The King (on the application of National Council for Civil Liberties) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Green,Mr Justice Kerr |
| Judgment Date | 21 May 2024 |
| Neutral Citation | [2024] EWHC 1181 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-001944 |
and
[2024] EWHC 1181 (Admin)
Lord Justice Green
and
Mr Justice Kerr
Case No: AC-2023-LON-001944
IN THE KINGS BENCH DIVISION
ADMINISTRATIVE COURT
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
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 Government Legal Department) for the Defendant
Tom De La Mare KC and Tom Cleaver and Bijan Hoshi (instructed by Herbert Smith Freehills LLP) for the Intervener
Hearing dates: 28 and 29 February 2024
Approved Judgment
This judgment was handed down remotely at 10.30am on 21 May 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Lord Justice Green, Mr Justice Kerr
A. Introduction:
The issue
The Public Order Act 1986 (“ POA 1986”) permits the police to intervene in a public procession or assembly in order to prevent “ serious disruption to the life of the community”, an expression which is undefined in the Act.
In 2022 the Police, Crime, Sentencing and Courts Act 2022 (“ PCSCA 2022”) amended the POA 1986 to confer upon the Secretary of State a power to amend the definition of “ serious disruption” by means of subordinate, secondary, legislation. This is colloquially termed a “ Henry VIII power”. In R (on the application of the Public Law Project) v The Lord Chancellor [2016] UKSC 39 (“ PLP”) at paragraph [25] the Supreme Court cited with approval the definition in Craies on Legislation (10th ed (2015) (“ Craies”) at paragraph [1.3.9]:
“The term ‘Henry VIII power’ is commonly used to describe a delegated power under which subordinate legislation is enabled to amend primary legislation.”
That same year, in order to address new forms of protest being undertaken by certain action groups which the Government considered to be extreme, the Government introduced into the House of Commons a 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”. The Government did not seek to amend the threshold for intervention by the police in relation to ordinary public processions or assemblies.
In 2023 the Government laid before the House of Lords two amendments to the Public Order Bill which, now in relation to public processions and assemblies, sought to expand the definition of “ serious disruption” in the POA 1986 to include anything which was “ more than minor”. The House of Lords however rejected one of the amendments and the other was not pursued. The Government made no further attempt to reintroduce the amendments into the legislation during that Parliamentary session.
Instead, and before the Public Order Act 2023 (“ POA 2023”) received Royal Assent, 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 so recently rejected by the House of Lords.
The Home Office prepared an Economic Note in March/April 2023 seeking to assess the impact of the draft regulations. In this Note it was estimated that, if adopted, the new definition would increase the number of occasions when the police intervened by up to 50% and that prosecutions would also rise substantially.
The draft regulations came before the House of Lords Secondary Legislation Scrutiny Committee (“ the HL Scrutiny Committee”) which published a highly critical report in May 2023. This concluded that: the Regulations 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, 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 in this way. The Government 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 draft regulations were laid before the House of Commons and the House of Lords and came into force on 14 June 2023. In the light of this chronology the Claimant (“ Liberty”) commenced proceedings for judicial review. Public Law Project (“ PLP”) applied successfully to intervene to support Liberty.
The Grounds of challenge
Four grounds of challenge are advanced by Liberty which we summarise as follows:
a. Ground I — The Regulations are ultra vires: There were two aspects to this argument. The principal argument focused upon the powers introduced to enable the Secretary of State to clarify what was meant by “ serious disruption”. It was argued that this power did not allow the Secretary of State to depart from the natural and ordinary meaning of that expression and/or to lower the threshold for police intervention. On a correct interpretation of the enabling power the Regulations, through the expression “ more than minor”, lowered the threshold for intervention, created a substantially increased exposure to criminal sanctions on the part of protestors exercising their civil rights, and created a test which did not fall within the normal and natural meaning of “ serious disruption”. The Regulations were therefore ultra vires the enabling power. The secondary argument concerned the expression “… disruption to the life of the community” and now focused upon the words “ disruption” and “ community”. In relation to both of these terms it was said that the Regulations set out definitions which went beyond the scope of the enabling power. In relation to “ disruption” Parliament had provided in the POA 1986 that the relevant question for the police officer was whether the public assembly or procession in question may result in serious disruption. The Regulations, however, directed the police to take into account other past or future disruption caused by entirely independent events (including other assemblies or processions). In relation to “ community” the Regulations went beyond the enabling power by defining the community by reference to a wider class of affected persons than contemplated by the enabling power.
b. Ground II – The Regulations are ultra vires because they subvert Parliamentary sovereignty in seeking to achieve by subordinate legislation that which Parliament rejected as primary legislation: The enabling powers do not extend to the making of secondary legislation which is materially identical to draft primary legislation rejected by Parliament. An exercise of the power in this manner subverts the constitutional relationship between the Executive and Parliament and could only be exercised by clear and unambiguous words, which do not exist in this case.
c. Ground III: The Regulations are unlawful because they frustrate and circumvent the will of Parliament and lack objective justification: In the light of the judgment of the Supreme Court in R (Miller) v The Prime Minster; Cherry and others v Advocate General for Scotland [2019] UKSC 41 (“ Miller II”) (on the limits to the exercise of the prerogative power to prorogue Parliament) the enabling power cannot, absent objective justification, be used in a manner which “ undermines or frustrates the legislative policy of Parliament” and/or “… amounts to an interference with the fundamental constitutional principle of Parliamentary sovereignty and separation of powers”. In this case the Regulations frustrate Parliamentary policy and undermine the separation of powers and lack objective justification.
d. Ground IV – The Regulations are unlawful because they are the result of an unfair consultation process: The process by which the Regulations came into being was vitiated by unlawful procedural unfairness. The Executive voluntarily embarked upon a process of consultation about the contents and drafting of the Regulations but consulted only a narrow group of stakeholders (law enforcement agencies) who had a particular stance or view. The Executive did not act in an even-handed manner to obtain the views of those whose interests might be adversely affected and whose views might be different from those who were consulted.
We emphasise at the outset of this judgment that the issues of law are technical. We express no view on the merits of the changes the Government sought to introduce via the Regulations or whether they could in the future be introduced by primary legislation.
B. Legislative Framework and History
All parties rely upon aspects of the legislative history. We start by setting out the most important steps in that chronology.
Public Order Act 1986: Processions and assemblies
Sections 12 and 14 of the POA 1986 empower the police to impose conditions upon public processions and assemblies respectively. The power is exercisable only if an officer reasonably believes that the procession or assembly may result in “… serious public disorder, serious damage to property or serious disruption to the life of the community”.
Section 12(1) on public processions (as originally enacted) provided:
“If the senior police officer, having regard to the time or place at which and the circumstances in which any public procession is being held or is...
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