Richard Ekins KC (Hon), Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The Government’s attempts to get a grip on the problem of public disorder took another blow yesterday, when the Divisional Court held that it had acted unlawfully in making new public order regulations.
The police have been relying extensively on these regulations – which lower the threshold for police intervention in relation to disruptive protest – so this judgment is an operational problem for them. In addition, hundreds of convictions that rely on these regulations are now likely to be unsafe.
The Government has appealed but the appeal should fail: the Court was right to rule against the Government. This case lays bare the Government’s continued failings in legislating about public order; failings which, alas, look set to be repeated yet again in the near future.
No one should doubt that the UK faces a public order crisis. It is now routine for pressure groups deliberately to disrupt the lawful activities of others in order to attract public attention or to force others to yield to their demands and conform to their opinions.
This state of affairs follows in large part from the Supreme Court’s Ziegler judgment, in 2021, which made it much more difficult to convict, or even to arrest, protestors for criminal conduct.
After Ziegler, trial judges and juries have had to decide whether a protestor’s action, in say obstructing the highway, has risen to the level of “serious disruption” – such that a criminal conviction is a “proportionate” response. This is a highly uncertain, politically loaded question which undermines the integrity of the criminal law.
Ministers should have responded to Ziegler, as Policy Exchange has consistently recommended, by inviting Parliament to spell out that no one has a lawful excuse for obstructing the highway – or for committing any other public order offence – if that person intends to intimidate, provoke, inconvenience, or harm others.
The Government has instead asked Parliament to enact various new offences each of which is vulnerable to the Ziegler approach and then, when this has (predictably) not worked, has wrongly tried to make regulations that replace “serious disruption” with the much less demanding test of disruption that is “more than minor”.
Yesterday’s High Court judgment, quashing the Government’s regulations, will not make the situation on the ground better. But this is not the Court’s fault.
It was not for the Court to decide whether the regulations would help or hinder efforts to restore public order on our streets. The question for the Court was instead much narrower: had Parliament authorised the Government to make these regulations? This is a legal, rather than a political, question, which courts in our constitution have always had to address.
The Government has had two major attempts to legislate about public order since the Ziegler case, both of which have failed to address the problems to which that case has given rise. The first attempt, the Police, Crime, Sentencing and Courts Act 2022, empowered the Home Secretary to amend the Public Order Act 1986 to clarify the meaning of the term “serious disruption to the life of the community”, which was not otherwise defined.
This Henry VIII clause, as a ministerial power to amend an Act of Parliament is known, said that the Home Secretary could define any aspect of the term or give examples of what is or is not serious disruption.
The Government’s second major attempt to legislate, the Public Order Act 2023, again failed entirely to address the Ziegler case – instead taking for granted its continuing application.
Late in the parliamentary day, the Government did adopt Lord Hope and Lord Faulks KC’s amendments to the Bill, as it then was, which said that a person causes “serious disruption” if he hinders to more than a minor degree the activities of others. But the House of Lords rejected the amendments.
Before the Bill received royal assent, the Government tabled draft regulations which said that “serious disruption” meant disruption that was “more than minor”. The pressure group Liberty has now successfully persuaded the Divisional Court that this was unlawful.
Liberty deserves its victory in this case, even if its account of the judgment is inaccurate: in no way did the regulations involve Government deciding what causes can lawfully be protested. The Court was right to hold that the 2022 Act did not authorise the Home Secretary to make these regulations.
Henry VIII clauses should be interpreted narrowly, as Policy Exchange has also argued in another context; in empowering the Home Secretary to clarify the meaning of “serious disruption”, including by providing examples, Parliament did not authorise the substitution of the much lower threshold of “more than minor disruption”.
Happily, the Divisional Court firmly rejected Liberty’s second ground of challenge: that making these regulations, which were similar to amendments that the House of Lords had rejected, somehow flouted parliamentary sovereignty.
The Court rightly saw through this argument, which could only apply if the regulations were otherwise lawful, in which case they had been properly made and approved. For good reason, the Court was also concerned that Liberty’s argument invited it to interfere in the proceedings of Parliament, which Article 9 of the Bill of Rights 1689 strictly forbids.
Less happily, the two judges, Lord Justice Green and Mr Justice Kerr, seem confused about the bedrock of the British Constitution, parliamentary sovereignty, which they casually say is a principle that has its “genesis in the common law”, which courts have a duty to protect.
The mischief in this formulation, which the late Lord Bingham saw clearly, is that it encourages judges to think that parliamentary sovereignty is a common law rule which judges made and can remake in some later case if they see fit.
This is an ahistorical and unconstitutional understanding. The judges did not make parliamentary sovereignty, and have no authority whatsoever to remake it.
The judges’ apparent confusion about parliamentary sovereignty, later in their judgment, casts an uneasy light on their opening statement:
“We emphasise at the outset of this judgment that the issues of law are technical. We express no view on the merits of the changes the Government sought to introduce via the Regulations or whether they could in the future be introduced by primary legislation.”
The Court was quite right not to consider the merits of the regulations. But what does it mean to take no view on “whether [these changes] could in the future be introduced by primary legislation”? There should be no doubt whatsoever that they could have been introduced in the 2022 Act, the 2023 Act, or in any future Act.
The problem that the Court responds to in this case is that Parliament in the 2022 Act had not authorised the Home Secretary to introduce these changes by making regulations. Parliament obviously could have made the changes itself, or could have enacted different legislation that did empower the Home Secretary to act in this way.
The third and final ground of challenge, which succeeded, was that the Government had acted unfairly in advance of making the relevant regulations, because it had undertaken a selective consultation, only inviting police forces to comment on its proposals.
Importantly, the Government was under no legal duty to consult anyone before exercising its statutory power. However, the Court ruled that the Government had freely chosen to undertake a consultation, inviting police forces to comment on its proposals, at which point a duty to act fairly kicked into action.
In this context, the Court held that it was unfair of the Government not to hold a wider consultation, which would have made it possible for opponents of the regulations to have their say.
This is an understandable but unfortunate conclusion, which confirms the uncertainty of duties of consultation and the risks that they may pose to Government policymaking. It is certainly not ideal if, in choosing to consult the public bodies that will have to implement proposed legislation, Government thereby triggers a legal duty to have to consult much more widely.
What happens next? The Government has appealed and the Divisional Court has suspended its order quashing the regulations until the appeal has been heard. More important than the outcome of the appeal is the next stage of parliamentary struggle.
The Government has tabled an amendment to its own Criminal Justice Bill, which is set to be debated in the House of Commons in early June. The amendment is a half-hearted response to the Ziegler judgment, making clear that a person has no defence if his actions cause “serious disruption”, which is defined to mean that it hinders “to more than a minor degree” the activities of others.
If Parliament accepts the Government’s amendment and enacts the Bill, there will be no risk of the legislation being quashed in the courts – primary legislation is our highest source of law and is always valid. The pressing question will be whether the amendment will solve the problem.
There are reasons to doubt that it will. The judges of the Divisional Court were not wrong when they said, in relation to the regulations, that “it seems to us that the expression ‘more than minor’ is a recipe for uncertainty”. The same can be said for the Government’s latest legislative proposal, which strongly risks being yet another failed attempt to restore public order.
Richard Ekins KC (Hon), Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford.
The Government’s attempts to get a grip on the problem of public disorder took another blow yesterday, when the Divisional Court held that it had acted unlawfully in making new public order regulations.
The police have been relying extensively on these regulations – which lower the threshold for police intervention in relation to disruptive protest – so this judgment is an operational problem for them. In addition, hundreds of convictions that rely on these regulations are now likely to be unsafe.
The Government has appealed but the appeal should fail: the Court was right to rule against the Government. This case lays bare the Government’s continued failings in legislating about public order; failings which, alas, look set to be repeated yet again in the near future.
No one should doubt that the UK faces a public order crisis. It is now routine for pressure groups deliberately to disrupt the lawful activities of others in order to attract public attention or to force others to yield to their demands and conform to their opinions.
This state of affairs follows in large part from the Supreme Court’s Ziegler judgment, in 2021, which made it much more difficult to convict, or even to arrest, protestors for criminal conduct.
After Ziegler, trial judges and juries have had to decide whether a protestor’s action, in say obstructing the highway, has risen to the level of “serious disruption” – such that a criminal conviction is a “proportionate” response. This is a highly uncertain, politically loaded question which undermines the integrity of the criminal law.
Ministers should have responded to Ziegler, as Policy Exchange has consistently recommended, by inviting Parliament to spell out that no one has a lawful excuse for obstructing the highway – or for committing any other public order offence – if that person intends to intimidate, provoke, inconvenience, or harm others.
The Government has instead asked Parliament to enact various new offences each of which is vulnerable to the Ziegler approach and then, when this has (predictably) not worked, has wrongly tried to make regulations that replace “serious disruption” with the much less demanding test of disruption that is “more than minor”.
Yesterday’s High Court judgment, quashing the Government’s regulations, will not make the situation on the ground better. But this is not the Court’s fault.
It was not for the Court to decide whether the regulations would help or hinder efforts to restore public order on our streets. The question for the Court was instead much narrower: had Parliament authorised the Government to make these regulations? This is a legal, rather than a political, question, which courts in our constitution have always had to address.
The Government has had two major attempts to legislate about public order since the Ziegler case, both of which have failed to address the problems to which that case has given rise. The first attempt, the Police, Crime, Sentencing and Courts Act 2022, empowered the Home Secretary to amend the Public Order Act 1986 to clarify the meaning of the term “serious disruption to the life of the community”, which was not otherwise defined.
This Henry VIII clause, as a ministerial power to amend an Act of Parliament is known, said that the Home Secretary could define any aspect of the term or give examples of what is or is not serious disruption.
The Government’s second major attempt to legislate, the Public Order Act 2023, again failed entirely to address the Ziegler case – instead taking for granted its continuing application.
Late in the parliamentary day, the Government did adopt Lord Hope and Lord Faulks KC’s amendments to the Bill, as it then was, which said that a person causes “serious disruption” if he hinders to more than a minor degree the activities of others. But the House of Lords rejected the amendments.
Before the Bill received royal assent, the Government tabled draft regulations which said that “serious disruption” meant disruption that was “more than minor”. The pressure group Liberty has now successfully persuaded the Divisional Court that this was unlawful.
Liberty deserves its victory in this case, even if its account of the judgment is inaccurate: in no way did the regulations involve Government deciding what causes can lawfully be protested. The Court was right to hold that the 2022 Act did not authorise the Home Secretary to make these regulations.
Henry VIII clauses should be interpreted narrowly, as Policy Exchange has also argued in another context; in empowering the Home Secretary to clarify the meaning of “serious disruption”, including by providing examples, Parliament did not authorise the substitution of the much lower threshold of “more than minor disruption”.
Happily, the Divisional Court firmly rejected Liberty’s second ground of challenge: that making these regulations, which were similar to amendments that the House of Lords had rejected, somehow flouted parliamentary sovereignty.
The Court rightly saw through this argument, which could only apply if the regulations were otherwise lawful, in which case they had been properly made and approved. For good reason, the Court was also concerned that Liberty’s argument invited it to interfere in the proceedings of Parliament, which Article 9 of the Bill of Rights 1689 strictly forbids.
Less happily, the two judges, Lord Justice Green and Mr Justice Kerr, seem confused about the bedrock of the British Constitution, parliamentary sovereignty, which they casually say is a principle that has its “genesis in the common law”, which courts have a duty to protect.
The mischief in this formulation, which the late Lord Bingham saw clearly, is that it encourages judges to think that parliamentary sovereignty is a common law rule which judges made and can remake in some later case if they see fit.
This is an ahistorical and unconstitutional understanding. The judges did not make parliamentary sovereignty, and have no authority whatsoever to remake it.
The judges’ apparent confusion about parliamentary sovereignty, later in their judgment, casts an uneasy light on their opening statement:
“We emphasise at the outset of this judgment that the issues of law are technical. We express no view on the merits of the changes the Government sought to introduce via the Regulations or whether they could in the future be introduced by primary legislation.”
The Court was quite right not to consider the merits of the regulations. But what does it mean to take no view on “whether [these changes] could in the future be introduced by primary legislation”? There should be no doubt whatsoever that they could have been introduced in the 2022 Act, the 2023 Act, or in any future Act.
The problem that the Court responds to in this case is that Parliament in the 2022 Act had not authorised the Home Secretary to introduce these changes by making regulations. Parliament obviously could have made the changes itself, or could have enacted different legislation that did empower the Home Secretary to act in this way.
The third and final ground of challenge, which succeeded, was that the Government had acted unfairly in advance of making the relevant regulations, because it had undertaken a selective consultation, only inviting police forces to comment on its proposals.
Importantly, the Government was under no legal duty to consult anyone before exercising its statutory power. However, the Court ruled that the Government had freely chosen to undertake a consultation, inviting police forces to comment on its proposals, at which point a duty to act fairly kicked into action.
In this context, the Court held that it was unfair of the Government not to hold a wider consultation, which would have made it possible for opponents of the regulations to have their say.
This is an understandable but unfortunate conclusion, which confirms the uncertainty of duties of consultation and the risks that they may pose to Government policymaking. It is certainly not ideal if, in choosing to consult the public bodies that will have to implement proposed legislation, Government thereby triggers a legal duty to have to consult much more widely.
What happens next? The Government has appealed and the Divisional Court has suspended its order quashing the regulations until the appeal has been heard. More important than the outcome of the appeal is the next stage of parliamentary struggle.
The Government has tabled an amendment to its own Criminal Justice Bill, which is set to be debated in the House of Commons in early June. The amendment is a half-hearted response to the Ziegler judgment, making clear that a person has no defence if his actions cause “serious disruption”, which is defined to mean that it hinders “to more than a minor degree” the activities of others.
If Parliament accepts the Government’s amendment and enacts the Bill, there will be no risk of the legislation being quashed in the courts – primary legislation is our highest source of law and is always valid. The pressing question will be whether the amendment will solve the problem.
There are reasons to doubt that it will. The judges of the Divisional Court were not wrong when they said, in relation to the regulations, that “it seems to us that the expression ‘more than minor’ is a recipe for uncertainty”. The same can be said for the Government’s latest legislative proposal, which strongly risks being yet another failed attempt to restore public order.