A new law making it easier for police to impose conditions on peaceful protests is “constitutionally unprecedented” and unlawful, according to a legal challenge at the High Court in London.
The legal challenge by the National Council for Civil Liberties, also known as Liberty, seeks to overturn the controversial regulations because of what the pressure group describes as their draconian impact on fundamental rights.
Former Home Secretary Suella Braverman used the government’s so-called Henry VIII powers to lower the threshold for police to impose restrictions on protests, allowing them to do so where there is only a ‘more than minor’ disruption to people’s daily lives.
The change, through a statutory instrument in the Lords, came after the chamber rejected the same change proposed months earlier in a heavily debated and scrutinised new Public Order Bill. By convention, peers do not normally vote down statutory instruments.
The way in which the regulations were allegedly rammed through parliament was described by lawyers acting for Liberty as “a constitutionally unprecedented attempt by the executive to achieve by the back door, through delegated legislation, what it has failed to achieve by the front”.
There had been “no proper justification” for using a statutory instrument to change the law, they said, and there had been insufficient consultation with those who would be affected.
Katy Watts, a Liberty lawyer, said: “We all want to live in a society where our government plays by the rules, but time and time again this government has done the opposite. The actions of the previous Home Secretary to sneak rejected legislation through the back door is a particularly egregious example of this.
“The wording of the government’s new law is so vague that anything deemed by the police to cause ‘more than a minor’ disturbance could be subject to restrictions. This has serious implications for everyone’s right to stand up for what they believe in.
“These laws were thrown out by Parliament just months before the then Home Secretary introduced them. It’s shocking to see the government so blatantly flouting our vital democratic checks and balances, and we’re determined not to let it stand.
“Our legal action is designed to stop this government’s flouting of the law and make sure that no one – including our politicians – is above the law. It’s vital that they don’t get away with it.
The Protest Regulations, which came into force on 14 June, include ‘more than minor’ obstructions or delays in the definition of ‘serious disorder’, which is the threshold at which the police can impose conditions on a protest under the Public Order Act 1986.
Police will also be allowed to take into account the cumulative effect of repeated protests when deciding whether the threshold has been met.
The government has said that the regulations are an attempt to deal with the activities of Just Stop Oil and Extinction Rebellion, and that the language about ‘more than minor’ obstructions mirrors that in other new offences of ‘locking-up’ and ‘tunnelling’.
However, the changes were rejected by the House of Lords in February by 254 votes to 240 when they were tabled as amendments during the passage of the Public Order Bill 2023, only to resurface in a statutory instrument.
Regulations introduced in this way, known as Henry VIII powers in reference to the monarch’s preference for direct legislation by proclamation, are subject to minimal parliamentary scrutiny and are decided on an ‘all or nothing’ basis without amendment.
Between 1950 and 2017, only 0.01% of the total number of such instruments laid before Parliament were rejected.
Liberty’s legal challenge points to supporting comments from the Lords’ secondary legislation scrutiny committee, which was sufficiently alarmed to warn peers of “constitutional issues” and told them it was “not aware of any examples of this approach being taken in the past”.
The legal challenge said it could not be right for parliament “to be treated as having given the executive a blank cheque to lower the applicable threshold by the back door, thereby sanctioning greater police interference in public assemblies and protests”.
The government’s consultation is also said to have been limited to a roundtable chaired by the Prime Minister with the National Police Chiefs’ Council, the Metropolitan Police Service and the police and crime commissioners of forces whose areas include the M25 and national motorways.
A Home Office spokesman said: “The right to protest is a fundamental part of our democracy, but we must also protect the right of the law-abiding majority to go about their daily lives.
“That is why legislation is in place to clarify the definition of serious disorder and give police the confidence they need to clear roads quickly.
“This legislation has been voted on by both the House of Commons and the House of Lords in accordance with proper parliamentary procedure.”