Global Freedom of Expression

R (National Council for Civil Liberties) v. Secretary of State for the Home Department

Closed Expands Expression

Key Details

  • Mode of Expression
    Public Assembly
  • Date of Decision
    May 21, 2024
  • Outcome
    Decision - Procedural Outcome, Motion Granted
  • Case Number
    [2023] EWCA Civ 926
  • Region & Country
    United Kingdom, Europe and Central Asia
  • Judicial Body
    First Instance Court
  • Type of Law
    Criminal Law, Constitutional Law
  • Themes
    Freedom of Association and Assembly / Protests, National Security, Political Expression
  • Tags
    Police Act, Policing of Protests

Content Attribution Policy

Global Freedom of Expression is an academic initiative and therefore, we encourage you to share and republish excerpts of our content so long as they are not used for commercial purposes and you respect the following policy:

  • Attribute Columbia Global Freedom of Expression as the source.
  • Link to the original URL of the specific case analysis, publication, update, blog or landing page of the down loadable content you are referencing.

Attribution, copyright, and license information for media used by Global Freedom of Expression is available on our Credits page.

Case Analysis

Case Summary and Outcome

The United Kingdom High Court of Justice ruled that recent amendments to protest laws enacted by the Secretary of State were unlawful in a case brought by the human rights organization Liberty. The Court found that the definition of “serious disruption” in the regulations, which lowered the threshold for police intervention against protests to “more than minor,” fell outside the scope of the enabling power granted by Parliament. Additionally, the Court determined that the consultation process preceding the regulations was procedurally unfair and one-sided, as it excluded relevant stakeholders beyond law enforcement agencies. However, the Court rejected arguments by Liberty that the regulations undermined Parliamentary sovereignty or violated the separation of powers. The ruling emphasizes the importance of adhering to legislative intent, maintaining proper consultation standards, and upholding procedural fairness in the enactment of subordinate legislation affecting fundamental rights.


The Public Order Act of 1986 (PoA) confers power to the police to intervene in protests causing “serious disruption”, however, the Police Act of 1986 does not define this term. In 2022, an amendment via the Police, Crime, Sentencing, and Courts Act 2022 (PoA-2022) gave the Government power to change this definition through secondary legislation (a “Henry VIII power”). In 2023, the Government laid before the House of Lords two amendments to the Public Order Bill which, now concerning public processions and assemblies, sought to expand the definition of “serious disruption” in the Police Act of 1986 to include anything which was “more than minor”. When the House of Lords rejected amendments to expand this definition to all protests in 2023, the Government used its Henry VIII power to push through regulations achieving largely the same rejected changes. The Home Office estimated these regulations would increase police interventions at protests by up to 50%. The House of Lords Secondary Legislation Scrutiny Committee heavily criticized the regulations, saying they lowered the intervention threshold, created legal uncertainty, and improperly used secondary legislation to revive proposals rejected by Parliament – based on inadequate consultation since the Government only consulted law enforcement and not the public or protest groups affected. [para. 1-8] 

On 27th April 2023, before the POA of 2023 received Royal Assent, the Secretary of State laid a draft of the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023 (“the Regulations”) before both Houses of Parliament. Following, Section 22 PCSCA 2022 this was to be by affirmative resolution procedure. Despite this, the regulations (Sections 12 and 14 POA of 1986) came into force on June 14, 2023. In response, Liberty, a human rights organization initiated a judicial review challenge against the regulations, with the Public Law Project intervening in support. [para. 9]

Decision Overview

Justice Green and  Justice Kerr delivered the decision. The primary question before the Court was to assess the constitutionality of amendments made in the Regulations.

Liberty contended that the regulations introduced by the Secretary of State were ultra vires, meaning beyond the legal power or authority. Their principal argument asserted that the Secretary of State’s power to define “serious disruption” did not permit altering its natural and ordinary meaning or lowering the threshold for police intervention. By defining “serious disruption” as “more than minor,” the regulations effectively reduced the intervention threshold, broadening the scope for criminal sanctions against protestors and deviating from the term’s natural interpretation. Additionally, the regulations improperly expanded the definitions of “disruption” and “community” beyond what the enabling power authorized, by considering past or future independent events and encompassing a broader class of affected individuals than Parliament intended. [para. 10]

Furthermore, Liberty contended that the regulations undermined Parliamentary sovereignty by attempting to enact through secondary legislation what Parliament had previously rejected as primary legislation. They argued this subverted the constitutional balance between the Executive and Parliament. Additionally, the regulations lacked objective justification, as they frustrated Parliamentary policy and breached principles of parliamentary sovereignty and separation of powers, drawing on precedents like the Supreme Court’s judgment in Miller II. Lastly, Liberty claimed the consultation process for the regulations was procedurally unfair, as it selectively engaged only law enforcement agencies and excluded other stakeholders who might be adversely affected. [para. 10]

The Court discussed the legislative framework and history of the amendments to the Public Order Act 1986 (POA) introduced by the Police, Crime, Sentencing and Courts Act 2022 (PCSCA). Sections 73-74 of the PCSCA amended Sections 12 and 14 of the POA, adding new subsections 12(2A)-(2D) and 14(2A)-(2D), which provided non-exhaustive examples of situations that could lead to serious disruption or serious impacts as described in the original POA sections. Additionally, the PCSCA conferred a “Henry VIII power” on the Secretary of State, enabling the amendment of key terms in the POA, particularly the term “serious disruption,” through subordinate legislation. New subsections 12(12) and 14(11) granted the Secretary of State the power to amend the definitions of serious disruption related to public processions and assemblies. The enabling power was detailed further in Sections 12(13) and 14(12), allowing for the provision of definitions and examples of what constitutes serious disruption. Sections 12(14)-(15) and 14(13)-(14) stipulated that regulations made under these powers must be by statutory instrument, subject to affirmative resolution in both Houses of Parliament, and applicable only in England and Wales. Additionally, Section 22 of the PCSCA outlined the procedural requirements for making these regulations, including the need for approval by both Houses of Parliament.  [para. 17-22]

On the issue of Ultra Vires

The Court discussed the legal issue of whether the Secretary of State’s use of enabling power to enact secondary legislation was within the scope intended by Parliament. This involved statutory interpretation to ensure the Executive did not exceed its authority, thus upholding Parliamentary supremacy. The interpretation method included examining the natural meaning of the words, context, purpose, relevant case law, principles for Henry VIII powers, and extrinsic evidence like ministerial statements and legislative history. The Court’s analysis of Liberty and the Public Law Project’s (PLP) principal argument concerned the relationship between “serious” and “more than minor” disruption is delineated in three distinct stages:

  1. Parliament’s Intent for “Serious”: Initially, the Court scrutinized the legislative intent behind the term “serious” within the framework of “serious disruption” as articulated in the Public Order Act 1986 (POA). This involved an examination of the ordinary and natural meaning of “serious” in its statutory context, taking into account relevant case law and legislative history.
  2. Scope of the Amendment Power: Subsequently, the Court evaluated the extent of the Secretary of State’s authority to amend the POA via secondary legislation. This authority is conferred by the enabling provisions found in sections 12(12) and 14(11) of the POA 1986, commonly referred to as the Henry VIII power. The analysis considered the breadth and limitations of this power, including the principles applicable to the exercise of such legislative powers.
  3. Compliance of the Regulations with the Enabling Power: Finally, the Court assessed whether the Regulations enacted under the aforementioned enabling provisions fall within the scope of the statutory power granted by sections 12(12) and 14(11) of the POA 1986. This stage involved determining whether the Regulations adhere to the legislative intent and statutory framework established by Parliament.

Additionally, the Court addressed the secondary issue regarding the definitions of “disruption,” “cumulative disruption,” and “community”. This analysis is conducted with brevity, focusing on whether the Regulations’ definitions extend beyond the scope of the enabling power.

  1. i) Meaning of  “serious” in the POA 1986

The Court’s analysis of the meaning of “serious” within the Public Order Act 1986 (POA 1986) underscores that the term was intended by Parliament to indicate a relatively high threshold. This conclusion was derived from several considerations including the ordinary meaning of “serious”, the application of the de minimis principle, the legislative context, extrinsic materials like the preceding White Paper, and guidance from case law and other legislative sources. The ordinary and natural meaning of “serious” connotes something towards the upper end of severity, as evidenced by dictionary definitions and synonyms such as severe, grave, and major. The de minimis principle, which implies that the law does not concern itself with trivial matters, supports this interpretation. The Court noted that even without the qualifier “serious”, the concept of “disruption” would inherently exclude minimal interferences. Hence, the addition of “serious” serves to further elevate the threshold, ensuring that only substantial disruptions warrant police intervention.

Contextually, the Court noted that the POA 1986 sought to balance the fundamental rights to free speech and assembly with the need for public order. This balance is reflected in the White Paper preceding the Act, which emphasized regulating freedoms to the minimum extent necessary to preserve order. The use of “serious” aims to set a high bar for state intervention, as discussed in the White Paper’s description of severe and unreasonable disruptions justifying police action. The Court also referred to case law to elucidate the interpretation of “serious”. In Nandi v General Medical Council, [2004]  (Admin), the Court linked “serious” professional misconduct to conduct at the higher end of severity, and in Syed v DPP, [2010], it referred to “serious damage” as involving significant harm, such as knife or gunshot injuries. Similarly, in Cooke v MGN Ltd, [2014], the shift from “substantial” to “serious” harm in the Defamation Act 2013 indicated a raised threshold, while R (Mahmood) v Upper Tribunal, [2020]  illustrated the context-sensitive nature of “serious harm” within immigration law, affirming that it implies harm towards the higher end of the scale.

The Court also reviewed other legislative uses of “serious” to illustrate its consistent application in setting high thresholds. For instance, the term is used in the Corporate Manslaughter and Corporate Homicide Act 2007, the Police Act 1997, and the Arbitration Act 1996 to denote significant levels of disorder, crime, and irregularity, respectively. The Court concluded that the inclusion of “serious” in the Public Order Act was intended to prevent trivial disruptions from triggering police intervention, thereby maintaining a balance between the right to protest and the necessity of public order. This interpretation aligns with both the legislative intent and established judicial precedents.

  1. ii) The breadth of the enabling power

In assessing the breadth of the enabling power granted to the Secretary of State under Sections 12(12) and 14(11) of the Public Order Act (POA) 1986, the Court considered the scope and limitations of this power. The Secretary of State’s position initially asserted that the power to amend the meaning of “serious disruption” was broad and included amending any aspect related to its meaning, such as the terms “serious” and “disruption.” It was argued that this power was not constrained to mere clarification or exemplification but extended to any interpretation approved by Parliament under the affirmative procedure. However, during the course of litigation, the Secretary of State’s stance moderated. It was acknowledged that while the power to define “serious disruption” was broad, it was not without limits. Specifically, the interpretation of “serious disruption” had to maintain a linguistic link to the term “serious” and could not adopt meanings that the words could not reasonably bear. This acknowledgment aligned with the de minimis rule of interpretation, which established that the threshold for “serious disruption” had to be above minor disruptions.

Liberty and the Public Law Project (PLP) contended that the power should be construed narrowly, emphasizing that “serious disruption” should retain its ordinary and natural meaning. They argued that the power granted was intended to clarify or provide examples of “serious disruption,” rather than to lower the threshold for police intervention. The Court also established legal principles on the interpretation of Henry VIII’s powers, they maintained that such powers should be exercised restrictively and should not extend to rewriting statutory language in a manner inconsistent with its ordinary meaning.

The Court concluded that while the enabling power was broad, it was not unlimited and should be exercised within the context of the POA 1986, which aimed to maintain a high threshold for police intervention. This conclusion was supported by the Ministerial statement in Parliament, which clarified that the power was intended to clarify, not alter, the meaning of “serious disruption.” The Court determined that any doubt about the scope of the power should be resolved restrictively, especially in the context of protecting fundamental common law rights. This approach aligned with the principles articulated in case laws such as the PLP case and the dicta from R v Secretary of State for Social Security, Ex p Britnell, [1991], and R v Secretary of State for the Environment, [2002] Transport and the Regions, Ex p Spath Holme Ltd. In conclusion of the decision, the Court upheld that the enabling power should be used to clarify or exemplify the meaning of “serious disruption” without altering its fundamental threshold. This interpretation ensures that the power is exercised in a manner consistent with the statutory purpose of the POA 1986 and respects the balance between the right to protest and the need for public order, as intended by Parliament.

iii) Does the expression “more than minor” fall within the scope of “serious?” 

The Court’s analysis revolves around whether the term “more than minor” falls within the scope of “serious” as used in the Regulations and the enabling power provided by Sections 12(13) and 14(11) of the Public Order Act 1986. The central issue was whether the linguistic penumbra of “serious” can reasonably encompass the threshold of “more than minor,” especially in the contexts of hindering day-to-day activities, delaying time-sensitive product deliveries, and disrupting access to essential goods and services. Firstly, the Court determined that the ordinary and natural meaning of “serious” refers to a higher threshold on the scale of disruption. Case law and legislative comparables indicate that “serious” involves a significantly high level of disruption, whereas “more than minor” is materially lower on the scale. This interpretation is rooted in common parlance and judicial precedents which suggest that the word “serious” should be interpreted strictly, particularly in light of the importance of protecting fundamental rights like public procession and assembly. [para. 91] 

Secondly, the Court considered principles governing the interpretation of Henry VIII’s powers, which are typically construed narrowly to prevent the executive from overstepping the legislative intent. Given the disagreement between the parties on the breadth of “serious,” a strict construction was deemed appropriate, reinforcing that “more than minor” does not align with the ordinary meaning of “serious.” The Court emphasized that a broad interpretation would lower the threshold for police intervention, increasing legal uncertainty. [para. 92-93] The Court also examined the in pari materia doctrine, which suggests that statutes dealing with similar subjects should be interpreted together. However, the Court found that the Public Order Act of 2023, which includes new offenses like locking on and tunneling, addresses materially different situations from the POA 1986. Thus, the provisions of the POA 2023 could not be used to interpret “serious” in the POA 1986. [para 94]

Finally, the Court considered extrinsic aids such as the Ministerial statement and the scrutiny level of the Regulations under the affirmative resolution procedure. The Ministerial statement indicated that the threshold for serious disruption should not be lowered, which supports the conclusion that “more than minor” falls outside the scope of “serious.” Furthermore, despite the detailed Parliamentary scrutiny, the Court maintained its jurisdiction to review subordinate legislation to ensure it does not extend beyond the scope intended by primary legislation. [para. 95-99] In conclusion of the decision, the Court held that “more than minor” does not fall within the scope of “serious” as per the ordinary and natural meaning of the word, and this interpretation was consistent with various principles of statutory interpretation and legal certainty considerations. Therefore, the Regulations were deemed ultra vires the enabling power contained within sections 12(13) and 14(11) of the POA 1986.

  1. iv) “Disruption” and “cumulative” 

In addressing the second aspect of the complaint under Ground I, the Court scrutinized the provisions in the Regulations related to “disruption” and “community” within the context of “serious disruption to the life of the community.” While less emphasis was placed on these aspects during arguments, the Court applied the same principles of interpretation as it did to the issue of “serious.” Liberty and PLP contend that the enabling power does not authorize the expansion of the meaning of “disruption” and the narrowing of “community” to exclude the broader public. They argue that these provisions go beyond mere definition and essentially replace one concept with another.

The Court’s analysis concluded that, while its determination on “serious” impacts the interpretation of “disruption” and “cumulative disruption,” these terms when considered independently, fall within the scope of the enabling power. The Court supported the Secretary of State’s argument that accounting for disruption beyond the procession or assembly itself, as well as considering cumulative disruption, is a legitimate extension of the concept. Additionally, defining “community” to include only those directly affected aligns to clarify potential impacts on a specific group rather than the broader public. The Court held no unlawfulness in these provisions, stating that they serve to provide clarity for decision-making by senior police officers. [para. 102-107]

On the issue of the basic premise

The Court addressed the combined arguments of Liberty under Grounds II and III, which assert that the Executive’s use of secondary legislation to enact measures previously rejected as primary legislation undermines Parliamentary sovereignty and the separation of powers. Liberty contended that this constitutes an abuse of power by the Executive, achieving through the back door what it failed to achieve through the front door of Parliament. However, the Court distinguished between cases where the challenged measure is prima facie lawful and those where it is ultra vires. In instances where the measure is ultra vires, it is inherently unlawful due to being outside Parliament’s will and intent. However, where the measure is prima facie lawful, the legal basis for challenging it based on circumventing Parliamentary procedure is not as straightforward, as the principles underlying ultra vires do not directly apply. [para. 108-110]

Liberty contended that the use of Henry VIII’s powers in this manner constituted an abuse of power, frustrating Parliament’s will and circumventing statutory protections afforded to citizens. They referred to the established principles that prevent the exercise of powers in ways that counteract the policy or purposes of Acts of Parliament. Liberty contended that there is no objective justification for using Henry VIII’s powers in this way, as disagreement with Parliament does not inherently justify circumventing its decisions. Liberty referred to case law, including R (Evans) v Attorney General, [2015] and R v Liverpool City Council, ex p Baby Products Association, [1999], to support their position. [para. 110-113] 

In response, the Secretary of State contended that there is no legal or constitutional principle preventing the use of enabling powers to introduce measures similar to those previously rejected by Parliament. The State asserted that conferring legislative sovereignty on unenacted views of Parliament would be a constitutional error, emphasizing the importance of interpreting Parliament’s will solely through enacted legislation. The Secretary of State referred case law, including Wilson v First County Trust Ltd, [2003] and R (SC) v Secretary of State for Work and Pensions, [2015], to support their argument that Parliamentary will is expressed solely through enacted legislation and cannot be inferred from rejected amendments. [para. 114]

The Court delved into the issue of whether the Executive’s use of statutory power to enact subordinate legislation, after failing to achieve the same objective through primary legislation, violates constitutional principles such as Parliamentary sovereignty and the separation of powers. The Court acknowledged that while the normal rules on ultra vires legislation may not fully apply in this context, Liberty’s argument hinged on a different principle. Liberty contended that the Executive’s actions constitute frustration or circumvention of Parliament’s supremacy and the separation of powers. However, the Court found two fundamental difficulties with Liberty’s argument. Firstly, it disputed whether the Executive’s actions indeed frustrated or circumvented Parliamentary supremacy or the separation of powers. Secondly, it questioned whether the case law cited by Liberty supports their position. [para. 116-119]

The Court examined whether the Executive’s actions indeed frustrated or circumvented Parliamentary supremacy or the separation of powers. It argued that the mere fact that Parliament adopted the regulations through secondary legislation after rejecting them as primary legislation does not inherently constitute an abuse of Parliamentary procedure. Instead, the Executive utilized legitimate Parliamentary processes, and the decision to adopt the regulations ultimately rested with Parliament. Thus, the Court contended that there was no misuse of Parliamentary procedure or violation of constitutional principles. [para. 118]

The Court addressed Liberty’s argument concerning the potential abuse of power by the Executive in enacting measures through secondary legislation that had been previously rejected as primary legislation by Parliament. They assert that the cases cited by Liberty, including Miller II and Evans, do not directly support their submission. The Court emphasized that, apart from arguments regarding circumvention and frustration, the Regulations were within the lawful ambit of the enabling power. The Court noted that the cases cited by Liberty involved the Court patrolling the boundaries between different pillars of the constitution, such as the relationship between the Executive and Parliament or the Executive and the Courts, rather than determining the balance of power between two different but otherwise lawful exercises of Parliamentary power. [para. 119-120]

In examining Miller II, the Court highlighted the direct clash between an act of the Executive and the functioning of Parliament. It explained that the Court in Miller II was reviewing the legality of the relationship between two different organs of the state—the Executive and Parliament—regarding the exercise of prerogative power to prorogue Parliament. The Court noted that the evidence relied upon in Miller II came from within the Government, not from within Parliament, and that the case was distinct from supervising the internal workings of Parliament but rather delineating the boundaries between two organs of the state. [para. 121-124]

Similarly, in Evans and Baby Products Association, the Court explained that the cases involved rulings on the balance of power between different acts of Parliament and an arm of the Executive, rather than assessing the legality of using secondary legislation to adopt measures rejected as primary legislation. Additionally, the Court briefly touched upon Article 9 of the Bill of Rights 1689, which protects freedom of speech and debates in Parliament. It acknowledges that if Liberty’s argument were accepted, it would necessitate a deeper inquiry into Parliamentary proceedings, potentially conflicting with Article 9. However, the Court ultimately rejected Liberty’s argument, stating that the limited facts presented by Liberty do not justify questioning the Parliamentary process. Thus, the Court concluded that Grounds II and III are unfounded. [para. 127-130]

On the issue of Unfair and one-sided consultation preceding the enactment of the Regulations.

In Ground IV, Liberty contended that the decision to enact the regulations was flawed due to a one-sided and unfair consultation process. They contend that the Secretary of State only consulted a narrow group of stakeholders supportive of the amendments, rather than seeking input from a more diverse range of affected parties. Liberty maintained that this consultation process was procedurally unfair and violated public law principles. Liberty also contended that even though there was no statutory duty to consult, the decision to engage in consultation voluntarily required fairness and inclusivity. [para. 131-144]

The Secretary of State countered by asserting that engagement with stakeholders, even if selective, did not amount to consultation requiring broader inclusivity. They contended that it was within the Secretary of State’s discretion to decide whom to engage with, subject to rationality. Furthermore, the context of secondary legislation subject to parliamentary scrutiny via the affirmative resolution procedure implies that extensive consultation for every government act would be impractical. The Secretary of State contended that the decision to engage with specific stakeholders was rational and fell within the realm of routine government business. [para. 146-150]

The Court carefully considered the arguments presented by both parties and reviewed relevant case law. The Court analyzed cases such as R (Association of Personal Injury Lawyers) v. Secretary of State for Justice, [2013] and Article 39, which dealt with issues of consultation and engagement with stakeholders. The Court noted that while there was no statutory duty to consult, voluntary consultation processes must adhere to principles of fairness and inclusivity. The Court emphasized the importance of procedural fairness, particularly in cases where fundamental rights may be affected. [para. 141-143] 

Ground IV of the Court’s analysis focused on the issue of public consultation and fairness in decision-making processes. The Court began by outlining the basic principles governing public consultation, emphasizing that while there is no general duty to consult, a duty may arise in certain circumstances, either through statute or at common law. Statutory consultations must adhere to the terms of the statute and be undertaken fairly. In cases of voluntary consultation, the consultation must be carried out properly and fairly, following what is known as the Gunning criteria. These criteria include consulting at a formative stage, providing sufficient reasons for proposals, allowing adequate time for response, and conscientiously considering feedback. [para. 146-150]

The Court cited several cases to illustrate these principles, including R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice, [2013] which outlined categories where a duty to consult may arise at common law. It also referenced R v. North and East Devon Health Authority ex p. Coughlan, [2015], which established the Gunning criteria. Additionally, the Court also referred to R (Association of Personal Injury Lawyers), R (on the application of FDA, PCSU, and Prospect) v Minister for the Cabinet Office, [2018], and R (Eveleigh) v. Secretary of State for Work and Pensions, [2013] as examples where engagements with interest groups did not amount to consultation. [para. 154]

The Court then analyzed whether the Secretary of State had carried out a consultation exercise in this case. It concluded that a consultation had indeed taken place, as there was a concrete proposal to introduce legislation that would alter the meaning of “serious disruption” in certain statutes. The government sought views on all aspects of the proposals, and responses were invited from policing bodies. The proposal was at a formative stage, and responses had the potential to influence the final legislation. However, the Court then examined whether the consultation process was fair. It noted that the proposals assumed an increased exposure to criminal sanction and engaged fundamental common law rights, making it important to consult those affected. Despite this, the consultation process included only law enforcement agencies, excluding other stakeholders with strongly felt views. The Court found that a balanced, not one-sided, approach was required for fairness, and the procedure adopted was not fair. It highlighted that conducting a broader consultation would not have been onerous or disproportionate, and the existence of Parliamentary scrutiny was not a sufficient answer to the need for wider consultation. [para. 155-160]

The Court concluded that the consultation process was procedurally unfair and unlawful, as it was one-sided and not fairly carried out. This analysis draws on various cases and principles to establish the requirements for a fair consultation process, emphasizing the importance of inclusivity and balance in decision-making processes. It underscored the Court’s role in ensuring that consultation processes meet these standards and highlighted the need for careful consideration of all relevant factors in determining fairness in such processes. [para. 162-166]

Additionally, the Court addressed the issue of who must be consulted in a fair consultation process. It noted that while statutory consultations may provide specific criteria for consultation, in other cases, the decision-maker must determine whom to consult, subject to rationality. The Court referenced cases such as R (Milton Keynes Council) v Secretary of State for Communities and Local Government, [2015] and R (Liverpool CC) v. Secretary of State for Health, [2015] to illustrate the principles governing consultation. It emphasized that a fair consultation requires fairness not only in deciding the subject matter of the consultation but also in determining whom to consult. Furthermore, the Court considered the stage of development of the proposals and the scope of issues involved in the consultation. It noted that the proposals were at an advanced but formative stage, and the consultation involved important aspects of the proposed measure, including legal, practical, procedural, drafting, and human rights implications. The Court highlighted that conducting a broader consultation would not have been unduly burdensome and could have improved the quality of the legislation. [para. 172-175]

The Court also rejected the argument that the existence of Parliamentary scrutiny negated the need for wider consultation. It emphasized that the affirmative resolution procedure in Parliament did not allow for amendments and that Parliamentary debate alone was not sufficient to replace wider consultation. Moreover, the Court addressed the implications of its decision for other cases, rejecting the notion that requiring consultation in this case would open the floodgates for consultation in almost every case. It emphasized that each case must be considered on its own merits, and the present case involved unique circumstances that warranted consultation. In conclusion on the Ground IV discussion, the Court found that the consultation process in this case was procedurally unfair and unlawful due to its one-sided nature and failure to consult all relevant stakeholders adequately. By analyzing various legal principles and cases, the Court underscored the importance of fairness, inclusivity, and balance in consultation processes, highlighting the need for decision-makers to carefully consider all relevant factors and stakeholders in conducting consultations. Para. 183]

In conclusion, the judgment’s dual success in Grounds I and IV, coupled with the dismissal of Grounds II and III, ultimately results in the declaration of unlawfulness for the Regulations. This ruling underscores the critical importance of procedural fairness and proper consultation processes in the legislative framework. By nullifying the Regulations, the Court affirms its commitment to upholding legal standards and ensuring accountability in governance, highlighting the imperative for public authorities to adhere diligently to statutory requirements and engage stakeholders inclusively when enacting laws that impact citizens’ rights and interests. [para. 183]

Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Expands Expression

The ruling, by striking down the regulations that sought to lower the threshold for police intervention in protests to mere “more than minor” disruption, maintained a higher bar for restricting the fundamental right to protest. This preserves a broader scope for freedom of expression through public assembly and demonstrations. Had the regulations been allowed to stand, it could have enabled the police to clamp down on and criminalize a wider range of protests causing relatively minimal disruptions. The judgment ensures that only sufficiently “serious” disruptions, as per the original legislation’s intent, can trigger police intervention against protests. This protects protesters’ ability to engage in more disruptive yet non-violent expressions of dissent without facing disproportionate curbs.

Additionally, the Court’s emphasis on the need for fair and inclusive consultation before enacting laws that impact freedom of expression is significant. By faulting the one-sided consultation process that excluded affected groups like protest organizers, the ruling reinforces the principle that legislating on fundamental freedoms requires meaningfully consulting all key stakeholders. This can help prevent undue restrictions and ensure regulations account for various perspectives. Overall, while the judgment does not address substantive protest rights directly, it bolsters procedural safeguards and maintains a robust standard for allowing disruptions linked to expressive assemblies.

Global Perspective

Case Significance

Quick Info

Case significance refers to how influential the case is and how its significance changes over time.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Official Case Documents

Official Case Documents:

Reports, Analysis, and News Articles:


Have comments?

Let us know if you notice errors or if the case analysis needs revision.

Send Feedback