Controversial legislation introduced in 2023 by then-Home Secretary Suella Braverman, which made it easier for police to shut down protests has been ruled ‘unlawful’ by the UK Court of Appeal.

The legislation, which had been rejected by the House of Lords several months earlier, amended the Public Order Act 1986. It redefined and lowered the threshold for police intervention in public protest from ‘serious disruption to the life of the community’ to ‘more than minor’.

Liberty, the campaigning NGO, challenged the redefinition, arguing that it had been introduced via so-called ‘Henry VIII’ powers that require less parliamentary oversight, and brought a judicial review against the Home Office. In spring 2024, the High Court ruled that the Home Secretary had acted unlawfully by using secondary legislation to push through the regulations, and in May this year, the Court of Appeal upheld the ruling. 

The significance of the ruling for protest rights can’t be underestimated, says Kirsty Brimelow KC, a barrister specialising in protest law at Doughty Street Chambers. ‘It is very significant that there is a return to “serious disruption” before police intervention,’ she says. ‘It was estimated that that the new definition could have increased police interventions by up to 50 per cent. Where there have been convictions under sections 2A and 2B of the Public Order Act 1986, these cases should be brought to the Court of Appeal for argument that their convictions are quashed.’

Brimelow says the case serves as a reminder of the dangers of parliamentary overreach and that the Court of Appeal ruling is an example of this being restrained by the courts. ‘The statutory instrument system went wildly out of control during Covid and it hasn’t been brought back to heel,’ she says. ‘Ministers legislating without parliamentary scrutiny should not be the norm. These regulations were an example of a confidence that had built that a Secretary of State could bring in powers and avoid democratic scrutiny. There needs to be a return to scrutiny of laws, particularly those that restrict [the] rights of citizens.’

Michael Polak, an officer on the IBA Rule of Law Forum, says the ruling establishes the right for citizens to protest without interference. ‘Protest law needs to be a careful balance between the right to protest and the rights of people to go about their daily lives,’ he says. However, Polak believes in this case that preventing protests for ‘causing some inconvenience […] fell on the wrong side of this balancing exercise.’

The case also highlights the dangers of giving police powers to determine protest conditions and the threshold for restricting protests, says Polak, who’s a barrister at Church Court Chambers. ‘It remains problematic that such decisions remain the purview of the police who may be seen to be taking a partial view towards protests, depending on the issue and politics behind it,’ he says.

In June, the administration of President Donald Trump ordered members of the US National Guard to enter the city of Los Angeles in response to protests there against the government’s immigration crackdown. As such developments demonstrate, the right to protest is increasingly under threat in democracies as well as authoritarian states around the world.

In the US, the First Amendment of the Constitution protects the right of citizens to assemble and express views through protest. The American Civil Liberties Union (ACLU) says that using dispersal orders to shut down protests should be ‘a last resort’ for law enforcement. In a statement following the recent clashes, Hina Shamsi, Director of ACLU’s National Security Project, said that ‘from the get-go, the Trump administration’s deployment of troops into the streets of California, over the governor’s objection, has raised serious constitutional concerns. This latest move only increases legal and ethical jeopardy for troops, and further endangers the rights of the people of Los Angeles.’ 

In authorising the deployment of the National Guard, President Trump said the troops were needed to ‘temporarily protect ICE [Immigration and Customs Enforcement agency] and other United States government personnel who are performing federal functions, including the enforcement of federal law, and to protect federal property.’ 

Brimelow agrees that sanctions against peaceful protestors should always be ‘a last resort’, but concedes that, in the UK at least, the tactics of some protest groups have increasingly tested public patience. ‘There also was a more draconian enforcement of laws during Covid than was appropriate,’ she says. ‘Post Covid, the balance remains away from the side of protestors.’ Brimelow says she would like to see a return to police going through steps to move protestors before resorting to prosecution.

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