Recently, the human rights organisation Liberty took a case against the Home Office to challenge the last government’s changes to protest law to define ‘serious disruption’ as any disruption which is ‘more than minor’. The change criminalised a much wider range of actions, leading more people to become vulnerable to criminal sanctions for engaging in peaceful protests. Liberty won the case, and now an appeal has been adjourned to allow for negotiation with the Home Secretary. If successful, this could reverse changes to ensure that fewer protesters are at risk of criminal conviction for non-violent actions that were previously legal.
Below, GMLC campaign volunteer Mariam Hussain explains why the won, and what this means for campaigns and those who attend protests.
National Council for Civil Liberties (Liberty) v Secretary of State for the Home Department (2024) was a challenge to the legality of Regulations adopted by the Secretary of State for the Home Department which lower the threshold for police intervention in public protests. Following the Court’s judgment that the Regulations are unlawful and the pending appeal, Liberty has adjourned the case in anticipation of discussions with the Home Department regarding the Regulations. This is a case which is of broad public interest given the civil rights implications of Regulations affecting the right to protest.
Facts of the case
Previous legislation, namely the Public Order Act 1986 (POA 1986), gives the police the power to intervene in public protests in order to prevent “serious disruption to the life of the community”. However, the legislation does not define the meaning of “serious disruption”.
As a result, the government sought to create the power to clarify this phrase in the Police, Crime, Sentencing and Courts Act 2022 (PCSCA 2022), introducing a power enabling the Secretary of State to define “serious disruption” using secondary legislation. Secondary legislation is introduced directly by government ministers and cannot be amended in Parliament, where it can only be accepted or rejected.
Also in 2022, the government sought to introduce two new offences of “locking on” and “tunnelling”, again using the term “serious disruption” to describe the level of disruption required for an action to be an offence. However, this time they did define “serious disruption”, setting the definition as being anything “more than minor”. This definition only applied in relation to the two new offences and the government did not seek to amend the definition in relation to other actions, such as those outlined in the POA 1986.
In 2023, the government then sought to address the definition of “serious disruption” in the POA 1986, introducing amendments to a new Public Order Bill which would define the phrase as including any disruption that was “more than minor”.
The House of Lords rejected these amendments, and so the government used the aforementioned power it had conferred upon the Secretary of State in the PCSCA 2022 and amended the POA 1986 using secondary legislation. Due to the fact that this process does not allow for amendments to be made in Parliament, secondary legislation is subject to less scrutiny than primary legislation.
Further, the government carried out a voluntary consultation when creating these amendments, but discussed them only with law enforcement agencies, choosing not to consult either the public or civil liberty groups.
The amendments to the POA 1986 were considered by the House of Lords Secondary Legislation Scrutiny Committee, which concluded that the government’s definition of “serious disruption” would not only lower the threshold for police intervention, but was also legally uncertain. It further concluded that the government’s voluntary consultation had been “inadequate”. Finally, the Committee noted that the government using secondary legislation to reintroduce a matter that had been previously rejected as primary legislation by Parliament was unprecedented, citing their concerns around the constitutionality of this move (in other words, it seemed like a way to get around the democratic process, when the legislature had already scrutinised and rejected this change).. The Committee invited the House of Lords to reject the proposals.
Despite these issues, these amendments became law on 14 June 2023. Following this, Liberty commenced proceedings for judicial review.
What was held
Of the four grounds on which Liberty challenged the legislation, two were upheld:
Ground I – When the power to use secondary legislation to amend the law was given to the Secretary of State, the intention was not that that power could be used to change the threshold required for police intervention. The Secretary of State’s definition of “serious disruption” as covering anything “more than minor” lowered that threshold and the Secretary of State therefore went beyond the legally conferred power.
Ground IV – The Regulations were unlawful because the consultation process used in their formulation was unfair. The Court held that while the government did not legally need to engage in a consultation process, any such process in which they engaged was required by law to be fair. Therefore, in not obtaining the views of those who the legislation might affect negatively, such as the public and civil liberty campaign groups, the government had not followed the law.
Meanwhile, the Court dismissed the other two grounds:
- Ground II – The government had acted unlawfully by introducing a matter as secondary legislation that had already been rejected by Parliament as primary legislation.
- Ground III – The government had introduced legislation against the will of Parliament and the legislation lacked objective justification.
On both these grounds, the Court held that there was no principle within constitutional law that prevented Parliament from adopting secondary legislation measures which had previously been rejected as primary legislation.
What happens now?
In upholding Grounds I and IV, the Court found the Regulations to be unlawful and ordered that they be quashed. However, due to the public importance of the issue, the High Court granted the Secretary of State permission to appeal. While the appeal is awaited, the order that the Regulations be quashed has been suspended.
The appeal was due to take place on 25 July 2024; however, on 23 July 2024 Liberty announced that an adjournment had been agreed to allow negotiations with the Home Office to take place.
With a new government in place, discussions on the case are due to take place in the coming weeks, with the lawyer leading the case on behalf of Liberty saying that the organisation hopes they can find a resolution with the new Labour Home Secretary, Yvette Cooper.
___
Image credit: Alisdare Hickson, Flickr, 2022. “This brave woman was one of several people arrested in Trafalgar Square for daring to peacefully resist the government’s inaction on the climate and cost of living crisis.”
