High Court rules increasing police powers over protests ‘unlawful’ following legal challenge

Judges have ruled that the Government “acted unlawfully” in creating the law that lowered the threshold of when the police can impose conditions on protests.

Following a landmark legal challenge from human rights organisation Liberty, the court has ordered the law to be quashed.

In its judgment published on Tuesday (May 21), the High Court found that the then Home Secretary Suella Braverman passed anti-protest measures in June 2023 despite having not been given the power by Parliament to do so.

The Home Office has already announced that it is appealing the ruling to the Court of Appeal. The High Court has suspended the reversal of the measures until after the outcome of the appeal.

However, campaign group Liberty, which brought the case, has called for police to refrain from using the powers until the appeal has been heard.

In a statement, it called the ruling a “victory for democracy” that showed the Government “cannot step outside of the law to do whatever it wants”.

The legislation significantly lowered the threshold of when the police can impose conditions on protests from anything that caused ‘serious disruption’ to anything that was deemed as causing ‘more than minor’ disruption.

In Tuesday’s’s ruling, Lord Justice Green and Mr Justice Kerr said that the Government ignored Parliament’s will in failing to define the meaning of ‘serious disruption’, and instead broadened the definition to the point that police were allowed to intervene in protests where disruption was “closer to that which is normal or everyday”.

The High Court also found that the consultation ran by the Government prior to proposing this legislation was “one-sided and not fairly carried out”, and therefore also unlawful.

It also said the Government had invited only those supportive of its plans to a consultation meeting to discuss the measure – groups included policing bodies and the Crown Prosecution Service  – but did not engage other parties that would be impacted such as community groups and protest groups.

Liberty said that the ruling shows that the Government “cannot just cherry pick who they consult in order to get the results they want.”

“The Government had initially tried to pass these powers as part of the Public Order Act in January 2023, but the proposals were democratically rejected by Parliament,” said Liberty.

“However, a few months later in June 2023, Ms Braverman pushed through the law via ‘secondary legislation’, which requires less Parliamentary scrutiny and debate.”

Liberty said the Government had purposely “sneaked this law through the back door” to evade accountability.

Akiko Hart, Liberty’s director, said: “This ruling is a huge victory for democracy, and sets down an important marker to show that the Government cannot step outside of the law to do whatever it wants.

“We all have the right to speak out on the issues we believe in, and it’s vital that the Government respects that. These dangerous powers were rejected by Parliament yet still sneaked through the back door with the clear intention of stopping protesters that the Government did not personally agree with, and were so vaguely worded that it meant that the police were given almost unlimited powers to shut down any other protest too.

“This judgment sends a clear message that accountability matters, and that those in power must make decisions that respect our rights.”

Katy Watts, a lawyer at Liberty, added: “We launched this legal action to ensure that the Government was not allowed to wilfully ignore the rules at the expense of our fundamental human rights.

“It is not up to the Government to decide what causes people can protest on, nor is it right for the government to sideline both Parliament and the public in making these decisions. Those in power cannot just cherry pick who they consult in order to get the results they want.

“In recent years, the Government has introduced a whole host of new laws which have tried to stop people from being able to speak up for what they believe in.

“Powers in the Policing Act and Public Order Act have criminalised the fundamental ways of protest, such as for being too noisy. It is worrying that the Government is still planning to bring in more restrictions, including a ban on wearing face coverings at protests, which would make it unsafe for some disabled people and political dissidents from Hong Kong to protest.

“We hope today’s ruling makes the Government take stock, and that they instead work to protect our rights rather than strip them away further.”

The Government’s new public order powers to prevent individuals causing repeated serious disruption come into force in April.

Serious Disruption Prevention Orders, introduced as part of the Public Order Act 2023, which was passed last year, empower the police to intervene before individuals cause serious disruption, for those who have previously committed protest-related offences or ignored court-imposed restrictions.

The new orders can impose a range of restraints on an individual, including preventing them from being in a particular place or area, participating in disruptive activities and being with protest groups at given times. They can also stop individuals from using the internet to encourage protest-related offences.

The new orders built on government action announced earlier this year which will prevent protestors from using facemasks to conceal their identity at certain protests, make climbing on designated war memorials a criminal offence and ban the possession of flares and pyrotechnics at protests.

Earlier this year, the Home Affairs Committee warned that the scale and frequency of recent protests were a drain on police resources and were putting wider policing priorities at risk, .

It said the emergence of deliberately disruptive protest tactics has created additional challenges in balancing the right to protest with preventing disorder.