Published: 21st May 2024 The High Court has ruled that the former Home Secretary Suella Braverman acted unlawfully when she made regulations last year that restricted the right to public protest. The judgment follows a judicial review brought by Liberty in which Public Law Project acted as an intervenor. The Court has ordered for the regulations to be quashed. The Home Secretary laid a statutory instrument (SI) in 2023 that lowered the threshold at which police can impose conditions on public protests, defining it as where protests create ‘more than minor’ disruption. The court found that in lowering rather than clarifying the threshold, the Home Secretary acted beyond the powers granted to her by primary legislation. SIs must be approved by Parliament, but the process means they are not fully scrutinised, cannot be amended, and are almost never rejected. Why were the Home Secretary’s actions unlawful? The Public Order Act (POA) 1986 gives the police power to restrict protests that cause ‘serious disruption’ and enables the Home Secretary to use the SI process to clarify the meaning of ‘serious disruption’. The court found that: Setting the threshold for restrictions as ‘more than minor’ was not a clarification of ‘serious disruption’, it was an alteration. The change amounted to lowering the protection of the common law right of public protest and increased exposure of protestors to criminal proceedings. The POA 1986 only permitted the Government to make regulations (SIs) to clarify the meaning of ‘serious disruption’, not to change or alter it. By using an SI to make that alteration, the Home Secretary had acted outside of her authority because when it passed the POA 1986, Parliament “would not have contemplated that it could be used to change the meaning of “serious” so as to lower the protection accorded to the fundamental common law rights of public procession and assembly” Para 91. Shameem Ahmad, CEO of Public Law Project said: “The Court has agreed with PLP and Liberty that the Home Secretary acted unlawfully by misusing her executive power to restrict one of our fundamental rights, thereby undermining the role of Parliament. “In giving Government ministers the ability to amend Acts of Parliament through Statutory Instruments, Parliament hands them a significant amount of power. That power must be used with the utmost care. The Home Secretary fell woefully short of that standard and her actions crossed a line which no minister of state of any Government should have even thought about crossing. “We welcome the Court’s ruling, which recognises that our rights and constitution cannot be unilaterally and arbitrarily undermined by the executive and that ministers must not act outside of the powers granted to them by Parliament. “Statutory instruments are being used more and more by the executive with very little scrutiny by Parliament. This judgment is an important reminder that there are well-established principles concerning when a statutory instrument is or is not lawful. “Those in Government, present and future, should pay heed and commit to respecting our constitution and our fundamental rights.”