The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 - High Court judgment

 

An earlier post (9 May 2023) referred to The Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 - Law and Lawyers: Coronation Day arrests - Public Order law (obiterj.blogspot.com). 

The government (mainly Home Secretary Suella Braverman) chose to use secondary legislation to define the statutory meaning of 'serious disruption' even though, the same change had recently been explicitly rejected by Parliament during the passage of a public order bill;. The Regulations came to define "serious disruption" as "more than minor." 

There was contemporaneous criticism

of this in an article by Tom Hickman KC and Gabriel Tan and published by the UK Constitutional Law Association. The article is well-worth reading - Reversing Parliamentary Defeat by Delegated Legislation: The Case of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023.

The House of Lords (Secondary legislation scrutiny committee) brought the matter to the attention of legislators but, nevertheless, they passed the affirmative resolutions required to permit the change to come into law - Lords Committee questions Government bringing forward previously rejected public order proposals - Committees - UK Parliament.

LIBERTY decided to apply for judicial review of the Regulations - LIBERTY LAUNCHES LEGAL ACTION AGAINST HOME SECRETARY FOR OVERRIDING PARLIAMENT ON PROTEST POWERS - Liberty (libertyhumanrights.org.uk)

On 21 May, the High Court handed down its judgment - National Council for Civil Liberties, R (On the Application Of) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin) (21 May 2024) (bailii.org)

A Press Release (available on the Judiciary website) notes - 'Recognising the public importance of the issue the High Court has granted the Secretary of State permission to appeal and has indicated that the appeal should be expedited. Pending the appeal the Court has also suspended its order that the Regulations be quashed.' 

The court's judgment (para 185) states - 'For all the above reasons Grounds I and IV succeed. However, Grounds II and III are dismissed. The ultimate effect of this judgement is that the Regulations are unlawful.'  [Judgement and not judgment is the spelling in para 185].

There is no mention there of suspension of operation. The consequence seems to be that the Regulations are in force pending the outcome of the expedited appeal. It is a pity that the judgment itself does not make this crystal clear.