Civil rights campaigners have hailed a “huge victory for democracy” after the court of appeal upheld the quashing of a key anti-protest regulation they said was introduced unlawfully.
The government had appealed against a high court ruling that the previous Tory home secretary, Suella Braverman, did not have the power to redefine “serious disruption” as “more than minor” in the law concerning when police could impose limits on protests.
It was a change in law that seriously limited the kinds of actions protesters could take, and which campaigners said had given police almost unlimited discretionary power over which protests to allow and which to halt.
Akiko Hart, the director of the human rights organisation Liberty, which brought the initial challenge, said: “Today’s judgment is clear, just as it was last year, that these laws should never have been made.
“They were a flagrant abuse of power from a government determined to shut down protesters they did not personally agree with.
“Five different judges over two separate hearings have now ruled that ‘serious’ simply cannot mean ‘more than minor’. It’s therefore even more surprising that the current government chose to continue the appeal into this case and argue that wasn’t the case. As a result, even more people have been needlessly funnelled into the criminal system over the past 12 months through a law that should never have existed in the first place.
“This ruling is a huge victory for democracy, and sets an important precedent that government ministers must respect the law, and cannot simply step outside it to do whatever they want. The next step for the government is simple: they must accept this ruling and agree to scrap this unlawful legislation once and for all.”
The case centred around a statutory instrument, a type of legislation that can pass with minimal parliamentary scrutiny, introduced by Braverman to clarify the definition of “serious disruption” under the Public Order Act 1986, after lords had voted down similar provisions just months earlier.
A cross-party parliamentary committee said it was the first time a government had ever sought to use so-called Henry VIII powers to make changes to a law that had already been rejected by parliament in primary legislation. One peer described it in parliament as a “constitutional outrage”.
Liberty challenged the redefinition with a judicial review, arguing that Braverman had overreached by introducing the change under secondary legislation which requires less parliamentary oversight.
But even as that challenge was under way, hundreds of campaigners were arrested under the new power, including the climate activist Greta Thunberg at a protest in London. She was acquitted of all charges in a hearing in February 2024.
Finally, in May last year, the high court agreed with the campaigners’ arguments, but judges suspended the reversal of the measures after the Home Office began an appeal that was continued after government changed hands in 2024.
Upholding the high court’s ruling on Friday morning, Lord Justice Underhill, Lord Justice Dingemans and Lord Justice Edis said: “The term ‘serious’ inherently connotes a high threshold … [and] cannot reasonably encompass anything that is merely ‘more than minor’.”
Liberty, despite claiming victory, warned that the section 14 power which has now been softened was just one plank of extensive legislation that had drastically circumscribed people’s ability to protest in the UK. It has issued a warning about new powers building on previous acts currently under consideration by lawmakers as part of a crime and policing bill.
“It’s especially worrying that even more measures are going through parliament, including bans on face coverings at protests that would make it unsafe for disabled activists and political dissidents to protest,” said Katy Watts, a Liberty lawyer.
A Home Office spokesperson said: “The court has ruled that specific regulations made by the previous government were unlawful. However, the central powers currently used by policing to manage protests and ensure that they remain peaceful are not affected by this judgment.
“The right to peaceful protest is a cornerstone of our democracy but the law remains clear that it does not extend to intentional intimidation or serious disruption to the life of the community.
“We are already bringing forward new measures in legislation to prevent intimidatory protests outside places of worship. We will ensure that the police and the public have clarity on existing powers to manage protests that cause serious disruption, including where that disruption is cumulative, and undertake further work where required.”
