The Court of Appeal (CoA) was asked to review a case on the lawfulness of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 which aimed to alter the threshold at which Police can impose conditions, shifting it from a reasonable belief of "serious disruption to the life of the community" to instances where the disruption was considered "more than minor".
Background:
On 23 June 2023, the claimant, the National Council for Civil Liberties, issued proceedings seeking judicial review of the Secretary of State's decision to make the Regulations amending the provisions of the Public Order Act 1986, which empower the Police to impose conditions upon public processions and assemblies.
The Divisional Court (DC) upheld both the ultra vires ground and the consultation ground and made an order quashing the Regulations in May 2024. The Secretary of State appealed against that decision.
Decision:
The CoA dismissed the appeal, upholding the DC’s judgement that the Regulations were outside the amendment power conferred by the Police, Crime, Sentencing and Courts Act 2022. However, the CoA did not uphold the Divisional Court's decision that the Regulations were unlawful for the further reason that the Secretary of State had carried out an unfairly selective consultation.
The Court rejected the Secretary of State’s argument that the power granted to define "serious disruption" is broad and allows for any "linguistically tenable" definition. Instead, the Court noted that the natural meaning of "serious" implies a high threshold, while "minor" implies a low one. The Judge believes these concepts cannot logically overlap to the extent that "serious" could reasonably encompass anything "more than minor".
The Court noted that even if the Secretary of State's interpretation were linguistically possible, the power to define must be understood within the context of the 1986 Act. This Act originally struck a balance between the right to protest and the rights of the community, using a higher threshold of "serious disruption". It is unlikely that Parliament intended to grant the power to fundamentally alter this balance through secondary legislation. Moreover, as the Regulations concerned the fundamental right to protest, it is unlikely that Parliament would have granted a broad power to interfere with this balance through secondary legislation.
The power granted to the Secretary of State is a "Henry VIII power," allowing amendment of primary legislation. In cases of ambiguity regarding the scope of such powers, the courts should adopt a narrower interpretation, which, in this case, means not allowing the threshold to be lowered so significantly.
The Judge agrees with the Secretary of State that the engagement with policing bodies was not a formal consultation requiring adherence to common law principles of procedural fairness. Instead, it was considered an "intra-governmental" process of seeking input from the authorities responsible for implementing the potential changes.
Implications:
This case is of crucial importance for those involved in organising or participating in public demonstrations, as well as for those tasked with their policing. While focusing on the broader scope of public order legislation, this decision carries potential implications for UK nationals and non-UK nationals alike who may be considering participating in demonstrations.
This judgement demonstrates that courts are ensuring the Secretary of State acts within the powers conferred upon them. While the Regulations no longer stand, the discussion on ‘minor’ and ‘serious’ disruption remains important; when participating in a protest, ensure that it remains within the bounds of what could be considered as the reasonable exercise of your right to assembly without causing undue disruption to the life of the community.
