High Court rules government attack on protest is unlawful

The government crackdown on protest rights has suffered a setback, after the High Court found that moves to make it easier for the police to arrest peaceful protesters are unlawful.

The former home secretary Suella Braverman brought the measures in last year without proper debate in parliament, using Henry VIII powers to expand the definition of “serious disruption” as it relates to processions and assemblies under the Public Order Act 1986 to include anything which was “more than minor”. These powers allow ministers to make changes to laws parliament has already passed, such as acts, without the same level of parliamentary scrutiny.

Braverman launched this attack on protest rights even though the House of Lords had rejected an attempt to do the same thing through the Public Order Bill a matter of weeks before. The Home Office was estimating the new definition would increase the number of police interventions by up to 50%, and prosecutions would rise substantially.

After a legal challenge brought by Liberty, with Public Law Project supporting as an intervener, the High Court decided that the government did not have the power to make such changes to the legislation, and so they were unlawful. The court also ruled that the changes were unlawful because the process the government used to decide them was procedurally unfair.

In administrative law, when a decision-maker does something which is outside their powers, this is known as acting ultra vires. For example, if parliament gave a minister the power to “Supply homes to homeless people”, but the minister used that power to give homes to people who already had secure housing, that would be acting ultra vires. This is unlawful, because it exceeds the power given to you by parliament.

The High Court found that, given its “ordinary and natural meaning”, as well as “its purpose and context”, “the expression ‘serious’ is intended to set the threshold for police intervention at a relatively high level”. This reflects “the important balance to be struck between the right of free speech, assembly and protest, on the one hand, and the orderly conduct of society, on the other”. The court concluded that “more than minor” did not fall within the ordinary and natural meaning of serious, “however generously construed”. The government had acted ultra vires, and the redefinition was unlawful.

The court agreed with Liberty and Public Law Project that parliament wouldn’t have even contemplated the Henry VIII powers could be used to change the meaning of “serious” in order to “lower the protection accorded to the fundamental common law rights of public procession and assembly and materially to increase the exposure of protesters to criminal proceedings”. If this kind of change were considered, the court added, this would need to be done through passing an Act.

The court also found that the consultation process the government adopted was “one-sided and not fairly carried out. For this reason it was procedurally unfair and unlawful.”

Faced with this stinging judgment, the government has spent no time reflecting before deciding to appeal. The High Court has left the measures in place until the appeal is heard, so more protesters will be added to the hundreds already arrested under these unlawful provisions.

It’s alarming that the government feels it can attack our fundamental rights, including the right to protest, even when doing so violates important constitutional principles. It’s essential to our democracy that those granted power do not exceed the scope of that power, and that they act fairly when they exercise it. When the government acts unlawfully to attack our rights, we must hold it to account.

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