitutionally defective”.
Regarding ground 4, the Court concluded that a voluntary consultation process was undertaken, however it was one-sided and not fairly carried out. Therefore, the consultation was procedurally unfair and unlawful.
Ultimately, the regulations were found to be unlawful.
Commentary
This decision recognises the importance of statutory interpretation through analysing the ordinary and natural meaning of words and the intention of Parliament. Further, it affirms the sovereign power of Parliament despite unfavourable circumstances in which legislation may be presented. Consequently, this opens the door for future legislation to be enacted through this unconventional pathway.
In recognising the public importance of the issue, the High Court granted the Secretary of State permission to appeal. Pending the appeal, the Court has also suspended its order that the regulations be quashed. Unless the judgment is overturned on appeal, it represents a significant win for protest rights campaigners in England.
The full case can be read here.
This case summary was prepared by Kimberly La.