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

A Henry VIII power to make regulations about the meaning of a statutory threshold permits clarification and exemplification within that threshold. It does not permit secondary legislation to lower a threshold fundamental to the balance between protest rights and public order. “Serious” disruption carries a relatively high threshold; “more than minor” disruption is materially lower and cannot define it.

A definition adopted by Parliament in another Act does not enlarge the delegated power. “The community” may cover a class of persons affected as such. Government engagement with operational stakeholders is not formal consultation merely because it concerns a crystallised proposal at a formative stage.

The National Council for Civil Liberties challenged regulations made by the Secretary of State under the Public Order Act 1986, as amended by the Police, Crime, Sentencing and Courts Act 2022. The regulations defined examples of serious disruption by reference to disruption that was “more than minor” and defined the community by reference to affected persons.

The Divisional Court upheld ultra vires and consultation grounds and quashed the regulations: [2024] EWHC 1181 (Admin). The Secretary of State appealed. The central issues were whether the regulations exceeded the Henry VIII power and whether engagement with policing bodies amounted to a formal, unfairly selective consultation.

1. Disposition. The appeal was dismissed overall. The regulations were ultra vires, but the Divisional Court’s separate conclusion that they were unlawful because of an unfairly selective consultation was not upheld.
2. Ultra vires. In sections 12(1) and 14(1) of the Public Order Act 1986, “serious” naturally indicates a relatively high threshold. “More than minor” is materially lower and cannot, as a matter of ordinary language, encompass every disruption that is more than minor. The powers in sections 12(12) and 14(11) permitted clarification and exemplification of the existing concept, not a reduction of the threshold fundamental to the balance between protest rights and community interests. The Henry VIII context reinforced that conclusion. [2016] UKSC 39 supported a restrictive construction where the scope of such a power was ambiguous.
3. The definition of serious disruption in section 34 of the Public Order Act 2023 did not enlarge the delegated power. Parliament could adopt an artificially extended definition in its own Act, but that did not establish that an executive delegate could give the same term a meaning beyond its natural meaning in a different statutory context. The definition of “the community” in regulation 2(2) was, however, intra vires. It could refer to a class of persons affected as such, provided the disruption remained serious.
4. Consultation. There is no general common-law duty to consult. If a formal consultation is undertaken voluntarily, it must be fair, including in the selection of consultees. The December 2022 engagement with policing bodies was operational, essentially intra-governmental engagement intended to obtain practical input. Its purpose and character did not amount to formal consultation. The description of the process as consultation, the proposal’s crystallisation, its formative stage and its potential impact on protesters were not determinative. [2023] EWCA Civ 810 did not make those factors sufficient by themselves. If formal consultation had been undertaken, bodies representing protesters should have been included, but that conclusion was unnecessary to the result.

1. Court of Appeal (Civil Division). Appeal dismissed. The regulations remained quashed as ultra vires, although the consultation ground was rejected: [2025] EWCA Civ 571.
2. Divisional Court, Administrative Court. The ultra vires and consultation grounds succeeded and the regulations were quashed; two other grounds were dismissed: [2024] EWHC 1181 (Admin).