Limits of Delegated “Henry VIII” Powers in Defining “Serious Disruption”

Introduction

In National Council for Civil Liberties (Liberty) v Secretary of State for the Home Department ([2025] EWCA Civ 571) the England and Wales Court of Appeal considered two challenges to the Public Order Act 1986 (“1986 Act”) as amended by regulations made under the Police, Crime, Sentencing and Courts Act 2022 (“2022 Act”). Liberty challenged the legality of secondary legislation—the Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023—which redefined the statutory threshold “serious disruption to the life of the community” by reference to disruption “more than minor.” The Divisional Court quashed the regulations on two grounds: ultra vires the Henry VIII power in sections 12(12) and 14(11) of the 1986 Act, and unfair one-sided consultation. The Home Secretary appealed only the ultra vires ruling. The interlocutory Public Law Project and Parliamentary Authorities intervened. The appeal was heard by Lord Justice Arnold, Lord Justice Dingemans, and Lord Justice Edis.

Summary of the Judgment

The Court of Appeal dismissed the Secretary of State’s appeal. On the ultra vires ground, it held that the Secretary of State’s power under the 2022 Act to make regulations “about the meaning” of “serious disruption” was confined to clarifying or exemplifying that ordinary meaning, not lowering the threshold. “Serious” by ordinary usage connotes a high threshold, whereas “more than minor” sits materially lower. Even if “more than minor” were a linguistically tenable meaning, context—including the balance struck by the 1986 Act between protest rights and public order, and the strict construction applied to Henry VIII powers—precluded it. The court declined to uphold the second basis for quashing the regulations, namely the unfair consultation ruling.

Analysis

Precedents Cited

R (Public Law Project) v Lord Chancellor [2016] UKSC 39 (PLP): Principles for strict construction of Henry VIII powers—delegated powers to amend primary legislation must be interpreted narrowly and only within Parliament’s contemplation.
McKiernon v Secretary of State for Social Security and Ex p Spath Holme: Authority for restrictive approach to wide-drafted delegated powers, approved by the House of Lords.
R v Roberts (Richard) [2018] EWCA Crim 2739: Emphasised weight of the right of assembly and protest, informing context for “serious disruption.”
Review of Public Order Law (Cmnd. 9510), the White Paper preceding the 1986 Act: Showed Parliament intended “serious disruption” to mark a threshold above acceptable protest- related disruption.
Coughlan v North & East Devon Health Authority [2001] QB 213 and Gunning principles: On fairness where a public authority voluntarily consults—consultation must be at a formative stage, provide reasons for intelligent response, allow adequate time, and conscientiously consider replies.
R (Milton Keynes Council) v Secretary of State for Communities & Local Government [2011] EWCA Civ 1575: A fair consultation requires fairness in selecting consultees as well as in process.
R (Association of Personal Injury Lawyers) v Secretary of State for Justice [2013] EWHC 1358: Distinguished stakeholder engagement from formal consultation subject to Gunning fairness.

Legal Reasoning

1. Meaning of “Serious” and “More Than Minor”
The Court began with the ordinary meaning of “serious,” which entails a high threshold connoting severity or major impact. By contrast “more than minor” is inherently lower. The de minimis principle confirmed that “serious” must exclude trivial or marginal impacts. Context within the 1986 Act—balancing fundamental protest rights under common law and the ECHR against public order concerns—reinforced this high threshold.

2. Scope of Delegated Power
Sections 12(12) and 14(11) empowered the Home Secretary to make regulations “about the meaning” of defined disruption categories, including “defining any aspect.” That language conferred a Henry VIII power, to be construed by reference to context and strict construction principles (PLP). The court held that the power extends to clarifying and exemplifying the existing meaning, not to altering the core threshold. If Parliament had intended to lower it, it would have done so by primary legislation.

3. Ultra Vires Conclusion
Applying these principles, the attempt in the 2023 Regulations to define “serious disruption” as including “hindrance or delay that is more than minor” fell outside the regulatory power. That definition lowered the threshold below what Parliament had set in 1986.

4. Consultation Ground
The Divisional Court had held that the December 2022 engagement with policing bodies amounted to a voluntary formal consultation and that excluding protest groups rendered the process unfair. The Court of Appeal disagreed, finding that stakeholder engagement of that kind—internal, operational, intra-governmental liaison—did not trigger the common law duty to consult or Gunning fairness requirements.

Impact

This decision establishes clear limits on the use of Henry VIII powers to amend primary legislation: delegated powers to define statutory terms cannot lower thresholds carefully set by Parliament. Public authorities will be required to rely on primary legislation for any material change to the balance between individual rights and public order. The judgment also clarifies that routine stakeholder engagement—even if labelled “consultation”—does not trigger the duty to conduct a formal, fair consultation under the Coughlan/Gunning framework. Future protest- related regulations must now proceed through primary legislative amendment if they are to substantively alter the threshold for police conditions.

Complex Concepts Simplified

Henry VIII Power—A delegated power in primary legislation allowing the executive to amend or repeal that primary legislation by secondary (delegated) legislation. Such powers are construed narrowly and only within Parliament’s original intent.
Ultra Vires—“Beyond the powers.” A delegated legislative act is ultra vires if it exceeds the scope of the authority granted by its enabling statute.
De Minimis Principle—Parliament does not legislate about trivial matters. A statutory threshold word like “serious” presumes exclusion of de minimis impacts.
Gunning Principles—Four minimum standards for a lawful public consultation: consultation at a formative stage; publication of sufficient information; adequate time for response; and conscientious consideration of responses.

Conclusion

The Court of Appeal in Liberty v Secretary of State has firmly reaffirmed that statutory thresholds set by Parliament—here the requirement of “serious disruption”—cannot be re- defined by secondary legislation so as to lower those thresholds. A Henry VIII power to define or illustrate terms must operate within the linguistic and contextual boundaries of the original statute and cannot alter the balance of fundamental rights. Moreover, routine or operational stakeholder engagement does not amount to a duty of fair consultation under the common law. This landmark ruling strengthens parliamentary sovereignty over protest law reform and tightens the control over delegated legislation that amends primary laws.