A Court of Appeal judgment which found the government had wrongly used 'Henry VIII powers' in passing protest legislation has been hailed as a ‘huge victory’ for democracy and the rule of law - and could see lawyers ‘urgently’ reviewing cases.

The appeal in National Council for Civil Liberties v Secretary of State for Home Department before Lord Justice Underhill, Lord Justice Dingemans and Lord Justice Edis, centred on the lawfulness of regulations amending the Public Order Act 1986 to empower the police to impose conditions on public processions and assemblies.

Liberty (formerly the NCCL) successfully sought judicial review of then home secretary Suella Braverman’s decision to make the regulations, arguing that the amendments to the act were outside the government’s powers and that the government had conducted a one-sided consultation process. The regulations were quashed.

Braverman appealed the decision. Following the general election, the new home secretary, Yvette Cooper, was given time to decide if she wished to pursue the appeal, which she did. The case was heard last December. 

In lead judgment, Lord Justice Underhill, backed by Lord Justice Dingemans and Lord Justice Edis, dismissed the appeal on the basis that the divisional court was right to hold that the amendments made to the 1986 act were outside the power conferred by the Police, Crime, Sentencing and Courts Act 2022. Referring to the consultation, he said he did ‘not believe that the government’s engagement with the policing bodies…had the character of a formal consultation’ but was ‘essentially intra-governmental’.

Read more

He added: ‘It was not of a character that required it to comply with the common law principles as regards procedural fairness. Engagement of this kind is not only sensible but necessary; but it is of a wholly different character from formal consultation.’

Dismissing the appeal, the judge said the ‘divisional court was right to hold the amendments made to sections 12 and 14 of the 1986 act by the regulations were outside the amendment power conferred by the 2022 Act’ but ‘would not, however, uphold the divisional court’s decision that the regulations were unlawful’.

Katy Watts, lawyer at Liberty, said: ‘We launched this legal action two years ago to ensure that governments are not able to sneak in legislation via the back door that weakens the rights of all of us. This judgment is a victory for parliament and the rule of law. We hope [the] ruling makes the government take stock and take a different direction that respects protest rights, instead of stripping them away further.’

Shameem Ahmad, chief executive of Public Law Project, which intervened in the case, said: ‘These restrictive protest laws should now be permanently abandoned and Henry VIII powers relegated to the annals of history where they belong.’

Raj Chada, head of criminal defence at Hodge Jones & Allen, who has represented protesters including climate activist Greta Thunberg, welcomed the judgment. He added: 'We will be urgently reviewing the cases of our clients who were convicted under this unlawful legislation and will be considering appeals.'

 

This article is now closed for comment.