The Public Order Act 1986 permitted the police to intervene in a public procession or assembly in order to prevent “serious disruption to the life of the community”. That expression that was undefined in the Act. The Police, Crime, Sentencing and Courts Act 2022 amended the 1986 Act to confer upon the Secretary of State a power to amend the definition of “serious disruption” by means of subordinate, secondary, legislation (termed colloquially a “Henry VIII power”). That same year, in order to address new forms of protest being undertaken by certain action groups which the Government considered to be extreme, it introduced the Public Order Bill creating two new offences of “locking on” and “tunnelling” where they gave rise to “serious disruption” broadly defined by reference to a threshold of “more than minor”. Subsequently the Government exercised the newly conferred Henry VIII power to amend legislation by secondary measure and laid draft regulations before Parliament, under the affirmative resolution procedure, which, in preponderant part, repeated the provisions about processions and assemblies which had been rejected by the House of Lords. The House of Lords Secondary Legislation Scrutiny Committee published a highly critical report on the draft legislation which concluded that they would lower the threshold for police intervention in public processions and assemblies; the new definition was legally uncertain; it was unparalleled for the Government to seek to introduce by a secondary measure law which had been rejected by primary legislation; and that the Government consultation upon the measure was “inadequate”, given its controversial and far reaching nature. As part of the process leading up to the new regulations the Government consulted law enforcement agencies as to the practical implications of altering the law. It did not, however, consult more widely with the public or with any other body or organisation who might have opposed the proposed changes, which had adverse implications for the civil right of protest. The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 came into force on 14 June 2023. The claimant sought judicial review of those Regulations on the grounds, inter alia, that: (i) they were ultra vires the enabling power in sections 12(12) and 14(11) of the 1986 Act; and (ii) the consultation process was unfair.
On the claim for judicial review—
Held, claim allowed. (1) The expression “serious” in the context of “serious disruption” in the Public Order Act 1986 was intended to set the threshold for police intervention at a relatively high level. That reflected its ordinary and natural meaning, its purpose and context, and was a conclusion consistent with admissible extrinsic material. It reflected 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 (para 72).
(2) The enabling power in sections 12(12) and 14(11) of the 1986 Act was not unlimited and it could not be used to promulgate regulations which had no linguistic connection to the phrase “serious disruption”. Applying conventional principles of construction the power had to be read in the context of the 1986 Act, which was to set the threshold for police intervention at a relatively high level. The scope of the power had to be consistent with that statutory purpose and context, which was that it was intended to clarify but not alter. That conclusion was in line with the ministerial statement in Parliament in which it was emphasised that the power was to be exercised by reference to what “can reasonably be understood as serious disruption” and that the threshold for police intervention would be “clarified not changed”. The appropriate rule of construction applied to Henry VIII powers supported the conclusion that the power could only be used to clarify or exemplify but not alter or change. That was especially appropriate in a context where the word “serious” had been carefully chosen by Parliament to reflect the balance to be struck between competing fundamental common law rights and where altering the balance of those rights, in a manner adverse to protestors, exposed those persons to an increased risk of criminal sanction. That was not the purpose of the enabling power (paras 83, 84, 85).
(3) The enabling power could only be exercised where there was a proper connection or nexus with the concept of seriousness. The dispute between the parties turned on whether the expression “more than minor” was within the linguistic penumbra of “serious” and whether, more particularly, it encapsulated certain statutory phrases. As a matter of common parlance and in view of the case law and other legislative comparables, “more than minor” would not on a natural and ordinary meaning be treated as falling within the scope of “serious”, however generously construed. The phrase “more than minor” broadened the seriousness net and contemplated police intervention in conduct which was far closer to that which was normal or everyday. It would, by the very nature of the expression, be harder to differentiate the normal or everyday from that which warranted police intervention and it was intrinsically more likely to increase the number of disputes as to where the threshold for intervention lay on the facts of a particular case. That conclusion was consistent with, and confirmed by, the purpose and context to the 1986 Act, principles of construction applicable to Henry VIII powers, considerations of legal certainty and the in pari materia principle of interpretation. It was not affected by the fact that the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 were subject to scrutiny in the course of the affirmative resolution procedure. It followed that the Regulations were ultra vires the enabling power contained within sections 12(13) and 14(11) Public Order Act 1986 (paras 86, 87, 91–100).
(4) The purpose of consulting went beyond merely informing the reasoning in support of the eventual decision. Consultation had to ensure the decision was both of high quality and justly reached. Fairness in carrying out a consultation was part of procedural fairness in decision-making more generally. As in other contexts where procedural fairness was at issue, what fairness demanded would depend on the facts of the case and the context. Whether those demands had been satisfied in a particular case was a matter for the court, not the decision-maker. In the present case a voluntary consultation process was undertaken, however it was one-sided and not fairly carried out. Accordingly, it was procedurally unfair and unlawful (paras 164, 183, 184).
Jude Bunting KC and Hollie Higgins and Rosalind Comyn (instructed by Liberty) for the claimant.
Sir James Eadie KC and Russell Fortt and Tom Leary (instructed by Treasury Solicitor) for the Secretary of State.
Tom de la Mare KC and Tom Cleaver and Bijan Hoshi (instructed by Herbert Smith Freehills LLP) for the Public Law Project, intervening.