High Court finds government anti-protest legislation unlawful after legal challenge

Tuesday 21 May 2024

Bijan Hoshi of Garden Court Chambers acted for the intervener, Public Law Project (PLP), led by Tom De La Mare KC and Tom Cleaver of Blackstone Chambers.

Counsel were instructed by Herbert Smith Freehills LLP. Liberty issued this case in which PLP acted as an intervenor.

See full judgment: National Council for Civil Liberties v Secretary of State for the Home Department [2024] EWHC 1181 (Admin)

Press coverage in The Guardian.

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The below content has been reproduced from a Liberty press release.

  • Court quashes law which lowered threshold on protest crackdowns to anything that caused ‘more than minor’ disturbance.
  • Court rules that the Government did not have the power to create this legislation, and as such is unlawful.
  • Liberty calls the ruling “a huge victory for democracy”.

The High Court has ruled that the Government acted unlawfully in creating legislation which gave the police ‘almost unlimited’ powers to restrict protests.

Following a landmark legal challenge from human rights organisation Liberty, the Court has ordered the law to be quashed.

In its judgment published today, the Court found that the then Home Secretary Suella Braverman passed anti-protest measures in June 2023 despite having not been given the power by Parliament to do so.

The legislation significantly lowered the threshold of when the police can impose conditions on protests from anything that caused ‘serious disruption’ to anything that was deemed as causing ‘more than minor’ disruption.

In today’s ruling, Lord Justice Green and Mr Justice Kerr said that the Government ignored Parliament’s will in failing to define the meaning of ‘serious disruption’, and instead broadened the definition to the point that police were allowed to intervene in protests where disruption was “closer to that which is normal or everyday”.

The Government has already announced that it is appealing the ruling to the Court of Appeal. The High Court has suspended the reversal of the measures until after the outcome of the appeal.

Hundreds of protesters have been arrested under these measures since they were created, including the climate activist Greta Thunberg who was acquitted of all charges in a hearing in February 2024.

Liberty has called on the police to refrain from using these powers until the appeal has been heard and for prosecutions under the law to be put on hold pending the appeal.

Victory for democracy

Liberty hailed the judgment as “a victory for democracy”, saying it “sets down an important marker that the Government cannot just do what it wants.”

The Court also found that the consultation ran by the Government prior to proposing this legislation was “one-sided and not fairly carried out”, and therefore also unlawful.

The Government had invited only those supportive of its plans to a consultation meeting to discuss the measure – groups included policing bodies and the Crown Prosecution Service (CPS) – but did not engage other parties that would be impacted such as community groups and protest groups.

Liberty said that the ruling shows that the Government “cannot just cherry pick who they consult in order to get the results they want.”

The Government had initially tried to pass these powers as part of the Public Order Act in January 2023, but the proposals were democratically rejected by Parliament.

However, a few months later in June 2023, Braverman pushed through the law via ‘secondary legislation’, which requires less Parliamentary scrutiny and debate. Liberty said the Government had purposely ‘sneaked this law through the back door’ to evade accountability.

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.

“We all have the right to speak out on the issues we believe in, and it’s vital that the Government respects that. These dangerous powers were rejected by Parliament yet still sneaked through the back door with the clear intention of stopping protesters that the Government did not personally agree with, and were so vaguely worded that it meant that the police were given almost unlimited powers to shut down any other protest too.

“This judgment sends a clear message that accountability matters, and that those in power must make decisions that respect our rights.”

Katy Watts, lawyer at Liberty, said:

“We launched this legal action to ensure that the Government was not allowed to wilfully ignore the rules at the expense of our fundamental human rights.

“It is not up to the Government to decide what causes people can protest on, nor is it right for the government to sideline both Parliament and the public in making these decisions. Those in power cannot just cherry pick who they consult in order to get the results they want.

“In recent years, the Government has introduced a whole host of new laws which have tried to stop people from being able to speak up for what they believe in. Powers in the Policing Act and Public Order Act have criminalised the fundamental ways of protest, such as for being too noisy. It is worrying that the Government is still planning to bring in more restrictions, including a ban on wearing face coverings at protests, which would make it unsafe for some disabled people and political dissidents from Hong Kong to protest.

“We hope today’s ruling makes the Government take stock, and that they instead work to protect our rights rather than strip them away further.”

Shameem Ahmad, CEO of Public Law Project, said:

“The Court has agreed with Public Law Project and Liberty that the Home Secretary acted unlawfully by misusing her executive power to restrict one of our fundamental rights, thereby undermining the role of Parliament.

“In giving Government ministers the ability to amend Acts of Parliament through Statutory Instruments, Parliament hands them a significant amount of power. That power must be used with the utmost care. The Home Secretary fell woefully short of that standard and her actions crossed a line which no minister of state of any Government should have even thought about crossing.

"We welcome the Court’s ruling, which recognises that our rights and constitution cannot be unilaterally and arbitrarily undermined by the executive and that ministers must not act outside of the powers granted to them by Parliament.

“Statutory instruments are being used more and more by the executive with very little scrutiny by Parliament. This judgment is an important reminder that there are well-established principles concerning when a statutory instrument is or is not lawful.

“Those in Government, present and future, should pay heed and commit to respecting our constitution and our fundamental rights.”

Liberty was represented by Jude Bunting KC of Doughty Street Chambers, Hollie Higgins of Blackstone Chambers and Rosalind Comyn of Matrix Chambers.

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