High court challenge to ‘constitutionally unprecedented’ UK anti-protest law

A new law making it easier for the police to put conditions on peaceful protests is “constitutionally unprecedented” and unlawful, according to a claim filed at the high court in London.

The legal challenge from the National Council for Civil Liberties, also known as Liberty, is seeking to have the controversial regulations quashed, given what the advocacy group describes as the draconian consequences for fundamental rights.

The former home secretary Suella Braverman used the government’s so-called Henry VIII powers to lower the threshold for the police to impose restrictions on protests, allowing it where there is merely a “more than minor” hindrance on people’s daily lives.

The change, through a statutory instrument in the Lords, came after the chamber rejected the same change, proposed months earlier in a heavily debated and scrutinised new public order act. Peers do not by convention normally vote down statutory instruments.

The manner in which the regulations are said to have been forced through parliament is said by lawyers acting for Liberty to “represent a constitutionally unprecedented attempt on the part of the executive to achieve by the back door through delegated legislation what it was unable to achieve by the front”.

There had been “no reasonable justification” provided for using a statutory instrument to change the law, it is claimed, and there was inadequate consultation of those who would be affected.

Katy Watts, a lawyer at Liberty, said: “We all want to live in a society where our government respect the rules, but time and again this government has done the opposite. The previous home secretary’s actions to sneak in rejected laws through the back door are a particularly egregious example of this.

Related: How will recent and future legislation affect the right to protest in the UK?

“The wording of the government’s new law is so vague that anything deemed by police to cause ‘more than a minor’ disturbance could have restrictions imposed upon it. This has serious implications for everyone’s right to stand up for the things they believe in.

“These laws had been thrown out by parliament just months before the then home secretary introduced them. It’s shocking to see the government so flagrantly disregard our vital democratic checks and balances, and we’re determined not to let this stand.

“Our legal action is intended to stop this government’s flouting of the law in its tracks, and make sure that nobody – including our politicians – is above the law. It’s vital that they are not allowed to get away with it.”

In the protest regulations brought into force on 14 June, “more than minor” hindrances or delays are included in the definition of “serious disruption” that is the threshold at which the police may impose conditions on a protest under the public order act 1986.

The police are also allowed to take into account the cumulative effect of repeated protests when deciding whether the threshold had been met.

The government has said the regulations are an attempt to deal with the activities of Just Stop Oil and Extinction Rebellion, and that the language around “more than minor” hindrances mirrors that in other new offences of ‘locking-on’ and ‘tunnelling’.

The changes were nevertheless rejected by the House of Lords in February by 254 votes to 240 when they were put forward as amendments during the passage of the public order bill 2023, only for them to re-emerge in a statutory instrument.

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Regulations brought in by such means, known a Henry VIII powers in reference to the monarch’s preference for legislating directly by proclamation, are subject to minimal parliamentary scrutiny and decided on an “all or nothing” basis without amendments.

Between 1950 and 2017, only 0.01% of the total number of such instruments laid before parliament were rejected.

Liberty’s legal challenge refers to supporting comments by the Lords’ secondary legislation scrutiny committee, which had been sufficiently alarmed to warn peers of “constitutional issues” and told them it was “not aware of any examples of this approach being taken in the past”.

The legal challenge said it could not be right that parliament was “treated as having provided [the] executive with a blank cheque to lower the applicable threshold by the back door and thereby sanction greater police interference with public assemblies and protests”.

The government’s consultation is also said to have been limited to a roundtable chaired by the prime minister with the National Police Chiefs’ Council, the Metropolitan police service and the police and crime commissioners of the police forces whose areas include the M25 and national highways.

A Home Office spokesperson said: “The right to protest is a fundamental part of our democracy but we must also protect the law-abiding majority’s right to go about their daily lives.

“That is why legislation is in place to clarify the definition of serious disruption and give police the confidence they need to clear roads quickly.

“This legislation was voted on by both the House of Commons and House of Lords, following proper parliamentary procedure.”