National Council for Civil Liberties, R (on the application of) v Secretary of State for the Home Department

The statutory expression serious disruption sets a relatively high threshold for police intervention in public processions and assemblies. A Henry VIII power to make provision about its meaning permits clarification and exemplification, but not alteration of that threshold. The phrase more than minor lies materially below serious and could not lawfully be introduced through the delegated power. Parliamentary approval under the affirmative resolution procedure does not prevent judicial review of subordinate legislation. Where government voluntarily undertakes a consultation, it must act fairly. In an exceptional case involving fundamental protest rights, increased exposure to criminal sanctions, identifiable affected groups and a developed proposal, a one-sided consultation confined to enforcement bodies may be unlawful.

The claimant sought judicial review of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023. The Regulations amended sections 12 and 14 of the Public Order Act 1986, including by defining serious disruption through a threshold of more than minor and by addressing relevant, cumulative disruption and the meaning of community.

The challenge alleged that the Regulations exceeded the Henry VIII powers inserted by the Police, Crime, Sentencing and Courts Act 2022; frustrated Parliamentary sovereignty and the separation of powers; and resulted from an unfair consultation. Public Law Project intervened. The central issues were whether the delegated power permitted the proposed changes and whether the consultation process was procedurally fair.

1. Ground I succeeded. Sections 12 and 14 of the Public Order Act 1986 impose a relatively high threshold because they authorise state interference with fundamental common-law rights of protest, expression and assembly, and breach of conditions is criminalised. The word serious, read in its ordinary and natural context, lies relatively high on the scale and is above the de minimis threshold.
2. The powers in sections 12(12) and 14(11) of the Public Order Act 1986 were broad but not unlimited. Read in context and applying the restrictive approach to Henry VIII powers, they permitted clarification or exemplification of serious disruption, not a change to the statutory threshold.
3. The expression more than minor was materially lower than serious and did not fall within its ordinary meaning. The Regulations therefore exceeded the enabling power. The court also considered that the definitions of relevant disruption, cumulative disruption and community were within the power when viewed independently, although their application remained controlled by the proper meaning of serious disruption.
4. Grounds II and III failed. Assuming the Regulations were otherwise intra vires, their adoption through the statutory affirmative procedure was not, without more, frustration or circumvention of Parliamentary sovereignty. The court declined to treat the affirmative procedure as determinative of legality, but it also declined to evaluate the quality of Parliamentary scrutiny.
5. Ground IV succeeded. The government had undertaken a consultation exercise, notwithstanding its later description of the process as targeted engagement. The proposal was sufficiently developed, consultees were invited to comment on its substance and drafting, and their responses influenced the final measure. Fairness required more than consultation solely with enforcement bodies. The relevant combination of increased criminal exposure, interference with fundamental protest rights, identifiable affected groups, a formative proposal and the modest burden of wider consultation made the process one-sided and procedurally unfair.
6. The Regulations were unlawful. Grounds II and III were dismissed; Grounds I and IV succeeded.