Human Rights Law Centre: UK High Court upholds protest rights, finds amendments to Public Order Act unlawful

In May, The UK High Court ruled in favour of challenges to amendments to the Public Order Act of 1986 (POA Act) which would’ve enabled increased police intervention in protests. In doing so, the Court protected the crucial civil right to peaceful assembly, representing “a significant win for protest rights campaigners in England.” 

The POA Act is a UK law that regulates public order offences and allows the police to intervene in a public assembly if there is a “serious disruption to the life of the community.” 

The first amendments to the Act in 2022 granted the Secretary of State the power to amend the definition of “serious disruption,” colloquially regarded as the “Henry VIII power.” This meant that amendments would be “subject to less scrutiny than Bills and cannot be amended by either House of Parliament.” 

Then, two new public order offences were introduced: “locking on” and “tunnelling.” These new offences would bring on police action if they were regarded as “more than minor.” The definition of this phrase is “legally uncertain.” It facilitates greater police discretion and lowers the threshold for police intervention in protests. 

Civil rights groups were also not consulted in the formation of the proposal, relying exclusively on police enforcement agencies for its design. 

The challenges to the amendments were launched in National Council for Civil Liberties v Secretary of State for the Home Department [2024] EWHC 1181. The Court upheld two of the four challenges presented by the National Council for Civil Liberties:

  • “Ground 1: The regulations were ultra vires such that it is beyond the legal power of the Secretary of State to amend the Act in this manner. The Secretary of State should not be allowed to lower the threshold for police intervention, which would be done by altering the definition of “serious disruption” to “more than minor”.
  • Ground 4: The regulations were unlawful because they are the result of an unfair consultation process.”

The Court ruled that “more than minor” was not within the scope of the word “serious,” lowering the threshold for the offence. This aligns with the Home Office’s Economic Note of early 2023 which estimated that if the regulations were adopted, “police interventions in processions and assemblies would increase by up to 50% and prosecutions would also rise substantially.” 

The Court also concluded that the consultation process was “one-sided and not fairly carried out,” marking it “procedurally unfair and unlawful.” 

The decision of the case signifies the importance of the protection of civil liberties. It also reveals the “limitations in circumventing legislative processes.”

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