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The Divisional Court quashes Serious Disruption Regulations following Liberty legal challenge

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The Divisional Court today handed down a judgment in Liberty v Secretary of State for the Home Department [2024] EWHC 1181. The Court held that the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 are unlawful because they are ultra vires and followed an unfairly one-sided consultation.

The case concerns a challenge brought by Liberty to the legality of the Regulations purportedly made by the Secretary of State in the exercise of a so-called “Henry VIII” power to make “provision about the meaning” of the phrase “serious disruption” in sections 12 and 14 of the Public Order Act 1986. Those provisions of the Public Order Act 1986 confer powers on the police to impose conditions on a procession or assembly which they reasonably believe may result in serious disruption to the life of the community. The Regulations sought to define “serious disruption” as any disruption which was “more than minor”. The Court found that this lowered the threshold for police intervention, which impermissibly altered, rather than clarified, the meaning of the phrase “serious disruption”.

The Court also held that the Secretary of State acted unlawfully by embarking upon a voluntary consultation process but only consulting law enforcement agencies. The Secretary of State was required to at least obtain the views of those who might be adversely affected by the proposed measures.

The Court stayed the quashing of the Regulations pending the outcome of the Secretary of State’s appeal, which is to be expedited.

Rosalind Comyn acted for Liberty, led by Jude Bunting KC and Hollie Higgins, and instructed by Katy Watts of Liberty.

The judgment is available here.