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National Council for Civil Liberties, R (On the Application Of) v Secretary of State for the Home Department
Factual and Procedural Background
The appeal concerns the lawfulness of regulations ("the Regulations") made under the Public Order Act 1986 ("the 1986 Act") which amended sections 12 and 14 concerning police powers to impose conditions on public processions and assemblies. These powers are exercisable where a senior police officer reasonably believes a procession or assembly may cause "serious disruption to the life of the community". The 1986 Act did not originally define "serious disruption". The Police, Crime, Sentencing and Courts Act 2022 ("the 2022 Act") introduced a Henry VIII power enabling the Secretary of State to make regulations defining or clarifying this phrase.
In June 2023, the Secretary of State made the Regulations, which came into force shortly thereafter, introducing a threshold of "more than minor" disruption as part of the definition of serious disruption. Prior to this, the Government had unsuccessfully sought to introduce equivalent provisions via amendments to the Public Order Act 2023 ("the 2023 Act").
The National Council for Civil Liberties ("Liberty") brought judicial review proceedings challenging the Regulations on multiple grounds, including that the Regulations exceeded the enabling power ("ultra vires") and that the consultation process preceding the Regulations was unfair. The Public Law Project ("PLP") intervened in support of Liberty. The Divisional Court upheld the ultra vires and consultation grounds and quashed the Regulations. The Secretary of State appealed with leave granted.
Legal Issues Presented
- Whether the Regulations, in defining "serious disruption to the life of the community" to include disruption that is "more than minor", exceeded the Henry VIII powers conferred by sections 12(12) and 14(11) of the 1986 Act (the ultra vires issue).
- Whether the consultation process undertaken by the Secretary of State prior to making the Regulations was a formal consultation requiring fairness, and if so, whether it was unfairly one-sided by excluding representatives of protesters (the consultation issue).
Arguments of the Parties
Appellant's Arguments (Secretary of State)
- The Henry VIII power to make regulations "about the meaning" of "serious disruption" is broad and includes the power to define the term, not merely clarify it.
- The phrase "serious disruption" can linguistically encompass any disruption that is "more than merely minor"; thus, the Regulations’ definition is within the range of linguistically tenable meanings.
- The role of the court is limited to assessing whether the definition is linguistically tenable; it is not to determine the original legislative intent or natural meaning.
- The 2023 Act’s definition of "serious disruption" includes "more than minor" impacts, indicating parliamentary acceptance of such a meaning.
- The consultation process involved engagement with policing bodies and did not constitute a formal consultation requiring fairness to other groups such as protesters.
- Even if there were a consultation, the standard of review for whom to consult is rationality, not fairness.
Respondent's Arguments (Liberty and PLP)
- The natural and ordinary meaning of "serious" connotes a high threshold, significantly above "more than minor". Thus, the Regulations lower the threshold unlawfully and are ultra vires.
- The enabling power was intended to clarify, not alter, the meaning of "serious disruption", consistent with the Ministerial statement during the 2022 Act’s passage.
- The 2023 Act’s different context and explicit definitions cannot be used to extend the scope of the 1986 Act’s enabling power.
- The consultation process undertaken was a voluntary formal consultation triggering the duty of fairness under the Coughlan principle.
- The consultation was unfair and one-sided because it excluded bodies representing protesters, such as Liberty.
- Fairness in consultation includes fairness in deciding whom to consult, and selective consultation may render a decision unlawful.
- PLP additionally challenged the Regulations’ definition of "community" as ultra vires for fundamentally changing the meaning to include any affected group, not "the community".
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R (Public Law Project) v Lord Chancellor [2016] UKSC 39 | Proper approach to construction of Henry VIII powers: restrictive interpretation where ambiguity exists to protect Parliamentary supremacy. | Supported the Court’s restrictive approach to the scope of the Henry VIII power under sections 12(12) and 14(11) of the 1986 Act. |
| R v Roberts (Richard) [2018] EWCA Crim 2739 | Contextual emphasis on the importance of fundamental rights of freedom of expression and assembly. | Used to underline the high threshold implied by "serious disruption" balancing rights and state intervention. |
| R (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 (Admin) | Common law grounds for duty to consult: promise to consult, established practice, or avoiding conspicuous unfairness. | Outlined the limited circumstances in which a duty to consult arises at common law. |
| R (Coughlan) v North & East Devon Health Authority [1999] EWCA Civ 1871 | Proper consultation requires fairness, including sufficient reasons, adequate time, and conscientious consideration of responses. | Provided the framework ("Coughlan principle") for assessing fairness in voluntary consultations. |
| R (Milton Keynes Council) v Secretary of State for Communities & Local Government [2011] EWCA Civ 1575 | Fair consultation requires fairness in deciding whom to consult; selective consultation may render decisions unlawful. | Supported the proposition that fairness extends to the choice of consultees in voluntary consultations. |
| R (Association of Personal Injury Lawyers) v Secretary of State for Justice [2013] EWHC 1358 (Admin) | Distinction between formal consultation triggering fairness obligations and mere engagement/meetings which do not. | Confirmed that not all government engagement amounts to consultation imposing fairness duties. |
| R (Eveleigh) v Secretary of State for Work and Pensions [2023] EWCA Civ 810 | Clarified that Gunning criteria apply only to consultations on specific decisions likely to impact defined groups at a formative stage. | Rejected the proposition that any engagement satisfying certain criteria automatically constitutes formal consultation. |
| R (Article 39) v Secretary of State for Education [2020] EWCA Civ 1577 | Statutory duty to consult appropriate persons; failure may be irrational. | Distinguished from the present case as it involved a statutory consultation duty. |
| R v Loxdale (1758) 1 Burr 445 | Statutes in pari materia should be construed together as explanatory of each other. | Rejected by the Court as insufficient to extend the meaning of "serious disruption" in the 1986 Act based on the 2023 Act definition. |
| City of London v Wood (1702) 12 Mod. 669 | Historical definition of "community". | Referenced in PLP’s argument concerning the meaning of "community". |
Court's Reasoning and Analysis
The Court commenced by interpreting the phrase "serious disruption to the life of the community" in the 1986 Act. It concluded that "serious" was intended to denote a high threshold, consistent with its ordinary meaning and the legislative context balancing fundamental rights of freedom of expression and assembly against public order. The Court rejected the argument that "more than minor" disruption falls within the natural linguistic scope of "serious", finding that "more than minor" is materially lower on the scale and thus outside the ordinary meaning of "serious".
In construing the Henry VIII power enabling the Secretary of State to make regulations defining "serious disruption", the Court applied established principles requiring a restrictive approach due to the power's capacity to amend primary legislation. The power was held to be limited to clarifying or exemplifying the meaning without altering the substantive threshold set by Parliament.
The Court rejected reliance on the 2023 Act’s broader definition of "serious disruption" as irrelevant to the scope of the 1986 Act's enabling power, noting the distinct legislative contexts. It also found the Ministerial statement during the 2022 Act’s passage consistent with a restrictive interpretation of the power.
Regarding the definition of "community" in the Regulations, the Court found that, although the drafting was clumsy, the definition did not unlawfully replace "the community" with a fundamentally different concept. The Court accepted that the definition was a clarification consistent with the statutory context.
On the consultation ground, the Court examined whether the Secretary of State had undertaken a formal consultation triggering the duty of fairness under the "Coughlan principle". It accepted Liberty’s submission, following the Eveleigh case and related authorities, that the December 2022 process constituted a voluntary consultation because it involved a sufficiently crystallised proposal at a formative stage likely to impact affected groups.
The Court analysed the fairness of the consultation, concluding that fairness required a balanced approach including representatives of protesters, and that the process was unfairly one-sided by excluding such representatives. It identified eight reasons supporting this conclusion, including the increased exposure to criminal sanction, engagement of fundamental rights, identifiable affected bodies, and the feasibility of broader consultation.
The Secretary of State’s appeal challenged these findings, particularly disputing that the December 2022 process was a formal consultation and arguing that the standard of review for whom to consult was rationality, not fairness. The Court rejected these arguments, emphasizing the difference between informal engagement and formal consultation and the legal significance of the latter.
However, the Court acknowledged that the Secretary of State’s engagement with policing bodies was intra-governmental and distinct from public consultation, but found that in this context the process nonetheless met the criteria for formal consultation.
Overall, the Court upheld the Divisional Court’s conclusion that the Regulations were ultra vires for lowering the threshold of "serious disruption" to "more than minor". It also agreed that the consultation was unfair, although the Secretary of State’s appeal challenged this latter conclusion.
Holding and Implications
The Court’s final decision was to DISMISS the Secretary of State’s appeal against the finding that the Regulations were ultra vires and accordingly upheld the quashing of the Regulations on that ground.
Regarding the consultation ground, the Court allowed the appeal, concluding that the Secretary of State had not undertaken a formal consultation requiring fairness to all affected parties, including protesters, and therefore the unfairness finding was not upheld.
The direct effect of this decision is that the Regulations remain quashed for being beyond the powers granted by Parliament, preserving the original high threshold of "serious disruption" in the 1986 Act. No broader precedent was established beyond affirming the limits of Henry VIII powers and the principles governing consultation fairness in this context.
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