Liberty v Secretary of State for the Home Department

The Regulations

Sections 12 and 14 of the Public Order Act 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”.

The Government attempted to pass primary legislation which would have served to equate “serious disruption to the life of the community” to “a hindrance that is more than minor”. That primary legislation was rejected by the House of Lords. The Secretary of State then made the Regulations which purported to make identical amendments. Those Regulations were made under so-called ‘Henry VIII’ powers by which the Secretary of State may by regulations amend certain aspects of those sections “for the purposes of making provision about the meaning of… serious disruption to the life of the community”.

The judgment

The Divisional Court found that the Regulations are unlawful on two grounds:

1. First, they were ultra vires the ‘Henry VIII’ powers pursuant to which they were made (Ground 1). The Court found that the expression “serious” was intended to set the threshold for police intervention at a relatively high level; the enabling power was a power to clarify but not change the meaning of “serious disruption to the life of the community”; and the expression “more than minor” is not within the scope of the word “serious” both as a matter of the ordinary and natural meaning of the word and having regard to other aids to construction.
2. Second, they resulted from an unfairly one-sided consultation process (Ground 4). The Court found that in substance the Secretary of State had engaged in a process of consultation with police bodies regarding the content of the Regulations; a consultation exercise voluntarily undertaken must be undertaken in accordance with public law principles; the applicable standard of review was fairness and not rationality; fairness extends to decisions about who should be consulted; and in the circumstances of the case it was unfair for the Secretary of State not to consult any body representing the interests of protestors.

However, the Divisional Court rejected the argument that the Regulations were ultra vires because they subverted Parliamentary sovereignty in seeking to achieve by subordinate legislation that which Parliament rejected as primary legislation (Ground 2) or otherwise unlawful because they served to frustrate and circumvent the will of Parliament without objective justification (Ground 3). The Court did not accept that what had occurred could be classified as a frustration or circumvention of Parliamentary sovereignty or the separation of powers, and that the case-law concerning the boundaries between different pillars of the constitution (such as Miller II) did not concern the question of where the balance of power lay as between two different exercises of Parliamentary power.

The Secretary of State has been granted permission for an expedited appeal on public importance grounds.

Hollie Higgins acted for the Claimant, Liberty.

Sir James Eadie KC and Tom Leary acted for the Defendant, the Secretary of State.

Tom de la Mare KC and Tom Cleaver acted for the Intervener, Public Law Project.

The judgment may be found here.